Roadless Rule Redux: Wyoming Federal Court Enjoins Roadless Rule (Again)

The long running dispute over the Clinton-era “Roadless Rule” took yet another turn last week, when a federal court in Wyoming once again enjoined its enforcement. The Roadless Rule prohibits logging, road building, road re-building and other development on nearly 60 million acres of inventoried roadless federal land. A “lightening rod for controversy,” the rule has been struck d

The long running dispute over the Clinton-era “Roadless Rule” took yet another turn last week, when a federal court in Wyoming once again enjoined its enforcement.[1] The Roadless Rule prohibits logging, road building, road re-building and other development on nearly 60 million acres of inventoried roadless federal land.[2] A “lightening rod for controversy,”[3] the rule has been struck down and resurrected in the courts, endorsed and attacked by federal legislators, challenged by the forest and mining industries, replaced by the United States Forest Service (“USFS”) with the State Petitions for Inventories Roadless Areas Rule (“State Petitions Rule”)[4] and defended by environmental groups. The latest chapter in this ongoing legal battle won’t be the last.

Background

In the 1970s, the USFS inventoried roadless areas larger than 5,000 acres within the National Forest System. In 1999, President Clinton directed the Forest Service to develop a plan that would protect the then-remaining inventoried roadless areas. Following environmental review under the National Environmental Policy Act (“NEPA”)[5] and biological analysis under the Endangered Species Act (“ESA”),[6] the USFS issued the final Roadless Rule on January 5, 2001, less than two weeks before President George W. Bush took office.[7] The Roadless Rule “prohibit[ed] road construction, reconstruction, and timber harvest in inventoried roadless areas” on the grounds that “…they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics.”[8] It put an immediate stop to activities that posed, according to the USFS, the greatest risk to the social and ecological values of inventoried roadless areas.[9]

The First Injunction: Roadless I and Roadless II

After the Ninth Circuit blocked attempts by Idaho and the Kootenai Tribes to enjoin the Roadless Rule shortly after it was enacted,[10] the State of Wyoming filed a similar challenge in Wyoming federal district court. In July 2003, Judge Brimmer ruled that the USFS violated NEPA by failing to conduct an adequate cumulative impact analysis and by failing to prepare a supplemental environmental impact statement (“EIS”) that addressed new information.[11] He also determined that the Roadless Rule violated the Wilderness Act because it permitted the Forest Service to establish its own “de facto administrative wilderness” through rulemaking.[12] Consequently, Judge Brimmer set aside the Roadless Rule as inconsistent with the Administrative Procedure Act (“APA”), and issued a nation-wide permanent injunction, prohibiting the USFS from implementing it.

A collection of environmental groups who intervened on the USFS’s behalf appealed the Roadless I ruling to the Tenth Circuit.[13] However, on May 5, 2005, one day after the Tenth Circuit heard oral arguments, the Forest Service replaced the Roadless Rule with the State Petitions Rule, which allowed state governors to seek “establishment of or adjustment to management requirements for National Forest System inventoried Roadless areas within their States.”[14] Because the adoption of the State Petitions Rule by the USFS superseded the Roadless Rule, the Tenth Circuit dismissed the Roadless I injunction appeal as moot.[15] On January 3, 2006, by mandate from the Tenth Circuit, the district court dismissed Wyoming’s challenge without prejudice.

The California Litigation: Roadless Rule “Surreptitiously Re-Instituted”

After the USFS adopted the State Petitions Rule, several states challenged the rule in federal court for the Northern District of California. In October 2006, that court, by order of U.S. Magistrate Judge LaPorte, held in California ex rel. Lockyer v. U.S. Dep’t of Agric.[16] that the State Petitions Rule was promulgated in violation of NEPA and the ESA because the USFS had not performed a programmatic EIS for repealing the Roadless Rule and adopting the State Petition Rule. Magistrate Judge LaPorte, noting that “courts should reinstate the prior rule upon invalidation of its replacement,” re-instated the Roadless Rule in place of the State Petitions Rule.[17]

Two days after the California court struck down the State Petitions Rule and re-instated the Roadless Rule the State of Wyoming renewed its challenge, requesting that the Wyoming federal district court reinstate its 2003 injunction. The court denied the State of Wyoming’s Motion for Relief from Judgment on the grounds that “[t]here has been no dramatic change in controlling authority, no significant new evidence previously unavailable, and no blatant error” that would justify reopening the matter.[18] Judge Brimmer, however, made clear that he disagreed with the Northern District of California’s ruling, stating that “this Court is troubled and questions the authority of the California court to raise [the Roadless Rule] back to life and force. Clearly, a California Magistrate Judge could have no right, by way of appeal, to reverse this Court’s decision, which still stands, even though the Tenth Circuit ordered the case dismissed.… Judge LaPorte clearly did not have the authority … or the power to revive a once dead rule.”[19]

On June 15, 2007, Wyoming turned to the Tenth Circuit, requesting that it recall the mandate it issued in Roadless II, in which it instructed the federal district court sitting in Wyoming to dismiss Roadless I as moot.[20] On July 5, 2007, the Tenth Circuit denied this motion, instead instructing the Federal District Court of Wyoming to address possible comity issues created by the California Court’s decision in Lockyer, in the Roadless III litigation, described below.[21]

