Ninth Circuit resuscitates the legal quagmire on forest roads

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The U.S. Court of Appeals for the Ninth Circuit in an order issued last Friday in Northwest Environmental Defense Center (NEDC) v. Decker gave litigators another chance to seek federal Clean Water Act (CWA) permits on forest roads through a new round of litigation. The court essentially breathed fresh life into the legal quagmire. Here we go again.

Recall this all began in 2006 when NEDC sued the Oregon state forester claiming that logging roads in Oregon’s Tillamook State Forest were point sources of pollution requiring federal CWA permits. Not accepting the outcome of the Oregon court upholding the U.S. Environmental Protection Agency’s (EPA) 37-year successful regulations that these roads are nonpoint sources that should be regulated through state best management practices, NEDC appealed to the Ninth Circuit, which sided with the litigators in 2010. The Supreme Court overturned the Ninth Circuit last March.  In typical form, the Supreme Court upheld EPA’s rule that forest roads don’t require permits without opining on whether they were point sources.  Quite simply, the Court did not rule on the point source question because it didn’t have to.  Once the Court overturned the permit decision, it considered its work done.

Now the litigators are trying to revive their argument for permits by arguing that forest roads are still point sources and that there must be some new basis out there for requiring a permit.  The Ninth Circuit helped them do that by remanding the case back to the district court after restating its ruling that forest roads must be treated as point sources.   The litigation wheels are turning again and it is only a matter of time before the legal quagmire thickens.

It was a long and costly seven years leading up to the Supreme Court’s decision.  Now, notwithstanding opposition to the litigation from a broad spectrum of interests including the National Governors Association; Attorneys General from 31 states; the National Association of Counties; EPA; forestry, agriculture, business, academic and non-profit organizations: and, most recently, the U.S. House of Representatives that passed legislation by a voice vote declaring that forest roads are non-point sources, the litigators are at it again.  They simply won’t quit so long as they have a legal theory to pursue.  In the meantime, economic recovery and jobs in the forestry sector nationwide will continue to hang in the balance while the next case winds its way to the Ninth Circuit.  All this in pursuit of a permit requirement that experts, including the Chief Forester of the United States, have said won’t improve water quality.

Congress must now complete the work on legislation and end the forest roads legal quagmire once and for all.  The support is there and the end is in sight.  Seven years is enough.  It’s time to focus on policies to preserve working forests and not get stuck again in the mire of litigation.

Dave Tenny, NAFO President and CEO