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Timber fight pits judge vs. judges (Bush appointed judge)
The Oregonian ^ | July 25, 2007 | Michael Milstein

Posted on 07/25/2007 6:59:03 AM PDT by jazusamo

9th U.S. Circuit - Sen. Smith's brother blasts decisions, then faces blowback

Wednesday, July 25, 2007

It's a common refrain in Northwest timber country: Misguided federal judges are hastily shutting down logging instead of letting professional foresters do their jobs.

Now the refrain is coming from a judge on the top federal court in the West -- who also happens to be the brother of Oregon Republican Sen. Gordon Smith.

In an unusually blunt and wide-ranging opinion on a lawsuit over a small Idaho timber sale, Milan D. Smith Jr. blamed his own court for taking the law too far and causing much of "the decimation of the logging industry in the Pacific Northwest" and the loss of legions of timber jobs.

He said his fellow judges have erected so many legal hurdles they have made logging in national forests nearly impossible. His wrath, in turn, provoked a scathing rebuke from two other judges.

"It's like they really got pretty ticked off at each other," said William Funk, a professor at Lewis & Clark Law School.

Court watchers said Smith's extraordinary argument could lead higher courts to examine how deeply courts should pry into the details of federal logging decisions.

President Bush appointed Smith last year to the U.S. 9th Circuit Court of Appeals, the highest Western court and one known for its liberal tilt and tendency to stymie logging. The judge grew up in Pendleton and founded a law firm in Torrance, Calif.

He is based in Pasadena, Calif.

"In my view there is a correlation between sometimes over-broad court injunctions halting the flow of lumber and the dramatic decrease of employment in logging communities throughout the Pacific Northwest," he wrote in a 10-page opinion, citing statistics on the decline of timber communities in Oregon.

His opinion expanded on the main ruling in the case and carries no direct weight, but drew a sharp rebuttal from two other judges on his court. The three went beyond anything lawyers discussed, looking up their own newspaper and magazine stories, Wikipedia entries and timber company Web sites to make their points.

Judicial bickering rarely emerges so openly. In this case it highlights a deepening divide over how much deference judges should give the agencies that plan logging projects.

"This even surprised me," said Portland attorney Scott Horngren, who has long been involved in timber issues and represented an Idaho county and logging companies that intervened in the case.

The 9th Circuit has a reputation for second-guessing agencies, although Horngren said newer judges such as Smith are shifting away from that approach. He said Smith's arguments in the case could help put that question before a larger 9th Circuit panel and, possibly, the Supreme Court.

By misreading the law and employing a "blunderbuss injunction" to ban logging, judges "needlessly create great hardship in the lives of many people, harm the economic interests of our country and foster disrespect for our courts," Smith wrote.

But Warren J. Ferguson, a senior circuit judge, and Stephen Reinhardt, another judge, blasted back at Smith in a follow-up opinion. They said Smith, "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."

Both Ferguson and Reinhardt were appointed to the bench by President Carter.

They said Smith "commits a textbook logical fallacy" by blaming court actions for timber job losses without evidence. It's up to the courts to stop the U.S. Forest Service and other federal agencies from violating environmental laws with their logging projects, they said.

"The frequency of injunctions is evidence of the frequency of unlawful agency actions, nothing more and nothing less," they wrote.

The timber industry, not the courts, caused its own downfall in the Northwest by stripping the forests and flooding the market with cheap timber, they said.

"As with many sectors of our economy, it is the practices of the timber industry itself that have caused massive unemployment, not the practices of those who would check it's unhindered 'progress,' " they wrote.

Even as low-wage timber workers lost their jobs, companies such as Louisiana-Pacific and Weyerhaeuser awarded their corporate leaders multimillion-dollar payouts, the two judges said.

The quarrel ran beyond the actual case involved, a 3,829-acre federal timber sale in the Idaho panhandle that targeted overgrown and flammable forests. It hinged on the precedent set in an earlier case, where 9th Circuit judges ruled that the Forest Service must prove that its logging projects will not harm wildlife.

Judges in the earlier case, Smith said, went as far as "counting owl hoots," to determine whether studies actually proved what the Forest Service said they did. In doing so, he said, "we intrude into areas far beyond our competence."

He said such decisions "make it virtually impossible for logging to occur under any conditions because the Forest Service can never satisfy the constantly moving legal targets created by our circuit, sometimes out of whole cloth."

