Individuals and entities with concerns regarding environmental issues as well as those concerned about the federal judicial system have carefully followed the debate over the possible division of the United States Court of Appeals for the Ninth Circuit that has been raging since 1995. During the first session of the 105th Congress, the Senate approved an appropriations rider, which would have established a new Twelfth Circuit including Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands, and would have left California and Nevada in the Ninth Circuit. That action was very important because neither house of Congress had ever voted to split the Ninth Circuit, and this session could well have done so. Circuit division might have significantly affected the environment, public lands, and natural resources, as well as the federal courts of the West and the nation. In November 1997, however, Congress rejected circuit bifurcation and approved a study of the appellate system that would emphasize the Ninth Circuit.
Congress authorized the Chief Justice of the United States to appoint the Commission on Structural Alternatives for the Federal Courts of Appeals (the Commission) in December 1997. The Commission closely analyzed the appellate courts and the Ninth Circuit for nearly a year and issued a report with constructive suggestions for improvement. Because the commissioners were experts, had committed much effort to the assessment, and developed a comprehensive report, their recommendations promised to be influential. For example, the Commission proposed the idea of adjudicative divisions for the Ninth Circuit today and for the other appeals courts as they grow, while the commissioners clearly and forcefully rejected the possibility of splitting the Ninth Circuit. These suggestions have already proved controversial. For instance, soon after the Commission tentatively recommended the divisional arrangement, most active and senior appellate judges of the Ninth Circuit sharply criticized it, even as seven other members of the court urged the commissioners to endorse bifurcation. Some senators who reluctantly agreed to the study as a necessary, albeit unpalatable, condition precedent to dividing the circuit, recently introduced proposed legislation which would split the court, while several senators had earlier offered a measure that incorporates the Commission's suggestions.
If Congress passes a statute that would bifurcate the Ninth Circuit or adopts the Commission's concept of adjudicative divisions and additional Commission recommendations, these actions could substantially affect the environment and the federal courts in the western United States and the country. The extraordinary quantity and quality of natural resources that the Ninth Circuit encompasses accentuate the importance of the commissioners' report and proposals. Illustrative are the large percentage of national parks, the many wilderness areas, and the significant number of national wildlife refuges that are situated in the Ninth Circuit.
These considerations mean that the recent report and suggestions of the Commission deserve evaluation. This Article undertakes that effort. Part I of the Article analyzes the developments that led to the creation of the Commission. Part II briefly discusses the commissioners' work. Part III analyzes the Commission's report and proposals by emphasizing the potential effects of the recommendations on natural resources. Part IV sets forth suggestions for the future.
Carl Tobias, Natural Resources and the White Commission Report, 79 Or. L. Rev. 619 (2000)