Wednesday, April 18, 2007
FORESTS: Hearing on Wyo. roadless challenge postponed until late May
Dan Berman, E&ENews PM senior reporter
A hearing on Wyoming's attempt to enjoin the Clinton-era Roadless Area Conservation Rule that had been scheduled for today has been postponed until May 25.
Senior Judge Clarence Brimmer did not state a reason for the postponement, the second since February, Earthjustice attorney Jim Angell said.
Wyoming is asking Brimmer to reinstate a 2003 nationwide injunction against the Clinton rule that prohibits logging, roadbuilding and other development on 50 million acres of national forest. If Brimmer revives his injunction against the Clinton rule, the Forest Service would be stuck in between two federal judges.
Last September, Magistrate Judge Elizabeth Laporte in San Francisco struck down the Bush administration's petition plan and reinstated the Clinton roadless rule. Laporte has since issued an order prohibiting the Forest Service from taking any action, such as approving oil and gas drilling permits, that would violate the Clinton roadless rule.
The Bush administration, which has opposed the Clinton rule since January 2001, opposes Wyoming's motion on procedural grounds. Because the administration formally acted to replace the Clinton rule in mid-2005, the 10th U.S. Circuit Court of Appeals vacated Brimmer's decision as a matter of legal course. If Brimmer reinstates his 2003 decision, it would violate the 10th Circuit's order, the Justice Department argues (Greenwire, April 17).
In the event Brimmer does not revive his roadless injunction, Wyoming has filed a separate lawsuit attempting to overthrow the Clinton rule. A pre-trial conference scheduled for tomorrow in Cheyenne with Magistrate Judge William Beaman has been postponed until May 31.
Briefing schedule for Laporte appeal
In San Francisco, the 9th U.S. Circuit Court of Appeals has set a briefing schedule for the appeal of Laporte's ruling. DOJ and timber industry intervenors appealed Laporte's orders earlier this month.
Laporte sided with Democratic attorneys general from California, New Mexico, Oregon and Washington, along with 20 environmental groups, stating the Bush administration violated the National Environmental Policy Act and the Endangered Species Act by failing to conduct an environmental analysis of removing the Clinton roadless protections on the forests and on endangered species.
Opening briefs from the appellants are due July 23, and briefs from the attorneys general and environmental groups are due Aug. 22. DOJ and the timber industry may then file reply briefs by Sept. 5.
In the interim, the Agriculture Department is processing petitions from state governors who wish to craft individual roadless rules for national forests in their states. Thus far, only Idaho's petition for the management of over 9 million roadless acres has been accepted.