Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338, 11-347

a en ae

IN THE SUPREME COURT OF THE UNITED STATES

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners,

and

GEORGIA-PACIFIC WEST, INC., et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Petitions for Writs of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF AMERICAN FOREST RESOURCE

COUNCIL, PUBLIC LANDS COUNCIL, NATIONAL

CATTLEMEN’S BEEF ASSOCIATION, MONTANA WOOD

PRODUCTS ASSOCIATION INC., ARKANSAS FORESTRY

ASSOCIATION, FEDERAL FOREST RESOURCE COALITION

INC., AND MINNESOTA FOREST INDUSTRIES, INC. IN

SUPPORT OF PETITIONERS

CAROLINE M. LOBDELL SCOTT W. HORNGREN

WESTERN RESOURCES LEGAL COUNSEL OF RECORD

CENTER AMERICAN FOREST RE-

5100 SW MACADAM, # 350 SOURCE COUNCIL

PORTLAND, OREGON 97239 5100 SW MACADAM, # 350

(503) 222-0628 PORTLAND, OREGON 97239

(503) 222-9505

SHORNGREN@AMFOREST.ORG

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURTAE...............0.0200c0000000+ 1

SUMMARY OF ARGUMENT ........................0e0eceeeceees 7

ITED dsacintpindadianacuivitibichinetinncnnvgetianinieniadiaiaanngestio: 9

A. This Case is of National Importance Because

Resource Management of a Vast Area of Fed-

eral Forest and Range land is Likely to be

I iiiiianntnisenndecubeciddiaiimsontunintinmncend 9

B. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Struggling Forest Products

Businesses that Rely on Federal Lands as a

Ne I nicciisncraiennennnieibtnicdinncasneundbiedbabin 12

C. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Ranching Families and

Businesses that Often Use the Same Roads

Used for Logging on Federal Land............... 13

D. The Imposition of a Time Consuming and

Costly NPDES Permit Process on Federal

Land Will Harm Intermingled Landowners

who Require Access Across Federal

APPENDIX

U.S. FOREST SERVICE, IMPLICATIONS OF DECISION IN

NEDC v. BROWN TO SILVICULTURAL ACTIVITIES ON

NATIONAL FOREST SYSTEM LAND, Doc. 1570-1 (SEPT.

RELATES SAE R Seren N FETT Meee App. la

Letter from Dana Johnson to Tom Tidwell, Re: Sixty-

day Notice of Intent to File Suit for Violations of the

Clean Water Act (Aug. 20, 2010)................. App. 10a

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Alliance for the Wild Rockies v. McNair,

No. 2-CV-00504-EJL (D. Idaho) .....................00.. 10

Andrus v. Utah,

446 U.S. 500 (1980)................0.....ccccscccecesseesseeceees 8

Leo Sheep Co. v. United States,

i ccicrcemeinedadinienonetianionves 8

Newton County Wildlife Ass'n v. Rogers,

141 F.3d 803 (8t Cir. 1998)............ccccccceeeeeeeeeeeees 5

FEDERAL STATUTES

Clean Water Act

ee ee Ge BEI GE GID, cccecccevcccucnssecsenensncensnseneees 6

SERINE RE ae me Seen aE eaeeR MNEs 7

REGULATIONS

SBOP DE BARB GED ccc ceccccerececcsvcesscovssovpenscososonenes 14

OTHER AUTHORITIES

55 Fed. Reg. 47,990, 48,011 (Nov. 16, 1990) ............. 8

Administrative Protest of Evans Creek Project

Decision Record and Finding of No Signifi-

cant Impact as Implemented via the Skele-

ton Mountain Timber Sale, Kiamath

Siskiyou Wildlands Center,

http://www.blm.gov/or/districts/medford/p]

ans/evans/files/KSWildSkeletonProtest.pdf ...... 10

ill

Construction Statistics, National Association

of Homebuilders,

http://www.nahb.org/reference_list.aspx?se

RT a eae ae

E. RICHARDSON, BLM’s BILLION — DOLLAR

CHECKERBOARD, MANAGING THE O & C

AOR ET ER a Oe

Environmental Assessment, Angora Fire Res-

toration Project, USDA FOREST SER-

VICE (July 2010),

http://www.fs.usda.gov/Internet/FSE_DOC

UMENTS/stelprdb5181776.pdf. .......................

