NINTH CIRCUIT REFUSES TO REVERSE RUINOUS FORESTRY RULING
May 17, 2011 - For Immediate Release
A western, nonprofit, public-interest legal foundation with decades of experience in environmental and forestry issues today decried the refusal of a federal appellate court to reverse an earlier 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. In a friend of the court brief, Mountain States Legal Foundation (MSLF) had 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 argued that the panel’s ruling conflicts with two 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 withdrew its earlier opinion but made no substantial changes in its new opinion.
“This ruling spells economic disaster for forestry,” declared MSLF president, William Perry Pendley. “In addition, the case was before the court as a result of a motion to dismiss so the panel lacked the factual basis to issue the rulings that it did. Regrettably, the panel declined to grant our motion to file our scholarly and helpful friend of the court brief.”
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. 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 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.
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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