Not so dead on arrival

The unlikely success of the Clinton Roadless Rule

by Rob Inglis
High Country News

The Roadless Area Conservation Rule, which Bill Clinton signed into law eight days before he left office, protected 58.5 million acres of national forest land from logging and energy development. It was one of the boldest conservation measures in the history of federal land management, but it seemed doomed to a very short lifespan. Because it was only an administrative rule, it could be overturned by the next administration, which strongly opposed it.

But nearly eight years later, the Clinton Roadless Rule remains in effect for 35.6 million acres of national forest in seven Western states. Idaho has adopted, and Colorado is about to adopt, state-specific roadless regulations that fall short of the Clinton rule but still provide protection for large swaths of land. (Roadless lands in Wyoming and Utah are currently unprotected.) The Clinton rule's survival still hangs on the outcome of two ongoing court cases, but even if it were to succumb, it is likely that Democrats in Washington would replace it with either a new administrative rule or legislative protection for roadless areas. Thanks to the incompetence of the Bush administration and the tenacity of some never-say-die environmental lawyers, the long-shot maneuver might have worked.

The Forest Service first inventoried its roadless areas in the 1970s, after the 1964 Wilderness Act directed it to determine which of its lands were eligible for wilderness protection. Some of this land was preserved in a piecemeal fashion, through state-specific bills. But much of it stayed unprotected. The goal of the Clinton Roadless Rule was to systematically protect these remaining road-free lands without going through the arduous wilderness-designation process. More than 1.5 million people commented on the proposed rule, and over 95 percent of them were in favor.

The Bush administration at first thought it could get rid of the rule quietly, simply by not defending it against lawsuits from timber companies. "They didn't go about it very directly, at least not at the outset," says Mike Anderson of The Wilderness Society. "It was more of a subterranean strategy of trying to get the courts to take down the rule." It wasn't until 2005 that the administration launched a frontal assault, issuing a weaker replacement rule that required governors to petition the Forest Service to protect their states' roadless land. But the administration had done only a cursory environmental assessment of the new rule, leaving it vulnerable to legal challenge. In 2006, 9th Circuit District Court Judge Elizabeth LaPorte ruled that the administration had violated the National Environmental Policy Act in establishing the new rule. She overturned it and reinstated the original Roadless Rule. Her reinstatement stood until August of this year, when 10th Circuit District Court Judge Clarence Brimmer issued an injunction against the 2001 rule, saying, as he had in a previous injunction, that it also violated NEPA.

This left the nation's roadless areas in a curious legal position, with one judge saying that the 2001 rule was the law of the land and another judge of equal rank, but in a different judicial circuit, saying that it wasn't. To ease this tension, LaPorte has reduced the scope of her 2006 decision, limiting it to the 9th Circuit plus New Mexico until a randomly selected panel of three appeals judges rules on the validity of the decision. The three judges are all Republican appointees -- two of them appointed by George W. Bush -- so they may well reverse LaPorte's decision and reinstate the Bush rule. Even if LaPorte's 2006 decision withstands the appeal, Judge Brimmer's latest decision -- which is currently being appealed to the 10th Circuit -- could still undo the Roadless Rule.

But even if the Clinton Roadless Rule ultimately goes down in the courts, it has effectively protected the nation's roadless areas -- in which only seven miles of new roads have been constructed -- for the past eight years. "The Bush administration has basically blown it," says Craig Allin, professor of political science at Cornell College. "They have spent eight years trying to abolish the rule, and they have been so incompetent in their efforts that it's going to be left for the next administration."

Obama, who has expressed support for roadless preservation, could craft another administrative rule protecting most or all of the nation's roadless areas. The more difficult -- but more permanent -- way to protect roadless lands is through legislation. Even with Democratic majorities in the House and Senate, however, any bill would have to deal with the threat of filibuster. "If there are 60 votes in the Senate, a statute like that might very well pass," says Allin. "Without sixty votes, its chances are poor."

If such a bill does pass, the Clinton Roadless Rule will be remembered not just for buying time but also for changing the terms of the roadless debate. "It's completely changed the context of how we talk about these undeveloped areas," says Franz Matzner of the Natural Resources Defense Council. "Ten years ago, these places were just the places we were going to log next. Now, if someone wants to log a roadless area, they've got a fight on their hands, and they know it. People are recognizing that their forests have more to offer than just board feet."

Judge scales back "Roadless Rule"

Associated Press

SAN FRANCISCO (AP) — A federal magistrate judge ruled Tuesday that a Clinton-era ban against new road construction and development on millions of acres of national forest would apply only to 10 western states.

Two years ago, Judge Elizabeth Laporte invalidated a 2005 Bush administration rule that overturned the 2001 "Roadless Rule," which protected 58.5 million acres of federal land in about 40 states.

But in August, a federal judge in Wyoming invalidated President Bill Clinton's Roadless Rule, leading the Bush administration to request that the two judges modify their conflicting rulings.

In response, Laporte reduced the geographic scope of her 2006 ruling.

The move is only a temporary fix. Federal appeals courts in San Francisco and Denver are expected to rule on the case next year, and road construction rules also could change under President-elect Barack Obama's administration.

Environmental groups that challenged the Bush administration's repeal of the Roadless Rule urged the government Tuesday to not weaken protections for about 13.6 million acres of roadless forests in the states no longer covered by Laporte's 2006 ruling.

Forest Service officials in Washington did not immediately respond to requests for comment.

Democrats brace for ‘midnight rules’ from Bush

White House hastens to put new regs in place – and out of Obama’s reach, watchdogs say.

Mountaintop removal: New rule would let miners dump debris closer to rivers and streams. This site is in Kayford Mountain, W.Va. (Jeff Gentner/AP)

By Mark Clayton
The Christian Science Monitor

Will last-gasp “refinements” to the Clean Air Act let power plants locate near national parks next year? Will a new federal rule allow coal-mining debris to be dumped closer to streams? Will factory farms soon get a pass on reporting hazardous chemical releases?

