SOS Forests

9th Court Decision on Roadless Rule Is Illegitimate and Destructive

by Mike Dubrasich

On Aug 5th the San Francisco based 9th Circuit Court of Appeals set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the “Clinton/Dombeck Roadless Rule”.

The 9th Circuit Court, the most overturned court in the U.S., has once again overstepped its authority, written law from the bench, and worst of all, engendered massive environmental destruction across nearly 60 million acres of federal land in the West.

We have discussed this issue before, most recently [here].

Background: the Clinton (Dombeck) Roadless Rule was rushed through (by proclamation) in the waning days of that administration. It was immediately litigated in more than a dozen courts. In 2003, Judge Brimmer, a United States District Court Judge for the District of Wyoming, found, in response to the Complaint filed by the State of Wyoming, that NEPA had been violated on several different levels, including the fact that Environmental Impact Statement (EIS) input from the states had been excluded, the process had been rushed, the United States Forest Service (USFS) had failed to take the requisite “hard look” at the proposed rule, and that the NEPA process was a sham in order to adopt a political rule. Judge Brimmer also found that the Roadless Rule violated the Wilderness Act in that it designated 58.5 million acres as defacto wilderness despite the fact that only Congress has the authority to do so. Judge Brimmer enjoined the Roadless Rule. The USFS developed an alternative plan to ensure that states would be part of the process. This plan, called the State Petitions procedure, ensured that not only state concerns would be addressed, but that tribes, local governments, and the general public would be able to express their concerns in order to develop site-specific rules for each National Forest.

The usual environmental groups sued in the Ninth District Court and, in 2006, Magistrate Laporte concluded that the State Petitions procedure violated NEPA because it was not accompanied by an EIS. In the strangest twist of legal logic, she then reinstated the illegal Roadless Rule, and ordered that the USFS comply with its terms. She made that ruling despite Judge Brimmer’s earlier decision, despite the fact that Judge Brimmer reached his conclusions after a comprehensive review of the Administrative Record, and despite the fact that she had no idea as to whether the Roadless Rule complied with NEPA or not. Her decision was odd to say the least, which is confirmed by the fact that the State Petitions procedure was not an environmental action per se but a remedy to fix the original defective and illegal Roadless Rule EIS. Requiring an EIS to fix an EIS sets up an infinite loop of EIS’s.

Wyoming again filed suit in an attempt to fix the mess created by Magistrate Laporte’s decision. In August 2008, Judge Brimmer issued yet another permanent national injunction against the Roadless Rule.

Magistrate Laporte played a game of judicial chicken, perverting NEPA, and causing catastrophic harm to the environment. The 9th Circuit Court has now affirmed Laporte’s ruling and reinstated the defective and repeatedly enjoined Clinton/Dombeck Roadless Rule.

In legal terminology, that is abuse of discretion. It is certainly within the power of the 9th Circuit Court to throw out the the State Petitions Rule for violating NEPA. But it is not within their power to reinstate the Clinton/Dombeck Roadless Rule, which has itself been found to violate NEPA.

The remedy to the defective State Petitions Rule cannot be another defective rule found to be illegal by another court. The 9th Circuit Court did not consider the merits (and demerits) of the Clinton/Dombeck Roadless Rule.

They did acknowledge that the Clinton/Dombeck Roadless Rule has been enjoined. From the Aug. 5, 2009 decision [here]:

The court’s mandate issued in April 2003, and the Roadless Rule went into effect nationwide. Within months, another court enjoined the Roadless Rule. Wyoming v. USDA, 277 F. Supp. 2d 1197 (D. Wyo. 2003). On July 14, 2003, the United States District Court for the District of Wyoming held that the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act and ordered that it “be permanently enjoined.” Id. at 1239.

But the 9th Court used Magistrate Laporte’s reasoning to reinstate it:

Under the court’s analysis, the State Petitions Rule triggered the National Environmental Policy Act’s environmental analysis requirement because the rule permanently removed the Roadless Rule’s substantive protections. Id. at 895-97 The court reasoned that the elimination of a major nationwide land management program would be sufficient to trigger environmental analysis; here, the Forest Service eliminated such a program and replaced it with a far more varied and potentially less protective land management regime. Id. at 898-901.

The 9th Court, like Magistrate Laporte, blamed the USFS for setting aside the Clinton/Dombeck Roadless Rule, when in fact the 10th District Court had thrown it out. It wasn’t up the the USFS. A federal court had enjoined it, finding that the Clinton/Dombeck Roadless Rule violated NEPA.

