On July 14, 2003, Wyoming U.S. District Court Judge Clarence Brimmer issued a decision blocking implementation of the Roadless Area Conservation Rule. In his 100-page opinion on the case of
State of Wyoming v. USDA , Judge Brimmer concluded that the Roadless Rule violated the National Environmental Policy Act (NEPA) and the Wilderness Act. As discussed below, Brimmer's decision appears likely to be reversed because it directly contradicts the Ninth Circuit Court of Appeals decision in
Kootenai Tribe of Idaho v. Veneman regarding NEPA compliance, and because Brimmer clearly misinterprets the Wilderness Act.
NEPA
Judge Brimmer concluded that the Roadless Rule violated NEPA for five reasons:
- failure to extend the scoping comment period;
- failure to explain denial of cooperating agency status to the State of Wyoming;
- inadequate range of alternatives;
- inadequate cumulative effects analysis; and
- failure to prepare a supplemental EIS.
However, Brimmer's decision directly contradicts the Ninth Circuit Court of Appeals regarding four of the five NEPA issues. The Ninth Circuit did not address the issue of denying cooperating agency status, but Brimmer's decision on that issue also appears very shaky.
Below is a comparison of relevant excerpts from Brimmer's and the Ninth Circuit's opinions, demonstrating the two courts' diametrically opposing views on the four NEPA issues. Page citations are to the respective slip opinions in the two cases.
Brimmer: "…the Court finds that the Forest Service's refusal to extend the scoping period, notwithstanding the protests of nearly all of the affected states, for the sole reason of meeting a self-imposed deadline was arbitrary and capricious." (p. 47)
Ninth Circuit: "We conclude that the [Idaho U.S.] district court erred in holding that the plaintiffs had shown likely success on the merits based on their allegation that the 69-day comment period deprived the public of information for its meaningful participation in the NEPA process." (p. 35)
Brimmer: "The Court finds that the Forest Service's alternatives analysis for the Roadless Rule violated NEPA and its implementing regulations because the agency did not provide an adequate discussion of the alternatives it was required to address." (p. 59)
Ninth Circuit: "We conclude that the DEIS and FEIS analyzed an adequate range of alternatives." (p. 36)
Brimmer: "The Forest Service's final EIS does not provide an adequate discussion of the cumulative impacts of the Roadless Rule, Planning Regulations, Road Management Rule, and Transportation Policy on the human environment." (p. 69)
Ninth Circuit: "We also reject the [Idaho U.S.] district court's conclusion that the Forest Service failed adequately to evaluate the cumulative effects of the Roadless Rule…" (p. 42)
Brimmer: "The Court finds that the Forest Service's decision not to develop a supplemental EIS when it promulgated the Roadless Rule violated NEPA regulations." (p. 76)
Ninth Circuit: "… a supplemental EIS is not required for every change; it is not uncommon for changes to be made in a FEIS after receipt of comments on a DEIS and further concurrent study." (p. 32)
Wilderness Act
Judge Brimmer's conclusion that the Roadless Rule violates the Wilderness Act is an unprecedented and rather bizarre interpretation of the Act. Section 2(a) of the Wilderness Act states that "no Federal lands shall be designated as 'wilderness areas' except as provided for in [the Wilderness Act] or by a subsequent Act." In Brimmer's view, there is no significant difference between roadless areas and wilderness areas. "The Forest Service, through the promulgation of the Roadless Rule, designated 58.5 million acres of National Forest land as a de facto wilderness area in violation of the Wilderness Act."
Brimmer's inability to discern a legal difference between roadless areas and wilderness areas is perplexing. The Wilderness Act clearly is far more restrictive than the Roadless Rule. For example, snowmobiles, motorcycles, and mountain bikes are prohibited in wilderness areas, but not in roadless areas. Mining and associated road building are prohibited in wilderness areas, but not in roadless areas. There is simply no factual or legal basis for Brimmer's Wilderness Act ruling.
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