Court dismisses challenge to Bush roadless policy

Posted: Wednesday, July 13, 2005

After a four-year court battle that overturned a ban on road-building in untouched national forests, environmental groups turned their sights Tuesday on new rules that could open those areas to logging and other development.

The Denver-based 10th U.S. Circuit Court of Appeals dismissed an attempt by environmental groups to restore the Clinton administration's ban, ruling Monday that their appeal became irrelevant when the Bush administration adopted a new rule in May.

The new rule gives states until late 2006 to ask the U.S. Department of Agriculture, which oversees the Forest Service, to either stop or allow road building.

The Tongass National Forest was already exempt from the Clinton-era "roadless rule" contested in the case.

Alaska Gov. Frank Murkowski has no intent at this time to ask the Forest Service to changes its existing management plan for the Tongass, said his spokeswoman Rebecca Hultberg.

Attorney Jim Angell of the Earthjustice Legal Defense Fund said the decision does not end the fight but only "clears the decks" for battles over the new rule. Projects proposed in roadless areas likely would face individual legal challenges, Angell said.

"I think we're going to be back in the bad old days of slugging it out roadless area by roadless area," he said.

"It doesn't really change anything here on the Tongass," said Buck Lindekugel, an attorney with the Southeast Alaska Conservation Council. "They screwed us two Christmases ago by putting rocks in our socks," he said of the previous decision to exempt the Tongass from the Clinton era rule.

The Clinton rule, which put 58.5 million acres of roadless national forests off-limits to logging and other development, had been upheld by the San Francisco-based 9th Circuit Court of Appeals on similar grounds.

The state of Wyoming challenged the ban in Wyoming federal court, which was not bound by the 9th Circuit decision. The Wyoming judge ruled that the Clinton administration had overstepped its authority in effectively creating wilderness areas on U.S. Forest Service lands.

The Wyoming Outdoor Council and seven other environmental groups appealed, and on May 5, the day after the 10th Circuit heard oral arguments, the Forest Service issued a new roadless rule to replace the one that had been overturned.

"Adoption of the new rule has rendered the appeal moot," a three-judge appeals court panel said. "The portions of the roadless rule that were substantively challenged by Wyoming no longer exist."

The rule covers some of the most pristine federal land in 38 states and Puerto Rico. Ninety-seven percent of it is in 12 states: Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.

Western states have taken a variety of steps in reaction.

California Gov. Arnold Schwarzenegger has said he is committed to protecting the health and sustainability of forests.

"In keeping with that commitment and the assurances we have from the U.S. Forest Service, roadless areas in California will remain roadless," he said.

Colorado has created a task force to examine public land that had been covered by the Clinton ban.

Idaho Gov. Dirk Kempthorne has said he would wait until next year to ask the Forest Service to open millions of acres of forest, and has asked counties to make recommendations.

Oregon Gov. Ted Kulongoski, a Democrat, will work with the timber industry and environmentalists to keep current roadless areas protected from logging, said natural resources adviser Jim Myron.

Utah Gov. Jon Huntsman has said he would let the Forest Service take the lead on roadless issues.

Montana Gov. Brian Schweitzer, a Democrat, has said he found "no compelling reason" to build more roads in forests. Tuesday, he said he saw little significance in the appeals court ruling.

"This is a long road and this is just another decision along the way," he said.

Schweitzer said he has started meeting with county commissioners in western Montana, where most of the roadless areas are located, to get their suggestions.

Washington Gov. Christine Gregoire, a Democrat, said she was disappointed with the ruling.

"We will continue to focus on working within the Bush rule to protect most, if not all, of our national forest roadless areas," she said.

Forest Service spokesman Dan Jiron said the agency looks forward to working with governors on roadless areas.

• Juneau Empire reporter Elizabeth Bluemink contributed to this story.

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