Wielding a finely crafted legal scalpel: why courts did not cause the decline of the Pacific Northwest timber industry.

• Author: Whitehead, Carey Catherine

1. INTRODUCTION: JOBS VERSUS THE ENVIRONMENT II. BACKGROUND A. Statutory Framework 1. Early Regulation of National Forests 2. The National Forest Management Act 3. The National Environmental Policy Act 4. The Administrative Procedure Act B. The Role of Judicial Review in Forest Management 1. Preliminary Injunctions 2. Review of Agency Decision Making III. LANDS COUNCIL V. MCNAIR A. The Case 1. The Merits of the National Forest Management Act Claim 2. The Merits of the National Environmental Policy Act Claim 3. The Merits of the IPNF Plan Standard 10(b) 4. Balance of Hardships and Conclusion B. The Debate 1. Judge Smith: Questioning the Legality of Ecology Center 2. Judge Ferguson's Response: Judge Smith Based His Assertions on a Logical Fallacy IV. Discussion OF LANDS COUNCIL III A. Judicial Decisions 1. Adequate Deference and Consistency with Arbitrary and Capricious Review 2. Predictability in Court Decisions 3. Adequately Tailored Injunctions B. There Is No Merit in Linking Forestry's Decline with Judicial Action V. CONCLUSION I. INTRODUCTION: JOBS VERSUS THE ENVIRONMENT

   Debates surrounding all areas of environmental policy fundamentally stem from clashes in values. (1) In the forest policy arena, clashes over values are epitomized by the timber harvest conflicts of the Pacific Northwest. One commentator described the region as the "crucible for forest policy changes" at the national level. (2) The Northwest's timber conflict represents a classic "jobs versus the environment" story that grew heated during the decades-long spotted owl debate. (3) During their campaign to protect the owl, environmentalists drew America's attention to the importance of preserving old-growth forests and biodiversity; logging interests responded with evidence of regional economies and local communities' reliance on resource extraction jobs. (4) Under one view, the purpose of these public debates is to influence elected officials; thus, if persuasion is the goal, neither side's evidence presents an accurate picture by fully considering the ability of economies, communities, and industries to respond dynamically to regulatory change. (5) However, real and significant social, ecological, and economic change underlies such rhetoric and affects the lives of individuals and the environment that surrounds them. (6)

   Courts play a consequential role in Pacific Northwest logging debates because they interpret statutory protections and review agency actions. (7) Undoubtedly, judicial decisions at the project scale sometimes result in economic consequences for individuals. (8) But do these impacts indicate that courts have overstepped the bounds of judicial review? Did courts cause a decline in the timber industry by issuing injunctions that overburden defendants and give more relief to plaintiffs than equity requires? (9) This chapter explores that question as presented in a 2007 Ninth Circuit decision--Lands Council v. McNair (Lands Council III). (10) The analysis below supports the assertion in Judge Ferguson's concurrence in the panel decision--that assigning a causal relationship between past judicial injunctions and a decline in Pacific Northwest logging is nothing more than "a text book logical fallacy: post hoc, ergo propter hoc (after this, therefore because of this)." (11)

   The traditional view places Congress at the helm in settling values debates, leaving agencies to rely on their expertise to implement congressional objectives. (12) But in the forest policy arena, little remains "settled" by congressional action that affords broad agency discretion, (13) be it due to constraints on Congress's time and resources, or intentional avoidance of difficult decisions by shifting responsibility to agencies. (14) By some accounts, the absence of specific direction within the National Forest Management Act (NFMA), (15) the major statute governing our nation's forests, requires courts to step in to clarify the United States Forest Service's (Forest Service) legal obligations. (16)

   Congress's passage of NFMA itself was in part a response to a Fourth Circuit decision to ban clear-cutting in national forests. (17) While the court rested its ban on its interpretation of a statute, passed roughly eight decades earlier, it specifically pointed to Congress as the proper forum for balancing values. (18) The Fourth Circuit indicated that if the old congressional directive no longer served the public interest, "the appropriate forum to resolve this complex and controversial issue is not the courts but the Congress." (19)

