Roadless-less 

A semi-retired judge tears apart the historic campaign to protect unroaded forests

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Storey worked with Green Corps, a "graduate school for environmental organizers" run by the U.S. Public Interest Research Group; PIRG generated a torrent of postcard comments across the country. Sporting-goods stores and manufacturers—organized as the Outdoor Industry Association—passed out postcards to their customers. The most surprising player was Aveda Corp., which sells eco-friendly beauty products and works with salons and spas nationwide. Aveda used its network to persuade more than 80,000 people to sign a petition in support of the roadless rule; many did so while getting their hair or nails done.

The campaign also lined up sympathetic scientists and religious leaders. It conducted polls that posed general questions about forest protection, finding widespread support for the "motherhood and apple pie" vision, and fed those to newspaper editorial writers. And it organized networks of activists to attend hearings and provided vans to haul them. Turner describes how the enviros outfoxed their opponents in a Missoula hearing: "The timber industry had sent truckers to pack the hall, first providing a meal at 'the world's largest picnic table.' So the pro-roadless activists got to the hearing room early, filled all the chairs, and signed up for all the speaking slots. The truckers were reduced to chanting slogans outside, on the street. [Journalists] reported that the timber industry representatives chose to demonstrate outside and not participate in the hearing."

More than 1.6 million total comments swamped the Forest Service—"the most extensive public involvement in the history of federal rulemaking," according to The Wilderness Society. More than 90 percent were mass-mailed boilerplate comments supporting the rule one way or another.

The final version of Clinton's rule was published in the Federal Register on Jan. 12, 2001, eight days before Clinton left office. It was cleverly written. It banned logging as well as road construction, with exceptions for public safety or ecosystem health. But it didn't ban off-road driving or mining; the enviros believed they lacked the legal foundation to address those issues in an administrative rule. "We wanted as much protection as we could get that would be legally defensible," Rait says.

In effect, the rule created a new category of federal land: Wilderness Lite. When roadless acres were combined with designated wilderness, about half the total area of the national forests would be protected.

The typical pattern of rage erupted in response. Republican Idaho Sen. Larry Craig, a timber industry champion, called the idea "a hand grenade rolled under my door." Other Western Republicans in Congress denounced it, as did Republican governors, rural county commissioners, timber companies and people who said they preferred access and flexibility to increased federal control.

Most rural Westerners apparently opposed it. More than a hundred locals attended a Forest Service roadless meeting in Grangeville, Idaho in December 1999, and "most (over 80 percent) were opposed...many were angry at the 'administration' and the Forest Service for the 'top down' nature of the proposal," reported a Forest Service staffer. "Nearly all (50) speakers opposed the initiative," reported a staffer at a hearing in Dillon, Mont., the same month. Meanwhile, the West's college towns and metro areas were either divided or approving. People from other regions generally favored regulating Western public land.

Idaho's Craig and Rep. Helen Chenoweth-Hage, another Republican, held hearings in Congress that examined and blasted the rulemaking. "Wise Use" movement leader Ron Arnold called it "the iron triangle" of green foundations, green groups and Clintonites. They spouted shrill rhetoric about yet another enviro conspiracy to destroy the rural West.

The leading critics failed to acknowledge the impacts of logging and mining and other industries, or the risks of rural communities locking themselves into undiversified boom-and-bust economies. They ignored the way oil and coal can get presidents such as George W. Bush to shape regulations in their favor. They didn't mind the iron triangles formed by big corporations, right-wing foundations and libertarian think tanks that use money and spin to influence federal land-use policies.

Instead of inspiring an honest dialogue that admitted the blind spots on both sides, the roadless rule fell into court battles. At least nine lawsuits in various federal courts have challenged either the Clinton rule or a 2004 Bush rollback of it. And the courts seem determined to carry on the political wrangling.

When Idaho's Republican government, tribes and other interests pushed lawsuits against the rule in 2001, for instance, a Republican judge in Idaho (appointed by a Republican president) quickly issued a preliminary injunction, suspending the rule until a trial could be held. When the enviros appealed that injunction to the California-based 9th Circuit Court, a three-judge panel split along party lines: The panel's two Democratic judges ruled for Clinton's rule, while the panel's lone Republican—Andrew J. Kleinfeld, an Alaska native with a Harvard law degree originally appointed to the bench by President Reagan—wrote a scathing dissent, criticizing Clinton's rule as a "bizarre Orwellian" process that illegally "shoved through... a massive policy change."

