FORESTS:

Legal battle over roadless rule intensifies

The long-running battle over the Clinton-era prohibition on building new roads in undeveloped forest areas flared yesterday when a federal judge in Wyoming again overturned the ban.

U.S. District Judge Clarence Brimmer decided that the 2001 roadless rule, which granted blanket protection to about 58 million acres of federal land nationwide, violated federal law and issued a permanent injunction against it, as requested by the state of Wyoming. But his decision conflicts with a California court ruling, and the legal fight will continue.

Timber groups praised the judge's decision, while environmentalists immediately vowed to appeal it. Forest Service spokesman Joe Walsh said it is "way too early" for the agency to comment on the ruling and what actions might result. "It's still being reviewed by attorneys," Walsh said.

Brimmer wrote that the roadless rule was driven through the administrative process for the political capital of the Clinton administration without taking the "hard look" required by the National Environmental Policy Act. The Forest Service must "again start from square one" on its forest plan policy, Brimmer wrote.

"In its rush to give President Clinton lasting notoriety in the annals of environmentalism, the Forest Service's shortcuts and bypassing of the procedural requirements of NEPA has done lasting damage to our very laws designed to protect the environment," Brimmer wrote.

The judge also said the rule, which affects 31 percent of national forest land, violated the Wilderness Act of 1964.

Brimmer criticized the Forest Service's refusal at the time to extend the scoping comment period and to allow Wyoming cooperating agency status. He said the Forest Service did not "rigorously explore and objectively evaluate reasonable alternatives to the Roadless Rule," was "woefully inadequate" in fulfilling its requirement to analyze and explain the cumulative impacts of its proposed actions, and did not develop a needed supplemental environmental impact statement.

"While the Forest Service does have discretion in its management of the National Forests, the Roadless Rule takes away that discretion," he wrote.

Brimmer first struck down the Clinton rule in 2003, for similar reasons. Environmental groups appealed his ruling, but before that dispute was settled, the Bush administration decided to issue its own new policy for roadless areas, allowing states to petition for roadless protections.

California Magistrate Judge Elizabeth Laporte threw the Bush plan out in 2006 and reinstated the Clinton rule, which Wyoming again sought to block (Greenwire, Oct. 18, 2007).

An appeal of Laporte's ruling is pending before the 9th U.S. Circuit Court of Appeals.

Brimmer said he was "disturbed, and frankly shocked" that the California judge essentially reinstituted a policy that was "not properly" before her court and on which he, seeing himself as a higher-ranking judge, had already ruled.

'Between a rock and a hard place'

Environmental groups, represented by Earthjustice, immediately said they will appeal Brimmer's ruling and that in the meantime the Forest Service should hold off on development in roadless areas.

Mike Anderson, an attorney with the Wilderness Society, said the effects of Brimmer's decision are ambiguous at this point and that the Forest Service is "caught between a rock and a hard place" with the conflicting court rulings. But he said the group feels confident that in the end the public support for protecting the roadless areas will prevail.

"I think it's quite likely this issue is going to persist into the next administration, especially if there are continued conflicts between the courts over the legality of the roadless rule and the state petitions rule," Anderson said. "The issue goes on, but bottom line is that less than a dozen miles of roads have been built; the roadless areas have remained essentially intact throughout the Bush administration, which is good news for those areas and all the environmental values that they hold."

Ann Forest Burns, vice president of the American Forest Resource Council, said Brimmer's decision throws out the Clinton rule entirely, reverting back to the Bush administration's rules.

"We are very pleased that he has ruled as he has, particularly since this reinstates the state petition rule," she said. "We are very much in favor of individual states ruling."

Reporter Eric Bontrager contributed to this report.

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