Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

SECORD Nos. 11-338, 11-347

AND

BRIETS

OFFICE OF THE CLERK

3n he |

Supreme Court of the Anited States

S

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

+

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

°

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

o

BRIEF AMICUS CURIAE OF THE RUFFED

GROUSE SOCIETY IN SUPPORT OF PETITIONERS

4

RYAN L. WooDY

Counsel of Record

MATTHIESEN, WICKERT &

LEHRER, S.C.

1111 E. Sumner Street

Hartford, Wisconsin 53027

(262) 673-7850

rwoody@mw!l-law.com

Attorneys for Amicus Curiae

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

OR CALL COLLECT (402) 342-2831 “

rn oe

i

TABLE OF CONTENTS

Page

AMICUS CURIAE BRIEF OF THE RUFFED

STII TE incctccincindesisnininndiiidinandabinabionanianese 1

IDENTITY AND INTERESTS OF AMICUS CU-

STII idsiiihidicnetaesieeldeegituliisasiatiandaaanaiiegsnniiiacdiiideaensiaiinleanbesion 1

STATEMENT OF THE CASE.......0...........ceeecceeeeeees

STATEMENT OF INTEREST ........................ eee. 1

SUMMARY OF THE ARGUMENT...................... 4

EET eicincniidindnihniicadieidiiinibanatdubuionnsiiaiennnianieie 6

I. The Decision Below Threatens The Con-

tinued Viability Of Early Successional

eS inniciaisvncitdunsnneninnianiapnaddiesesesdes 6

A. Wildlife Dependent Upon Early Suc-

cessional Forest Habitat Are Already

Threatened By Declining Habitat....... 6

B. Silvicultural And Active Management

Practices Have Been Shown To In-

crease The Habitat And Population

Size Of Early Successional Species..... 9

C. Requiring Npdes Stormwater Permits

For Forest Roads Will Have Adverse

Economic Effects On Landowners, In-

dustry, And State Agencies And Will

Place Significant New Barriers Upon

Active Forest Management ................. 12

il

TABLE OF CONTENTS — Continued

Page

I]. The Decision Below Ignores An Express

Congressional Limitation Upon Judicial

Review, Which, If Upheld, Would Result

ED TRSRRNEY CIGD occccccscccesessesincencsecossnsinn 17

A. The Court Of Appeals Did, In Fact, In-

validate The EPA’s Silvicultural Rule.... 17

B. The “Arising After” Exception To 33

U.S.C. § 1369(b)(1) Does Not Apply Be-

I ncocenssrasencesesuctennsiiesineninmniniath 19

C. The Decision Below Would Result In

Regulatory Uncertainty If Upheld...... 24

CE eG re cccecrccnscesssssssenssscnnsemneneiniianaiaian 25

il

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905,

a 23

Chase Bank USA, N.A. v. McCoy, 131 S. Ct.

ee es GR BE WP GED cccnccccoccscccsscescsoccsensuses 23

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561,

127 S. Ct. 1423, 167 L. Ed. 2d 295 (2007)........ 18, 19

Envtl. Def. Ctr, Inc. v. U.S. E.PA., 344 F.3d

I esinl 21, 22

Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 266

F. Supp. 2d 1101 (N.D. Cal. 2003) ................0...2..... 22

Nat'l Min. Ass’n v. U.S. Dept. of Interior, 70

EE, ME, ME Dntrccacccncsncsesccessossnocessccsesees 19

Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063

TS ae ee 4,17, 20

Paralyzed Veterans of Am. v. D.C. Arena L.P,

ER 5 EE 21

United States v. Duke Energy Corp., 411 F.3d

i sisiicesuseduncoues 19

FEDERAL STATUTES

Clean Water Act

a 2

TE a 2

a 25

i dicnerocnccinniatibinineaneninccescesscosens 25

iv

TABLE OF AUTHORITIES

Page

Be as © ID vitinicnsvcienscienisanensniennaniiunisiiiiianianaia 4

ee CAs WS CIID ceccnntonccsensnnsncsnsiennmssingiinnninis 3, 4, 25

Se : OF ED aitncestnccescscintisnemenmmnintessssiieniingal 20

ee es 1 ID cececcecevcsnsccvnnssnnintinceidncnionnnciaten 20

ee Rs Oe IEE ccinsennisesnnnsccsinimenicininsnnsiinibaiiuniasiiaial 20

33 U.S.C. § 1LSGO(DK1) .................ccceeseeee 19, 20, 21, 26

33 U.S.C. § 1369(b)(1)(E)-(F) «2.2.0... cccceeeeseseeeeeeeeee 21

Se SPs IED ketcecnatnnscecsnsennescssiemmnnininnmmenaiail 20

REGULATIONS

Se Oe Ie ccicercnctenninccstninseincssenstesiiiniiisainaibiaialuiainimeiiiinn 4

SP Ge SBT cnreccciccsnnccssscsnciosmnicnneninnin 3,21

OTHER AUTHORITIES

GE FOG. TE, GR GG co ccescccctcncsnsccnstictincstncnncnnmnsceseenes 3

Charles B. Halpern and Thomas A. Spies,

Plant Species Diversity in Natural and Man-

aged Forests of the Pacific Northwest, Eco-

LOGICAL APPLICATIONS, Vol. 5, No. 4, p. 914

SE Fire icacistacasnesinssstensntnpntnendnninginbesmmeiinicieniintet 10

D.R. Dessecker and D.G. McAuley, /mportance

of early successional habitat to ruffed grouse

and American woodcock. WILDLIFE SOCIETY

BULLETIN, 29:456-465 (2001).................cccscecsceeees 8, 11

Vv

TABLE OF AUTHORITIES

Page

D. Stevens, Report: Estimated cost impacts of

ruling change for forest roads in the state of

Maine (2011), available at: http://nafoalliance.

