Break up the 9th Circuit, Please

Court rules against Lolo National Forest

Sharon Sweeney, Lolo National Forest public affairs officer, said the agency was disappointed in the decision and at this point isn't sure how it will affect other watershed restoration work tied to the project.

Sweeney said it's been difficult for the Forest Service to keep up with the requirements of the court.

“The bar continues to rise,” she said Friday. “It's a concern as the court continues to get more involved in deciding what an EIS should look like.”

The Forest Service wanted to go in and thin out some of the old growth areas where fires ravaged 74,000 acres. They would be working on 4,600 acres. They had a 1900 page EIS, 150 maps and 20,000 pages of background information detailing what they wanted to do and why. The court (spit)), with one dessenter, said it wasn’t enough.

Justice Margaret McKeown, in a written dissent, said the court went too far in its decision to overturn the lower court.

While the 9th Circuit plays a critical role in the review process, McKeown said this time the decision crossed the line from administrative review to decision making. She chastised the majority view, saying the court shouldn't be in the business of deciding which Forest Service report was reliable or pass judgment on an employee's field notes.

“Apparently, we no longer simply determine whether the Forest Service's methodology involves a ‘hard look' through the use of ‘hard data,' but now are called upon to make fine-grained judgments of its worth,” she wrote.

“This view is contrary to the basic principle that we reverse agency decisions only if they are arbitrary and capricious. This standard of review does not direct us to literally dig in the dirt (or soil, as it were), get our fingernails dirty and flyspeck the agency's analysis.”

In this case, inaction or delay threatens the very species that the Ecology Center seeks to protect, said McKeown.

“The status quo is anything but stable,” she wrote. “The Forest Service presents uncontested evidence that the failure to treat old-growth areas risks the very harms feared by the Ecology Center.”

The 9th Circuit Court is known for its activism. It tends to write law instead of interpret the statutes in question before it. It needs to be revamped, soon.