Tom Woodbury thought he had an open-and-shut case.

In 1990, Idaho’s Boise National Forest pledged in its forest plan—a legally binding governing document—to maintain at least 55,000 acres out of the almost 3 million acres under its jurisdiction as virtually undisturbed old-growth forest. Should the amount of land so designated fall below that level due to an event like wildfire, it must, the plan said, be replaced by suitable acreage elsewhere on the forest. The key point was that at all times no fewer than 55,000 acres would be managed as old-growth forest in which wildlife surveys, minor thinning operations and little else would be allowed.

Four years later, intense wildfires burned wide swaths of the Boise forest. Subsequent field surveys revealed that due to fire damage and other factors, 22,000 of the 55,000 acres—a full 40 percent—no longer satisfied the requirements of old-growth habitat as defined in the 1990 forest plan. Moreover, much of the remaining 33,000 protected acres was at risk from future fires and insect infestations.

U.S. Forest Service scientists cautioned their superiors that the Boise National Forest was in danger of running afoul of the Endangered Species Act and agency regulations because it was failing to ensure the viability of a host of old-growth-dependent creatures, such as the white-headed woodpecker, the northern goshawk and the red-backed vole, a tree-dwelling rodent.

What did Boise National Forest officials do? They plowed ahead with already-in-the-works timber sales that called for logging old-growth stands, and they never replaced the old growth that had been damaged in the 1994 fires.

The Idaho Sporting Congress, a Boise-based environmental group, filed suit, claiming that the forest was out of compliance with its own forest plan. Until that was corrected, the group argued, no more old growth should be logged. The Forest Service did not dispute that it was in violation of the 1990 old-growth requirement. But it said it was in accord with a newer set of guidelines that had been promulgated by the region’s headquarters in Ogden, Utah. These guidelines were less restrictive and allowed the Boise National Forest to claim patches of forest as old growth that had not been considered old growth before. As a result, the agency made the claim that the timber sales, even though they called for logging of big trees, would not result in a net loss of old growth across the forest.

Apparently finding that persuasive, a district court ruled in favor of the Forest Service. That didn’t faze Woodbury, who was acting as the attorney for the environmental group. “We never win in district court in Idaho,” Woodbury said, referring to the state’s highly conservative—some would say anti-environmental—political atmosphere.

But Woodbury was certain that he would win on appeal before the Ninth U.S. Circuit Court of Appeals, which is based in San Francisco and has a liberal reputation. To Woodbury, the argument that the agency was adhering to new old-growth guidelines was an obvious dodge—it didn’t change the fact that the forest was out of compliance with its forest plan. Moreover, he thought he had an ace in the hole: a previous ninth circuit ruling said the Forest Service must demonstrate compliance with existing old-growth standards before continuing to log old growth.

“In this case, they couldn’t demonstrate compliance,” Woodbury said. “Everyone who sat through the oral arguments thought we had won. It was just a question of the scope of our victory.”

But the environmentalists hadn’t won, as they found out when the court issued an opinion on July 19, 2000, affirming the district court. The ruling, issued as most ninth circuit decisions are, by a panel of three judges, “didn’t say anything about the issues that we raised,” Woodbury complained. The upublished ruling is brief—only seven pages long—and seems perfunctory, as if the judges did not take the case seriously. Boiled down, it says simply that the Forest Service “took the required hard look” at the potential impacts of the timber sales.

“I was shocked,” Woodbury recalled.

A PRO-ENVIRONMENT RECORD

The Ninth U.S. Circuit Court of Appeals is by far the largest appeals court in the country, sprawling over a nine-states: California, Oregon, Washington, Idaho, Montana, Nevada, Wyoming, Alaska and Hawaii. Its jurisdiction also includes Guam and the Northern Mariana Islands. It covers an area with 50 million people, or nearly one in five Americans.

The court’s left-leaning reputation is long-standing and seemingly well earned. In the 1990s, the court issued a series of controversial rulings on matters such as assisted suicide and gun control that pleased liberals, outraged conservatives and often led to reversals by the more conservative U.S. Supreme Court.

On environmental cases, the court’s green reputation stems from a series of rulings on high-profile cases. Most notably, the court in the early 1990s played a crucial role in backing up Seattle Judge William Dwyer’s rulings that federal logging in the Pacific Northwest was illegally harming the spotted owl. It also affirmed Dwyer’s endorsement of President Clinton’s Northwest Forest Plan, which placed significant restraints on old-growth logging in the region that remain in place to this day.

A big question at the moment is whether the ninth circuit will uphold Clinton’s initiative to protect national forest roadless areas. A ruling on a case challenging the way the roadless policy was developed is expected by the end of the year.

