Denise Keele, Western Michigan University, (Presenter)
Robert Malmsheimer, SUNY-ESF,


The Ninth Circuit Court of Appeals (which includes AK, AZ, CA, HI, ID, MT, NV, OR, and WA) is often characterized as a liberal, pro-environment, activist court. Since the Ninth Circuit has jurisdiction over more than half of all U.S. Forest Service lands, its decisions have enormous influence on the legal environment of public land management. We test the proposition that litigation outcomes in the Ninth Circuit are significantly more liberal or activist on all federal court cases filed from January 1, 1989 to December 31, 2008, in which the U.S. Forest Service was a defendant in a lawsuit challenging a land management decision. Our primary measure of liberalism and activism is whether or not the court reversed or upheld the agency decision being litigated. Our results reveal that the Ninth Circuit was not significantly more likely to reverse agency decisions. However, the Ninth Circuit was significantly more likely to affirm agency losses from the District Court level, suggesting that the perception of the liberal Ninth Circuit may be based on the affirmation of liberal District Court decisions. Additionally, decisions that the Ninth Circuit opted to publish and thus make available as precedent were significantly more likely to reverse agency action. Thus, we suggest a combination of liberal high-profile published decisions and liberal District Court decisions may explain the characterization of the Ninth Circuit as a liberal, pro-environment, activist court.