org/wp-content/uploads/Road-Permit-Costs-in-

Maine-Northeast-Lake-States.....................0.055 15, 16

Erik G. Endrulat, Scott R. McWilliams and

Brian C. Tefft, Habitat Selection and Home

Range Size of Ruffed Grouse in Rhode Island,

NORTHEASTERN NATURALIST, Vol. 12, No. 4,

i Se CI cineca niaedehetiaceichidainaindametininasdalanieiii 9

Frank R. Thompson, UI, William D. Dijak,

Thomas G. Kulowiec and David A. Hamilton,

Breeding Bird Populations in Missouri Ozark

Forests with and without Clearcutting, THE

JOURNAL OF WILDLIFE MANAGEMENT, Vol. 56,

Bg Bs TP ing TP cececcncpeseniinessmnntasencsentsnceseane 11

Frederick Cubbage and Robert Abt, Potential

Administrative and Economic Impacts of

NPDES Permit Requirements for Forest

Roads in the South (Dec. 7, 2011) available

at: http://nafoalliance.org/wp-content/uploads/

Road-Permit-Costs-in-South1.pdf .............. 14, 15,16

George G. Ice, Erik Schilling and Jeff Vowell,

Trends for Forestry Best Management Prac-

tices Implementation, Journal of Forestry

(Sept. 2010) available at: http://nafoalliance.org/

wp-content/uploads/JOF-9-10-BMP. pdf ................. 14

vi

TABLE OF AUTHORITIES

Jeffrey D. Brawn, Scott K. Robinson and Frank

R. Thompson III, The Role of Disturbance in

the Ecology and Conservation of Birds, AN-

NUAL REVIEW OF ECOLOGY AND SYSTEMATICS,

Pa Ge Se Pi crccesesesssnssenssnenestapneninocesseninanmenseenes

John A. Litvaitis, Importance of Early Succes-

sional Habitats to Mammals in Eastern For-

ests, WILDLIFE SOCIETY BULLETIN, Vol. 29, No.

SS Re

John M. Hagan, Peter S. McKinley, Amy L.

Meehan, Stacie L. Grove, Diversity and

Abundance of Landbirds in a Northeastern

Industrial Forest, THE JOURNAL OF WILDLIFE

MANAGEMENT, Vol. 61, No. 3, pp. 718-735

Sy: Ge Peenesecseccnessmmecnsnennnupennmimunputmasenanaiois

Mark A. Ryan, Ninth Circuit Upends the CWA

Applecart, NAT. RESOURCES & ENvV’T, WINTER

EE GIB RD ccecccscesecsversesennscnnnssenansnnnnsenntienennmeniosens

Margaret K. Trani, Robert T. Brooks, Thomas

L. Schmidt, Victor A. Rudis and Christine M.

Gabbard, Patterns and Trends of Early Suc-

cessional Forests in the Eastern United

States, WILDLIFE SOCIETY BULLETIN, Vol. 29,

No. 2, p. 413 (Summer, 2001) .............eec ee eeee eee

Michael J. Wallendorf, Paul A. Porneluzi,

Wendy K. Gram, Richard L. Clawson and

John Faaborg, Bird Response to Clear Cut-

ting in Missouri Ozark Forests, THE JOURNAL

OF WILDLIFE MANAGEMENT, Vol. 71, No. 6,

“~~ Sn

Page

vil

TABLE OF AUTHORITIES

National Alliance of Forest Owners, Working

Forests, available at: http://nafoalliance.org/

policy-issues/working-forests/..............:00c0eeseeeee

Richard H. Yahner, Effects of Habitat Patchi-

ness Created by a Ruffed Grouse Manage-

ment Plan on Breeding Bird Communities,

AMERICAN MIDLAND NATURALIST, Vol. 111, No.

2, p. 409 (Apr., 1984) ......ccecccccscsseseseseseseeeeeeesees

Richard H. Yahner, Responses of Bird Commu-

nities to Early Successional Habitat in a

Managed Landscape, THE WILSON BULLETIN,

Vol. 115, No. 3, p. 292 (Sep., 2003) ....................

Robert A. Askins, Sustaining Biological Diver-

sity in Early Successional Communities: The

Challenge of Managing Unpopular Habitat,

WILDLIFE SOCIETY BULLETIN, Vol. 29, No. 2

SR, Tres Oi GE cctcencenecsscecensnssvisseesenssseves

Ronald M. Levin, Statutory Time Limits on

Judicial Review of Rules: Verkuil Revisited,

32 Cardozo L. Rev. 2203, 2204 (2011)................

Robert T. Brooks, Abundance, distribution,

trends and ownership patterns of early suc-

cessional forests in the northeastern United

States, FOREST ECOLOGY AND MANAGEMENT

185 (2003), available at: http://www.fs.fed.us/ne/

newtown_square/publications/other_publishers/

OCR/ne_2003_brooks001.pdf.............c.eceeeeeeeeeee

Page

—_— 10

vill

TABLE OF AUTHORITIES

Page

Todd M. Fearer, F. Stauffer, Relationship of

Ruffed Grouse (Bonasa umbellus) Home

Range Size to Landscape Characteristics,

AMERICAN MIDLAND NATURALIST, Vol. 150, No.

Big i re ie i iceervicictcinctntinspnanidsantiananenianssccncnsced 8

T.R. Cooper and K. Parker, American woodcock

population status, 2012 US FISH AND WILD-

LIFE SERVICE, Laurel, MD, available at:

http//www.fws.gov/migratorybirds/NewReports

Publications/PopulationStatus/Woodcock/2012

%20American%20 Woodcock%20Population%20

IE acnteninccenincotinnnttintmtinsnessapecnenenncess 8

US Fish and Wildlife Service Breeding Bird

Survey Database available at: http://www.

mbr-pwrc.usgs.gov/bbs/bbs. html ...............cccceeeeeeeeeee 7

US Forest Service Forest Inventory and Analy-

sis Database, available at: http://fia.fs.fed.us/

tools-data/other/default.asp...................:ccceeeeeeeeees 6, 7

USDA Forest Service, The Process Predicament:

How Statutory, Regulatory, and Administra-

tive Factors Affect National Forest Manage-

ment, p. 5 (2002) available at: http://www.fs.fed.

us/projects/documents/Process-Predicament.pdf....... 13

W.B. Smith, J.S. Vissage, D.R. Darr and R:S.

