9th Circuit: Judges shouldn't act as scientists
MILLER, Capital Press 7/3/08
Idaho (AP) -- An 11-judge panel of the 9th U.S. Circuit Court
of Appeals has ruled it's improper for federal judges to act
as scientists when weighing in on disputed U.S. Forest Service
Timber industry lobbyists and Forest Service officials called
the unanimous ruling overturning a challenge to a northern
Idaho logging sale significant, partly because it emerged from
a court often seen as favorable to environmental groups.
In the ruling released Wednesday, the judges dumped a July
2007 decision by a three-judge 9th Circuit panel that halted
the Mission Brush timber sale in the Idaho Panhandle National
Forest. Environmental groups The Lands Council, based in
Spokane, Wash., and the Wild West Institute, in Missoula,
Mont., contended the Forest Service's logging plan exceeded
what was needed to restore the forest's historic character and
claimed logging would harm the region's ecosystem for species
including small, migratory owls.
The ruling also overturns a 2005 9th Circuit decision in which
judges concluded the Forest Service's approval of logging in
burned areas of western Montana's Lolo National Forest was
based on an arbitrary and capricious environmental analysis.
U.S. Agriculture Department Undersecretary Mark Rey, who
oversees the Forest Service, called this "the most important
decision involving a Forest Service environmental case in the
last two decades," saying it restores the ability of federal
agencies, not meddling judges, to exercise discretion over
"The judges established a much more limited framework for
judicial review of Forest Service decisions - a framework
that's much more consistent with the standard use by other
circuits," Rey told The Associated Press on Thursday. "The
court says its role is not to act as a panel of scientists.
They wanted to move back to a more appropriate role."
Timber industry representatives said this will help stop
judges from asserting their opinions over the decisions of
Forest Service managers.
"We think it's a landmark case," said Tom Partin, president of
the Portland, Ore.-based American Forest Resource Council. "It
speaks volumes that 11 judges out of the 9th Circuit came up
with this decision ... saying that the panel screwed up and
that the judges aren't supposed to second-guess the forest
Earth Justice, a nonprofit environmental law firm that's
monitored this case but didn't represent the plaintiffs,
contends claims by logging advocates and Rey are premature
that this decision will radically shift the balance of power
toward the agency and away from environmental groups.
"I don't know that it changes the law at all, frankly," said
Todd True, from the group's Seattle office. "Environmental
groups or anyone else asking the courts to review government
action have always had the burden to show that the government
acted arbitrarily and that it failed to consider some factor
that's important. I don't think this decision says that these
agency scientists get a free pass and can do whatever they
want to, and the courts have to accept it."
The logging projects on 3,829 acres in the Bonners Ferry
region will likely now move forward, a victory for the cities
of Bonners Ferry and Moyie Springs that had said blocking the
work could hurt the region's timber-based economy. Some
logging in the area had already begun before becoming
entangled in the courts.
The logging is meant to bring a dense, Douglas fir-packed
forest closer to its historical composition of open ponderosa
pine and Douglas fir stands and to reduce the risk of insect
infestation and devastating wildfire.
The judges' decision this week affirms a 2006 ruling by U.S.
District Judge Edward Lodge rejecting an injunction.
Environmentalists had asked the court "to act as a panel of
scientists that instructs the Forest Service how to validate
its hypotheses regarding wildlife viability, chooses among
scientific studies in determining whether the Forest Service
has complied with the underlying Forest Plan, and orders the
agency to explain every possible scientific uncertainty,"
Judge Milan D. Smith, Jr., wrote. "This is not a proper role
for a federal appellate court."
Smith was on the three-member panel last July that overturned
Lodge's original decision, but wrote then he did so only
reluctantly because he was bound by the precedent of the 2005
That case, Ecology Center v. Austin, was an example of an
"over-broad court injunction" that had ignored
well-established standards that governed the court's limited
role in reviewing laws and slashed employment in logging
communities in the Pacific Northwest, he wrote then, adding
he'd gladly overturn it if the occasion arose.
"Today, we correct those errors," Smith wrote this week,
concluding that wildlife viability isn't the Forest Service's
only consideration when developing logging plans for public
land. Other considerations are outdoor recreation, range,
timber and watershed protection - and federal law doesn't
dictate just what methodology the agency must use when doing
its environmental analysis, Smith wrote.
The environmental groups still plan to pursue their case in
U.S. District Court. No hearing date is set.
Mike Petersen, executive director of The Lands Council,
contends a more complete scrutiny of the arguments will work
out in the environmentalists' favor - if not in Lodge's court,
then with another 9th Circuit appeals panel.