Judge Neil Gorsuch could bring some Western swing to the Supreme Court that it hasn’t had for years.
As a Denver-based appellate judge, Gorsuch has dealt with distinctly regional disputes, from snowmobiles in Yellowstone National Park and motorized vehicles in a Colorado national forest to a magnesium mine cleanup in Utah.
In his spare time, the 49-year-old Gorsuch hits the ski slopes and fly-fishes Western streams. Last February, he was skiing when he learned of Justice Antonin Scalia’s death. And though the conservative Republican appointee has made it harder for environmental groups to sue, and may in fact rarely be their ally, his public-lands perspective is firsthand and complex.
“Everyone enjoys a trip to the mountains in the summertime,” Gorsuch wrote in a 2011 decision upholding a Forest Service recreation fee, adding, evidently from his own experience, that “when the snow melts and the road thaws, the national forest around Mount Evans teems with hikers and sightseers eager to take in the breathtaking views.”
Serving since 2006 on the 10th U.S. Circuit Court of Appeals, Gorsuch has overseen cases from Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, as well as the parts of Yellowstone National Park that extend into Montana and Idaho. The geography, in some ways, has defined the fourth-generation Colorado native.
Public-land management conflicts are rife in states like Utah and Wyoming, where the federal government owns 65 and 48 percent of the land, respectively. Several of the 10th Circuit’s states rely on the federal Bureau of Reclamation for irrigation-water deliveries, potentially exposing Gorsuch to perennial Western haggling over the precious resource.
When confronting some of these characteristically Western conflicts, Gorsuch has regularly raised a high bar for environmentalists or others. In a 2015 decision, for instance, he denied an effort by the Colorado chapter of Backcountry Hunters and Anglers to challenge a San Juan National Forest trail management plan they considered too tolerant of motorized vehicles.
In a somewhat similar vein, Gorsuch in 2009 dismissed a challenge to Yellowstone National Park’s much-litigated rule governing snowmobiles. Though the disputes had important differences, a key point in both was the procedural dismissal without reaching the merits.
“He has taken positions in several prior cases that suggest that he might set the standing bar that environmental groups would have to clear at a level that’s higher than the current standard,” noted Denise A. Grab, senior attorney with the Institute for Policy Integrity at New York University School of Law
In a 2013 dissent, for instance, Gorsuch objected to a court panel’s decision allowing the Sierra Club and others to intervene in a case concerning motorized vehicles in New Mexico’s Santa Fe National Forest. Intervenors, Gorsuch warned, “add new issues and complexity and delay to the litigation” and potentially thwart “the public’s interest in husbanding limited judicial resources.”
Subsequently, the Sierra Club declared that “Gorsuch has proven himself hostile to environmental protection,” and the organization opposed his nomination within an hour after it became public. The League of Conservation Voters agreed, calling Gorsuch “both radical and dangerous.” Earthjustice, which bills itself as “the nation’s largest environmental law organization, called him “extreme and unacceptable.”
All of which may not quite do justice to a judge who one former 10th Circuit colleague, Stanford law professor Michael McConnell, said “works well with people across the aisle.” Rather, while undeniably conservative, Gorsuch’s Western track record is seen by neutral analysts as both subtle and sophisticated.
“He does have a number of cases involving public lands and the complex web of management and ownership, involving states, the federal government and private parties,” said Grab, who has closely studied Gorsuch’s rulings. “He exhibits an understanding of these complex issues, and the value of the outdoor experience, in his descriptions of the facts at play in each case.”
Some complications can arise in assessing the significance of Gorsuch’s willingness to support the actions of federal resource and land management agencies. Sometimes, agencies take positions that Western environmentalists like, and sometimes they don’t.
In a 2010 decision, for instance, Gorsuch sided with the Environmental Protection Agency in a cleanup dispute with a company called U.S. Magnesium.
Now a resident of the deeply liberal university town of Boulder, Colorado, about 27 miles from the Byron White U.S. Courthouse, where he works, Gorsuch was born in Denver to a politically active mother.
While he attended an East Coast prep school and shares the Ivy League credentials of every other current Supreme Court justice, four of whom are fellow Harvard Law School graduates, Gorsuch’s Western credentials stand out. Justice Anthony Kennedy is a Sacramento native, but he left an appellate court seat in California behind 29 years ago. Justice Stephen Breyer is a San Francisco native, but he essentially transplanted himself to the East Coast in the 1960s.
Former Justice Sandra Day O’Connor, who held to her Western ways after being raised on an Arizona ranch, retired from the court in 2006. Gorsuch, moreover, would be the first 10th Circuit judge to ascend to the Supreme Court since the multi-state circuit was carved out in 1929.
“Neil Gorsuch is a genuine Westerner,” McConnell said, and “the West has its own culture.”