Final Environmental Impact Statement; Mo-

torized Travel Management Plan (formerly

Motorized Route Designation), Klamath

National Forest California and Oregon,

USDA FOREST SERVICE Wanuary 2010),

http://www.fs.usda.gov/Internet/FSE_DOC

UMENTS/stelprdb5 120060. pdf. ...................04

Kramer, Forest Service Says Lack of Sawmills

Hurting Forests, Wenatchee World (April

12, 2011),

http://www.wenatcheeworld.com/news/201

1/apr/02/forest-service-says-lack-of-

sawmiills-is-hurting/. ..................cccccceeeeeeeeeeeeeees

New Residential Construction, U.S. CENSUS

BUREAU,

http://www.census.gov/const/www/newresc

REST RAERat r tee Ba SRE re Se

U.S. FOREST SERVICE, IMPLICATIONS OF

DECISION IN NEDC v. BROWN TO

SILVICULTURAL ACTIVITIES ON NATIONAL

FOREST SYSTEM LAND, Doc. 1570-1 (SEPT.

Fe ST eisssintadetininiiaiiinneiuinianeinippininantabinieniinenncen

iv

11

my S

U.S. General Accounting Office, GAO-02-136,

RESTORING FISH PASSAGE THROUGH CUL-

VERTS ON FOREST SERVICE AND BLM LANDS

IN OREGON AND WASHINGTON COULD TAKE

EE ACT 10

West Coast Log, Lumber Exports Soar in First

Half of 2011, Forest Business Network

(September 3, 2011),

http://www.forestbusinessnetwork.com/7 17

O0/west-coast-log-lumber-exports-soar-in-

IIIT, icssiccascinteiisneidincinnniednniaiienenmndiuness 12

INTERESTS OF AMICI CURIAE'

Amici Curiae represent companies and families

that depend, in part, on federal forests and rangel-

and for their livelihood.

American Forest Resource Council (AFRC) is an

Oregon nonprofit corporation that represents the

forest products industry throughout Oregon, Wash-

ington, Idaho, Montana, and California. AFRC

represents over 50 forest product businesses and for-

est landowners. AFRC’s mission is to create a favor-

able operating climate for the forest products indus-

try, ensure a reliable timber supply from public and

private lands, and promote sustainable management

of forests by improving federal laws, regulations, pol-

icies and decisions regarding access to, and man-

agement of, forest lands.

In states where AFRC members are located, they

purchase the majority of timber from federal lands

managed by the U.S. Department of Agriculture,

Forest Service and U.S. Department of Interior, Bu-

reau of Land Management (BLM). AFRC members

also enter into long-term stewardship contracts on

the federal lands that include forest restoration

projects such as repairing roads and replacing cul-

verts. AFRC members also own land adjoining fed-

1 The parties’ were given at least ten days notice of amuc/s in-

tention to file a brief. All the petitioners and respondent have

filed a letter of blanket consent to filing amicus briefs and

letters are lodged with the Clerk. Pursuant to this Court’s Rule

37.6, the amici submitting this brief and their counsel hereby

represent that no party to this case nor their counsel authored

this brief in whole or in part, and that no person other than

amici paid for or made a monetary contribution toward the

preparation and submission of this brief.

(1)

2

eral land that can only be accessed by crossing roads

on federal land subject to permits, easements, and

right of way agreements.

The Public Lands Council (PLC), headquartered

in Washington, D.C., represents ranchers who use

public lands and preserve the natural] resources and

unique heritage of the West. PLC is a Colorado non-

profit corporation. PLC membership consists of state

and national cattle, sheep and grasslands associa-

tions. PLC works to maintain a stable business envi-

ronment for public land ranchers in the West where

roughly half the land is federally owned and many

operations have, for generations, depended on public

lands for forage.

