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"This story highlights just how fragile environmental victories are."
Roadless Rules is a fast-paced and insightful look at one of the most important, wide-ranging, and controversial efforts to protect public forests ever undertaken in the United States.
In January 2000, President Clinton submitted to the Federal Register the Roadless Area Conservation Rule, prohibiting road construction and timber harvesting in designated roadless areas. Set to take effect sixty days after Clinton left office, the rule was immediately challenged by nine lawsuits from states, counties, off-road-vehicle users, and timber companies. The Bush administration refused to defend the rule and eventually sought to replace it with a rule that invited governors to suggest management policies for forests in their states. That rule was attacked by four states and twenty environmental groups and declared illegal.
Roadless Rules offers a fascinating overview of the creation of the Clinton roadless rule and the Bush administration’s subsequent replacement rule, the controversy generated, the response of the environmental community, and the legal battles that continue to rage more than seven years later. It explores the value of roadless areas and why the Clinton rule was so important to environmentalists, describes the stakeholder groups involved, and takes readers into courtrooms across the country to hear critical arguments.
Author Tom Turner considers the lessons learned from the controversy, arguing that the episode represents an excellent example of how the system can work when all elements of the environmental movement work together—local groups and individuals determined to save favorite places, national organizations that represent local interests but also concern themselves with national policies, members of the executive branch who try to serve the public interest but need support from outside, and national organizations that use the legal system to support progress achieved through legislation or executive action.
"This story highlights just how fragile environmental victories are."
— James A. Cox, Editor-in-Chief, Midwest Book Review
ROADS ARE CENTRAL TO HUMAN CULTURE. We sing about roads ("Route 66," "On the Road to Mandalay," "Hit the Road, Jack," "The Coming of the Roads"). We write poems about roads ("The Road Not Taken," "The Silk Road"). We study roads in school (the Appian Way, the Anasazi roads in the American Southwest). We write books about roads (On the Road, Blue Highways). We make metaphors of roads ("take the high road," "the road to fame and fortune," "the road to hell is paved with good intentions").
But roads are also tangible creations that have been around since the invention of the wheel, if not longer. A loose consensus has it that wheels were first invented for spinning clay into plates, cups, and pots around 3500 BC. The first use of the wheel in transportation is thought to have occurred around three hundred years later.
Roads make our society and our economy possible. Roads allow cars, trucks, and buses to move from place to place, carrying goods and passengers. Those vehicles, in turn, have transformed our economics, our politics, our social interactions, our habits, our behavior, and our ways of viewing the world. They have opened once-remote areas to development. They have made life easier in many ways. They have also made it faster, more polluted, and less stable. Struggles over fuel to keep the engines running have dominated current events for decades, and, at present, concern over global climate change is causing hard reinvestigation of the effects of burning gasoline and diesel fuel to power our millions of vehicles.
But this is not a story about automobiles or trucks or petroleum. It is a story about wildlands that have been spared from the road builders, at least so far: some deliberately, some accidentally, some by default, and some as the result of perhaps the most extensive public environmental campaign in the nation's history.
So powerful, symbolically and physically, are roads and the idea of roads, that the lands that concern us here—undeveloped parts of our national forests—are defined by what they don't have: roads. They are called roadless areas. They could as well be called resortless areas, or prisonless areas, or universityless areas, but they are roadless areas, because it is roads that lead to all the rest.
Nearly 400,000 miles of roads on the 193 million acres in the country's 155 national forests and national grasslands have led to a stunning volume of destruction. Hillsides have been clear-cut, leading to landslides that have destroyed homes and wrecked spawning beds for salmon, trout, and many other aquatic species. Roads have led to the decimation of numerous populations of wildlife—the northern spotted owl and the northern Rockies grizzly bear, to name just two. Roads have made it possible for alien species to invade, gain a foothold, and spread, crowding out native species, bringing instability to ecosystems, and costing the economy billions of dollars. In fact, it is now estimated that this invasion of exotic species poses as serious a problem to native wildlife as habitat destruction does.
It is possible to obliterate roads (decommission them is how the Forest Service tends to refer to the practice) and restore landscapes, vegetation, wildlife populations, and streams, but it is expensive, and the backlog of roads needing attention is enormous. Once built, most roads remain in place for many years. Every road buries land that could be used for something else; destroys habitat for myriad creatures, if only the tiny, nearly invisible ones; and is likely to increase erosion that eventually ends up in one waterway or another.
