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Legality of Forest Service road plan questioned

By SAMANTHA YOUNG 8/2/06 Monterey County Herald

A federal judge said Tuesday that the Bush administration had the right to overturn a ban on road construction in untouched parts of the national forests but questioned whether it could do so without weighing the possible environmental effects.

U.S. District Judge Elizabeth Laporte said the Forest Service appeared to be ''on solid ground'' last year when it reversed a Clinton administration rule banning new roads on nearly a third of federal forests.

But she questioned whether the agency violated federal law by skipping environmental studies -- the heart of two lawsuits brought by 20 environmental groups and the states of California, Oregon, New Mexico and Washington. The cases have since been consolidated, and all parties presented arguments Tuesday in Laporte's courtroom.

Laporte said she did not know when she would make a final decision in the case.

''The court's role is not to endorse one approach over the other,'' Laporte said, referring to Forest Service management plans.

Rather, she said, the question is whether federal procedures were violated when Bush overturned the ban on road building that President Clinton ordered in January 2001, eight days before he left office. If so, that could prompt Laporte to invalidate a new state-by-state management strategy endorsed by the Bush administration and restore the road-building ban.

The legal dispute stems from the so-called ''roadless rule'' that prohibited logging, mining and other development on 58.5 million acres of roadless forest land in 38 states and Puerto Rico. Of that, 97 percent is in 12 states: Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.

While praised by environmental groups, the Clinton rule was challenged by timber companies and some western states. After a series of legal battles in California and Wyoming, the Bush administration in May 2005 replaced the roadless rule with a voluntary state-by-state petition process.

Critics said the reversal did not take into account environmental and wildlife studies for some of the most pristine forests in the U.S.

''The roadless areas are open to development unless the states can convince otherwise,'' California deputy attorney general Claudia Polsky told the court.

Environmentalists worry that timber, mining and oil and gas interests could penetrate deeper into forests, which provide habitat for fish and wildlife, as well as areas recreation.

Industry representatives say building roads in specific areas is a legitimate activity to help fight wildfires, salvage timber from burned areas or thin overgrown forests.

''Most catastrophic wildfires we're experiencing in the West have blown up in unroaded areas,'' said Chris West, vice president for the Portland, Ore.-based American Forest Resource Council, which has sided with the Bush administration in the case.

Forest Service spokesman Dan Jiron said the approach put in place under the Bush administration does not mean that areas previously designated as off-limits will be opened automatically to road-building and commercial pursuits.

''What we're doing is protecting roadless areas by working with people for meaningful long-term protection,'' Jiron said in a telephone interview from Washington, D.C.

The Bush policy calls for governors to decide by Nov. 18 whether to petition the federal government to block new roads in their forests. Petitions by Virginia, South Carolina and North Carolina have been approved, while petitions from California and New Mexico have been submitted. Arizona, Colorado and Idaho are formulating their petitions.

While a blanket environmental study was not completed for the state petition program, the agency intends to carry out individual environmental reviews on a forest-by-forest basis, Barclay Samford, an attorney for the U.S. Department of Justice, said in court.

He said any other approach would have been a speculative exercise until each state had decided how the roadless areas should be managed.

Barclay defended the Bush administration plan, which sought to protect sensitive forest areas after a federal judge in Wyoming struck down the Clinton-era protections in 2003. In a case brought by the state of Wyoming, the judge ruled that the government had overstepped its authority by creating wilderness areas on U.S. Forest Service land. The 10th U.S. Circuit Court of Appeals dismissed environmentalists' appeal of that ruling, saying the new Bush rule made the issue moot.

In the latest lawsuit, environmental groups and the four western states have asked Laporte to invalidate the state-petition strategy and bring back the Clinton ban on road building.

Meanwhile, Justice Department lawyers argued that roadless areas should be managed under individual forest management plans should Laporte find the petition process was created without the proper environmental consultations.


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