   The role of the judiciary includes clarifying the legal obligations of the Forest Service in implementing congressional direction, but courts must hold agencies to the constraints Congress has set while adhering to the requirement that they not substitute their own views for those of the agency. (20) Dr. Charles Wilkinson, a member of the 1998 Committee of Scientists appointed by the Forest Service to review the land and resource management process, observed that in passing NFMA Congress set out substantive and procedural law for courts to apply, but hoped to "adopt substantial reform measures [without] intrud[ing] too much into technical, on-the-ground management." (21)

   Recent cases decided in the Ninth Circuit (22) raise the question of just what level of scrutiny courts should give the methodology employed in the Forest Service's technical, on-the-ground management determinations. In 2007, when a panel of the Ninth Circuit decided Lands Council III, (23) the discussion of allowable judicial scrutiny erupted into a debate over values. Judge Smith, in a special concurrence, alleged that "blunderbuss" judicial injunctions based on misconstruction of federal law had substantially contributed to the decline of the Pacific Northwest's timber industry. (24) Judge Ferguson, who authored the panel's opinion, wrote separately to respond. (25) In early 2008, the Ninth Circuit ordered the case be reheard en banc, signaling that the law regarding deference to the Forest Service's scientific methodology is not yet settled. (26)

   Although the three-judge panel opinion holds no precedential value, the judges' debate and the line of cases leading to the panel decision bear significant weight on the level of deference due agency management decisions regarding national forests. Part II of this chapter reviews the legal context for judicial review of agency forest management decisions. Part III summarizes the Lands Council III panel opinion and concurrences. Part IV addresses the crucial issues in Judge Smith's argument: whether the Ninth Circuit case law exhibits an unpredictable pattern of standards for the Forest Service, whether judicial review of agency methodology is permissible under existing administrative case law precedent, and whether, in fact, court injunctions in the Northwest contributed to the decline in the timber industry. Part IV concludes that the panel in Lands Council III merely applied a standard for reviewing agency methodology consistently employed by the court, but articulated more clearly in recent cases leading to the Lands Council III decision. Finally, the Chapter concludes by supporting Judge Ferguson's view that the Pacific Northwest's timber industry decline is real, but is not caused by judicial action; and that in the face of mounting damage to our environment, conservation pressures will continue to cycle through the judicial and legislative branches. However, as a diversified economic base reaches rural, timber-dependent communities, the jobs versus environment debate may settle if lifting the pressure for jobs from the scales tips the weight slightly in favor of the environment.

2. BACKGROUND

   1. Statutory Framework

      Assessing the role of the courts in reviewing Forest Service decisions is best considered in the context of the history of national forest management and the current substantive and procedural protections for national forests under NFMA. These statutes moved the Forest Service and our national forests in the direction of diversified protection for multiple uses and better management, but did not eliminate the important role for courts in enforcing protections and providing an avenue for public participation in national forest management. (27)

      1. Early Regulation of National Forests

         In 1891, Congress authorized the creation of our national forest system. (28) The subsequent passage of the Organic Administrative Act of 1897 (Organic Act) (29) limited the purpose of these forest reserves to securing water flows and timber production, principles that governed that system for six flail decades. (30) When special interest groups began lobbying for management of the forests to support other uses, namely increased timber production, recreation, and preservation, Congress responded by passing the Multiple-Use Sustained-Yield Act of 1960 (MUYSA). (31) This act required that the Forest Service give "due consideration" to an expanded list of purposes for the national forests; specifically, "outdoor recreation, range, timber, watershed, and wildlife and fish," but made clear that these purposes were only supplemental to those established by the Organic Act. (32) Perhaps because MUYSA's directive seemed to rank these purposes as secondary, the Forest Service continued to focus primarily on timber production after its passage. (33) The United States Supreme Court upheld this "timber first" management view in United States v. New Mexico, (34) in which the court held that Congress established the national forests only for the Organic Act's timber supply and water flow purposes, and that MUYSA mandated only that the Forest Service consider other purposes. (35) Under this framework, courts afforded the Forest Service extreme deference in management decisions. (36)

         While MUYSA introduced the concepts of alternative uses of our national forests, its broad language offered no guidelines for settling disputes...