Red Lodge Clearinghouse

In its decision, the appeals court said courts must put more faith in the responsible agencies' decisions on forest management.

The en banc panel of 11 appeals court judges overturned a decision made last July by a three-judge panel of the 9th Circuit that halted the Mission Brush timber project in Idaho's Panhandle National Forests.

More important, the court's decision could tip the scales away from critics who may want to challenge logging on national forests.

Writing for the panel, Judge Milan Smith Jr. wrote that the plaintiffs had asked the court "to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty."

"This is not a proper role for a federal appellate court," he added.

At issue is a Forest Service plan for logging 3,829 acres of the Idaho Panhandle National Forests. The Lands Council and the WildWest Institute claimed that the Mission Brush project, which also targets 277 acres of old-growth forest for logging, will harm species including flammulated owls, northern goshawks, fishers and Western toads.

The Forest Service says the project is necessary to restore a forest that has become too dense and is populated mainly by Douglas fir and Ponderosa pine due to decades of logging and fire suppression.

A circuit court denied the groups' request for an injunction, but the three-judge panel sided with the environmentalists last July, citing the Forest Service's reliance on what it called an "unverifiable hypothesis" that "treating old-growth forest is beneficial to dependent species."

Smith, the brother of Sen. Gordon Smith (R-Ore.), made headlines after the July ruling when he blasted the court system for the decline of logging on public lands and subsequent economic hardships in timber country.

"When we misconstrue federal law and compound the effects of that misconstruction by affirming or requiring the issuance of a blunderbuss injunction banning all logging in a particular area instead of using a finely crafted legal scalpel based upon correct legal interpretations, we 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 (Greenwire, Jan. 22).

'A more appropriate role' for courts

Last week's ruling also overturned a 2005 decision by the 9th Circuit that said the Forest Service's approval of logging in Montana's Lolo National Forest was based on faulty environmental analysis, but the impact of the ruling will likely be felt more in logging cases to come.

The ruling is "the most important decision involving a Forest Service environmental case in the last two decades," Agriculture Undersecretary Mark Rey told the Associated Press last week.

"The judges established a much more limited framework for judicial review of Forest Service decisions -- a framework that's much more consistent with the standard used by other circuits. The court says its role is not to act as a panel of scientists. They wanted to move back to a more appropriate role," Rey said.

Timber managers and logging advocates said the ruling was a landmark decision that gives deference to the agencies charged with managing national forests, especially for thinning projects that reduce the risk of catastrophic wildfire.

The ruling "puts more management back on the land and allows more management for fires," said Tom Partin, president of the American Forest Resource Council.

Partin admitted, however, that this is unlikely to make a difference in the amount of court challenges to logging cases. Rather, it is likely to only change the way courts approach logging cases.

Tom Woodbury, the attorney representing the environmental groups in the case, said the ruling will likely make it harder to initiate action against a project at the judicial level. "The fact is, it's going to be very difficult to get preliminary injunctions," he said.

Woodbury said it is unlikely both groups will appeal to the Supreme Court, but that the groups might ask for an en banc review of the en banc decision. That would require a majority of the judges on the 9th Circuit to vote in favor of reviewing the decision. While a review may be unlikely, it could produce an opinion out of the court on the decision.

Click here to view the en banc decision.

Click here to view the July 2007 decision.

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