Federal Judiciary

Center for Biological Diversity v. Rey (9th Cir. - May 14, 2008)

By Shaun Martin

I understand that it's a review of a denial of a preliminary injunction, and sometimes we want to get these things out quickly. Especially when, as here, we reverse the denial. I also appreciate an effort to write a little more informally. That doesn't bother me at all.

But when I read the opinion, it looked somewhat slapped together. Indeed, as I was reading it, I honestly thought that it had been written in two or three days, rather than over two months after oral argument.

And while I appreciate short, punchy sentences, and even a rhetorical device or two, the style that Judge Noonan employs here just doesn't work for me. Passages like: "Sell trees to loggers. Use the money to clear areas of what is potential fuel for fire. The solution has a secondary benefit: what the loggers cut can, at least in part, be timber that was potential for fire. In one sale, a fire hazard can be removed and the USFS paid so that it can remove the fuel of future fires. Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be. First of all, there is the USFS?s own budget. Does that budget contain any funds that could be devoted to fuel removal? Is every one of its activities so necessary and so tightly allocated that no money could be shifted? We do not know the answer because this alternative has not been explored. Suppose that the USFS and its parent, the Department of Agriculture, cannot spare a dime. What then? Appropriate appropriations come from Congress. The work of fire prevention is work of the first importance. If the USFS does not have enough, why should not Congress be asked to give it more?"

To me, these aren't very strong arguments, but are rather merely a series of unanswered questions. And are written in a way that sounds a bit more rambling than a structured discussion of the merits.

Maybe my objections are merely stylistic, and if so, perhaps it's just a difference of opinion. But for whatever reason, the opinion just didn't gell with me. And perhaps others as well.

Full post as published by California Appellate Report on May 14, 2008 (boomark / email).