On August 5, the Ninth Circuit Court of Appeals issued its long-awaited ruling on the 2005 State Petitions Roadless Rule (California v. USDA). The court agreed with Northern California District Court magistrate Judge Elizabeth LaPorte and found the rule invalid. It also affirmed her ruling that the Forest Service must now comply with the 2001 Clinton Roadless Rule, at least in the area covered by the Ninth Circuit.

The court found that the Forest Service violated the National Environmental Policy Act (NEPA) by effectively repealing the 2001 rule through the use of a categorical exclusion and without proper analysis of the potential environmental consequences of the new rule. It said the agency violated the Endangered Species Act (ESA) when it determined the repeal of the earlier rule would not affect listed species. The court rejected the Forest Service's argument that the 2001 rule had not been in effect on the ground (due to an earlier injunction) long enough for its repeal to have impacted listed species.

At the time of her decision, Judge LaPorte issued an injunction against implementation of the State Petitions Rule. Wyoming Federal District Court Judge Clarence Brimmer (Tenth Circuit) then reaffirmed an earlier decision against the Clinton Roadless Rule and issued an injunction against its implementation (Wyoming v. U.S. Forest Service). Judge LaPorte subsequently modified her injunction to apply only to the Ninth Circuit and New Mexico. Earlier this summer, Judge Brimmer refused to modify his nationwide injunction. On August 13, the Department of Agriculture filed a notice of appeal of Judge Brimmer's ruling to the Tenth Circuit Court of Appeals. Although the appeal was widely hailed by environmental organizations as the death of the State Petitions Rule, in all likelihood it is a necessary step to resolve the conflict between the Circuit Courts which is preventing rational administration of inventoried roadless areas. / Ann Forest Burns

On August 14, Secretary of Agriculture Tom Vilsack made what was billed as a major announcement of a new direction and vision for America's forests. The speech, given in Seattle, focused on the importance of both public and private forests to the nation's environmental and economic health. The Secretary was joined at the event by Representative Norm Dicks (D-WA) and the Region 6 leadership team of the Forest Service.

The Secretary's remarks recognized that the threats facing our nation's forests (wildfire, insects, disease, and climate change) will require mechanical thinning activities and increased funding to address the problems. The Secretary referred to a paradigm shift away from the litigation mode and toward cooperation and collaboration to allow federal forest management to move forward, citing the collaboration on the Colville National Forest as an example of success. He noted the decline of the forest products industry, saying sustaining the infrastructure is essential to the Forest Service's ability to restore the health of the federal forests. He also spent time talking about the need to maintain working private, state and tribal forests through continued management activities and perhaps new sources of income such as bioenergy and carbon sequestration. Not only were timber harvest activities not cited as a threat facing federal and non-federal forests, but they were recognized as a key component of sustaining these forests.

The Secretary also announced the Department will not appeal the June 30 Northern District Court of California's decision overturning the 2005 forest planning rules (Citizens for Better Forestry v. USDA). Forest Service Chief Tom Tidwell has been instructed to begin writing new rules. In referring to the Department's decision to appeal the Wyoming District Court injunction against the Clinton Roadless Rule, the Secretary noted that the President has made clear his support for protecting roadless areas. The Administration supports the completed Idaho rule and the process that is underway in Colorado. /Heath Heikkila

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AFRC Newsletter: 8/19/09