Posted on 07/03/2008 7:27:22 PM PDT by jazusamo
Top federal judges ruled this week that their own court has gone too far in holding up logging projects, saying western judges from now on must show more deference to the agencies planning the cutting.
The ruling involving an Idaho timber sale is a blow to environmental groups that have increasingly relied on federal courts to block projects they see as unsound.
The decision is especially striking because it comes from the federal appeals court that encompasses most national forest land in the West and is known for its liberal bent and for often siding with environmental interests. The ruling redefines the standards for when federal judges in much of the West can stop a logging project, tilting the playing field against critics of logging on public lands.
Mark Rey, the undersecretary of Agriculture who oversees the U.S. Forest Service, called the ruling the most important decision in a national forest environmental case in two decades.
The ruling clears a more direct path for projects designed to thin overgrown forests at high risk of wildfire and insect outbreaks, he said. Federal courts have often slowed such thinning while they examine the environmental justification.
He noted the severe wildfires now burning in California, where the western court panel that issued the ruling is based.
"One possibility is that the smoke helped improve their vision," Rey said. He said the ruling should help the Forest Service get more forest projects done with its limited funding, which is increasingly being diverted to firefighting.
Scott Horngren, a Portland attorney who represented logging companies and timber companies and communities intervening in the case, said such a ruling was "long overdue."
The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an "en banc" decision and is the highest level of court review short of the Supreme Court.
En banc panels hear only a handful of cases each year, and it's very unusual for them to consider what started as a relatively standard case of environmental groups questioning a timber sale.
But Smith apparently got the attention of other judges with a sharply worded decision in the same case last year. He chastised his fellow judges for meddling in matters beyond their expertise and setting up so many standards they "make it virtually impossible for logging to occur under any conditions."
Smith, who grew up in Oregon and was appointed to the appeals court by President Bush in 2006, went so far as to say 9th Circuit judges had decimated the Northwest logging industry with "blunderbuss" rulings that went way too far.
The 11-judge panel sided with Smith, making clear in their decision issued Thursday that they wanted to rein in their own court. They said environmental groups want judges to act as a panel of scientists that analyzes studies and requires the Forest Service "to explain every possible scientific uncertainty."
That's "not a proper role for a federal appellate court," they wrote.
They acknowledged that 9th Circuit judges had in earlier cases gone too far in requiring the Forest Service to provide detailed scientific support and evidence for every decision.
"We created a requirement not found in any relevant statute or regulation," they wrote. "We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.
The other judges who joined Smith in the decision included six appointed by Republican presidents and five appointed by Democrats.
But Dan Rohlf, a professor at Lewis & Clark Law School in Portland and a leading environmental attorney, said the decision is a "recipe for disaster." He said it nearly eliminates critical judicial oversight of federal land agencies, opening the door to political manipulation.
"It is going to really make federal courts less willing to take a close look at the scientific justification for federal decisions," he said.
During the Bush administration, judges have prevented agencies from tilting science to support their own ends, he said.
By requiring judges to defer to those agencies, the new court decision "is a recipe for the policy and ideology of an agency to be able to win the day," said Rohlf. He directs the law school's environmental law center, which often handles logging cases.
Political leaders "will be able to say, 'Go ahead and cut everything down and we'll make sure our scientists say that's O.K. and then we can go to court and say the science supports it,' " he said. Political pressure could be used in the same way to stop all logging, he said.
While the ruling is fascinating from a legal perspective, he said, "for me in my role as an advocate, it's going to be very challenging."
The system worked exactly as it was intended.
The idea that "it's too late" implies that this represents a change of some sort. It isn't. It won't be long before the likes of Red Emerson get to cash in bigger than ever. Nothing has changed, especially as regards the Ninth Circ-It.
Isn't fascism fun?
The idea that the militant EnvironMental movement is owned and controlled by bogeymen alone and not shared by an army of activists and activist attorneys with Commonism on their pithy minds, is still a stretch for me.
However, I must admit that although I'm not a strong believer in water-tight conspiracy theories, I do recognize massive orchestration when I see it!!!