PLC members hold longstanding permits to graze

on federal allotments. Many of them also own water

rights, the claim to which depends upon those

ranchers’ continued beneficial use of the water, pri-

marily through livestock grazing. PLC members de-

velop and maintain water sources and other im-

provements on their allotments and use roads across

federal land to manage vested water rights. Grazing

allotment access roads often are the same roads used

to remove logs from federal land. PLC ranching fam-

ilies also own millions of acres of range and forest

land, some of which is intermingled with federal

land and, like AFRC members’ properties, can only

be reached by roads crossing federal land. The use of

roads on federal] land is critical to their ability to

continue properly managing natural resources and

producing food and fiber for the nation and world.

The loss of the exempt status of the roads these

ranchers use would burden them with new permit-

ting costs, and it would incite litigation against the

3

land management agencies, taking time and re-

sources away from the already-belabored grazing

permitting process. Thus, not only will PLC mem-

bers’ access be threatened; the renewal of their per-

mits could be in jeopardy, as well.

The National Cattlemen’s Beef Association

(NCBA) is the national trade association

representing the entire cattle industry. NCBA is a

Colorado nonprofit corporation. NCBA represents

nearly 139,000 cattle producers and 45 affiliated

state associations throughout the United States.

NCBA’s membership includes cow/calf producers,

seed stock operators; commercial feedyard opera-

tions; and also processing facilities. NCBA works to

advance the economic, political and social interests

of the U.S. cattle business and to be an advocate for

the cattle industry’s policy positions and economic

interests. As individual entrepreneurs, cattlemen

raise livestock in more states than any other com-

modity, helping sustain a way of life in thousands of

rural communities. Its members are proud of their

tradition as stewards and conservators of America’s

land and waters, and good neighbors to their com-

munities. Many of NCBA’s western members own

water rights, hold federal grazing permits or own

range and forest land intermingled with federal

land. NCBA members use the same public roads to

move cattle between their private property and fed-

eral allotments that are used to remove logs. With-

out reliable and prompt access, NCBA’s ability to re-

tain their water rights, protect the resource and stay

in business is jeopardized. Adding another layer of

permitting and increasing the opportunity for envi-

ronmental litigation will also cause hardship for fed-

eral lands ranchers.

The Montana Wood Products Association, Inc.

(MWPA) is a Montana nonprofit corporation promot-

ing healthy forests and healthy communities

through management of Montana’s forests. MWPA’s

membership includes companies and individuals in-

volved in all facets of Montana’s wood products in-

dustry. This includes sawmills, manufacturers of

plywood, particle board, fiberboard, pulp and paper,

posts and poles, log homes, as well as timberland

owners and managers and logging contractors. They

produce value-added products through manufactur-

ing and provide over 7,500 direct jobs for Montana

families. Since about 60 percent of Montana’s forest

land base is owned by the federal government much

of which is intermingled with MWPA member’s pri-

vate timberland, road access to and through these

lands is vital to maintaining healthy forests, produc-

ing timber, and protecting lands from wildfire.

The Arkansas Forestry Association (AFA) is an

advocate for the sustainable use and sound steward-

ship of Arkansas’s forest resources to benefit AFA

members and all Arkansans, today and in the fu-

ture. AFA is an Arkansas nonprofit corporation.

AFA members manage private forestland to produce

essential forest products, while maintaining fresh

water and air supplies, and enhancing fish and wild-

life habitat. AFA represents one of the state’s largest

manufacturing sectors, which directly employs about

33,000 people with a $1.46 billion annually in pay-

roll. National forests are an important timber

source for AFA members in western Arkansas and

AFA supports continued access to these forests.

AFA has a longstanding interest in ensuring that

the use of forest roads on federal land is subject to

5

best management practices and not NPDES permits.

AFA was an intervenor in a case on the Ozark Na-

tional Forest where the Eighth Circuit ruled that

logging and road building was covered by EPA’s sil-

vicultural exemption from NPDES permits. Newton

County Wildlife Ass’n v. Rogers, 141 F.3d 803, 810

(8th Cir. 1998).

