Editorial: Good news for US miners from Ninth Circuit

Miners active in the western U.S. are soaking in a rare bit of good news from the nation’s court system.

The U.S. Court of Appeals for the Ninth Circuit set forth a strongly worded opinion on July 1 that marks a significant step back from its more activist decisions reviewing actions by land-management agencies.

The 11-0 decision has huge, positive implications for any mining project in the Ninth Circuit that’s in the litigation phase of the permitting process.

This appeals court, based in San Francisco, has traditionally been the most environmentalist-friendly court in the country.

It has jurisdiction over most of the western states, including the mining states Alaska, California, Arizona, Nevada, Idaho and Montana.

This latest court decision centres around the anti-development NGO Lands Council and its now-overturned preliminary injunction against the U.S. Forest Service and its plan for some modest, selective harvesting of wood in Idaho’s panhandle.

The harvesting project had the advantages of lowering the risk of catastrophic fire, insect infestation, and disease, and helping out a struggling local economy and preventing job loss.

Mark Rey, the U.S. Department of Agriculture’s under secretary for Natural Resources and Environment, calls it “the most important decision involving a Forest Service environmental case in the last two decades.”

It’s worth quoting at length some heartening, common-sense conclusions reached in the decision: “In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. …This is not a proper role for a federal appellate court. But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.”

Rather, the court wrote, “our proper role is simply to ensure that the Forest Service made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious.’ …This approach respects our law that requires us to defer to an agency’s determination in an area involving a ‘high level of technical expertise.’ We are to be ‘most deferential’ when the agency is ‘making predictions, within its [area of] special expertise, at the frontiers of science.'”

The court also emphasized that National Forests are not set aside for non-use, and that, in balancing hardships, a court must weigh the economic hardships raised against environmental harm. These public interests includes layoffs, job loss and impacts to a struggling local economy.

Commented Laura Skaer, the executive director of the Northwest Mining Association, to her committee members: “The ninth circuit gets religion! Just when you thought there was no hope in the Ninth Circuit, they surprise you with an incredibly important, meaningful and positive decision.”