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Ronald M. Gould, the 9th Circuit judge who wrote the 2002 majority opinion on the Idaho case, thinks like environmentalists. He praised "our priceless national forests," quoted a United Nations report on global deforestation and observed: "Roadless areas [are] some of the last unspoiled wilderness [providing] not only sheltering shade for the visitor and sustenance for...diverse wildlife but also pure water and fresh oxygen for humankind." Clinton appointed Gould in 1999, when the roadless rule was being created. And Gould's opinion continues to be the foundation for deciding roadless lawsuits in the 9th Circuit's territory, which includes more than half the Western states.

U.S. Magistrate Judge Elizabeth Laporte, in Northern California's federal district court, quoted liberally from Gould's opinion in her 2006 decision throwing out Bush's rollback. Laporte also tends to agree with environmentalists; in other cases, she's found "disturbing evidence of environmental degradation" from livestock grazing in wilderness, "whales, dolphins and other magnificent mammals that still live in the ocean [being] irreparably" harmed by Navy sonar, and farm irrigation causing an "alarming" reduction in sturgeon habitat.

Brimmer is a Republican judge; he was active in the state party before Reagan appointed him to the bench. He got drawn into the roadless rule in 2001, when Wyoming's then-Republican government sued the Forest Service. In that case and its descendants, Brimmer effectively threw out the Clinton rule three times—in 2003 and 2008 as well as last June.

Brimmer said that Clinton's rule-making violated the National Environmental Policy Act (NEPA)—the bedrock law for environmental impact statements—because it had a "predetermined" outcome and only pretended to be based on analysis and public comment. Brimmer also found that Clinton's rule violated the Wilderness Act by establishing de facto wilderness areas without Congress.

"In its rush to give President Clinton lasting notoriety in the annals of environmentalism, the Forest Service's shortcuts and bypassing of the procedural requirements of NEPA [have] done lasting damage to our very laws designed to protect the environment," says one of Brimmer's decisions. The roadless rule was "a once-over lightly...without taking the 'hard look' that NEPA requires."

Brimmer's background made it easy for enviros to see his decisions as politically motivated. But the legal quagmire around the rule is fraught with misunderstandings. Many people see Laporte and Brimmer as dueling judges, issuing contradictory decisions on Clinton's rule. Actually, Laporte focused on Bush's rollback, which was done with no EIS—a process so bogus that no judge has backed it.

Brimmer and lawyers for Wyoming say that he's the only judge whose decisions are based on a full review of the mountainous "administrative record"—the official term for all the federal documents related to Clinton's rule-making that can be made public. And in that record justification for Brimmer's decisions is piled high.

Campaign leaders and top Clintonites—most often the CEQ's Frampton—met in D.C. at least six times during 1999 and 2000 to discuss making the rule, according to federal records. They considered "talking points," ads the campaign planned to run, and the need for a "presidential event and memo" to kick off the Forest Service process.

"The outstanding issue/interest is having POTUS (President of the U.S.) roll out an announcement regarding preservation of forest lands and leaving that as one of his lasting legacies..." said an e-mail summing up an August 1999 meeting.

The campaigners sent a fax to Frampton before the August meeting, suggesting the wording for Clinton's announcement, and then brought those suggestions—labeled "a draft"—to the meeting. Written by three Wilderness Society leaders, the draft opens with, "At the beginning of this century, President Theodore Roosevelt..." Clinton posed on a Virginia mountain to deliver his roadless speech and issued his memo two months after that meeting. The speech and memo, ordering the Forest Service to develop a rule, sounded similar to the environmentalists' draft and shared the same goal. Clinton's first words were: "At the start of this century, President Theodore Roosevelt..."

The e-mail summing up the August meeting also noted that the White House was informed that "the campaign has placed Green Corps organizers" in a handful of key states "to keep Western Dems copacetic or neutral and Republicans split..." The Clintonites also asked the campaigners to drum up public comments, according to Turner.

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