So goes the worry list of environmentalists awaiting what they suspect may be an avalanche of last-minute “midnight rules” by the Bush administration that favor industrial polluters by relaxing or undermining environmental standards.

It has become a rite of outgoing presidents to push through, in their final weeks, federal regulations they favor to extend their policies beyond their administrations. Once such a rule is formally enacted by being printed in the Federal Register, the law usually requires another 30 to 60 days to pass before the rules take effect. After that, a rule can be very difficult to reverse.

But while a rule is not yet in effect, it is vulnerable. A raft of last-minute rules that President Clinton did not publish quickly enough were put on hold the day after President Bush took office in 2001. By contrast, Mr. Clinton’s “Roadless Rule,” which restricts road building on federal land, was published and in effect in time. It has been impossible for the Bush White House to undo. Apparently mindful of this, White House Office of Management and Budget (OMB) chief Joshua Bolten, in a memo this spring, had told federal agencies to have rules to his office for vetting no later than Nov. 1 so they could be in effect by Jan. 20, 2009 – Inauguration Day.

But there is rising hope among environmentalists and Democratic lawmakers that any last-minute onslaught will be blunted this time, if not turned back entirely. They look to a little-known and little-used law called the Congressional Review Act of 1996.

The CRA gives Congress fast-track authority to hold filibuster-free votes on regulations if they were enacted within a certain time frame – 60 legislative days – after Congress had adjourned. Given Congress’s frequent adjournments this year, the law may allow the new Congress to vote on regulations enacted by the Bush administration as far back as June, regulatory experts say.

“Usually these rules are very difficult to reverse, except this year might be different,” says Veronique de Rugy, a senior fellow at the Mercatus Center at George Mason University in Fairfax, Va., and an expert on midnight regulations. “Congress could use the CRA, and that would create an expedited process to repeal any rule by simple majority vote. I suspect this time we’re going to see a lot of that happening.”

One key reason the CRA is not often used is that it requires a rare alignment of stars in the political sky: President and Congress must be of the same party. That’s because CRA legislation can be used only at the beginning of a new presidential term, and all CRA bills go to the new president – who can veto them. Presidential vetoes are unlikely this time, since the incoming Obama administration is on the same wavelength as the incoming Democratic-majority Congress.

Ironically, the 1996 law was passed by the Republican-dominated House, led by Newt Gingrich, to try to thwart the first-term Clinton White House from pushing through its own midnight rulings.

Congressional aides say Demo­crats are already fine-tuning CRA-based legislation to turn back some expected rules if the Obama administration is unable to do so through executive action. One expected Bush rule, for example, would undermine the Endangered Species Act – critics say – by relaxing requirements for federal agencies to consult about the effects of their actions on endangered species and critical habitat.

“We are drafting legislation as we speak to block the rule that would harm the Endangered Spe­­cies Act,” says Eben Burnham-Snyder, an aide to Rep. Ed Markey (D) of Massachusetts. Mr. Markey chairs the House Select Committee on En­­ergy Inde­pen­dence. “It would be something you’d see very quick action on – and that’s why we’re making sure to have legislative language action-ready,” Mr. Burnham-Snyder says.

That sort of ramping-up on Cap­­­­­itol Hill cheers environmentalists.

“Obviously the Bush administration has made a conscientious effort to get these rules done in a way that’s more difficult to overturn,” says Josh Dorner, a spokesman for the Sierra Club.

“But they apparently didn’t take into account the potential of the timing in the CRA to overturn some of these things.”

Bush administration spokesmen dispute such a dour characterization of the administration’s efforts, saying that most rules now in the pipeline have been in the public eye and subject to public comment for several years.

“This president set out with a very aggressive en­­vironment­al agenda when he took office – and this is the culmination of this work,” says Jon­­­athan Schra­der, a spokesman for the Envi­ron­mental Protection Agency. “Some of the New Source Review work [part of the Clean Air Act] was set out as long ago as 2004…. None of this is a surprise. It’s the culmination of years of work … to keep the environment clean and safe.”

Some dimensions of the Bush rule-writing push are beginning to emerge.

Between Nov. 1 and Nov. 20, at least 47 new federal rules from the En­­viron­­mental Protection Agency, the Depart­ment of Interior, and the De­part­ment of Energy were being reviewed by the Of­­fice of Management and Budget, according to Ms. de Rugy’s tally of OMB data. Of those, 15 are “economically significant” rules – that is, having an impact of $100 million or more, she says.

At that rate, there could be more than 70 economically significant rules enacted between Nov. 1 and Jan. 20, the day President-elect Obama takes office, de Rugy says. By comparison, just eight economically significant regulations were reviewed by OMB during the same period a year ago. Under President Clinton, the OMB reviewed 49 economically significant rules between Nov. 1, 2000 and Jan. 20, 2001, when George W. Bush took office.

If President Bush keeps to that pace, the Obama administration may be faced with hundreds of rules that could come under CRA review. There have been 307 rules enacted by those three federal agencies alone since July, 63 of them economically significant, de Rugy says.

“There’s a lot that the president can do using his executive authority without waiting for congressional action, and I think we will see the president do that,” said John Podesta, Obama’s transition chief, in a FOX TV network interview.

For those rules that have already been published, reversing them won’t be easy. And even the CRA has a downside. It must be used wisely or it may do more harm than good. For one thing, once the CRA has been used to repeal a rule, the agency cannot reintroduce a modified rule on that issue, potentially leaving legislative and enforcement gaps, de Rugy notes.

It’s also unclear whether CRA allows many rules to be bundled together so they can be voted on to reverse them en masse. They may have to be addressed one at a time, which is de Rugy’s interpretation of the law.

That could be a problem, given the landslide of last-minute rules that seems to be coming.

“The Bush administration is working in a way that it hopes to be more effective in cementing these rules in place,” says Matt Madia, regulatory policy analyst for OMB Watch, a liberal-leaning government watchdog group. “It’s going to be more difficult for the Obama administration to do anything, so it’s going to be in the hands of Congress.

