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Mike Dombeck was the U.S. Forest Service Chief from 1997 to 2001, overseeing the roadless rule process. He’s now a professor at the University of Wisconsin-Stevens Point. He’s also been a National Wildlife Federation board member. -
George T. Frampton Jr. ran The Wilderness Society from 1986 to 1993, then pushed for the roadless rule within the Clinton White House as head of the Council on Environmental Quality. He’s now a corporate lawyer working on clean energy issues. -
Ken Rait, a skilled politico based in Oregon, ran Pew Charitable Trust’s Heritage Forests Campaign from 1997 until the Clinton roadless rule was finalized in 2001. Now he’s campaigns director for another Pew-funded group, the Campaign for America’s Wilderness. -
Credit: Cindy Wehling photo illustration; Istock photos -
The watershed of Oregon’s Rogue River includes roadless areas protected by Clinton’s rule. -
Wyoming federal judge Clarence Brimmer Jr. found that Clinton’s rule was illegally rigged — infuriating environmentalists. -
The campaign persuaded more than a million people to send boilerplate comments to the Clinton administration on postcards like the one at left and mass e-mails and faxes. More than 80,000 people signed petitions circulated by Aveda, a company that makes eco-friendly beauty products and works with salons nationwide. This year, the campaign is urging the Obama administration to back Clinton’s rule, by sending more mass e-mails and running ads during last spring’s NCAA basketball tournament calling for a “Time Out!” on activities in roadless areas. -
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CHEYENNE, WYOMING
The environmentalists’ boogeyman walks with tiny, uncertain steps. He’s 87 years old, suffers from an arthritic knee and worries about stumbling and falling down. He’s also slowly shrinking — he lost an inch and 24 pounds over the last three years, so now he’s only 5 feet 6 and 120 pounds. But today he’s looking flashy, spicing up his beige suit with a nicely coordinated daffodil-yellow shirt and an amber-hued bow tie.
The Honorable Clarence Addison Brimmer Jr., federal judge for the district of Wyoming, speaks softly and carefully even when kidding around. Don’t call him Clarence, he says. “Guys who are named Clarence always have a nickname. It’s just one of those things — a cross I have to bear. … ‘Bud’ — that’s been my nickname for a hundred years, that’s what my mother called me.”
He’s supposedly on “senior status” in his judicial duties –– “a fancy name for half-assed retirement,” he says. But on this sunny September day, he’s in his courthouse office, still handling a full case load.
And that’s too bad for the environmental movement. Brimmer gained notoriety through court decisions that spurned many green ambitions over the years, including the spread of wolves, grazing restrictions and Yellowstone snowmobile regulations. Even when other judges overrule his decisions, he undercuts the environmentalists’ campaigns.
Frail though he appears, now Brimmer is closing in on a major kill. He’s determined to wipe out what environmentalists call “the most significant land conservation initiative in nearly a century”: the Roadless Area Conservation Rule.
Imposed by the Clinton administration in 2001, the rule protected 58.5 million acres of national forest, mostly in the West — the wildest portions that were not already designated wilderness. Clinton’s rule has since been shoved around by the Bush and Obama administrations, various courts and state governments. People argue whether it still protects all the acres it originally did, or only some or none. Regardless, it’s earned superlatives — especially for how the enviros pulled it off.
It was simply “the most extensive national environmental Campaign yet waged in the United States, combining grass-roots organizing in nearly every state; massive infusions of philanthropic support; support from hunters and anglers; religious leaders, scientists, and the outdoor recreation industry; relentless lobbying of Congress and the executive branch; and complex and extremely long-lived litigation,” writes Earthjustice’s Tom Turner in his recent book, Roadless Rules: The Struggle for the Last Wild Forests.
Brimmer has issued a series of rulings against the roadless rule, most recently last June, when he reaffirmed his nationwide injunction against it. Enviros and the Obama administration appealed that decision, and the 10th Circuit Court of Appeals in Denver will soon begin weighing arguments on the case. The U.S. Congress and the states are also reacting to Brimmer’s decision.
In a typical dismissal of Brimmer, an Ivy League enviro lawyer calls him “a crazy rightwing judge for whom reality is irrelevant.”
