May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates

Skip To Content

MIPTC Author:


The Sled:

Listed in Latino Who's Who, June 2014
Categories [more]
General (1985)
Lawyer 2 Lawyer (284)
Latest Blogs
This Month's Posts [more]
Links of Interest [more]
Locations of visitors to this page

Creative Commons License
This work is licensed under a Creative Commons License.

Quote of the Day - The creation of a thousand forests is in one acorn. - Ralph Waldo Emerson
Adjust font size: A A+ A++
Claim Your Profile on Avvo

What Is A Live Tree? The Ninth Circuit Finally Decides

At first, the definition was deceptively simple:  a tree that's "not dead."

It took four environmental groups to sue the U.S. Forest Service, numerous attorneys on both sides, one federal district court judge and three judges on the Ninth Circuit Court of Appeal to come up with that one.

And we wonder what happens to our tax dollars. 

Let me explain.  In August 2005, the School Fire burned approximately 51,000 acres in southeastern Washington, including 28,000 acres of the Umatilla National Forest.  Within the National Forest, the Forest Service authorized the logging of trees on nearly 10,000 acres to recover about $1.5 million for the federal government.

That's actually what happens with some of those tax dollars.

The Forest Service reasoned that nearly-dead trees were more valuable to loggers than dead trees, and would fetch a higher price.  For once, our government was acting like private industry.  Although the opinion doesn't make it clear why, the environmental organizations, The Lands Council, Oregon Wild, Hells Canyon Preservation Council, and Sierra Club, challenged this decision on numerous grounds, from the definition of "live trees" all the way to the soil studies used by the Forest Service.

Presumably, they were trying to save trees.

The arguments have been up and down the courts, and in the last opinion, the Ninth Circuit came up with the gem in the first line because, believe it or not, "Congress has expressed no view on the definition of 'live trees.'  No statute or precedent of which we (the Ninth Circuit) are aware suggests that a previously undefined technical term in a forest plan can never be clarified through amendment simply because the technical definition conflicts with the dictionary definition."

There you have it. 

Then the Forest Service defined a live tree as, "trees rated to have a high probability of surviving the effects of fire ....  Dead trees are defined as trees rated to have a low probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling indicates that more than 50 percent of their basal cambium is dead."

Under that definition, I'm dead because I'm 51, and I expect to live to 100.  But you and I are quite different than live trees.  So what did the environmentalists do?  They came up with their own definition of live and dead, predictably more liberal than the one adopted by the Forest Service.  It didn't fly with the court, however, and didn't go well. 

Let me turn to a baseball analogy.  Here's George Steinbrenner (figuratively) and Billy Martin literally kicking dirt onto an ump's shoes.  "In other words, Plaintiffs dispute the 'silvicultural practice and interpretation' of the Forest Service and prefer their experts' interpretation over the Forest Service experts' interpretation.  We are unmoved."

You have to love the simplicity of that last statement.  The ump stands there, takes it and then points a finger into the sky.  "Yer outta here." 

There are some other twists and turns in the opinion and provisions dealing with several other aspects of the case, but the most interesting part of the decision deals with life and death.

It's a good thing no one tried applying this standard to human life. 

I like to look at the glass as half full, even though I've already had more than half of it.

What happened, you say?  Oh right.  The logging companies cleared the burned trees and paid the Forest Service along with their employees for the privilege.  The Forest Service realized $1.5 million in revenue after a fire.  Millworkers got employed.  Truckers got to deliver wood and carpenters built houses.  The forest was replanted and began to grow back.  Animals and birds repopulated the forest and the environmentalists sent out paper mailers asking for donations to prevent a similar travesty in the future.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, June 29, 2008 at 00:08 Comments Closed (0) |
Share Link