Judge blocks Clinton-Bush ban on roads in National Forests

Judge blocks Clinton-Bush ban on roads in National Forests
July 1, 2001

James M. Taylor

James M. Taylor is senior fellow for environment and energy policy at The Heartland Institute, and... (read full bio)

A federal judge in Idaho has blocked a ban on new roads in nearly half of America’s National Forests, ruling the ban would cause irreparable harm to multi-use interests.

The judge’s May 10 ruling negates both a Clinton administration rule creating an absolute ban on new roads and a subsequent Bush administration decision to allow the Clinton rule to take effect pending future input from state and local interests on a case-by-case basis.

The Clinton rule was one of a flurry of regulatory actions taken in the final days of his administration. According to the rule, no new roads could be built in 58.5 million acres of America’s National Forests, with the exception that new roads could be built to access current mineral lease boundaries. The rule would have the practical effect of precluding new commercial logging, mining, or recreation in an area more than twice the size of the state of Ohio.

Critics contend the Clinton rule violated multiple-use mandates for National Forests, as spelled out in the National Environmental Policy Act. The multiple-use mandates require the National Forest Service to balance conservation with timber harvesting, mining, recreation, and other uses.

Clinton rulemaking procedures questioned

Also at issue was the procedural process used by the Clinton administration in preparing the rule. Noted Mike Moser, spokesman for plaintiff Boise Cascade timber company, “The roadless rule was predetermined and one-sided and failed to consider the long-term consequences for managing the health of the National Forests.”

In an interim decision prior to issuing his ruling, federal district judge Edward Lodge stated there was strong evidence the Clinton rule-making process was improperly hurried, such that the Forest Service was not given time to produce a “coherent proposal or meaningful dialogue and that the end result was predetermined.” Lodge further characterized the Clinton process as “grossly inadequate” in providing for public notice and input in preparing the rule.

In his May 10 decision, Lodge similarly criticized the Bush decision as a “Band-Aid approach” to the problems presented by the Clinton plan. Bush’s decision to allow the Clinton plan to take temporary effect “ignores the reality . . . that once something of this magnitude is set in motion, momentum is irresistible, options are closed and agency commitments, if not set in concrete, will be the subject of litigation for years to come.”

To properly resolve the problems of the road ban, Lodge urged the Bush administration to press forward with its case-by-case study on the appropriateness of banning new roads.

“How you go about doing something is about as important as what you end up doing . . . we need to have people feel they’ve been listened to and engaged and to be a part of the solution,” noted Lodge in his opinion.

Dale Bosworth, the new head of the U.S. Forest Service, agreed. “The most you can hope for is that there’s credibility to the decision and that the people who felt like they didn’t get their way at least believe that the process was fair and thoughtful,” stated Bosworth. The Clinton administration, Bosworth believes, undermined its own credibility and the principle of fair play by taking such a fast track on the new rule during its final days in office.

Anti-logging groups criticized the judge’s decision and the Bush administration’s reluctance to vigorously defend the Clinton rule in federal court. Commenting on the Bush administration’s attorneys, who spoke for less than five minutes in court defending the policy, John McCarthy of the Idaho Conservation League stated, “We essentially watched the government move over and sit with the plaintiffs.”

Doug Honnold, attorney for the Earthjustice Legal Defense Fund, a spin-off of the anti-logging Sierra Club, said, “We will be glad to fight [the decision] in the courts. . . . We think it is a decision that is inconsistent with environmental rules.” Chris West, vice president of American Forest Resource Council, a Portland-based organization devoted to sustainable forestry, countered, “It’s what we said all along, that [Clinton’s order] was clearly illegal and it is now time for the administration to move on.”

Adverse consequences of road ban

Robert Nelson, senior fellow at the Competitive Enterprise Institute, a Washington, DC-based think tank, suggested enforcement of the rule would make more difficult future efforts to deal with out-of-control forest fires. “It was a lack of effective forest management in the 1990s that contributed to the severe forest fires over the West in 2000,” stated Nelson. “Losing the ability to build roads into many of these forest areas will mean more wildfires and unhealthy forests in the years ahead.”

Added Congressman James Hansen (R-Utah), chairman of the House Resources Committee, “Last year, 17 people died and 860 buildings were destroyed in the worst wildfire season this country as ever seen. The prognosis for this summer is even worse. . . . Judge Lodge’s ruling lets us get in there and pull out diseased and dead wood. It lets us save lives and try to head off pending disaster.”

“With today’s ruling, the principles that the Bush administration rightly put forth last week—including reliable information, accurate mapping, and local decision-making—will now be at the front end of any future planning process for our nation’s forests,” stated Idaho Governor Dirk Kempthorne.

Opposition to the roadless rule also came from private citizens wishing to access the forests for recreation. Most of the National Forests, as well as the particular areas affected by the Clinton rule, are located in the Rocky Mountains and areas further west. Allowing local input into case-by-case road decisions “gives western government the input they’re looking for and still protects our pristine roadless areas,” said a spokesman for Hansen.

Best of all political worlds?

The court decision may well be the best of all worlds for the Bush administration.

Bush had made clear his opposition to the Clinton rule but allowed temporary implementation after environmental interests criticized his anticipated reversal of the rule. Allowing temporary implementation while leaving open the possibility of future revision was seen by many observers as a compromise between what Bush truly wanted and his aversion to being criticized as unfriendly to the environment.

Lodge’s ruling gives Bush political cover to implement road bans on a more limited, case-by-case basis.

James M. Taylor

James M. Taylor is senior fellow for environment and energy policy at The Heartland Institute, and... (read full bio)