From the pages of
Sublette Examiner
Volume 3, Number 17 - July 24, 2003
brought to you online by Pinedale Online

Brimmer throws out roadless rule

by Cat Urbigkit

Federal Judge Clarence Brimmer didn't mince words last week when he declared the Clinton Administration's roadless rule in violation of federal law. His 100-page ruling exhaustively detailed how the federal government usurped Congress by fast-tracking a rule with a predetermined outcome as mandated by the President of the United States. The National Environmental Policy Act's provisions for public participation in the decision-making process was a casualty to the administration's "mad rush" to enact the rule before Clinton left office.

Brimmer's decision noted that the entire process of publishing an environmental impact statement and record of decision "was implemented to justify the Forest Service's predetermined decision to prohibit all road construction and timber harvest in roadless areas, even if such activity was beneficial to the forest."

The ruling was the result of a lawsuit filed by Wyoming officials, using Harriet Hageman of Hageman and Brighton of Cheyenne as lead counsel. Intervening on the side of the U.S. Forest Service was a coalition of environmental groups, including the Wyoming Outdoor Council, Wilderness Society, Sierra Club, Biodiversity Associates, Pacific Rivers Council, Natural Resources Defense Council, Defenders of Wildlife and the National Audubon Society.

"In its rush to give President Clinton lasting notoriety in the annals of environmentalism, the Forest Service's shortcuts and bypassing of the procedural requirements of NEPA has done lasting damage to our very laws designed to protect the environment," Brimmer wrote. "What was meant to be a rigorous and objective evaluation of alternatives to the proposed action was given only a once-over lightly. In sum, there is no gainsaying the fact that the roadless rule was driven through the administration process and adopted by the Forest Service for the political capital of the Clinton Administration without taking the 'hard look' that NEPA required."

In late 1999, Clinton directed the Forest Service to initiate administrative proceedings to protect inventoried roadless areas and to determine whether roadless protection was warranted for any uninventoried roadless areas. He also ordered that the final roadless rule be issued by the fall of 2000. The federal team created to work on the rule proceeded according to a schedule that stated, "Dates - get done during the Clinton Administration (Dec. 2000)," according to documents in the court record.

In the early stage of the rulemaking process, the Forest Service held a series of nearly 200 meetings across the nation, including several in Wyoming that were held in the last 13 days of the 60-day comment period. Governor Jim Geringer criticized the "extraordinarily short" public comment period as well as the Forest Service's denial of Wyoming's request to be a cooperating agency in the preparation of the EIS. The Forest Service also refused to extend the comment period, even though it did not have any maps of the inventoried roadless areas available for the public to review. Once the maps became available, which was one month after the closing of the first public comment period, the maps were on such a scale to prove little use in providing substantial input.

When the draft EIS was issued, the Forest Service, provided a 69-day comment period in which it held over 400 meetings, 16 of which were in Wyoming and allowed each speaker three-minutes to comment on the proposed rule. According to Brimmer, the local Forest Service employees who conducted the meetings did not have enough information to answer questions at the meetings.

Brimmer noted that the administrative record before his court "is replete with the Forest Service's own admissions that its data was incomplete, outdated and simply inaccurate."

Although the Forest Service designated Wyoming as one of the states most affected by the proposed rule, it refused to grant Wyoming cooperating agency status. Brimmer found that "Geringer's observations that the proposed roadless rule and the Forest Service's illusory public process, was the result of political posturing for an outgoing president, and geared to support a vice president who was also a presidential candidate, are based on firsthand knowledge and carry their own indicia of reliability.

"The Forest Service dared not let any of the 10 most affected states have cooperating agency status, lest its 'mad dash' would be slowed to a walk," Brimmer wrote. "Wyoming could not meaningfully provide input on the scope of the proposed EIS by commenting on the direct, indirect, and cumulative impacts of the roadless rule in Wyoming when it did not know what areas in Wyoming were to be designated as roadless."

Brimmer pointed out that defendant-intervenors called the roadless rule the 'most significant land conservation initiative in nearly a century." Brimmer also noted that the environmental groups pointed to the number of comments received on the draft EIS to bolster their argument that the comment period was sufficiently long enough to permit meaningful participation.

"However, the court finds these arguments unhelpful since 1,095,000 of these comments were form letters, form e-mails, post cards or faxes," Brimmer pointed out. "The Forest Service only received 60,000 original letters."

The final rule was signed by the Forest Service just hours before the Clinton Administration left office, and the decision was published after the administration had left Washington, D.C.

"The Forest Service, through the promulgation of the roadless rule, designated 58.3 million acres of National Forest land as de facto wilderness area in violation of the Wilderness Act," Brimmer's decision stated, noting that Congress holds the sole power to designate wilderness areas, yet was removed from the process by the Forest Service.

According to Brimmer, the Forest Service usurped congressional authority.

"One of the stated purposes of the Wilderness Act was to assure that no future administrator could make wholesale designations of additional wilderness areas in which use could be limited," Brimmer said. "{Forest Service} Chief Dombeck, acting at the behest of President Clinton, acted directly contrary to this fundamental purpose of the Wilderness Act."

Brimmer wrote that in this exceptional case, "the Forest Service's entire NEPA process was flawed and marred with arbitrary and capricious decisions that resulted from its unreasonably self-imposed unreasonably short deadline for implementing the roadless rule. ... This serious violation of the Wilderness Act, and the removal of Congress from the process of wilderness designation, was an aggrandizement of power by the Forest Service in violation of an unequivocal act of Congress and the United States Constitution. ... In the Forest Service's desire to create a 'legacy' for itself and the Clinton administration through the roadless rule, the Forest Service lost sight of its mission - 'to provide the greatest amount of good for the greatest amount of people in the long run."

Brimmer concluded, "In this case, the Forest Service's designation of 58.5 million acres as 'roadless areas' was a thinly veiled attempt to designate 'wilderness areas' in violation of the clear and unambiguous process established by the Wilderness Act for such designation.

"While the court has always been mindful of the fact that an extraordinary remedy like an injunction should be sparingly used, the undersigned has also been sworn to uphold our laws, like NEPA and the Wilderness Act. The court cannot condone what the Forest Service has done in its rush to provide environmental fame for a President in the last days of his term. The court therefore must find that the roadless rule should be permanently enjoined because allowing the roadless rule to stand, as promulgated, would constitute a judicial acquiescence in a continuing violation of the Wilderness Act."

Brimmer added, "In other words, the Forest Service must start over."

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