Recreation Groups Argue for New Law Before Ninth Circuit
PASADENA, CA (December 14) — The extent to which nonfederal parties can participate in environmental litigation is now under review by an en banc panel of the U.S. Ninth Circuit Court of Appeals following a case argued on December 13, 2010. The appellants are motorized recreation interests who have been excluded from participation and are asking the Circuit to change the law. Arguing for them was Paul Turcke, the Boise, Idaho, attorney who has been lead counsel for the BlueRibbon Coalition Legal Program since its inception in 1996. Also arguing was Paul Gale, who represented the Motorcycle Industry Council (MIC) and Specialty Vehicle Institute of America (SVIA), who obtained "friend of the court" status in support of the recreation groups.
The case was originally brought in the U.S. District of Idaho by preservationist organizations who sued the Forest Service seeking greater restrictions on motorized vehicle access to the Minidoka Ranger District of the Sawtooth National Forest. The Magic Valley Trail Machine Association, the Idaho Recreation Council and BlueRibbon were denied intervention in the case. The district court ruled, in large part, that intervention was prevented by the "Federal Defendant Rule," unique to the Ninth Circuit, which maintains that since only "the federal defendant" must comply with statutes like the National Environmental Policy Act, only the federal defendant can be a party to a suit alleging noncompliance with such "environmental" laws.
The appeal was initially argued on March 9, 2010, to a three-judge Ninth Circuit panel by Turcke, opposed not by "the federal defendant" but by lawyers with the Western Environmental Law Center. Rather than issuing a decision, the panel asked for further briefing on the question of whether the Court should convene en banc to consider abandoning the Federal Defendant Rule. On September 30, 2010, the Court issued an order indicating that a majority of nonrecused active judges on the court voted to hear the appeal en banc.
An en banc proceeding is unusual and is ordered only when necessary to establish or maintain uniformity of prior court decisions or when the proceeding involves a question of great importance. Under Ninth Circuit rule, an en banc court consists of the Chief Judge of the circuit and ten additional judges drawn by lot from the active judges of the circuit.
After the Court announced it would rehear the case en banc, numerous parties in addition to MIC-SVIA submitted "friend of the court" briefs in support of the recreation groups' position. They include the Kootenai, Coquille, Kalispel, Shoshone-Bannock and other Indian tribes; Coos, Grant, Harney and Wallowa Counties, Oregon; the State of Alaska; Idaho Governor Otter and Office of Species Conservation; Western Urban Water Coalition; Southern Nevada Water Authority; American Petroleum Institute, Chamber of Commerce of the U.S.A. and National Manufacturers Association; American Forest Resource Council; Public Lands Council and the National Cattlemen's Beef Association; and Safari Club International.
A video recording of this argument is available for public viewing at http://www.ca9.uscourts.gov/media/view_subpage.php?pk_vid=0000006124. The status of this and other cases being considered en banc, including the names of individual panel members, can be viewed on the Court's website at http://www.ca9.uscourts.gov/enbanc/.
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The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. With members in all 50 states, BRC is focused on building enthusiast involvement with organizational efforts through membership, outreach, education, and collaboration among recreationists. 1-800-BlueRib - www.sharetrails.org
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Paul Turcke, Esq.
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