The Federal Forest Resource Coalition, Inc.

(FFRC) is a national coalition consisting of small and

large companies and regional trade associations

throughout the country whose members manufac-

ture wood products, paper, and renewable energy

from federal timber resources. FFRC is a District of

Columbia non-profit corporation. Coalition members

employ over 350,000 workers in over 650 mills, with

payroll in excess of $19 billion. FFRC wants to en-

sure timely and effective access to federal lands to

sustainably produce timber, pulpwood, and biomass

and for prompt management to protect federal fo-

rests from insects, disease, and wildfire.

Minnesota Forest Industries, Inc. (MFD

represents forest products producers and landowners

that are committed to conservation, quality forest

management, and industry development that fosters

sound environmental stewardship, multiple use of

timberlands, and a dependable long-term timber

supply. MFI is a Minnesota nonprofit corporation.

Many of MFI's members purchase sawtimber and

pulpwood from the Superior and Chippewa National

Forests. MFI’s members depend on timely access to

these forests to complete timber sale contracts, par-

ticularly since access is limited during certain sea-

sons. Disruption of access because of a time consum-

6

ing NPDES permit process would diminish an im-

portant supply of federal timber to our members.

Amici have an interest in this Court’s review of

the Ninth Circuit’s decision that will effectively re-

quire federal land management agencies and private

forest and rangeland owners to begin a lengthy and

expensive process to obtain NPDES permits. Relying

on Ninth Circuit Court of Appeals decision, envi-

ronmental groups have already threatened to stop

the use of roads on federal land under the Clean Wa-

ter Act. U.S.C. §§ 1251 et seq. The NPDES permit

requirements and associated litigation will signifi-

cantly impede the ability of the Forest Service and

the Bureau of Land Management to manage federal

forests and rangeland, sell timber, issue grazing

permits, repair roads, and restore forests and range

to reduce the risk of wildfires. Wildfires on unheal-

thy federal forests and rangeland have burned onto

amici members’ private lands damaging forest and

range resources including wildlife habitat and water

quality. An onerous permitting process to keep

roads open and maintained will increase the incen-

tive for federal agencies to expand the obliteration

and closure of roads and will discourage road main-

tenance. This will exacerbate the problem of federal,

local, and private fire fighters being hindered by in-

adequate access in initial attack of fires during the

critical first 24 hours after a fire starts and means

fewer roads to use as a fuel break to control a

fire. Thousands of acres have burned unnecessarily

because of limited access.

PLC and NCBA (grazing amici are deeply con-

cerned with the prospect of having access to their

members’ grazing allotments prohibited or restricted

7

because of a requirement for NPDES permits for

culverts and roads. Grazing amici are also con-

cerned about access delays and restrictions impeding

the development and maintenance of water im-

provements many of which support vested water

rights. An expensive and lengthy permit process

imposed on federal agencies to obtain NPDES per-

mits will be detrimental to AFRC, MWPA, AFA,

FFRC and MFI (timber amici interests in obtaining

timber from federal lands to run their mills. All

amici have an interest in continued access to their

members’ private land using roads that cross inter-

mingled federal land and the prospect of new ave-

nues for environmental litigation against federal

agencies further threatens amici’s members’ livelih-

oods.

SUMMARY OF THE ARGUMENT

This Court should grant the petitions for certi-

orari. The Ninth Circuit Court of Appeals failed to

give deference to the Environmental Protection

Agency’s (EPA) long-standing interpretation that

forest road construction, use, and maintenance from

which there is natural runoff from rain does not re-

quire an NPDES permit under Section 402 of the

Clean Water Act, 33 U.S.C. § 1342. By ignoring

EPA’s longstanding interpretation, the Ninth Circuit

created a conflict with other circuits.

