Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338, 11-347

3n The

Supreme Court of the Anited States

DOUG DECKER, the Oregon State Forester,

in his official capacity; et al.,

Petitioners,

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

.

GEORGIA-PACIFIC WEST LLC; et al.,

Petitioners,

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

4

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

°

BRIEF OF NATIONAL ASSOCIATION OF

COUNTIES, ASSOCIATION OF OREGON

COUNTIES, IDAHO ASSOCIATION OF COUNTIES,

ASSOCIATION OF O & C COUNTIES, AND,

DOUGLAS COUNTY AS AMICI CURIAE

SUPPORTING PETITIONERS

.

RONALD S. YOCKIM

Counsel of Record

LAW OFFICE OF RONALD S. YOCKIM

430 S.E. Main Street

Roseburg, OR 97470

(541) 957-5900

ryockim@cmspan.net

Counsel for Amici Curiae

National Association of Counties,

Oregon Association of Counties,

Idaho Association of Counties,

Association of Oregon Counties,

and Douglas County

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

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INTERESTS OF AMICI CURIAE..............00c0scee00s 1

INTRODUCTION AND SUMMARY OF ARGU-

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TABLE OF AUTHORITIES

Page

CASES

Chevron v. Natural Res. Def. Council, 467 U.S.

ch istciahesinlciteciicalpinrietachclatiaadt cuacdbaieidaesioemtantendiosaatdiods 10

Northwest Environmental Defense Center v.

Brown, 640 F.3d 1063 (9th Cir. 2011)........... 3, 12,183

National Wildlife Federation v. Gorsuch, 693

ee BD Cie as TAPED sresccseninsessessscccseneceupeursevesenes 9

Oregon Natural Desert Association, et al. v.

United States Forest Service, 550 F.3d 778

SINE: EUITIIEY -ticscvanstenimenssnlnssddasteaaieebespimnnieseitenndnpaniianiiep-ivtimniddiibineniic 4

STATUTES

Clean Water Act

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TABLE OF AUTHORITIES — Continued

Page

O & C Act of 1937

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REGULATIONS

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Oregon Administrative Rules 340-042-0028 ............... 5

Oregon Administrative Rules 629-625-0000,

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Oregon Administrative Rules 629-635 ...................:06.. 5

Oregon Administrative Rules 629-640 ...............c ee. 5

Oregon Administrative Rules 629-645 ........................ 5

Oregon Administrative Rules 629-650 ....................... 5

iv

TABLE OF AUTHORITIES -— Continued

Oregon Administrative Rules 629-655

Oregon Administrative Rules 629-660

1

The National Association of Counties, Association

of Oregon Counties, Idaho Association of Counties,

Association of O & C Counties, and Douglas County

(collectively “Counties”) respectfully submit this brief

as amici curiae in support of Petitioners.’

¢

INTERESTS OF AMICI CURIAE

The National Association of Counties (“NACo”) is

the national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the Nation’s

3,068 counties. NACo is a Delaware non-profit corpo-

ration, there are no subsidiary or parent organiza-

tions, and it has no shareholders.

The Association of Oregon Counties (“AOC”) is an

intergovernmental agency of county governments

established under the laws of Oregon, it has no

subsidiary or parent organizations, and it has no

shareholders.

The Idaho Association of Counties (“IAC”) is a

non-profit, non-partisan service organization dedicated

‘ Counsel of record for all parties received notice at least 10

days prior to the due date of the intention of amici to file this

brief. The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation of submission of this brief. No person other

than amici, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

to the improvement of county government. LAC was

designed and incorporated by county elected officials

under Idaho law and under Section 501(c)(4) of the

Internal Revenue Code to provide services, research,

uniformity, and coordination among member counties

in order for the county elected officials to better serve

their constituents. LAC has no subsidiary or parent

organizations. Its members are the 44 Idaho Counties.

