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Judge keeps logging road suit alive

Mateusz Perkowski

Capital Press

A lawsuit over Clean Water Act permits for logging roads will be allowed to proceed for at least several more months.

A federal judge has kept alive a lawsuit that alleges some logging roads are subject to Clean Water Act permits.

At an April 29 hearing, U.S. District Judge Anna Brown denied a motion to dismiss the case, which was the subject of a U.S. Supreme Court ruling last year.

The nation’s highest court held that runoff from logging roads isn’t associated with industrial activity and thus doesn’t require Clean Water Act permits.

That ruling reversed an opinion by the 9th U.S. Circuit Court of Appeals, which held that logging roads are subject to such regulation.

The timber industry feared that the permits would create a massively expensive new regulatory burden.

The Northwest Environmental Defense Center, which filed the case, argues that certain claims in the lawsuit have survived the Supreme Court ruling.

The plaintiff claims that rock crushing, gravel washing, log sorting and log storage facilities are not exempt from the Clean Water Act.

That interpretation of the law was established by the U.S. Environmental Protection Agency and upheld by the Supreme Court, the environmental group said.

The environmental group believes it should be able to proceed with the lawsuit on narrower grounds: logging roads that provide immediate access to such facilities are subject to Clean Water Act permits.

“NEDC is not creating new allegations out of whole cloth,” said Paul Kampmeier, attorney for the plaintiff.

The Supreme Court had the authority to simply close the case, but instead opted to send it back to the lower courts, he said.

The implication is that the ruling was meant to narrow the scope of the litigation without ending it altogether, Kampmeier said.

The State of Oregon and several timber companies, the defendants in the case, argued there was nothing left to litigate.

The issue of logging roads providing immediate access to regulated facilities wasn’t mentioned in the environmental group’s complaint or its notice-of-intent-to-sue letter, said Per Ramfjord, attorney for the timber companies.

If the NEDC had made such allegations, the defendants could have looked at a map of their facilities and prepared a defense accordingly, he said.

“That wasn’t what this case was about,” Ramfjord said.

Judge Brown appeared skeptical of the environmental group’s contentions during the oral arguments, at one point calling one of its legal theories a “non-starter.”

However, she said that dismissing the case now without letting NEDC further develop its arguments would open the door for its reinstatement by the 9th Circuit.

Brown said the plaintiff deserves the chance to propose an amended complaint in the case, which the court could then accept or reject.

Her ruling sets the stage for at least another several months of litigation.

The parties will have until mid-July to submit new court documents and another oral argument has been scheduled for Aug. 14.



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