Appellate judges reinstate roadless rule, remand case to district court

December 12, 2002

By Brian Stempeck, Greenwire staff writer

The U.S. 9th Circuit Court of Appeals overturned one aspect of the Idaho
District Court's decision on the roadless area conservation rule Thursday,
lifting a preliminary injunction and putting the rule -- which prohibits
roadbuilding, logging and mining on 58.5 million acres of national forest
lands -- back in place.

In their decision, the appellate court judges rejected the logic used by
U.S.
District Judge Edward Lodge when he suspended the rule on May 10, 2001.
Groups including the Kootenai Tribe of Idaho, Boise County, the BlueRibbon
Coalition and others filed a lawsuit against the administration in January
2001, alleging procedural violations of the National Environmental Policy
Act
and other laws. Although the Bush administration did not defend the roadless
rule at the appellate court level, environmental groups acted as intervenors
in the case.

"Because of its incorrect legal conclusion on prospects of success, the
district court proceeded on an incorrect legal premise, applied the wrong
standard for injunction, and abused its discretion in issuing a preliminary
injunction," the three-judge panel said.

Although the 9th circuit judges remanded the case back to Lodge to continue
with his ruling on the broader case, their decision to overturn the
injunction is a "mini version" of the larger case, said Doug Heiken, western
Oregon field representative for the Oregon Natural Resources Council, one of
the defendant-intervenors. One of the key criteria for determining whether
to
award a preliminary injunction is the plaintiffs' likelihood of success, he
said. "The merits did not look good."

One of the plaintiffs' key arguments was that the Clinton administration
didn't use an adequate public comment process, for example. But the judges
wrote: "Upon our review of the record, we are persuaded that the Forest
Service did provide the public with extensive, relevant information on the
Roadless Rule. We also conclude that the Forest Service allowed adequate
time
for meaningful public debate and comment."

"The district court's suggestion that the public was precluded of 'any
meaningful dialogue or input into the process' is contradicted by the record
which shows that the Forest Service held over 400 public meetings about the
Roadless Rule and that it received over 1,150,000 written comments," they
continued.

Lodge could buck the appellate judges' opinions on the plaintiffs' merits,
but that's somewhat unlikely, said Heiken.

"This is a vindication of years of hard work put in by millions of Americans
who submitted comments on the roadless rule in support of protecting these
last wild places," he added. "I think that this ruling should be a wake-up
call to the Bush administration that their efforts to undo forest protection
in Oregon and around the county are going to be held accountable in the
courts."

Lawyers involved in the case are still trying to determine when exactly the
roadless rule has to go back in place. It's unclear whether Lodge himself
has
to give the order, or whether the appellate court's decision alone is enough
to revive the rule, said Patrick Parenteau, who represented Forest Service
Employees for Environmental Ethics, another defendant-intervenor, and is a
professor at the Vermont Law School. "The lawyers are actually a little bit
stumped," he said. But, Parenteau said, "we're taking the position that the
Bush administration should issue orders to the field right now that any
action underway [in roadless areas] should cease. In short, the Clinton rule
is the law of the land." If the Justice Department and Forest Service
disagree with that logic, they'll soon be facing litigation, he said.

"We're disappointed," said Clark Collins, executive director of plaintiff
BlueRibbon Coalition. But Collins still held out hope that Lodge will still
oppose the rule when the case is remanded. "I would think that Judge Lodge
would likely still be able to come up with some substantive criticism for
what was done in the original rule," said Collins. Plus, "I don't think that
the Bush administration is going to go out of their way to implement the
roadless rule anyway," he said. "I see no cause for alarm there."

Parenteau conceded that more than a half-dozen other challenges to the rule
across the country still remain, many of which raise entirely different
challenges, asserting that the rule violates the National Forest Management
Act, or that it is a backdoor way to declare wilderness without
congressional
consent. "It's safe to say that this case and the whole issue of the
roadless
rule is far from over," he said.

http://www.eenews.net/Greenwire/Backissues/121202bn/121202bn.htm#1

:mad:

http://www.columbian.com/12132002/clark_co/343409.html

Appeals court restores forest protection

Friday, December 13, 2002
By ERIK ROBINSON, Columbian staff writer

A federal appellate court on Thursday restored a Clinton-era rule designed to conserve more than 50 million acres of backcountry forests.

The 55-page ruling by the 9th U.S. Circuit Court of Appeals in San Francisco offered a ringing endorsement of the Roadless Area Conservation Rule.

