9th Circuit creates laws 'out of the vapors'

9th Circuit creates laws 'out of the vapors'

Editorial cites Judge Milan Smith Jr. "chastising the 9th Circuit for repeatedly creating 'burdensome, entangling environmental regulations out of the vapors."  The Oregon forest roads NPDES permit decision, awaiting both U.S. Supreme Court and Congressional action, also made Judge Smith's list of rulings out of vapors:

A recent ruling that requires timber companies to get Environmental Protection Agency permits for stormwater that runs off primary logging roads, even though the agency's regulations exempt them. "The result? The imminent decimation of what remains of the Northwest timber industry."

Editorial From Capital Press

It's not often we find ourselves agreeing with anything coming from the 9th U.S. Circuit Court of Appeals, but criticism of the court written by one of its judges in a dissenting opinion in a mining case is right on target.

Earlier this month, the court ruled in favor of the Karuk Tribe of California in a lawsuit against the U.S. Forest Service. The tribe alleged the Forest Service had failed, as required by the Endangered Species Act, to consult with federal wildlife agencies before it allowed recreational gold mining on the Klamath River to proceed under a Notice of Intent.

A trial court ruled against the tribe, a decision that was upheld by a three-member appeals panel. That ruling was overturned by an 11-member panel representing the full court.

Judge Milan Smith Jr. disagreed with the majority, arguing the court had disregarded its own precedents in finding for the tribe. Then he went further, chastising the 9th Circuit for repeatedly creating "burdensome, entangling environmental regulations out of the vapors."

He cited:

* A recent ruling that requires timber companies to get Environmental Protection Agency permits for stormwater that runs off primary logging roads, even though the agency's regulations exempt them. "The result? The imminent decimation of what remains of the Northwest timber industry."

* A ruling that overturned a Forest Service management plan for 11.5 million acres in the Sierra Nevada, and set a standard that Smith said will "dramatically impede any future logging in the West."

* A ruling that reinterpreted the Central Valley Project Improvement Act, resulting in the reallocation of additional water to benefit endangered fish. "The practical impact of this decision is that there will be less, perhaps far less, water for irrigation in the San Joaquin Valley's $20 billion crop industry."

Smith argued that elected legislatures and regulatory agencies that answer to the president would never enact rules that "create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs." But the 9th Circuit Court of Appeals, Smith wrote, regularly pushes an agenda lawmakers and regulators never intended.

"Our job is constitutionally confined to interpreting laws, not creating them out of whole cloth," he wrote. "Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role when it comes to construing environmental law."

We agree.