The Association of O & C Counties (“Association”)

is an unincorporated, voluntary association of the 18

counties in western Oregon that are the beneficiaries

of the lands managed by the Bureau of Land Man-

agement under the O & C Act of 1937 (Act of Aug. 28,

1937, c. 876, Title I, §1) (43 U.S.C. §1181a, et seg.).

The Association has no subsidiary or parent organiza-

tions and has no shareholders.

Douglas County is a county government estab-

lished by the State of Oregon and as such has no

subsidiary or parent organizations, nor any share-

holders. Douglas County maintains a system of

county roads over which the public has a right of use

for forestry, industrial, recreational, domestic and

general use.

The Counties have a vital interest in the defini-

tive resolution of the question whether the runoff

from that subset of their public roads that are logging

roads not directly associated with any industrial

facility are subject to the permitting requirements of

the National Pollution Discharge Elimination System

3

(“NPDES”) of the Clean Water Act (“CWA”) (33 U.S.C.

§1342).

Pursuant to this Court’s Rule 37.2(a), counsel of

record in this case received timely notice of the Coun-

ties’ intent to file this brief, and all parties consented

to the filing of this brief with the Court.

.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves the far-reaching decision by

the Ninth Circuit displacing the longstanding man-

ner in which the Environmental Protection Agency

(“EPA”) and the State of Oregon implement the

stormwater control provisions of the CWA (33 U.S.C.

§1342(p)).

In Northwest Environmental Defense Center v.

Brown, 640 F.3d 1063 (9th Cir. 2011), the Ninth

Circuit shifted the management of stormwater runoff

associated with logging roads from the nonpoint

source control programs managed by the respective

states to a system of permitting under the National

Pollution Discharge Elimination System (“NPDES”)

(33 U.S.C. §1342).

This fundamental shift in the long-established

stormwater management scheme, ignored that Con-

gress has chosen to focus the CWA’s NPDES permit-

ting requirements on those discharges of pollutants

from point sources and only a limited number of

4

stormwater discharges (33 U.S.C. §1342), rather than

require permitting for discharges or runoff associated

with activities such as silvicultural activities.

In accord with this focus, EPA’s longstanding

interpretation of the CWA stormwater provisions has

been that that subgroup of stormwater discharges

associated with silvicultural activities, including

logging roads, was not subject to NPDES permitting,

rather these discharges were to be controlled as part

of the State’s primary responsibility to prevent,

reduce and eliminate pollution (33 U.S.C. §1251(b)),

which in this case was through the respective state’s

nonpoint source control programs implemented under

33 U.S.C. §1329 and 33 U.S.C. §1288.

Recognizing that differences in climate and

geography make nationwide uniformity in controlling

nonpoint source pollution virtually impossible,

Congress has traditionally depended on land use

controls state or local in nature to control these

discharges and runoff. (Oregon Natural Desert Asso-

ciation, et al. v. United States Forest Service, 550 F.3d

778, 785 (9th Cir. 2008)). Congress has opted to

regulate these sources of runoff and discharge

through the programs established in 33 U.S.C.

§1329(b) and 33 U.S.C. §1288.

In accord with this policy, and in reliance on its

EPA approved nonpoint management program (33

U.S.C. §1329), the State of Oregon promulgated

administrative rules which established standards for

the control of the nonpoint sources of pollution (Oregon

5

Administrative Rules 340-042-0025), including dis-

charges and runoff associated with silvicultural

practices (Oregon Administrative Rules 629, divisions

625; 635; 640; 645; 650; 655; 660). Specific to logging

roads, the State of Oregon incorporated into its

Forest Practice Rules a series of best management

practices addressing logging road construction and

maintenance (Oregon Administrative Rules 629-625-

0000, et seg.).

Plaintiff challenged EPA’s and the State of Ore-

gon’s long-standing interpretation by alleging that

the State of Oregon as the owner, or as the operator,

of two logging roads (Trask Road and Sams Down

Road) was in violation of the CWA by allowing the

discharge of stormwater runoff from these logging

roads without first acquiring a NPDES permit.

