Supreme Court will take logging roads case, but questions remain


For advocates of working forests, the big news out of the Supreme Court this week wasn’t its ruling on health care reform – it was the court’s decision to take the Ninth Circuit Court of Appeals logging roads case.

For months, the timber industry has been asking the high court to take the case, in which the Ninth Circuit ruled that every stream culvert and drainage ditch on hundreds of thousands of miles of logging roads would require a federal permit. If left unchecked, the Ninth Circuit decision would have left forest owners across the West vulnerable to lawsuits from environmental groups, which could have contested every permit on every stream culvert.

Now the Supreme Court is going to weigh in on the issue, which will provide the legal certainty that forest owners need.

“The Supreme Court’s decision to review this case is a welcome development for forest landowners across America, who for 35 years have contributed to one of the nation’s best success stories under the Clean Water Act,” said Dave Tenny, (President and CEO of the National Alliance of Forest Owners). “It validates the opinions of the Solicitor General, 29 state attorneys general and forest owners and operators across the country who all agree that the Ninth Circuit’s decision was wrong.”

Georgia-Pacific, whose forest practices in Oregon were contested by a Portland environmental group to start the legal case,  said it was also happy with the Supreme Court’s move. The company issued a release with these remarks from Timothy Bishop, the lead appellate attorney for the forestry industry in the case:

“The Ninth Circuit’s decision to regulate forest roads runoff the same as pollution discharge points coming neatly out of an industrial pipe makes no sense from an environmental perspective or from an economic perspective. If left intact, the ruling would divert significant resources from implementing state forestry best management practices that are sensitive to local conditions and that serve the environment and the industry well to costly permitting that doesn’t fit the circumstances and that is likely to result in wasteful litigation. We are glad the Supreme Court has recognized the importance of stepping in to deal with the Ninth Circuit’s serious errors.”

While this week’s news is a positive development, it’s not enough to sit back and wait to hear the Supreme Court’s decision on the case next year. The U.S. Environmental Protection Agency is still planning to proceed on a rulemaking process in reaction to the Ninth Circuit decision. If that process moves forward, it could leave forest owners legally vulnerable until the Supreme Court rules.

The EPA should put any rulemaking on hold and defer to the Supreme Court, according to the National Alliance of Forest Owners.

“The Supreme Court’s decision raises a significant question regarding the need for further administrative action by the EPA pending a final decision by the Court,”  (David Tenny said).  “At this point undertaking an administrative process without knowing the legal context would be a questionable use of time and resources.”