Ruling on management of roadless wilderness areas will cause more destructive forest fires
From The JURIST Legal News and Research Services, Dec 8, 2008 [here]
by Mike Dubrasich, Executive Director, Western Institute for Study of the Environment
With her most recent decision, Magistrate Laporte is playing a game of judicial chicken, perverting NEPA, and causing catastrophic harm to the environment.
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 enviromental 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. Addressing the issue of “cooperating agency status,” Judge 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.
In short, Judge Brimmer found that the USFS was more concerned about the political legacy of President Clinton than it was in complying with NEPA and the Wilderness Act.
Judge Brimmer set forth his conclusion 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 Roadless Rule. Magistrate Laporte has never reviewed the Roadless Rule Administrative Record because it was never before her. Her analysis was supposed to be limited to whether the State Petition procedure passed legal muster. While she may have had the authority to look at that issue, she surely never had the authority to evaluate the legality or enforceability of the Roadless Rule.
Despite Judge Brimmer’s findings set forth in a 102-page decision, Magistrate Laporte has concluded that she has the authority to again resurrect the illegal and defective Clinton-Dombeck Roadless Rule. While she has attempted to avoid a direct conflict with Judge Brimmer by claiming that her decision only applies to the States in Ninth Circuit Court of Appeals (California, Washington, Oregon, Montana, Idaho, Arizona, and Nevada), and New Mexico, the fact is that she has no authority to do what she has done. The Roadless Rule has been determined to be unlawful. Because it was designed as a nation-wide rule, if it is illegal in one state, it is illegal in all states. While Magistrate Judge Laporte obviously has a political and environmental axe to grind, she cannot use her office to do so. The Roadless Rule cannot be brought back to life by Frankenstein-esque manipulation of the rules of comity, or by ignoring the findings of the only judge in the United States who has actually looked at the tactics pulled by the USFS in their quest to find an environmental legacy for President Clinton.
Magistrate Laporte’s 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 square miles) have burned in wildfires. Laporte’s game of judicial chicken is thus trebly damaging, to the courts, to the law, and to the environment.”
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.
Author’s Note: Many thanks to Harriet M. Hageman of Hageman & Brighton, P.C., Cheyenne WY for her editing and revision of my first fumbling attempts.
Harriet has worked on many water and natural resource matters, including Nebraska v. Wyoming; the “roadless litigation”; challenges to the US Fish and Wildlife Service’s management and recovery of the Canadian gray wolf and other species; protection of private property from contaminated discharges; predator control; defense of Wyoming’s open range law; protection of grazing rights on BLM and private lands; and protection of water rights as a Wyoming attorney.
She is a member of the Board of Directors for the Wyoming Water Association, the Advisory Board of the Rocky Mountain Land Use Institute, and the Steering Committee for the Wyoming Business Alliance. She is also Contributing Counsel to Good Neighbor Law [here].
by Bert
Bert — that’s not what Judge Brimmer found. That argument was presented but it did not sway the judge who examined the entire Administrative Record.
Moreover, Magistrate Laporte did not consider the validity of the Roadless EIS at all.
“The rule allows for common sense exceptions to protect public health and safety (including fighting forest fires)”
That is a Big Freaking Lie. Since the Clinton-Dombeck Roadless Rule was put in place and has been the de facto law, we have entered the Era of Megafires. The largest fires in recorded history have burned in every Western state in the last 8 years. Vast tracts of heritage forests have been incinerated. Some of those fires have burned for miles and spread into towns and cities. Public health, public safety, and forests have gone up in smoke on an unimaginable scale.
So-called environmentalists who promote holocausts are really anti-environment, anti-forest, anti-everything.
Tell me Bert, what are the “exceptions.” Can you document them? Did they prevent the Biscuit Fire, B&B Fire, Warm Fire, Rodeo-Chedeski Fire, Hayman Fire, Yellow Pine Fires, Tripod Fire, etc etc etc?????
Did you read the above? Over 100,000 square miles have been incinerated since your vaunted Roadless Rule was proclaimed. That was the goal of “environmentalists” all along. Not protecting the environment but destroying it.
by YPmule
What has the roadless rule accomplished? (Besides creating illegal wilderness?)
Around here the so called “roadless” ares have had existing roads decommissioned or gated off, limiting access for harvesting of firewood, mushrooms, berries and hunting. Roadless areas do not bring in tourists, in fact our national forests are receiving LESS visitors. WFUs are planned for in roadless areas, resulting in loss of old growth forests resulting in severe stream and habitat degradation for endangered fish and wildlife. Designating an area “roadless” is a death sentence for any recreation or harvesting of raw materials - thus ensuring that jobs will be lost in our rural sectors. Letting roadless areas burn affects our water and air quality (and may also cause (gasp) global warming!)
by Sam Brownberg
why do you censor my comments? You shouldn’t duck the truth!
Well, Sam, I am not aware of ever receiving a comment from you. Every day W.I.S.E. gets hundreds of spam emails, which we delete without inspecting. Previous comments from you may have gotten trapped in there.
But since you ask, it’s my site, my name and the name of my organization is on it, and we pay for it.
The objective of W.I.S.E. (myself, the Board, our members) is to express ourselves and provide information we deem pertinent. It is not our objective to provide you or anyone else with a forum or soapbox.
If you want to post your comments and opinions on the Internet, you are welcome to fund and maintain your own site. We are all for freedom of expression. We don’t feel obligated to sponsor or provide it to you for free, though. You have never chipped in to W.I.S.E. Why should we carry you on our backs?
Quite the contrary.
The 2001 roadless rule came after years of deliberation including an unprecedented 1.6 million public comments — over 95% of which were in favor. The rule allows for common sense exceptions to protect public health and safety (including fighting forest fires) as well as access for recreation and to private property.