Still no resolution on roadless rule

The next shot will soon be fired in the battle over a rule that would restrict new roads on National Forests. While the issue is national, Wyoming residents should note that the state will play a featured role in the next court battle.

The next shot will soon be fired in the battle over a rule that would restrict new roads on National Forests. While the issue is national, Wyoming residents should note that the state will play a featured role in the next court battle.

On Friday morning, the State of Wyoming will appear before U.S. District Court Judge Clarence Brimmer, in Cheyenne and argue that the federal government unlawfully promulgated the so-called “Clinton roadless rule.”

Brimmer already has ruled against the federal government regarding the rule. Another judge, in a different jurisdiction, has since re-instated the rule.

Oddly enough, the federal government under the Bush administration will be in Cheyenne to defend how the rule was created, despite the fact that administration officials don’t want to apply the rule.

So it goes with a hot-button issue that has been extensively litigated in a variety of courts and jurisdictions, participants in a panel discussion said, Tuesday evening at the University of Wyoming College of Law. The discussion of the roadless issues was sponsored by the Natural Resources and Environmental Law Club at the college, as a part of an annual Law Week.

University of Colorado professor Mark Squillace, who moderated the discussion, said the issue was ripe for review by the U.S. Supreme Court. Different jurisdictions have been coming up with different approaches to the legality of the rule originally issued by the Clinton administration.

“This could end up in the Supreme Court, but it probably won’t be there before the next presidential election,” Squillace said. “Where this thing ends up might depend on who wins that election. We could litigate this thing forever. I wonder if the litigation will matter after the election in 2008.”

Squillace and others at the event said the issue is one of broad policy concerns that would be better resolved by Congress than the courts.

So why does the State of Wyoming insist on remaining actively involved in the roadless issue?

Bob Nicholas, of the Wyoming Attorney Generals Office, said that the Clinton rule shuts out local involvement in favor of rulemaking at a national level.

“Wyoming people and Wyoming communities want as much local input and control as possible with National Forest lands,” said Nicholas. “What the Clinton rule did was just the opposite. It pulled the rug out from under all of the forest plans that had been developed in Wyoming.”

While the U.S. Forest Service uses a forest planning process, with many opportunities for local input, Nicholas said the roadless rule was imposed from above with very little chance for Wyoming people to give input.

As a legal strategy, the State of Wyoming has decided to focus on attacking not the substance of the roadless rule, but the manner in which it was implemented.

According to Nicholas, the federal government basically rushed the rule into effect, failing to properly study the impacts of the rule and failing to really seek public input.

“Often, it can take years, as many as six years, just to get a timber sale approved,” Nicholas noted. “Here, with the roadless rule, they did the whole thing in about 10 months.”

“We’re using NEPA (National Environmental Policy Act) to say that it is not fair,” he said. “We think that they have to explore the impacts on the ground. The whole purpose of NEPA is to inform people. We want to have informed decisions.”

It is another oddity of this issue that the State of Wyoming is turning to NEPA, often closely identified as a tool for environmental protection, to try to defeat the roadless rule.

There are, however, other sides to this issue.

“The roadless rule is good for wildlife, good for people and good for Wyoming’s economy,” according to Lisa Dardy McGee, of the Wyoming Outdoor Council.

McGee counters the state’s contention that local forest planning is a better approach than a top-down federal policy. There are continuing pressures to compromise in the planning process to accommodate a wide variety of interests.

“As a result, roadless areas have been slowly whittled away under forest planning,” she said. “We need a national rule instead of local rules for national forests.”

According to McGee, in the years since the Clinton administration first proposed the rule, most Western states have come around to support protecting roadless areas.

Colorado, in fact, is petitioning for protection of roadless areas right now, not under the Clinton rule but under normal procedural rules of the federal government.

“If Wyoming wins this lawsuit, we will just be in a real quagmire,” she said. “Right now, it has been a procedural question. I’d like the state to come out and take a position on roadless areas.”

McGee contends that roadless areas benefit recreation, the environment and ultimately Wyoming’s economy, which is tied to tourism, hunting and other outdoor recreation.

“According to a study funded by the Wyoming Business Council, tourism brings $2 billion into Wyoming each year,” she said. “They aren’t coming to Wyoming to see the opera. They are coming to enjoy the outdoors.”

Others participating in the panel discussion represented the timber industry and the U.S. Forest Service. Among the concerns they expressed were the negative impacts a roadless rule would have on forest health and the ability to manage forests that are experiencing massive beetle kills.

Bark beetles, in fact, have affected about half of the timber stands on the Medicine Bow National Forest, according to Forest Service officials. However, the forest plan for the Medicine Bow Forest only identified 17,000 acres of roadless area (out of 320,000 acres of total roadless area) that are suitable for timber harvest.

“We’ve had 140 years of timber harvest on the Medicine Bow National Forest,” noted Mary Peterson of the Medicine Bow-Routt National Forest. “There aren’t many roadless areas. It is a pretty roaded forest. Many of the roadless areas just aren’t suitable for harvest because of soil type or other considerations.”