Sunday, May 13, 2001 MISSOULIAN EDITORIAL
SUMMARY: A federal judge found a way to make the tortured roadless issue even more complicated.
A federal judge in Idaho on Thursday condemned us all to years of additional conflict over management of the national forests.
U.S. District Court Judge Edward Lodge issued a preliminary injunction barring the Bush administration from putting into effect rules written by the Clinton administration. The rules would have banned road construction and most logging in the 58.5 million acres of national forests classified as roadless. Procedural flaws in the way the Forest Service developed the roadless rules - not the substance of the policy - violated federal law, the judge declared.
Some people may doubt it's possible to muck up the roadless issue any more than it's been, but Judge Lodge managed to find a way. And his timing couldn't have been worse, just as the Bush administration was gearing up to see if it could revise the roadless policy to the satisfaction of more Americans.
Loggers and other opponents of roadless-area protection are hailing the judge's decision as a victory, but it won't take long for them to see this is a Pyrrhic victory. Environmentalists expressed disappointment, but don't be surprised if they soon discover a silver lining.
Banning the ban on road-building doesn't turn the forests over to developers. It doesn't mandate development. It simply bars explicit, long-term protection. It certainly doesn't pony up the cold, hard cash needed to build expensive roads into some of the most rugged, remote country in North America. By preventing the rule from taking effect Saturday, as scheduled, the judge merely preserves the status-quo as it existed Friday. That is, it leaves the lands in question in limbo, where they've been for decades.
The ruling also undercuts the Bush administration's plans to amend the roadless policy on a forest-by-forest basis, presumably to make them more logger-friendly. Although the judge encouraged the administration to go ahead and study and propose amendments, doing so now promises to be a waste of time. The judge declared the process by which the roadless plan was developed to be fatally flawed. It's not the substance of the roadless protections, but, rather, the way they were proposed, reviewed and adopted that makes them illegal. You can't make a procedurally flawed policy right through substantive amendments. You have to start over and follow the correct procedure. The Bush administration may not choose to start over. It may opt for the status quo. Which means managing the roadless areas subject to forest plans and budget constraints - which, again, means leaving the vast majority of the areas pretty much alone.
Of course, the judge's decision is subject to appeal. And the appeal may well be appealed. This could take years, during which the lands will be pretty much off-limits. If one set of lawyers can convince a judge that "irreparable harm" could result from protecting the contested lands, it shouldn't be too terribly difficult for another set of lawyers to find a court to agree that building roads while the issue is under appeal could also inflict "irreparable harm."
The Forest Service first tried to settle this whole business nearly three decades ago with its Roadless Area Review and Evaluation. It was tossed aside and followed by RARE II, which was also thrown out by the courts for procedural flaws. Congress had to pass separate legislation for individual forests and states, declaring roadless evaluations "sufficient" in order to allow the Forest Service to do anything in contested areas.
Will it be deja vu all over again? It's anybody's guess. Meanwhile, you have to wonder if the decades of study, more than 600 public meetings and evaluation of more than a million public comments leading up to the roadless policy failed to past muster in the courts, what WILL it take to satisfy the standards of the National Environmental Policy Act? The arguments that worked against the roadless policy in court can just as easily be applied against any number of land-management policies.
If you ask us, the only people who ought to be cheering the court's intervention are the many lawyers who'll be gainfully employed for years to come.