BMBP takes its challenge to the Walton Lake timber sale to the U.S. Supreme Court

On September 13^th, 2024, Blue Mountains Biodiversity Project (“BMBP”) filed a petition for certiorari in the Supreme Court of the United States in its ongoing litigation of the Walton Lake timber sale on the Ochoco National Forest. The Walton Lake timber sale authorized clearcutting of all fir trees, including large and old-growth firs, on approximately 35 acres that form the scenic backdrop of the lake and provide important and increasingly rare wildlife habit. The sale also includes additional logging, including more large firs, in other areas of the popular recreation site. The Forest Service cited safety concerns as the justification for logging large old-growth firs, many of which were perfectly healthy. For decades, the agency has been able to address safety issues by removing individual hazard trees within the developed recreation area, however almost none of the logging authorized in this timber sale occurred in this area.

BMBP has been fighting to stop destructive logging at Walton Lake since 2015, with legal representation provided by Jesse Buss and Bridgett Chevallier at Willamette Law Group and Tom Buchele at Earthrise Law Center at Lewis & Clark Law School. BMBP and its dedicated attorneys successfully stopped the first two iterations of the Walton Lake timber sale, but unfortunately, the Forest Service’s third attempt to force through this unnecessary and ecologically destructive logging was ultimately successful. A three-judge panel of the Ninth Circuit Court of Appeals issued an opinion (later amended in part in response to a petition for en banc rehearing) allowing the logging to move forward, in part ruling that the Forest Service is allowed to withhold deliberative documents from the timber sale’s administrative record. Four appellate judges issued a seventeen-page dissent from the denial of rehearing arguing that the opinion’s treatment of the scope of the administrative record, contrary to U.S. Supreme Court and Ninth Circuit case law, would allow federal agencies like the Forest Service to “sanitize the record … severely curtailing judicial review.”

The petition asks the Supreme Court to review this key issue regarding the administrative record and to consider whether the Administrative Procedure Act (“APA”)—a key legal tool in ensuring federal agencies remain accountable to the public—allows the Forest Service and other federal agencies to exclude highly relevant deliberative materials from the record. “A rule that allows agencies to unilaterally excise documents from the record because they are deliberative creates a one-way ratchet that undermines effective judicial review,” the petition says. By allowing the Forest Service to withhold documents that are part of the full record based on an assertion of privilege, the Ninth Circuit ensured that neither the courts nor BMBP could verify whether those omitted documents were relevant, let alone whether they supported the agency’s action. Because litigating Forest Service timber sales relies wholly on the record produced by the Forest Service—no outside evidence is permitted—getting this legally incorrect Ninth Circuit ruling reversed by the Supreme Court is of the utmost importance not just for BMBP, but indeed for almost every plaintiff challenging a federal agency decision.

For the petition, BMBP secured additional representation from the law firm Jenner & Block and its Supreme Court and Appellate Clinic at the University of Chicago Law School. The Jenner & Block team includes Partners Matthew Hellman and Michael Brody, Associate Andy Osborne, Law Clerk Donovan Hicks, and Senior Paralegal Cheryl Olson. BMBP would like to thank the Jenner & Block team for their invaluable advice and services in filing BMBP’s first ever petition at the Supreme Court.

Earthrise Law Center is the domestic environmental law clinic at Lewis & Clark Law School that provides legal training for future public interest lawyers and pro bono legal representation for not-for-profit environmental protection groups like the Blue Mountains Biodiversity Project.

Based in Oregon City, the Willamette Law Group represents people defending the natural world and public spaces, including protecting ancient old-growth forests from clear-cut logging, keeping public lands public, supporting biodiversity, and opposing irresponsible development.

Blue Mountains Biodiversity Project is a grassroots ecological protection group based in Eastern Oregon that monitors and challenges agency actions in order to protect public lands on the Blue Mountains and the Eastern Oregon Cascades.