U.S. SUPREME COURT MUST HEAR RUINOUS FORESTRY RULING
October 17, 2011 - For Immediate Release
DENVER, CO. A western, nonprofit, public-interest legal foundation with decades of experience in environmental and forestry issues today urged the Supreme Court of the United States to hear a ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that held that all public roads associated with forestry in the Pacific Northwest are subject to federal regulation under the Clean Water Act. Mountain States Legal Foundation (MSLF) argued in a friend of the court brief that courts lack jurisdiction to hear the groups’ lawsuit. In an earlier friend of the court brief, MSLF urged the panel to rehear the case or the entire Ninth Circuit to rehear the case en banc. MSLF argues that the panel’s ruling conflicts with specific rulings by the U.S. Supreme Court requiring that the panel give “controlling weight” to the Environmental Protection Agency’s interpretation of its own Clean Water Act regulation, which exempts logging per se. The panel did withdraw its opinion but made no substantive changes in its new opinion.
“This ruling spells economic disaster for forestry,” declared MSLF president, William Perry Pendley. “But the worst is yet to come as the panel opened the door to new challenges to regulations that have long been on the books and years after the ability to challenge them expired.”
In September 2006, an environmental group filed a lawsuit in federal district court in Oregon claiming that stormwater (largely rainwater runoff) that flows from two long-existing public forest roads into systems of ditches, culverts, and channels and that is discharged ultimately into forest streams and rivers are discharges from “point sources” that require a permit under the CWA. The district court dismissed the lawsuit holding that the discharges are exempt from the Clean Water Act.
In August 2010, a panel of the Ninth Circuit reversed, holding that the discharge is a point source, that the EPA’s regulation as to forest lands is contrary to the intent of Congress, and that, contrary to the EPA’s regulation, logging is an “industrial activity” and runoff from it is subject to regulation under the CWA. The case was then remanded to the district court for further proceedings. In October 2010, the defendants filed a petition for rehearing and a petition for rehearing en banc.
Under the three-judge panel’s ruling, anyone who owns, operates or uses forest roads for transporting timber in the nine states included with the Ninth Circuit’s jurisdiction will be exposed to potential civil liability via citizen lawsuits under the Clean Water Act. Even worse, there does not now exist a permit program under which anyone subject to such lawsuits could apply for, much less obtain the permits the panel demands.Mp>Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
Mountain States Legal Foundation (MSLF) is a nonprofit,
public interest legal foundation dedicated to individual liberty, the right
to own and use property, limited and ethical government, and economic freedom. It is an Internal Revenue Code 501(c)(3) entity
incorporated in the State of Colorado. Csontributions
to Mountain States Legal Foundation are tax deductible.
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