Plaintiff contended that the stormwater runoff

from these logging roads represents a “discharge

associated with industrial activity” and as such the

roads were automatically subject to the NPDES

permitting requirements under 33 U.S.C. §1342(pX2\B).

Plaintiff sought to shift the focus of the State of

Oregon’s approved nonpoint pollution control pro-

gram to a NPDES permitting program.

The defendants and intervenor-defendants moved

to dismiss the case based on EPA’s silvicultural rule

(40 C.F.R. §122.27) and stormwater rule (40 C.F_R.

§122.26) whereby logging roads were excluded from

CWA permitting requirements. EPA filed an amicus

brief in support of the motion to dismiss, explaining

6

that stormwater runoff from logging roads was

not the type of discharge Congress had directed

be subject to permitting (United States Amicus Brief,

Northwest Environmental Defense Center v. Brown,

3:06-cv-01270 filed Dec. 6, 2006, C.R. 44).

As EPA explained in its amicus brief, part of the

1987 amendments to the CWA, Congress adopted a

two-phase approach to management of stormwater

discharges.

During the first phase, the CWA directed that

five specific types of stormwater discharges were to

be automatically subject to permitting (“Phase I”) (33

U.S.C. §1342(pX2) & (3)).

With respect to the other stormwater discharges,

Congress directed that EPA, in consultation with the

States, was to identify which of these other forms of

stormwater discharges existed and were not regulat-

ed under Phase I (33 U.S.C. §1342(pX2)). Once it

identified these various discharges, it was then to

identify which of these non-Phase I stormwater dis-

charges should be subject to regulation. (33 U.S.C.

§1342(p)\(2) & (5)). The non-Phase I discharges that

EPA determined were to be subject to permitting be-

came known as the Phase II discharge. The remain-

ing discharges were left to the States to manage.

In identifying the non-Phase I discharges pursu-

ant to 33 U.S.C. §1342(p)(5), EPA had to first define

and determine the scope of the ambiguous phrase

“discharge associated with industrial activity.” De-

fining this phrase was a critical step in fulfilling its

7

CWA obligations under 33 U.S.C. §1342(p)(5) & (6) to

identify the non-Phase I discharges.

EPA defined the phrase “associated with indus-

trial activity” as:

“(s)torm water discharge associated within

industrial activity means the discharge from

any conveyance that is used for collecting

and conveying storm water and that is di-

rectly related to manufacturing, pro-

cessing or raw materials storage areas

at an industrial plant. The term does

not include discharges from facilities or

activities excluded from the NPDES

program under this part 122.”

(40 C.F_R. §122.26(b)(14)) (emphasis added).

EPA established a three part test which required

there be: first, a direct relationship between the road

and the industrial activity; secondly, that the activity

be one of the specific activities identified; and, third,

that the discharge occur at a specific industrial plant

or facility. Neither the Trask Road nor the Sams

Down Road met any of these elements.

Further, EPA also interpreted the phrase as not

including activities that were excluded from NPDES

permitting pursuant to 40 C.F.R. §122. Included with-

in Part 122, were the road related activities described

in the silvicultural rule.

As part of its delegated authority to interpret the

CWA, EPA established the silvicultural rule as a

means of distinguishing which silvicultural activities

8

were to be “silvicultural point sources” and subject to

permitting (40 C.F.R. §122.27), from those “silvicul-

tural nonpoint sources” which were subject to state

management.

EPA defined the “silvicultural point sources” as:

“any discernible, confined and discrete con-

veyance related to rock crushing, gravel

washing, log sorting, or log storage facilities

which are operated in connection with silvi-

cultural activities and from which pollutants

are discharged into waters of the United

States.”

(40 C.FLR. §122.27(b)(1)).

