When Idaho's Republican government, tribes and other interests pushed lawsuits against the rule in 2001, for instance, a Republican judge in Idaho (appointed by a Republican president) quickly issued a preliminary injunction, suspending the rule until a trial could be held. When the enviros appealed that injunction to the California-based 9th Circuit Court, a three-judge panel split along party lines: The panel's two Democratic judges ruled for Clinton's rule, while the panel's lone Republican -- Andrew J. Kleinfeld, an Alaska native with a Harvard law degree originally appointed to the bench by President Reagan -- wrote a scathing dissent, criticizing Clinton's rule as a "bizarre Orwellian" process that illegally "shoved through ... a massive policy change."
Ronald M. Gould, the 9th Circuit judge who wrote the 2002 majority opinion on the Idaho case, thinks like environmentalists. He praised "our priceless national forests," quoted a United Nations report on global deforestation and observed: "Roadless areas (are) some of the last unspoiled wilderness (providing) not only sheltering shade for the visitor and sustenance for ... diverse wildlife but also pure water and fresh oxygen for humankind." Clinton appointed Gould in 1999, when the roadless rule was being created. And Gould's opinion continues to be the foundation for deciding roadless lawsuits in the 9th Circuit's territory, which includes more than half the Western states.
U.S. Magistrate Judge Elizabeth Laporte, in Northern California's federal district court, quoted liberally from Gould's opinion in her 2006 decision throwing out Bush's rollback. Laporte also tends to agree with environmentalists; in other cases, she's found "disturbing evidence of environmental degradation" from livestock grazing in wilderness, "whales, dolphins and other magnificent mammals that still live in the ocean (being) irreparably" harmed by Navy sonar, and farm irrigation causing an "alarming" reduction in sturgeon habitat.
Brimmer is a Republican judge; he was active in the state party before Reagan appointed him to the bench. He got drawn into the roadless rule in 2001, when Wyoming's then-Republican government sued the Forest Service. In that case and its descendants, Brimmer effectively threw out the Clinton rule three times -- in 2003 and 2008 as well as last June.
Brimmer said that Clinton's rule-making violated the National Environmental Policy Act –– the bedrock law for environmental impact statements –– because it had a "predetermined" outcome and only pretended to be based on analysis and public comment. Brimmer also found that Clinton's rule violated the Wilderness Act by establishing de-facto wilderness areas without Congress.
"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 (have) done lasting damage to our very laws designed to protect the environment," says one of Brimmer's decisions. The roadless rule was "a once-over lightly ... without taking the 'hard look' that NEPA requires."
Brimmer's background made it easy for enviros to see his decisions as politically motivated. But the legal quagmire around the rule is fraught with misunderstandings. Many people see Laporte and Brimmer as dueling judges, issuing contradictory decisions on Clinton's rule. Actually, Laporte focused on Bush's rollback, which was done with no EIS -- a process so bogus that no judge has backed it.
Brimmer and lawyers for Wyoming say that he's the only judge whose decisions are based on a full review of the mountainous "administrative record" -- the official term for all the federal documents related to Clinton's rule-making that can be made public. And in that record –– and in reams of other evidence gathered by a particularly fierce anti-enviro lawyer who likes to be called the Wicked Witch of the West (click for details) –– justification for Brimmer's decisions is piled high.