A spokeswoman for Sen. Gordon Smith's office in Washington, D.C., said the senator does not comment on or influence his brother's court opinions.


TOPICS: Extended News; Government; News/Current Events
KEYWORDS: 9thcircuit; environment; govwatch; judicialactivism; judiciary; logging; timberindustry
But Warren J. Ferguson, a senior circuit judge, and Stephen Reinhardt, another judge, blasted back at Smith in a follow-up opinion.

Reinhardt is probably the most liberal moonbat judge in the 9th Circus and that's saying something, looks like judge Smith really ruffled his feathers, good on him.

1 posted on 07/25/2007 6:59:06 AM PDT by jazusamo
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To: jazusamo
He said his fellow judges have erected so many legal hurdles they have made logging in national forests nearly impossible.

Well, duh. That's precisely the point, isn't it?

Enviros worship trees. It's morally repugnant to ever actually use one for anything. (Never mind that old forests are unhealthy forests...)

2 posted on 07/25/2007 7:01:23 AM PDT by TChris (The Republican Party is merely the Democrat Party's "away" jersey - Vox Day)
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To: jazusamo
"In my view there is a correlation between sometimes over-broad court injunctions halting the flow of lumber and the dramatic decrease of employment in logging communities throughout the Pacific Northwest,"

In other news, the sun rises in the east.

3 posted on 07/25/2007 7:06:10 AM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: jazusamo

Judge Smith is absolutely correct. The courts have declared war on the resource industries (and the people who depend on them) of the rural West.


4 posted on 07/25/2007 7:06:47 AM PDT by B Knotts (Anybody but Giuliani!)
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To: jazusamo
"The frequency of injunctions is evidence of the frequency of unlawful agency actions, nothing more and nothing less," they wrote.

The frequency of the 9th Circuit's blunderous decisions having to be reversed upon appeal by the US Supreme Court, is evidence that the judges on the 9th Circuit court are ill-suited to understand any US law. All decisions by the 9th Circuit court are justifiably suspect.

5 posted on 07/25/2007 7:09:58 AM PDT by Sgt_Schultze
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To: DuncanWaring

I think the real news is that a judge on the 9th Circus is finally speaking out against the good ole lib boys and the good ole lib boys don’t like it.


6 posted on 07/25/2007 7:10:52 AM PDT by jazusamo (DefendOurMarines.com)
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To: jazusamo; forester; marsh2; editor-surveyor; SierraWasp; Grampa Dave

One sane voice in the bleak wilderness of the Ninth Circus...


7 posted on 07/25/2007 7:16:43 AM PDT by tubebender (My first great grandson is a Miniature Schnauzer...)
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To: jazusamo

bttt

the good ole lib boys don’t like it.


8 posted on 07/25/2007 7:18:44 AM PDT by george76 (Ward Churchill : Fake Indian, Fake Scholarship, and Fake Art)
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To: george76

You might enjoy this ping.


9 posted on 07/25/2007 7:18:45 AM PDT by jazusamo (DefendOurMarines.com)
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To: george76

LOL! You were in a second before the ping.


10 posted on 07/25/2007 7:19:44 AM PDT by jazusamo (DefendOurMarines.com)
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To: jazusamo
Say what you will about George's judgment in other areas, his judicial appointees have proven to be rock-solid.

It is and will prove to be his greatest legacy and gift to the American people.
11 posted on 07/25/2007 7:32:39 AM PDT by Sudetenland (Never underestimate the ability of a Liberal to lie.)
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To: Sudetenland

Agreed...He has definitely made a difference in the federal courts and it will last a good long time.


12 posted on 07/25/2007 7:35:24 AM PDT by jazusamo (DefendOurMarines.com)
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To: jazusamo

From the article “Even as low-wage timber workers lost their jobs, companies such as Louisiana-Pacific and Weyerhaeuser awarded their corporate leaders multimillion-dollar payouts, the two judges said.”

This has little about environment. This has everything to do with corporate profits derived from “public” government mismanaged land.
The judicial branch is attacking capitalism at it’s core.
The mention of profits in the statement is enough to understand their motive.


