Magistrate Laporte Thumbs Nose at Judge Brimmer
Tuesday Magistrate Elizabeth Laporte of San Francisco reinstated Clinton’s Roadless Rule, again, in spite of US District Judge Clarence A. Brimmer’s issuance of a permanent national injunction against that Rule last August [here].
Magistrate Laporte decided that the Clinton Roadless Rule would stand in the Ninth District (and New Mexico), but not the Tenth District. In “the spirit of comity” Laporte decided Judge Brimmer’s national injunction was regional only, and her magistrateship would trump Judge Brimmer’s in California, Oregon, Washington, Arizona, Idaho, and Montana, and New Mexico, too, even though the latter is the Tenth District [see US District Court map here].
Some comity, eh? More like a game of chicken. Magistrate Laporte’s decision is [here]. Specifically, she
… set aside the State Petitions for Inventoried Roadless Area Management Rule (“State Petitions Rule”) (70 Fed. Reg. 25,654 (May 13, 2005), reinstated the Roadless Area Conservation Rule (“Roadless Rule”) (66 Fed. Reg. 3,244 (Jan. 12, 2001) and enjoined Defendants “from taking any further action contrary to the Roadless Rule without undertaking environmental analysis consistent with this opinion.”
In so many words, Magistrate Laporte enjoined the State Petitions procedure because implementation of that procedure was done without an Environmental Impact Statement as required under NEPA (the National Environmental Policy Act).
Now this is complicated, so I hope you follow it. Clinton’s Roadless Rule (locking up 58.5 million acres) was done as a last minute act just before Slick Willie departed the Oval Office. His Rule was jammed through by then USFS Chief Mike Dombeck without proper NEPA analysis. After Bush II took office, a number of states sued the USFS under NEPA. Wyoming’s petition was heard by Judge Brimmer. He ruled, in 2003, that Clinton’s Roadless Rule was arbitrary and capricious because it violated NEPA.
Get it? The original Rule violated NEPA. The USFS was in a quandary. What to do, what to do? They didn’t want to throw out Slick Willie’s and Dombeck’s junk Rule, but they were ordered to do so by the Tenth Circuit Court. Indeed, fourteen additional courts found the same flaws that Judge Brimmer did. So Bush II’s USFS Chief, Dale Bosworth, decided to let the individual state’s have some say so in whether they wanted all that acreage declared roadless or not.
That was not a completely braindead plan, because the courts had found that the states were cut out of Clinton-Dombeck’s rushed Rule. The remedy was to include the states in an improved EIS that would cover all the legal NEPA bases.
Some Governors, notably Oregon’s Ted Klutz, had a hissy fit. That’s not fair, screamed Ted, we don’t want any input. But that was just idiot theater. Other states (and Oregon) did in fact want some input, and the Tenth Circuit Court had ordered it, so the State Petitions for Inventoried Roadless Area Management Rule became the new procedure.
Almost. Immediately the Radical Left Litigation Movement sued. The Bush Administration can’t do that; they didn’t write an EIS!!!
A rational person should see how weak that argument is. The State Petition Procedure was implemented to correct and complete the original Roadless EIS, which was fatally flawed because the states’ input had been excluded.
However, Magistrate Laporte is not notably rational, and she bought the Radical Left Litigation Movement argument hook, line, and sinker. In 2006 she enjoined the State Petition Procedure and reinstated the defective and fatally flawed Clinton-Dombeck Roadless Rule.
Wyoming was not pleased. They brought the matter before Judge Brimmer again. And Judge Brimmer was not pleased, either. Last August he reinforced his original ruling in a decision laced with venom for poor, irrational Magistrate Laporte.
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.
But now (yesterday) Magistrate Laporte has thumbed her nose at the Tenth Circuit and reinstated the illegal and fatally flawed Clinton-Dombeck Roadless Rule in complete disregard of its failings under NEPA, because the new procedure to write a proper EIS did not have an EIS written before that procedure was implemented.
Fun and games with NEPA. You can’t do a NEPA process without doing a prior NEPA process to justify doing the actual NEPA process to correct a flawed NEPA process, according to the San Fran Magistrate.
I told you it was complicated.
