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'Wilderness Lite' wins the day

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Sarah Gilman | Oct 25, 2011 06:00 AM

One of the last decades' most scintillating (that is, in the headachey confusing sense evoked by scintillating scotoma) enviro-legal ping-pong matches may finally be drawing to a close. On Friday, a three-judge panel at the federal 10th Circuit Court of Appeals in Denver effectively reinstated the Clinton-era Roadless Area Conservation Rule, which banned new road building and most logging on more than 50 million acres of national forest. The rule was meant to prevent further fragmentation of wildlife habitat, sedimentation of streams, and other negative effects of roads on lands that had been previously inventoried as "roadless."

As Ray Ring reported in his 2009 High Country News cover story, "Roadless-less," "at least nine lawsuits in various federal courts have challenged either the Clinton rule or a 2004 Bush rollback of it (which allowed states to put together their own proposals for protecting roadless lands in their borders)," leaving the lands and the states that undertook roadless planning processes in endless legal limbo. Ring was specifically interested in Wyoming's successful challenge to the roadless rule. In 2008, U.S. District Judge for Wyoming Clarence Brimmer had issued a permanent, nationwide injunction against the rule on the grounds that the U.S. Forest Service violated both the National Environmental Policy Act (by seeming to hew to a predetermined outcome during what some claimed was a too-speedy environmental review process, among other issues) and the Wilderness Act (by creating "de-facto" wilderness areas without the blessing of Congress). Brimmer's move was especially intriguing, according to Ring, because the documentation supporting it suggested that the environmental groups that pushed the proposal had engaged in the same kind of incestuous politicking and heavy-handed meddling they so often bag on industry for getting into.

Even so, the three 10th Circuit judges involved in the latest ruling -- one Democratic appointee and two Republican -- roundly rejected Brimmer's findings in their 120-page, unanimous opinion, as well as Wyoming's further claims that the roadless rule violates two other federal land-management laws, the Multiple Use and Sustained Yield Act and the National Forest Management Act.

Designated roadless areas aren't de-facto wilderness, the judges wrote, because the roadless rule  doesn't prohibit the construction of temporary or permanent structures, the use of motorized vehicles or equipment or mechanical transport, as the Wilderness Act does. It's also less restrictive on grazing and mineral development, and allows existing roads to remain and be maintained. And, the judges point out, the Wilderness Act never limited the Forest Service's authority to manage land broadly for conservation purposes.

In other words, it appears that the original roadless rule -- which, according to Ring, effectively "created a new category of federal land: Wilderness Lite" -- was tailored cleverly enough to ultimately skirt a challenge like this one. As Ken Rait of the Heritage Forests Campaign, a leading promoter of the rule, told Ring back in 2009, "we wanted as much protection as we could get that would be legally defensible."

 

Roadless Area Map

Map of inventoried roadless areas, courtesy USFS. Roadless is indicated in brown. Click on image to view larger.


Similarly, the judges found that the agency hadn't violated the Multiple Use law, because in passing it, Congress expressly recognized that not all uses would be prioritized in all places; managing some lands primarily for recreation, wildlife habitat and watershed health is clearly following a multiple use mandate. The National Forest Management Act, meanwhile, doesn't apply,  they wrote, because that law governs planning actions on specific National Forests, while other laws grant the Forest Service authority to develop broader, even nationwide, policies.

The judges' rejection of Brimmer's finding that the Forest Service violated NEPA --  a procedural law that requires the feds to evaluate the environmental impacts of their projects -- is much less straightforward and involves several different alleged violations, from failing to extend a 60 day comment period or provide adequate maps of affected areas to not conducting a supplementary environmental review when the agency tweaked its plans. But the Forest Service wasn't actually required  by NEPA, the federal rules on how that law should be carried out, or the existing case law, to do many of the things on the list of violations, the judges argued, and what it had done met legal muster.

The judges also concluded that there wasn't evidence to support the most serious charge, that the agency seemed to be hewing to a predetermined outcome (and thus that the whole environmental review process was a sham):

CEQ Regulations expressly indicate that an “agency can have a preferred alternative in mind when it conducts a NEPA analysis.” ...Predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis — which of course is supposed to involve an objective, good faith inquiry into the environmental consequences of the agency’s proposed action. ...

We have generally concluded that predetermination was present only when there was concrete evidence demonstrating that the agency had irreversibly and irretrievably bound itself to a certain outcome — for example, through a contractual obligation or other binding agreement.


In other words, the Clinton administration may not have played nice when it pushed the roadless rule through in its 11th hour before leaving office, but the law didn't require it to do so in the ways that Wyoming claimed.

Not surprisingly, environmental groups are touting the latest ruling as a potential end-game victory. "This was an extremely thorough ... opinion, unanimous and authored by a George W. Bush appointee," Jim Angell, an Earthjustice attorney who represented environmental groups in the case told the Los Angeles Times. "I expect this rule to hold."

Wyoming could still ask the full 10th Circuit Court to review the case or appeal it to the Supreme Court. So far, Republican Gov. Matt Mead hasn't indicated what the state will do.

It also isn't clear what the decision will mean for Idaho and Colorado, which developed their own roadless area plans while the federal rule was in limbo. Idaho's, which has already been instated, is the subject of a separate lawsuit. Colorado's is still in progress, and given that uncertainty remains, officials here have decided to continue, reports RealVail.com:

"This (10th Circuit)ruling does not preclude further litigation, which could continue to create uncertainty," Colorado Department of Natural Resources Executive Director Mike King said. "As a result, we will continue working to finalize the Colorado rule so we can provide clear and appropriate direction on the management and protection of national forest roadless areas in Colorado."


What the decision does likely mean, though, is that environmental groups that have been working to improve Colorado's rule -- which has some exemptions for coal mining and logging beetle-killed trees -- may pull their support entirely now that it seems the stricter federal rule will hold.

And even if this really does wrap up legal challenges to the federal roadless rule, there's always a chance Congress will take the steam out of the whole thing, especially given how toxic the current political climate is for efforts to tighten environmental protections. Republicans in the U.S. House of Representatives are championing the Wilderness and Roadless Area Release Act, which "would open up 36 million acres of U.S. Forest Service 'Inventoried Roadless Areas' and nearly 7 million acres of Bureau of Land Management 'Wilderness Study Areas' to multiple uses, including new road construction and natural resource development," reports the Flathead Beacon.

But even if it passes the House, the bill's chances of making it anywhere in the Senate are slim to nil. Even Montana Senator Jon Tester -- a Democrat facing a brutal election season next fall in an already very conservative state that has lately been hijacked by Tea Party politics -- thinks it's a wretched idea. Again, from the Beacon:

...the bill is a “top-down approach that lets Washington politicians decide what they think is best for our public lands,” (Tester said), and “was written without any input from Montanans...We’re against this bill because it’s an irresponsible attack on Montana’s hunting and fishing traditions, it’s an attack on our multibillion-dollar outdoor jobs industry, and it’s an attack on the places where we find and hunt our biggest game." Both Tester’s office and (sportsmen's) groups cited the Forest Service’s road maintenance backlog of between $5 billion and $8 billion as evidence that new roads aren’t needed.

Sarah Gilman is associate editor of High Country News.

 

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