Slim majority for common sense

With two recent nominations to the U.S. Supreme Court, there's been lots of media bantering over so-called "activist" and "constructionist" judicial philosophies.

But very often, there's little practical explanation of how "legislating from the bench" works; rather there's just discussion about whether certain judges are more inclined to do so than others.

Well, the Montana Supreme Court recently provided a textbook example of the differing philosophies in its ruling on a case called Friends of the Wild Swan vs. Department of Natural Resources and Conservation. And the court's majority did the right thing in ruling against the environmental group through a strict interpretation of the law as it is written, rather than using its own judgment to declare what the law ought to do.

In this case, Friends of the Wild Swan unsuccessfully argued that the Department of Natural Resources, by statute, was required to secure the "greatest measure of legitimate and reasonable advantage" from the Goat Squeezer timber sale in the Swan Valley. And doing so would require a "comprehensive economic evaluation" on the Goat Squeezer sale, and every other sale conducted on school trust lands.

That's not how the DNRC or the state Land Board currently manage things. They have an annual programmatic method for accounting for timber sales. Whether that's the best method is a question worthy of debate.

But it's not worthy of a debate in the Supreme Court. And that is the point here.

The majority of four justices determined that the state Constitution and state statutes afford discretion to the state Land Board and Legislature as to what levels of accounting are appropriate for timber sales.

"The point … is that it is not the duty of this Court to decide what accounting measures would best serve the Board in the fulfillment of its obligations," the court majority concluded. "Those are matters for the Board and the Legislature."

The majority also rejected the plaintiff's argument that a "strict accountability" provision in the state Constitution requires more comprehensive timber sale accounting. That provision, the majority wrote, clearly states that it is "up to the Legislature to create the statutory means which [will] ensure 'strict accountability.'"

And the Legislature, the majority noted, has twice rejected bills that would have established harvest-level accounting on school trust lands. End of story.

The funny thing is that three justices on the high court were entirely ready to insert themselves into the business of legislating from the bench. Their dissenting opinions argue in detail how the state should be accounting for timber sales, as if the state Constitution had given this prerogative to the judiciary.

"The real problem is that the Board will never know which individual harvests are winners or losers," wrote Justice James Nelson. "It will never know whether it is securing the largest measure of return - because it does not account for the harvests individually."

That may or may not be the case. State officials say the costs of managing a timber stand and preparing a timber sale are spread out over time and location - with overhead costs in the Goat Squeezer timber sale, for instance, incurred from Helena to Missoula to the DNRC offices at Goat Creek South of Swan Lake.

We cannot say whether the state's method of accounting for timber sales is the best, but we can say that it's not the court's job to debate and determine what is.

Had the lawsuit been successful, the economic justification for each and every timber sale on school trust lands would undoubtedly be subject to extreme scrutiny. The rules and procedures for administering timber sales would be profoundly altered.

Economic justification would become the common calling card for environmental litigation on state lands, opening a Pandora's box of additional legal complexities for foresters attempting to put out a timber sale.

In short, the court would have rewritten the rule book for school trust timber sales. And that's simply not a job for seven robed justices. That's a matter of public policy and as such should be decided by the Legislature and the five elected officials who sit on the state Land Board.