Meanwhile, 58.5 million acres are burning up in megafires. Actually, since Slick Willy left office, 64,190,449 acres (100,000 square miles) have been incinerated in wildfires. The USFS has adopted a de facto Roadless Rule, torn up thousands of miles of roads, and instituted a Let It Burn program that has resulted in over $300 billion in resource damages.
But that’s what Radical Left Litigation Movement, idiot governors, and irrational San Fran magistrates want. Burn, Baby, Burn.
Incinerating forests is “environmentalism.” Laying waste to the landscape, leaving a moonscape of scorched earth behind for future generations, is the dream of every lunatic urban enviro-nut.
If it’s bad for America, the enviro’s and their lapdog magistrates are all for it. When heritage forests are destroyed, watersheds raped with holocaust, wildlife habitat fried, streams set aboil, the air fouled with gigatons of smoke, then the “environmentalists” hop up and down with glee.
Slick Willie wasn’t a pervert sell-out corrupt destructive holocauster lamebrain; he was “good for the planet,” just like that other San Fran irrational, Nancy Pelosi.
The fervent hope among the Radical Left Litigation Movement is that B. Obama will reinstate the Clinton-Dombeck Roadless Rule with no process at all, in utter defiance of the Federal Judiciary, because we elected a Dictator, not a President.
And so it goes. One can only hope that US citizenry wakes up some morning and decides that megafire holocaust is not that great of an idea, doesn’t really protect the environment but in fact destroys it utterly, and the clods who promulgate holocaust are summarily thrown out on their ears.
This is so tragic. The Clinton-Dombeck Roadless Rule condemned 58.5 million acres to holocaust. It was and is the single most destructive environment act in history.
Laporte reinstated something that had been permanently enjoined, twice, by a superior court. She said, in effect, that an EIS was needed to write an EIS, which is an endless loop. But that was not her most severe ignoramity.
You don’t save something by killing it. You don’t protect forests by burning them down. Old-growth is being killed by Let It Burn fires in “roadless” areas, which as Judge Brimmer pointed out are de facto wilderness areas, which are also being incinerated in catastrophic fires that kill all the trees, including the old-growth.
In her 2006 ruling Laporte stated, “Whatever protections of the involved environmental interests remain in the absence of the Roadless Rule, there can be no doubt that the 58.5 million acres subject to the Roadless Rule, if implemented, would have greater protection if the Roadless Rule stands.”
That is absolutely false. The 58.5 million acres has LESS protection under the Roadless Rule, of THAT there is no doubt. The Roadless Rule condemns those acres to holocaust. That is NOT “protection” by any definition.
She stated, “In Oregon, for example, the Mike’s Gulch salvage logging project, which was auctioned in June 2006 and is currently underway, represents a reasonable probability of harm (if not actual harm) to that State’s proprietary interests that would not have occurred under the Roadless Rule.”
Mike’s Gulch was salvage logged after the Biscuit Fire killed all the old-growth there. The Biscuit Fire was a Let It Burn fire in roadless and wilderness areas. The fire killed 600-year-old trees, the loggers didn’t. The loggers logged dead snags. The designation killed the trees. Roadless designation kills; it does not protect.
The Rattle Fire last summer killed old-growth trees in a designated wilderness. If that forest had not been so designated, the fire would have been contained and controlled before it killed the old-growth. In fact, the fire was contained at less than 1,000 acres but then the IMT was ordered off so that the entire 20,000 acre wilderness could be burned.
Laporte stated in 2006 that, “Plaintiffs have stated concrete proprietary interests in protecting natural resources and in specific lands whose resources would be affected by roadless policies, including … protecting [the] state’s water supply.” Hello!!! Incinerating watersheds does NOT protect water supplies.
The notion that 58.5 million acres are roadless is a crock, anyway. All of that land has roads and has had roads for thousands of years. It has all been occupied by human beings for millennia, and those residents traveled on roads. Denial of that fact is revisionist, a-historical, and racist. It is more than ignorant, it is racist to maintain that no human beings lived here before the white Europeans arrived.
It is maddening that a rogue magistrate has overstepped her authority and overruled a superior court with ridiculous ill-logic and an endless NEPA loop, for the purpose of environmental destruction on a mega-scale.
We don’t need that, we don’t want that, and we reject the stupid magistrate and her ignorant and racist meddling that will only further the destruction of America’s priceless, heritage forests and landscapes.
