16 Aug 2009, 10:00pm
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Ninth Circuit ruling to reinstate Roadless Rule leaves wilderness areas vulnerable to fire

The JURIST, August 16, 2009 [here]

by Mike Dubrasich [Executive Director, Western Institute for Study of the Environment]

On August 5th the San Francisco based Ninth 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 Ninth Circuit Court, the most overturned court in the United States, has once again overstepped its authority, written law from the bench, and engendered massive environmental destruction across nearly 60 million acres of federal land in the West.

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 [PDF file] 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 Clinton/Dombeck Roadless Rule. The USFS developed an alternative plan, called the State Petitions procedure, ensuring that not only would state concerns be addressed, but that tribes, local governments, and the general public would be able to participate in the NEPA process.

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 enjoined Clinton/Dombeck Roadless Rule, and ordered that the USFS comply with its terms.

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 Clinton/Dombeck Roadless Rule. Then (judicial ping pong) on Aug 5, 2009, the Ninth Circuit Court affirmed Laporte’s ruling and reinstated the defective and repeatedly enjoined Clinton/Dombeck Roadless Rule.

That is an abuse of discretion, despite the Ninth Circuit Court’s claim to the contrary. It may be within the power of the Ninth 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 Ninth Circuit Court did not consider the merits (or demerits) of the Clinton/Dombeck Roadless Rule. The Ninth Court, like Magistrate Laporte, blamed the USFS for setting aside the Clinton/Dombeck Roadless Rule, when in fact the Tenth District Court had enjoined it. 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’s administrative record because it was never before her. Neither has the Ninth Circuit Court.

The effect of the Ninth 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, 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 nought.

The various plaintiffs are now asking the Obama Administration to reinstate the Clinton/Dombeck Roadless Rule. If, however, the Obama Administration replicates the illegitimate actions of the Clinton Administration, those actions will also be illegitimate.

Equally disturbing is the insistence by the Ninth Circuit Court and the plaintiffs that roadless designation somehow “protects” resources and the environment when the evidence is overwhelming that it does not. Roadless designation, like wilderness designation is a defacto order tp “let it burn.” Without a road network, fire suppression is complicated and compromised. Roadless designation not only leads to megafires, the lack of access precludes stewardship actions that could prevent or mitigate insect infestations. 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.

Opinions expressed in JURIST’s Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST’s editors, staff, or the University of Pittsburgh.



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