Sheffield, Forest Resources of the United

States, 1997: General Technical Report NC-

219, US Department of Agriculture, Forest

Service, North Central Research Station

Seer eschinrceranisniettennciiaricnnieaisiniiansineenesicinnasationieniaancinibahsabcimatiienianes 13

ix

TABLE OF AUTHORITIES

Page

W.C. Hunter, D.A. Buehler, R.A. Canterbury,

J.L. Confer and P.B. Hamel, Conservation of

Disturbance-dependent Birds in Eastern

North America. WILDLIFE SOCIETY BULLETIN,

Vol. 29 pp. 440-455 (2001)........... ccc cee cece eeeeeeeeeeeeeeeeees 7

1

AMICUS CURIAE BRIEF OF THE

RUFFED GROUSE SOCIETY

Pursuant to Supreme Court Rule 37.2 the Ruffed

Grouse Society (sometimes hereinafter “the Society”)

respectfully submits this brief on behalf of itself and

its members, in support of Petitioners as amicus

curiae.’

4

IDENTITY AND INTERESTS

OF AMICUS CURIAE

The Society, established in 1961, has 15,476

members across the United States and Canada,

representing some 113 local chapters.’ The Society is

the only non-profit wildlife conservation organization

dedicated to promoting conditions favorable for ruffed

grouse, american woodcock, 43 species of neo-tropical

songbirds, and other associated early forest wildlife in

order to sustain our hunting tradition and outdoor

heritage.

Proper management of the public and private

forests is critical to the Society and the wildlife for

' The parties have consented to the filing of this amicus

curiae brief by filing blanket consents with this Court. See id.

Pursuant to Supreme Court Rule 37.6, no party, or counsel for a

party, made a monetary contribution intended to fund the

preparation or submission of the brief. No one other than the

amicus, their members, and their counsel made such a contribu-

tion.

* http://www.ruffedgrousesociety.org/.

2

which it advocates. The Society employs five regional

biologists and a Director of Conservation Policy who

provide scientific guidance and comments on state

and federal rulemaking, programmatic management

plans and site-specific projects. The Society’s Man-

agement Area Program, initiated in 1985, provides

technical and financial assistance to public land

management agencies to assist in the conservation of

early successional forest habitat. There are currently

over 600 projects in 28 states, encompassing more

than 500,000 acres. Also, through its Coverts program,

the Society funds research and provides workshops,

assistance and education to private landowners cover-

ing millions of acres of private forests. The Society

and its members have a direct interest in the outcome

of this case because a shift in the legal and regulatory

conditions will impact the access and habitat mainte-

nance that the Society supports.

°

STATEMENT OF THE CASE

The Clean Water Act (the “Act”) prohibits the

discharge of a “pollutant” into waters of the United

States from a “point source” without a National

Pollutant Discharge Elimination System (“NPDES”)

permit.’ The Act defines a “point source” as “any dis-

cernible, confined and discrete conveyance, including

* 33 U.S.C. §§ 1311(a), 1342.

3

but not limited to any pipe, ditch, channel, tunnel,

[or] conduit ... from which pollutants are or may be

discharged.” The Act expressly exempts “agricultural

stormwater discharges and return flows from irrigat-

ed agriculture” from the definition of “point source.”

It does not define “agricultural stormwater” or “non-

point sources.”

In 1976 the EPA initially promulgated the Silvi-

cultural Rule, which defines a class of activities as

silvicultural point sources, and interprets nonpoint

source silvicultural activities as outside the NPDES

program.’ It limits silvicultural point sources to “rock

crushing, gravel washing, log sorting, or log storage

facilities which are operated in connection with

silvicultural activities and from which pollutants are

discharged into waters of the United States.” Not

included as a point source are “non-point source

silvicultural activities such as nursery operations,

site preparation, reforestation and subsequent cul-

tural treatment, thinning, prescribed burning, pest

and fire control, harvesting operations, surface drain-

age, or road construction and maintenance from

which there is natural runoff.”

This case began when the Respondent filed suit

against the Oregon Board of Forestry, an Oregon

* 33 U.S.C. § 1362(14).

| 40 C.F-R. § 122.27(bx 1); see also 45 Fed. Reg. at 33,446-47.

-—

’ Id. (emphasis added).

4

forester, and various private entities that had been

involved in timber harvesting operations. The suit

was brought as a Clean Water Act citizen suit arguing

that the Petitioners failed to obtain a NPDES permit

for channeled stormwater runoff from certain forest

access roads as required by 33 U.S.C. § 1362(p). The

Petitioners responded by claiming the Silviculture

Rule, established in 40 C.F.R. 122.27, exempted those

logging roads from the NPDES permit requirement.

The district court agreed that the Rule applied and

dismissed the complaint on that basis.

On appeal, the Ninth Circuit Court of Appeals

reversed finding that because the Silviculture Rule

exempted stormwater and other natural runoff that

was controlled, channeled, or discretely conveyed, the

Act’s definition of a point source in § 1362(14) and the

EPA’s Rule were irreconcilable.* Therefore, the Ninth

Circuit invalidated the Silviculture Rule holding that

the EPA did not have the authority to override the

will of Congress as unambiguously expressed in

§ 1362(14).°

¢

SUMMARY OF THE ARGUMENT

1. The decision below endangers the viability of

ruffed grouse, American woodcock and other associated

* Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1078-80 (9th

Cir. 2011).

* Id.

5

wildlife by creating serious economic disincentives for

the creation of young forest habitat. If upheld, the

decision will negatively affect the ability of the ami-

cus and its public and private partners to continue

active forest management in order to create early

successional forest habitat.