If Obama is, or was, a constitutional scholar and teacher of note at the U of Chicago, he will not tolerate, nor allow his Attorney General to tolerate and let stand judicial defiance and pissing matches in the courts. He will simply ask his AG to file in any appeal of the LaPorte decision an amicus brief, which would put the word out that his administration is not going to be rolled by rogue judges. And that would tell the environmental community, the USFS, and anyone else that NEPA has meaning and purpose. The insane proposition if NEPA was not followed, and no EIS was filed prior to implementation, and that under NEPA you can’t revisit the process and file a proper EIS, could do irreparable damage to meaningful attempts to protect the environment. I can imagine lawyers all over are looking at this ruling as an opportunity to circumvent or challenge any number of current environmental rulings or administrative decisions.
My father was a practicing lawyer, who appeared once before the Oregon Supreme court, and his claim to fame is that his case was lost when the Supremes threw out the existing case law that was the basis for Dad’s appeal. They just ruled that all the other judges who had ruled on the issue in the past were wrong, that the case law taught at UofO law school was wrong. That is where the rubber meets the road for a lawyer. You do all the right things, and get blindsided by a 180 degree turn imposed by a sitting court. So this is essentially what has happened in the LaPorte magistrate court decision. Allowed to stand without challenge, the whole of environmental law could be open to challenge, or, if the decision is felt to be a train wreck for good governance, the Congress will revisit and change the existing law which can end up being a real rodeo. Sometimes victories in battle lose the strategic war. This could be that battle. It will all hinge on whether the Obama “change” administration is based on his legal knowledge and experience or kow-tows to the environmental money that paid for part of his successful campaign. This will be fun to watch to see how it all goes down over time. Especially in the reconstructed Clinton cabinet now serving President elect Obama. Especially with the new AG being the Janet Reno triggerman at Waco. Evidently change comes in baggage with baggage. Interesting times ahead. And it all has to happen without real money, but with real debt, real drops in tax income.
Let me try to explain this again.
With her (most recent) petulant decision, Magistrate Laporte is playing a game of judicial chicken, perverting NEPA, and causing catastrophic harm to the environment. Background: the Clinton (Dombeck) Roadless Plan was rushed through (by proclamation) in the waning days of that administration. It was immediately litigated in more than a dozen courts. In 2003 the Tenth District (Judge Brimmer) found, in a complaint brought by Wyoming, that NEPA had been violated because EIS input from the states had been excluded. The Roadless Plan was temporarily enjoined. As a remedy, the USFS developed a plan to include state concerns (as well as tribal, local government, and public concerns) called the ‘State Petitions’ procedure.
The usual enviro groups sued in the Ninth District and in 2006 Laporte held that the State Petitions procedure violated NEPA because it was not accompanied by an EIS. She reinstated the Roadless Plan. This was odd because the State Petitions procedure was not an environmental action per se but a remedy to fix the original (defective) Roadless EIS. Requiring an EIS to fix an EIS sets up an infinite loop of EIS’s. Wyoming complained and last Aug the Tenth Circuit issued a permanent national injunction against the Roadless Plan. Brimmer wrote, “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. …”
Brimmer also wrote, “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.”
Despite this strong language and permanent national injunction by a higher court, Magistrate Laporte has again re-instituted the defective Clinton-Dombeck Roadless Plan, in the Ninth District and New Mexico. Her aggressive, in-your-face action is the opposite of comity. It also undermines the spirit of NEPA (public involvement in scientific analysis of potential impacts), making that law little but a partisan political weapon. Worst, it again condemns 58.5 million acres to catastrophic incineration. The USFS has instigated a Let It Burn policy in Roadless and Wilderness Areas. Since Clinton left office, 64.2 million acres (over 100,000 sq. mi.) have burned in wildfires. Laporte’s game of judicial chicken is thus trebly damaging, to the courts, to the law, and to the environment.
Methinks a slow boat to the Land of Melamine and Hooey by virtually all the virulent and vapid denizens of a certain non-state, would be a fine idea! Such an exodus would open up some great business for those businesses that deal in varmint riddance, particularly in the very places where the original separation of powers was hammered out and instituted. What a sound investment in the future of a once-great country: To give her back her dignity and honesty, sans any “bailout,” unless it be that leaky boat somewhere in the wide Atlantic, would be a patriotic coup!