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Roadless Setback

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View Tom Turner's blog posts
03 December 2008, 12:21 PM

As faithful readers will recall, we’ve been reporting on the saga of the Roadless Area Conservation Rule for a very long time. Put in place at the end of the Clinton administration and immediately hamstrung by Bush operatives, the rule, which bans most roadbuilding and logging on roadless areas of the national forests, has bounced around a dozen courthouses, with Earthjustice lawyers defending the measure from attacks by states and the timber industry as the new government talked out of four sides of its mouth. Though there have been both wins and losses, the national forests have remained largely protected.

The litigation has been protracted and fiercely complex. A high point came in the fall of 2006 when a judge in San Francisco tossed a substitute rule put forward by the Bush crowd in 2005 and reinstated the Clinton rule nation-wide. This infuriated a judge in Wyoming, who had declared the Clinton rule illegal in 2003. He reissued his opinion this past summer.

The Forest Service felt itself caught in the middle. If it abided by the Clinton rule, it was in violation of the Wyoming injunction. If it ignored the Clinton rule, it would be in violation of the San Francisco injunction.

This past week, the San Francisco judge alleviated some of the Forest Service's dilemma in deference to comity—the principle that federal courts should respect each other's rulings. In a compromise, the Clinton rule only remains in effect in Oregon, Washington, Idaho, Nevada, Arizona, New Mexico, California, Montana, and parts of Alaska.

This is a temporary situation—both the Ninth and Tenth Circuit Courts of Appeals are considering cases and should be ruling next year. Or Congress could step in and make the Clinton rule the law of the land, as candidate Obama said he would support.

Long-term prospects remain bright, though the next several months could be dicey.

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