Proposed rules on environment

The Bush administration is preparing to put scores of new rules on the books in its waning days, a phenomenon known as “midnight regulation.” Several dozen rules regarding environmental issues are involved, including some that could have major impacts.

Here are some of the more controversial proposed rules, according to OMB Watch, a liberal-leaning government-watchdog group in Washington:

Mountaintop mining. The proposed new rule would allow mining companies to dump rock and dirt from mountaintop-­removal mining closer to rivers and streams.

Endangered species consultation. The rule would alter implementation of the Endangered Species Act by letting federal land-use managers approve projects like highways, mining, or logging without consulting federal habitat managers and biological health experts responsible for species protection. Currently, consultation is required.

Air pollution near national parks. The proposed rule would ease current restrictions that make it difficult for power plants to operate near national parks and wilderness areas.

Runoff and air pollution from factory farms. Under new rules, factory farms could let their runoff pollute waterways without a permit. (The rule circumvents the Clean Water Act, allowing for self-regulation.) Another rule would exempt factory farms from reporting air pollution emissions from animal waste.

New Source Review changes. The rule would change the Environmental Protection Agency’s New Source Review program, which requires new facilities or renovating facilities to install better pollution-control technology, by making fewer facilities subject to its requirements.

Environmental impacts of fishery decisions. The rule would transfer the responsibility for examining the environmental impacts of federal ocean-management decisions from federal employees to advisory groups that represent regional fishing interests. The rule would also make it tougher for the public to participate in the environmental assessment process required by the National Environmental Policy Act.

Bush angers environmentalists with last-minute rule changes

Many of the 'midnight regulations' open wilderness for oil and gas drilling, and loosen environmental safeguards. President Bush has pushed 53 through in three weeks, researchers say.

By Jim Tankersley
Los Angeles Times

Reporting from Washington — As the hour grows late, President Bush, like many chief executives before him, seems to hear the call of the wild.

Honoring a tradition that dates at least to the Reagan administration, Bush is pushing through a bundle of controversial last-minute changes in federal rules -- many of them involving the environment, national parks and public lands in the West.

President Clinton used his final weeks and months in office to strengthen a host of environmental rules and lock up federal lands with wilderness and other protective designations. Bush is using the same window of opportunity to open wilderness for oil and gas drilling, and to loosen safeguards for air, water and wildlife.

In recent days, the Bush administration announced new rules to speed oil shale development across 2 million rocky acres in the West. It scheduled an auction for drilling rights alongside three national parks. It has also set in motion processes to finalize major changes in endangered species protection, allow more mining waste to flow into rivers and streams, and exempt factory farms from air pollution reporting.

Researchers who track "midnight regulations" say Bush pushed 53 of them through the federal Office of Information and Regulatory Affairs in the last three weeks, nearly double the pace of Clinton at this point in his final year.

Some of the most controversial rules deal with the environment -- a legacy-cementing area where Bush diverges sharply from Clinton and from President-elect Barack Obama.

In the mid-1990s, when Clinton was in the White House, the GOP-controlled Congress established rules designed to rein in late-inning regulatory changes. But the move has had little effect.

Outgoing presidents "have an incentive to push stuff that the next administration won't be in favor of," said Veronique de Rugy, a senior fellow at the Mercatus Center at George Mason University who tracks midnight regulations. "It's your last chance . . . to extend your influence into the future."

White House officials say they've taken pains to avoid a late-term blitz. Spokesman Tony Fratto said that Bush is keeping roughly the same regulatory pace as last year, and that many rules won't be enacted because agencies missed a Nov. 1 deadline for final action, set earlier this year by Chief of Staff Joshua Bolten. Bolten's order allows exceptions for what are considered extraordinary circumstances.

"It's unprecedented in the history of administrations to try to do something this way, and do it the right way," Fratto said.

Environmental activists and government watchdogs, on the other hand, say Bush rushed several of the rules to completion so that Obama could not easily overturn them.

Obama can summarily reverse anything not enacted by the time he takes office, a lesson Bush learned by blocking several of Clinton's last-ditch environmental measures, such as a ban on road-building in national forests.

"The Bush administration is trying to prevent Obama from doing to it what it did to Clinton," said Matt Madia, a regulatory policy analyst for OMB Watch, a Washington-based watchdog group.

Under federal rules, it takes 60 days to enact an economically "significant" regulation, which carries an estimated impact of $100 million or more. Other regulations take 30 days. Today is the deadline for "significant" regulation, though Fratto calls it "irrelevant to our process."

The process moved especially quickly in the case of oil shale. In July, the administration proposed rules that would eventually lead to leasing 2 million acres of public land in Colorado, Utah and Wyoming for oil shale extraction, even though serious questions remain about how much power and water -- a particularly scarce resource on much of that land -- would be needed to make it work.

The rules were finalized this week.

The American Petroleum Institute praised the move as "an integral step" toward increased domestic energy production. "It lays the groundwork, lets investors know what they're going to face going forward," said Andy Radford, a senior policy advisor for the institute.

Environmentalists cried foul. Sen. Ken Salazar (D-Colo.) said Bush had "fallen into the trap of allowing political timelines to trump sound policy."

Activists also accuse Bush of disregarding public comments on a proposal to change how the Endangered Species Act guides federal projects. Currently, federal agencies must check with government species experts before building a dam or paving a road.

Bush would allow the agencies to determine on their own if they were putting protected species in danger. The change would be "absolutely necessary if we're going to move projects forward," said William Kovacs, vice president of environment, technology and regulatory affairs at the U.S. Chamber of Commerce.

Opponents say administration officials breezed through 250,000 public comments -- most of them criticizing the proposal -- in less than a week. "They've clearly made a predetermined decision to issue it no matter what the public comments say, which is not what we're supposed to do in this country," said Andrew Wetzler, director of the endangered species project at the Natural Resources Defense Council.

The NRDC, the Sierra Club and other groups also oppose several rules not subject to the deadline and likely to be enacted soon, including eased restrictions on mountaintop mining near streams, reduced pollution reporting for large farms and weakened air quality controls near national parks.