2. The court of appeals’s willingness to enter-

tain this challenge to the Siliviculture Rule is an

example of judicial overreaching. Congress, in pass-

ing the Clean Water Act, expressly limited review of

EPA administrative rulemaking to 120 days from

promulgation. That period long passed as it relates to

the 36-year-old Silviculture Rule. In addition, Con-

gress further specified that any challenges to such

EPA rules be brought as an original action in the

circuit court of appeals. Despite the passage of time

and the incorrect forum, the court of appeals allowed

a private interest group to resurrect a time-barred

challenge to this EPA rule in the context of a citizen

enforcement action. The court of appeals was able to

arrive at the merits by declaring an ambiguity in the

Rule created only by a subsequent amicus brief filed

by the United States. This Court should reverse the

judgment, because the court of appeals ignored clear

Congressional limitations on its judicial review and

because such a precedent will create regulatory un-

certainty and place any number of longstanding

exemptions in jeopardy.

6

ARGUMENT

I. THE DECISION BELOW THREATENS

THE CONTINUED VIABILITY OF EARLY-

SUCCESSIONAL FOREST SPECIES.

A. Wildlife Dependent Upon Early Succes-

sional Habitat Are Already Threatened

By Declining Habitat.

By its nature, early successional or young forest

is ephemeral. Currently, early successional habitat

and its dependent species are in decline. Early suc-

cessional forest is defined by an open leaf canopy,

which allows sufficient sunlight penetration to the

forest floor to support the growth of certain tree,

shrub and grass species that cannot survive in a

mature, closed canopy forest. Furthermore, early

successional animal species find food and shelter

among the young shrubs and saplings that thrive in

recently harvested areas. In order to sustain the full

array of forest wildlife, we must sustain the full array

of forest habitats; very young forests, very old forests,

and all ages in between.

Data from the USDA-Forest Service demonstrates

the extreme decline of the availability of young forest

habitat on federal forest lands.” Throughout the north-

eastern and northcentral United States, young forest

habitats have decreased by 45% over the past 25-

30 years despite the fact that total forest land has

US Forest Service Forest Inventory and Analysis Data-

base, available at: http-//fia.fs.fed.us/tools-data/other/default.asp.

7

increased by 5%."' In virtually every region of eastern

North America the amount of open habitat has dimin-

ished.” Habitats that have declined in area by more

than 98% include grassland, savanna, and shrubland

communities.” Early successional habitat consisting

of seedling-sapling stands now represent the smallest

portion of forest lands in northeastern (e.g., Massa-

chusetts: 4%) and north-central (e.g., Illinois: 3%)

states.”

As young forest land diminishes, so too does the

wildlife that it feeds and shelters. Many bird species

that depend upon young forest habitats are experi-

encing dramatic population declines due to the loss of

these habitats.” Disconcertingly, since 1966, 53% of

the bird species that breed in young forest habitats

have declined.” In February 2007, the American Bird

-

* Robert A. Askins, Sustaining Biological Diversity in Early

Successional Communities: The Challenge of Managing Unpopu-

lar Habitat, Wildlife Society Bulletin, Vol. 29, No. 2 (Summer,

2001), p. 407.

ae

* John A. Litvaitis, Importance of Early Successional

Habitats to Mammals in Eastern Forests, Wildlife Society

Bulletin, Vol. 29, No. 2 (Summer, 2001), p. 467.

'* W.C. Hunter, D.A. Buehler, R.A. Canterbury, J.L. Confer

and P.B. Hamel, Conservation of Disturbance-dependent Birds

in Eastern North America. Wildhfe Society Bulletin, Vol. 29

pp. 440-455 (2001).

’° US Fish and Wildlife Service Breeding Bird Survey Data-

base available at: http://www.mbr-pwrc.usgs.gov/bbs/bbs. html.

8

Conservancy classified early successional, deciduous

forest habitat in the eastern United States as one of

the nation’s 20 most threatened bird habitats. Birds

of young forest habitats in the eastern United States

that are currently federally listed under the Endan-

gered Species Act include the Kirtland’s warbler

(Dendroica kirtlandii) and black-capped vireo (Vireo

atricapilla) and the Florida scrub jay (Aphelocoma

coerulescens). Game birds like the ruffed grouse

(Bonasa umbellus), the most popular upland game

bird throughout much of its range, the American

woodcock (Scolopax minor), and bobwhite quail

(Colinus virginianus) are experiencing similar popu-

lation declines. Approximately 92% of the range of the

ruffed grouse occurs in areas where aspen, an early

successional species, is an important component of

the forest.’ The loss of young forest habitat is the

predominant cause of these declines.” The high stem

densities that characterize early-successional habi-

tats all .w for ideal cover from predators and the lush

Todd M. Fearer, F. Stauffer, Relationship of Ruffed Grouse

(Bonasa umbellus) Home Range Size to Landscape Characteris-

tics. American Midland Naturalist, Vol. 150, No. 1, p. 104 (Jul.,

200335).

’ Daniel R. Dessecker and Daniel G. McAuley, Importance

uf early successional habitat to ruffed grouse and American

woodcock. Wildlife Society Bulletin 29:456-465 (2001); and T.R.

Cooper and K. Parker, American woodcock population status,

2V12 US Fish and Wildlife Service, Laurel, MD available at:

http: /www.fws.gov/migratorybirds/NewReportsPublications/Population

Status/Woodcock/2012%20American%20Woodcock%20Population%

20Status,% 202012. pdf.

9

herbaceous vegetation provides abundant forage for

many species of wildlife, enabling population growth

that cannot be obtained in mature forests.” To ensure

the survival of these species, young forest habitats

must be sustained on the landscape through silvicul-

tural treatments and other mechanical means im-

plemented at regular intervals. There are no other

viable management alternatives.

B. Silvicultural And Active Management

Practices Have Been Shown To Increase

The Habitat And Population Size Of

Early Successional Species.