In addition, roads have increased the risk and severity of wildfire. They have left unsightly scars that persist for decades. Finally, roads have led to the replacement of verdant, complex, ancient ecosystems with tree farms, where all the trees are the same age and the same species. The lack of diversity makes such areas poor habitat for many species that once thrived in the undisturbed forests and increases the forests' vulnerability to pests and disease.
In the following chapters, you will read about the Roadless Area Conservation Rule put in place at the end of the Bill Clinton administration to protect vulnerable national forest lands, and a substitute rule that the George W. Bush administration issued to replace the Clinton rule. The Bush rule invited governors to propose management schemes for the national forests in their states. We explain why the Clinton Roadless Rule was deemed necessary and how it came to be. We discuss why and how the Bush administration and its allies tried to undo it. We speak of the value of roadless areas—not just in dollars, but also for wildlife habitat, watershed protection, recreation, and the many other contributions these areas offer. We discuss the massive, unprecedented grassroots effort that pushed the Roadless Area Conservation Rule into being and kept pushing to force the inclusion of the Tongass National Forest in its purview, then rose again to defend the rule once the political tides changed. And we offer an extensive history and analysis of the legal battles concerning the two rules that raged back and forth for a half-dozen years and more—and in fact have yet to end. They may never end.
The campaign for the Roadless Rule has been the most extensive national environmental campaign yet waged in the United States, combining grassroots organizing in nearly every state; massive infusions of philanthropic support; support from hunters and anglers, religious leaders, scientists, and the outdoor recreation industry; relentless lobbying of Congress and the executive branch; and complex and extremely long-lived litigation that kept the rule in place in the face of hostile opposition.
This is what drew me to the story in the late 1990s. My organization, Earthjustice, where I've worked since 1986 as a writer and editor, was involved in protecting the nation's wildlands from the start, from well before the Roadless Rule itself came into being. At first it was very similar to a hundred other battles over the fate of public lands, but it veered into new territory when the Bush administration abandoned the legal defense of the Roadless Rule, and the private environmental organizations stepped into the breach and kept the rule alive for a half-dozen years and beyond.
I believe this is a story to be learned from and, mostly, emulated. It was, and still is, an example of how the system can work when all the pieces fall into place, with cooperation among all the elements of the environmental movement—local groups and individuals determined to protect favored spots; national organizations that may represent local interests but also concern themselves with national policies; members of the executive branch who go into government to serve the public interest, but still need support from outside; and, finally, national organizations that concentrate on using the legal system to backstop progress achieved in the legislative arena or via federal rules and executive orders. Without these lawyers, the rest could be in vain.
As long as there are valuable trees standing on public lands, there will be someone wanting to cut them down and feed them into sawmills and pulp mills. So far, many millions of acres have been spared by the Roadless Rule and many other efforts for people here now and for those yet to come.
A note on sources: I conducted extensive interviews with the principal players in the story—Mike Dombeck, Mark Rey, Jim Lyons, Marty Hayden, Josh Reichert, Steve Kallick, Mat Jacobson, and many others. Unless otherwise noted, the quotes in the text are taken from those interviews.
Likewise, I use extensive quotes from legal briefs and motions and from published court opinions, which are cited in appendix 3. The briefs are part of the various court records available from the relevant courts. Some are available online through the courts.
Most are available from Westlaw, an electronic legal archive. Some are posted on various organizations' web sites. There are vast stores of information, legal and otherwise, on the Forest Service's web site (www.roadless.fs.fed.us), and from the web sites of the Heritage Forests Campaign (www.ourforests.org), Earthjustice (www.earthjustice.org), The Wilderness Society (www.wilderness.org), and many other organizations that participated in the struggle and continue to do so.CHAPTER 2
Showdown in Cheyenne
IT IS A BRIGHT DAY near the end of October 2007. The stark, faceless Joseph C. Mahoney Center in Cheyenne, Wyoming, crouches across the way from the beautiful old state capitol with its golden dome gleaming in the morning sun. The wind is blowing a fierce gale, whipping autumn leaves up and down the sidewalks. Inside the courthouse, a hearing is about to get under way before the honorable Clarence Brimmer, Wyoming District Court judge.