EPA specifically referenced that the logging roads

were nonpoint sources in that the term silvicultural

point sources:

“does not include nonpoint source silvicul-

tural activities such as nursery operations,

site preparation, reforestation and subsequent

cultural treatment, thinning, prescribed burn-

ing, pest and fire control, harvesting opera-

tions, surface drainage, or road construction

and maintenance from which there is natu-

ral runoff.”

(40 C.FLR. §122.27(bX1)).

In its amicus brief to the Ninth Circuit, the

United States again pointed out that the silvicul-

tural nonpoint sources were to be controlled through

the respective states’ nonpoint source management

9

programs (33 U.S.C. §1329) rather than the NPDES

permitting program (United States Amicus Brief,

Northwest Environmental Defense Center v. Brown,

No. 07-35266 (9th Cir. Filed Nov. 15, 2007) C.R. 42).

In rejecting EPA’s interpretation, the Ninth

Circuit concluded that EPA’s rules were invalid to the

extent they served to exclude logging road storm-

water discharges from the NPDES permitting re-

quirements -— a decision that gave inadequate

deference to EPA's interpretation of the CWA provi-

sions relating to “associated with industrial activity.”

The Ninth Circuit ignored that Congress express-

ly meant for EPA to have substantial discretion in

administering the CWA, entrusting EPA with discre-

tion in defining specific terms (National Wildlife

Federation v. Gorsuch, 693 F.2d 156, 166-67, 171-75

(C.A.D.C. 1982)). Included within this discretion was

the authority to define which stormwater discharges

were associated with industrial activities.

Notwithstanding that EPA’s interpretation of the

phrase “discharge associated with industrial activity”

was reasonable, and one EPA was required to make

in order to fulfill its obligations under 33 U.S.C.

§1342(p)5), the Ninth Circuit simply reached another

conclusion, namely that the EPA’s interpretation was

not consistent with the Congressional] intent. The

Ninth Circuit ignored that when, as in this situation,

Congress has delegated to the agency the authority to

implement a statute and the agency has interpreted

provisions thereof through rulemaking, the court

10

should not substitute its own construction of a statu-

tory provision for a reasonable interpretation made

by the administrator of the agency (Chevron v. Natu-

ral Res. Def. Council, 467 U.S. 837, 844 (1984)).

Rather than defer to EPA's interpretation of the

CWA, the Ninth Circuit concluded that a logging road

is associated with an industrial activity and therefore

any stormwater discharge along the logging road

represented a “discharge associated with an indus-

trial activity.” It failed to recognize EPA’s reasonable

interpretation that activities covered by the silvicul-

tural rule were not “discharges associated with an

industrial activity.”

The Ninth Circuit erred not only in rejecting the

silvicultural rule, it also erred in failing to defer to

EPA’s long-standing interpretation of the phrase

“associated with industrial activity.” Rather than

recognize EPA’s interpretation of what discharges

were subject to Phase I, the Ninth Circuit simply

substituted its judgment and cast aside EPA's inter-

pretation that stormwater discharges from logging

operations were excluded from permitting.

The Ninth Circuit also ignored that under EPA’s

interpretation, the discharge must be not only from a

conveyance that is used to collect and convey storm-

water, it must also be “directly related to manufac-

turing, processing or raw materials storage areas at

an industrial plant.” (40 C.F.R. §122.26(b)(14))

(emphasis added).

11

The decision that these two remote logging roads,

of which at least one is owned by a local government,

are exclusively or primarily dedicated for use by an

industrial facility has swept into the NPDES permit-

ting process (33 U.S.C. §1342) not only private roads

that were excluded under the silvicultural rule, but

also large numbers of public roads owned and man-

aged by the various counties.

The Petitioners have set forth in their respective

briefs compelling legal reasons for granting certiorari

with respect to the Ninth Circuit’s departure from the

EPA’s and the State of Oregon’s long-standing inter-

pretations of the stormwater provisions of the CWA.

