BEFORE THE COMMISSION
ON STRUCTURAL ALTERNATIVES FOR THE
FEDERAL COURTS OF APPEALS
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STATEMENT OF TODD D. TRUE
Managing Attorney, Northwest Office
Earthjustice Legal Defense Fund, Inc.
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INTRODUCTION
I am Todd True, the managing attorney for the Northwest Office of the Earthjustice Legal Defense Fund, Inc. (formerly the Sierra Club Legal Defense Fund, Inc.). I have worked as an attorney with the Legal Defense Fund since 1987 when it first opened a Northwest Office.
The Legal Defense Fund is a non-profit, public interest law firm that represents citizens groups in litigation to protect our natural resources and enforce our federal and state environmental laws. We have nine offices across the country. Four of our offices are located within the geographic jurisdiction of the U.S. Court of Appeals for the Ninth Circuit. In addition to the Northwest Office in Seattle, these include our offices in Juneau, Alaska, Bozeman, Montana, and San Francisco, California.
Over the years, many of our most important cases have involved disputes over the application of federal environmental laws to management of federal public lands in the states covered by the Ninth Circuit. These cases have included a series of lawsuits to protect the northern spotted owl and its ancient forest habitat, see, e.g., Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991); Lane County Audubon Society v. Jamison, 958 F.2d 2%(9th Cir. 1992); Seattle Audubon Society v. Lyons, 871 F.Supp. 1291 (W.D. Wa. 1994), aff'd 80 F.3d 1401 (9th Cir. 1996), lawsuits to protect the natural resources of the Tongass National Forest in Southeast Alaska, Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 T.3d 723 (9thCir. 1995); City of Tenakee Springs v. Franzel, 915 F.2d 1308 (9th Cir. 1992), and current litigation to protect endangered salmon and their habitat all along the west coast from California to Alaska, see, e.g., Pacific Rivers Council v. Forest Service, 30 F.3d 1050 (9th Cir. 1994); Northwest Resource Information Center v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994).
Not surprisingly, the nature of our work frequently leads to appeals before the Ninth Circuit. Over the years, Legal Defense Fund attorneys have handled dozens and dozens of these appeals as both appellants and appellees, and I have briefed and argued quite a few myself. This experience has given both my organization and me a close familiarity with how the current Ninth Circuit works, both in appeals that are routine and in those that are not. In addition, because many of the cases we have handled have been controversial and have provoked congressional responses to both the outcome of individual cases and the court of appeals itself, see Parloff, "Liti-slation," The American Lawyer at 80-85 (Jan./Feb. 1992)(reporting on legislative responses to then pending environmental cases), the Legal Defense Fund has followed closely legislative efforts to restructure the Ninth Circuit since at least the late 1980s, including providing testimony to the Senate Judiciary Committee in 1990 in opposition to S. 948, a bill to divide the Ninth Circuit into two courts of appeals.
All of this experience, both in court and out, has led to a number of observations relevant to the Commission's task of evaluating the pros and cons of redesigning the current Ninth Circuit. First, and most importantly, our experience with appeals in the Ninth Circuit confirms that the Court currently handles its case load effectively and efficiently. Whether we win or lose, our cases are handled with individual attention and procedural care.
Second, in the area of federal natural resources and environmental law, there are significant advantages to the current geographic reach of the Ninth Circuit. For example, the current Court encompasses over 70% of the nation's public lands, the marine ecosystems of the Pacific coast, and several large river drainages that cross many state boundaries. A single federal court of appeals that can interpret and apply uniformly federal environmental laws to these large natural systems ensures a consistency of management and legal standards that would be unavailable in a divided circuit. Moreover, despite occasional claims to the contrary which are sometimes offered as a reason to restructure the Ninth Circuit -- we can find no empirical evidence that the current Court, or judges from any geographic area of the Circuit, favor environmental plaintiffs, or issue pro-environment decisions affecting areas in the Circuit distant from where the individual judges reside.
Finally, because most of the judges of the Ninth Circuit, and most of the bar organizations within the Circuit, oppose restructuring the existing Court, considerations of inter-institutional respect between congress and the courts counsel strongly against a legislative restructuring of the Ninth Circuit.
Let me expand on each of these points briefly.