But a closer look reveals things that the environmentalists might rather keep under wraps. The details behind the making of the rule, along with the PR campaign, demonstrate how all interest groups — from liberal enviros to libertarian Tea Partiers — carry out their goals using a mix of idealism, cynicism and brute-force politics.
Brimmer believes the roadless rule was created in a sneaky, illegal way. And he says, “I feel we have to play the cards face up.”
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By the 1990s, science demonstrated the value of national forest areas where roads had not yet penetrated. They contain some of the best remaining old-growth ecosystems, home to rare spotted owls, salmon and other endangered species. Existing laws protected less than half the roadless areas not in congressionally designated wilderness. Even those protections seemed tenuous, given the timber industry’s political power and appetite.
National environmental groups couldn’t persuade Congress to pass a law protecting roadless forest in general, and passing a single wilderness bill can take years of frustrating politicking. During the long negotiations, bulldozers often cut new roads through potential wilderness areas, taking them out of the running for strong protection. Roads also bring in weeds, wildlife-stressing traffic and other impacts. Small groups of forest activists protested by chaining themselves to heavy equipment and obstructing loggers in the woods.
That atmosphere of desperation led to the campaign for a large-scale roadless-forest rule. Leaders say it emerged organically, not through any conspiracy. But they agree that three forces provided traction in late 1997: President Clinton pushed the Forest Service to invent some means of protecting roadless areas. The Philadelphia-based Pew Charitable Trusts, reportedly the biggest funder of environmental groups, launched the Heritage Forests Campaign to rally public support. And many other groups were ready to join the effort.
“The name (of the campaign) was chosen after testing several variations on focus groups,” reports Turner. ” ‘Heritage’ (is) an attractive and relatively neutral word.”
During the next three years, while the Clinton administration developed the roadless-forest rule, Pew and other foundations pumped about $10 million into environmental groups for protection of roadless forest, according to congressional testimony. The Heritage Forests Campaign was a kind of headquarters; from its base within the National Audubon Society in Washington, D.C., it used about $3.5 million to contract with other groups such as The Wilderness Society for their expertise in political campaigns and environmental regulations.
George Frampton, the head of The Wilderness Society from 1986 to 1993, became a key player. He was Clinton’s top adviser on environmental policy from late 1998 to 2001, running the White House’s Council on Environmental Quality. “When I got to CEQ, one of the first things I did was to have (roadless-forest protection) presented to the president: ‘Let’s go for this, a real protective rule, let’s just protect all these wild places,’ ” Frampton says.
Ken Rait, who ran the Heritage Forests Campaign at the beginning, had many contacts in the Clinton administration through his previous work with the Southern Utah Wilderness Alliance and Oregon Natural Resources Council. Rait says he saw a “historic” opportunity to “craft a campaign where people could feel like part of a winning team,” with an “upbeat” message and broad appeal. “Protection of wild places,” he says, “is a motherhood and apple pie issue.”
The huge effort was necessary because the environmentalists — in both the campaign and the administration — wanted more than just an executive order issued by Clinton. A Forest Service “administrative rule” would be harder for future presidents to change. Prodded by Clinton, the Forest Service announced its general intentions in October 1999. Then the agency spent 15 months on an environmental impact statement, including rounds of analysis and public comments. About 10,000 people commented in public hearings near the forests and far more than a million commented by mail, fax and e-mail.
“Wholesale and retail organizing” — that’s how Rait describes the campaign’s strategy. The “wholesale” end used new Internet tools. The groups pooled their e-mail lists and sent out e-mail “blasts” to hundreds of thousands of activists, directing them to Web sites where they could click to generate boilerplate e-mail comments and “e-mail postcards” to the Clinton administration. They “pioneered new electronic tricks,” Turner reports, “Internet banner ads, click-through ads on Yahoo, ads that people could send to their friends and colleagues (so-called viral ads).” Specialized tech companies and nonprofits did that work, including The Technology Project, based at the Rockefeller Family Fund in New York, and The Partnership Project, which The Turner Foundation launched in 1999 with a separate $5 million grant just to make groups’ e-mail lists more effective.
The “retail” organizing dispatched activists to metro neighborhoods, malls and colleges, asking people to sign pre-printed postcards supporting the roadless rule. “We explained to people the importance of protecting roadless areas and got them to take the first step in political action,” recalls Angela Storey, then a college student, who asked thousands of people in Washington state and the Boston area to sign postcards in 1999 and 2000. She says many who did had a “personal connection” with forests through recreation or living nearby. “For me, it was a really important campaign. I grew up in the Cascades and saw the increase in clear-cuts and roads, and I studied biology in college, learning about the massive changes in the environment.”
