Footnotes of note

As a reporter who is constantly reading court decisions, my eye is always drawn to the place where judges let it all hang out: the footnote. I have come across two of interest in the last week.

The first was by Judge William Fletcher of the 9th U.S. Circuit Court of Appeals in a decision ordering the U.S. Forest Service to carry out a new environmental study on the impact of a forest management plan. Fletcher, like me, appears to have had it up to here with bureaucratic gobbledygook. He used a series of six footnotes to tear apart some of the agency’s prose. Among his complaints: the Forest Service referred to Resource Conservation Areas when it really meant Riparian Conservation Areas1.

Fletcher concluded with this footnote:

We remind the Forest Service: “Environmental impact statements shall be written in plain language . . . so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements.”

Take that, Forest Service!

The second footnote that got my attention was quite different in tone. In a decision invalidating a Bush administration-era rule concerning the Endangered Species Act, U.S. District Judge Gladys Kessler apologized for taking so long to issue her ruling (more than five years), showing a humility that federal judges aren’t often known for:

The court is well aware of how old plaintiffs’ motion is, and deeply regrets the delay in deciding it. Excuses always ring hollow and particularly so when given by federal judges. I hope the parties will accept the court’s apologies.

Kudos to both judges for speaking their minds.

1 I’d like to use this footnote to point out that it’s not just federal agencies (and reporters) that can get acronyms wrong. Take, for example, Judge Charles Wilson of the 11th U.S. Circuit Court of Appeals, who in this ruling refers to the National Environmental Protection Act, when I think he meant the National Environmental Policy Act.

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Lawrence Hurley

Reporter based in Washington