FORESTRY, AGRICULTURE or INDUSTRY?

For more than a year, the forestry industry has been contesting a decision of the EPA that forest roads should be regulated as industrial usage.  The Supreme Court took the 9th Circuit's ruling that the EPA was correct and had oral arguments on December 3.  In its wisdom, the EPA immediately ruled the roads are not industry. I, for one, am fearful that ruling would be changed back to industry as soon as the Supremes dropped their attention.  See below Henry Rogers, CCIM, ALC, member Florida Forestry Assn. December 7, 2012 8 Forestry Friday Forest Roads Case Activity On December 3, the US Supreme Court heard oral arguments in the forest roads case Decker v. NEDC. As expected, the Environmental Protection Agency’s (EPA) final rulemaking issued last Friday declaring that timber harvest is not an “industrial activity” requiring permits for forest roads under the Agency’s stormwater regulations took center stage in the courtroom. The Court spent most of its time trying to determine the course of action going forward in light of EPA’s final rule. Available options include: Vacating the Ninth Circuit’s decision or dismissing the case altogether based on a determination that EPA’s rule moots the case; Deciding the case on the merits notwithstanding EPA’s rule; Dismissing the writ of certiorari as “improvidently granted” and either allowing or requiring further judicial proceedings on the new rule before considering whether to hear the case at a later time; Requiring further briefing on the issue of mootness; or Creating some hybrid of these options.  A decision by the court could come quickly or take longer to prepare.  In the meantime, legislative options are being pursued in Congress.  Stay tuned on this one.