SAWS Opinion: The Roadless Saga Continues – where will it all end?

 

 

On August 5, 2009, the 9th Circuit agreed with a lower-court ruling that declared the 2005 Bush Roadless Rule (BRR) invalid.

http://www.ca9.uscourts.gov/datastore/opinions/2009/08/05/07-15613.pdf

 

            Plaintiffs - Appellees

Argued by Earthjustice Legal Staff on behalf of; The Wilderness Society, California Wilderness Coalition, Forests Forever Foundation, Northcoast Environmental Center, Oregon Wild, Sitka Conservation Society, Siskiyou Regional Education Project, Biodiversity Conservation Alliance, Sierra Club, National Audubon Society, Greater Yellowstone Coalition, Center for Biological Diversity, Environmental Protection Information Center, Klamath Siskiyou Wildlands Center, Defenders of Wildlife, Pacific Rivers Council, Idaho Conservation League, Humane Society of the United States, Conservation NW and Greenpeace.

 

Defendant - Intervenors

AMERICAN COUNCIL OF SNOWMOBILE ASSOCIATIONS; BLUERIBBON COALITION; CALIFORNIA ASSOCIATION OF 4 WHEEL DRIVE CLUBS UNITED FOUR WHEEL DRIVE ASSOCIATIONS.

 

          Ruling

The 9th Circuit ruled that the 2005 BRR, otherwise known as the State Petitions Rule, was not done in such a way as to comply with the Endangered Species Act or the National Environmental Policy Act (NEPA).  The ruling came down that the 2005 BRR did not do enough to ensure the protection of federally listed species, and their critical habitat.

 

          Taken from the ruling

“With the passage of the Roadless Rule, inventoried roadless areas, “for better or worse, [were] more committed to pristine wilderness, and less amenable to road development for purposes permitted by the Forest Service.” Kootenai Tribe, 313 F.3d at 1106. The Forest Service may reevaluate the approach to roadless area management embodied in the Roadless Rule; however, it must comply with the procedural requirements contained in the National Environmental Policy Act and the Endangered Species Act if and when it does so. The Forest Service did not promulgate the State Petitions Rule in a manner that fulfilled these statutory requirements.”

 

Court upholds ban on U.S. forest roads

http://www.washingtontimes.com/news/2009/aug/06/court-upholds-ban-on-roads-in-national-forests/

 

“Those who make a living cutting down trees or selling snowmobiles took a hit Wednesday when a federal appeals court banned road construction on more than 50 million acres of national forest.”

“Wednesday's decision effectively reinstates the 2001 Clinton administration roadless plan, which blocks road construction on 58.5 million acres, or about one-third of the area managed by the U.S. Forest Service.”

“At the same time, supporters of the Bush plan weren't panicking. The courts have issued a patchwork of sometimes contradictory decisions on the roadless rule, with another ruling expected in a related case now before the more-conservative 10th U.S. Circuit Court of Appeals in Denver.”

Washington state leaders relish “roadless rule” victory

http://www.atg.wa.gov/pressrelease.aspx?id=23544

“This is a great victory for Washingtonians, who have long stood for the protection of our roadless areas,” said Gov. Chris Gregoire. “These special places provide clean water, fish and wildlife habitat, and priceless recreational opportunities for Washington families.

“Today’s victory is sweet for those of us who want to see our forests conserved for future generations,” said Attorney General Rob McKenna. “The conservation of natural resources is something that all state citizens strongly support. And that’s why we’ve made the legal defense of our environment a top priority.”

 

On August 13, 2009, the Obama administration announces its plans to defend the 2001 Clinton Roadless Rule (CRR). This should be no surprise to those that have followed this issue over the last eight plus years.

 

Obama asks court to block forest road building

http://www.google.com/hostednews/ap/article/ALeqM5j6rl81Efi_0P-RKk4s6Z7s6As6XQD9A28VV84

“The Obama administration says it will defend a 2001 rule imposed by President Bill Clinton that blocked road construction and other development on tens of millions of acres of remote national forests.”

"’We are grateful that the Obama administration is upholding and honoring the commitment of the president to uphold and enforce the 2001 roadless rule,’ said Kristen Boyles, a lawyer for the environmental group Earthjustice, which represents a coalition of environmental groups in both appeals. Obama had said during the presidential campaign that he supports roadless values.”

