- The Washington Times - Thursday, August 6, 2009

DENVER | Those who make a living cutting down trees or selling snowmobiles took a hit Wednesday when a federal appeals court banned road construction on more than 50 million acres of national forest.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, led by Judge Robert Beezer, upheld a lower-court ruling declaring the 2005 Bush administration roadless rule invalid.

Under the Bush plan, known as the State Petitions Rule, states were given the authority to develop road-building policies, whether to ban or to allow, in national forests within their boundaries. The panel decided that the Bush-era U.S. Forest Service rule violated such federal laws as the Endangered Species Act and the National Environmental Policy Act.

Wednesday’s decision effectively reinstates the 2001 Clinton administration roadless plan, which blocks road construction on 58.5 million acres, or about one-third of the area managed by the U.S. Forest Service.

“The Forest Service’s use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable,” Judge Beezer wrote in the panel’s 38-page opinion. “It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change.”

The ruling was immediately hailed by environmental groups, which had been fighting the Bush rule for years. Kristen Boyles, an attorney with Earthjustice, which has led the fight against the Bush roadless rule, called on the Obama administration to adopt the Clinton plan as a “permanent” national strategy.

“We’re not out of the woods yet,” said Ms. Boyles. “This decision halts the Bush administration assault on roadless areas, but the Obama administration should now take the next steps necessary to make protection permanent.”

At the same time, supporters of the Bush plan weren’t panicking. The courts have issued a patchwork of sometimes contradictory decisions on the roadless rule, with another ruling expected in a related case now before the more-conservative 10th U.S. Circuit Court of Appeals in Denver.

“Everything is in a state of flux right now,” said Dennis Porter, attorney for the California Association of Four Wheel Drive Clubs in Sacramento, which was named as a defendant-intervenor in the case.

Two states — Idaho statewide, and Alaska in the Tongass National Forest — had previously created their own state plans that would allow some roads in national forests.

Mike King, deputy director of the Colorado Department of Natural Resources, said the 9th Circuit ruling, which does not cover Colorado, wouldn’t affect his state’s decision to go forward with its own plan under the State Petitions Rule to allow some road-building.

“We’re not going to suspend our process. We believe we have a product better suited to Colorado forests than the 2001 rule,” Mr. King said.

He agreed that Wednesday’s ruling hardly settled the issue. For example, he said, the decision left it unclear as to whether it applied to states other than the 9th Circuit’s jurisdiction.

“This ruling, although some want to declare this the end of the chapter, it’s hardly that,” Mr. King said. “It’s the latest chapter in a very long book.”

Agriculture Secretary Tom Vilsack said earlier this year that any project in the proposed roadless areas would have to receive his personal approval, but he hasn’t yet weighed in on whether he backs the 2001 Clinton plan.