[Congressional Record Volume 150, Number 73 (Friday, May 21, 2004)]
[Senate]
[Pages S6079-S6080]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             NINTH CIRCUIT JUDGESHIP AND REORGANIZATION ACT

  Mr. BURNS. Mr. President, I rise today in support of a bill 
introduced last week by my colleague, Senator Ensign. I am pleased that 
he has taken the helm in addressing the many problems posed by an 
excessively large and cumbersome Ninth Circuit Court of Appeals in his 
bill S. 2278. I am glad to add my name as a cosponsor of this bill. 
Montana sits in the Ninth Circuit, whose docket has grown in recent 
years. In 2003, 12,872 appeals were filed at the court, up almost 1,500 
from the previous year. The Ninth Circuit Judgeship and Reorganization 
Act of 2004 will create two new circuit courts in addition to a 
restructured Ninth Circuit. The new Ninth Circuit would still contain 
California, and also Guam, Hawaii, and the Northern Marianas Islands. 
The new Twelfth Circuit would include Montana, as well as Arizona, 
Nevada, and Idaho. The new Thirteenth Circuit would comprise the 
remaining states: Alaska, Oregon, and Washington. I know many in the 
Senate have revisited this issue every year, and I am pleased to 
support this current bill.
  Many times the judiciary in this country is bound to make unpopular 
but correct decisions, but lately, the Ninth Circuit has made decisions 
which I believe are both unpopular and wrong. Many Montanans who hold 
far more conservative views than the membership of the Ninth Circuit 
bench sitting in San Francisco were nonetheless bound to a particularly 
offensive decision made last year. The court found the phrase ``under 
God'' in the Pledge of Allegiance violated the Establishment Clause of 
the First Amendment when it is recited in school by our youngsters. The 
Supreme Court has heard this argument last month, and a decision is 
expected in July. This case highlights the disconnect between the San 
Francisco-based Ninth Circuit and my State of Montana which it 
supposedly represents. When I walk around Washington, DC, I see the 
presence of our forefathers and our tradition everywhere, which 
includes many references to God in our hallowed halls and on our 
currency. Many have given their lives in the name of God and country, 
and this faith has sustained us as a Nation. By limiting the words our 
children can utter in the classroom in support of this Nation and our 
faith, the Ninth Circuit has taken yet another step to remove all that 
is sacred for Americans. Americans know the words to patriotic songs, 
like ``God Bless America'' or ``America the Beautiful,'' but this may 
change if our Nation's young people are not permitted to sing them in a 
classroom. I find this decision extremely upsetting, because now more 
than ever, we need to teach our children a little more about faith in 
America and patriotism. There used to be a time when most young people 
felt compelled to serve their country, whether it be completed through 
military or volunteer service, but now it seems as though those numbers 
lessen every year. In America, we pride ourselves on the willingness of 
individuals to lend a helping hand, and I am saddened that the court 
has played an instrumental part in gradually eroding our Nation's 
values.
  One of the other areas the Ninth Circuit has repeatedly addressed is 
land management, which usually has a negative effect on my State of 
Montana. One need only look to some of the court's recent decisions, 
which all share one commonality: they represent

[[Page S6080]]

the conclusions of a bench that is thoroughly unfamiliar with land use 
and its implications on Montana.
  It is worth noting at the outset that many cases never make their way 
to the Ninth Circuit docket, simply because the parties know the fate 
of their cause. This is especially true for the Forest Service, which 
has lost many battles in front of the Ninth Circuit, and Montana is 
certainly not better off for it.
  For example, in Native Ecosystems Council v. Dombeck, the Ninth 
Circuit found that the Forest Service violated the National 
Environmental Policy Act, NEPA, as well as the Endangered Species Act. 
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 890, 9th Cir. 2002. 
In this case, environmental groups challenged the validity of the 
Darroch- Eagle timber sale by the Forest Service. At the district court 
level, the Montana judge felt so strongly that the environmental groups 
did not have a claim that he granted summary judgment in favor of the 
Forest Service. This is important given the legal significance of 
summary judgment. Even if all of the plaintiff's claims are true, there 
is no legal remedy available. The Ninth Circuit turned this decision on 
its head, and issued an injunction against the Forest Service so they 
could not proceed with the sale.
  In a similar situation, the Montana district court again granted 
summary judgment for the Forest Service in 2003, and again, the Ninth 
Circuit reversed. In Sierra Club, Inc. v. Austin, an unreported case, 
the Ninth Circuit found that the Forest Service's post-burn plan for 
Lolo National Forest violated NEPA. According to a front-page story 
carried by the Missoulian in December, 2003, the post-burn project 
would have permitted salvage logging of 2,322 acres and commercial 
thinning of 2,470, no small undertaking by any means. Even though the 
court found that the water-quality assessment done by the Forest 
Service was not arbitrary and capricious, it nonetheless concluded that 
the actions by the Forest Service in the environmental impact 
statement, EIS, did not include analysis of the logging effects on 
unroaded areas, and therefore violated NEPA in that sense.
  Also in 2003, the Ninth Circuit found the Forest Service had 
potentially violated portions of the Montana Wilderness Study Act in 
Montana Wilderness Ass'n v. U.S. Forest Serv., 314 F.3d 1146, 9th Cir. 
2003. This act was passed by Congress in 1977 to allow the study of 
certain lands, to be called wilderness study areas, so that they could 
maintain their wilderness character and possibly be included within the 
National Wilderness Preservation System. Since no final designation of 
a wilderness area had been given, the Forest Service had been operating 
under temporary rules for the past 25 years. Apparently, the Ninth 
Circuit found that there was an issue to be resolved by allowing the 
trial to proceed, and remanded the case to go ahead to trial. The case 
has now been appealed to the Supreme Court.
  These three cases highlight recent action of the Ninth Circuit. The 
last two years have been extremely litigious ones for the Forest 
Service in Montana, and I regret the time and energy that the Forest 
Service has had to put forward on this issue, but especially the 
taxpayers' money involved needed to defend against all of these claims. 
The Ninth Circuit's sympathy for the claims by various environmental 
groups has provided an attractive solution to any local Montana court 
decision they may not like. Unfortunately, the taxpayers end up footing 
this bill, and the stewards who protect our forests are being second- 
guessed at every turn.
  The Ninth Circuit is also rendered ineffective because of the size of 
its bench as well as its extensive geographic coverage. There are 47 
judges on the bench, and as noted legal scholar Richard A. Posner once 
explained that the circuit is predisposed to ``judicial 
irresponsibility'' because of its size. One Ninth Circuit judge, Andrew 
Kleinfeld, said the judges do not even have the time to read one 
another's opinions, which provides little guidance to other judges or 
those affected by their decisions.
  The problems with the Ninth Circuit are due to many factors, whether 
it be the geographic size of the region, the number of judges, or the 
impractical decisions issued by those judges. The legislation recently 
introduced will address this problem, so that Montanans will benefit 
from a more reasonable bench, which will reflect the opinions of those 
in our area, rather than those located near San Francisco.
  In order to best preserve the common sense that Montanans pride 
themselves in, I am pleased to support this bill. Let's bring a little 
common sense back to the judicial system. This is certainly a step in 
the right direction.

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