Rather than repeat petitioner’s legal arguments

in support of certiorari, amici want to emphasize

that certiorari is also supported because of the ex-

ceptional importance of the Ninth Circuit’s decision

to the management of the vast acreage of federal for-

est and rangeland which supply timber and forage

8

for thousands of families and businesses in rural

communities. Leo Sheep Co. v. United States, 440

U.S. 668, 678 (1979) ("Because this holding affects

property rights in 150 million acres of land in the

Western United States, we granted certiorari"); An-

drus v. Utah, 446 U.S. 500, 506 (1980). The effect of

the Ninth Circuit decision extends beyond non-

federal lands and logging activity which are at issue

in this case. The decision also applies to millions of

acres of federal land and to the roads used to access

timber sales on national forests and public lands

managed by the Bureau of Land Management. The

decision also affects ranchers who use roads on fed-

eral land to access their federal grazing allotments

and to maintain water rights, and to intermingled

private landowners whose lands can only be accessed

by roads across federal land.

Amici agree with EPA's long-standing interpreta-

tion that logging which occurs over several months

on a site on 20 to 40 year intervals is not an indus-

trial activity and that natural runoff is best con-

trolled by non-point source best management prac-

tices. 55 Fed. Reg. 47,990, 48,011 (Nov. 16, 1990).

Logging on tracts of public land is even less frequent,

often separated by intervals of 50 years or more. Nor

is grazing an industrial activity when it occurs on a

federal allotment where a pasture may be grazed for

only a few weeks out of the year and the road used

twice annually to bring livestock to and from federal

pastures. Moreover, on millions of acres of federal

land, the same road accesses both federal forest and

pasture and an injunction or regulatory restrictions

on hauling logs will harm ranchers who need to use

the same roads to haul livestock.

ARGUMENT

Certiorari should be granted because the decision

will broadly limit the federal land management

agencies’ ability to continue to sell timber, issue

grazing permits, manage and authorize fencing and

water source improvements, contract for road con-

struction and restoration projects, and provide time-

ly access to intermingled private lands that can only

be reached across federal land.

A. This Case is of National Importance Because

Resource Management of a Vast Area of Federal

Forest and Range land is Likely to be Dis-

rupted.

It is unclear whether timber purchasers, grazing

permitees, road contractors, and stewardship con-

tractors would be obligated to obtain NPDES per-

mits and conduct the required monitoring or wheth-

er this would be the responsibility of the federal land

management agency. Regardless of who is responsi-

ble for obtaining the permit and conducting the mon-

itoring, it would be an extremely costly, time-

consuming, and daunting task. Nationwide, the

Forest Service has approximately 378,000 miles of

roads under its jurisdiction covering 193 million

acres. U.S. FOREST SERVICE, IMPLICATIONS OF DECI-

SION IN NEDC v. BROWN TO SILVICULTURAL ACTIVI-

TIES ON NATIONAL FOREST SYSTEM LAND, Doc. 1570-1,

at 3 (Sept. 7, 2010). App. 1a. The Forest Service es-

timates that if it must obtain permits for roads un-

der its control, it would have to obtain over 400,000

permits. The agency estimates it could take more

than 10 years to complete the permitting process.

10

App. 6a. Even if the Forest Service can obtain pro-

grammatic permits by state, it estimates it would

still take several years to obtain the necessary pro-

grammatic permits. /d.

Amici’s concern that a vast acreage of federal

lands will be drawn into this controversy is sup-

ported by actions of environmental groups. Three

days after the Ninth Circuit filed its opinion, the Al-

liance for the Wild Rockies and the Selkirk Conser-

vation Alliance filed a 60-day notice of intent to sue

for violation of the Clean Water Act challenging the

Lakeview-Reeder Fuels Reduction Project. App. 10a.