If those rules are approved, Obama would need to initiate a potentially cumbersome process to revise them.

"They wouldn't be able to just put out a notice and just overturn them the next day," said Karla Raettig, the legislative representative for wildlife conservation for the National Wildlife Federation. A little-used law from the 1990s might allow Congress to overturn many of the regulations.

Tankersley writes for our Washington bureau.

Grijalva: Bush policies bad for federal public lands

Tucson Region




By Tony Davis
Arizona Daily Star




Rep. Raúl Grijalva (D-AZ)



The Bush administration mounted a "concerted strategy" to reduce protections for federal public lands and to open them to all types of industry, a Tucson congressman says in a new report.

The report lists more than 40 actions by federal agencies such as the Forest Service and the Bureau of Land Management that Rep. Raúl Grijalva says harmed public lands.

They often allowed mining, timber and other private industry to exploit resources at the environment's expense, he claims.

Grijalva, a Democrat, is a congressional leader on public lands issues, as he chairs the National Parks, Forest and Public Lands subcommittee of the House Natural Resources Committee.

However, Bush administration officials and agency managers have generally defended their actions, calling them efforts to restore balance to public lands policy after eight years of Clinton administration policies that more commonly sided with environmentalists. Federal officials have also cited budget pressures in explaining some of the decisions.

Here are capsule accounts of some of the actions criticized in Grijalva's report, their effects on Arizona, and the federal agencies' responses:

Border fence
Grijalva's report criticized the Department of Homeland Security for repeatedly invoking a 2005 federal law allowing it to waive environmental laws — such as the National Environmental Policy Act and the Clean Water Act — to build a 670-mile border fence.

The congressman is co-sponsoring a bill to rescind provisions of that law. Grijalva and environmental groups say the fence blocks wildlife movements and fragments habitat crucial for the survival of dozens of imperiled species, including jaguars, wolves and pronghorn antelope.

Homeland Security Chief Michael Chertoff said the fence, now about half-finished, is needed to block the illegal entry of terrorists, to impede drug smuggling, human smuggling and gang activity, and to counteract the environmental effects of illegal immigration.

Chertoff has used the law four times to waive dozens of environmental laws and regulations to build nearly 500 miles of fence, including segments along more than 200 miles of Arizona's border with Mexico.

Grand Canyon uranium mining
Grijalva has pushed through a measure to prevent uranium mining on 1 million acres adjoining Grand Canyon National Park for a year. But Interior Department officials have refused to withdraw the area from mining, and they are fighting to repeal underlying regulations.

Two potential uranium-mining exploration sites are being drilled on BLM land north of the national park. Environmental groups are suing to force the Interior Department to withdraw those lands, on the grounds that the radioactivity from the uranium could leak into the groundwater or the Colorado River running through the Grand Canyon.

There's a long history of uranium mining north of the Canyon, and it is "very responsible mining," counters Scott Florence, director of BLM's Arizona Strip office. It's all underground, with "a very small footprint" on the surface, Florence says. "They are not a big open-pit mine."

Loaded-gun parks
Interior Secretary Dirk Kempthorne has proposed a regulation allowing visitors to national parks and wildlife refuges to carry loaded, concealed weapons if they have proper permits. Today, visitors can pack only unloaded guns. The new rules would affect Arizona and other states that already allow concealed weapons in state parks.

Grijalva says the new rule would cause widespread confusion among gun owners because many national parks are located in two or more states with different gun rules.

Interior says it wants to respect states' ability to determine who may possess firearms within their boundaries. The National Rifle Association says park visitors should be allowed to carry guns for self-defense.

Seven retired National Park Service directors opposed the proposal, telling Kempthorne it would impair park rangers' ability to protect people and natural resources.

Off-road vehicles
Grijalva says environmentally harmful off-road vehicle use is out of control and growing rapidly on public lands. The vehicles have damaged cultural sites, disturbed wildlife habitat and destroyed private property, Grijalva says.

"Irresponsible off-roading has become such a menace that it is now the single greatest threat to American landscapes," a retired Forest Service official, Jack Gregory, testified at a congressional hearing in April.

A Tucson BLM official says the agency is trying to keep off-road vehicles under control, using trained volunteers on motorcycles and ATVs to go on patrol, pick up trash and talk to off-roaders about proper use.

"As more people are out on public lands, our challenges will always be there," said Brian Bellew, BLM's Tucson manager. "But we are coming up with much better means of dealing with those resource conflicts."

Air quality in national parks
The Environmental Protection Agency has proposed changing air quality regulations to make it less likely that emissions from new power plants near national parks would be in violation.

Grijalva says the regulation, still pending, would let companies seeking to build plants near national parks, including the Grand Canyon and Saguaro National Park, circumvent congressionally established pollution limits.

EPA spokeswoman Cathy Milbourn said the rule is part of an agency program to prevent air quality degradation in national parks and would not change the level of emissions allowed in clean-air areas.

Roadless rule
Throughout President Bush's tenure, federal officials have sought to overturn a last-minute rule instituted by then-President Bill Clinton that would ban logging, road building and development on 58 million acres of national forests and grasslands. That includes 420,000 Coronado National Forest acres in Southern Arizona.

In 2005, the Forest Service approved a new rule allowing state governments to petition federal officials to exempt these forest lands in their states from wilderness designation.

There have been conflicting lower-court rulings on whether the decision failed to consider environmental impacts. The decisions are under appeal.

Idaho's 'roadless rule' clears another hurdle

Idaho Statesman

State and federal officials on Monday released the final environmental impact statement for the Forest Service's "roadless rule," which will protect 8.9 million acres of federal lands from most road building and development.

The proposal designates 250 roadless areas and establishes five management themes that essentially keep roadless areas intact but allow limited logging, mining and temporary roads to reduce fire danger.

The new roadless management plan, which evolved out of a series of lawsuits and collaborative agreements from federal, state and county agencies and interest groups, could become final in 30 days, depending on whether any lawsuits arise.

