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Top federal judges clear path for more logging (Amazing ruling for 9th Circuit)
The Oregonian ^ | July 3, 2008 | Michael Milstein

Posted on 07/03/2008 7:27:22 PM PDT by jazusamo

Top federal judges ruled this week that their own court has gone too far in holding up logging projects, saying western judges from now on must show more deference to the agencies planning the cutting.

The ruling involving an Idaho timber sale is a blow to environmental groups that have increasingly relied on federal courts to block projects they see as unsound.

The decision is especially striking because it comes from the federal appeals court that encompasses most national forest land in the West and is known for its liberal bent and for often siding with environmental interests. The ruling redefines the standards for when federal judges in much of the West can stop a logging project, tilting the playing field against critics of logging on public lands.

Mark Rey, the undersecretary of Agriculture who oversees the U.S. Forest Service, called the ruling the most important decision in a national forest environmental case in two decades.

The ruling clears a more direct path for projects designed to thin overgrown forests at high risk of wildfire and insect outbreaks, he said. Federal courts have often slowed such thinning while they examine the environmental justification.

He noted the severe wildfires now burning in California, where the western court panel that issued the ruling is based.

"One possibility is that the smoke helped improve their vision," Rey said. He said the ruling should help the Forest Service get more forest projects done with its limited funding, which is increasingly being diverted to firefighting.

Scott Horngren, a Portland attorney who represented logging companies and timber companies and communities intervening in the case, said such a ruling was "long overdue."

The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an "en banc" decision and is the highest level of court review short of the Supreme Court.

En banc panels hear only a handful of cases each year, and it's very unusual for them to consider what started as a relatively standard case of environmental groups questioning a timber sale.

But Smith apparently got the attention of other judges with a sharply worded decision in the same case last year. He chastised his fellow judges for meddling in matters beyond their expertise and setting up so many standards they "make it virtually impossible for logging to occur under any conditions."

Smith, who grew up in Oregon and was appointed to the appeals court by President Bush in 2006, went so far as to say 9th Circuit judges had decimated the Northwest logging industry with "blunderbuss" rulings that went way too far.

The 11-judge panel sided with Smith, making clear in their decision issued Thursday that they wanted to rein in their own court. They said environmental groups want judges to act as a panel of scientists that analyzes studies and requires the Forest Service "to explain every possible scientific uncertainty."

That's "not a proper role for a federal appellate court," they wrote.

They acknowledged that 9th Circuit judges had in earlier cases gone too far in requiring the Forest Service to provide detailed scientific support and evidence for every decision.

"We created a requirement not found in any relevant statute or regulation," they wrote. "We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.

The other judges who joined Smith in the decision included six appointed by Republican presidents and five appointed by Democrats.

But Dan Rohlf, a professor at Lewis & Clark Law School in Portland and a leading environmental attorney, said the decision is a "recipe for disaster." He said it nearly eliminates critical judicial oversight of federal land agencies, opening the door to political manipulation.

"It is going to really make federal courts less willing to take a close look at the scientific justification for federal decisions," he said.

During the Bush administration, judges have prevented agencies from tilting science to support their own ends, he said.

By requiring judges to defer to those agencies, the new court decision "is a recipe for the policy and ideology of an agency to be able to win the day," said Rohlf. He directs the law school's environmental law center, which often handles logging cases.

Political leaders "will be able to say, 'Go ahead and cut everything down and we'll make sure our scientists say that's O.K. and then we can go to court and say the science supports it,' " he said. Political pressure could be used in the same way to stop all logging, he said.

While the ruling is fascinating from a legal perspective, he said, "for me in my role as an advocate, it's going to be very challenging."



TOPICS: Culture/Society; Front Page News; Government
KEYWORDS: 9thcircuit; environment; environuts; judiciary; logging; ninthcircuit; timber
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The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an "en banc" decision and is the highest level of court review short of the Supreme Court.

The enviros are going to go nuts!

1 posted on 07/03/2008 7:27:23 PM PDT by jazusamo
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To: Salvation; sionnsar; george76; girlangler

Anti-enviro Ping!


2 posted on 07/03/2008 7:29:01 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo

Think maybe some judges lost their house in the fires?


3 posted on 07/03/2008 7:33:27 PM PDT by razorback-bert (Demorats tax returns consists of "welfare in" and " child support out.")
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To: jazusamo
Holy cow this is huge. The courts/enviros/feds have reduced timber harvests by over 90%. Well below the level needed to sustain the forests. They were effectively depopulating the rural parts of Washington and Oregon.