The project involves road maintenance, road con-

struction, and road storage and decommissioning to

achieve long-term sediment reduction And watershed

improvement on the Idaho Panhandle National For-

est in Idaho. A complaint challenging the project

was filed on October 6, 2010. Adliance for the Wild

Rockies v. McNair, No. 2-CV-00504-EJL (D. Idaho)

and the Forest Service subsequently withdrew the

project and it has not been reoffered. Both the For-

est Service and BLM have a large backlog of fish

passage restoration work to replace road culverts

that are blocked, poorly sized, or too far elevated

above the stream. U.S. General Accounting Office,

GAO-02-136, RESTORING FISH PASSAGE THROUGH

CULVERTS ON FOREST SERVICE AND BLM LANDS IN

OREGON AND WASHINGTON COULD TAKE DECADES

(2001). An NPDES permit requirement to install re-

placement culverts will stall this fish habitat im-

provement work even further. Formal administra-

tive protests have been filed to halt use of roads for

projects involving log hauling and road rehabilita-

tion work on BLM lands on the grounds that the

projects need a Clean Water Act discharge permit.

11

See Administrative Protest of Evans Creek Project

Decision Record and Finding of No Significant Im-

pact as Implemented via the Skeleton Mountain

Timber Sale, Kiamath Siskiyou Wildlands Center,

http://www.blm.gov/or/districts/medford/plans/evans/

files/KSWildSkeletonProtest.pdf at 20.

Two projects in California have also been chal-

lenged on the grounds that the Forest Service has

not obtained an NPDES permit for the silviculture,

road use, and road restoration included in these

projects. The first project is the Angora project in

the Lake Tahoe Basin Management Unit that was

prepared in response to the Angora fire within the

Wildland Urban Interface (WUI) Defense Zone,

which destroyed or damaged more than 250 struc-

tures on the South Shore of Lake Tahoe. Environ-

mental Assessment, Angora Fire Restoration Project,

USDA FOREST SERVICE (July 2010),

http://www.fs.usda.gov/Internet/FSE_DOCUMENTS

/stelprdb5181776.pdf. The Angora project includes

removal of dead and dying trees, relocating roads

outside of streamside zones, replacement of under-

sized culverts, and construction, decommissioning,

and restoration of roads. /d. The second project is

the Klamath National Forest travel management

plan that will prohibit off-highway vehicle travel in

some areas and permit off-highway vehicle travel on

other roads. Final Environmental Impact State-

ment; Motorized Travel Management Plan (formerly

Motorized Route Designation), Klamath National

Forest California and Oregon, USDA FOREST

SERVICE (January 2010),

http://www.fs.usda.gov/Internet/FSE_DOCUMENTS

/stelprdb5120060.pdf. Off-highway vehicles and fed-

eral roads are used by ranchers to administer their

12

federal grazing allotments, move livestock between

pastures, and maintain fences and water sources.

The administrative appeal argued that the Forest

Service must obtain an NPDES permit which will

delay much needed road restoration, culvert re-

placement, and forest health projects that lead to

improved water quality.

B. The Imposition of a Time Consuming and Costly

NPDES Permit Process on Federal Land Will

Harm Struggling Forest Products Businesses

that Rely on Federal Lands as a Source of Tim-

ber.

The extension of the Ninth Circuit's decision to

federal forest land will adversely affect amici’s mem-

bers whether responsibility to obtain the NPDES

permits and conduct monitoring lies with the federal

agencies or amici’s members who have contracts,

permits, leases, easements, and right-of-way agree-

ments with these agencies. In either case, the sale

and removal of timber from federal land and the use

of grazing allotments will be more costly and the ap-

proval process will be significantly delayed. Delay-

ing federal timber sales now for several years

through a costly NPDES permit process will threat-

en the operations of sawmills which are already

struggling through the worst housing and lumber

markets in this nation's history. See generally, New

Residential Construction, U.S. CENSUS BUREAU,

http://www.census.gov/const/www/newresconstindex.

html; Construction Statistics, National Association

of Homebuilders,

http://www.nahb.org/reference_list.aspx?sectionID=1

30. In today’s depressed markets private forest lan-

downers tend to curtail the sale of their timber or

export their logs. Timber sold from federal lands at

13

current market prices allows timber amici to be

competitive in the depressed lumber market. West

Coast Log, Lumber Exports Soar in First Half of

2011, Forest Business Network (September 3, 2011),

http://www.forestbusinessnetwork.com/7170/west-

coast-log-lumber-exports-soar-in-first-half-of-2011/.

