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U.S. Supreme Court Reverses Ruinous Forestry Ruling

By William Perry Pendley

DENVER - A western, nonprofit, public-interest legal foundation with decades of experience in environmental and forestry issues on March 20 celebrated a near-unanimous ruling by the Supreme Court of the United States reversing a ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that held that all public roads associated with forestry in the Pacific Northwest are subject to federal regulation under the Clean Water Act.

Mountain States Legal Foundation (MSLF), in its friend of the court brief, had advised the court that the ruling abrogates Congress's carefully crafted plan that vests exclusive jurisdiction over challenges to Environmental Protection Agency (EPA) regulations in the courts of appeals. In an earlier friend of the court brief, MSLF urged the panel to rehear the case or the Ninth Circuit to rehear the case en banc. MSLF argued that the panel's ruling conflicts with Supreme Court rulings requiring that the panel give "controlling weight" to the EPA's interpretation of its Clean Water Act regulation, which exempts logging.

"Today's 7-1 ruling is a stiff rebuke to the Ninth Circuit and its awful and economically ruinous decision to ignore the explicit provision of federal law and agency regulation," said MSLF president William Perry Pendley.

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. In October 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 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.

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