Despite the criticism, in every step -- from the initial "scoping" to the DEIS, then to the final impact statement, then to the Federal Register -- the roadless rule got tougher, either by covering more and more acres or in its prescriptions. The range of alternatives in both the draft and the final EIS was narrow; other than the "No Action" alternative -- which has probably never been selected in the entire 40-year history of EISes -- the other alternatives all called for banning road construction in roadless areas. The differences lay in the details. None of the "Action" alternatives considered banning roads only in the most sensitive areas, or setting limits on road densities, strict standards on road construction or other regulations on exactly where roads could be built.
Mike Dombeck, the Forest Service chief at the time, defends the rule-making process. "The instructions (from the White House) were to go ahead and take a look at protecting roadless areas and how we can do it," he says. "Typically, agencies are criticized for not being able to get things done. Then when something does happen, those opposed to it say it happens too fast."
Speaking off the record, one of the top Clintonites during the rule-making acknowledges: "It was a very calculated operation. We weren't signaling at the beginning where we wanted to go, or at least where I wanted to go. If we'd tipped our hand, it would've gotten killed -- some conservative Westerners in Congress would've put an appropriations rider on it (cutting off funding) and it would've been dead." He adds, "The process had plenty of integrity -- probably more integrity than most EIS processes on highly controversial issues. If this EIS isn't good enough (to survive a legal challenge) none of them are good enough."
Judge Brimmer decorates his office with photos of the orchids he raises in his greenhouse. He has more than 300 orchids from jungles and semitropical habitats. "All colors of the rainbows and exotic shapes," he says. "They're an unusual plant, hard to raise." He's kept some of those plants flowering for more than 40 years. He also displays memorabilia from a lifetime of downhill skiing and awards of appreciation from the regional judges association, the Boy Scouts and the Wyoming Trial Lawyers Association -- "for devotion to the cause of justice, inspiring all attorneys."
Brimmer explains his Republican background: "It's a die-hard Republican state. You had to get along with the party or you wouldn't get anywhere." He defends his judicial philosophy: "The enviros view me as an anti-environmentalist -- I reject that position heartily. ... I'm not anti-environment." Public hearings, comment evaluation and adequate time in an EIS process "are all valuable rights that a citizen of this country has and they shouldn't be ignored."
Brimmer hasn't thrown out every environmental regulation that came within his reach; he has made some landmark rulings for Wyoming's wildlife. In the famous 1985 Red Rim fence case, he ordered a wealthy ranch owner from out of state to take down a fence that was blocking antelope migration. "I've been for Wyoming -- first, last and always," he says. "I'm not trying to be anything I'm not. In 34 years on the bench, one thing I've insisted on is fairness."
Of course, that's what all judges say. But it's a striking image: The whole massive enviro-Clinton juggernaut up against the wisplike Brimmer. The enviros seem determined to outlast the old judge -- if he gets senile or dies, maybe they'll win. They've thrown everything they could at him, including an ethics challenge that accused him of a conflict of interest in the roadless case because he owned oil and gas stocks. (The 10th Circuit Court of Appeals dismissed the complaint.)
The 10th Circuit Court, which leans Republican, will probably decide the issue next year. The enviros are already making contingency plans.
The Pew Charitable Trusts, which reportedly has about $5 billion devoted to a range of missions, is still funding the Heritage Forests Campaign. It's cranking out ads and alerts urging the Obama administration and Congress to defend Clinton's rule. In May, Obama's secretary of Agriculture, Tom Vilsack, who oversees the Forest Service, declared a "one-year moratorium" in which any activity proposed in most roadless areas must be approved by him. Congress has frequently considered proposals to make Clinton's rule a full-fledged law; the most recent bills were introduced on Oct. 1. Most sponsors aren't from the West, but they include the senators from Washington and California, as well as Oregon Sen. Jeff Merkley, New Mexico Sen. Jeff Bingaman, Arizona Rep. Raúl Grijalva, Washington Rep. Jay Inslee and California Rep. George Miller (all Democrats).
The campaign recently generated 200,000 negative e-comments regarding Colorado, where some environmentalists and other interests, including Democratic Gov. Bill Ritter and the Colorado Department of Natural Resources, are trying to create their own roadless forest rule. That process was allowed under Bush's rollback, which invited state governments to take an active role.
Colorado has more than 4 million acres of roadless forest; the current draft of the state's rule would protect most of those acres while allowing the oil and coal industries access to about 100,000 acres. It would also allow local forest managers to make exceptions for new transmission lines and logging for watershed health and control of beetles and wildfires. Jane Danowitz, who now heads the Heritage Forests Campaign, says Colorado's rule has too many loopholes. It was created "to placate special interests," she says, and will become "a magnet for litigation."
Several groups in the campaign, including The Wilderness Society, are already pushing a lawsuit against another state's roadless rule. A broad spectrum of interests in Idaho -- including Republican politicians and the Idaho Conservation League -- took advantage of the Bush rollback by negotiating a rule that protects about 9 million acres of forest while opening 400,000 acres to road-building, logging and risky phosphate mining. The enviro challengers charge that Idaho's forest managers will also have too much discretion to log in the name of wildfire risk. But Idaho's rule, which took effect last October, is generally popular in the state because it settled chronic arguments and uncertainty while protecting a lot of land.
That opens a provocative line of thought. What if the Clinton rule had never been made, or something like the Bush rollback had taken effect? Maybe giving the states more say in roadless forests would have worked out better politically for the environmental movement. Turning Utah's roadless forests over to the mercy of Utah's politics, for instance, might have given the Southern Utah Wilderness Alliance a chance to connect with Utah's hunters and anglers. California and New Mexico have signaled that they want most of their roadless forests preserved. Maybe roadless areas could have been protected in a more bipartisan fashion, within detailed guidelines set by the people in each state. It wouldn't have protected every acre, but enough to satisfy many people.
Instead, the battle rages on. For those who agree with Magistrate Laporte's decision, the Clinton rule remains in effect almost everywhere, or at least in the jurisdiction of the 9th Circuit Court of Appeals, a crescent of land from Montana to the coast to Arizona. Those who side with Judge Brimmer think the Clinton rule has been either tossed out entirely or at least everywhere outside of the 9th Circuit's jurisdiction. Amid the legal morass, the Forest Service, wary of lawsuits, continues to protect nearly every acre originally covered by Clinton's rule, no matter what the headlines say about the latest statement by a judge or politician or environmentalist.
Dombeck, now a professor of global conservation at University of Wisconsin-Stevens Point, says he hopes Congress or the Obama administration will step up if the 10th Circuit backs Brimmer. "The bottom line, in my view, is that the mechanism of how we keep wild places wild is less important than doing it."
Frampton, who's now with a corporate law firm working on energy and climate issues, says he thinks the roadless rule "will stick forever, but it might take a couple of years of creativity" from Congress and Obama. "Making sure the roadless rule is permanent, that's the first phase. The second phase is to turn much of that into wilderness."
It might surprise a lot of people to learn what Brimmer thinks of Obama. "I like him," Brimmer says. "I think he's a refreshing guy. Republicans deplore his spending but they're the ones who started it. He's trying fresh approaches. I find I can go along with him on nearly everything. He's for civility and so am I. I'm strongly for civility."
This coverage is supported by contributors to the High Country News Enterprise Journalism Fund.
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The Heartland Institute, an opponent of the roadless rule
Mountain States Legal Foundation roadless case site