Judge Kleinfeld let the Department of Justice know that he was on their side — if only they could have supported their case with a record and appropriate references in their brief. The judge’s note appeared in his concurring opinion in Sierra Club v. Bosworth. In that case, the 9th Circuit struck down the Forest Service’s categorical NEPA exemption for fuel reduction and prescribed burn projects in the National Forests.
Given the recent fires in Southern California and Lake Tahoe area, the subject of forest fire prevention is likely to excite spirited debate. For his part, Judge Kleinfeld noted:
“I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious. And I cannot quite bring myself to believe that the categorical exclusion in this case, covering less then one half of one percent of federal land, will have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires. …
Nevertheless, the government’s brief does not point us to anything in the record that supports my intuitive view. … The briefs and the record control, and the government has made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious … A judge’s duty is to decide the case based on the law and the record, not his personal policy preference. I am therefore compelled to concur.”
Whether at the administrative hearing or the trial level, counsel should always anticipate the appeal and make sure that there will be an adequate record to support the appellate arguments. As Judge Kleinfeld points out, once you are in the appellate court “the briefs and the record control.”