The Most Recent Outcome from Wyoming: Roadless III

Wyoming Federal District Court Judge Brimmer used even stronger language to express his views in his most recent ruling on the issue, expressing “shock” and “serious reservations” about the California court’s actions and deriding the USFS for “flagrantly and cavalierly railroad[ing] this country’s present environmental laws in an attempt to build an outgoing President’s enduring fame.”[22]

This latest opinion generated by the Roadless Rule controversy results from Wyoming’s renewed challenge, filed on January 12, 2007, to the rule. The complaint here was nearly identical to the complaint filed in Roadless I.[23] Further, the court supplemented the record with the entire district court record for Roadless I, and the parties incorporated their previous merit briefs into their supplemental briefs. Accordingly, the court adopted many of the same factual findings and conclusions of law from Roadless I, with Judge Brimmer emphasizing that the only real question was whether the remedy from Roadless I was still proper.[24]

Judge Brimmer first rejected the USFS’s arguments that Wyoming lacked standing to bring the Roadless Rule challenge. He found that Wyoming demonstrated actual or threatened harm by showing “a real and substantial possibility that forest disease, insect infestation, and wildfires from the non-managed National Forests in Wyoming will spread into Wyoming’s state forests that are contiguous to those National Forests.”[25] The Roadless Rule, according to the court, does not have an exception that would permit the USFS to build a road into an inventoried roadless area to treat insect infestation or clear blowdowns to prevent wildfires.[26] Judge Brimmer also found that Wyoming demonstrated a procedural injury by the USFS’s failure to comply with NEPA.

The majority of Judge Brimmer’s opinion then re-iterated the reasoning from Roadless I to find that the USFS violated both NEPA and the Wilderness Act by promulgating the Roadless Rule.[27] After lambasting the Clinton administration for bypassing the procedural requirements of NEPA in order to “give President Clinton lasting notoriety in the annals of environmentalism,”[28] and finding that the USFS and the Secretary of Agriculture violated the Wilderness Act by using the Roadless Rule to “establish their own system of de facto administrative wilderness [designation],” Judge Brimmer turned his attention to the appropriate remedy.

The court set up its approach to a remedy by noting that since its decision in Roadless I, the “roadless initiative landscape has changed considerably.”[29] As advised by the Tenth Circuit, Judge Brimmer examined the disparity between the issue before him and the Lockyer decision through the lens of comity, or the respect owed by one court to the decision made by another court.[30] Finding that the substantive issues between Roadless III and Lockyer were “completely and entirely different” because they addressed two separate rules, Judge Brimmer found that “the purposes of comity are upheld as there is no fear of duplicative litigation, both the State Petitions Rule and the Roadless Rule are being uniformly and separately resolved, and therefore each court is not trenching on the other’s jurisdiction.”[31] Having established that he was not violating the principles of comity, Judge Brimmer emphasized that, unlike the Northern District of California, the District Court of Wyoming was reviewing the Roadless Rule on the merits, and therefore had full authority to grant any remedy it deemed proper.[32]

That remedy came in the form of the second permanent injunction against the Roadless Rule.[33] In applying the standard for granting such an extraordinary remedy, Judge Brimmer wrote first that the court could not “rightfully remand that case to the Forest Service without causing violence to the undersigned’s conscience,” because “[f]or every day the Roadless Rule is on the books, the opportunity exists for a continuing violation of the Wilderness Act.”[34] Second, Judge Brimmer found that Wyoming had established the requisite elements for issuing an injunction by showing that: 1) the USFS had violated NEPA and the Wilderness Act; 2) the Roadless Rule created a greater risk for beetle infestation and catastrophic wildfire; 3) the violations of NEPA and the Wilderness Act outweighed the “mere inconvenience imposed on the Forest Service” by requiring it to “start again from square one;” and 4) the permanent injunction was not adverse to the public interest.[35]

With final emphasis on the procedures required by NEPA and the Wilderness Act, Judge Brimmer concluded by stating “the Roadless Rule, 36 C.F.R. §§ 294.10 to 294.14 [is] permanently enjoined, for the second time.”

Reactions and Implications

Environmental groups have already stated their intent to appeal Roadless III to the Tenth Circuit, asserting that the Roadless Rule “is not in any way overturned or compromised by Judge Brimmer’s decision.… [What] it does do is create two conflicting court decisions in different federal courts, different states, both issuing decisions with nationwide impact.”[36] In contrast, Wyoming Attorney General Bruce Salzburg noted concerns over the beetle infestation and wildfires in his approval of the ruling by Judge Brimmer, and stated that, in light of the likely appeal, “we consider the matter still in litigation.”

While the litigation continues, the states of Idaho and Colorado have an immediate concern – they are currently working their way through a process to develop state rules that allow logging and road building in those states’ national forests. Because the Lockyer decision invalidated the State Petitions Rule, the governors of these states have had to petition the USDA under the APA in order to avoid the prohibitions of the Roadless Rule.[37] While Idaho, with 9.3 million acres of roadless lands, had stated its intent to issue a final draft rule in September, the most recent decision from Wyoming creates a more complicated legal landscape.

Conclusion

With a near-certain appeal of Judge Brimmer’s decision to the Tenth Circuit, and an already pending appeal of Magistrate Judge LaPorte’s decision to the Ninth Circuit, the only sure thing for the Roadless Rule is that this contentious debate over management of tens of millions of federal wilderness acres will continue.

For more information on the Roadless Rule litigation, please contact any member of Marten Law Group’s Environmental Litigation Practice Group.