"The Idaho roadless rule represents the first time a state and its citizens had a direct voice in creating a plan for resolving an issue of national importance," Lt. Gov. Jim Risch said.

The roadless rule originated from a Clinton administration decision to curtail logging and road building on roadless lands.

Idaho was the first state to sue to block that rule and is now the first state to develop its own plan that has been approved by the U.S. Department of Agriculture.

There Ought to Be a Roadless Law

EDITORIAL

New York Times

Among President Bill Clinton’s signature environmental achievements was a regulation that prohibited new roads — and by extension, new commercial activity — in nearly 60 million largely undeveloped acres of the national forests. For seven years, the Bush administration, egged on by its friends in the timber and oil-and-gas industries, has worked tirelessly to kill the roadless rule. Conservationists have worked just as hard to preserve it.

Rules devised by the executive branch are often challenged on grounds that they violate an underlying federal statute or have been rushed through without proper vetting. Environmental regulations are especially contentious. The roadless rule, in particular, has been caught in an endless game of Ping-Pong, with some courts upholding it, others overturning it.

The good news is that little has changed on the ground: In seven years, only seven miles of new roads have been built in protected areas in the lower 48 states. Legally, though, things are a complete mess. That means that there is no guaranteed protection for the roadless forests.

The Clinton rule has been thrown out three times by district courts in response to lawsuits from states and industries. The most recent injunction was handed down last week by Clarence A. Brimmer, a conservative Federal District Court judge in Wyoming. He issued one of the earlier injunctions and has supported the administration on whether to limit snowmobiles in Yellowstone, which is another long-running environmental dispute.

The roadless rule has been reinstated twice — once at the appellate level by the Ninth Circuit, and later by a federal magistrate judge in San Francisco, Elizabeth LaPorte. Judge LaPorte also slapped down a sneaky effort by the Bush administration to take advantage of all the confusion by replacing the Clinton rule with a much weaker alternative of its own.

Environmental groups will surely appeal Judge Brimmer’s latest ruling, which, of course, they should. But that still leaves too much room for mischief. Congress will have to intervene. Last year, more than 140 House members and 19 senators introduced the National Forest Roadless Area Conservation Act. It is past time to provide permanent protection for the forests by turning the Clinton rule into firm law.

Chronology of the Roadless Area Conservation Policy

2001

January 5
President Clinton announces and USDA Secretary Glickman signs the final roadless policy.

January 8
Boise Cascade et al. files suit in Idaho U.S. district court.

Case is assigned to Judge Edward Lodge.

January 9
State of Idaho files suit in Idaho U.S. district court. Case assigned to Judge Lodge.

January 12
Roadless Area Conservation Rule published in Federal Register.

January 20
President Bush takes office. White House directive postpones effective date of all federal rules not yet in effect.

January 31
State of Alaska files suit in Alaska U.S. district court.

February 5
USDA Secretary Veneman postpones effective date of Roadless Rule until May 12, citing White House directive.

February 20
Boise Cascade files motion for a preliminary injunction (PI), requesting decision on their case prior to May 12.

March 9
Bush Administration requests delay in answering both Idaho complaints.

March 15
Senators Patrick Leahy and Maria Cantwell write to Attorney General John Ashcroft urging vigorous defense of Roadless Rule litigation.

March 16
Bush Administration requests a 42-day delay in responding to Idaho PI motions and commits to postponing implementation of Roadless Rule until Judge Lodge rules on the PI motions.

March 16
Nez Perce Tribe submits friend of the court brief opposing the PI request.

March 20
Judge Lodge denies the Administration's March 16 request to delay proceedings and orders Administration to respond to PI requests by March 21.

March 21
The Bush Administration's response to the Idaho PI requests makes no effort to defend the Roadless Rule and suggests the court enjoin the roadless rule after May 12.

March 28
State of Colorado files friend of the court brief in support of State of Idaho's lawsuit.

March 30
At court hearing on Idaho PI motions, the Bush Administration does not defend the Roadless Rule and asks the court to wait for the Administration to complete its review and file a status report by May 4.

April 5
Judge Lodge issues an opinion in which he defers a decision on the PI requests until May 4, but agrees with Idaho plaintiffs that the Roadless Rule violated was adopted illegally.

April 20
State of Utah files lawsuit in Utah U.S. district court.

April 20
Timber industry coalition, led by American Forest and Paper Association, files lawsuit in District of Columbia U.S. district court.

May 3
States of Montana and Wyoming file friend of the court briefs in support of the State of Idaho's lawsuit.

May 4
Bush Administration files status report with Judge Lodge saying that it will implement the Roadless Rule, but will propose amendments to the rule that address the concerns of Judge Lodge and the plaintiffs.

May 8
Four counties in North Dakota file lawsuit challenging Roadless Rule.

May 10
Judge Lodge issues preliminary injunction blocking implementation of Roadless Rule; environmental intervenors appeal to Ninth Circuit Court of Appeals

May 12
Roadless Area Conservation Rule scheduled to go into effect.

May 19
State of Wyoming files lawsuit challenging Roadless Rule.

May 21
Ninth Circuit Court of Appeals grants environmental intervenors' request to expedite consideration of their appeal of Judge Lodge's preliminary injunction.

May 31
Environmental intervenors file appeal brief with Ninth Circuit.

June 1
Judge Lodge stays further proceedings pending a ruling from Ninth Circuit.

June 6
Montana attorney general files amicus brief with Ninth Circuit in support of Roadless Rule.

June 7
Forest Service requires approval by Chief of all road building and logging projects in roadless areas until forest plans are amended.

July 10
Bush administration issues Advance Notice of Proposed Rulemaking (ANPR) with 60-day public comment period on 10 questions regarding protection of roadless areas.

July 27
Forest Service issues interim directive on roadless area management.

August 22
Forest Service begins 60-day public comment period for interim directive on roadless area management.

September 10
End of public comment period on ANPR. More than 800,000 comments submitted.

