Court declines to rehear Sierra Nevada case from E&E News

Here’s a link.


A three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said it would not rehear the case. The full court also opted against an en banc hearing involving 11 judges


Judge William Fletcher’s majority opinion in the case was one of several openly criticized by one of his colleagues on the court, Judge Milan Smith, in a vituperative dissenting opinion filed earlier this month when the court, sitting en banc, ordered the Forest Service to consult with other agencies over whether gold prospecting in the Klamath National Forest will negatively affect fish species (Greenwire, June 4).

If left intact, the Sierra Nevada ruling “will dramatically impede any future logging in the West” because “it will take even longer for the agencies to approve forest plans,” Smith wrote in his dissenting opinion. Chief Judge Alex Kozinski was the only other judge who signed on to Smith’s most outspoken comments.

Despite Smith’s concerns, today’s announcement said that “no judge of the court has requested a vote on whether to rehear the matter en banc.”

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said he was surprised that Smith had not asked for the court to vote on an en banc rehearing.

“On the surface, it doesn’t make much sense,” he said. Hellman speculated that the outcome in the Klamath gold prospecting case may have deterred Smith from pursuing the issue. Instead, Smith may be hoping that the Supreme Court will take up the case, Hellman said.

5 thoughts on “Court declines to rehear Sierra Nevada case from E&E News”

  1. Let’s not pretend the Milan Smith is some kind of clear-minded unbiased arbiter. He’s the brother of former Oregon senator Gordon Smith, a republican well-known for promoting resource extraction and efforts to eliminate environmental safeguards. Thankfully, the citizens’ of Oregon tired of his thinly-veiled extremism and booted him from office. He’s the 9th Circuit’s resident version of Judge Hogan of Eugene who never saw a federal timber sale he didn’t like.

    • “Booted” might be a bit strong. Smith won 30 of Oregon’s 36 counties. Wikipedia reminds us that it took two days to declare a winner — 49% to 46% with a more conservative minor candidate receiving 5%.

    • Are those our expectations for judges, “clear-minded” and “unbiased”? Because it seems like one person’s “bias” might be the next person’s “clear thinking.” I am reminded of the discussions about the members of the Supreme Court, for example.

  2. I think we need to take the Judges out into the forests and show them what good logging looks like. Or, are they afraid of getting some dust on the robes? (smirk) The Boise NF took a judge on a flight over a big landslide, showing him that it wasn’t caused by logging.

  3. Thank Gore for Judge Milan Smith and his vituperative language! It’s great to see a 9th Circuit Judge with some common sense and empathy for rural families and industries for a change.

    Tree: Are you YOUR brother’s keeper? How about an actual comment with some intelligence, instead of another stupid “gotcha!” post? These types of “insights” into your method of making opinions don’t put them in a very attractive (or persuasive) light. Remember Billy Beer or Daffy Dean?


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