So the fate of the Roadless Rule is now in the hands of three judges of the Ninth Circuit Court of Appeals, at least its immediate fate, following a hearing this week in San Francisco.
The Forest Service, represented by the Justice Department, wants the three judges to overturn a Sept. 2006 decision that found the rule the Bush administration cooked up to replace the original rule illegal.
That rule, referred to variously as the Roadless Repeal (by the environmental side) and the State Petitions Rule (by the administration and the timber industry), was put into effect with not a shred of environmental analysis, which the district court judge found violated the National Environmental Policy Act and the Endangered Species Act.
The questioning was lively and pointed.
The question that seemed to intrigue all three judges was whether the Bush rule "repealed" the Clinton rule. The Bush side maintains that the Bush rule didn’t repeal the Clinton rule, but merely replaced it, arguing that the Clinton was never "meaningfully in effect," even though there was at least a three-month period in 2003 when it was unambiguously in effect.
We did our best to poke holes in the Forest Service argument. As we’ve said before, this is far too complicated to untangle in a short missive like this one. Suffice it for now to say that another vigil now commences, and the Ninth Circuit often takes its time to decide cases, especially tricky cases like this one.
Fingers are crossed.