Wielding a Finely Crafted Legal Scalpel: Why Courts Did Not Cause the Decline of the Pacific Northwest Timber Industry

Article excerpt

I. INTRODUCTION: JOBS VERSUS THE ENVIRONMENT

II. BACKGROUND
    A. Statutory Framework
       1. Early Regulation of National Forests
       2. The National Forest Management Act
       3. The National Environmental Policy Act
       4. The Administrative Procedure Act

    B. The Role of Judicial Review in Forest Management
       1. Preliminary Injunctions
       2. Review of Agency Decision Making

III. LANDS COUNCIL V. MCNAIR
     A. The Case
        1. The Merits of the National Forest Management Act Claim
        2. The Merits of the National Environmental Policy Act Claim
        3. The Merits of the IPNF Plan Standard 10(b)
        4. Balance of Hardships and Conclusion
     B. The Debate
        1. Judge Smith: Questioning the Legality of Ecology Center
        2. Judge Ferguson's Response: Judge Smith Based His Assertions
           on a Logical Fallacy

IV. Discussion OF LANDS COUNCIL III
    A. Judicial Decisions
       1. Adequate Deference and Consistency with Arbitrary and
          Capricious Review
       2. Predictability in Court Decisions
       3. Adequately Tailored Injunctions
    B. There Is No Merit in Linking Forestry's Decline with
       Judicial Action

V. CONCLUSION

I. INTRODUCTION: JOBS VERSUS THE ENVIRONMENT

Debates surrounding all areas of environmental policy fundamentally stem from clashes in values. (1) In the forest policy arena, clashes over values are epitomized by the timber harvest conflicts of the Pacific Northwest. One commentator described the region as the "crucible for forest policy changes" at the national level. (2) The Northwest's timber conflict represents a classic "jobs versus the environment" story that grew heated during the decades-long spotted owl debate. (3) During their campaign to protect the owl, environmentalists drew America's attention to the importance of preserving old-growth forests and biodiversity; logging interests responded with evidence of regional economies and local communities' reliance on resource extraction jobs. (4) Under one view, the purpose of these public debates is to influence elected officials; thus, if persuasion is the goal, neither side's evidence presents an accurate picture by fully considering the ability of economies, communities, and industries to respond dynamically to regulatory change. (5) However, real and significant social, ecological, and economic change underlies such rhetoric and affects the lives of individuals and the environment that surrounds them. (6)

Courts play a consequential role in Pacific Northwest logging debates because they interpret statutory protections and review agency actions. (7) Undoubtedly, judicial decisions at the project scale sometimes result in economic consequences for individuals. (8) But do these impacts indicate that courts have overstepped the bounds of judicial review? Did courts cause a decline in the timber industry by issuing injunctions that overburden defendants and give more relief to plaintiffs than equity requires? (9) This chapter explores that question as presented in a 2007 Ninth Circuit decision--Lands Council v. McNair (Lands Council III). (10) The analysis below supports the assertion in Judge Ferguson's concurrence in the panel decision--that assigning a causal relationship between past judicial injunctions and a decline in Pacific Northwest logging is nothing more than "a text book logical fallacy: post hoc, ergo propter hoc (after this, therefore because of this)." (11)

The traditional view places Congress at the helm in settling values debates, leaving agencies to rely on their expertise to implement congressional objectives. (12) But in the forest policy arena, little remains "settled" by congressional action that affords broad agency discretion, (13) be it due to constraints on Congress's time and resources, or intentional avoidance of difficult decisions by shifting responsibility to agencies. (14) By some accounts, the absence of specific direction within the National Forest Management Act (NFMA), (15) the major statute governing our nation's forests, requires courts to step in to clarify the United States Forest Service's (Forest Service) legal obligations. …