Lands Council, Karuk Tribe, and the Great Environmental Divide in the Ninth Circuit

The Ninth Circuit Court of Appeals, the nation’s largest appellate court, with jurisdiction over 15 judicial districts and 61 million people—almost 20 percent of the nation’s population—spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court’s en banc reviews do not include all 29 judges but instead only panels of 11. Thus, Ninth Circuit en banc panels can reflect the kind of diversity of opinion they aim to reduce. Recently, the two en banc decisions discussed in this article—Lands Council v. McNair and Karuk Tribe of California v. U.S. Forest Service—displayed the court’s apparently schizophrenic approach to review of agency environmental decision-making. A unanimous court in Lands Council called for more deference to Forest Service decisions favoring timber harvests, while the Karuk Tribe majority, with barely a reference to Lands Council, gave close scrutiny to the Forest Service’s interpretation of the Endangered Species Act. The latter decision prompted a bitter dissent from the author of Lands Council, Judge Milan Smith, which seemed to be more of a political diatribe than legal criticism and may have been aimed at attracting the attention of the U.S. Supreme Court. Although the varying results of the two cases can be reconciled, we think that they epitomize a deep philosophical rift within the court on environmental issues, and we include an appendix suggesting to litigators on which side of the environmental divide certain Ninth Circuit judges may fall