Roadless debate goes back before judge

It’ll be deja vu all over again, to use Yogi Berra’s phrase, when U.S. District Judge Clarence Brimmer hears arguments Friday in Cheyenne on the state of Wyoming’s second lawsuit challenging a rule issued by the Clinton administration in 2001 which protects roadless areas in national forests.

LARAMIE -- It’ll be deja vu all over again, to use Yogi Berra’s phrase, when U.S. District Judge Clarence Brimmer hears arguments Friday in Cheyenne on the state of Wyoming’s second lawsuit challenging a rule issued by the Clinton administration in 2001 which protects roadless areas in national forests.

The attorney handling the state's challenge said this week he sees no reason Brimmer would not again rule in the state’s favor, as he did in an earlier lawsuit raising the same challenge.

Senior Assistant Attorney General Bob Nicholas told a panel at the University of Wyoming Law School this week that no new arguments or authorities have been presented in the second go-round that would change the approach to the issues significantly.

The rule, enacted in the final days of the Clinton administration, placed more than 50 million acres of federal land off-limits to new road construction and other development. In 2003, Brimmer ruled that the Clinton roadless rule was invalid nationwide.

Brimmer will hear arguments Friday morning on the state’s new lawsuit, which is being opposed by the federal government and by several environmental groups. Other states have filed "friends of the court" briefs on both sides of the issue.

Jim Angell, an attorney for the environmental law firm Earthjustice in Denver who will represent those groups at the hearing Friday, disagreed with Nicholas’s assessment in an interview Wednesday.

“Much of Judge Brimmer’s opinion in the first suit was based on arguments which were not presented in the briefs in any detail, and we’ve had a chance to present this time a fuller and more accurate picture, so I hope he will be willing to take a closer look at the record,” Angell said.

In the first lawsuit, Brimmer issued a national injunction against the Clinton rule on grounds it violated the National Environmental Policy Act and the Wilderness Act. With the Bush administration now in power, the federal government did not appeal that ruling. But the environmental groups did, and before the 10th Circuit Court of Appeals could hand down a ruling on that appeal, the Bush administration issued a new roadless rule -- the so-called “state petition” rule. The 10th Circuit then decided the appeal was moot and vacated Brimmer’s order.

The state petition rule was then challenged in federal court in California, and a district judge there blocked enforcement of that rule, reviving the 2001 Clinton rule. Wyoming tried unsuccessfully to revive the earlier action, then filed a new action.

The California judge’s injunction, Angell said, is another intervening factor which should affect how Brimmer decides the issues this time.

“Even if Judge Brimmer once again believes that the 2001 rule was adopted illegally, his form of relief should take into account this other injunction so that we don’t have dueling injunctions,” Angell said.

Clay Samford, the U.S. Department of Justice attorney who will present the federal government’s argument Friday, declined to explain Wednesday why the Bush administration was opposing the state’s action this time when it did not appeal the previous ruling.

Angell said the federal government’s brief argued against issuance of any injunction that would reach outside the state of Wyoming.

At the Laramie panel this week, former UW law professor Mark Squillace said the federal government received about 4 million comments during the Clinton roadless rule comment period, nearly all of them favoring the proposal.

Nicholas said the state was challenging the Clinton rule because “it pulled the rug out from under all the forest planning in Wyoming.” He said the rule deprived Wyoming’s people of an opportunity to have local input into forest service decisions.