A. The Ninth Circuit Currently Is Efficient and Effective.
The basic facts and statistics to demonstrate that the Ninth Circuit today is an effective and efficient federal court of appeals are straightforward. The Court today resolves far more appeals than it did eight years ago with the same number of authorized judges. This result is particularly remarkable because for the last several years the Court has been plagued by a very high number of vacancies and a very low appointment rate. Indeed, persuading the President and Senate to act to fill the existing vacancies on the Court is surely the most important corrective measure that could be taken to improve the Court's overall performance. The fact that so many nominations to the Court have languished for so long in the Senate is an inexcusable affront to the administration of justice.
Despite this glaring problem, the evidence indicates that the active judges of the Court are quite effective in deciding cases. Among the circuits, the active judges of the Ninth Circuit resolve the third largest number of appeals per judge of any of the federal courts of appeals. Once a case is briefed and submitted to a panel of judges, the Court also is the third fastest of the circuits in issuing decisions. Finally, while the overall time from filing an appeal to disposition of the case in the Ninth Circuit, on average, exceeds the average for all of the courts of appeals combined, it takes only 30 to 60 days longer than in the Sixth Circuit which has about half the number of judges as the Ninth Circuit. See Federal Court Management Statistics at 26-27 (1996).
The point of these statistics is two-fold. First the judges of the Ninth Circuit work very efficiently; and, second, there is no indication that the size of the current Circuit affects its efficiency. Based on my own experience, I can confirm what the statistics indicate that the Court pays close attention to the appeals it handles and manages them well. Over the years, I have handled many appeals that have involved emergency motions to review or obtain equitable relief, expedited hearings, consolidated and/or expedited briefing schedules, and a laundry list of other skirmishes and issues. The Court and its staff have consistently treated both the procedural and substantive issues in these appeals in a timely and considerate way although not always providing the outcome I sought. For example, a panel of the Court once secured the involvement of another active judge to help the parties quickly settle the scope of injunctive relief in a case, the civil motions attorneys for the Court have received motions on Saturdays and prepared materials for decision by a motions panel early the following week, and we have had a number of appeals where the Court's mediation attorneys have worked with us to resolve disputed issues. In addition, among many innovative local rules, the court has recently adopted a rule to routinely expedite appeals from preliminary injunction orders. All of these efforts reflect a Court determined to serve those that come before it well.
Even in more routine appeals, I have never appeared before a panel of judges that was not well prepared and familiar with the case sometimes I have even wished they were less familiar with some particular fact or issue on which they have chosen to focus. The Court also has made effective use of technology so that today I can sit at my computer in Seattle, connect to the Clerk's office in San Francisco, and call up an up-to-date court docket in any appeal I am handling. In addition, issues in appeals are tracked electronically to avoid inconsistent rulings, and the Court usually is able to schedule oral arguments in the region where the appeal arises. In short, we have never experienced a situation where an appeal was resolved de facto by the Court's inattention.
All of the steps, large and small, that the Court has taken to increase its efficiency add up to a picture of a large circuit functioning well.
B. The Existing Ninth Circuit Is Well Suited To Address The Broad Regional Environmental Issues Of The Western United States.
The large territory under the Ninth Circuit's jurisdiction includes many natural resources, ecosystems, and environmental problems that cross the borders of the states within it. Indeed, as I noted at the outset, over 70% of the nation's federal public lands are located within the Ninth Circuit. A single court of appeals that can determine a rule of federal law for application across this large territory, with its transregional environmental issues, significantly enhances the opportunity to protect and manage our public resources. Moreover, we have twice surveyed the Ninth Circuit's published opinions on environmental subjects, once in 1990 and again last year, and on both occasions the opinions reveal a consistent and uniform application of the environmental laws regardless of where the case arises or which judges are assigned to hear it.
1. The advantages of a large regional circuit.
Even a brief review of Ninth Circuit decisions in the environmental area provides ready examples of the important advantages of the current Ninth Circuit for addressing trans-regional environmental issues.
For instance, in the late 1980s, the Court decided a series of cases resolving the application of several federal environmental laws to the geographic range of the northern spotted owl, an area that extends from just north of San Francisco to the Canadian border. Having judicial review of the government's unified plan for managing the habitat of this species on federal lands split between two courts of appeals would have offered no advantages and many potential pitfalls.
