Fate of roadless rule back before judge | AspenTimes.com

Fate of roadless rule back before judge

Ben Neary
The Associated Press
Aspen, CO Colorado

CHEYENNE, Wyo. ” Wyoming’s attempt to overturn a Clinton-era ban on logging and other development on millions of acres of federal forests nationwide is attracting opposition from other states who say the ban should stay.

California, Montana, New Mexico and Oregon have filed papers in federal court here arguing that the Clinton roadless rule should remain in effect, at least outside the boundaries of Wyoming.

The Clinton roadless rule has spawned several lawsuits ever since it was enacted in the final days of that administration. It placed more than 50 million acres of federal land off-limits for new road construction and other development.

The four states opposing Wyoming’s challenge to the Clinton rule have intervened in a lawsuit pending before U.S. District Judge Clarence Brimmer of Cheyenne. This is Brimmer’s second time presiding over a Wyoming challenge to the ban.

In response to Wyoming’s first legal challenge, Brimmer in 2003 issued a nationwide ruling that the Clinton rule was void. Environmental groups appealed that ruling to the 10th U.S. Circuit Court of Appeals in Denver.

However, before the appeals court could issue a ruling on whether Brimmer’s decision was correct, the Bush Administration issued a new roadless rule superseding the Clinton rule. When the Bush rule came out, the Denver appeals court decided it didn’t need to rule on the appeal challenging the Clinton rule and dismissed the case as moot.

But the Clinton rule came back to life last fall when a federal judge in California kicked out the Bush roadless rule.

In response, the Wyoming Attorney General’s Office asked the Denver appeals court to revive Brimmer’s old case and issue a ruling whether the Clinton rule should stand. But the Denver court this month declined to take up Brimmer’s old case.

That leaves Wyoming back in Brimmer’s court, pushing a new challenge to the Clinton rule.

Wyoming Attorney General Pat Crank said this May that Wyoming Gov. Dave Freudenthal’s administration believes that the Clinton rule fails to give forest managers and citizens in the state the flexibility they need to make management decisions.

“The major thing is that you cannot plan multiple forest use from the banks of the Potomac,” Crank said. “One size does not fit all. Governor Freudenthal has always believed that national forest planning should occur at the national forest level.”

But in their filings last week, California, Montana, New Mexico and Oregon argue that Wyoming’s case threatens them. The other states argue that they have substantial roadless areas, “that will be irreparably harmed by permanent removal of the Roadless Rule’s protections.”

The four states note that they were successful in California legal action that reinstated the Clinton rule. They say they that if Brimmer rules again that the Clinton rule is unlawful, he should limit his ruling only to Wyoming. The states say that to issue a wider ruling, as the judge did a few years ago, would harm the states’ interest in protecting their own roadless areas from development.

Wyoming’s new challenge to the roadless rule is also attracting opposition from environmental groups.

Tim Preso, lawyer with the Earthjustice group in Bozeman, Mont., is one of several lawyers from his firm representing conservation groups in the lawsuit interested in preserving the roadless rule.

Preso said Thursday that his group had agreed with Wyoming that the Denver court should decide the original appeal.

Asked whether his group shares the states’ request that Brimmer limit any order voiding the rule to Wyoming alone, Preso said, “We don’t think that he should issue any injunction at all, nor should he issue any finding of invalidity at all.”

Preso said that leaving areas roadless allow the option of authorizing development in the future. But he said, “Once it’s developed, you can’t go back and make it roadless.”

Preso said Wyoming itself has much at stake in preserving the roadless rule. He said that about half of the 670,000-acre Yellowstone grizzly bear recovery zone, most of which is in the state, would be subject to development under forest plans in place before the roadless rule went into effect.

Preso said he’s also not hearing from hunters or others in Wyoming who are pushing to build roads into roadless areas.

“Some of those places are places where they got their first elk, and they want to take their kids there,” he said.