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Storey worked with Green Corps, a “graduate school for environmental organizers” run by the U.S. Public Interest Research Group; PIRG generated a torrent of postcard comments across the country. Sporting-goods stores and manufacturers — organized as the Outdoor Industry Association — passed out postcards to their customers. The most surprising player was the Aveda Corp., which sells eco-friendly beauty products and works with salons and spas nationwide. Aveda used its network to persuade more than 80,000 people to sign a petition in support of the roadless rule; many did so while getting their hair or nails done.
The campaign also lined up sympathetic scientists and religious leaders. It conducted polls that posed general questions about forest protection, finding widespread support for the “motherhood and apple pie” vision, and fed those to newspaper editorial writers. And it organized networks of activists to attend hearings and provided vans to haul them. Turner describes how the enviros outfoxed their opponents in a Missoula, Mont., hearing: “The timber industry had sent truckers to pack the hall, first providing a meal at ‘the world’s largest picnic table.’ So the pro-roadless activists got to the hearing room early, filled all the chairs, and signed up for all the speaking slots. The truckers were reduced to chanting slogans outside, on the street. (Journalists) reported that the timber industry representatives chose to demonstrate outside and not participate in the hearing.” (Click for more details on the campaign’s ground game.)
More than 1.6 million total comments swamped the Forest Service — “the most extensive public involvement in the history of federal rulemaking,” according to The Wilderness Society. More than 90 percent were mass-mailed boilerplate comments supporting the rule one way or another.
The final version of Clinton’s rule was published in the Federal Register on Jan. 12, 2001, eight days before Clinton left office. It was cleverly written. It banned logging as well as road construction, with exceptions for public safety or ecosystem health. But it didn’t ban off-road driving or mining; the enviros believed they lacked the legal foundation to address those issues in an administrative rule. “We wanted as much protection as we could get that would be legally defensible,” Rait says.
In effect, the rule created a new category of federal land: Wilderness Lite. When roadless acres were combined with designated wilderness, about half the total area of the national forests would be protected.
The typical pattern of rage erupted in response. Republican Idaho Sen. Larry Craig, a timber industry champion, called the idea “a hand grenade rolled under my door.” Other Western Republicans in Congress denounced it, as did Republican governors, rural county commissioners, timber companies and people who said they preferred access and flexibility to increased federal control.
Most rural Westerners apparently opposed it. More than a hundred locals attended a Forest Service roadless meeting in Grangeville, Idaho in December 1999, and “most (over 80 percent) were opposed … many were angry at the ‘administration’ and the Forest Service for the ‘top down’ nature of the proposal,” reported a Forest Service staffer. “Nearly all (50) speakers opposed the initiative,” reported a staffer at a hearing in Dillon, Mont., the same month. Meanwhile, the West’s college towns and metro areas were either divided or approving. People from other regions generally favored regulating Western public land.
Idaho’s Craig and Rep. Helen Chenoweth-Hage, R, held hearings in Congress that examined and blasted the rule-making. “Wise Use” movement leader Ron Arnold called it “the iron triangle” of green foundations, green groups and Clintonites. They spouted shrill rhetoric about yet another enviro conspiracy to destroy the rural West.
The leading critics failed to acknowledge the impacts of logging and mining and other industries, or the risks of rural communities locking themselves into undiversified boom-and-bust economies. They ignored the way oil and coal can get presidents such as George W. Bush to shape regulations in their favor. They didn’t mind the iron triangles formed by big corporations, right-wing foundations and libertarian think tanks that use money and spin to influence federal land-use policies.
Instead of inspiring an honest dialogue that admitted the blind spots on both sides, the roadless rule fell into court battles. At least nine lawsuits in various federal courts have challenged either the Clinton rule or a 2004 Bush rollback of it. And the courts seem determined to carry on the political wrangling.
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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.
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Campaign leaders and top Clintonites — most often the CEQ’s Frampton — met in D.C. at least six times during 1999 and 2000 to discuss making the rule, according to federal records. They considered “talking points,” ads the campaign planned to run, and the need for a “presidential event and memo” to kick off the Forest Service process.
