New dispute brewing over ban on forest road-building
Bob Egelko, Chronicle Staff Writer
Saturday, November 15, 2003
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The Bush administration, which decided not to defend a ban on
commercial road-building in national forests after a federal judge
struck it down, is now arguing that members of the public have no
right to defend the roadless rule in court.

The government, which had the sole authority to pass the rule in the
first place, likewise is the only one entitled to defend it, Justice
Department lawyers said in papers filed this week with the U.S. Court
of Appeals in Denver. Once the government decided to drop the case,
they said, environmental groups had no "direct stake in defending the
regulation.''

The roadless rule, adopted in the final days of the Clinton
administration, has been attacked by timber companies and disavowed by
the Bush administration, which says it wants more flexible nationwide
regulations and an exemption for two huge forests in Alaska.

Environmental advocates called the Justice Department's argument
against a defense by members of the public unprecedented. They said it
was undemocratic as well as legally wrong.

"By attempting to shut the courthouse door, they are stifling the
voices of millions of Americans and making it easier for industry
lawsuits to take down the most popular conservation measure in
history,'' said Robert Vandermark of the Heritage Forests Campaign,
one of the groups in the court case.

Sen. Maria Cantwell, D-Wash., said Attorney General John Ashcroft
promised at his confirmation hearing that he would defend and enforce
existing environmental regulations.

"If the Justice Department is not going to do its job to defend
federal rules, then the least it should do is not interfere with the
public's right to defend our public lands in court,'' she said in a
statement Friday.

The U.S. Forest Service rule prohibits road-building for logging and
other commercial purposes on 58.5 million acres, nearly one-third of
all national forest land. Most of the protected areas are in the West.
The rule exempts roads needed for fire protection.

A federal judge in Idaho overturned the rule in an industry lawsuit in
May 2001 but was overruled last December by the Ninth U.S. Circuit
Court of Appeals in San Francisco. The Bush administration declined to
defend the rule in that case, but the courts let environmental groups
intervene.

In a separate suit by the state of Wyoming, U.S. District Judge
Clarence Brimmer declared the roadless rule illegal this July. He said
the Clinton administration had passed the rule in "political haste,''
did not allow proper input from the states or members of the public,
and called it a backdoor attempt to create new wilderness areas
without complying with the wilderness law.

The Bush administration defended the rule before Brimmer but said in
September that it wouldn't appeal his ruling. Eight environmental
groups, allowed by Brimmer to enter the case and join in the defense,
are seeking to appeal in defense of the rule.

"This administration, on the environmental front and a whole host of
fronts, has shown itself hostile to citizen enforcement of the laws,''
said Earthjustice attorney James Angell, lawyer for the environmental
groups. Last week the U.S. Supreme Court agreed to review another case
in which the administration is opposing the right of
environmentalists, also represented by Angell, to sue the government
for allegedly failing to protect undeveloped lands.

E-mail Bob Egelko at