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."
It's sad how much clout the Tre Arrows have on fiscal responsibility.
If the envirals keep us believing things have not changed in 40 years, why hasn’t the logging industry publicized this? Too expensive? Of course, it would have to be on regular tv for me to see the ad, or on FoxNews.com. I don’t have cable or buy a newspaper. And I wouldn’t know where to go to study logging laws. Thanks for the info.
Wow, thanks for the enlightenment. I am really behind the times on this issue. I have a question, though, if wood is so plentiful, why is there so much particle board used? Is it to use every little branch and twig?
For a number of reasons.
First, it is cheaper to make than plywood. Another reason is that it is dimensionally stable, as long as it is not exposed to moisture, and thus can be used in some kinds of furniture very cheaply.
OSB (oriented strand board) may be what you are thinking of. which has much of the strength of plywood, but can be produced at 1/3 of the cost. It is used extensively in roofing substrate, and flooring, in mass produced tract housing.
I have seen a few clear cuts done for forest health reasons. They did a good sized patch cut on a commercial stand above me and I had a fit. They took me up on a tour and showed me a dense thicketed forest of supressed growth fir. The trees were 70 years old and a few inches in diameter. They had tried to thin them to release them to grow several times. It works for sugar pine, but it didn’t work in this forest. They had to gut it and start over.
It does happen, but it is an exception rather than a rule.
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