RoadlessBigChange-Court

By JOE GROSSMAN, UPI Science News

BOISE, May 5, (UPI) - - A court-ordered status report on the roadless rule, filed in federal court yesterday afternoon by the U.S. Department of Justice, indicates that the rule could be substantially modified or even negated.

In the report, the Bush Administration says that it will address the concerns of the court and the plaintiffs who are suing to have the rule overturned. This will be done by reopening the rule for amendments that would allow each of the 155 national forests to develop its own approach to roadless areas. However, it appeared from remarks yesterday by Forest Service Chief Dale Bosworth that a regional review of the individual plans could occur.

The status report makes it clear that the Bush administration sympathizes with the plaintiffs in the federal court case, perhaps foreshadowing the future course of action. "Furthermore, although the (U.S. Department of Agriculture) shares plaintiffs' concerns about the potential for irreparable harm in the long-term under the current Rule, it would appear unlikely that such harm will occur in the short-term given the lengthy planning horizons needed for activities in inventoried roadless areas," the report said.

One of the driving forces for the creation of the roadless rule was to institute a nationwide roadless policy in national forests. The court documents make it clear that the intent of the administration is to undo this approach.

The roadless rule devised under the Clinton administration would designate 90,000 square miles (233,000 sq. km) of national forest, about one-third, as roadless. Essentially all logging, mining or drilling would be prohibited and no roads could be maintained or built in such areas.

Forest Service spokesperson Heidi Valetkevitch told United Press International today that Chief Bosworth "does not envision significant changes. They are more of a revision, a modification to the original rule, based on the concerns that we've heard. But it's probably a little too early. I think in June we'll get a better idea on what the amendments might look like."

Not everyone is convinced that there will not be major changes. An attorney for Earthjustice Legal Defense Fund, Doug Honnold, fighting against any suspension or change in the rule, commented to UPI today about the report filed yesterday in court.

"There's a lot of mush there. If I were Judge Lodge or Boise Cascade or the State of Idaho, I would wonder what they were up to," Honnald said referring to the judge hearing the case and a number of the plaintiffs attempting to overturn the rule.
"It's pretty opaque. It doesn't really describe with any particularity what approach they intend to take when you look on balance at all of the document. It seems pretty clear that they want to gut the roadless rule by instead of having a consistent nationwide wide policy to have a policy that is up for grabs in every national forest. But precisely how they do that and what the details of that proposal will be nobody knows, or at least nobody outside of the White House knows," Honnold said.

Forest Service Chief Dale Bosworth said yesterday that, "A lot is going to depend on the procedural amendment that we're coming up with. But I can sort of envision, I guess, that there would be a possibility of using the forest plans, the revision and amendment process, to make changes to incorporate local decision-making."

Neil Lawrence, an attorney defending the rule in federal court for the Natural Resources Defense Council told UPI this afternoon that, "Unfortunately for the public, and unfortunately for the environment, this would be a very easy rule to gut on the sly and I think that there are plenty of signs that's where they are headed. . . . In the last analysis it's probably up to Bosworth to produce something that the White House is not going to have hung around its neck."

The way the rule due to go into effect May 12 is written, very small changes could negate the national character of the rule.
In their court filing on Friday, the government said that, "Promulgating a single regulation that fairly governs the management of millions of acres of national forest across America is a difficult task. It best can be accomplished where the regulation provides flexibility to review the diverse circumstances of individual forests."

According to Lawrence, this approach could completely reverse the existing rule. The current rule is designed to eliminate flexibility on a forest-by-forest basis regarding road building and timber harvests in certain areas. "If you restore flexibility of individual forests on timber harvest and road building, you destroy the rule," Lawrence told UPI.
Plaintiffs in Judge Edward Lodge's federal courtroom in Idaho have asked for a preliminary injunction to stop the rulefrom going into effect.

Agriculture Secretary Ann M. Veneman said yesterday that, "The U.S. government is opposing the issuance of the preliminary injunction with the specific statement that we are going to go forward with amendments to the rule to hopefully correct what the court has pointed out may be deficiencies in the current rule." Veneman said, "if we don't do something to amend this rule, the court may throw it out in its entirety."

According to attorneys Honnald and Lawrence such an injunction against the rule going into effect May 12 is what the government actually fears most. If the federal judge in Idaho issues a preliminary injunction, those striving to preserve the rule will immediately appeal the judge's injunction to the 9th Circuit Court with the result that the case will be heard.
Defenders of the rule are confident they would prevail in the circuit court and maintain that all applicable U.S. law was faithfully followed in establishing the rule.

Those seeking to overturn the rule maintain that five major federal acts were violated, most seriously the National Environmental Policy Act.

The fact that the administration said they will review and revise the rule makes it difficult for plaintiffs Boise Cascade, snowmobilers the state of Idaho or any of the five other cases against the rule to maintain that they will suffer the "irreparable harm" that it is necessary to demonstrate in order to get the preliminary injunction - - the reason being that Bush administration changes in the rule may remove the now anticipated harm that would occur from imposition of the current rule.
Judge Lodge has made it clear that he does not like the rule and the possibility they he may issue a preliminary injunction is still quite real.

On the timber front, according to attorneys defending the rule, there are no immanent harvests planned that would be stopped by the rule. Much of the national forest mission is to provide access and timber from national forests to commercial logging operations. The forest service pays for roads to access these harvests with tax payer money, a matter of bitter dispute for many years.

One of the largest areas of controversy concerns whether not roads are needed for fire safety. The Forest Service concluded when making the rule that fewer roads meant fewer fires. A large part of the reason for this conclusion is that most fires start when human are around and using roads in an area makes it much easier for people to get into a remote area.

The concept is fiercely debated, with some saying that such fires are more than offset by increased access to fight the fires.
Additionally, many people maintain that insect infestation sometimes necessitates mowing down thousands of acres of trees to protect other trees and want to maintain this prerogative, regardless of whether an area is roadless or not.