The court has issued a number of other rulings that have come down on the side of environmental interests. They include:

• A 1994 decision that forest plans are federal actions that require consultation with federal wildlife agencies on their potential impact on endangered species. This decision, called “cutting-edge” by one environmental attorney, has proven influential in a number of subsequent endangered species cases. It also indirectly led to a sixteen-month shutdown of federal logging in Arizona and New Mexico to protect the Mexican spotted owl, a federal threatened species.

• A 1999 decision that the Forest Service did not adequately prepare an environmental analysis before going forward with a controversial land exchange in Washington state. Since the ruling, the Forest Service has dramatically scaled back its land exchange program.

• A decision issued in spring 2001 that halted dozens of timber sales in Northern California, western Oregon and western Washington because the sales posed a threat to protected species of salmon. The court found that the National Marine Fisheries Service did not follow proper guidelines when it gave the go-ahead to the sales.

It’s in part because of pro-environment rulings like these that former Washington Senator Slade Gorton, an unabashed backer of the timber industry, led an effort a few years ago to break up the ninth circuit. He had support from other Republican senators, particularly Alaska’s Ted Stevens, who was steamed at the time by a ninth circuit ruling that expanded the power of Alaska Native villages in his state to claim sovereign rights. Gorton and Stevens argued that the circuit was dominated by California-based liberal judges and should be broken into two halves—in effect, they were calling for the creation of a new, more conservative circuit. Critics accused Gorton and Stevens of judicial gerrymandering and the effort ended up going nowhere.

“A BACKWARD SLIDE”

Given the court’s environmental record, it’s a little jarring to come across an article that appears in the 1999 edition of Environmental Law, a legal journal put out by the Northwestern School of Law of Lewis and Clark College in Portland, Oregon. Entitled “Striking the Balance: The Tale of Eight Ninth Circuit Timber Sales Cases,” it addresses what the author, Susan Jane Brown, describes as “the backward slide in the Ninth Circuit with regard to environmental protection.”

The forty-three-page treatise discusses eight timber sale cases that came before the ninth circuit over an eleven-year period, from 1987 to 1998. The cases, according to Brown, are “factually and procedurally similar” and concern the same set of environmental laws—yet five of the cases were decided in favor of the Forest Service and three in favor of the environmental plaintiffs. That might seem balanced, but from a legal perspective, it seems contradictory, suggesting that judges, even ones on lofty federal courts, are not immune to bias.

A quick comparison of two of the sales illustrates how differently the ninth circuit has sometimes ruled on federal timber sale cases. In the early 1990s, the Colville National Forest in northeastern Washington put the Calispell timber sale up for bid after concluding that it would have “no significant environmental impact.” An environmental group called Inland Empire Public Lands Council sued, claiming that Colville officials had not given enough weight to the damage done by past timber sales in the same watershed in their analysis.

After losing at the district court level, Inland Empire appealed—only to lose again before the ninth circuit in a ruling issued in 1993. Foreshadowing its rebuff of the case Woodbury would bring before the court seven years later, the court issued an opinion so brief (five pages) that Brown declared in her article that it appeared “the court did not take the case seriously.” Particularly troublesome, according to Brown, was the court’s decision to turn a blind eye to the Forest Service’s own determination that the watershed slated for the Calispell sale was in bad shape from past logging—a finding seemingly at odds with the agency’s claim that the sale’s environmental impacts were negligible. “Clearly, that should have been enough for the court to find [the] decision to conduct logging in the area arbitrary and capricious,” Brown wrote.

Five years later, in 1998, the ninth circuit issued a very different ruling. The previous year, the Umatilla National Forest in northeastern Oregon proposed the Big Tower timber sale, aimed at harvesting trees in an area that had been burned by wildfire in 1996. An environmental group, the Blue Mountains Biodiversity Project, sued and the case eventually came before the ninth circuit. The environmentalists argued that the Forest Service had failed to adequately analyze the cumulative impacts of the fire, the timber sale and the road building that was planned. The lack of a rigorous cumulative effects analysis was the same objection that the Inland Empire group had raised to the Calispell sale—except this time, the ninth circuit paid attention. The court, reversing a district court determination, explained that the Big Tower sale was illegal because the Forest Service studied the potential impacts piecemeal, rather than in their totality. The court said no single document estimated the impact of a sale that would total 㦔-50 million board feet logged from the same watershed, require approximately 20 miles of road construction and involve tractor-skid logging on steep slopes.” The significance of these factors “cannot be avoided by breaking [an action] down into small component parts,” the court added.

A LIBERAL-CONSERVATIVE SPLIT

The critical difference between these two cases appears to have had nothing to do with discrepancies in law or in facts, but instead with something much more elementary: a different panel of judges heard the case. “You can have nearly identical facts and it depends on which panel you get as to which results you get,” Brown said in a recent interview. “It’s scary from a plaintiff’s point of view. As an attorney, you’d like to be able to tell your client that with certain facts, you’ll get certain results. But that isn’t happening in the ninth circuit.”

