A rare harvest of common sense

Inter Lake editorial

In a ruling that shocked environmentalists and loggers both, the 9th Circuit Court of Appeals last week reversed a 2007 decision by one of its own panels, and unexpectedly returned common sense to timber management.

The original ruling had been a typical instance of judicial activism, where the court first decided it didn't want the Mission Brush timber sale in the Idaho Panhandle to go through, and then cobbled together a ruling to justify its conclusion.

In essence, the judges said they didn't like the science used by the Forest Service in proposing the timber sale. Rather than basing their ruling on law, they based it on outcomes.

Now, an 11-judge panel has overturned the earlier ruling and said environmental groups cannot expect judges to act as a panel of scientists who will analyze and criticize the opinion of professional foresters.

"We created a requirement not found in any relevant statute or regulation," they wrote.

If there is a better definition of legislating from the bench, we have not heard it.

Ultimately, the panel wrote about its own earlier decisions, "We defied well-established law concerning the deference we owe to agencies and their methodological choices. Today we correct those errors."

And they didn't just correct the errors in a partisan, split 6-5 vote. No, this was done unanimously, with five judges appointed by Democratic presidents joining six appointed by Republicans. That provides some confidence that the ruling may stand the test of time.

Indeed, Mark Rey, the undersecretary of agriculture, cited the case as the most important ruling in a national forest lawsuit in the past 20 years.

Nor will the effect of this ruling simply be to increase logging, but also to increase forest safety. The government can now green-light many projects designed to thin forests that are at risk from fire or pests such as pine beetles. Rey pointed out that California, where the 9th Circuit is based, currently has several wildfires burning.

"One possibility is that the smoke helped improve their vision," he wryly noted.