A year ago Judge Brimmer of the 10th District Court of Wyoming issued yet another permanent national injunction against the Clinton/Dombeck Roadless Rule. Judge Brimmer set forth his conclusions as follows:

The Court, as it did in Roadless I, finds that: (1) the Forest Service’s decision not to extend the scoping comment period was arbitrary and capricious; (2) the Forest Service’s denial of cooperating agency status without explanation was arbitrary and capricious; (3) the Forest Service’s failure to rigorously explore and objectively evaluate all reasonable alternatives was contrary to law; (4) the Forest Service’s conclusion that its cumulative impacts analysis in the Roadless Rule Final EIS satisfied its NEPA duties was a clear error in judgment; and (5) the Forest Service’s decision not to issue a supplemental EIS was arbitrary, capricious, and contrary to law.

Judge Brimmer is the only federal judge that has reviewed the Administrative Record related to the Clinton/Dombeck Roadless Rule. Magistrate Laporte has never reviewed the Roadless Rule Administrative Record because it was never before her. Neither has the 9th Circuit Court. While they may have had the authority to look at that issue, they did not, and they surely never had the authority to evaluate the legality or enforceability of the Clinton/Dombeck Roadless Rule without expressly addressing it.

The effect of the 9th Circuit Court decision is to disable the efforts of states to participate in the roadless area process. That was a key failing of the Clinton/Dombeck Roadless Rule. Dombeck pushed through the last-second Roadless Rule without consulting the states. The State Petitions Rule was an effort to involve the states. Since establishment of the State Petitions Rule, many states have spent much time and money developing roadless recommendations.

Not Oregon, however. Our Goober, Teddy the Torch, did not want Oregonians to have any input into the roadless area designation process. He perfunctorily rejected public involvement, maintaining that Oregonians should be throttled and silenced regarding the management of federal lands in Oregon. Democracy and a public voice in decisions that affect landscapes, livelihoods, and lives are profoundly feared and despised by Teddy the Torch and the various so-called “environmental” groups that sued to kill the State Petitions Rule. (The Plaintiffs are listed in the decision [here]).

Other states, such as Idaho and Wyoming, did invite public participation and developed (or are developing) their own roadless area plans in cooperation with the USFS. Those plans are now condemned to legal Limbo, and the public involvement was for naught.

The various Plaintiffs are now asking the Obama Administration to reinstate the Clinton/Dombeck Roadless Rule, just in case the 9th Circuit Court decision is rendered invalid by the 10th District Court decisions. However, as should be clear to every American with a 5th grade education or better, the President does not make law any more than the courts do. Under the U.S. Constitution, it is the Congress that makes laws in this country. Congress has not addressed the roadless issue to date. Of course, as is clear to every American with a 5th grade education or better, the so-called “environmental” groups, numerous goobers, the 9th Circuit Court, and the Obama Administration profoundly fear and despise the U.S. Constitution.

If the Obama Administration replicates the illegal actions of the Clinton Administration, those actions will still be illegal. Just because we elected a petty tyrant who violates the laws of the land with impunity, it does not erase those laws (though it might temporarily abrogate them in an unconstitutional fashion).

Equally disturbing (to me at any rate) is the insistence by the 9th Circuit Court and the Plaintiffs that roadless designation somehow “protects” resources and the environment when the evidence is overwhelming that it does not. In fact, the opposite is true: roadless designation devastates the environment. Some quotes from the the Aug. 5, 2009 decision:

We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation’s roadless areas than those the individual forest plans provide. …

Under the court’s analysis, the State Petitions Rule triggered the National Environmental Policy Act’s environmental analysis requirement because the rule permanently removed the Roadless Rule’s substantive protections. …

The court explained that “it would strain credulity to hold that the repeal of the [Roadless Rule] protections in [inventoried roadless areas] would not have any effect, as that term is interpreted for purposes of [the Endangered Species Act], on the numerous species that make their homes in [inventoried roadless areas].” …

There can be no serious argument that restrictions on human intervention in these wilderness areas will not result in immeasurable benefits from a conservationist standpoint. …

[T]he district court reasoned that it was necessary to reinstate the protections of the Roadless Rule in order to avoid further degradation of the nation’s inventoried roadless areas.

Despite the galloping ignorance (and hypocrisy) of the 9th Circuit Court, there are many serious arguments that roadless designation does NOT result in “immeasurable benefits.” Instead it results in catastrophic devastation of environmental resources and values.

And that devastation IS quantifiable, measurable, can be appraised, and is actionable, as has been established by legal precedents set by the 9th District Court itself [here, here]!

Roadless designation, like wilderness designation, is a defacto order for Let It Burn. Without a road network, fire suppression is complicated and compromised. The USFS knows this, and has adopted Let it Burn (under various bureaucratic disguises) for roadless areas.

The catastrophic fires that result often go mega — they grow to 100,000 acres or more and devastate resources (as was argued and agreed to by the Court in the 9th District cases cited [here]).