Today, silvicultural treatments and other forms of

active forest management are the only means of

maintaining young forest habitats. Historically,

young forest land was created through ecological

disturbances of natural and human origin.” Prior to

European settlement, the disturbance regime in-

cluded fires of natural and Native American origin,

windstorms, drought, flooding, insect and disease

* Erik G. Endrulat, Scott R. McWilliams and Brian C. Tefft,

Habitat Selection and Home Range Size of Ruffed Grouse in

Rhode Island, Northeastern Naturalist, Vol. 12, No. 4, p. 411

(2005).

*” Jeffrey D. Brawn, Scott K. Robinson and Frank R.

Thompson III, The Role of Disturbance in the Ecology and

Conservation of Birds, Annual Review of Ecology and Systemat-

ics, Vol. 32 (2001).

10

outbreaks, and beaver (Castor canadensis) activity.”

Later, the abandonment of eastern farmlands during

westward expansion allowed the generation of young

forest habitat though plant succession. Environmen-

tal disturbances play a fundamental role in maintain-

ing the natural heterogeneity of vegetation and

vegetation age classes.” However, human activity

including extensive fire suppression, insecticide

application, and agricultural and urban expansion

has disrupted the natural disturbance cycle relied on

for young forest creation.” As these historical natural

disturbances have declined, the amount of young

forest habitat and its dependent wildlife species have

also declined.

Today, in lieu of a regime of natural disturbance,

silviculture and other forms of active forest manage-

ment have become the primary agents of early suc-

cessional forest creation.“ To ensure a continuous

“ Margaret K. Trani, Robert T. Brooks, Thomas L. Schmidt,

Victor A. Rudis and Christine M. Gabbard, Patterns and Trends

of Early Successional Forests in the Eastern United States,

Wildlife Society Bulletin, Vol. 29, No. 2, p. 413 (Summer, 2001).

~ Jeffrey D. Brawn, Scott K. Robinson and Frank R.

Thompson III, The Role of Disturbance in the Ecology and Con-

servation of Birds, Annual Review of Ecology and Systematics,

Vol. 32 (2001), p. 252.

- Charles B. Halpern and Thomas A. Spies, Plant Species

Diversity in Natural and Managed Forests of the Pacific North-

west, Ecological Applications, Vol. 5, No. 4, p. 914 (Nov., 1995).

“ Robert T. Brooks, Abundance, distribution, trends and

ownership patterns of early successional forests in the northeast-

ern United States, Forest Ecology and Management 185, 2003,

(Continued on following page)

11

supply of young forest habitat on the landscape,

commercial forest management practices must be

implemented approximately every ten years.” Timber

harvests implemented at regular intervals have

displayed a benefit to many early successional spe-

cies.” Even-aged treatments, which remove most of

the mature trees in a particular stand at the same

time, have been shown to be a key feature enabling

increased bird species diversity.” Specifically, in the

Missouri Ozark, the Kentucky warbler, black-and-

white warbler, and worm-eating warbler reached

their highest population densities in post-harvest

forests where even-age silvicultural treatments were

the primary form of silviculture.” In a long-term

available at: http//www.fs.fed.us/ne/newtown_square/publications/

other_publishers/OCR/ne_2003_brooks001.pdf.

* Daniel R. Dessecker and Daniel G. McAuley, Jmportance

of Early successional habitat to ruffed grouse and american

woodcock, Wildlife Society Bulletin, Vol. 29 (2), p. 460 (2001).

* John M. Hagan, Peter S. McKinley, Amy L. Meehan,

Stacie L. Grove, Diversity and Abundance of Landbirds in a

Northeastern Industrial Forest, The Journal of Wildlife Man-

agement, Vol. 61, No. 3, pp. 718-735 (Jul., 1997).

* Richard H. Yahner, Effects of Habitat Patchiness Created

by a Ruffed Grouse Management Plan on Breeding Bird Com-

munities, American Midland Naturalist, Vol. 111, No. 2, p. 409

(Apr., 1984).

* Frank R. Thompson, III, William D. Dijak, Thomas G.

Kulowiec and David A. Hamilton, Breeding Bird Populations in

Missouri Ozark Forests with and without Clearcutting, The

Journal of Wildlife Management, Vol. 56, No. 1, p. 28 (Jan.,

1992); and Michael J. Wallendorf, Paul A. Porneluzi, Wendy K.

Gram, Richard L. Clawson and John Faaborg, Bird Response to

(Continued on following page)

12

study of the effects of silvicultural practices on ruffed

grouse and other bird species, abundance and diversi-

ty increased in young forest stands that were recently

regenerated using these even-age treatments.” While

managing early successional forests undoubtedly

supports its attendant species, such active manage-

ment creates a mosaic of forest habitats that also

benefit mature forest species.” Ultimately, science-

based forest mana, ement, which includes silvicultur-

al treatments, is science-based wildlife management.

C. Requiring Npdes Stormwater Permits

For Forest Roads Will Have Adverse

Economic Effects On Landowners, In-

dustry, And State Agencies And Will

Place Significant New Barriers Upon

Active Forest Management.

Federally owned forests lands, like the National

Forests, managed by the United States Forest Ser-

vice, are bounded by dozens of federal laws and

regulations, which “ha[ve] kept the agency from

effectively addressing rapid declines in _ forest

Clear Cutting in Missouri Ozark Forests, The Journal of Wildlife

Management, Vol. 71, No. 6, p. 1903 (Aug., 2007).

* Richard H. Yahner, Responses of Bird Communities to

Early Successional Habitat in a Managed Landscape, The

Wilson Bulletin, Vol. 115, No. 3, p. 292 (Sep., 2003).

” Richard H. Yahner, Effects of Habitat Patchiness Created

by a Ruffed Grouse Management Plan on Breeding Bird Com-

munities, American Midland Naturalist, Vol. 111, No. 2, p. 409

(Apr., 1984).

13

health.” The Forest Service refers to this dilemma

“analysis paralysis” or “the process predicament.”

