Supreme Court may take Ninth Circuit logging case


The U.S. Supreme Court today signaled it may hear a Ninth Circuit Court of Appeals case that claims logging roads should be treated as industrial sites. The Ninth Circuit decision (which we last wrote about here) said that every stream culvert and drainage ditch on hundreds of thousands of miles of logging roads should require a permit. This would require not just hundreds of thousands of permits, taking a decade for the U.S. Forest Service to approve, but it would open the timber industry to thousands of lawsuits from environmental groups.

The Supreme Court today asked the Obama administration for its views on the issue, which legal experts say is a sign the highest court in the land will take up the case. While legislation is currently in Congress to overturn the Ninth Circuit decision, opponents — including the timber industry as well as 26 states — also were hoping the Supreme Court would hear the case.

“This is enormous. There are zillions of miles of roads and zillions of miles of culverts. How do you administer that?” said Richard Zabel, executive director of the Western Forestry and Conservation Association.

The (Supreme Court’s) request is a hopeful sign for the timber industry, which hopes the Supreme Court will review a prior ruling by the 9th U.S. Circuit Court of Appeals that would expand the Clean Water Act’s scope.

“It significantly increases the chances,” said Greg Corbin, an attorney representing timber companies in the case.

In anticipation of the Supreme Court weighing in, the Wall Street Journal and Washington Times both recently wrote about the case. The Journal’s editorial board said that environmental groups’ goal in the case is “to create enough delay and bureaucracy that timber harvesting will cease to be profitable.”

As a legal matter, the Ninth Circuit’s decision was a particularly blatant power grab in the kind of matter traditionally left to an agency with specific judgment and knowledge. In deciding environmental complaint cases, courts are supposed to defer to the Environmental Protection Agency, as long as the agency has acted reasonably.

Jim Petersen, the co-founder of Oregon’s Evergreen Foundation, wrote in the Times that the Ninth Circuit decision would “put federal courts into the business of managing every acre of privately owned timberland in America.”

Americans who love to hike will find it hard to believe that when they are out walking amid the splendor of their favorite forest they are, in fact, strolling through toxic industrial sites. In effect, that is what the 9th Circuit has said, and that is why the nation’s forest landowners are hoping the Supreme Court will rescue them from this new and astonishing display of legal revisionism and regulatory zeal.