September 10
State of North Dakota files lawsuit challenging Roadless Rule.

September 20
Forest Service proposes changes in its "categorical exclusion" regulations that would exempt small-scale management activities in roadless areas from environmental analysis requirements.

October 1
Judge Jackson grants federal government's motion to stay indefinitely the two Roadless Rule lawsuits filed in the District of Columbia

October 15
Ninth Circuit holds hearing on expedited appeals of Judge Lodge's preliminary injunction.

December 20
Forest Service issues interim directive on roadless area management, removing protection for contiguous unroaded areas.

2002

January
Judge Brimmer denies the federal government's motion to stay the State of Wyoming's case.

April 12
Representatives Jay Inslee (D-WA) and Sherwood Boehlert (R-NY) announce their intention to introduce legislation codifying the Roadless Rule.

May 10
26 Senators send a letter to President Bush asking him to uphold the Roadless Rule.

May 17
Bush administration recommends no wilderness protection for roadless areas in Tongass National Forest.

June 5
Inslee-Boehlert roadless area conservation bill introduced in House, with more than 170 original cosponsors.

July 25
Cantwell-Warner roadless area conservation bill introduced in Senate.

August 12
Bush Administration files legal brief in North Dakota case strongly defends the legality of the Roadless Rule.

December 12
Ninth Circuit Court of Appeals, in 2-1 decision, reverses Judge Lodge and lifts preliminary injunction.

2003

March 26
Forest Roads Working Group recommends that the Forest Service implement the Roadless Rule and discontinue efforts to amend Rule.

April 4
Ninth Circuit denies Boise Cascade and State of Idaho petition for re-hearing.

June 5
Roadless Area Conservation Act introduced in House and Senate.

June 12
Bush Administration announces that it will propose changes to Roadless Rule to exempt Tongass and Chugach National Forests and grant waivers upon request of individual State governors.

June 14
Interim directive on roadless area management expires.

July 14
Wyoming U.S. District Court Judge Clarence Brimmer decides that Roadless Rule violated NEPA and Wilderness Act and issues injunction.

July 15
Forest Service publishes proposed temporary rule exempting Tongass from Roadless Rule and an advance notice of proposed rulemaking to permanently exempt both the Tongass and Chugach.

August 14
Comment deadline for Tongass temporary rule and Chugach ANPR.

August 21
Justice Department and North Dakota plaintiffs request a 2-month delay in North Dakota cases due to anticipated revisions in Roadless Rule.

September 5
North Dakota U.S. District Court agrees to postpone summary judgment hearing and schedules settlement meeting for September 23.

September 12
Justice Department declines to appeal Brimmer decision.

November 12
Justice Department files amicus brief urging 10th Circuit Court of Appeals to deny intervenors’ appeal of Brimmer decision.

November 12
Forest Service proposes logging 12,000 acres of inventoried roadless areas in Siskiyou National Forest.

December 23
Forest Service exempts Tongass National Forest from Roadless Rule.

2004

January 14
22 Senators send letter to President Bush asking him not to change the Roadless Rule.

June 16
House of Representatives votes 222-205 to end taxpayer subsidized road-building in the Tongass National Forest.

June 28
Administration schedules July release of proposal to replace the Roadless Rule with a process for Governors to petition for changes in roadless area management.

July 6
Forest Service decides to approve the Three Mile Timber Sale in Tongass National Forest, with 621 acres of logging and 7.78 miles of new roads, mostly in inventoried roadless areas.

July 8
Forest Service decides to log 8,173 acres of inventoried roadless areas in Siskiyou National Forest, despite objections from Oregon Governor Ted Kulongoski.

July 12
USDA Secretary Veneman officially announces that Administration will propose replacing the Roadless Rule with Governor petition process.

July 16
Draft rule on replacing Roadless Rule published in Federal Register.

August 19
California federal district court enforces Roadless Rule as basis for enjoining timber sale in Duncan Canyon Roadless Area.

November 12
New Mexico Governor Bill Richardson and 8 other governors send a comment letter opposing the Administration’s draft rule and supporting the Roadless Rule.

November 15
Comment period on draft rule ends. More than 1.7 million comments oppose the Adminstration’s proposal and support retaining the Roadless Rule.

2005

January 24
The State of California asks the Forest Service to continue protecting roadless areas in the state.

April 1
Oregon Governor Kulongoski asks the Forest Service to defer logging of roadless areas in the Siskiyou National Forest. The Forest Service agrees to wait until 21 days after the Administration’s new roadless policy is adopted and goes into effect.

April 7
Forest Service in Alaska agrees to drop roadless area logging in the Orion North Timber Sale through partial settlement of a lawsuit over the Tongass National Forest management plan.

May 4
Oral arguments scheduled before the Tenth Circuit Court of Appeals on the Wyoming district court decision enjoining the Roadless Rule.

May 5
The Administration announces their plans to overturn the Roadless Area Conservation Rule. Congressmen, Senators and Governors express their opposition to new rule. The Outdoor Industry Association and Republicans for Environmental Protection also express opposition.

May 13
Bush Administration issues final regulation repealing the Roadless Rule and replacing it with a state petition process. Interim directive requiring Chief-level approval of roadless area projects is renewed.

July 11
Tenth Circuit Court of Appeals dismisses appeal of the Wyoming district court decision and vacates the decision, on grounds that the case has been made moot by the May 13 repeal of the Roadless Rule.

July 28
Rep. Jay Inslee (D-WA) and Rep. Sherwood Boehlert (R-NY) and over 140 cosponsors introduced legislation to restore protection for our roadless forests.

August 5
Ninth Circuit Court of Appeals invalidates the Tongass National Forest management plan and remands the case to the district court to determine appropriate relief.

August 28
States of California, Oregon, and New Mexico file a lawsuit challenging the Bush Administration’s repeal of the Roadless Rule. The case is assigned to Magistrate Judge Elizabeth Laporte in Northern California federal district court.