The court is not the only governmental body to come to that conclusion. From the GAO Report to the Subcommittee on Forests and Forest Health, Committee on Resources, House of Representatives: Western National Forests, A Cohesive Strategy is Needed to Address Catastrophic Wildfire Threats (April 1999):

The most extensive and serious problem related to the health of national forests in the interior West is the overaccumulation of vegetation, which has caused an increasing number of large, intensive, uncontrollable, and catastrophically destructive wildfires. According to the Forest Servicer, 39 million acres on national forests in the interior West are at high risk of catastrophic wildfire. … The number of large wildfires, and of acres burned by them, has increased over the last decade, as have the costs of attempting to put them out. These fires not only compromise the forests’ ability to provide timber, outdoor recreation, clean water, and other resources but they also pose increasingly grave risks to human health, safety, property, and infrastructure, especially along the boundaries of forests where population has grown significantly, in recent years.” (Page 3)

Tree stands on national forests of the interior West have grown denser in recent decades, have undergone shifts in species composition, and have experienced increases in some insect and disease infestations. These conditions, often considered indicators of poor forest health, jeopardize the ability of these forests to sustain wildlife habitat as well as timber production. In addition, they pose an immediate problem — the threat of catastrophic wildfires. After declining fairly steadily for 75 years, the average number of acres burned by wildfires annually on national forests began to rise over the last decade, nearly quadrupling to about three-quarters of a million acres per year. Virtually all of this rise is attributable to the increasing number of very large fires. (Page 4-5).

Roadless designation not only leads to megafires, the lack of access precludes stewardship actions that could prevent or mitigate fuel build-ups and insect infestations. From the GAO report, Forest Service Roadless Areas, Potential Impact of Proposed Regulations on Ecological Sustainability (November, 2000):

The proposed roadless rule takes an approach to decision-making on road construction in roadless areas that is different from the approaches of other recent Forest Service proposed rules, strategies and plans. The proposed rule… would apply a national prohibition on road construction in roadless areas even if local conditions suggest that a road would help the agency to restore and maintain desired ecological conditions. … [T]he exceptions [to the roadless rule] would not authorize road construction or reconstruction in inventoried roadless areas to restore and maintain ecological sustainability. Therefore, national forests could generally not construct a road to thin trees and mechanically remove underbrush and dead vegetation to reduce the risk of uncontrollable and potentially catastrophic fire to improve the forests’ resistance to insects and diseases that otherwise could kill trees and add to fuel loads. (Page 15)

Officials on several national forests included in our review voiced concerns about the long-term impacts of the roadless rule. … Officials on the Routt National Forest anticipate an outbreak of spruce beetles resulting from a catastrophic windstorm in 1997 that felled 13,000 acres of mostly spruce and fir trees in or adjacent to roadless areas on the forest. … They believe that the preferred alternative would not allow them to construct the roads necessary to remove the trees in roadless areas that in the future may become infected by beetles currently living within this deadfall. Therefore, they would be unable to protect highly valued resources, such as scenic areas and adjacent campgrounds and ski slopes. (Page 26)

The USFS never removed the trees in the blowdown area, the beetle infestation exploded, and vast forested tracts of National Forests in Colorado, Wyoming, and other Western states have been decimated [here, here, here].

Again from the GAO report, Forest Service Roadless Areas, Potential Impact of Proposed Regulations on Ecological Sustainability (November, 2000):

Officials on all 10 forests included in our review expressed concern that one of the alternatives in the proposed roadless rule would have a far greater impact on their ability to manage their lands and resources for ecological sustainability. This alternative would prohibit not only road construction and reconstruction but also all timber harvesting in roadless areas. This alternative could place not only ecosystesm, watersheds, and species at risk but also human property and safety. The officials viewed this alternative as inconsistent with both the Forest Service’s stated priority of restoring and maintaining ecological sustainability and its goal of protecting roadless characteristics. (Page 28)

Unfortunately, that alternative is exactly the one (illegally) imposed by Clinton/Dombeck and the 9th Circuit Court. From one astute observer:

I personally believe that the theory of “global warming” was created in part for the purpose of covering up the long-term destruction caused by the environmentalists’ concerted efforts to prohibit all forest management, timber production, etc. “Global warming” has become a convenient scapegoat for the current situation, despite the fact that the beetle outbreak was predicted over a decade ago. The GAO also predicted the real on-the-ground effect of the roadless rule. Those predictions have come true.

Environmental devastation by insects and fire is not conservation. Roadless designation is not environmentally protective and does not maintain ecosystems and endangered species. In fact, just the opposite — roadless designation leads to huge environmental disasters.

The 9th Circuit Court has endangered our forests, our environment, and our communities and economy with their misguided and illegitimate decision.