Thursday, December 11, 2008


Monday, December 08, 2008

Ruling on management of roadless wilderness areas will cause more destructive forest fires
4:14 PM ET

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 judges 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 Frankensteinesque 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.

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