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Timber fight pits judge vs. judges

9th U.S. Circuit - Sen. Smith's brother blasts decisions, then faces blowback
July 25, 2007

It's a common refrain in Northwest timber country: Misguided federal judges are hastily shutting down logging instead of letting professional foresters do their jobs.

Now the refrain is coming from a judge on the top federal court in the West -- who also happens to be the brother of Oregon Republican Sen. Gordon Smith.

In an unusually blunt and wide-ranging opinion on a lawsuit over a small Idaho timber sale, Milan D. Smith Jr. blamed his own court for taking the law too far and causing much of "the decimation of the logging industry in the Pacific Northwest" and the loss of legions of timber jobs.

He said his fellow judges have erected so many legal hurdles they have made logging in national forests nearly impossible. His wrath, in turn, provoked a scathing rebuke from two other judges.

"It's like they really got pretty ticked off at each other," said William Funk, a professor at Lewis & Clark Law School.

Court watchers said Smith's extraordinary argument could lead higher courts to examine how deeply courts should pry into the details of federal logging decisions.

President Bush appointed Smith last year to the U.S. 9th Circuit Court of Appeals, the highest Western court and one known for its liberal tilt and tendency to stymie logging. The judge grew up in Pendleton and founded a law firm in Torrance, Calif.

He is based in Pasadena, Calif.

"In my view there is a correlation between sometimes over-broad court injunctions halting the flow of lumber and the dramatic decrease of employment in logging communities throughout the Pacific Northwest," he wrote in a 10-page opinion, citing statistics on the decline of timber communities in Oregon.

His opinion expanded on the main ruling in the case and carries no direct weight, but drew a sharp rebuttal from two other judges on his court. The three went beyond anything lawyers discussed, looking up their own newspaper and magazine stories, Wikipedia entries and timber company Web sites to make their points.

Judicial bickering rarely emerges so openly. In this case it highlights a deepening divide over how much deference judges should give the agencies that plan logging projects.

"This even surprised me," said Portland attorney Scott Horngren, who has long been involved in timber issues and represented an Idaho county and logging companies that intervened in the case.

The 9th Circuit has a reputation for second-guessing agencies, although Horngren said newer judges such as Smith are shifting away from that approach. He said Smith's arguments in the case could help put that question before a larger 9th Circuit panel and, possibly, the Supreme Court.

By misreading the law and employing a "blunderbuss injunction" to ban logging, judges "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.

But Warren J. Ferguson, a senior circuit judge, and Stephen Reinhardt, another judge, blasted back at Smith in a follow-up opinion. They said Smith, "with no evidence whatsoever, assigns to the courts of our circuit culpability for the status of the timber industry and impugns the last several decades of our circuit's environmental law jurisprudence."

Both Ferguson and Reinhardt were appointed to the bench by President Carter.

They said Smith "commits a textbook logical fallacy" by blaming court actions for timber job losses without evidence. It's up to the courts to stop the U.S. Forest Service and other federal agencies from violating environmental laws with their logging projects, they said.

"The frequency of injunctions is evidence of the frequency of unlawful agency actions, nothing more and nothing less," they wrote.

The timber industry, not the courts, caused its own downfall in the Northwest by stripping the forests and flooding the market with cheap timber, they said.

"As with many sectors of our economy, it is the practices of the timber industry itself that have caused massive unemployment, not the practices of those who would check it's unhindered 'progress,' " they wrote.

Even as low-wage timber workers lost their jobs, companies such as Louisiana-Pacific and Weyerhaeuser awarded their corporate leaders multimillion-dollar payouts, the two judges said.

The quarrel ran beyond the actual case involved, a 3,829-acre federal timber sale in the Idaho panhandle that targeted overgrown and flammable forests. It hinged on the precedent set in an earlier case, where 9th Circuit judges ruled that the Forest Service must prove that its logging projects will not harm wildlife.

Judges in the earlier case, Smith said, went as far as "counting owl hoots," to determine whether studies actually proved what the Forest Service said they did. In doing so, he said, "we intrude into areas far beyond our competence."

He said such decisions "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."

A spokeswoman for Sen. Gordon Smith's office in Washington, D.C., said the senator does not comment on or influence his brother's court opinions.

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



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