“Forest Roads” Appeal: Positive Signal from Supreme Court

In October, the Forest Resources Association joined the National Alliance of Forest Owners and several other organizations in submitting an amicus brief supporting the defendants’ appeal of the 9th Circuit Court of Appeals’ unfavorable ruling in NEDC v. Brown to the U.S. Supreme Court. That ruling asserts that rainwater runoff from forest roads used for timber harvest is a “point source” of water pollution under the Clean Water Act—calling into question today’s state-managed BMP programs for controlling and monitoring forest road runoff. FRA members have contributed generously to supporting the costs of this litigation and of the media outreach accompanying it.

On December 12, the Supreme Court, having reviewed the appeal brief and several amicus briefs (both opposing and defending the 9th Circuit’s position), asked for the view of the U.S. Solicitor General on the request for review. This request is a very positive step, in that it indicates that the Court acknowledges that the case is consequential in terms of public policy and that the history of the (contested) 35-year-old regulation that NEDC v. Brown calls into question is relevant to the case’s consideration. The Solicitor General’s task will be to seek out and present the views of the various relevant federal agencies (such as EPA, USDA, Department of Interior, Council on Environmental Quality) with respect to the points at issue. NAFO’s counsel estimates that the Solicitor General will complete that task and submit the Administration’s brief by June 2012 and that the Court will decide whether to hear the case shortly thereafter. Whether the Solicitor General’s report is likely to support the defendant’s position or the plaintiff’s is anyone’s guess—the Administration has not given consistent signals. The important thing is to get the case on the Supreme Court’s docket.

To place expectations in context: the U.S. Supreme Court agrees to review approximately 1% of the cases submitted to its attention. In asking for the Solicitor General’s views, the Court has increased those odds, although it would be optimistic to say the chances are yet as high as 50%, although they will increase considerably if the Solicitor General recommends Supreme Court review. If the Court does agree to hear the case, the hearing would likely occur during fall 2012.

Meanwhile, bipartisan co-sponsorship for legislation to overturn the NEDC v. Brown decision, the Silviculture Regulatory Consistency Act (HR 2541 / S 1369), has grown to 53 in the House and 26 in the Senate. In addition, we understand that the hotly debated Omnibus Appropriations bill, currently on track for a vote on December 16, contains a provision that would prohibit EPA from requiring federal forest road permitting within the 9th Circuit jurisdiction until (at least) October 1, 2012.

David P. Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released the following statement today in response to congressional action in the Omnibus Appropriations Act, which maintains EPA's longstanding treatment of forest roads as non-point sources under the Clean Water Act:

"We thank Congress for taking action to prevent the Ninth Circuit Court of Appeals' misinterpretation of the Clean Water Act from taking effect. The 79 bipartisan House and Senate sponsors and cosponsors of the Silviculture Regulatory Consistency Act have joined forest owners in strong support of EPA's historical treatment of forestry and forest roads as non-point sources. Because of their help, the provision in the multi-bill funding measure moves us an important step closer to a permanent repudiation of the Ninth Circuit's overreach. Today's outcome is good for our forests, for clean water and for well-paying rural jobs throughout the country.

"This legislation also supports the Supreme Court's decision to seek the federal government's views on whether to review the Ninth Circuit's decision. Today's legislation sends a strong signal that Congress will support the administration in defending EPA's regulations in court. We remain hopeful that the Supreme Court will ultimately reverse the Ninth Circuit and restore the regulations that have been a Clean Water Act success story for more than 35 years."

- 30 -


The Forest Resources Association Inc. is a nonprofit trade association concerned with the safe, efficient, and sustainable harvest of forest products and their transport from woods to mill. FRA represents wood consumers, landowners, independent logging contractors, and wood dealers, as well as businesses providing products and services to the forest resource-based industries.

The National Alliance of Forest Owners (NAFO) is an organization of private forest owners committed to advancing federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states. Working forests in the U.S. support 2.5 million jobs. To see the full economic impact of America's working forests, visit www.nafoalliance.org/economic-impact-report.