A U.S. Supreme Court decision issued this week makes it harder to challenge regulations governing timber sales and other policies in national forests, but the Durango lawyer who argued the case for conservationists said it isn't a total loss.
"Although we lost, and it's unfortunate, in terms of precedent, it was not the overwhelming position that the Bush administration was trying to get the court to adopt," said Matt Kenna, a staff attorney for the Western Environmental Law Center.
In a 5-4 decision Tuesday, the court said environmental groups cannot pursue a lawsuit against forest regulations that limit public participation.
The case, Summers v. Earth Island Institute, concerned a proposal to salvage timber from about 200 acres in the Sequoia National Forest in California.
The government argued that a challenge to the regulations must be tied to a specific project, and the court agreed in an opinion written by Justice Antonin Scalia.
The regulations in question were part of the Bush administration's 2003 Healthy Forests Initiative that exempted certain projects - among them commercial timber sales, gas and oil development and off-road motorized vehicle use - from environmental review or public comment.
Various conservation groups, including the Sierra Club and Sierra ForestKeeper, successfully challenged the public-comment part and prevailed again in an appeal. But the Supreme Court granted review, and on Oct. 8, 2008, Kenna went before the court to argue the case.
While the court sided with the government in its argument that the groups did not have standing to bring a lawsuit in the case, Kenna said the justices rejected the assertion that the public could only challenge regulations in the context of specific projects. Under this logic, the public could get regulations set aside only in their local jurisdictions, but never nationwide.
"So you'd have to sue over them hundreds of times," Keena said.
He said the narrow ruling was a victory of sorts.
"We feel that in light of the current court and the makeup of the court, it's almost about as good as we could have done," he said.
The U.S. Department of Justice represented the government. Andrew Ames, a spokesman for the department, declined Tuesday to comment other than to say officials "are pleased with the court's decision."
U.S. Forest Service Chief Gail Kimbell, in a statement, said, "I am pleased that the Supreme Court upheld the importance of citizen participation in the public involvement process."
The agency's press office declined further comment.
Kenna said conservationists will continue the legal fight if they have to.
"It may be that the Obama administration would actually want to rethink those regulations and maybe we won't have to file suit," he said. "It's too soon to tell on that."