Roadless ruckus

by Cat Urbigkit

Jim Trenholm of Roy, Utah, is long retired from transportation planning within the U.S.D.A. Forest Service, but his interest in seeing the government agency care for the land and serve the people hasn't ended. That's why he's been waiting for responses from public officials about the Clinton Administration's Roadless Rule and the subsequent overturning of the rule by federal judge Clarence Brimmer of the U.S. District Court of Wyoming.

Trenholm's interest hasn't wavered, and he has watched as the issue passed through the final days of the Clinton Administration to the Bush Administration, and from a Republican Wyoming governor to a Democratic governor. While Governor Jim Geringer's administration contested the rule in federal court and won, the current administration apparently has much different views.

L. Lee Windsor, Jr., policy analyst for Governor Dave Freudenthal, recently responded to Trenholm's letters on behalf of Freudenthal.

He wrote: "In July 2003, due in large part to an inadequate federal defense of the Roadless Area Conservation Rule, Judge Clarence Brimmer of the U.S. District Court in Wyoming decided that the RACR violated both the National Environmental Protection Act and the Wilderness Act of 1964 and ruled in favor of the timber industry by enjoining the rule nationwide. However, because the Wyoming court's jurisdiction ends at the state line, the rule is still the law of the land and enforceable outside of Wyoming. Since the Bush Administration failed to contest this decision, it fell to conservationists and environmental groups to appeal. A decision by the Tenth Circuit Court is expected sometime this year."

Windsor continued: "For his part, Governor Freudenthal feels that it is ironic that the states are being asked to support the Healthy Forests Initiative while simultaneously being asked to deal with a piecemeal fix to the Roadless Area Conservation Rule. ... The governor is not alone in recognizing that it is contradictory to the Healthy Forests Initiative to leave untouched the inventoried roadless areas - 58 million acres - that often coincide with those very areas identified as old, diseased, and fuel-laden.

"In summation, these two directives, the Healthy Forests Initiative and the RACR address nearly identical circumstances, yet flatly contradict each other: flexibility provided in the former, with rigidity instead in the latter. The governor believes that the Healthy Forests Initiative is an entirely appropriate approach to the hazardous conditions that prevail in Wyoming's national forests. However, he cannot support it until there is some common-sense adjustment to the Roadless Area Conservation Rule which belies all that the initiative intends to achieve."

Windsor's letter drew the ire of Cheyenne attorney Harriet Hageman, who served as legal counsel for the Geringer administration in getting the roadless rule overturned.

Hageman pointed out: "After extensive briefing and argument, Judge Brimmer ruled that the roadless rule violated NEPA and the Wilderness Act. Because those violations were so serious and could not be corrected, Judge Brimmer did not find it necessary to address our other statutory challenges. Judge Brimmer entered a permanent injunction against the rule, thereby preventing its implementation throughout the United States."

After reviewing Windsor's letter, Hageman sent her own response to Trenholm. She wrote: "Considering the fact that obtaining an injunction against the roadless rule was a great victory for Wyoming (and many other States, including Idaho, Alaska, North Dakota, Colorado, etc.), I was surprised and dismayed when I received a copy of the letter that Governor Freudenthal's office sent to you. In general, the entire tenor of the letter seems to undermine the importance of Judge Brimmer's decision, rather than embrace it. The letter also contains numerous errors and misstatements that should be addressed.

Hageman wrote: "Contrary to State's letter, the roadless rule was vehemently and exhaustively defended, not only by the Department of Justice, but by eight intervening environmental groups (Wyoming Outdoor Council, Wilderness Society, Sierra Club, Biodiversity Associates, Pacific Rivers Council, Natural Resources Defense Council, Defenders of Wildlife, and National Audubon Society). The briefs filed supporting a nd challenging the roadless rule ran to literally hundreds of pages and hundreds of documents from the administrative record were attached to the parties' pleadings. All of the parties presented their absolute best arguments, both in defense of and in opposition to the rule. This case was so strongly defended that the environmental groups actually filed a motion for writ of mandamus against Judge Brimmer requesting the Tenth Circuit Court of Appeals to prohibit him from allowing discovery in this case. You can be assured that there was as strong of a defense waged as was possible."

Hageman continued: "The State's letter also indicates that Judge Brimmer's 'ruled in favor of the timber industry' . . .." That statement is simply untrue. The 'timber industry' was not a party to our litigation. Judge Brimmer ruled in favor of the state.

Hageman said: "The letter goes on to state parenthetically that 'however, because the Wyoming court's jurisdiction ends at the state line, the rule is still the law of the land and enforceable outside of Wyoming.' Again, that is untrue. Judge Brimmer entered an injunction against the rule because it violated NEPA and the Wilderness Act. That ruling applies to the roadless rule throughout the United States. Because the roadless rule was adopted in violation of NEPA, and because it substantively violates the Wilderness Act, it cannot be enforced anywhere in the country."

Hageman wrote: "The letter also appears to criticize the Bush administration for failing to contest Judge Brimmer's decision. Such veiled criticism is misplaced. The fact is that roadless rule was adopted in violation of NEPA and violated the Wilderness Act. An appeal will not change that fact."

Trenholm's response was more generous. He thanked Windsor, "Although it contained 'errors and misstatements,' it sure beats 'sin by silence' ... " referring to the Abraham Lincoln quote on the Sublette Examiner flag: "To sin by silence when one should protest makes cowards out of men.