“The outstanding issue/interest is having POTUS (President of the U.S.) roll out announcement regarding preservation of forest lands and leaving that as one of his lasting legacies …” said an e-mail summing up an August 1999 meeting.
The campaigners sent a fax to Frampton before the August meeting, suggesting the wording for Clinton’s announcement, and then brought those suggestions — labeled “a draft” — to the meeting. Written by three Wilderness Society leaders, the draft opens with, “At the beginning of this century, President Theodore Roosevelt …” Clinton posed on a Virginia mountain to deliver his roadless speech and issued his memo two months after that meeting. The speech and memo, ordering the Forest Service to develop a rule, sounded similar to the environmentalists’ draft and shared the same goal. Clinton’s first words were: “At the start of this century, President Theodore Roosevelt …”
The e-mail summing up the August meeting also noted that the White House was informed that “the Campaign has placed Green Corps organizers” in a handful of key states “to keep western dems copacetic or neutral and republicans split …” The Clintonites also asked the campaigners to drum up public comments, according to Turner.
The campaigners provided detailed legal research to the Clintonites about how to make the rule tough and defensible. Two top lawyers weighed in: Niel Lawrence of the Natural Resources Defense Council and Charles Wilkinson, a University of Colorado law professor who was then on The Wilderness Society’s board of directors.
The Clintonites sought input from dozens of other interest groups, ranging from off-road drivers to the Western States Sheriffs’ Association. But judging by the final outcome, the enviros’ goals outweighed all the other input; either that, or the enviros’ goals coincided more exactly with the Clintonites’ to begin with.
The Forest Service’s Content Analysis Enterprise Team in Salt Lake City, which evaluated all the comments for the EIS process, found that many people complained that the process was rushed so it could be completed before the end of Clinton’s term. Indeed, the Clintonites used the words “emergency” and “crisis team” in their internal communications. The first comment period lasted 60 days, and the other comment period — when people could read and react to the 796-page draft environmental impact statement — was 69 days. That’s about average for a big EIS, but this one was unprecedented in scale, covering about one-third of the acres in all the national forests. Many people requested that the comment periods be extended; the Forest Service refused. The first round of hearings was especially chaotic — meetings were held without much advance notice, or in locations that were changed at the last second. Often there was a shortage of good maps or clear information about forest areas that might be affected.
Some of the most damning comments came from within the Forest Service. Five hundred staffers signed a letter praising the idea early on, but as the process unfolded, the Forest Service Council, a kind of union representing 14,000 staffers (half the agency’s total), sent a formal letter in March 2000 trashing every aspect of it. Resistance from the ranks, faced with such a bold change, is not surprising. But the letter, written by Art Johnston, the group’s legislative committee chair, goes beyond merely asking that the roadless rule be called off. Johnston said staffers opposed such “centralized planning … the Roadless Area Initiative is a ‘one plan fits all’ prescription and lumps 54 million acres together that are obviously quite different, both in physical aspects and in social/cultural dimensions. … This initiative has totally bypassed scientific analysis. …”
Moreover, “the Roadless Area Initiative … has greatly magnified the conflict between the urban environmental community and other National Forest users,” the Forest Service Council went on. “On one side is the Administration and every environmental organization; on the other, every rural state and its governor, every county board, hunters, ORVers, libertarians, and logging and mining associations. … The decisions that lead to this initiative were not open and transparent. Only one group of Forest users was consulted, and the other side was clearly and intentionally locked out of the process. There was no effort by the Administration to gather consensus or agreement. … This is an example of politics at its worst. … We also live in rural communities (and) the level of distrust toward the Forest Service and its employees has reached an unprecedented level.”
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With the pressure from the top, many Forest Service staffers couldn’t openly express their opposition. “The Union is very concerned about recent threats of reprisal from the Administration toward Forest Service employees who have voiced their concerns about the Roadless Area initiative,” the letter said. “It is totally unacceptable for any employee to be threatened by the Administration with retirement if they voice questions about (it). Nor should they be told that they cannot be talking to certain people. Forest Service employees take pride in their public service and professionalism. Forest Service employees should be treated respectfully — most certainly by Forest Service leadership. All employees should be encouraged to have diverse opinions and to use all their skills to solve problems and facilitate public relationships and debates.”
