NINTH CIRUIT RULING ON FORESTRY SPELLS DISASTER
October 15, 2010 - For Immediate Release
DENVER, CO. A western, nonprofit, public-interest legal foundation with decades of experience in environmental and forestry issues today urged a federal appellate court to rehear and reverse a ruling by a three-judge panel that held all public roads associated with forestry in the Pacific Northwest subject to federal regulation under the Clean Water Act (CWA). In a friend of the court (amicus curiae) brief, Mountain States Legal Foundation (MSLF) urged the U.S. Court of Appeals for the Ninth Circuit panel either to rehear the case or to have the case reheard by the entire court (en banc). MSLF argues that the panel’s ruling conflict with two specific decisions issued by the Supreme Court of the United States requiring that the panel give “controlling weight” to the Environmental Protection Agency’s interpretation of its own CWA regulation, which exempts logging per se.
“The ruling of the three-judge panel is outrageous in the extreme,” declared MSLF president, William Perry Pendley. “The case was before the court as a result of a motion to dismiss so the court lacked the factual basis to issue the rulings that it did; moreover, the panel’s ruling conflicts with two Supreme Court decisions. Finally, the ruling, if it stands, spells economic disaster for forestry in the midst of a recession.”
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 roads 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 CWA.
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. On October 5, 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 within the Ninth Circuit’s jurisdiction will be exposed to potential civil liability via citizen lawsuits under the CWA. 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.
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.
Northwest Environmental Defense Center v. Brown, No. 07-35266 (9th Cir.)
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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