The Counties will not restate these arguments,

rather, the Counties instead explain why redefining

roads utilized primarily for forestry purposes as roads

associated with an industrial activity is overly broad

and imposes a significant burden on the Counties.

In setting aside the long-established method of

addressing stormwater discharges from silvicultural

practices, the Ninth Circuit imposed a significant cost

prohibitive burden on the Counties. As discussed

supra, the financial burden to the Oregon Counties

alone in meeting this new permitting burden cost is

estimated to be $56,000,000 at a conservative mini-

mum. The Counties can only meet this burden if they

divert funding from other essential services to meet

this new permitting requirement.

12

The Ninth Circuit erred in failing to defer to

EPA's and the State of Oregon’s long-standing inter-

pretation of the CWA relative to management of

stormwater discharges from logging roads. As a result

of this error, the Ninth Circuit has upset the estab-

lished CWA management programs and imposed a

substantial burden on otherwise financially strapped

counties.

¢

ARGUMENT

The Ninth Circuit’s decision is extremely broad

reaching and will result in unwarranted bur-

dens on the Counties.

The Ninth Circuit’s decision that NPDES permits

are required for the ditches and culverts associated

with roads that are primarily logging roads has far-

reaching implications on the Counties.

While the Ninth Circuit appears to have assumed

that these primarily logging roads are built and

maintained solely by the logging companies or by the

operators of an industrial facility (See Northwest

Environmental Defense Center v. Brown at p. 1084),

this assumption is clearly in error. If the Ninth

Circuit had had the benefit of public review and

comment of the rule making procedures of the Ad-

ministrative Procedures Act, it would have found that

large numbers of the logging roads in Oregon —

if not the majority — that fall within the Ninth Cir-

cuit’s definition of “primary logging roads” are owned,

13

built and maintained by the Oregon Counties, the

State of Oregon, United States Forest Service or the

United States Bureau of Land Management.

Similarly, throughout the United States the

various counties own and maintain a large number of

roads that also fall within the Ninth Circuit’s classifi-

cation of primarily logging roads as roads that pro-

vide access to logging sites (id. at p. 1084).

Review is warranted by this Court in that the

Ninth Circuit’s holding that stormwater runoff from

primarily logging roads qualifies as Phase I discharge

has established a new and unprecedented burden

requiring NPDES permitting for County roads that

are used for logging purposes. This drastic shift in the

manner in which the CWA is implemented alone

warrants this Court’s review.

Further, review is also warranted because the

Ninth Circuit’s holding has created the potential for

local governments to be subject to CWA liability when

their road systems are utilized by private or other

public entities in exercising their rights to utilize the

county road systems.

If the Ninth Circuit opinion is left in place,

County, State and Federal officials will be inundated

with an enormous workload in order to obtain

NPDES permits for ditches and culverts which have

insignificant environmental impacts.

The practical effect of the requirement to im-

pose permitting requirements on logging roads would

14

impose an extensive and cost prohibitive permitting and

monitoring requirement upon the Counties and other

private parties — a burden they can ill afford without

sacrificing funding for other essential services.

To illustrate the magnitude of the problem cre-

ated by the Ninth Circuit’s decision, the Association

of Oregon Counties surveyed the various County

Road Supervisors in Oregon to determine the number

of County roads that would be defined as “primarily

logging roads” as that phrase was used in the Ninth

Circuit’s decision. (Association of Oregon Counties,

et al., Amicus Brief, Northwest Environmental De-

fense Center v. Brown, No. 07-35266, C.R. 95 (9th Cir.

Filed Oct. 15, 2010)).

The County Road Supervisors identified that the

county road systems within Oregon contain approxi-

mately 4,800 miles of roads that fall within what the

Ninth Circuit defined as “primarily logging roads.”

(Association of Oregon Counties, et al.; Amicus Brief,

Northwest Environmental Defense Center v. Brown,

No. 07-35266, C.R. 95 (9th Cir. Filed Oct. 15, 2010)).

