Some Republican Presidential candidates may consider the 9th Circuit a "rogue court," but you can't prove it by the recent 10th Circuit decision upholding the Clinton Roadless Rule — just as the 9th Circuit had already done twice. The rule, established by President Bill Clinton in the final days of his administration, has made 58 million acres of national forest and grassland (including 2 million acres in Washington state) off-limits to new roadbuilding and commercial logging.
The 10th Circuit's recent decision reversed a district court decision, ordered that court to vacate an injunction, and basically told the state of Wyoming that the rule didn't violate the Wilderness Act, the Multiple Use Sustained Yield Act, the National Environmental Policy Act, or anything else. This was "a very big win for the rule," says Earthjustice attorney Kristen Boyles. It's "very significant." Washington had joined the states of California, Oregon, and Montana in the suit as friends of the court.
Neither the 10th Circuit's decision nor its agreement with the 9th seems as surprising as the fact that, more than a decade after Clinton left office, appellate courts still have to reiterate that there is nothing illegal about the Roadless Area Conservation Rule. The rule was published just 8 days before the inauguration of George W. Bush, but only after the Clinton administration had spent three years jumping through all the necessary legal hoops.
The lawsuits — and red state rhetoric — started almost immediately.
In May 2001, just four months after Bush took office, an Idaho federal judge enjoined the Forest Service from carrying out the rule. The Bush administration didn't appeal the ruling, but environmental groups did, and in December 2002, the 9th Circuit Court of Appeals reversed it. "If the 9th Circuit Court were playing baseball, this decision on the Roadless Rule would be their third strike," Idaho Senator Larry Craig complained. "The first strike was ruling that America's school children cannot say 'under God' during the Pledge of Allegiance; [the] second strike is the recent ruling that the right to bear arms is not meant for private citizens...."
Craig's criticism was just the beginning. In Wyoming, U.S. District Judge Clarence Brimmer issued an injunction against the rule. Again, the Bush administration let the ruling stand, but environmental groups appealed. Then, on May 5th, 2005, the Bush administration repealed the Roadless Rule, replacing it with another regulation, under which individual states could petition for roadless areas. With the new rule on the books, the 10th Circuit ultimately vacated the Wyoming decison and dismissed the environmentalists' appeal as moot.
Things looked grim. Then, in a case in which Washington joined the states of California, Oregon and New Mexico as a plaintiff, a federal judge in northern California tossed the new rule and reinstated the old one. Two years ago, the 9th Circuit upheld that ruling. By that time, the state of Wyoming had gone back to court, and Brimmer had issued another injunction, which he claimed applied nationwide. That is the decision against which the 10th Circuit has just ruled.
"The Wyoming decision was a nationwide injunction," says Earthjustice attorney Tim Preso. It "created a conflict with the 9th Circuit." And until the 10th circuit finally ruled on the case, it was natural to wonder, "was there going to be a split in circuits?" No one wonders any more. What Preso calls "the lurking question about whether the Wyoming injunction would stand" no longer lurks. He calls it "a sweeping victory."
A lot has changed since the rule first inflamed tempers in the intermountain West. "Back then, the timber industry was a much bigger force than it is today and was among the [rule's] first challengers," Kirk Johnson wrote in The New York Times. "Off-road recreational vehicle use, barely a blip a decade ago, has also emerged as a major issue in the debate over the environmental impact of human activity in national forests. Meanwhile, energy drilling has surged on public lands, creating new pressures that the earlier drafters and detractors of the rule had not envisioned."
If you look at the list of organizations filing friend of the court briefs at the 10th Circuit, you find no forest products companies or associations; instead, opponents of the rule included four off-road vehicle groups and five mining groups.
But the 10th Circuit made it clear that the rule doesn't ban mining or off-road vehicle use; it just bans new roads. Actually, the 10th circuit made a lot of things clear. It took a year and a half to issue a 120-page decision that, Boyles notes, "is exceptionally thorough."
Wyoming had argued, among other things, that "roadless" equalled de facto "wilderness," and a wilderness area could only be created by an act of Congress, not a mere administrative rule. The court showed little patience with that argument. It said flatly that "a comparison of the provisions of the Wilderness Act and the Roadless Rule demonstrates that IRAs and wilderness areas are not functionally equivalent or 'essentially the same.' To the contrary, the two types of areas are distinct. . . . As a general matter, the Roadless Rule restricts only two activities — road construction and commercial timber harvesting. . . . [U]nlike the Wilderness Act, the Roadless Rule permits unlimited maintenance of all existing roads and does not prohibit the use of motorized vehicles or other motorized transportation on such existing roads."
In addition, "the Roadless Rule imposes no general prohibition on mining or mineral-development activities, other than the limitations imposed through the road-building prohibition. Therefore, 'leasing activities not dependent on road construction, such as directional (slant) drilling and underground development,' and mineral-leasing activities that could be carried out through utilization of existing roads, 'would not be affected by the prohibition.'”
Despite Wyoming's claim that it had been shut out by a mere 60-day scoping process, "we are convinced that Wyoming was given a meaningful opportunity to participate. . . . The Forest Service conducted 187 public meetings, several of which were held in Wyoming, and received approximately 517,000 comments during the sixty days. It is virtually certain that this process produced more than enough information to '[d]etermine the scope . . . and the significant issues to be analyzed in depth in the [EIS].'”
The court also said that "Wyoming’s assertion — and the district court’s conclusion — that the failure to provide maps deprived Wyoming of an opportunity to meaningfully participate in the scoping process because it could not determine which areas would be affected is wholly without merit."
Is this the end of the road for challenges to the Roadless Rule? Not likely. Some Republicans will try to accomplish through legislation what recalcitrant states and interest groups have not been able to accomplish through the courts. (Meanwhile, pro-rule members have tried repeatedly to get the rule codified in federal law.)
Several other cases are making their way through the courts: The State of Alaska has challenged application of the rule to the Tongass and Chugach national forests, and has appealed a decision saying that it does apply to the Tongass. In contrast, environmentalists have challenged Idaho's development of its own less restrictive roadless plan. But, Boyles notes, no one is currently challenging the rule as a whole. And Preso suggests that support for a challenge may be waning. "The debate has really changed," he says.
Partly, people have learned to live with the rule. And partly, people who might have opposed it ten years ago have seen their hunting and fishing spots on unprotected land disappear. As a result, he says, "I don't see a groundswell of rural support" for changing things. By now, he suggests, "the time is sort of running out" for opponents. Boyles would certainly like to see the issue laid to rest. "I hope this is it," she says. After a decade, she suggests, "everyone should take a deep breath and say, 'the Roadless Rule is the law of the land.'"