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Judge angrily scolds court, and it responds

9th Circuit case - Sen. Gordon Smith's brother sparks a rare review of a timber sale ruling that he said went much too far

MICHAEL MILSTEIN, The Oregonian 3/3/08
The Oregonian Staff

It was unusual enough when a high-level federal judge -- who is the brother of Sen. Gordon Smith -- blasted his own court for decimating the Northwest logging industry with "blunderbuss" rulings that went way too far.

But the extraordinary scolding by Milan D. Smith Jr. last year apparently got the attention of his fellow judges on the 9th U.S. Circuit Court of Appeals, the top federal court in the West.

They recently took the unusual step of voting to have a full panel of judges reconsider the case that set Smith off. That could rein in the federal courts that Smith -- along with timber industry leaders -- blame for needlessly idling sawmills while they meddle in logging decisions beyond their expertise.

Just as the Supreme Court considers only a few important cases each year, the 9th Circuit -- the largest appeals court in the country -- picks only a handful for full reviews. So the decision to do so on an otherwise routine timber sale case suggests that Smith's wrath hit a nerve with his colleagues.

"It's very rare and unusual," said Scott Horngren, a Portland attorney involved in the case. "It's basically unheard of that they take a timber sale case."

It offers a rare glimpse at the inside politics of the court that has issued momentous decisions, involving protection of species from spotted owls and salmon, with cascading effects on the Northwest economy.

Smith, like his brother the Republican senator, is from Pendleton. He founded a law firm in Torrance, Calif., and President Bush appointed him to the appeals court in 2006, adding a new, conservative voice to the court known for its liberal bent.

"Judges are troubled when they're accused of going beyond their proper role by anybody," said Dan Rohlf, a professor at Lewis & Clark Law School and director of the school's environmental law clinic. "When the person accusing the court of that is one of its own members, they tend to be even more troubled."

The case that led to Smith's outburst is fairly routine: an attempt by environmental groups to block a U.S. Forest Service logging project known as Mission Brush in northern Idaho.

But the point Smith raised is much larger: How far should judges pry into the Forest Service's rationale for the logging? Should judges evaluate the science the Forest Service uses to back its case, or defer to the agency's expertise?

Smith contends judges have gone much too far: "If we do not grant the Forest Service appropriate deference in areas of scientific expertise, we defeat the purpose of permitting the Forest Service to make administrative decisions in the first place, and we intrude into areas far beyond our competence," he wrote.

He said he would like to let the Forest Service go ahead with the Idaho logging.

But he said his hands are tied because his own 9th Circuit ruled earlier that courts should examine the science behind Forest Service claims that the logging wouldn't harm wildlife, down to how many owl hoots scientists heard in a timber stand.

When judges intrude to such a degree, they "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," Smith wrote.

When a case goes to the Court of Appeals, it's first decided by three judges. Smith was among the three who stopped the Idaho logging -- but he wrote a separate opinion explaining that he was forced to go along because he was bound by the court's earlier decisions.

The two other judges wrote a third counterargument blasting back at Smith, saying excessive logging contributed to the timber industry's decline.

The only way for the 9th Circuit to reverse the precedent set by the earlier decisions is with an "en banc" review, which can be granted only with a majority vote of the circuit's 28 active judges.

The judges voted last month to conduct an en banc review of the case involving the Idaho logging project, which would include looking at the bigger question Smith raised. A panel of 11 randomly selected judges -- which might include Smith -- will rehear the case March 27 in San Francisco.

They could side with Smith, or they could reject his reasoning and say the court has a duty to review the science behind logging decisions.

Horngren, the Portland attorney, represents logging companies and Idaho communities that have intervened in the case, supporting the Forest Service attempt to move ahead with logging. He said the direction the court takes in the case will affect how much the Forest Service can do to reduce flammable tinder.

Rohlf said the case comes at a crucial time, when environmental groups have increasingly depended on judges to stop the Bush administration from manipulating science in wildlife cases.

"This particular administration has really pushed the envelope in terms of using science for policy goals," Rohlf said. Maybe the 9th Circuit is saying, 'We have to answer criticisms, including those from within, that we are overstepping our bounds.' "

Michael Milstein: 503-294-7689; michaelmilstein@news.oregonian.com

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