Wednesday, June 5, 2013

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

I'm grateful to the editors of the South Carolina Forest Steward, sponsored by Clemson's University's Cooperative Extension Service and the South Carolina Forestry Commission, for asking me to provide their readers with an update on the forest roads litigation following the U.S. Supreme Court's recent decision. This is a great newsletter that forest landowners throughout the Southeast may be interested in.

The article is reproduced below. This article was written as an analysis of the Court's decision, so it is not an up-to-the-minute update. I'll be providing that update in an upcoming post over the next couple of weeks.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

Imagine if you needed to ask the federal government’s permission to harvest timber. Recently, the U.S. Supreme Court rejected an environmental organization argument to require just that. In March, the Court reversed a Ninth Circuit Court of Appeals decision that required forest and logging roads to be permitted under the Clean Water Act. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. _ (2013) (consolidated cases 11-338 and 11-347). You may recall that the Ninth Circuit is the court that gave us the highly-publicized decisions protecting the spotted owl in the Pacific Northwest and eliminating timber harvesting in many communities. It is also the court that the Supreme Court overturned last year in an important case that for the first time gave landowners the right to take the U.S. Environmental Protection Agency (“EPA”) to court when it issues fines and penalties against the landowners. See Sackett v. EPA, 132 S. Ct. 1367 (2012).

Forestry professionals and forest landowners were paying attention to this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit? Second, would forest landowners be exposed to the risks of citizen suits by environmental organizations seeking to enforce the Clean Water Act? These questions made the Decker case the most important environmental regulatory decision for forestry professionals and forest landowners in recent memory. For the small landowner in the Southeast, permitting costs alone had been estimated at minimum to be $3.13 per acre per year—and as high as $21.46 per acre per year. See

Although the Decker decision was a big win for the forestry community, it poses some risks for the future. Ultimately, environmental and regulatory problems are political problems; you should continue paying attention to this issue and discuss it with your elected officials.

The Forest Roads Litigation

The Supreme Court’s decision in Decker is just the latest in a long fight over the murky provisions of the federal Clean Water Act. The parties have already been litigating this issue for about seven years. Some background about the Clean Water Act will help frame this discussion. Under the Clean Water Act, pollutants may not be put into waters of the United States by a “point source” without a National Pollutant Discharge Elimination System (“NPDES”) permit. A point source is more or less any discreet conveyance that could discharge pollutants, such as a pipe, ditch, channel, tunnel, or conduit. Nonpoint sources are not regulated. Congress chose to regulate pollution this way because the technology of the 1970’s could only feasibly regulate point sources. Over the past 40 years, we have become very good at assessing and treating point source pollution. We have not been as successful dealing with pollution from non-point sources, and so environmental organizations have been attempting to cast ever-wider nets using outdated laws.

In a lawsuit attempting to do just that, in 2006, a nonprofit organization based at Lewis & Clark Law School called the Northwest Environmental Defense Center (“NEDC”) sued a group of landowners—the Oregon State Forester, the Oregon Board of Forestry, and various timber companies—in federal court. NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads that the landowners used in the Tillamook State Forest required were point sources.

The landowners argued that the roads and their associated natural stormwater systems were exempt from NPDES permitting because they fell under EPA’s longstanding Silvicultural Rule. The Silvicultural Rule was developed in 1976. It exempts most silvicultural activities from classification as a “point source”, including “nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” 40 C.F.R. § 124.85 (1976).

The federal trial court dismissed NEDC’s case. It agreed with the landowners that the timber road runoff collected into a system of ditches, culverts, and conduits and were exempt from permitting requirements under the Silvicultural Rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). On appeal, however, a panel of judges on the Ninth Circuit struck down the Silvicultural Rule in August 2010. The landowners asked the Ninth Circuit to reconsider the issue before a much larger panel of judges. It agreed and issued a new decision in May 2011, but it still held that the Silvicultural Rule was invalid. See Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). It said that when agencies adopt rules, those rules must be consistent with the statutes they are developed under—and the Silvicultural Rule was inconsistent with the Clean Water Act.

The state of Oregon appealed the ruling to the U.S. Supreme Court, with the support of 25 other states, as well as a number of forest landowners and forest industry organizations. As the parties submitted their written arguments, most observers thought that the forestry interests had the stronger case. On the eve of oral arguments, however, EPA surprised everyone by issuing—in record time—a new rule to replace the rule that the Ninth Circuit struck down. EPA said the new rule left the U.S. Supreme Court with no reason to hear the case. Consequently, instead of talking about the substance of the case, the parties spent all their time arguing about what should happen to the case after the new rule. The Supreme Court Justices, as you might imagine, were not happy that they had not been told about this new development, and so they ordered the parties to submit additional written arguments about the new EPA rule.

Meanwhile, out in the Ninth Circuit, NEDC immediately sued EPA seeking to have the new rule declared invalid. Forest industry groups requested to intervene in the case, which the Ninth Circuit allowed. The industry groups were concerned because the new rule only addresses logging roads, which are temporary roads. The new rule specifically stated that EPA was still considering what to do with more permanent forest roads. Don’t expect the Ninth Circuit to determine whether the rule is valid before the end of 2013.


This brings us to the U.S. Supreme Court’s decision in Decker. After the complications of EPA’s new rule, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues. In a pleasant surprise for the forestry community, the Supreme Court did, saying that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads form the NPDES permitting scheme.” It reasoned that EPA’s interpretation of its own regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act.

The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as commentators and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to less clean water. In doing so, it recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a control-and-command regulatory environment.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said that it was proper for the NEDC to bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule created by an agency can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was actually to whether the landowners had proper permits under the Clean Water Act, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be open to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the new outstanding lawsuit out in the Ninth Circuit, the Clean Water Act remains an issue that the forestry community must stay abreast of.

What can you do? To keep from being surprised, forest landowners and forestry professionals may want to start thinking through their contracts. It was already a good idea to keep track of who is responsible for getting environmental and land use permits, but with legal uncertainty still looming, it may also be a good idea to include in contracts language that determines who should pay for, draft, and submit permit applications that are developed after a contract is signed.

As for a long-term solution, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. Bills have been filed over the last couple of years that would have solved all of this litigation, but they were not passed. You can help by calling your U.S. senators, congressmen, and congresswomen and asking them to reintroduce or support the Silvicultural Regulatory Consistency Act (last year’s bills were numbers H.R. 2541 and S. 1369). Remember, as I mentioned, that with all environmental law and regulatory problems, the real solution is political.

Jacob T. Cremer practices property rights, environmental, and land use law at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., based in Tampa, Florida. His passion for these areas of the law comes from growing up in a family that has been involved in forestry in Florida for five generations and in South Carolina for thirty years. He assisted counsel of record before the U.S. Supreme Court for the landowners in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). He co-authored an amicus brief to the U.S. Supreme Court in support of the landowner in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). Follow the developments on the cases discussed here and others at his blog, The Florida Land Environment,