Court declines to rehear Sierra Nevada case from E&E News
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A three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said it would not rehear the case. The full court also opted against an en banc hearing involving 11 judges
Judge William Fletcher’s majority opinion in the case was one of several openly criticized by one of his colleagues on the court, Judge Milan Smith, in a vituperative dissenting opinion filed earlier this month when the court, sitting en banc, ordered the Forest Service to consult with other agencies over whether gold prospecting in the Klamath National Forest will negatively affect fish species (Greenwire, June 4).
If left intact, the Sierra Nevada ruling “will dramatically impede any future logging in the West” because “it will take even longer for the agencies to approve forest plans,” Smith wrote in his dissenting opinion. Chief Judge Alex Kozinski was the only other judge who signed on to Smith’s most outspoken comments.
Despite Smith’s concerns, today’s announcement said that “no judge of the court has requested a vote on whether to rehear the matter en banc.”
Arthur Hellman, a professor at the University of Pittsburgh School of Law, said he was surprised that Smith had not asked for the court to vote on an en banc rehearing.
“On the surface, it doesn’t make much sense,” he said. Hellman speculated that the outcome in the Klamath gold prospecting case may have deterred Smith from pursuing the issue. Instead, Smith may be hoping that the Supreme Court will take up the case, Hellman said.