Furthermore, maintaining a steady supply of public

timber at current market prices is crucial to help ex-

isting milling infrastructure survive which is also

needed to help fight the forest health crisis on feder-

al lands. Kramer, Forest Service Says Lack of Saw-

mills Hurting Forests, Wenatchee World, (April 12,

2011),

http://www.wenatcheeworld.com/news/2011/apr/02/fo

rest-service-says-lack-of-sawmills-is-hurting/. Delay-

ing public timber sales now for several years by re-

quiring a costly NPDES permit process for the use of

logging roads will threaten the already tenuous op-

erations of sawmills, and of road and stewardship

contractors that provide scarce jobs to support the

struggling economies of rural communities. In order

for the installed milling capacity and the skilled

woods workers who support it to survive to better

times, it is vital that the timber supply from public

lands not be further curtailed by an NPDES permit

process. If this infrastructure is lost by further con-

straining the supply of timber, it is unlikely that the

investment will ever again be made in this industry

and the loss of jobs will become permanent. This

will devastate already struggling rural communities.

14

C. The Imposition of a Time Consuming and Costly

NPDES Permit Process on Federal Land Will

Harm Ranching Families and Businesses that

Often Use the Same Roads Used for Logging on

Federal Land.

Ranching families and businesses face similar

concerns regarding the Ninth Circuit decision as

they depend on “logging” roads to access their graz-

ing leases on federal land. Since federal regulations

discourage construction of duplicate roads, separate

road systems have not been created for each specific

purpose. See e.g. 43 C.F.R 2812.0-6(a) (“the inter-

mingled character of the O. and C. lands presents

peculiar problems of management which require for

their solution the cooperation between the Federal

Government and the owners of intermingled lands,

particularly with respect to timber roads . . . the

duplication of an existing road reduces the value of

the federal and other timber which is tapped by the

existing road.”). Federal roads are used by loggers

and ranchers alike. If the use and maintenance of a

“logging” road on federal land without an NPDES

permit violates the Clean Water Act, then invariably

the Forest Service or the BLM will preclude the use

of the road for hauling logs, livestock, or other com-

mercial products until the an NPDES permit is is-

sued. If the agencies choose not to preclude use of a

logging road pending completion of an NPDES per-

mit, then environmental groups undoubtedly will

seek a judicial order to preclude the use of the road

more broadly. App. 10a.

15

D. The Imposition of a Time Consuming and Costly

NPDES Permit Process on Federal Land Will

Harm Intermingled Landowners who Require

Access Across Federal Land.

Federal land is often intermingled with private

land and the use of private land is dependent upon

access across federal land. See e.g., E. RICHARDSON,

BLM's BILLION — DOLLAR CHECKERBOARD, MANAGING

THE O & C LANDs (1980). Amici who have inholdings

and must access their forest or range land across

roads on federal land face the prospect of being de-

nied access while waiting for federal land manage-

ment agencies to complete the NPDES permit

process.

CONCLUSION

Because the Ninth Circuit’s holding that NPDES

permits are required for logging roads incorrectly

applied the law, will extend to millions of acres of

federal forestlands, rangelands, and intermingled

private lands, will impose a new costly and time con-

suming permit process on federal land, and will in-

crease the already abundant litigation over the

management of federal land, amuci respectfully urge

the Court to grant the petition for writ of certiorari

to review and reverse the decision to ensure that it is

consistent with other intra-circuit precedents and af-

fords the EPA the deference that it deserves.

Respectfully submitted,

Scott W. Horngren

Counsel Of Record

American Forest Resource

Council

16

5100 SW Macadam

Suite 350

Portland, OR 97239

(503) 222-9505

shorngren@amforest.org

Caroline M. Lobdell

Western Resources Legal

Center

5100 SW Macadam

Suite 350

Portland, OR 97239

(503) 222-0628

Attorneys For Amici Curiae

October, 2011