Heck if they actually start cutting trees again there won't be anyplace to mill them.

4 posted on 07/03/2008 7:35:13 PM PDT by djwright (I know who's my daddy, do you?)
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To: razorback-bert

That’s possible. Something sure happened because it was unanimous.


5 posted on 07/03/2008 7:36:11 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo

Enviros are nuts ping.


6 posted on 07/03/2008 7:37:19 PM PDT by Cold Heart
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To: djwright

You’re right, the industry has about folded up. It’ll be good to see it rebuilt even if it’s not as large as it was.


7 posted on 07/03/2008 7:38:21 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo
Smith, who grew up in Oregon and was appointed to the appeals court by President Bush in 2006 ...

Must ... vote ... for ... McCain

8 posted on 07/03/2008 7:44:50 PM PDT by NonValueAdded (If it is going to take 10 years, shouldn't we get started? Drill here, drill now, pay less.)
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To: jazusamo; abcraghead; aimhigh; Archie Bunker on steroids; bicycle thug; blackie; coffeebreak; ...
Oregon Ping

Please notify me via FReepmail if you would like to be added to or taken off the Oregon Ping List.

9 posted on 07/03/2008 7:46:23 PM PDT by Salvation (†With God all things are possible.†)
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To: jazusamo
This is the best news I have heard this week. My wife and I were just talking about the loss of federal $$$ to the logging counties here in Oregon over dinner, much to the chagrin of our two kids.

I am shocked at this decision. Is it narrow or does it open the doors for well-planned and well-needed harvesting our old growth?

10 posted on 07/03/2008 7:52:36 PM PDT by Carling (I'm a Typical White Person)
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To: jazusamo

The most amazing part is that a court unanmously expressed the opinion that it is incapable of supervising something.

Too bad the Supremes think they are obligated to micro-manage the war and treatment of captured illegal combatants.


11 posted on 07/03/2008 7:58:18 PM PDT by Sherman Logan (Those who deny freedom to others deserve it not for themselves. - A. Lincoln)
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To: Carling

I haven’t read the decision yet, I just stumbled across the story and am still elated. From the sound of the article it seems it’s a clear victory for the industry.

I’ve been following some of the stories on the federal funding of the counties, this may help over time but probably not real soon.

I lived in OR for fifteen years before moving to WA. We moved there about the time the spotted owl fiasco started and I had relatives in the business, I’ve no sympathy for the environuts.


12 posted on 07/03/2008 8:00:22 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo
"One possibility is that the smoke helped improve their vision,"

Praise God, I can see the Light. They are unreal.

13 posted on 07/03/2008 8:02:06 PM PDT by eyedigress
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To: Sherman Logan

I couldn’t agree more on both counts and I’ve never known federal judges to say they’re wrong.


14 posted on 07/03/2008 8:02:43 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Carling

Maybe you can get some relief now and those loggers around Forks of Salmon, Calif can also. Good Luck


15 posted on 07/03/2008 8:07:15 PM PDT by eyedigress
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To: jazusamo; marsh2; editor-surveyor; Grampa Dave; SierraWasp

FLYING PIGS ALERT!!!


16 posted on 07/03/2008 8:12:45 PM PDT by tubebender (Why does a round pizza come in a square box?)
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To: tubebender
FLYING PIGS ALERT!!!

You got that right, tubebender! :)

17 posted on 07/03/2008 8:14:46 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: eyedigress
What do you know of the Forks of the Salmon? I could see it from my back yard if it weren't for four mountain ranges and coastal fog here in Eureka...
18 posted on 07/03/2008 8:21:25 PM PDT by tubebender (Why does a round pizza come in a square box?)
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To: tubebender

It was a story this week on the general store there that survives by generator. The high gas prices were endangering basic services. I looked at the area on Google and said, self: (I could live there). The place looks wonderful. I hope their logging comes back. :^)


19 posted on 07/03/2008 8:26:50 PM PDT by eyedigress
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To: Carry_Okie

*ping*


20 posted on 07/03/2008 8:30:14 PM PDT by EggsAckley
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To: jazusamo; george76
He (Rey) said the ruling should help the Forest Service get more forest projects done with its limited funding, which is increasingly being diverted to firefighting.

What a load. Last I heard (which was in 2002), 70% of the USFS budget is for legal costs.

