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Stoel Rives Clients Win as Supreme Court Rejects Logging Road Stormwater Permit Requirement

Court Reverses Ninth Circuit in 7-1 Ruling

Today, the U.S. Supreme Court provided owners and operators of public and private logging roads throughout the West, Alaska and Hawaii welcome relief from an earlier court decision that threatened economic and regulatory havoc.  The Court reversed a ruling from the U.S. Court of Appeals for the Ninth Circuit that would have required Clean Water Act permits for stormwater running off logging roads.

The earlier ruling in Decker v. Northwest Environmental Defense Center had threatened to burden landowners and local governments with enormous compliance and permitting costs while opening the door for administrative challenges and litigation following every permit approval.

Stoel Rives represented several timber industry clients, including the Oregon Forest Industries Council, throughout the district court and Ninth Circuit proceedings, and helped prepare the petition for Supreme Court review.  “We are extremely gratified by the Supreme Court’s decision,” said Per Ramfjord, the lead Stoel Rives attorney in the case.  “Our clients felt strongly that the law and regulatory precedent were firmly in their favor, and we believe the Court’s 7-1 decision reflects that.”

EPA also disagreed with the Ninth Circuit court decision handed down on August 17, 2010; it would have overturned 35 years of regulatory precedent.

The longstanding regulatory practice of the EPA has been to treat runoff from logging roads via ditches and culverts as non-point source pollution to be addressed by state best management practices.  The Ninth Circuit held that such discharges were “associated with industrial activity” and thus required permits under EPA’s industrial stormwater regulations.  Millions of acres of forest land in the West, including thousands of miles of roads, would have been affected by the decision.

Timothy Bishop, Richard Bulger and Chad Clamage of Mayer Brown LLP and Per A. Ramfjord, Leonard J. Feldman and Jason T. Morgan of Stoel Rives, along with William K. Sargent of Tillamook County, prepared the petition for Supreme Court review.  Bishop of Mayer Brown handled briefings and oral argument before the Supreme Court.

In striking down the Ninth Circuit ruling, the Supreme Court agreed with Mayer Brown and Stoel Rives that the ruling violated Supreme Court precedent requiring judicial deference to an agency’s interpretation of its own rule.  “The EPA’s interpretation [that the stormwater permit regulation extends only to traditional industrial buildings and other relatively fixed industrial sites] is a permissible one,” ruled the Court.  A link to the Court’s full decision is available at www.supremecourt.gov/opinions/12pdf/11-338_kifl.pdf.

About Stoel Rives LLP:  Stoel Rives is a business law firm providing advice and litigation services to a wide range of clients throughout the United States.  The firm has nearly 400 attorneys operating out of 12 offices in seven states and the District of Columbia.  Stoel Rives is a leader in corporate, energy, environmental, intellectual property, labor and employment, land use and construction, litigation, natural resources, project development and real estate law.  The firm has offices in Alaska, California, Idaho, Minnesota, Oregon, Utah and Washington plus a satellite office in Washington D.C.  For more information, visit www.stoel.com.

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