October 5
Earthjustice files suit on behalf of The Wilderness Society and 19 other conservation groups, raising issues similar to the states’ case. The case is also assigned to Laporte.

October 14
Oregon Governor Kulongoski petitions Bush Administration to allow states to adopt 2001 Roadless Rule. The petition is denied on October 27. Washington Governor Gregoire files a similar petition on November 2.

December 14
National Roadless Area Advisory Committee holds its first meeting.

December 22
Governor Warner (VA) is the first Governor to submit a petition to protect the 380,000 acres of roadless forests in Virginia.

2006

January 10
Bush Administration attorneys deny all allegations in states' and conservationists' lawsuits.

January 16
Forest Service extends interim policy requiring Chief's approval of logging and roadbuilding projects in most roadless areas.

February 9
Washington Governor Gregoire announces that Washington will be joining the California, Oregon, and New Mexico lawsuit.

February 24
Montana and Maine file an amicus brief supporting the states’ lawsuit challenging the repeal of the Roadless Rule.

March 2
Senator Maria Cantwell (WA) reintroduces Roadless Area Conservation Act in the Senate with 11 cosponsors.

March 6
Governor Easley (NC) petitions to protect 172,000 acres of inventoried roadless areas in North Carolina.

March 16
Judge Laporte orders the Forest Service to disclose internal documents on the Bush Administration’s decision to repeal the 2001 rule.

April 5
Nez Perce Tribe petitions for withdrawal of 2005 Roadless Repeal.

April 19
Governor Sanford (SC) files a petition to protect South Carolina’s 7,900 acres of roadless forests.

May 9
National Roadless Area Advisory Committee reviews and endorses petitions from Virginia, North Carolina, and South Carolina.

May 31
New Mexico Governor Richardson submits the first western state petition, requesting protection for all of the state’s inventoried roadless areas, plus the newly acquired Valle Vidal.

June 9
Forest Service auctions Mike's Gulch Timber Sale in South Kalmiopsis Roadless Area. Oregon Governor Kulongoski announces he will go to court to stop the sale.

June 21
Bush Administration accepts the Virginia, North Carolina and South Carolina roadless area petitions, leading to state-specific rulemaking processes.

July 12
California Governor Schwarzenegger petitions to protect all 4.4 million acres of the state's inventoried roadless areas.

August 1
Court hearing held in roadless cases before Judge Laporte.

August 4
Forest Serivce auctions Blackberry Timber Sale in North Kalmiopsis Roadless Area.

August 7
Logging begins in Mike's Gulch Timber Sale - the first time a roadless area has been logged since the Roadless Rule was adopted in 2001.

August 11
State of North Dakota settles its lawsuit challenging the Roadless Rule.

September 20
Judge Elizabeth LaPorte of the U.S. District Court Northern District of California ruled that the Administration illegally repealed the Roadless Rule, sets aside the State Petitions Rule and reinstates the Roadless Rule nationwide except in the Tongass National Forest.

September 20
Idaho submits petition allowing road building and logging in most of the state's 9.3 million acres of roadless areas.

September 21
Timber industry appeals Laporte to 9th Circuit.

September 22
State of Wyoming asks Judge Brimmer for immediate reinstatement of his 2003 decision enjoining the Roadless Rule.

September 22
Forest Service Chief issues national directive to stop roadless area activities unless consistent with the Roadless Rule (except in Tongass).

September 29
Judge Singleton issues decision on relief in Tongass case (following 9th Circuit reversal on August 5, 2005), enjoining eight timber sales in roadless areas until Forest Service revises Tongass forest plan.

October 4
Judge Laporte denies State of Oregon's request to enjoin nearly-completed Mike's Gulch and Blackberry timber sales.

October 4
Bush Administration re-charters National Roadless Area Advisory Committee to review state petitions submitted under Administrative Procedures Act.

October 18 - 19
Meeting of National Roadless Area Advisory Committee (RACNAC); decides to continue reviewing petitions.

November 13
Colorado outgoing Governor Owens submits petition based on state task force recommendations.

November 29
Judge Laporte issues injunction barring road construction in connection with more than 300 oil and gas leases sold since January 2001.

November 29
Idaho outgoing Governor Risch tells RACNAC that his petition is intended to protect all but 500,000 acres of Idaho’s IRAs consistent with the Roadless Rule.

2007

February 6
Judge Laporte issues final injunction, clarifying that the injunction extends to oil and gas drilling permits (as well as leases) issued since May 2005.

April 9
Forest Service and timber industry appeal Judge Laporte’s decision to the Ninth Circuit.

April 10
Federal Register notice initiates 30-day scoping comment period on Idaho petition for state-specific rulemaking.

April 11
Colorado Governor Ritter submits roadless petition including exemptions for ski areas, grazing, and coal mining.

May 24
Bills to enact the Roadless Rule are introduced in the House and Senate.

June 7
Judge Brimmer denies State of Wyoming's request to reinstate his 2003 decision enjoining the Roadless Rule.

July 5
Tenth Circuit Court of Appeals denies State of Wyoming's request to reinstate intervenors' appeal of Judge Brimmer's 2003 case.

October 19
Judge Brimmer holds oral arguments on State of Wyoming's new lawsuit challenging the 2001 Roadless Rule.

December 20
Idaho roadless rule draft EIS released.

December 26
Colorado roadless rule scoping notice issued.

2008

January 22
10-year anniversary of Forest Service proposed moratorium on road construction in Inventoried Roadless Areas.

January 25
Tongass final forest plan released.

February 25
Comment deadline for Colorado roadless rule scoping.

February 28
State of California sues the Forest Service for failing to protect roadless areas in 4 southern California forest plans.

April 7
Comment deadline for Idaho roadless rule draft EIS.

Source: The Wilderness Society

Roadless rule is tossed out again

Western state set to rewrite rules on use of 9.3 million acres of public land

Associated Press

CHEYENNE, WYO. -- A federal judge in Wyoming has overturned a Clinton-era ban on road construction in nearly 60 million acres of national forest, extending a long-running dispute over U.S. Forest Service rules for large sections of undeveloped land.

