Clinton Roadless Rule Upheld… Again.

The 9th Circuit just upheld the Clinton Roadless Rule, and slapped down Bush’s amended rule which granted states and local interests undue influence to craft their own roadless rules, rules which ended up being weaker than the Clinton Rule.  Idaho and Colorado were the only states to ride Bush’s timber-train.

Clinton-era Rule Protecting Forests Upheld Green Inc., New York Times

The “roadless rule,” approved in 2001 during the waning days of the Clinton administration, substantially limited road development in national forest lands. The Bush Administration effectively replaced it with another policy that allowed states to establish their own rules on roads in forests.

A Bit of the Backstory

The Clinton Roadless Rule governed federal lands in the common interest of a majority of Americans – 95 percent of all Americans support full protection for these national forest roadless wildlands. Timber Tycoon Mark Rey, Bush’s undersecretary for natural resources and agriculturem,  didn’t like this arrangement, so when Bush took office he set about suggesting a process of “local”  origination for new rules to replace the Clinton Rule pursuant to an industry friendly provision of the Administrative Procedure Act – a new process that, if they could garner the support of industry, local politicians and a few conservation groups, would allow the new proposals originating in the state’s themselves to look legitimate ~ to replace the overwhelmingly popular Clinton Rule.

Most states declined – they like the Clinton Rule, but proponents of Rey’s “locally”-handled collaborative in Idaho, a state that champions the most roadless area in the lower 48, had succeeded in shaving away the the robust potential wilderness aspiration for 5.3 million acres of public lands off of the original 2001 Clinton Roadless Rule and loosening restrictions on road-construction to under the auspice of preventing Fire.  In Idaho, where Fire is big industry, the collaborative ensured a new, diluted roadless standard because fire is “bad” and local politicians hold steadfast to the agressive idea that we need to manicure our forests.  An additional 400,000 federal acres located in Idaho was cut off of Clinton’s protective rule to allow increased logging and mining.  A few local conservation collaborators claimed it was necessary to be involved lest the new rules turn out even worse for the Clinton Rule than would otherwise take place with their involvement.  Others, notably The Wilderness Society and Sierra Club, held steadfast to the original Clinton Roadless Rule.

Recently, the Obama Administration ~ Vilsack ~ has expressed the willingness to make good on Obama’s campaign promise to manage these federal public lands with a majority of Americans’ interest in mind – by setting a 1-year moratorium on roads for all the lands subject to Clinton’s 2001 rule and by instituting top-level oversight of decisions to blade new roads – but Idaho is was being excluded from this protection. Obama did not want to step on the collaborative agreement – on the new Risch Rule.  The 9th Circuit just stepped on it for him.  The acres once compromised now enjoy restored protection, for the time-being.  The Rule has been held in litigation in two circuits (first two districts – with contradictory results), environmentalists lost in Wyoming District Court and are now appealing to the 10th Circuit which has not yet decided the issue.

6 Responses to “Clinton Roadless Rule Upheld… Again.”

  1. matt bullard Says:

    I do not believe Idaho’s rule is necessarily tossed out by this ruling with the 100% certainty as you suggest. There was nothing ever preventing Idaho or any other state from entering into a rulemaking process under the auspices of the Administrative Procedures Act. This is one reason why administrative rulemakings are so tenuous, because another rulemaking process can usurp them, assuming it was carried out legally. My guess is that in order to affect Idaho’s rule, one would have to challenge it specifically in court.

    Of course, the very interesting topic of how one affects national-level policy at the forest level is still up in the air. I don’t get the sense that there are really any rock-solid statues that define that, since so much has been devolved to forest-level planning. It seems this whole shebang is likely to end up in the Supreme Court.

  2. Brian Ertz Says:

    matt,

    you say:

    I do not believe Idaho’s rule is necessarily tossed out by this ruling with the 100% certainty as you suggest.

    Judge Beezer responds in the the introduction of his written Opinion for the Circuit panel :

    This case involves procedural challenges to a United States Forest Service Rule known as the State Petitions Rule. The plaintiffs, several states and various environmentalist organizations, contend that the State Petitions Rule was promulgated without proper process and that it is invalid. They urge us to affirm the district court, which set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the “Roadless Rule,” pending Forest Service compliance with the National Environmental Policy Act and the Endangered Species Act.

    We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation’s roadless areas than those the individual forest plans provide. The Forest Service’s use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change.

    We affirm the district court’s order permanently enjoining the implementation of the State Petitions Rule because the Forest Service violated the National Environmental Policy Act and the Endangered Species Act when it promulgated the State Petitions Rule. We further conclude that the district court did not abuse its discretion in ordering the Forest Service to comply with the Roadless Rule as a remedy for these procedural shortcomings.

    (emphasis mine)

    one might further note of the decision the bolded, uppercase inclusion of the words “FOR PUBLICATION” are the first words of the decision, this is significant in that not every decision enjoys such – it means that the decision is intended to guide lower courts – to serve as precedent. that’s important to your question :

    This is one reason why administrative rulemakings are so tenuous, because another rulemaking process can usurp them, assuming it was carried out legally. My guess is that in order to affect Idaho’s rule, one would have to challenge it specifically in court.

    the 9th Circuit decided that “another rulemaking process” CANNOT usurp the original rulemaking process, at least not do so and blow-off the NEPA & ESA implications of such. Idaho’s Rule originated under the auspice of Mark Rey’s rulemaking process, a process that the 9th Circuit just batted down.

    Perhaps one might argue that the Idaho rulemaking process could be applied independent of the State Petitions Rule, and fulfilled the environmental analysis pursuant to NEPA & the ESA that the 9th Circuit just claimed necessary. Should that be the case then there’s a problem, because the 9th Circuit just reinstated the original Clinton Roadless Rule as remedy for the shortcomings of the State Petitions Rule – citing the environmental protections they afford – and ordered the Forest Service to respect that arrangement. SO, is the Forest Service to respect the tenuous Risch Rule (of which I am not aware that the ESA & NEPA requirements have been adequately fulfilled) or respect the direct decision as brought down by the 9th Circuit ? I’d think that the Idaho Rule is toast – for now.

    whether the Supreme Court decides to take up this case will probably largely hinge on the 10th Circuits decision, yet to be announced. If the 10th Circuit contradicts the 9th Circuit – the SC is more likely to clarify – which is not to say that they’ll necessarily take the case. Hopefully they wouldn’t.

  3. Brian Ertz Says:

    matt –

    do you know whether the petition process that promulgated the Idaho rule included adequate NEPA & ESA analysis pursuant to this order ? it seems to me that it would certainly would “effect a repeal” of the original Roadless Rule for those Idaho acres. the Idaho rule is being litigated right now.

  4. matt bullard Says:

    Thanks for the clarification.

  5. Brian Ertz Says:

    matt – you’re right, the Idaho Rule was not promulgated pursuant to the State Roadless Rule, it just seems to me the decision sets a standard which potentially cuts down the petition process that the Risch rule does use as well …

  6. Dawn Says:

    I just have to say, that I have sent every letter of protest off that I could, against the Bush agenda, regarding opening up the forests to further logging. National forests are to be protected for all us to enjoy, and forests are definitely not as enjoyable with roads winding thru them, along with trees being drug out at the same time. Great victory!


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