Judge Angrily Scolds 9th Circuit Court
by Michael Milstein, The Oregonian, March 03, 2008
It was unusual enough when a high-level federal judge — who is the brother of Sen. Gordon Smith — blasted his own court for decimating the Northwest logging industry with “blunderbuss” rulings that went way too far.
But the extraordinary scolding by Milan D. Smith Jr. last year apparently got the attention of his fellow judges on the 9th U.S. Circuit Court of Appeals, the top federal court in the West.
They recently took the unusual step of voting to have a full panel of judges reconsider the case that set Smith off. That could rein in the federal courts that Smith — along with timber industry leaders — blame for needlessly idling sawmills while they meddle in logging decisions beyond their expertise.
Just as the Supreme Court considers only a few important cases each year, the 9th Circuit — the largest appeals court in the country — picks only a handful for full reviews. So the decision to do so on an otherwise routine timber sale case suggests that Smith’s wrath hit a nerve with his colleagues.
“It’s very rare and unusual,” said Scott Horngren, a Portland attorney involved in the case. “It’s basically unheard of that they take a timber sale case.”
It offers a rare glimpse at the inside politics of the court that has issued momentous decisions, involving protection of species from spotted owls and salmon, with cascading effects on the Northwest economy.
Smith, like his brother the Republican senator, is from Pendleton. He founded a law firm in Torrance, Calif., and President Bush appointed him to the appeals court in 2006, adding a new, conservative voice to the court known for its liberal bent.
“Judges are troubled when they’re accused of going beyond their proper role by anybody,” said Dan Rohlf, a professor at Lewis & Clark Law School and director of the school’s environmental law clinic. “When the person accusing the court of that is one of its own members, they tend to be even more troubled.”
The case that led to Smith’s outburst is fairly routine: an attempt by environmental groups to block a U.S. Forest Service logging project known as Mission Brush in northern Idaho.
But the point Smith raised is much larger: How far should judges pry into the Forest Service’s rationale for the logging? Should judges evaluate the science the Forest Service uses to back its case, or defer to the agency’s expertise? … [more]