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The Forest Service spends more time in court than one of those pill-popping Hollywood types. Forest Service court cases are not racy affairs, but they can be interesting and even a little weird from time to time. If you’ll bear with me through some boring legal background (you have to be a bit of an idiot savant to keep track of this stuff) you’ll read about federal judges arguing amongst themselves about species viability, the proper role of the courts, and blowing up dams.
The bottom line for the Forest Service is that the 9th Circuit Court of Appeals—which hears all appeals of Forest Service projects in WA, OR, CA, MT, ID, NV, and AZ—is picky about how the Forest Service discloses impacts to wildlife from logging.
Until recently. The court, you see, has changed its mind.
It all started six years ago when the Ecology Center—a Montana conservation group—sued over a salvage logging project on the Lolo NF. They lost in district court and appealed to the 9th Circuit. The 9th agreed with conservation plaintiffs that the sale was illegal because the Forest Service didn’t explain why logging burned forest habitat wouldn’t adversely affect the viability of black-backed woodpeckers, a critter that forages in burned forests.
That case was called Ecology Center v. Austin (all the defendants named in these suits are Forest Supervisors). This ruling became the basis for “The Ecology Center Rule,” a legal test that bascially says that the Forest Service may not rely on a scientific methodology that “is predicated on an unverified hypothesis.” Instead, the FS must rely on science that has been “verified with observation” and “on the ground analysis.” In short, the FS doesn’t just get to baldly assert that a critter isn’t going to be harmed by logging. They have to provide a robust analysis as to why the critter isn’t going to be harmed.
Not long after the Ecology Center ruling, the Lands Council—an Idaho nonprofit—sued the Idaho Panhandle National Forests over the Mission Brush Fuel Reduction Project. They lost that case, called Lands Council v. McNair, but appealed to the 9th, where they won. “As in Ecology Center,” the 9th wrote, “the Forest Service is relying on the ‘unverified hypothesis’ that treating old-growth forest is beneficial to dependent species.”
The species at issue this time was flammulated owls. The Forest Service based its conclusion that Mission Brush wouldn’t harm owls on a single study that found one owl in a nearby completed thinning sale. This study, the court ruled, was “insufficient to meet the requirements of Ecology Center.”
Here’s where it gets unusual.
The 9th heard the Lands Council appeal, as it usually does, as a panel of three judges, where a majority carries the day. This panel ruled 3-0 for the environmental plaintiffs. Usually one judge will write an opinion for the consensus majority. In this case, Judge Milan Smith (the brother of Republican Senator Gordon Smith of Oregon) agreed with Judge Ferguson’s majority opinion but took the time to write a “special concurrence” describing how Judge Ferguson was an idiot.
In his special concurrence, Judge Smith blasted the 9th Circuit for overbroad legal rulings that he said had contributed to the “decimation” of the logging industry. He wrote:
“[Judge Ferguson] cites as authority… a 2003 tome by Messrs. Derrick Jensen and George Draffan entitled Strangely Like War: The Global Assault on Forests, which attributes the decline of logging in the Northwest almost entirely to corporate consolidation and cost-cutting within the timber industry… Jensen is often labeled an ‘anarcho-primitivist,’ who is quoted as saying in his book A Language Older Than Words that ‘[e]very morning when I awake I ask myself whether I should write or blow up a dam. I tell myself I should keep writing, though I’m not sure that’s right.’… I respectfully suggest that the views of persons who, for example, fantasize about blowing up dams (a form of ecoterrorism and criminal act that potentially threatens the lives and property of thousands of people) deserve a healthy skepticism…”
“I would (if the occasion arises),” he concluded, “reverse the majority’s holding in Ecology Center, which would likely change the result in this case.”
Judge Ferguson wasn’t going to take that lying down. In yet another concurrence (a rebuttal to a concurrence to his own opinion, if you want to get technical) he argued that Smith was the one who was an idiot.
“I take issue with the part of his special concurrence that, with no evidence whatsoever, assigns to the courts of our circuit culpability for the status of the timber industry and impugns the last several decades of our circuit’s environmental law jurisprudence,” he wrote. “Judge Smith takes the plain fact that district courts in our circuit have enjoined logging projects in the past, adds the claim that the timber industry is declining, and asserts a causal relation between the two. In doing so, Judge Smith commits a textbook logical fallacy: post hoc, ergo propter hoc (after this, therefore because of this).”
“Judge Smith’s ad hominem attack against Jensen and Draffan,” he adds, “does not address the merits upon which the authors base their contentions. Regardless of how one feels about these two individuals, their argument quoted herein is a quantitative analysis, citing other studies. It has nothing to do with blowing up dams.”
To make a long story short, it appears that Judge Smith’s legal view (if not his views on legitimate scholarship) have prevailed. The 9th Circuit made a highly unusual decision to review Lands Council v. McNair en banc, meaning that an expanded 9th Circuit panel of 11 judges reconsidered the decision of the three-judge Lands Council panel.
In this en banc decision, the 9th Circuit threw out it’s previous holding in Lands Council v. McNair and the Ecology Center rule.
This quote sums up the 9th’s updated view of the law with respect to species viability:
“In essence, Lands Council asks this 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… [T]his is not a proper role for a federal appellate court.”
Next post: I tour the Mission Brush Project with Forest Service staff and get their reaction to the en banc ruling.
And in a post to follow, what do Forest Service wildlife biologists have to say about fuel reduction thinnings and wildlife viability?
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