“The unspoiled forest provides not only sheltering shade for the visitor and sustenance for its diverse wildlife but also pure water and fresh oxygen for humankind,” Judge Ronald Gould wrote in the majority decision. “In contrast, road construction and reconstruction facilitates forest management by timber harvest and possibly aiding fire prevention, but it is to a degree inimical to conservation.”

The Bush administration announced it would implement the rule, even as it continued to review it.

The rule bans logging and road-building in 58.5 million acres of wilderness areas. Much of the land is in hard-to-reach areas of the backcountry with scrubby, low-value timber, ice or rocks. The Vancouver-based Gifford Pinchot National Forest contains 213,000 acres of roadless areas, including the 55,000-acre Dark Divide between Mount Adams and Mount St. Helens.

Timber industry representatives have argued that roping off such a large swath of the country — about 2 percent of the land mass of the United States — could lead to insect infestations, disease and forest fires.

“Decisions like this should be made at the local level,” said Chris West, vice president of the American Forest Resource Council, an industry group in Portland. “To just say we’re going to walk away from these areas is irresponsible.”

Mark Rey, the undersecretary of agriculture who oversees the Forest Service, said Justice Department attorneys are reviewing the appellate court’s decision. In the meantime, he said the Forest Service will try to address concerns raised about the effect of the rule.

“Over the last year, we have been working toward a responsible and balanced approach that fairly addresses concerns raised by states, tribes and local communities impacted by the rule,” Rey said in a prepared statement.

U.S. District Judge Edward Lodge in Boise, Idaho, suspended the rule that was set to go into effect in May 2001. Idaho, the Kootenai Indian Tribe and logging interests had filed suit to block the rule.

Lodge ruled the Forest Service violated the National Environmental Policy Act by failing to provide maps of the areas to be protected in a timely fashion and by not offering a full enough range of alternatives. For example, the rule didn’t consider whether a road ban would lead to an increased risk of wildfire and disease.

Environmental groups appealed Lodge’s decision.

U.S. Sen. Maria Cantwell, D-Wash., extolled the 2-1 decision by a three-judge panel of the 9th Circuit and blasted the Bush administration for not aggressively defending the rule.

“This ruling is a huge victory for sound forest management and the preservation of our national forests for future generations,” Cantwell said in a prepared statement. “This ruling tells the Bush administration that it cannot arbitrarily bypass rules it doesn’t like.”

‘A wakeup call’

Recently, the administration has come in for harsh criticism from environmental groups. The government has moved forward on a number of fronts over the past few weeks to streamline national forest planning regulations, ease restrictions on cutting underbrush in fire-prone forests, and accelerate logging in forests in the Pacific Northwest.

“This should be a wakeup call to the Bush administration that they won’t get away with undoing forest protections,” said Doug Heiken, conservation director of the Oregon Natural Resources Council in Eugene. “They will be held accountable by the public and by the courts.”

Don Amador, western representative of the Blue Ribbon Coalition (http://www.sharetrails.org) , which represents off-road vehicle enthusiasts, said his group and other plaintiffs are disappointed in the 9th Circuit’s decision. But, now that the decision has been made, he said it clears the way for several other lawsuits related to the rule.

“We’re far from seeing resolution on this issue,” Amador said.

While the rule would preclude new roads from piercing the Dark Divide Roadless Area, local environmental groups have pushed for even stricter protection to keep off-road vehicles out.

“We will continue to strive for wilderness protection for the Dark Divide,” said Holly Forrest, a board member for the Vancouver chapter of the Sierra Club. “The roadless protections are a good start, but for the areas of the Dark Divide, wilderness designation is appropriate.”

first the pledge, then the guns, now this.....how do we get these liberal pieces of crap out of office?...better yet, just get rid of the 9th circuit all together...


:usa:

Originally posted by YellowSub1962
first the pledge, then the guns, now this.....how do we get these liberal pieces of crap out of office?...better yet, just get rid of the 9th circuit all together...


:usa:

The only comfort we have here is the fact that they are overturned more than any other circuit court of appeals.

This is bad news,

The 9th circuit is :rainbow::rainbow::rainbow::rainbow::rainbow:

NEPA Is Wounded In The House Of Its Guardians
© 2002 James Buchal
Published 12. 17. 02 at 23:05 Sierra Time

On Friday the 13th, December 2002, the United States Court of Appeals for the Ninth Circuit issued its opinion in Kootenai Tribe v. Veneman, reversing an Idaho federal district judge's injunction against the "Roadless Rule". This role, though proposed by the Clinton/Gore Administration, was actually postponed by the Bush Administration until May 12, 2001, so that as usual, the two wings of the same bird of prey share responsibility.
Nevertheless, the Bush Administration did not appeal the district judge's injunction against the rule. Under at least four prior decisions of the Ninth Circuit, that meant that no one could appeal the ruling. But in those prior cases, environmentalists had won the injunctions, and people with a real stake in the outcome wanted to appeal. In the Ninth Circuit, environmentalists are the High Priests to whom ordinary rules do not apply, and so they were permitted to appeal, notwithstanding the precedent.