During the previous 110th US Congress (2007 – 2008), President Obama, then a US Senator (D-IL), had already signed on as one of only 19 co-sponsors to the Senate’s bill in support of the 2001 CRR (S1478), which had been introduced by US Senator Maria Cantwell (D-WA), that proposed to make the 2001 CRR law. As mentioned in the article above, Obama campaigned indicating his support for “roadless values”

 

Back to when the roadless controversy began

 

In 2001, during the final days of the Clinton presidency, the 2001 CRR was thrown together, just in time for Clinton to sign it before he left office. The required rush forced some parts of the process to be hurried through. Here is a link to the 2001 CRR:

http://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5050459.pdf

 

In 2003, U.S. District Judge Clarence Brimmer in Wyoming threw out the 2001 CRR, finding that the Clinton administration had failed to follow the requirements of the National Environmental Policy Act (NEPA), and had failed to include state input (denied cooperating agency status) for the Environmental Impact Study (EIS), and that the 58.5 million acre nationwide land grab of the 2001 CRR, was a "thinly veiled attempt to designate 'wilderness areas' in violation of the clear and unambiguous process established by the Wilderness Act."

 

In 2005, President Bush came out with his version of the roadless rule. As previously mentioned, this version of the roadless rule was referred to as the 2005 State Petitions Rule. Here is a link to the 2005 BRR:

http://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5052609.pdf

 

In 2006, California Magistrate Judge Elizabeth Laporte; in a strange bit of logic, threw out the 2005 BRR, because it violated NEPA, since it lacked an EIS, and then reinstated the 2001 CRR, which also had problems with it NEPA and EIS.

 

In 2008, Idaho created their own roadless plan for the national forests within their state, under the 2005 BRR.  In October 2008 the final Idaho Roadless Rule was adopted, so their plan will most likely not be affected by this ruling. Note: In January 2009, environmental groups filed a separate suit against Idaho's Roadless Rule, in Federal court in Boise Idaho, the case is pending.

 

Also in 2008, Judge Brimmer threw out the 2001 CRR, reversing Judge Laporte's decision.  Judge Brimmer also refused to limit his ruling to just Wyoming, reasoning that since the CRR was nationwide, so should be any rulings on it.

 

Judge Brimmer wrote of the environmentalist groups requesting he cancel his ruling, “to assert that as soon as the Roadless Rule is lifted, a free-for-all will ensue resulting in the obliteration of our nation's forests, this is simply not the case. Conversely, every day the Roadless Rule remains in effect is a day that our forests are at risk."

 

Conclusion: the definition of “round-robin'

 

  • President Clinton created the 2001 CRR.
  • Judge Brimmer threw out the 2001 CRR because of it lacking NEPA requirements.
  • President Bush created the 2005 BRR.
  • Judge Laporte threw out the 2005 BRR because of it lacking NEPA requirements and then reinstated the 2001 CRR.
  • Judge Brimmer once again threw out the 2001 CRR, because of it lacking NEPA requirements.
  • 9th Circuit Court upheld Judge Laporte, and threw out the 2005 BRR because of it lacking NEPA requirements.
  • The Obama administration challenges Judge Brimmer’s ruling in the 10th Circuit Court.
  • The Forest Service now has two opposite ruling, and must pick one to follow, or continue to wait and see how this all plays out in the 10th Circuit Court.

 

Here is a link that provides some additional information on the entire timeline for the roadless saga (note the source though):

http://www.earthjustice.org/library/background/timeline_of_the_roadless_rule.html

 

SAWS has been opposed to implementation of the 2001 CRR since our inception in August 2004. Many people, including many recreationists and elected officials, do not understand the negative impacts the 2001 CRR could have for recreation, and the fact that road building is just one aspect of this plan.

 

The 2001 CRR contains three classifications for recreation; “Primitive, Semi-Primitive Non-Motorized, and Semi-Primitive Motorized classes”. As you can see, snowmobile use would only be allowed in one of these three designations - Semi-Primitive Motorized. Not a pretty picture for those that value multiple-use recreation on our non-wilderness multiple-use public lands.  As a reminder, we currently have 109.5 million acres of designated wilderness - how many more acres of non-wilderness lands do we need closed to multiple-use?

 

You can view maps of so-called roadless areas by state at the following link. These maps show Inventoried Roadless Areas, but do not break down which areas would be designated in the above three classifications:

http://fs.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_RU4?ss=119930&navtype=SubNavigation&cid=null&navid=151150110000000&pnavid=151150000000000&position=SubNavigation&ttype=main&pname=Roadless- State Maps

 

SAWS believes that the 2001 CRR classification will be used to insinuate that the general public wants all forms of multiple-use recreation, including snowmobiling, closed in most if not all the so-called Roadless areas. Over time, they'll have most of the uninformed convinced that so-called Roadless areas should be treated as de-facto wilderness.

 

SAWS agrees with Judge Brimmer. How could anyone disagree if they actually read the entire 2001 CRR?

 

 

Dave Hurwitz and Wade Patrick

Snowmobile Alliance of Western States

 

Copyright © 2009 Snowmobile Alliance of Western States. All Rights Reserved.

 

Permission is granted to distribute this information in whole or in part, as long as Snowmobile Alliance of Western States (SAWS) is acknowledged as the source. If you are not yet a member of SAWS and you would like receive these alerts, please sign up on our web site at: http://www.snowmobile-alliance.org/