Unfortunately, the decision below would only cause

that predicament to spread to ali State, Tribal and

private forests.

Private forests account for over 427 million acres

owned by over 10 million private owners.” The briefs

filed by the commercial logging industry make it clear

that the permitting requirements will cause wide-

spread economic harm as their members are forced to

scale back their operations. However, the burden of

NPDES permitting requirements should not be taken

lightly and will not be borne exclusively by industry.

Non-industrial, small tract forest owners will be the

hardest hit under any potential expansion of NPDES

permitting of forest access roads. These small private

forest landowners collectively own 72% of the for-

estland in the eastern United States.“ They depend

on a return from forest products to provide an

** USDA Forest Service, The Process Predicament: How Stat-

utory, Regulatory, and Administrative Factors Affect National

Forest Management, p. 5 (2002) (http-//www.fs.fed.us/projects/

documents/Process-Predicament. pdf).

* Id. at p. 21.

* National Alliance of Forest Owners, Working Forests,

available at: http-//nafoalliance.org/policy-issues/working-forests/

— accessed on July 18, 2012.

“ W.B. Smith, J.S. Vissage, D.R. Darr and R.S. Sheffield,

Forest Resources of the United States, 1997: General Technical

Report NC-219, US Department of Agriculture, Forest Service,

North Central Research Station (2001).

14

economic incentive to actively manage their forests.

The estimated cost of an NPDES permit on a single

private landowner is $24,000.” In addition to requir-

ing Best Management Practices (“BMPs”), an NPDES

permit would require forest owners to obtain a

Stormwater Management Plan, prepared by a quali-

fied professional, specifying site-by-site controls and

detailing a mentoring and inspection routine.” Com-

pliance is mandatory and subject to both substantial

government enforcement penalties and private citizen

suits under the Clean Water Act. While managers of

industrial forest lands are well versed in federal-

and state-level permitting processes, non-industrial

private forest landowners have little knowledge of, or

expertise with these processes. Most small landown-

ers would need to hire or develop internal staff to

perform and write analyses or outside consultants to

prepare necessary documents.” Adding an NPDES

permit requirement for these small private forest

owners would provide a disincentive so significant

“ Frederick Cubbage and Robert Abt, Potential Administra-

tive and Economic Impacts of NPDES Permit Requirements for

Forest Roads in the South (Dec. 7, 2011) available at: http://

nafoalliance.org/wp-content/uploads/Road-Permit-Costs-in-South1.

pdf.

” See generally George G. Ice, Erik Schilling and Jeff

Vowell, Trends for Forestry Best Management Practices Imple-

mentation, Journal of Forestry (Sept. 2010) available at: http://

nafoalliance.org/wp-content/uploads/JOF-9-10-BMP pdf.

* Cubbage at 7.

15

that only the most savvy and wealthy owners could

possibly afford to continue operations.

NPDES permitting for stormwater runoff from

forest access roads will raise costs directly and indi-

rectly for those parties seeking permits, as well as the

state or federal agencies granting such permits. One

study, estimating the effects on thirteen southern

states, describes the increased costs to forest owners

as “punitive,” and coupled with existing property

taxes would at times exceed the value of annual

timber growth.” Aggregate costs for landowners,

procurement dealers, loggers, and forest products

firms in these states range from $420 million to $4

billion.” State agencies would see an increased cost of

as much as $1 million annually in small states

alone.” Indeed, one study concludes that small tract

private timberland owners would be the hardest hit

by any of the [permitting] scenarios and costs for

permitting on a per acre basis are negatively corre-

lated with parcel size.’ In Maine alone, Stevens

estimated the cost of initial permitting of the 6.1

* Td. at 3.

* Id.

40 Id.

“ D. Stevens, Report: Estimated cost impacts of ruling

change for forest roads in the state of Maine (2011), available at:

http://nafoalliance.org/wp-content/uploads/Road-Permit-Costs-in-

Maine-Northeast-Lake-States (“This predicts that under any of

the three [permitting] scenarios smaller tract owners will either

pay more per acre for permitting, or be the first to stop harvest-

ing after new rules are promulgated.”).

16

million acres of small tract private timberland to be

of equal or greater total magnitude than the 9.5

million acres held by large tract landowners.” As a

result, Cubbage estimates that net timber sales

returns for a typical 32 acre tract would suffer a

decrease of 71%, while larger tracts of 80 acres would

lose 19% of net timber sales returns.”

For many landowners these new cost barriers

will be prohibitive. By increasing the scope and scale

of the permitting process, this decision will contribute

to the decline of an already shrinking wildlife habitat

that relies upon continued forest management of both

public and private forest owners. This decision will

compound the ecological dangers discussed above

with additional barriers to adequate forest manage-

ment. The stakes could not be higher for early succes-

sional forest species. Experience has shown that the

thoughtful implementation of state BMPs designed to

meet site-specific conditions effectively controls

stormwater discharges from forest roads. Excessive

regulatory oversight of stormwater discharges from

forest roads will only diminish the likelihood that

these landowners will initiate the active forest man-

agement required to sustain wildlife of young forest

habitats. A downturn in active forest management on

state and private lands, combined with the bitter

administrative logjam that plagues the National

“ Stevens at 4.

* Cubbage at 3.

17

Forest system will only speed up the demise of early

successional forest habitats and could result in suffi-

cient declines of many bird species to warrant federal

listing under the Endangered Species Act.

Il. THE DECISION BELOW IGNORES AN

EXPRESS CONGRESSIONAL LIMITATION

UPON JUDICIAL REVIEW, WHICH, IF

UPHELD, WOULD RESULT IN REGULA-

TORY CHAOS.

A. The Court Of Appeals Did, In Fact, In-

validate The EPA’s Silvicultural Rule.

