Bush admin : " public has no right to appeal BLM, national forest decisions"
 

Bush adminstration argues against appeal of roadless decision
JACK SULLIVAN, Associated Press Writer
Thursday, November 13, 2003
©2003 Associated Press

URL: sfgate.com/article.cgi?file=/news/archive/2003/11/13/state1331EST7059.DTL


(11-13) 10:31 PST WASHINGTON (AP) --

Environmental groups should not be allowed to challenge a Wyoming
federal judge's decision to strike down a ban on road-building in
remote areas of national forests, Justice Department lawyers contended
in court papers filed this week.

A lawyer for the eight groups that are arguing for the ban to be
reinstated said the Bush administration is "trying to make sure that
the public can't stand up for" the roadless rule.

"This admininstration has been opposed to the roadless rule since
before it even came to office," said Jim Angell of Earthjustice, which
represents the groups.

The Justice Department defended the roadless rule in federal court in
Wyoming but did not appeal U.S. District Judge Clarence Brimmer's
decision to strike it down in July.

The environmental groups had intervened in the case and did appeal.
They are asking the 10th U.S. Circuit Court of Appeals to reinstate
the rule, which blocked road construction in 58.5 million forest acres
nationwide as a way to stop logging and other commercial activity.

President Clinton created the rule in the final days of his
administration. It affects 3.5 million acres in Wyoming.

In his ruling, Brimmer said Clinton's rule was a "thinly veiled
attempt" to create wilderness areas without congressional action.

In a friend-of-the-court brief, the Justice Department argued that
since it was an executive branch rule Brimmer struck down, only the
executive branch should decide whether his decision should be
appealed.

"Private persons should not be permitted to use the judiciary to
interfere with this core function of the United States," they wrote.

"The Roadless Rule is not compelled by the Constitution or by any
applicable statue," the lawyers wrote. "Absent such a mandate, (the
Forest Service) was just as free to decide what regulations would be
issued and remain in force as ... to decide what statutes it would
create and retain."

Environmentalists say the roadless rule is an important protection for
dwindling public lands. The timber industry and Republican lawmakers
criticize it as overly intrusive and even dangerous, saying it could
leave millions of acres exposed to catastrophic fire.

Brimmer was the second federal judge to strike down the rule. The
first decision, made in a lawsuit filed in Idaho in 2001, was
overturned in December by the 9th U.S. Circuit Court of Appeals, based
in San Francisco.

Angell noted that the Justice Department did not take a position in
the appeal of the Idaho case, making its position in the Wyoming case
"a new and even more aggressive effort to prevent the roadless rule
from surviving."

The issue could go before the U.S. Supreme Court if the ruling from
the Denver-based 10th Circuit differs from that of the 9th Circuit.

The rule also has been challenged in federal courts in Alaska, North
Dakota, Utah and the District of Columbia.



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