I just don't like the idea of letting all the activists and the activist attorneys off the hook by blaming behind the scenes mysterious bogeymen that even control the courts.
I don't think I ever said that it was "owned" any more than the Rockefellers "own" Exxon/Mobil (now there's a hint), but they certainly do control it for the most part.
Just because useful idiots have "free will" doesn't mean they aren't willfully duped at gunpoint by a police state that controls what they think and see from they day they enter COMPULSORY public education.
I just don't like the idea of letting all the activists and the activist attorneys off the hook by blaming behind the scenes mysterious bogeymen that even control the courts.
It's not in the least bit mysterious. The judges are brainwashed stooges too.
We still have two mills left, but they are both plywood veneer mills that take logs under 28 inches. (They unroll them like a paper towel.) Neither is SP. There is no local mill for big trees. They have to be taken all the way up to Roseburg Oregon and, now that the Railroad is closing its line down because it can’t make enough profit, that is questionable. So when the enviros scream about taking big trees from old growth forests, it ain’t happening here.
There is a huge divide for the environmental requirements and costs placed on California timber operators and Oregon ones. It is MUCH easier to harvest and mill in Oregon.
I was out at the dimensional mill in eastern Shasta County (Fall River Mills?)in early spring. They used to be able to harvest from a radius 40-50 miles out. Now that radius is shrinking because of fuel costs. I have even heard that some operations are shipping in Canadian dimensional wood and chipping it for the biomass market. That’s how glutted the market was because of the lack of housing starts.
Do you know if the mill in Medford is still operating?
Which was the enviro-commie's intent to begin with. TO DESTROY THE LUMBER/WOOD PROUDCTS INDUSTRY, any lie, any trick to destroy the industry in the hopes that it could never be repaired.
Now let's see if there are any consequences for the watermelon enviro-commies.
I suppose they still have that mounted museum specimen to get Lynx hair to plant.
That's "not a proper role for a federal appellate court," they wrote.
Perhaps Judge Jones, he of Dover, Pa fame and the SCOTUS, who in their infinite scientific wisdom declared CO2 a pollutant, should take notice.
I have no doubt, but it is a little surprising given their Oregone Ducks athletic teams are known as the "GREEN GANG!" (which caused me, in a fit of boredom while driving on I-5 and seeing that sign, to turn that around into "GANG-GREEN!")
Even Oregone's gasoline has not been fouled by M.T.B.E. nor does it have as much wood alcohol content as our inefficient gasoline!!!
I always thought Oregone's youth were more indoctrinated to be leftist "Activists & Advocates" than CA's youth, but I guess I'm wrong...
Clearcutting is rape.
Until the loggers can keep the dirt on the hill and not send giga-tons into the river, I’ll agree with the green weenies on this one.
How many rivers must die until they learn to cut every THIRD tree?
Save the salmon & steelhead!
Did you read the article?
Looks like the Ninth Circus has pulled up stakes, and cleared out of dodge!
This is truly a cause for celebration.
Ten years of devastating forest fires seem to have finally driven the point home that logic was unable to. This year has been as bad as 2000 for fires.
They're looking straight down the barrel of the USSC's second ammendment ruling?
LOL< now that’s an angle I hadn’t considered.
You guess correctly. Replanting is required by law and by contract, duh! Because timber companies absolutely want to put themselves out of business by running out of a renewable rescource.
It's this kind of basic ignorance that the envirals count on to get public support for their anti-business, anti-growth, anti-life activities.
Yes, an extremely bad year for fires. They’re the norm in So CA though usually later in the year but look at the hundreds of fires started in No CA this last week by lightning and many are burning in timber.
Had a decent forest management plan been allowed to be applied I’m sure less of them would still be burning.
Clear cutting hasn't been done for forty years. Selective harvest has been the rule, rather than the exception. Replanting is in most cases unnecessary. All of our forests are seriously over-grown. There is no shortage of seedlings on the forest floor; most contracts involve thinning the existing stock of seedlings for a healthier forest.
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