A broad coalition of people actually affected by the Rule had obtained relief in the district court on account of violations of the National Environmental Policy Act (NEPA). NEPA is designed to require a full consideration of environmental impacts and alternatives in connection with "major federal actions", and imposes significant procedural requirements so that affected citizens have the opportunity to be heard before federal rules issue.

The evidence in support of procedural violations was compelling, and summarized by the dissenting judge:

. . . in an action involving two percent of the land mass of this country, the Service allowed a mere 69 day public comment period. The district judge made finding of fact that state maps of the affected area were not available until one month after the public comment period ended. Many responses were received in the final week, and the Service did not deign to respond. The documents offered to the public contained bizarre, Orwellian terms like "roaded roadless". To top it all off, 4.2 million acres were added after the public comment period ended.

(Emphasis in original.) As is customary in environmental rulemaking, the Forest Service dispatched operatives to public meetings who, in the words of the dissent, "were ill-prepared to answer the questions and concerns of the general public". In short, the entire public process was a sham, with the environmental elites making the decision in advance, confusing and misleading the public about it, and ignoring all input as to the vices of their plans. Thus the district court held that plaintiffs were likely to prevail on their claims of procedural violations, and enjoined the Rule.

The majority opinion, by Clinton appointee Ronald M. Gould, however, pointed to a brief by fellow Democrat Mike McGrath, the Attorney General of Montana, who told the Court that 67% of those who commented "favored even stronger protections for roadless areas than those proposed in the Draft EIS" and that "[n]ationally, 96% of commentators favored stronger protections". By all appearances, ignorant majority support for the Rule trumped violations of the statutory procedural rights of troublesome minorities. Liberals express solicitude only for the minorities on their own plantations, so to speak.

The heart of NEPA is its requirement that federal agencies consider alternatives toward achieving the same general policy goal with less environmental impacts. As the dissent explained,

The so-called action "alternatives" offered by the Forest Service were: 1) ban road construction and repair, but allow timber harvesting; 2) bad road construction and repair but allow timber harvesting only for stewardship purposes; and 3) ban road construction and repair and all timber harvesting. These "alternatives" differ only in how they handle timber harvesting; all of them ban road construction. They omit the obvious alternative of not banning road construction and repair. Thus the agency failed, as the district court found and the agency concedes, to give a "hard look" at all the alternatives.

It was good enough for the majority, however, who complained that "it would turn NEPA on its head to interpret the statute to require that the Forest Service conduct in-depth analyses of environmentally-damaging alternatives that are inconsistent with the Forest Service's conservation policy objectives". The whole point of NEPA, of course, is to figure out which alternatives are "environmentally-damaging", rather than proceeding, as did the Court, on the basis of assumptions.

Moreover, the mission of the Forest Service, acknowledged by the Court is "to sustain the health, diversity, and productive of the Nation's forests and grasslands to meet the needs of present and future generations", not to pursue "conservation policy" in the abstract. As the dissent points out, "[r]oads may be necessary to protect the forests and those who have property affected by them from avoidable destruction by fire, insects and disease", such that "it . . . makes no sense to assume, as the majority opinion does, that roadlessness will 'conserve and protect' the forests".

Under the majority opinion, in order to protect wilderness from bulldozers, we will burn the wildlife alive. This upholds the high ideals of the High Priests, ideals that are recited at length in the Court' opinion: "roadless areas contribute to the health of the public because they help preserve the forest system's watersheds, the rivers, streams, lakes and wetlands that 'are the circulatory system of ecosystems, and water is the vital fluid for inhabitants of these ecosystems, including people'". The notion that forbidding the construction of roads in the middle of nowhere will preserve "vital fluids" reminded me of General Ripper's comments about "precious bodily fluids".

In one particularly obnoxious passage, the Court explains that

"Many sensitive wildlife species . . . make their homes in wild and roadless areas of forest, and can know no other life. Appellants-Intervenors point out that many wildlife species that are hard-pressed for survival have final refuge in roadless areas. We cannot properly be unmindful of the fact that mountain lion, elk, wolverine, grizzly bears, wolves and other threatened species need roadless areas to survive." (Emphasis added.)