21 posted on 07/03/2008 8:47:47 PM PDT by Carry_Okie (We have people in power with desire for evil.)
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To: eyedigress

That’s what I thought. I was on that thread also. Was it firmly established that it was the Forks of the Salmon or was it speculation?


22 posted on 07/03/2008 8:51:23 PM PDT by tubebender (Why does a round pizza come in a square box?)
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To: jazusamo; forester
You’re right, the industry has about folded up.

You’re right, the industry has about folded up shaken out.

There, fixed it. The bones are cheap to pick. In other industries, they call it "consolidation." I call it "corporate fascism," all under the Cheshire Cat poker face of an AF&PA lobbyist.

My guess is things are just about ready for Weyerheauser to "make a comeback." Give it about five more years or until they're done with Canada and we'll be hearing about it in the Wall Street Journal.

23 posted on 07/03/2008 8:53:31 PM PDT by Carry_Okie (We have people in power with desire for evil.)
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To: jazusamo

This is HUGE news, major!!!

Thanks for the ping Jaz.

This article makes a point about how important it is for the American people (the ones too busy watching American Idol to vote) to think long and hard about who they elect, and who appoints judges.


24 posted on 07/03/2008 8:53:51 PM PDT by girlangler (Fish Fear Me)
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To: Carling

I am confused on those payments. I live in Josephine County, and the local paper said the county payments were stripped from the last bill they sent, so we won’t get any funding.

But then Goordon Smith gave an interview in which he said he expects the payments to be extended in September.

Ed


25 posted on 07/03/2008 8:55:06 PM PDT by Sir_Ed
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To: jazusamo

Good. Next, they need to decide on oil drilling.


26 posted on 07/03/2008 9:03:26 PM PDT by Mad_Tom_Rackham ("The land of the Free...Because of the Brave")
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To: jazusamo
I have but one thing to say...

TIMBERRRRRRR!!!
27 posted on 07/03/2008 9:06:39 PM PDT by rottndog (Globull Warming "Science" = garbage in, gospel out.)
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To: girlangler

Absolutely, Girl, this is huge. Especially for the people in the wood products business out west here, what’s left of it.


28 posted on 07/03/2008 9:08:26 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Carry_Okie

It’ll be interesting to see what’s going to happen cuz like you say, it won’t happen real soon.

It’ll also be interesting to hear the enviro nuts go crazy and listen to their bilge but probably won’t hear much from them for a few days because of the 4th.


29 posted on 07/03/2008 9:12:55 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo

“The unanimous decision by 11 judges on the 9th Circuit Court of Appeals was written by Milan D. Smith Jr., the brother of Republican Sen. Gordon Smith of Oregon. The ruling by such a panel is known as an “en banc” decision and is the highest level of court review short of the Supreme Court.”

Thanks so much jazusamo. For some of the counties in the High Sierra’s of California this will be a big help.....thinking of Plumas County, Lassen County and Sierra County. These folks definitely deserve the break that the Supreme Court ruling will allow.

Mahalo


30 posted on 07/03/2008 9:51:51 PM PDT by Islander2
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To: jazusamo
I'm speechless, but don't worry, it won't last. LOL!

This is amazing. The environ_MENTAL_ISTS must be going nutz.

31 posted on 07/03/2008 10:28:55 PM PDT by NRA2BFree (LIBERALS SHOULD BE EUTHANIZED FOR THE "COMMON GOOD.")
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To: NRA2BFree

It really is and I sure hope they are. :)


32 posted on 07/03/2008 10:44:27 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo
The enviros are going to go nuts!

Good! Although they already are !!

I got hold of a book a few years back, Fire in Sierra Nevada Forests by George Gruell, and the differences he pointed out show how piss-poor we've maintained our public lands. You do realise that Canada will not be too pleased with this decision and the potential change to their exports, don't you? :^)

33 posted on 07/03/2008 10:44:30 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: brityank

Good point, brit. Canada won’t be happy at all about this. LOL!


34 posted on 07/03/2008 10:47:29 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo

If all else fails, maybe they can resurrect the lynx. ;^)


35 posted on 07/03/2008 10:49:37 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: jazusamo

This is about the third decent ruling to come out of the Ninth Circuit Court in the last few weeks. This is some sort of record, for the last three or so decades.

Simply amazing. What’s up?


36 posted on 07/03/2008 11:10:04 PM PDT by DoughtyOne ( I say no to the Hillary Clinton wing of the Republican party. Not now or ever, John McCain...)
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To: DoughtyOne
I don't know whats up maybe they are worry the highest court will over turn all their rulings.

