Judge Milan Smith right to criticize Ninth Circuit’s overreach

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Every year the Ninth Circuit Court of Appeals leads the nation in having its decisions overturned by the U.S. Supreme Court. In a 2010 speech to the Harvard Federalist Society, Ninth Circuit Judge Diarmuid O’Scannlain reported that during the prior decade the Supreme Court had reversed 141 of the 182 Ninth Circuit rulings that it had reviewed. “A strikingly poor record,” said the always demure and thoughtful judge.

Last month one of Judge O’Scannlain’s colleagues, Judge Milan Smith, was considerably less circumspect in describing the Ninth Circuit’s wayward ways. Dissenting from an en banc ruling in an endangered species case (Karuk Tribe of California v. United States Forest Service), Judge Smith wrote, “This is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors.”

The vapors Judge Smith refers to emanate from the Endangered Species Act (ESA), which requires federal agencies to consult with the Fish and Wildlife Service or NOAA Fisheries Service before taking any action that might harm a listed species. In the decision from which Judge Smith dissents, the Ninth Circuit holds that a Forest Service district ranger’s determination that agency authorization of particular private activities under the General Mining Law of 1872 is not required constitutes agency action requiring interagency consultation under the ESA. “Until today,” wrote Judge Smith, “it was well-established that a regulatory agency’s inaction is not action that triggers the Endangered Species Act’s arduous interagency consultation process.”

Many environmental advocates will, of course, disagree. Professor Holly Doremus, writing on The Legal Planet Blog, says the majority opinion is “unquestionably correct,” and goes on to employ anti-tea party rhetoric in describing Smith’s opinion as “extraordinary rhetoric” using “tea-party tactics” “to undermine the proper functioning of the judicial branch, not to mention its credibility.”

But among most people in the natural resource industries who struggle to do business in the face of the Ninth Circuit’s expansive interpretations of federal environmental statutes and regulations, the court’s credibility has long been in tatters. Judge Smith explains why by referencing other Ninth Circuit environmental decisions liberally construing statutory and regulatory requirements. The result, argues Smith, is that the timber industry and other resource-dependent industries across the Ninth Circuit are being forced out of business by the high costs of regulatory compliance and the uncertainties wrought by changing interpretations of the rules.

If it is “tea-party rhetoric” to mention the jobs and communities across the American West that have been destroyed by generous interpretations of environmental regulations, Judge Smith is guilty. And it is fair to say that such appeals to human impacts are not generally the stuff of sound judicial decisions and the rule of law. But the judge should get a little slack on a court that often justifies its rulings with rhetoric of impending environmental apocalypse.

More to the point, Judge Smith is right to criticize his court’s liberal construction of federal environmental statutes and its associated deference to the career bureaucrats who staff the Forest Service, the Bureau of Land Management, the Environmental Protection Agency, and other federal agencies — the regulators who descend like locusts on every effort to do something productive with the vast resources of the western United States. Unfortunately it often seems that many Ninth Circuit judges take pride in their dismal record before the Supreme Court.

Others will judge whether the introduction to Judge Smith’s opinion counts as tea party rhetoric, but he earns special praise from this observer for having begun his dissent with the classic drawing of Gulliver bound arms and legs by the Lilliputians. Gulliver says he “felt several slender ligatures across my body, from my arm pits to my thighs. I would only look upwards; the sun began to grow hot, and the light offended my eyes.” To which Judge Smith replies that not only do Ninth Circuit decisions sometimes undermine the rule of law, but “poor Gulliver’s situation seem[s] fortunate compared to the plight of those entangled in the ligatures of new rules created out of thin air by [the court’s] decisions.”

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.