Western Innovator: In defense of resource industries
Work in the Northwest’s rangelands and forests has been reshaped in recent decades by the environmental laws that ranchers and loggers must navigate.
The changes are often propelled by conflicts decided in federal court, an arena where attorney Scott Horngren has made his mark as a defender of natural resource industries.
Important legal opinions can arise from lawsuits over relatively minor projects that affect endangered species and public lands — major subjects of litigation in the West.
For this reason, Horngren sees certain battles as worthwhile even if they don’t involve enormous timber tracts or grazing allotments, since losing one fight can have a domino effect.
“That precedent is going to hurt you in the next case,” he said.
The general thrust of major U.S. environmental statutes is set by Congress, and their enforcement is carried out by federal agencies, but key questions about how these laws should function are often answered by judges.
“It’s up to the courts to decide what (statutes) mean in the absence of clear direction,” Horngren said. “Those interpretations are a huge part of natural resource law.”
In nearly three decades of legal practice, Horngren has represented private companies — often when they’re caught in the middle of disputes between environmentalists and the government — and influenced federal policy as an attorney for the American Forest Resource Council, a nonprofit industry group.
Now, he’s turned his attention to educating the next crop of natural resource attorneys while continuing to litigate cases that impact agriculture, timber and mining at the Western Resources Legal Center, which is affiliated with Lewis & Clark Law School in Portland.
Unlike most nonprofit environmental law centers, WRLC is dedicated to helping natural resource industries rather than thwarting them.
The program represents parties in select lawsuits that have the potential to set legal precedent and provide an educational experience for law students.
Horngren is a natural fit for this role as a teacher-litigator, as he’s well-versed in a variety of industries affected by environmental laws, said Caroline Lobdell, executive director of WRLC.
“We can’t let all that talent just walk out the door,” she said. “He’s the true definition of a natural resources lawyer.”
New lawyers have long turned to Horngren for advice as a “wise sage” of natural resource law, said Tim Bernasek, chair of the agriculture, food and natural resources team at the Dunn Carney law firm.
After retiring from a successful private practice, Horngren is still contributing to the field instead of devoting himself to golf or other pastimes, he said.
“It’s a testament to his character and devotion to this industry,” Bernasek said. “There are not a lot of people who are willing to do that.”
During his career, Horngren has noticed subtle shifts in the effect of environmental litigation on natural resource industries.
While the public’s attention is often drawn to pivotal cases, the profusion of environmental litigation has also had a more gradual effect: Federal agencies have become more gun-shy about making decisions.
For example, due to pressure from environmentalists, the government is often persuaded to scale back watershed-scale thinning projects until they’re a fraction of their original scope, Horngren said.
“The agencies continue to be scared of litigation and the environmental groups,” he said.
The legal landscape facing natural resource users isn’t all doom and gloom. Horngren said the 9th U.S. Circuit Court of Appeals, where many Western environmental cases end up, has grown more even-handed in recent years.
In the early days of Horngren’s career, the 9th Circuit was “stacked” with judges who weren’t sympathetic to federal management policies, he said. More recent 9th Circuit appointees, though, are less biased in favor of environmental plaintiffs.
A key 2008 opinion by a broad “en banc” panel of 9th Circuit judges, known as Lands Council v. McNair, has also helped level the playing field.
Horngren represented logging companies and local governments in that case, which pitted environmentalists against a 3,800-acre selective logging project in Idaho’s Panhandle National Forest.
In its ruling resolving the dispute, the 9th Circuit overturned two of its own previous decisions because they misconstrued federal forest management law.
The 9th Circuit held that it’s “not a proper role for a federal appellate court” to “act as a panel of scientists” that scrutinizes federal decisions and orders agencies to “explain every possible scientific uncertainty.”
“Since McNair, the pendulum has swung back more toward the middle,” Horngren said.
Though much of his work life has been spent in the courtroom, it was a love of the outdoors that started Horngren on his career path.
Long bicycle trips through the woods convinced him to pursue a career in forestry, he said. “I figured I’d be a forester and sit it a lookout tower all day and life would be good.”
After graduating from Oregon State University, however, the timber economy was depressed while the controversies over forest management were heating up.
In this climate, Horngren became a lobbyist for timber industry groups. However, he soon realized lawsuits were influencing forest managers more than reasoned arguments and he began studying for his law degree.
“I saw that the future of public lands management is all this litigation,” he said.
Scott Horngren
Occupation: Natural resource attorney
Age: 61
Hometown: Portland, Ore.
Family: Wife, Yona McNally, and a grown son
Education: Bachelor of science in Forestry from Oregon State University in 1977, juris doctor from Lewis & Clark Law School in 1988.