Only the most profound ignorance of on-the-ground biology, of the sort that pervades today's ivory towers, produces nonsense such as this. Wolf populations, for example, are growing by leaps and bounds, and destroying Western game herds, without regard to any invisible, deadly emanations from logging roads or even paved ones. The Court's ignorance is reinforced with arrogance as well: "There can be no serious argument," says the Court, "that restrictions on human intervention in these wilderness areas will not result in immeasurable benefits from the conservationist standpoint".

This sort of "conservationist" viewpoint has nothing to with law, but rather with promoting the Faith of the High Priests. The Priests draw no distinction between unmeasurable benefits and immeasurable benefits. We need not measure any benefit from making areas roadless, because the benefit is declared as a matter of Faith to be so immeasurable that the courts who worship at the altar of those Priests must make it a heavy thumb upon the rotting scales of justice.

No doubt, within the millions of acres of now-roadless areas are many places that it does not make sense to build a road, but the High Priests forbid that lesser mortals be permitted to exercise discrimination or common sense in federal land management. Instead, we shall prepare to set the land ablaze as a burnt offering to their dark Gods.

© James Buchal, December 16, 2002

http://www.sierratimes.com/02/12/18/arjb121802.htm

Double irony in roadless case

Tuesday, December 17, 2002 - The Ninth Circuit Court of Appeals has lifted an injunction that delayed implementation of former President Clinton's Roadless Conservation Rule. The rule, applying to 2 percent of the nation's land mass, was hurriedly adopted in the last days of the Clinton administration.

A key point in the case is whether the requirements of the National Environmental Protection Act were met, including providing sufficient opportunity for public comment. Another issue is whether the Forest Service did the required evaluation of alternatives.

Two judges on the appeals court said the requirements were met; one judge said they weren't.

The rule has spawned a number of other cases, and the court fight over designation of such a large amount of land is likely to be ongoing.

This initial appellate court decision was hailed by environmental groups, which see the rule as a bar to logging and mining projects. Timber interests, in contrast, believe the rule was put into effect without adequate time for the public to even accurately evaluate the boundaries of the affected lands.

A dissent filed in this case gives voice to that same concern in very strong language. It says, "What we have here is a case where the agency attempted a massive management change for two percent of the nation's land on the eve of an election, and shoved it through without the 'hard look' NEPA required."

That sounds like the basis for an appeal. The irony here is that, typically, it is environmental groups that complain about failure to comply with NEPA. Here, the environmental groups are defending a process of evaluation that took place over a 69-day period, during which the public wasn't even furnished with adequate maps of the area involved.

Even people who generally agreed with the Clinton administration's goals, including this newspaper, worried that the public input had been rushed and the mapping and other processes used to make the rule had been inadequate.

But there's a second irony in the case as well: The Bush administration recently announced new forest-management rules, which were issued with even less public input than the Clinton-era roadless rule. Indeed, if the Bush administration succeeds in implementing its proposal, in the future the public-comment period required by NEPA will not even apply to some of the most controversial decisions about forest management.

It is, in other words, too early to use the "case closed" stamp on the Roadless Rule Conservation file. This is a matter that may yet reach the U.S. Supreme Court.

Originally posted by Crowdog
It is, in other words, too early to use the "case closed" stamp on the Roadless Rule Conservation file. This is a matter that may yet reach the U.S. Supreme Court.

Exactly. This thing has a history going back several years, and its not about to be over yet. I predicted this months ago, you can see it right here: http://www.off-road.com/land/four_corners/2002_09/index.html

This legal mumbo jumbo is hard to track. Who did what to who? And who won? Can ya break it down for a poor dumb redneck Texas wheeler?

Originally posted by Slinky
This legal mumbo jumbo is hard to track. Who did what to who? And who won? Can ya break it down for a poor dumb redneck Texas wheeler?

First of all, read this to get you pretty much up to speed, long but in plain English: http://www.off-road.com/land/four_corners/2002_08/index.html

What happened last week was the screwy 9th circuit appeals yoyos said Judge Lodge used "bad logic" in formulating his opinion on which he based the injunction many months ago. Here's what they said from one of the articles above:
"Because of its incorrect legal conclusion on prospects of success, the
district court proceeded on an incorrect legal premise, applied the wrong
standard for injunction, and abused its discretion in issuing a preliminary
injunction," the three-judge panel said.

The case was remanded back to the lower court for Lodge to more or less, in the opinion of the idiots at the appeals ct., try to get it right this time. IMO he had it right the first time, the rule was formulated in an "environmental vacuum", the public was not given an adequate opportunity to respond, and the thing was a done deal from the beginning with the comment period being a sham.

We are not done fighting this one yet by a long shot.