Associated with these primary logging roads are

approximately 20,000 cross culverts (culverts that

cross under the primary logging road). Not included

within this analysis are the culverts that do not cross

under these “primary logging roads” but cross con-

necting side roads or private access driveways. (Asso-

ciation of Oregon Counties, et al.; Amicus Brief,

Northwest Environmental Defense Center v. Brown,

No. 07-35266, C.R. 95 (9th Cir. Filed Oct. 15, 2010)).

15

In addition to the “primary logging roads” identi-

fied by the County Road Supervisors, within the 2.1

million acres managed by the Bureau of Land Man-

agement (“BLM”) the Association of O & C Counties

also identified the number of roads and culverts. This

analysis identified an additional 16,817 miles of

“primary logging roads” along with 500 culverts that

are larger than 80 inches in diameter and an addi-

tional 40,000 culverts of less than 80 inches in diame-

ter. (Association of Oregon Counties, et al.; Amicus

Brief, Northwest Environmental Defense Center uv.

Brown, No. 07-35266, C.R. 95 (9th Cir. Filed Oct. 15,

2010)).

The Oregon Department of Transportation in its

2009 Oregon Mileage Report also identified that there

were 6,612 miles of “public” United States Forest

Service roads which would mostly be logging roads.

(ODOT 2009 Mileage Report, p. 163; at (http://www.

oregon.gov/ODOT/TD/TDATA/rics/PublicRoadsInventory.

shtml#Oregon_Mileage_Report.)

While a separate NPDES permitting system for

the “primary logging roads” does not currently exist,

the magnitude of the problem facing the Counties can

be quantified if one assumes that the same appli-

cation requirements as are currently required for

stormwater discharges associated with industrial

activity (See 40 C.F.R. §122.26(c)) will be imposed for

these “primary logging roads.”

Under 40 C.F.R. §122.26(c), each culvert and

ditch that discharges stormwater will require a

16

NPDES permit application that includes at a mini-

mum:

(a)

(b)

(c)

(d)

(e)

a site map with topography, drainage struc-

tures, underground springs (40 C.FR.

§122.26(c)(1)GXA));

an estimate of impervious surfaces and the

total area drained by each outfall, along with

a narrative of the past activities (40 C.F.R.

§122.26(c)(1)(i)(B));

certifications that each of the outfalls has

been tested for non stormwater discharge (40

C.F_R. §122.26(c)(1)(iXC));

information regarding significant spills of

toxic or hazardous pollutants at the facility

(40 C.F.R. §122.26(c)(1)(i)(D)); and,

sample data collected during storm events

from each of the outfalls (40 C.FR.

§122.26(c)(1)(i(E)).

The requirement of subpart (b) that the owner of

the primary logging road provide a narrative on past

activities that have occurred within the drainage

standing alone imposes an impossible burden on the

Counties since these past activities were often under-

taken by adjacent landowners or operators. If the

owner of the logging road is a county or other gov-

ernmental entity, it is being placed in the position of

collecting enormous amounts of data from the land-

owners or operators adjacent to its county road sys-

tem who have little incentive or requirement to

provide this data.

17

Based upon the number of miles of “primary

logging roads” identified by the various County Road

Supervisors, the Association of Oregon Counties’ road

engineer estimated that to obtain permits for all of

the cross culverts and roadway ditches associated

with just the 4,800 miles of “primary logging roads”

and their accompanying culverts under county juris-

diction, there would be a permitting cost to the Ore-

gon Counties of approximately $56,000,000 (20,000

culverts x 40 hours staff time per permit x $70 per

hour = $56,000,000) (Association of Oregon Counties,

et al.; Amicus Brief, Northwest Environmental De-

fense Center v. Brown, No. 07-35266, C.R. 95 (9th Cir.

Filed Oct. 15, 2010)). One can assume that the impact

of the Ninth Circuit’s ruling will be far greater once

the “primary logging road” permitting requirement is

applied to the forest counties in other states.