I hope it spreads east The forest service here has been tied up in court for years and hasn't let a logging job out.

37 posted on 07/04/2008 4:42:38 AM PDT by riverrunner
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To: jazusamo; goldstategop; pissant; Extremely Extreme Extremist; PJ-Comix; Charles Henrickson; ...
"We created a requirement not found in any relevant statute or regulation," they wrote. "We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.

THIS is the 9th Circuit Court of Appeals?!?!

38 posted on 07/04/2008 5:19:27 AM PDT by Ultra Sonic 007 (Look at all the candidates. Choose who you think is best. Choose wisely in 2008.)
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To: jazusamo

Thanks.

What happened ?

We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors.

The unanimous decision by 11 judges on the 9th Circuit Court of Appeals


39 posted on 07/04/2008 7:13:54 AM PDT by george76 (Ward Churchill : Fake Indian, Fake Scholarship, and Fake Art)
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To: djwright

Talked to my sister who was visiting in Vancouver, lots of ghost towns up there because housing construction has stopped. Is there going to be clear cutting without replacement planting of harvest wood? I understand the value of wood, I love it and want to retire in a 3 room log home, but I also hate clear-cutting. There has to be responsible forestry practices implemented all around. I always wondered why some trees weren’t left to reforest, or why not burn the scraps left on the hills to generate new growth. Guess I just haven’t studied enough, or like the dairy corporations that milk cows three times a day, shortening the life of a dairy cow from 10 yrs to 3 yrs, its all about money.


40 posted on 07/04/2008 7:19:41 AM PDT by huldah1776 ( Worthy is the Lamb)
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To: riverrunner

Well that hasn’t helped in the past, knowing the SCOTUS would overturn most of their rulings. I wonder if the SCOTUS telegraphed a message. It almost looks as if the 9th has been turned the other way. Wow. If that were the case...

I would like to see reasoned forest logging rules across the board too.


41 posted on 07/04/2008 7:30:12 AM PDT by DoughtyOne ( I say no to the Hillary Clinton wing of the Republican party. Not now or ever, John McCain...)
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To: DoughtyOne

Don’t have the slightest idea why they came up with this ruling, it’s definitely contrary to their track record. Hopefully there will be more on that in the next few days.

The first thing I did was look to see who the eleven judges were and sure enough, judge Stephen Reinhardt was not one of them. He’s a liberal old coot appointed by Jimmah Cahter that’s been overturned more than any other in the Ninth I believe.


42 posted on 07/04/2008 8:09:20 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: george76

I thought you’ld be interested in this. Don’t know what happened, it was out of the blue. For them to admit their past errors is almost unbelievable to me.


43 posted on 07/04/2008 8:11:47 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: smoothsailing

Thought you might be interested in this Brother.


44 posted on 07/04/2008 8:14:29 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo

Is that Ramona Ripston’s husband? I’ve forgotten his name.

Her and here husband are a real pair.


45 posted on 07/04/2008 8:24:50 AM PDT by DoughtyOne ( I say no to the Hillary Clinton wing of the Republican party. Not now or ever, John McCain...)
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To: jazusamo

Is that Ramona Ripston’s husband? I’ve forgotten his name.

Her and her husband are a real pair.


46 posted on 07/04/2008 8:24:58 AM PDT by DoughtyOne ( I say no to the Hillary Clinton wing of the Republican party. Not now or ever, John McCain...)
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To: jazusamo

***The enviros are going to go nuts!***

The enviros ARE nuts.

The entire Sierra Nevada mountain range is one giant tinder box. I was up at one of my fave haunts last summer. The redwoods just below King’s Canyon. I was shocked. You go twenty feet off the trail and the tinder dry litter is three feet deep and bone dry. Scary.


47 posted on 07/04/2008 8:25:39 AM PDT by gost2
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To: Carry_Okie

Naaaaaaa. We’ll let the Chinese, Koreans and Indians come in and create a logging industry. Some Americans can be their peons.


48 posted on 07/04/2008 8:28:27 AM PDT by gost2
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To: DoughtyOne
Yes, he is. Here's a line from Google.

Stephen Reinhardt is currently married to Ramona Ripston, the Executive Director of the ACLU of Southern California,[2] and has three children.

49 posted on 07/04/2008 8:32:07 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo
A truly amazing rarity for the 9th Circuit, actually using common sense to make a decision! Refreshing news, Jaz, thanks for the ping.
50 posted on 07/04/2008 8:35:29 AM PDT by smoothsailing
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