Late yesterday the Bush administration filed a brief at the Tenth Circuit Court of Appeals arguing that citizens of the United States have no right to appeal the loss of the nation’s most important conservation rule, even though the administration failed to do so. The regulation at issue, the Roadless Area Conservation Rule, would protect 58.5 million unroaded acres of America’s national forests from road building and development. Perhaps as important, the Bush administration move also seeks to deal a blow to the public’s access to the courts. In the brief filed yesterday, the administration essentially told the court that if a federal policy is successfully challenged in court and the government chooses not to appeal, citizens harmed by the loss of the regulation have no right to seek an appeal in the courts. In this case, the state of Wyoming successfully sued to overturn the roadless rule.

In a tactic known as “sue and settle,” the Bush administration has encouraged lawsuits from a number of friendly industries as a way to get courts to sanction settlements that weaken or eliminate policies opposed by the industry challengers. This tactic has been used to weaken protections for Northwest national forests and wildlife species living there in favor of timber companies that want to log more federal land. The “sue and settle” tactic has also been used to eliminate critical habitat designations for a host of species listed as endangered or threatened under the Endangered Species Act. Unlike classic sue and settle lawsuits, the Wyoming challenge to the roadless rule didn’t end with an out of court settlement but rather when federal district judge Clarence Brimmer enjoined the roadless rule giving Wyoming, the Bush administration and corporate interests what they wanted. When Earthjustice, representing a host of public interest citizen groups moved to appeal the loss, the Bush administration countered with a move to lock citizens out of the courts. The administration is staking a position against citizen involvement in both classic sue and settle lawsuits as well as the emerging class of “lose and don’t appeal” suits. The administration believes only they and their close friends can be party to the use of the courts as vehicles to undermine federal regulations they oppose.

“The administration wants to make sure when they cave in to an industry lawsuit, the public doesn’t upset their sweetheart deal with industry,” said Earthjustice attorney Jim Angell. “America is blessed with some of the most spectacular, awe-inspiring natural beauty found anywhere on the planet. But instead of acting like good stewards, the Bush administration filed papers in court seeking to gag lawyers representing the public’s interest in preserving our great natural heritage for future generations.”

The administration’s stance conflicts with a 9th Circuit Court of Appeals ruling that reversed an injunction against the roadless rule issued by an Idaho district court. In that case the Ninth Circuit Court of Appeals agreed that citizens do have the right to appeal the loss of a federal rule when the federal government chooses to accept the loss. The citizens, represented by Earthjustice, succeeded in convincing the appeals court to lift the lower court injunction, which put the rule in place for the first time since the administration froze implementation in January 2001. The Bush administration pleading to the Tenth Circuit Court of Appeals is intended to make sure citizen groups don’t again succeed in snatching victory from the jaws of defeat.

The Bush administration has also recently moved to exempt the entire state of Alaska from the roadless rule. Alaska’s Tongass and Chugach National Forests are home to nearly 15 million acres of roadless areas. The administration has also signaled its intent to rewrite the rule entirely in order to give governors more power over our public lands.

The roadless rule is the product of more than 600 public meetings across the country, years of scientific study, and more than two million public comments. The rule protects 58.5 million acres of America’s last unroaded forests in 39 states. Bipartisan legislation supported by more than 170 members of the U.S. House and Senate has been introduced to codify the roadless rule.

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