U.S. District Judge Clarence Brimmer's ruling on Tuesday is the latest turn in a legal battle over the Clinton administration rule that limited logging and other development in roadless areas that make up nearly a third of national forest land.

Brimmer issued a permanent injunction against the so-called "roadless rule," saying that the ban was enacted in violation of the National Environmental Policy Act and the Wilderness Act.

"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," Brimmer wrote.

The ruling reflects a similar decision Brimmer issued in 2003 in response to a lawsuit filed by Wyoming challenging the roadless rule. Brimmer's 2003 ruling was rendered moot when the Bush administration decided not to appeal and instead issued its own rules for roadless areas.

Conservation groups and attorneys general from Oregon, Washington, California and New Mexico later challenged the Bush policy, which required governors to petition the federal government to protect roadless areas in their states.

In 2006, U.S. District Judge Elizabeth Laporte in San Francisco reinstated the 2001 rule created by the Clinton administration. That prompted Wyoming to renew its complaint in federal district court.

On Tuesday, environmentalists vowed to appeal Brimmer's ruling to the U.S. 10th Circuit Court of Appeals in Denver, while also downplaying the scope of the decision.

Mike Anderson, an attorney with The Wilderness Society, said it was his opinion that the California decision was still in effect.

"It is not in any way overturned or compromised by Judge Brimmer's decision in Wyoming today," Anderson said. "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 praised Brimmer's ruling, saying the injunction was appropriate "in light of the potential harm the roadless rule poses to our national forests due to beetle infestation and forest fires."

"We anticipate an appeal by either the United States or one or more of the interveners," Salzburg said. "As such, we consider the matter still in litigation."

Attempts to reach the Forest Service for comment Tuesday evening were unsuccessful.

Observers said it was unclear whether Brimmer's ruling would have any effect on the two states -- Idaho and Colorado -- that are working their way through the Bush administration's policy for setting aside roadless areas. Neither state has completed the process.

"I would say it further clouds the legal background for those states' rule making," Anderson said.

In Idaho, federal officials said last month that they hoped to issue a final draft rule for the state's roadless backcountry in September and send it to President Bush for approval. Idaho is home to 9.3 million acres of roadless lands.

"My assumption is they will still proceed with rule making for Idaho," said Jonathan Oppenheimer, of the Boise-based Idaho Conservation League.

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

The Fight Over the Roadless Rule

by Jerry Taylor and Peter Van Doren
Cato Institute

The Bush administration set-off a political firestorm on July 12 when it announced that the Clinton administration's rule blocking road construction on 60 million acres of U.S. Forest Service lands will soon go up in smoke. The Bush administration plans to replace it with a regime that essentially allows a state's governor, in consultation with the U.S. Forest Service, to decide how much logging will occur on federal forest lands in that state. While environmentalists predictably went berserk and conservatives naturally applauded the re-embrace of states rights, both camps are increasingly lost in the intellectual woods.

For their part, the environmental lobby is brazenly rewriting history by suggesting that the National Forests are primarily there to save trees from the woodsman's axe. As environmentalist icon Gifford Pinchot, the first director of the U.S. Forest Service, wrote in a speech for Teddy Roosevelt in 1901, "Forest protection is not an end in itself; it is a means to increase and sustain the resources of our country and the industries which depend on them." In short, the National Forests were created not to dance in but to cut in (the reason, by the way, that the Forest Service is an arm of the U.S. Department of Agriculture and not the U.S. Department of the Interior). Public ownership was embraced because, back then, politicians were convinced that scientific management of the forests by federal rangers could maximize timber yields over the long run.

Environmentalists are also on shaky ground when they decry the environmental damage done by logging in the West. America's appetite for furniture, hardwood floors, houses, etc., isn't going to go away just because the trees won't be coming from California or Alaska. Logging will simply shift from the American West to forestlands abroad. While it's perfectly alright to be more concerned about environmental quality in the United States than in, say, Indonesia, we're not sure environmentalists fully appreciate the tradeoff they're embracing.

Republicans embracing this new rule are not much better. Administration defenders, for instance, often cite the need for more harvesting on federal lands in order to keep timber prices from spiraling out of control. But again, we can just as easily get the timber from abroad as from here at home. In fact, during the Clinton administration, timber prices fell through the floor even while a chunk of land the size of the state of Oregon was put off-limits to the timber industry for the very first time.

Another oft-heard Republican argument is that much of the land in question is undoubtedly more valuable as a wood-producing zone than for recreational or conservationist uses. But how do they know that? The only way to ascertain whether a scarce resource is better used for this rather than for that is to consider prices and consumer willingness to pay for those alternative uses of the resource. Because public land is kept out of the marketplace, prices don't exist and consumer preferences are never put to the test. Accordingly, there's no way to test the assertion.

Leaving those decisions primarily to the nation's governors rather than to federal bureaucrats does not make intelligent decision-making any easier. All it does is transfer the venue of the fight over extraction versus conservation to about 12 western state capitals. Accordingly, we can't help but suspect that the real policy objective behind this new rule is to transfer such fights to political playing fields where environmentalists are typically weaker and industry is politically stronger.

None of this, then, is really about how to most efficiently use federal lands. Environmentalists primarily care about protecting as much land from development as is humanly possible. Republicans primarily care about ensuring that rural westerners -- primarily Republicans -- have jobs, particularly jobs in the timber industry.

It's time to find our way out of these dark woods. Wanting to protect forests from the axe is fine. Wanting the general public to subsidize your preferences is not. Wanting a job in the timber industry is likewise fine. Wanting the general public to deny others the right to their preferences in order to secure that job is not.

The original mission of the National Forests is no longer operative and the original justification for the National Forest Service is no longer defensible. Maintaining such huge volumes of federal land in such political enclaves guarantees that forests will be managed by political rather than economic or ecological criteria. Caring about the health of our nations forests -- both as an ecological preserve and as an economically valuable resource -- demand reconsideration of public ownership.