494 F.3d 771

FERGUSON, Circuit Judge,
concurring, in which Judge REINHARDT also concurs.
I write separately to respond to Judge Smith’s special concurrence.
At the outset, I disagree with Judge Smith that Ecology Center was wrongly decided. I see little controversy in holding that an agency’s failure to confirm its hypotheses in a project area is arbitrary and capricious. I also note that the Supreme Court denied certiorari in that case. Mineral County v. Ecology Ctr., — U.S. —, 127 S.Ct. 931, 166 L.Ed.2d 702 (2007).
More importantly, however, I take issue with the part of his special concurrence that, with no evidence whatsoever, assigns to the courts of our circuit culpability for the status of the timber industry and impugns the last several decades of our circuit’s environmental law jurisprudence. Judge Smith takes the plain fact that district courts in our circuit have enjoined logging projects in the past, adds the claim that the timber industry is declining, and asserts a causal relation between the two. In doing so, Judge Smith commits a textbook logical fallacy: post hoc, ergo propter hoc (after this, therefore because of this). See, e.g., Robert J. Gula, Nonsense: A Handbook of Logical Fallacies 95 (2002). The mere fact that there has been a “severe decline in logging” does not mean that it has been “brought about by sweeping federal court injunctions.” Judge Smith cites no evidence for this claim.
Judge Smith’s two premises, first, that there has been something amiss in the issuance of injunctions, and, second, that the timber industry has declined as a result, are entirely erroneous.
First, Judge Smith provides little evidence for his contention that district courts have issued injunctions that are “blunderbuss,” “over-broad,” “sweeping,” or “aggressive.” Judge Smith discusses no particular injunctions, aside from that in Ecology Center, yet he nevertheless asserts that we have “aggressively issue[d] extremely broad injunctions against the logging industry.” Judge Smith contends that there is a “pattern by some courts in this circuit of issuing injunctions based upon misconstructions of federal law that frustrate the careful legal balance struck by the democratic branches of our government.”
Respect for “the democratic branches of our government,” however, requires that courts enjoin conduct that violates the environmental laws passed by Congress. A pattern of injunctions means that there has been a pattern of illegal conduct, not that there is something wrong with the courts’ handling of environmental cases. In Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177-78 (9th Cir.2006), our colleague Judge William Fletcher “noticed a disturbing trend in the [Forest Service's] recent timber-harvesting and timber-sale activities” and suggested that the Forest Service has “been more interested in harvesting timber than in complying with our environmental laws.” See id. (citing numerous recent cases in which federal courts have reversed or enjoined Forest Service timber sales). District courts must not shy away from enjoining illegal activity by administrative agencies. The fact that we have upheld or required such injunctions in the past, and will continue to do so in the future, is required by, not contrary to, our role as an appellate court. The frequency of injunctions is evidence of the frequency of unlawful agency actions, nothing more and nothing less.
Second, Judge Smith’s assertion that such injunctions are substantially responsible for “the decimation of the logging industry in the Pacific Northwest” is unsupported. As with many sectors of our economy, it is the practices of the timber industry itself that have caused massive unemployment, not the practices of those who would check its unhindered “progress.” Derrick Jensen and George Draf-fan rightly argue that debates about forest protection should never have been positioned as “jobs versus owls,” but rather “jobs versus automation, mergers, and downsizing.” Derrick Jensen & George Draffan, Strangely Like War: The Global Assault on Forests 51 (2003). They explain the impact of industry practices on employment as follows:
As companies continue to merge in order to reduce industry overcapacity and boost market share, they shed jobs. In the 1970s and 1980s, the number of paper mills in the United States decreased by 21 percent, but the average output per mill increased by 90 percent. Paper production in that period increased by 42 percent, while employment in the industry decreased by 6 percent. The amount of timber cut increased 55 percent, while the number of logging and milling jobs decreased by 10 percent, or 24,000 jobs. In just one decade (1987— 1997), employment in pulp mills decreased by 2,900 jobs, and employment in paper mills decreased by 12,100 jobs. Output per employee in the U.S. paper industry has increased fourfold in the last fifty years. The wave of consolidation in the pulp and paper industry that began in the late 1990s is expected to cost another 50,000 jobs.
