Permanent Injunction Against Clinton’s Roadless Plan Issued, Again
Clinton’s Roadless Plan is killed, again. On Tuesday US District Court Judge Clarence A. Brimmer issued a permanent injunction against Bill Clinton’s 58.5 million acre Roadless Rule, for the second time. Reiterating his July, 2003 injunction, Judge Brimmer ordered the set aside of the Plan upon the motion of the State of Wyoming, strongly rejecting the 2006 reinstatement by Magistrate Judge Elizabeth D. LaPorte of San Francisco.
Judge Brimmer again took to task Clinton Administration USFS Chief Mike Dombeck for repeated violations of various federal statutes including the NEPA, NFMA, the Wilderness Act, MUSYA, and APA. He also noted that his 2003 injunction had been appealed and the appeal declared moot because the post-Dombeck USFS adopted the State Petitions Rule which superseded the 2001 Roadless Rule.
The State Petitions Rule was held in 2006 to be promulgated in violation of NEPA and the ESA by Magistrate LaPorte, whose remedy was reinstating the 2001 Roadless Rule. Nope, said Judge Brimmer, that’s not going to happen.
Judge Brimmer’s entire decision is [here]. Some excerpts from his exceedingly well-written opinion:
There is not one good reason in the administrative record before the Court explaining why cooperating agency status was denied to the ten most affected states, including Wyoming, especially in light of the CEQ’s [Council on Environmental Quality] direction that federal agencies should actively seek participation of the states in order to comply with NEPA’s statutory mandate. Absent any such explanation, the Court must again conclude that Wyoming was right in characterizing the Forest Service’s process as a “mad dash to complete the Roadless Initiative before President Clinton left office.” The Forest Service dared not let any of the ten most affected states have cooperating agency status lest its “mad dash” would be slowed to a walk. …
[T]he Forest Service eliminated from consideration exceptions to permit road construction activities for “hazardous fuel reduction treatments, insect and disease treatments, and forest health management”… The Forest Service’s cavalier dismissal of such forest management activities, which have been the environmental status quo for decades, compels the Court to find that the Forest Service did not give each reasonable alternative substantial treatment in the EIS or take a hard look at the environmental consequences of its actions.
The Forest Service’s inadequate alternative analysis was the result of the agency narrowly defining the scope of its project to satisfy a predetermined directive by Chief Dombeck, which eliminated competing alternatives out of consideration and existence. …
It was irrational for the Forest Service to develop a comprehensive strategy for implementing interrelated rules and policies, carry out that strategy, and never consider the cumulative effects of its actions or explain them to the public. …
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.
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 has done lasting damage to our very laws designed to protect the environment. …
The Forest Service, through the promulgation of the Roadless Rule, designated 58.5 million acres of national Forest land as a de facto wilderness area in violation of the Wilderness Act. …
One of the stated purposes of the Wilderness Act was to assure that no future administrator could make wholesale designations of additional wilderness areas in which use could be limited. Chief Dombeck, acting at the behest of President Clinton, acted directly contrary to this fundamental purpose of the Wilderness Act. …
This Court believes that the the California court’s Magistrate Judge was remiss in concluding that it could not “give legal consequences” to this Court’s findings in Roadless I. The Court is disturbed, and frankly shocked at the fact that a Magistrate Judge essentially re-instituted a policy that was not properly before that Court, and especially in light of the fact that an Article III judge had already ruled that the re-instituted policy was promulgated in violation of the law. …
While the Court carefully and diligently examined the proper course for tailoring an adequate and fair remedy in the present case, it cannot rightfully remand the case to the Forest Service without causing violence to the undersigned’s conscience. The Forest Service, in an attempt to bolster an outgoing President’s environmental legacy, rammed through an environmental agenda that itself violated this country’s well-established environmental laws.
While this Court realizes that a permanent injunction is an extraordinary remedy, it believes that a permanent injunction is the proper remedy in this case. …
As previously stated, the Roadless Rule as it stands today creates a grave risk of harm for our nation’s forests. As the proper agencies are without the ability to properly fight beetle infestations and wildfire outbreaks, our forests are at risk of being severely devastated. …
This Court is of the opinion that the Forest Service violated the public interest when it flagrantly and cavalierly railroaded this country’s present environmental laws in an attempt to build an outgoing President’s enduring fame. …
The potential exists for the Forest Service to shun this Court’s authority under the guise of complicity with the decision of the California court. This Court will not provide the Forest Service with such an opportunity, in light of its previous disregard for the law. For these reasons the Forest Service must start again from square one. …
For all the aforementioned reasons, the Court FINDS that: (1) Wyoming has standing to challenge the Roadless Rule; and (2) the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act. As a result, the Roadless Rule must be set aside.
Therefore the Court ORDERS that the Roadless Rule, 36 C.F.R Secs. 294.10 to 294.14, be permanently enjoined, for the second time. All other outstanding motions are denied as moot.
Dated this 12th day of August, 2008.
Clarence A. Brimmer
United States District Judge
by bear bait
A great deal of credit for this ruling should go to Harriet Hageman and Kara Brighton, of Hageman and Brighton, P.C., a water and natural resources law firm in Cheyenne, WY, who did much of the attorney work for the State of Wyoming’s 2001 lawsuit that led to both the 2003 and 2008 Brimmer decisions.
Harriet and Kara are the Executive Directors of the Wyoming Conservation Alliance, which assists businesses, ranchers, industry groups, sportsmen groups, and local governmental entities in the federal regulatory process, and are Contributing Counsel to Good Neighbor Law [here]. Harriet wrote an excellent essay about Clinton’s Roadless Rule that we posted last March [here].
She said then, and it unfortunately is still true, that:
Despite Judge Brimmer’s injunction, and because of the numerous lawsuits that have been filed challenging any sort of active and effective forest management, many National Forest Managers have continued to adhere to the mandates of the Roadless Rule, thereby implementing an illegal, politically-driven, and ecologically-devastating policy.
Many megafires, such as the Biscuit Fire (2002) and the Basin/Indians Fire (2008) grew to be monster fires in part because of Slick Willlie Clinton’s illegal mandate of “roadlessness.” By any measure, 58.5 million acres (91,400 square miles) is a lot of land to dedicate to catastrophic wildfire. It was and is the single largest and most environmentally destructive action in U.S. history.
Yahoooooo!! So the posturing Presidential legacy, his making amends for his poor judgement with intern’s with thongs, is found out. At last!!!
When you politicize the USFS, to the point where leadership is looked upon as political whores for whatever administration holds the office, continuity of management never takes place. Stop gap, 4 year programs become long term management, and those can be turned 180 degrees on their heel, to be something alien to any forest manager, by political whim. Thank you Judge Brimmer, for making it official that the emperor had no clothes. Some more of the Clinton lie comes forward.
Now if we can reclaim the half of Utah Clinton shut down to appease his Indonesian bankers, some sanity can be restored on the public domain.