The Forest Service Council charged that the roadless rule violated both the National Forest Management Act (which calls for individual forest plans to decide such issues) and the Wilderness Act. Another Forest Service group — more than 160 retired high-level staffers, organized as the FSX Club of Washington, D.C., “having vast experience in wild land planning and prescriptions” — also said the EIS process was a sham. The chapter head, Robert C. Van Aken, wrote in July 2000 that the whole process “makes a mockery” of decades of forest planning and NEPA analyses. The EIS analyses didn’t have “a full display of the economic and social impacts of a massive roadless designation,” he wrote, because of “the agency’s totally inappropriate reliance on a narrow spectrum of special interest groups in proposing and formulating the rule. The result is an unbalanced proposal with misleading and inadequate analysis that … violate(s) existing statutes and regulations.”
As the environmentalists’ mass-mailed comments piled up, Nancy Thornburg, a retired museum archivist and journalist in Markleesville, Calif., a small town surrounded by the Humboldt-Toiyabe National Forest, wrote a personal comment letter opposing the rule. She also wrote to California Democratic Sen. Barbara Boxer, saying that “stacks of post cards and gang, boilerplate emails should not carry the same weight as carefully thought out letters with specific comments and suggestions.” Thornburg included a copy of an alert on the Sierra Club Web site that urged people to get their “stack of cards” to help generate 250,000 postcard comments before the impending deadline. The Sierra Club also sent its chapters a video explaining the issue and asked the chapter leaders to show the tape to its half-million members to generate postcards.
Thornburg says in a phone interview, “The Forest Service owns 96 percent of my county, which leaves only 4 percent for any kind of economic base, and when I take the time to compose an e-mail or a letter (to the agency) I know the subject. I’m telling (the agency how a proposed action) is going to impact my family and my community. It’s fine for the Sierra Club to send postcards to its members and say, ‘Just put a stamp on this and mail it in’ — but don’t view those evenly with my comment.” She used to belong to the Sierra Club, but now she belongs to conservative groups –– although she sees those groups using the same tactics.
Sen. Boxer forwarded Thornburg’s 1999 letter about the mass postcards to the Forest Service, and the head of the Roadless Project, Scott Conroy, responded to Thornburg with a letter assuring her that, according to standard EIS procedure, “If the postcards all have the same message, they are treated as a single comment. … Their content is given equal weight with that of individually composed comments.”
Using that method of counting, the Forest Service’s analysis team found that in the biggest round of comments, reacting to the Draft Environmental Impact Statement, “by far … most comments … are negative. … Both those favoring and those opposed to the rule express concern over statements they consider to be vague, subjective, and open to interpretation.” Most comments said the hearings for the DEIS were poorly planned and carried out, “held at extremely inconvenient times and locations and that presentations were not sufficiently clear and accurate … respondents, on both sides of the issue, said the meetings they attended were dominated by persons and groups representing the other side, and they felt too intimidated to stand up in the face of so much opposition and express their own views. … The overwhelming sentiment expressed is that (the 69-day DEIS comment period) was woefully inadequate and should be extended.”
The analysis team dutifully listed all the positive and negative comments, but reported that one section of the DEIS drew almost universal disdain. “A great many respondents write that the proposed rule will devastate (timber) communities,” the team’s report, published in October 2000, goes on. “The social analysis of timber workers … has stimulated an extraordinary amount of comment — entirely and categorically negative. Respondents see it as biased, condescending, and indicative of a total lack of respect for workers in the timber industry. They see it as one more piece of evidence that the national leadership of the Forest Service has been infiltrated by ‘radical environmentalists’ who have no regard whatever for the work and value they represent. … They claim that the conclusion drawn from the analysis — that individuals and communities can adjust to any circumstances … shows how little the Forest Service understands their true circumstances. … The intense level of emotional reaction to this analysis cannot be overemphasized.”
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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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See related sidebars:
Wicked Witch of the West: A timeline of Harriet Hageman and Judge Brimmer handling the case
The roadless rule’s ground game: Excerpts from an Earthjustice editor’s book
For more information:
US Forest Service Roadless site
The Wilderness Society’s roadless site
The Heartland Institute, an opponent of the roadless rule
Mountain States Legal Foundation roadless case site
This article appeared in the print edition of the magazine with the headline Roadless-less.
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