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Judge declares "roadless rule" illegal

F. F.

RELAX, this is the WEB
Location
Here
Link to article:
http://www.casperstartribune.net/ar.../wyoming/8eae0898c8b88a7868121d4ce9dd3a9b.txt

Judge declares "roadless rule" illegal

By JOAN BARRON Star-Tribune staff writer
CHEYENNE -- Federal Judge Clarence Brimmer ordered Monday that the "roadless rule" the U.S. Forest Service adopted at the end of the Clinton administration be set aside.

Brimmer found that the rule was adopted in violation of the National Environmental Policy Act (NEPA) and the Wilderness Act, and must be permanently enjoined from going into effect.

The judge said the Forest Service's "mad dash" to get a roadless rule adopted in December 2000 before President Bill Clinton left office "turned the NEPA process on its head."

The Clinton-era rule proposal would have virtually banned road building or other development in roadless parcels of 5,000 acres or more, some 2 percent of the nation's land mass.

The state of Wyoming filed a complaint for a declaratory judgment and injunctive relief in U.S. District Court in May 2001.

The U.S. Department of Agriculture, which oversees the Forest Service, was the defendant. The Wyoming Outdoor Council and other conservation groups intervened in the case.

The lawsuit asked the court to stop the implementation of the Roadless Area Conservation Final Rule, revisions to the National Forest Management Act Planning Regulations, the Forest Transportation System Final Administrative Policy and the National Forest System Road Management Rule.

The Forest Service's roadless initiative's proposed action and preferred alternative would prohibit road construction and reconstruction in portions of inventoried roadless areas.

Wyoming claimed that the administration's actions had the effect of creating de facto wilderness areas, which is a responsibility reserved for Congress.

"Today," Brimmer wrote at the beginning of the 100-page ruling, "the court considers the legality of the 58.5 million acres of roadless area that the United States Forest Service drove through the administrative process in a vehicle smelling of political prestidigitation."

Of the total, 9.2 million acres are in Wyoming.

Appeal planned

"We will appeal immediately," said Jeff Kessler of Biodiversity Conservation Alliance. "We believe that this NEPA process was unprecedented in scope and participation."

Kessler said the roadless proposal attracted more than a million comments from the public. He said the new ruling conflicts directly with the 9th Circuit Court decision that reinstated the roadless rule.

Represented by Jim Angell of the EarthJustice law firm in Denver, Biodiversity Conservation Alliance will appeal to the Tenth Circuit Court where Kessler predicted the roadless rule would be ultimately upheld.

Angell echoed those sentiments.

"Judge Brimmer seemed to think there was insufficient public participation," Angell said, "yet the record shows it had the biggest and most encompassing public participation yet seen in the nation, with the vast majority of people in favor of the roadless rule. We will appeal immediately and I'm sure we'll prevail."

Gas potential

Dru Brower, vice president of the Petroleum Association of Wyoming, said Brimmer's ruling will allow the industry to access areas with high natural-gas potential that would have been put off limits.

The roadless rule would have prevented exploration and development of 11.3 billion cubic feet of economically recoverable natural gas.

Brower said a Department of Energy report issued in November 2000 said 83 percent of the natural-gas resources found in the Rocky Mountain region is located in slightly less than 5 percent of the total proposed inventories roadless area nationwide. Bruce Hinchey, president of the Petroleum Association of Wyoming, said he'd wait and see how the issue goes through future court proceedings. "It isn't over until it is over," Hinchey said. He noted that may take quite awhile.

A delighted Bill Dart, public lands director for the Blue Ribbon Coalition of motorized recreationists, said the new ruling "validates our concerns."

The Bush administration is talking about tweaking the roadless rule anyway, said Dart, so there were a lot of people who knew there were problems with the rule. "Now our concerns are being validated by the court system," Dart said.

Last year, in a 2-1 decision, a 9th U.S. Circuit Court of Appeals panel ordered a federal judge in Idaho to lift his injunction blocking the so-called "Roadless Rule," which was supposed to take effect in May 2001.

Road to the rule

Brimmer's order noted that the Forest Service on Oct. 19, 1999 issued a Notice of Intent to prepare a draft environmental-impact statement and start rulemaking on the roadless areas.

President Clinton directed the Forest Service to issue the final roadless rule by the fall of 2000. Clinton's second term in office ended in January 2001.

Because of the deadline the Forest Service provided for a short 60-day comment period, which expired on Dec. 20, 1999, the order said. The Forest Service held 187 public meetings nationwide concerning the roadless rule.

On Dec. 3, 1999, the Forest Service published notice of the local scoping meetings to be held in Wyoming. These meetings overlapped and were held on the last 13 days of the 60-day scoping period.

On Dec. 14, 1999, Wyoming submitted comments prepared by former Gov. Jim Geringer who criticized the "extraordinarily short " time for the public to consider the proposed rule.

The Forest Service refused to extend the comment period even though it had no maps of the inventoried roadless areas, Brimmer's opinion notes.

The maps the Forest Service provided later lacked sufficient details because they were large scale.

The secretary of Agriculture signed off on the rule, which was published in the Federal Register on Jan. 12, 2001.

Wyoming claimed in its lawsuit that the Forest Service's process in adopting the rule was fundamentally flawed because of its "mad dash to complete the Roadless Initiative before President Clinton left office."

Brimmer agreed with that description. The Forest Service, among other things, refused to allow any of the affected states, including Wyoming, cooperating-agency status because it would have slowed its' "mad dash" to a walk, the judge wrote.

The judge agreed that Wyoming and the other states could not meaningfully participate in the scoping process without knowing what roadless areas the rule covered.

"The administrative record is replete with the Forest Service's own admissions that its data was incomplete, outdated, and simply inaccurate," the judge wrote.

He also found arbitrary and capricious the Forest Service's refusal to extend the comment period in the face of protests from nearly all the affected states.

The Forest Service denied Wyoming's request for cooperating-agency status without explanation. But the director of the roadless project said cooperating-agency status was denied because the states would want to work at too great a "level of detail," the opinion said.

That statement shows the Forest Service did not have all the relevant information on environmental consequences of its action and was omitting valuable information "for the sole reason of administrative simplicity," the judge said.

"In sum, there is no gainsaying the fact that the Roadless Rule was driven through the administrative process and adopted by the Forest Service for the political capital of the Clinton administration without taking the 'hard look' that NEPA required," Brimmer wrote.

The judge also ruled that Wyoming's challenges to the 2000 planning regulations, the road management rule, and the transportation policy are not ripe for judicial review.

Reporter Brodie Farquhar contributed to this report.
 
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