Clarence Addison Brimmer Jr. is, in many ways, a prototypical twentieth-century westerner, determined to preserve the way of life that produced him, even in the face of vast changes. Brimmer was born in Rawlins, Wyoming, in 1922 and attended the University of Michigan for both undergraduate and law school, with a stint as an enlisted man in the Air Force in between. He was in private law practice in Rawlins for twenty-five years before serving five years as Wyoming's attorney general and one year as the U.S. attorney for Wyoming. He was appointed to the federal district court by President Gerald Ford in 1975. He was chief judge for the District of Wyoming from 1986 to 1992 and assumed senior status (which confers a lightened caseload) in 2006. Rawlins is the seat of Carbon County, named for the coal that underlies south-central Wyoming. Brimmer's passion is raising orchids, which takes some doing in Wyoming.
Another Brimmer passion, according to people who have attended hearings in his courtroom, is a fierce antipathy to President Bill Clinton, his administration, and everything it stood for and did. Given the rural nature of Wyoming (it is one of only three states—Alaska and Montana are the others —that have just one member in the U.S. House of Representatives), much of the business that comes before the federal court concerns natural resources and the great outdoors.
In the case to be argued today, the State of Wyoming has asked the judge to declare illegal the Roadless Area Conservation Rule, which bans road building on about fifty million acres on the country's national forests. In fact, this is the second time this matter has come before Judge Brimmer. He declared this same rule illegal in 2003, but three years later another federal judge reinstated it.
Judge Brimmer walks to the bench to face a half-full courtroom, now standing upon his entrance.
At the plaintiff's table are Bob Nicholas, senior assistant attorney general of Wyoming, who will argue for the state. He is accompanied by the newly appointed attorney general, Bruce Salzburg, and a young attorney named Tara Nelson.
At the defendants' table are Jim Angell and Andrew Hartsig of the nonprofit law firm Earthjustice. They represent the Wyoming Outdoor Council, The Wilderness Society, the Sierra Club, the Biodiversity Conservation Alliance, the Pacific Rivers Council, the Natural Resources Defense Council, Defenders of Wildlife, and the National Audubon Society. These groups have intervened in the case on the side of the federal government.
The original case was filed by the State of Wyoming—the plaintiff—against the federal government—the defendant. Under federal court rules, interested parties may petition to intervene in a case to protect their own interests and bolster one side's or the other's arguments. Potential intervenors must demonstrate that they have a legitimate interest in the case, which usually means that they will be "injured" in some way if the case doesn't come out the way they want it to. The alleged injury to the environmental-group intervenors in this case involves the fact that recreational opportunities of various kinds would be impaired by the destruction of roadless areas. Potential intervenors also must be able to argue that their interests will not be adequately represented by the existing parties or they are uniquely suited to add vital information and reasoning to help the court reach a correct decision. Sometimes intervention is at the discretion of the judge, sometimes it's automatic. In the Roadless Rule case, the environmental groups have argued that their members use roadless areas for hiking, hunting, fishing, wildlife viewing, camping, or other purposes. They have also suggested that the defendant—the U.S. Department of Agriculture (USDA) Forest Service—might not mount a stout defense of the Roadless Rule. Once granted intervention, the intervenors are full parties to the case with rights to participate in briefing, in oral argument, in discovery (the questioning of representatives of the opposing parties), in settlement negotiations, and in other activities associated with the litigation.
Also at the defendants' table are Barclay Samford from the U.S. Department of Justice in Washington, DC (he answers to Clay), and Nick Vassallo, an assistant U.S. attorney for the District of Wyoming. The Justice Department officials are in a rather ambiguous position. The federal government, in this case the USDA Forest Service, represented by the Department of Justice, is no fan of the Roadless Rule. In the earlier round of litigation in this same court, it lost and later declined to appeal Judge Brimmer's injunction. Clay Samford will surprise many in the audience, later in the hearing.
