FORESTS:

Appeals court reinstates Clinton-era roadless rule

A federal appeals court today reinstated the controversial 2001 roadless rule, saying it is necessary to protect the vast majority of the country's undeveloped forest areas.

The 9th U.S. Circuit Court of Appeals affirmed a lower court's ruling to reinstate the Clinton-era roadless rule and permanently throw out the Bush administration's alternative policy. The 2001 rule granted blanket protection to about 58 million acres of national forests nationwide but has been mired in legal battles ever since President Clinton put it in place just before leaving office.

The ruling does not affect forests in Idaho, the only state to have finalized its own roadless plan under the Bush policy, or the Tongass National Forest in Alaska, which had been exempted from the 2001 roadless rule. The court sided with the states of California, New Mexico and Oregon and a host of environmental groups.

The legal battles over the rule are certain to continue, as the issue has been subject to conflicting decisions from different courts.

The three-judge appeals court panel said a Bush-era policy for roadless areas violated the National Environmental Policy Act and the Endangered Species Act. In 2005, the Bush administration put in place a policy allowing states to petition for their own roadless protections.

The Forest Service under Bush had argued that the state petitions rule was administrative only and did not have direct, indirect or cumulative effects on the environment. The agency therefore concluded that the policy fell within its categorical exclusion for rules addressing routine matters of administrative procedure.

But the appeals court said the Forest Service's characterization of the state petitions rule as merely procedural was "unreasonable." The court said the replacement of the 2001 roadless rule's protections with the Bush-era "less protective and more varied" policy qualifies as "substantive" action and would meet the relatively low threshold to trigger some level of environmental analysis under NEPA.

"The promulgation of the State Petitions Rule had the effect of permanently repealing uniform, nationwide, substantive protections that were afforded to inventoried roadless areas, and replacing them with a regime of the type the agency had rejected as inadequate a few years earlier," the appeals court said.

The ruling also rejected the Forest Service's arguments that the 2001 rule was never "meaningfully" in force and that it could not have altered the status quo, instead saying the rule was legally valid until the U.S. District Court for the District of Wyoming threw it out in 2003.

U.S. District Judge Clarence Brimmer in Wyoming threw out the roadless rule in 2003; California Magistrate Judge Elizabeth Laporte reinstated it in 2006; and Brimmer threw it out again last year.

The appeals court also said that given the Forest Service's repeated acknowledgment of its intent to repeal or replace the roadless rule, a primary purpose of the Bush-era state petitions rule was "taking substantive environmental protections off the books."

The Forest Service had also argued that putting in place the Bush rule would have no effect on listed species or habitat. But the appeals court ruled that it may have such effect and that the Forest Service was required to engage in consultation under Section 7 of the Endangered Species Act.

A Forest Service spokeswoman said the agency has received a copy of the ruling and that it is currently under review.

The Agriculture Department released a short statement saying, "The Obama administration supports conservation of roadless areas in our national forests and this decision today reaffirms the protection of these resources."

What's next?

Mike Anderson of the Wilderness Society said today's ruling conflicts with Brimmer's decision but noted that the appeals court holds greater weight than the district court. "But that still does not directly overrule Judge Brimmer," Anderson said. "The Forest Service is still in somewhat of a bind on this."

Brimmer's ruling is under the jurisdiction of the 10th U.S. Circuit Court of Appeals.

In May, the Obama administration announced that it would implement a one-year delay on making any long-term decisions on the Clinton-era roadless rule. In the meantime, Agriculture Secretary Tom Vilsack will have sole power to make decisions on building roads and harvesting timber on nearly all the areas covered by the 2001 rule.

Vilsack's interim directive will help alleviate the dilemma by allowing time for Brimmer's decision to be reversed, Anderson said. Environmental groups have already appealed Brimmer's ruling, but they want the Obama administration to join their efforts. During the presidential campaign, Obama expressed his support for the 2001 roadless rule.

"The first thing we need the administration to do is to appeal Judge Brimmer's decision to the 10th Circuit Court of Appeals ... [and] hopefully remove the final legal cloud on the 2001 rule," Anderson said.

Michael Degnan, a Sierra Club lands protection representative, agreed that the 10th Circuit will need to act but said today's decision "has reinstated the 2001 rule and squarely and firmly rejected the Bush state petition process."

"It's a great day for the millions of Americans who have weighed in on this important issue and who want to see our country's remaining roadless areas protected for future generations," Degnan said.

Greg Mumm, executive director of the BlueRibbon Coalition, which intervened on behalf of the Bush administration policy, criticized the ruling and said his group will now turn its attention to the 10th Circuit.

"Obviously we're disappointed but we're not surprised," Mumm said. "We'll be looking very closely at any and all cases that are involved with that. ... I think the roadless issue is far from over."

Click here to read the court decision.

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