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The Long and Winding Roadless

On September 20, 2006, a federal district court ruled that the original Roadless Area Conservation Rule must be reinstated -- thereby protecting 50 million acres of pristine national forests. The court found that when the Bush administration repealed the Roadless Rule, it failed to comply with basic legal requirements of the National Environmental Policy Act and the Endangered Species Act. The ruling didn't address roadless areas in Alaska’s Tongass National Forest, which were exempted from the Rule’s protections in a separate action. But about five million acres in the Chugach National Forest in Alaska are once again protected by the ruling.


Here's a little background.


The rule was put into effect in January 2001. Minutes after George W. Bush took the oath of office, his chief of staff, Andy Card, ordered that all pending rules be frozen, a move of decidedly questionable legality.


The Roadless Rule was thereupon challenged in nine separate lawsuits filed by the timber industry and its allies. Environmental organizations, represented by Earthjustice, intervened in all these suits to defend the rule.


The first case to reach judgment was in Idaho, where it was found illegal and enjoined. The Bush administration declined to appeal the injunction, but the intervenors did appeal. Near the end of 2002, the appeals court vacated the injunction, effectively reinstating the rule, and sent the case back to the Idaho judge.


Next, a federal judge in Wyoming (which is in the Tenth Circuit) found the rule illegal on somewhat different grounds and issued his own injunction, which he said applied throughout the entire national forest system, another questionable proposition. Again the administration refused to appeal and again the intervenors did appeal.


In the spring of 2005, one day after the Tenth Circuit judges heard oral argument in the Wyoming appeal, and before they had a chance to rule, the administration announced its repeal of the rule and the imposition of a new rule, which invites governors to file petitions suggesting how they want roadless areas in their states to be managed. The administration is under no obligation to accept the governors' recommendations. The Tenth Circuit dismissed the Wyoming appeal as moot and vacated the injunction issued in the Wyoming court. Meanwhile, a case filed by the state of Alaska was quietly settled, when the administration agreed to exempt the Tongass National Forest from the rule.


The current round of litigation began in August 2005, when 20 environmental organizations represented by Earthjustice and four states (California, New Mexico, Oregon, Washington) filed suits arguing that the Roadless Repeal was illegal and the original rule should be reinstated. Earthjustice and the states essentially worked as co-counsel in the litigation, coordinating their briefs to avoid duplications and to ensure the most complete presentation of the legal issues.


Now that the rule has been reinstated, the coalition of states and environmental groups asked the same federal judge to block 84 oil projects approved over the past five years. We asked the court to stop road building associated with oil and gas drilling on inventoried roadless areas in 14 national forests, mostly in the Rocky Mountains. The four states and 20 environmental groups also asked the judge to block the Forest Service from building two miles of new roads through the Borah Peak roadless area in Idaho's Salmon-Challis National Forest. The project would harm the threatened bull trout and adversely affect water quality and recreational use in the area.


On November 29, 2006, the court ordered the Forest Service to stop work on these projects that had been approved during the five years that the roadless rule was illegally repealed. 


The Forest Service has appealed the court's ruling and, as of spring 2008, briefing is complete and the parties await a date for oral argument. Meanwhile, the state of Wyoming has refiled its challenge to the original rule, which is currently in effect.