Underlying the differing rulings, according to Brown, is a “liberal-conservative split,” with the liberal judges more inclined to cast a critical eye at a federal agency like the Forest Service, and the conservative judges more likely to give the Forest Service the benefit of the doubt.

If that’s true, it would seem that the future bodes well for environmentalists. For much of the 1990s, the ninth circuit was more or less evenly split between judges appointed by Republican presidents and those appointed by Democratic presidents. But that changed dramatically during the last three years of President Clinton’s second term, when he appointed eleven judges to the ninth circuit. Factoring in both “active” (full-time) and “senior” (part-time) judges, there are twenty-seven judges on the ninth circuit who were appointed by Democratic presidents, compared to eighteen judges appointed by Republican presidents.

One environmental attorney said, however, that just because a judge was appointed by Clinton, that doesn’t mean he or she will be green. “A lot of the Clinton judges are pro-business,” said the attorney, who requested anonymity. Montana environmental attorney Jack Tuholske said, “I’ve had Reagan-appointed judges make phenomenal rulings for me, and I’ve had Clinton-appointed judges rule against me.”

But Michael Blumm, a law professor at Lewis and Clark College, said environmental plaintiffs aren’t pleased when they’re assigned a conservative panel. “People who say, ŒJudges just apply the law; they don’t make it,’ don’t really understand the nature of environmental decision-making. Worldviews matter. Judicial appointments matter.”

Blumm said part of the reason the ninth circuit issues differing opinions on seemingly similar environmental cases is that most environmental laws have been written by Congress in such a way as to allow differing interpretations. “The environmental laws we have are frameworks,” Blumm said. “They seldom dictate decisions.”

A TALE OF TWO JUDGES

That’s basically what Judge Alex Kozinski, the leading conservative on the ninth circuit, thinks. “There are a set of laws that Congress has passed in the environmental area that are written in a way that is ambiguous and sometimes full of contradictions,” Kozinski said, speaking from his office in Pasadena, California. “That puts us in a difficult position. We have to guess congressional intent.”

Kozinski believes the laws were deliberately written that way by politicians who may not have had “the time or the political will to hammer out clear guidance for the courts.” He said the ambiguity works to lawmakers’ advantage. “It is politically expedient to erect statutes that don’t say very much. If a case comes out in a way opposite from what [politicians] had hoped, they don’t have to take the heat. They can blame the courts.

“If they want to protect the environment, they should clearly say that,” Kozinski went on. “If they want the redwoods cut, they should say so and then go back and face their constituents.”

The Romanian-born Kozinski, while only fifty, has already served on the court for fifteen years. He is frequently mentioned as a possible future Supreme Court justice. Often referred to as “the Scalia of the ninth circuit” (after Supreme Court Justice Antonin Scalia), Kozinski, a Reagan appointee, is openly skeptical of most environmental cases that come before him.

“I believe in private property, and I believe that environmental statutes are a huge constraint on what people can do with their property. So if [laws] are not clear, my tendency will be to rule against environmental claims.”

Judge Alfred T. Goodwin agrees that environmental statutes “aren’t models of clarity. There is enough wiggle room in some of the statutes so that people with one value system will see a solution [that others won’t]. We’re supposed to be impartial and we try to be. We try to decide what the law really requires.

“I’ve enforced all kinds of laws that I wouldn’t have voted for if I were in the legislature,” continued Goodwin, who is seventy-eight and was appointed to the ninth circuit in 1971 by President Nixon. “If I’d wanted to make policy, I would have run for Congress.”

Speaking of Nixon, Goodwin pointed out that the thirty-seventh president “signed most of the [environmental] laws that [the court has] been accused of being crazy tree-huggers for enforcing.”

Goodwin in many ways is Kozinski’s opposite on the ninth circuit, at least in terms of environmental cases. He was the author of the opinions that were pivotal in the spotted owl wars of the early 1990s. He also wrote the opinion last spring that affirmed a lower court ruling halting dozens of timber sales in Oregon and Washington to protect salmon.

Goodwin, who runs a small ponderosa pine tree farm outside of Sisters, Oregon, said he is sympathetic to the economic hardship that loggers in the Pacific Northwest have had to endure in recent years. But he suggested environmentalists are not to blame. “Thirty years ago, trees were going into the mill faster than they were growing out in the forest. We’re paying for that now.”

A CRAPSHOOT

Faced with judges as different as Goodwin and Kozinski, it’s no wonder environmental attorneys and environmentalists view the ninth circuit as a crapshoot. To Woodbury, who was so frustrated by the ninth circuit ruling last year on logging on Idaho’s Boise National Forest, that isn’t how it should be. He doesn’t think that vaguely written laws are to blame. The villains, in his mind, are conservative judges biased against environmental regulation.

“It can be very disillusioning sometimes,” Woodbury confessed. “I just want someone to address the law and the facts.”