Id. at 50-51(citing Miller Freeman, Inc., Pulp & Paper 1998 North American Fact-book 71, 72, 76 (1998), Maureen Smith, The U.S. Paper Industry and Sustainable Production 40, 43, 72 (1997), and Michael Jaffe, Industry Surveys: Paper & Forest Products 4 (1998)). We can see such impacts in this very case: much of the economic decline near Boundary County, Idaho was caused by the 2003 decision of Louisiana-Pacific, a leading manufacturer of building products, to close its mill in Bonners Ferry. That closure, which left 130 workers unemployed, resulted from the decision of the corporation, not an injunction from our courts.
Contrary to Judge Smith’s suggestion, it appears that too much logging, rather than not enough, has caused the economic decline in Boundary County. A spokesperson for Riley Creek Lumber Company, the company that bought the mill site from Louisiana-Pacific, explained why the mill would not reopen: “There’s not enough raw material to support a mill operation at Bonners Ferry.” A Louisiana-Pacific spokesperson also explained the closure, stating, “In the lumber business, we continue to see an oversupply situation, with historic low prices.” By depleting the “raw materials” and depressing the price of lumber through oversupply, the industry has put people out of work.
I have the utmost sympathy for those left unemployed by these recent trends, but I cannot accept Judge Smith’s assertion that the judiciary, rather than the industry, is primarily to blame.
. Judge Smith's ad hominem attack against Jensen and Draffan does not address the merits upon which the authors base their contentions. Regardless of how one feels about these two individuals, their argument quoted herein is a quantitative analysis, citing other studies. It has nothing to do with blowing up dams. Furthermore, I do not think politically engaged individuals are disqualified from contributing to the analysis of an issue. It is certainly not our role to determine who we think is or is not in the political "mainstream” and to credit their research accordingly.
. Dan Hansen, Bonners Ferry Mill Won’t Reopen, Spokesman Rev. (Spokane, WA), July 23, 2003, at A8.
. Becky Kramer, Timber Town May Buy Two L-P Sawmills, Spokesman Rev. (Spokane, WA), May 30, 2003, at A1 (emphasis added).
. Notably, while low-income workers have been laid-off, the world's largest paper companies have provided multi-million dollar pay packages to their CEOs. Louisiana-Pacific’s CEO received a ten-percent salary increase and a package worth $3.6 million in 2006. Louisiana-Pacific, Notice of Annual Meeting of Stockholders 21, 25 (2007), available at http ://libraty. corporate-ir.net/library/73/730/ 73030/items/ 237173/2006proxy.pdf. International Paper’s CEO received a package worth $13.7 million in 2006. International Paper, Notice of Annual Meeting of Shareholders 50 (2007), available at http://www.internation alpaper.com/PDF/PDFs_for_Our_Company/ 2007_ Proxy_Statement.pdf. Weyerhaeuser’s CEO received a package worth $4 million in 2006. Weyerhaeuser, Notice of 2007 Annual Meeting of Shareholders and Proxy Statement 27 (2007), available at http://library. corporate-ir.net/library/92/922/92287/items/ 235323/WY2007ProxyStatement.pdf. Georgia-Pacific's former CEO received a $92 million package when the multi-billion dollar Koch Industries acquired Georgia-Pacific in 2005 to become the largest privately owned company in the United States. Emily Thornton, Fat Merger Payouts For CEOs, Bus. Wk., Dec. 12, 2005, at 34; Koch Industries Inc.: Acquisition of Georgia-Pacific For $13.2 Billion Is Completed, Wall St. J., Dec. 24, 2005, at B2.

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