August 13, 2008

Wyoming Judge Again Blocks Roadless Area Conservation Rule

Environment News Service

WASHINGTON, DC (ENS) - The national nonprofit Wilderness Society said it will challenge Tuesday's decision by a federal judge in Wyoming to block the 2001 Roadless Area Conservation Rule.

For the second time, U.S. District Judge Clarence Brimmer issued a permanent injunction against the Clinton era roadless rule, saying it violated the National Environmental Policy Act and the Wilderness Act.

The case was brought, for the second time, by the State of Wyoming against the U.S. Department of Agriculture and other federal agencies.

Environmentalists believe that Judge Brimmer's order conflicts with, but does not overturn, a 2006 decision by a California federal magistrate judge that upheld the Roadless Rule.

Judge Brimmer's injunction puts at risk 58.5 million acres of pristine national forest lands in 38 states that were protected from road building, logging and other development by a directive of President Bill Clinton to the U.S. Forest Service issued in 1999.

The public process initiated by that directive concluded with the promulgation of the Roadless Area Conservation Rule just eight days before the end of the Clinton administration.

More than two million public comments in favor of the roadless rule were received during the comment period, which included 187 public hearings across the country.

Yet, Judge Brimmer did not give weight to the 18 month-long public process and numerous public comments. He did give weight to then Wyoming Governor Jim Geringer's complaint that the public comment period was "extraordinarily short."

"The Forest Service, in an attempt to bolster an outgoing President's environmental legacy, rammed through an environmental agenda that itself violates the country's well-established environmental laws," Judge Brimmer wrote in his injunction order.

The judge wrote, "The Forest Service's preordained conception of what a roadless area would be, and its schedule for implementing the final rule, caused the Forest Service to drive the Roadless Rule through the administrative process without weighing the pros and cons of reasonable alternatives to the Roadless Rule. At no time did the Forest Service stop to consider whether Roadless Rule was the best idea for the greatest number of people."

Mike Anderson, an attorney with The Wilderness Society, said the group will appeal Judge Brimmer's order to the U.S. 10th Circuit Court of Appeals in Denver.

The Roadless Rule has been the subject of repeated lawsuits from both opponents and supporters.

  • In July 2003, Judge Brimmer rejected the rule in a lawsuit brought by the state of Wyoming, which has about 3.5 million acres of national forests subject to protections set forth by the rule.

  • In May 2005, the Bush administration replaced the Roadless Rule with the State Petitions Rule that required governors to petition the U.S. Department of Agriculture to protect national forests in their states.

  • Environmentalists sued to reinstate the Roadless Rule. In September 2006, Judge Elizabeth Laporte, Magistrate for the U.S. District Court for Northern California, ruled that the administration had illegally repealed the roadless rule.

  • The judge set aside 2005 State Petitions Rule and reinstated the Roadless Rule nationwide, except in Alaska's Tongass National Forest.

  • On November 29, 2006, Judge Laporte issued an injunction halting all activities inconsistent with the Roadless Rule. In her injunction, Judge Laporte stated that because the 2001 rule had been repealed illegally, all projects in roadless areas inconsistent with that rule were also illegal and must be halted.

  • On February 6, 2007 Judge Laporte issued a final injunction, clarifying that her November 2006 injunction extended to oil and gas drilling permits as well as leases issued since May 2005.
In his order issued Tuesday, Judge Brimmer wrote that Magistrate Judge Laporte's injunction had the effect of "surreptitiously" reinstituting the 2001 Roadless Area Conservation Rule although he had previously decided it was illegal.

Anderson says he believes Laporte's decision is still in effect. "It is not in any way overturned or compromised by Judge Brimmer's decision in Wyoming today," Anderson told the Associated Press. "What it does do is create two conflicting court decisions in different federal courts, different states, both issuing decisions with nationwide impact."

Wyoming Attorney General Bruce Salzburg said the injunction was appropriate because roads might be needed in national forests to fight fires and insect infestations.

Conservation groups that intervened in the case in support of the federal agencies are the Biodiversity Conservation Alliance, Defenders of Wildlife, National Audubon Society, Natural Resources Defense Council, Pacific Rivers Council, Sierra Club, Wilderness Society and the Wyoming Outdoor Council.

Read Judge Brimmer's 102 page order issued on August 12, 2008

Read the 2001 Roadless Area Conservation Rule