As a threshold matter, this Court should recog-

nize that the court of appeals did implicitly invalidate

the Silvicultural Rule. Under the Rule “road con-

struction and maintenance from which there is natu-

ral runoff” are defined as “nonpoint sources” such

that NPDES permits are not required. By contrast,

the court of appeals rejected this definition and held

that “stormwater runoff from logging roads that is

collected by and then discharged from a system of

ditches, culverts and channels is a point source

discharge for which an NPDES permit is required.”

Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1087

(9th Cir. 2011) (emphasis added).

In its amicus brief opposing certiorari the United

States argued that “the court of appeals did not

expressly or implicitly invalidate the Silivicultural

18

Rule.” It argued that the court of appeals merely

chose between two competing interpretations of the

rule. However, to characterize the court of appeals’

holding as mere “interpretation” of the Rule is simply

inaccurate. Instead, the court of appeals effort to

redefine a silvicultural point source can only be seen

as an implicit declaration that the Silvilcultural Rule

was invalid as written.

In Environmental Defense. v. Duke Energy Corp.,

this Court addressed the Fourth Circuit’s claim that

it did not invalidate the EPA’s Prevention of Signifi-

cant Deterioration (“PSD”) regulations under the

Clean Air Act (“CAA”).” The EPA filed an enforcement

action against Duke Energy for failing to obtain a

permit after its replacement of 29 tube assemblies.“

Duke argued that it did not need to obtain a permit

because its work did not constitute a “major modifica-

tion” as defined by the 1980 PSD regulations.“ The

court of appeals eventually agreed with Duke’s posi-

tion and held that the EPA lacked authority to inter-

pret the term “modification” differently in the PSD

regulations as it had in the New Source Performance

“ Brief for United States as Amicus Curiae Opposing

Certiorari at p. 8 (May 24, 2012).

“ Envtl Def. v. Duke Energy Corp., 549 U.S. 561, 573, 127

S. Ct. 1423, 1432, 167 L. Ed. 2d 295 (2007).

* Td. at 570-71.

* Id. at 571.

19

Standards.“ However, this Court reversed, holding

that the Fourth Circuit improperly entertained a

challenge to the PSD regulations, outside of the

judicial review limitations upon EPA regulations

contained within the CAA.“

Just as in Duke Energy, the Ninth Circuit’s

“interpretation” of the Silvicultural Rule crossed the

line from a “purposeful but permissible reading of the

regulation” to one that “can only be seen as an implic-

it declaration that the ... regulations were invalid

as written.” Therefore, as a threshold matter, this

Court should conclude in accordance with Duke

Energy that the court of appeals did, in fact, invali-

date the EPA’s Silvicultural Rule at issue.

B. The “Arising After” Exception To 33

U.S.C. § 1369(b)(1) Does Not Apply Be-

cause The Silvicultural Rule Is Unam-

biguous.

Time limitations on judicial review of agency

regulations are jurisdictional in nature.’ The Clean

Water Act contains important limitations to judicial

review of regulations like the Silviculture Rule.

“ Id. at 572; see also United States v. Duke Energy Corp.,

411 F.3d 539, 549 (4th Cir. 2005).

” Td. at 581.

” Td. at 573.

* Natl Min. Ass’n v. U.S. Dept. of Interior, 70 F.3d 1345

(D.C. Cir. 1995).

20

Section 1369(b)(1) requires that any challenges to the

EPA Administrator’s actions must be brought within

120 days of such action. By contrast, this case was

filed as a private civil enforcement action under 33

U.S.C. § 1365(a\1), which allows private actions to be

filed in the district courts against persons who are

alleged to be in violation of the effluent standards or

limitations, including NPDES permits. However, the

Act limits the scope of challenges that may be

brought as a private enforcement action. Specifically,

any action that could have been brought under

§ 1369(b)(2) “shall not be subject to judicial review in

any civil or criminal proceeding for enforcement.”

These limitations upon judicial review are central to

this case.

To maintain its subject matter jurisdiction under

33 U.S.C. § 1365(a) as constrained by the limitations

of § 1369(b), the court of appeals couched its decision

in terms of “interpretation” as opposed to outright

“invalidation” of the Silvicultural Rule. In doing so, it

determined that the Rule was “susceptible to two

different readings” in order to apply the statute’s

“arising after” exclusion. Brown, 640 F.3d at 1068.

“Under one reading,” wrote the court, “the Rule does

not require permits for silviculture stormwater run-

off.” Jd. at 1068. According to the court of appeals, it

was this reading that the United States “adopted...

for the first time in its initial amicus brief in this

case.” Id. As such, because the court concluded that

the amicus brief constituted a new interpretation of

the Rule, it held that the “arising after” exception

21

contained within § 1369(b)(1) applied, thereby allow-

ing it to proceed to the merits.”

The court of appeals erred when it concluded that

the amicus brief created an ambiguity in the Rule.

Under a plain reading of the Rule, the EPA has

exempted silvicultural activities such as “harvesting

operations, surface drainage, or road construction and

maintenance from which there is natural runoff”

from the definition of a point source. 40 C.F.R.

§ 122.27(b\(1). Rightly or wrongly, the Rule’s text

clearly excludes the logging roads at issue from being

defined as a point source. There simply is no ambigu-

ity.

At the very least, the Silvicultural Rule as origi-

nally promulgated and applied over the years by the

EPA provided the public “adequate notice that it

could be interpreted as the [EPA] now does.” Para-

lyzed Veterans of Am. v. D.C. Arena L.P.~ Contrary to

the court of appeals’ conclusion, the present interpre-

tation of Rule as not requiring NPDES permits is not

new. The EPA asserted the same interpretation of the

Rule in Envtl. Def. Ctr, Inc. v. U.S. E.PA. (“EPA

promulgated silviculture regulations in 1976 that

exclude from NPDES permit requirements certain

“ Assuming, arguendo, that ambiguity exists such that the

“arising after” exclusion applies, the challenge then should have

been dismissed as falling within the exclusive original jurisdic-

tion of the court of appeals. 33 U.S.C. § 1369(b)(1KE)(F).