In the gallery are an Associated Press reporter and representatives from both supporters and opponents of the rule, many of whom have submitted friend-of-the-court (amicus curiae) briefs with their particular slant on the controversy. These include lawyers representing the Blue Ribbon Coalition, which works to keep public lands open to Jeeps, dirt bikes, dune buggies, snowmobiles, and other off-road vehicles, and an attorney from the Colorado Mining Association. Friends of the court need permission to submit briefs, which is at the discretion of the court and usually granted. They are not parties to a case. They often present narrow interests to make certain that one particular line of argument gets a full airing. Organizations that petition for intervenor status and are turned down often file amicus briefs instead.
The judge sits down and, in a deep but rather faint voice, says, "Please be seated."
Note: Unless otherwise noted, all of the quotes that follow are taken directly from the Transcript of Motion Proceedings Before the Honorable Clarence A. Brimmer, U.S. District Court, Case No. 07-CV-017-B.
The Roadless Area Conservation Rule that will be argued over this day was written by officials of the Clinton administration after several years of debate, discussion, and public hearings. It forbids logging, mining, and road construction on inventoried roadless areas (IRAS) on the national forests, which are, generally, unroaded areas of at least five thousand acres not already protected as wilderness. Exceptions are included for roads built for fire and pest control. As of early 2001, when the rule was made official, there were approximately 58.5 million acres of such roadless areas, mainly in the West and in Alaska, with pockets scattered around the rest of the country. The final rule was challenged in nine separate lawsuits in various parts of the country, filed by states, as in the Wyoming litigation, and also by timber companies, counties, off-road-vehicle enthusiasts, and an Indian tribe. These parties objected to a national rule, arguing that forest management decisions are best left to people and agencies located close to each forest.
The first two cases of the nine were filed in Idaho in early 2001. There, Judge Edward Lodge found the rule illegal and issued a nationwide preliminary injunction. He argued that the Forest Service did not allow enough public participation in the rule's creation and that the agency had not considered a wide enough range of alternatives (for example, no roads, a few roads, certain kinds of roads, and so on). Judge Lodge's injunction was overturned by the Ninth Circuit Court of Appeals, although it was the environmental intervenors who filed the appeal, not the federal government.
Judge Brimmer then struck down the rule in 2003 for similar reasons, plus an alleged violation of the Wilderness Act. Wyoming District Court is in the Tenth Circuit, so the Ninth Circuit reversal of Judge Lodge did not apply to the case in Judge Brimmer's court. The Forest Service, which had offered a fairly vigorous defense of the rule before Judge Brimmer, did not file an appeal of the decision this time either. The environmental intervenors did, but the Tenth Circuit did not act on the appeal before the Bush administration replaced the rule with a new one of its own. Thereupon, the Tenth Circuit, at the urging of the State of Wyoming, dismissed the appeal and, at the urging of an Earthjustice attorney, vacated Judge Brimmer's injunction. We'll untangle this a bit further on. Let's say it's a proper briar patch and leave it at that for now.
In September 2006, the Clinton Roadless Rule had been resurrected by Magistrate Judge Elizabeth Laporte in California, who struck down the Bush replacement rule. The Bush rule invited governors to submit petitions suggesting how the forests in their states should be managed. Now, Wyoming has returned to Judge Brimmer's court, hoping to persuade him to issue another injunction, in effect, to supersede Judge Laporte's injunction.
Excerpted from Roadless Rules by Tom Turner. Copyright © 2009 Island Press. Excerpted by permission of ISLAND PRESS.
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1 Introduction 1
2 Showdown in Cheyenne 5
3 The Road to Roadlessness 19
4 Why a Roadless Rule? 41
5 The Untold Story of the Pew Charitable Trusts 51
6 The Rule Goes Final, the Lawsuits Fly 57
7 The Economic and Spiritual Value of Roadless Areas 63
8 Shootouts in Idaho and Wyoming 71
9 The Biological Value of Roadless Areas 89
10 Skullduggery in Alaska 95
11 Hunters and Anglers Get Riled Up 99
12 A New Rule is Proposed 103
13 Historical Digression 113
14 The New Rule Is Challenged 117
15 The Petition Polka I 123
16 The Bush Rule Is Blocked 129
17 The Petition Polka II 137
18 The Game Is Up 141
Appendix 1 Roadless Area Acreage by State 143
Appendix 2 Timeline of the Roadless Rule 145
Appendix 3 Case Citations and Statutes 153
Appendix 4 Glossary 155