Mr. Kenna goes to Washington
Local attorney to argue landmark case before Supreme Court

Matt Kenna, an attorney with the Durango-based Western Environmental Law Center, is off to argue before the U.S. Supreme Court in two weeks. Kenna’s case challenges the U.S. Forest Service’s ability to approve timber sales without environmental review or public input. /Photo David Halterman

by Ken Wright

Matt Kenna is dressed in shorts and sports a “Who’s Your Daddy” T-shirt. He has kicked his flipflops off and sits barefoot in his small Second Avenue office – the one with the skis hanging on the wall next to the Trimble Hot Springs Jazz Fest posters. A fake box of “Spotted Owl Helper” sits on the bookshelf next to the kitchen scale labeled “The Broken Scales of Justice.” The view is west toward Perins Peak, the Hogsback, the La Platas and the entire West itself – Kenna’s home and workplace.

On this day, at least, he almost looks a little too “Durango” to be preparing to argue in front of the U.S. Supreme Court in a couple of weeks.

As a public-interest environmental lawyer with the Western Environmental Law Center, Kenna sues the federal government over actions that break its own laws. Kenna and his law-firm partner, Geoff Hickcox, are engaged in litigation on issues ranging from endangered species habitat to the Village at Wolf Creek controversy to the Four Corners Power Plant.

Among these cases is a 2003 suit, Earth Island Institute v. Pengilly. In this lawsuit, Earth Island sued the Forest Service over a timber sale in California that the agency approved without environmental review or public involvement. The sale was one of many the government was making without public involvement, as part of the Bush Administration’s “Healthy Forests Initiative.” Under this controversial policy, the government expanded the list of actions that were exempt from the National Environmental Policy Act (NEPA) in the name of expanding and speeding up the thinning of national forests to reduce wildfire threats.

NEPA requires environmental studies and public input on projects on public lands, but it includes exemptions for small actions, “like cutting Christmas trees or mowing the ranger’s lawn,” says Kenna. But the Burnt Ridge Timber Sale was not a small project.

“It was 2 million board feet,” Kenna says. “That’s 400 log trucks worth of timber.”

In 2003, the court ruled that the project was illegal, and the timber sale was stopped. Soon after, though, that lawsuit became part of a broader legal action brought by a coalition of environmental groups that challenged the Forest Service’s entire policy of exempting many timber sales from public review. Kenna took charge of this next phase, and in 2005 the court again agreed, and the government was forced to require public involvement in all its timber sales and other actions.

After its defeat, the Forest Service tried to create a backlash on the decision by applying NEPA to everything – including weddings, mushroom picking and the issuing of individual Christmas tree-cutting permits – a response the Washington Post called “sulking.”

The Forest Service fought on, though. The agency appealed the 2005 decision, but it was affirmed by the U.S. Court of Appeals for the 9th Circuit in 2006. The government then petitioned the Court for a rehearing, and it was reaffirmed yet again in 2007. With only one option left, the agency asked the U.S. Supreme Court to rule on the case, and on Jan. 18 of this year, the Court accepted.

Arguments will be presented before the Justices on Oct. 8, and the Court’s decision will be announced three to six months after that.

Now called “Summers v. Earth Island Institute,” the case is being closely watched by watchdog groups and industry alike. “The decision will apply to the Forest Service,” Kenna explains, “but the larger issue is the right to challenge federal regulations at all.”

He continues, “This decision will affect the ability of the public to comment on and make administrative appeals on Forest Service regulations and would change 50 years of the public’s ability to challenge things they think are illegal. It would mean you couldn’t challenge federal regulations and have them set aside nationwide, you could only challenge individual applications of regulations, like a timber sale here and a timber sale there.”

Kenna was again chosen by the groups backing the suit to face the ultimate scales of U.S. justice, a nod he accepts as an honor. “I’ve worked with those clients for a long time, so they have confidence in me and my ability, which is very affirming,” he says. “I hate to use a cliché, but it’s fulfilling a dream I’ve always had, to argue a case in front of the Supreme Court.”

It’s also a rare opportunity. The Supreme Court accepts about 80 cases each year – only about 4 percent of the petitions they receive. And most of those get handled by a select group of Washington, D.C.,-based lawyers who specialize in Supreme Court arguments.

“All I know right now,” he adds, making an old-movie buff think of Jimmy Stewart in Mr. Smith Goes to Washington, “is I can’t wait to get into the woods to go elk hunting the day after I get back.”

Helping Kenna make that transformation from Durango guy to Supreme Court “Counsel of Record” is Public Citizen, a Washington, D.C., organization that helps public-interest lawyers prepare for Supreme Court appearances. For five months, the group helped Kenna research and write the 56-page brief for the suit, “which is really what the case is decided on,” he says. By the time he has his hour before the Court, the nine Justices will have already read and evaluated the briefs from both sides. The “argument” – as the actual presentation before the Justices is called – is not like a trial; it’s more an opportunity for the Justices to ask questions. And to challenge the attorneys to think on their feet.

“Each side gets a half an hour, and in that time, the questions come an average of one every 30 seconds,” explains Kenna. “The hardest part of preparing is having to have so much knowledge at your fingertips.” To illustrate this, he displays a 6-inch-thick pile of paper locked into a three-ring binder – the research he has compiled for the case.

In Oregon, he was recently drilled in a “moot court” session by his colleagues, a rehearsal that includes questioning by attorneys and professors playing the roles of the Justices. When he goes to Washington the week before the event, he will do two more moot court sessions – one a full dress rehearsal held in a replica of the Supreme Court chambers.

Kenna has been doing his own research, as well. In March he traveled to Washington, D.C., where he attended the argument for the historic Second Amendment case “D.C. v. Heller.” This allowed him to see the Justices and their behaviors for himself, and may help dispel some of the mystique when all the eyes are on him in October.

Closer to home, peers and friends have also been freely dispensing advice. “Be careful not to concede points too easily.” “Don’t say ‘Umm.’” “Don’t just read from notes.” And his favorite: “Watch out for Scalia.”

Intrigued by this last one, Kenna read a book by Justice Antonin Scalia about how lawyers should present themselves in court. Some of the lessons he learned from the book: “Don’t wear fanciful dress,” Kenna says. “And don’t get cute. The Justices can make jokes, not you.”

Then Kenna reads directly from the book: “Men shouldn’t have pony tails unless it’s part of their special cultural heritage.”

He didn’t have to worry about that one, Kenna joked, “But I shaved off the beard I’d had for 15 years, just to be sure.”

And the question he’s been asked the most since people found out he was headed to the Supreme Court? It’s, “Are you buying a new suit?”

Kenna’s answer is again classic Durango “cultural heritage.”

“I’ve already got a dark one. It’s fine.” •



In this week's issue...

January 25, 2024
Bagging it

State plastic bag ban is in full effect, but enforcement varies

January 26, 2024
Paper chase

The Sneer is back – and no we’re not talking about Billy Idol’s comeback tour.

January 11, 2024
High and dry

New state climate report projects continued warming, declining streamflows