March 15, 2010

Forest landowners deserve their day in court

By Forest landowners deserve their day in court

Author: Damien M. Schiff

Last week, I argued PLF's appeal in Barnum Timber Co. v. United States Environmental Protection Agency in the Ninth Circuit Court of Appeals in San Francisco.  PLF represents Barnum Timber Co., a family-run timber harvesting operation based in Eureka, California.  In this case, PLF is suing EPA over the agency's decision to list Redwood Creek as an impaired waterbody under Section 303(d) of the Clean Water Act.

(Aside:  Under the CWA, the feds directly regulate "point source" pollution, e.g. pollutants discharged from a pipe or other conduit, but leave to the states the primary task of regulating "nonpoint source" pollution, e.g., runoff and sheet flow.  The CWA provides funding to the states to reduce such nonpoint source pollution, in part through the Section 303(d) impaired waterbody program).

In EPA's view, Redwood Creek is "impaired" because it does not host sufficient numbers of salmon populations.  Further, EPA considers that the Creek is impaired because of excess levels of sediment and abnormally high water temperatures.  Barnum, howver, has amassed significant amounts of data demonstrating that the Creek's current ecological status is as good as, if not better than, the Creek's historical status.  The trouble for Barnum is that Redwood Creek's listing creates significant economic and regulatory burdens on its timber harvesting business.  Nevertheless, the federal district court in San Francisco dismissed the suit on the grounds that Barnum does not have "standing" to sue over the 303(d) listing.  It was that issue—whether Barnum's economic injuries are "fairly traceable" to EPA's listing of Redwood Creek—that was before the Ninth Circuit in last week's oral argument.

Of course, there is no deadline on the appellate court to issue a decision, but whenever it comes, here's hoping that Barnum's right to judicial review of its grievances in a fair and open judicial proceeding will be recognized.

What to read next