13 posted on 07/25/2007 7:37:32 AM PDT by o_zarkman44 (No Bull in 08!)
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To: jazusamo

Of course there is a correlation. Here is an excerpt from my recent testimony to the state Senate Committee on Natural Resources and Water:

According to the new 2007 California County Data Book, Siskiyou County is now dead last among all California Counties in family economic well-being, having the lowest median income at $30,356, compared to $112,155 for San Mateo County and $56,332 for California as a whole. 65% of households with children ages 0-17 are low income, compared with a California average of 43%. The report notes that 27% of Siskiyou County’s children live in official poverty, compared to 19% for the state. In January 2007, unemployment in the county was 10.8% overall, compared to a statewide level of 5.3%. Using July 2006 periodic figures, 4% of the population of Siskiyou County receive CalWORKs benefits, (formerly Aid to Dependent Children,) compared to 2.8% of the population on a statewide average

According to a 2005 Affordable Housing Study for Siskiyou County, in the area of the Klamath River corridor where logging commonly occurred, the median household income is $22,453, with 54.6% of the population living below the $25,000 mark. The Northwest Forest Plan Socioeconomic Monitoring Module: Klamath National Forest and Three Local Communities Case Study Review Draft - September 3, 2004, determined that in the year 2000, unemployment on the Klamath River corridor was 19.6%, impacted largely by the closure of the lumber mill in Happy Camp.

These indicators of increasing social and economic distress occurred in the aftermath of a series of regulatory events. The Klamath National Forest, the primary National Forest in my district, has a standing inventory of 13.5 billion board feet of timber and grows an additional 654 million board feet of timber each year. Following the implementation of the federal Northwest Forest Plan for northern spotted owl and salmon, the Klamath annual sales volume fell from a 1990-1994 yearly average of 66 million board feet to five million board feet in 2000. Similar restrictions on harvest on private lands have been imposed by the Board of Forestry.

As a result, the county has lost more than 80% of our logging jobs since 1989, (from 951 jobs in 1989, to 331 in 1995, to 186 in 2004.) We have seen the closure of several large sawmills mills such as High Ridge and, most recently, the Cal. Cedar Products mill. Our two remaining mills are plywood veneer using only small diameter trees....

You might also note that logging jobs are typically family wage and good paying for this neck of the woods.


14 posted on 07/25/2007 7:37:34 AM PDT by marsh2
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To: marsh2
You might also note that logging jobs are typically family wage and good paying for this neck of the woods.

Out in the timber country I left in Washington State, the only good paying jobs left were ones sucking off the government teat.

15 posted on 07/25/2007 7:42:54 AM PDT by hunter112 (Change will happen when very good men are forced to do very bad things.)
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To: o_zarkman44
The mention of profits in the statement is enough to understand their motive.

Exactly! And they're so brazen they say it openly.

16 posted on 07/25/2007 7:45:23 AM PDT by jazusamo (DefendOurMarines.com)
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To: jazusamo
. . . who also happens to be the brother of Oregon Republican Sen. Gordon Smith

How often do we see speculation about a judges' political leanings when they make an outrageous, yet typically liberal decision such as letting a known child rapist go free?

17 posted on 07/25/2007 7:50:16 AM PDT by sportutegrl
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To: marsh2

I don’t have any figures but I lived in So OR for fifteen years during the decline of the timber industry, it was devastating to many many families.


18 posted on 07/25/2007 7:51:52 AM PDT by jazusamo (DefendOurMarines.com)
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To: sportutegrl

You’re right, plus which his brother or any relative for that matter doesn’t say a thing about his political views.


19 posted on 07/25/2007 7:55:44 AM PDT by jazusamo (DefendOurMarines.com)
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To: jazusamo
Judges in the earlier case, Smith said, went as far as "counting owl hoots," to determine whether studies actually proved what the Forest Service said they did. In doing so, he said, "we intrude into areas far beyond our competence."

I disagree.... moonbat Judges are very familiar with night time owl hoots.


20 posted on 07/25/2007 8:08:53 AM PDT by Donald Rumsfeld Fan (NY Times: "fake but accurate")
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To: jazusamo

Truth and common sense cut like a sharp sword. Thank you Judge Milan D. Smith Jr. for having the courage to wield them against the PC environmental BS.


21 posted on 07/25/2007 8:09:47 AM PDT by LucyJo
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To: Donald Rumsfeld Fan

Good point, LOL!


22 posted on 07/25/2007 8:13:00 AM PDT by jazusamo (DefendOurMarines.com)
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To: marsh2; tubebender

Excellent!!!


23 posted on 07/25/2007 10:41:19 AM PDT by SierraWasp (The American DemocratICK Party... Filled with GANG-GREEN, like CA's Repub Governor!!!)
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