Not included within this $56,000,000 estimate is

the required pre-application sampling of each outfall

during a stormwater runoff event as required under

40 C.F_R. §122.26(c\1)i)(E) — a stormwater sampling

program that will be a staggering burden in its own

right.

The data collection provisions of 40 C.F.R.

§122.26(cX 1iXE) require:

“[qjuantitative data based on samples col-

lected during storm events and collected

in accordance with 122.21 of this part from

all outfalls containing a storm water dis-

charge associated with industrial activity for

the following parameters:

18

* * *

(3) Oil and grease, pH, BOD5, COD, TSS,

total phosphorous, total Kjeldahl nitrogen,

and nitrate plus nitrite nitrogen;

* * *

(5) Flow measurements or estimates of the

flow rate, and the total amount of discharge

for the storm event(s) sampled, and the

method of flow measurement or estimation;

(6) The date and duration (in hours) of the

storm event(s) sampled, rainfall measure-

ments or estimates of the storm event (in

inches) which generated the sampled runoff

and the duration between the storm event

sampled and the end of the previous meas-

urable (greater than 0.1 inch rainfall) storm

event (in hours).”

(emphasis added).

As with the requirement under 40 C.F.R.

§122.26(cX1XiXB) to obtain data as to the land prac-

tices in the drainage area of each culvert or ditch, to

obtain this storm event data for each culvert or ditch

outfall along the 4,800 miles of “primary logging

roads” as well as for the accompanying 20,000 cross

culverts imposes a staggering burden on the Oregon

Counties. Likewise, for the Federal agencies to obtain

the data for the Bureau of Land Management’s

16,817 miles of roads and the approximate 6,612

miles of Forest Service roads is an equally staggering

financial burden.

19

Increasing the complexity of the issue is the

unigue checkerboard of intermingled private and

public land ownerships in Oregon resulting from the

reciprocal rights-of-way associated with the 1937

O&C Act lands managed by the Bureau of Land

Management. Access across this checkerboard is

provided through reciprocal right-of-way agreements

that provide the United States and the private land-

owners with the right to use and construct logging

roads on each other’s property. (See 43 C.F_R. §2812 et

seq.). As a result of these road agreements, numerous

landowners have rights to use a road that they do not

directly control, likewise they own roads to which

other landowners have rights of use.

The “primary logging roads” covered by these

reciprocal agreements are not under one single par-

ty’s control and often involve numerous operators

utilizing the same road concurrently. Contrary to the

Ninth Circuit’s assumption that the “primary logging

roads” are built and maintained by the logging com-

panies, such is not the case, for there are hundreds,

perhaps thousands, of intermingled private owners

within the O & C checkerboard, all of whom share the

same interconnecting system of “primary logging

roads.” This interconnecting system of reciprocal

rights of way are, in most cases, not associated either

directly or indirectly with any specific industrial

facility.

The Ninth Circuit has simply miscomprehended

the nature of the road system that is utilized for

silvicultural purposes. Rather than defer to the

20

established programs for controlling the stormwater

discharges associated with silvicultural activities, the

Ninth Circuit imposed an entirely new interpretation

of the CWA ~ an interpretation that imposes a stag-

gering burden on the Counties. This burden is not

warranted given the existing programs to manage

stormwater discharges and runoff. To meet this

burden, the Counties will need to redirect funding

from other essential services to fund this new and

unwarranted permitting process.

¢

CONCLUSION

For the foregoing reasons, the petitions for writ

of certiorari should be granted.

Respectfully submitted,

RONALD S. YOCKIM

Counsel of Record

LAW OFFICES OF

RONALD S. YOCKIM

430 S.E. Main Street

Roseburg, OR 97470

(541) 957-5900

ryockim@cmspan.net

Counsel for Amici Curiae National Association

of Counties, Oregon Association of Counties,

Idaho Association of Counties, Association of

Oregon Counties, and Douglas County

October 2011