Similarly, today the National Marine Fisheries Service is engaged in a series of decisions about whether to list several species of salmon under the Endangered Species Act. Most of these decisions involve species like the coho and chinook salmon that inhabit rivers and streams up and down the west coast. Some of these agency decisions already have found their way into federal court and others inevitably will. The Ninth Circuit's current geographic scope insures that when these regional decisions are reviewed, a uniform interpretation of the law will be applied to them and to the full west coast range of the species. Under a single court of appeals, there is no opportunity for one run of chinook salmon in California to be subject to a different interpretation of federal law than another run of chinook in Washington.
The point is that the existing territorial jurisdiction of the Ninth Circuit encompasses both natural ecosystems and environmental issues that are now subject to a single uniform rule of law. This is an important advantage that should not be lightly discarded.
2. There is no regional divergence within the Ninth Circuit in its interpretation or application of the environmental laws.
In the past, proponents of dividing the Ninth Circuit have argued that environmental issues arising within a particular region of the Court were decided differently by members of the Court from outside that region than they would be by members of the Court from within that region. This premise for redesigning the Court is demonstrably false.
Twice now we have surveyed the published environmental opinions of the Ninth Circuit on all environmental topics, once for the period from 1987 through 1990 and again for the period 1994 through 1997. On the first occasion we found that out of 110 environmental cases, 45 of which involved citizen environmental groups, the plaintiffs won proportionally more reversals of the district court where the panel of circuit judges included two judges from states recently proposed for separation from the California portion of the existing Ninth Circuit than they did where the majority of the panel was from the southern part of the circuit (a 60% reversal rate versus a 54% reversal rate). Moreover, the entire group of environmental opinions was about evenly split between affirming and reversing judgments of the district courts, both those district courts within states proposed for a new circuit and those outside it.
When we made a similar survey last year for the period from 1994 through 1997, we found very similar results. Of a total of 73 published opinions in environmental cases, the environmental interests prevailed in 32, lost in 33, and in 8 cases the outcome of the appeal split between the appellants and the appellees. In twenty-nine of these 73 cases, the three-judge panel consisted of at least two judges from California. In these 29 cases, the environmental interests prevailed on ten occasions and lost on 19. Eighteen of these 29 cases involved issues arising outside California. In only five of these 18 did the environmental interests prevail while in 13 appeals they lost.
Certainly, these figures, from both of our surveys of the Court's environmental opinions, reveal neither domination of a particular region by judges appointed from states outside the region nor an overall tendency in the existing Ninth Circuit to side with environmental interests. In short, the Ninth Circuit and its judges are simply far better positioned than a divided circuit would be to address consistently and uniformly the broad regional environmental issues that arise in the Western United States.
C. The Ninth Circuit Should Not Be Split Over The Objections Of The Court's Judges.
My last point is the simplest and probably the most important. The legislative and judicial branches of our government traditionally accord each other great respect and comity in matters involving their own self-governance. See, e.g., 28 U.S.C. §§ 41, 44-46 & 133 (Omnibus Judgeship Act of 1978); 28 U.S.C. §§ 1, 331-32, & 372 (Judicial Councils Reform and Judicial Conduct and Disability Act of 1980)(inviting federal courts of appeals with more than fifteen judges to introduce innovative procedures or seek division)(dividing former Fifth Circuit at the Court's request); Baker v. Carr, 369 U.S. 186 (1962)(after decades of restraint and only under constitutional command did the Supreme Court authorize judges to reapportion legislatures). This respectful deference between coordinate branches of the government in matters of self-regulation is appropriate.
Today, as in the past, the bench and bar of the Ninth Circuit overwhelmingly oppose circuit division. In addition to the judges of the Court, this opposition includes the Judicial Council of the Ninth Circuit, the Ninth Circuit Judicial Conference, and the state bars of Arizona, California, Hawaii, Idaho, Montana, and Nevada. No state bar organization has taken a position in favor of the split.
This alone is a compelling reason to allow the Ninth Circuit to continue as a single court and to continue its innovation and experimentation with technology and procedures to make a large circuit work. Any other recommendation would run counter to both the Ninth Circuit's record of efficiency and inter-institutional respect that is essential to our government's constitutional structure.
CONCLUSION
The Ninth Circuit works well today. Its territorial jurisdiction is a significant advantage in the area in which I practice, environmental and natural resources law. Its rulings in this area are consistent and uniform. There is no good evidence, let alone compelling or exceptional evidence, that would justify dividing the Circuit over the objection of its judges and those who practice before it.
Thank you for the opportunity to present these views.