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.

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