* 117 F.3d 579, 585 (D.C. Cir. 1997).

22

silvicultural activities that EPA determined consti-

tute non-point source activities, including “surface

drainage, or road construction and maintenance from

which there is natural runoff.”).“ Likewise, in Envtl.

Prot. Info. Ctr. v. Pac. Lumber Co. the EPA informed

the district court that it had authority to determine

whether certain silvicultural sources were nonpoint

and therefore not subject to the NPDES program.” In

its motion for summary judgment in that case the

EPA wrote:

In sum, in section 122.27, EPA distinguished

between point source silvicultural activities,

which are subjected to the permitting sys-

tem, and nonpoint source silvicultural activi-

ties, which do not require NPDES permits.

Because the CWA clearly provides EPA with

the discretionary authority to make this dis-

tinction, promulgation of the regulation at

issue was within EPA’s authority. .. .”

The initial position of the United States in this

case similarly acknowledged the regulation’s clarity.”

Even the Respondents had little difficulty identifying

“ 344 F.3d 832, 861 (9th Cir. 2003).

* 966 F. Supp. 2d 1101, 1112 (N.D. Cal. 2003).

“ Td. Civil Case No. 3:01-cv-02821-MHP, Doc. 118 at 19

(Sept. 5, 2003).

“ “The plain language of EPA's silviculture regulations,

promulgated over thirty years ago, exclude runoff from forest

roads from the requirement to obtain an NPDES permit.” U.S.

Amicus Brief at 18, NEDC v. Brown, No. 306-CV-01270 (D. Or.,

filed Dec. 6, 2006).

23

the position of the EPA in its First Amended Com-

plaint without the benefit of the later amicus brief.”

In spite of the apparent clarity over the Rule’s

exclusion of logging roads from the definition of a

silvicultural point source, the court of appeals an-

nounced that “[uJ]ntil the United States filed that

brief, there was no way for the public to know which

reading of the Silvicultural Rule it would adopt.” 640

F.3d at 1069. Despite this pronouncement, the inter-

pretation the United States advanced in its amicus

brief is entirely consistent with its past views. As this

Court previously explained, “where the text of a

regulation is unambiguous, a conflicting agency

interpretation advanced in an amicus brief will

necessarily be ‘plainly erroneous or inconsistent with

the regulation’ in question.” Chase Bank USA, N.A. v.

McCoy.” To the extent the United States’ second

amicus brief in this case can be construed to create an

ambiguity, the Court should freely disregard the brief

as inconsistent with the otherwise unambiguous

Silvicultural Rule. It follows then that because the

Rule is unambiguous, the court of appeals’ decision to

entertain a challenge to the 36-year-old Rule in the

context of an enforcement action cannot be sustained

by the time limitations found in 33 U.S.C. § 1369(b).

* See First Amended Complaint {J 40-41.

* 131 S. Ct. 871, 882, 178 L. Ed. 2d 716 (2011), citing Auer

v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911, 137 L. Ed. 2d

79 (1997).

24

C. The Decision Below Would Result In

Regulatory Uncertainty If Upheld.

As a party that regularly comments on all agency

rules, programmatic plans and projects that affect the

forest and early successional habitat favored by

ruffed grouse and American woodcock, the decision

below is of great concern. The Society participates at

the early stages of the administrative process, in

part, because of the finality of the process. By allow-

ing a regulation to be subjected to judicial review at

any point in the future under the guise of ambiguity

results in a waste of administrative resources” and

puts any and every regulation in limbo awaiting a

clever litigation strategy.” In addition, by allowing

parties to challenge agency regulations through a

citizen enforcement action to which the governmental

agency is not even a party, the parties are able to

circumvent the will of Congress in bypassing the

original jurisdiction of the Courts of Appeal.

The decision will result in administrative grid-

lock of a magnitude never seen before. The court of

appeals’ decision cannot be reasonably limited to

“ Ronald M. Levin, Statutory Time Limits on Judicial

Review of Rules: Verkuil Revisited, 32 Cardozo L. Rev. 2203,

2204 (2011) (“A core idea behind these provisions is that rules

adopted in these regulatory areas can entail enormous up-front

investments of money, effort, and advance planning.”).

* For example, in this case the respondents transformed an

unripe citizen enforcement action into a vehicle for challenging

agency regulations based only upon a subsequent amicus brief

filed by a non-party.

25

apply to only logging roads covered by the Silvicul-

tural Rule. Its rationale will apply equally to all

forest roads, whether used for logging or not. All

roads that are served by ditches and culverts and

eventually discharge into natural surfaces waters

would be swept up in its regulatory net. Contrary to

the court’s assumptions of fact, many forest roads,

including the roads at issue in this case, are not

dedicated to logging. This would burden all private

forest landowners and all who rely upon these roads

for recreational and hunting access.

If this Court does not reverse the decision below,

one commentator has suggested that it could call into

doubt countless other Clean Water Act exemptions,

such as those found within the agricultural industry

for concentrated animal feeding operations under 33

U.S.C. § 1362(14) and agricultural return flows under

33 U.S.C. § 1342(1X1) or stormwater runoff from oil,

gas and mining operations under 1342(1)(2).~ More

importantly, the rulemaking process will lose any

meaning to stakeholders like the Society as certainty

is removed from the process.

¢

CONCLUSION

For the foregoing reasons, this Court should re-

verse the judgment of the Court of Appeals for the

“ Mark A. Ryan, Ninth Circuit Upends the CWA Applecart,

Nat. Resources & Env’t, Winter 2011 at 51.

26

Ninth Circuit with instructions that the action be dis-

missed as time-barred under 33 U.S.C. § 1369(b)(1).

Respectfully submitted,

RYAN L. WoopDy

Counsel of Record

MATTHIESEN, WICKERT &

LEHRER, S.C.

1111 E. Sumner Street

Hartford, WI 53027

(262) 673-7850

rwoody@mwl-law.com

Attorneys for Amicus Curiae