Colorado Politics

Gorsuch rulings show view of conservationists as obstructionists

On the federal appeals court in Denver, Judge Neil Gorsuch tends to see environmental groups in lawsuits as more a problem than part of the solution.

The Association Press reviewed his decisions involving public lands during his decade on the 10th Circuit Court of Appeals, hearing cases from Colorado and five other Western states.

Gorsuch has shown a willingness to limit the participation of environmental groups in lawsuits involving public lands, writing in one case that allowing conservationists to intervene could complicate and slow down the judicial process.

In public lands cases in which he sought to limit environmental groups’ participation, Gorsuch at times has favored the position of federal agencies.

In 2011, Gorsuch showed his distaste for drawn-out litigation when he sided with a majority of other judges who found The Wilderness Society lacked standing in a suit related to off-road vehicles on federal land, including in Grand Staircase-Escalante National Monument.

“The Wilderness Society has fought to protect conservation of millions of acres of public lands in Colorado, and that fight includes getting into court to defend them when our government may not rise to the occasion,” Nada Culver, the Denver-based senior lawyer for The Wilderness Society, told Colorado Politics Monday afternoon. “We entered the fray to safeguard the Forest Service Roadless rule, which kept amazing lands around the state from the Maroon Bells to Battlement Mesa protected from destruction. This is not a right that should be undermined and not something Coloradans can accept.”

But his record on such cases is relatively limited considering that the territory the appeals court covers contains vast swaths of national forests and parks.

“I think that his record, although the number of cases is quite limited, shows that at times it has led to decisions that one might consider environmentally favorable, and about an equal number of times it has led to decisions some might think are environmentally unfavorable,” said Donald Kochan, associate dean and professor at Chapman University Dale E. Fowler School of Law.. “For those who think that he will lean toward one outcome or another, I think they’ll be surprised on how the more neutral application of his philosophy will often lead to confounding results.”

When an outdoor group sued the U.S. Forest Service over a temporary order that allowed motorcycles to ride on certain trails inside western Colorado’s San Juan National Forest, Gorsuch wrote a unanimous opinion in May 2015 for the three-judge panel dismissing the case on procedural grounds.

Backcountry Hunters and Anglers could not establish their ability to bring the case because if the order they challenged as being too lenient was struck down, the agency would revert to an earlier, even less-strict version of the trail plan, so the organization’s conservation goal would not be advanced, Gorsuch wrote.

“A further victory for Backcountry in this case promises only more, not fewer, vehicles on forest trails and the group hasn’t offered a timely argument how that turn of events might help its members,” he wrote.

Gorsuch has been sympathetic to outdoor enthusiasts, even when ruling against them, and has shown his Colorado roots in his writings.

“Everyone enjoys a trip to the mountains in the summertime. One popular spot is Mount Evans – a fourteen thousand foot peak just a short drive from Denver and with a paved road that goes right to the summit,” he wrote in a 2011 case.

In that case, Gorsuch was on a panel that found that the Forest Service could legally charge fees to visit the summit because it provided amenities such as a nature center, which thousands of visitors use annually. Those who sued had challenged the fee policy, saying it overstepped the Forest Service’s statutory authority to charge visitors.

Writing for the panel, Gorsuch said the fees were permissible, but he left open the possibility that the fees could be challenged, just not the way the plaintiffs sought to.

“In rejecting the plaintiffs’ facial challenge we hardly mean to suggest that the Service’s policy can’t be attacked at all. It might well be susceptible to a winning challenge as applied to certain particular visitors, perhaps even the plaintiffs themselves. But that’s a path the plaintiffs haven’t asked us to explore and so one we leave for another day,” Gorsuch wrote.

Denise Grab, a lawyer with New York University Law School’s Institute for Policy Integrity, said Gorsuch has a “mixed bag” of rulings related to public lands and the environment, yet seems “unusually eager to throw roadblocks in the way of public interest groups who want their day in court.”

In 2013, Gorsuch parted from the two-judge majority on a panel that said environmental groups should have the chance to participate in a particular suit. The New Mexico Off-Highway Vehicle Alliance had challenged a plan that reduced the number of roads and trails available to off-road vehicles in Santa Fe National Forest.

His colleagues on the appeals court said the groups should be allowed to join the case because “there is no guarantee that the Forest Service will make all of the environmental groups’ arguments in litigation.”

Gorsuch disagreed, saying there was only one issue to consider and no conflict between the groups and government over how to approach it.

“An intervenor becomes a full-fledged party, able to conduct discovery, file motions, and add new issues and complexity and delay to the litigation,” Gorsuch wrote.

Grab called that “very unusual,” and noted that neither party in the suit had objected to the environmental groups intervening.

“An environmental group is not the government. It has different goals,” Grab said. “In most cases, intervention is allowed.”

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Colorado Politics senior correspondent Joey Bunch wrote some stuff in this.

 

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