And a federal advisory group set up to make recommendations under the 2005 rule decided Wednesday to continue its work and, in fact, to expand its scope somewhat.
With numerous lawsuits pending on the roadless issue in different states, the administration will take a consistent approach in its response, said Agriculture Undersecretary Mark Rey.
Rey made the comments to a meeting of the Roadless Area Conservation National Advisory Committee, whose members were trying to decide whether and how to proceed in light of the ruling.
Rey encouraged the group to continue its work advising the department on state petitions on roadless areas, saying they could use a different authority rather than the 2005 rule to proceed.
The group decided to continue and tentatively expanded its charter to make recommendations on roadless area management in addition to reviewing petitions.
Last month, Laporte ruled that the Bush administration failed to consider the environmental and species impacts of its 2005 rule, violating the National Environmental Policy Act and the Endangered Species Act.
Her decision, therefore, reinstated a Clinton administration rule that essentially prohibited road construction and timber harvesting, with limited exceptions, in roadless areas of the national forests.
That prohibition covered 58.5 million acres of pristine national forests, including 6.4 million acres in Montana and 9.3 million acres in Idaho. Clinton made the move shortly before leaving office; the Bush administration responded by criticizing it as a political move and setting aside the prohibitions on development.
In 2005, a new, more lenient rule was announced.
“We still need to either defend the 2005 rule or alternatively to remedy the flaws that Judge Laporte found and put it back to rights at some point,” Rey said Wednesday. “We don't know where that process will take us and we haven't decided which of those two roads to pursue.”
Rey said the decision will be based on which is the best way of dealing with roadless areas, but that other concerns, such as larger implications of the judge's decision, will also play a role.
“(The) implications of the judge's decision are on issues associated with definitional questions under NEPA, because some of what the judge said is applicable to a far broader range of activities or federal government decisions than the roadless rule itself,” he said.
Another concern is whether the ruling “implies that the federal government has a responsibility to evaluate under NEPA the compliance with a court order,” he said, adding, “If that's the case, we're into another fairly complicated area of law.”
In a separate lawsuit, the state of Wyoming has asked a judge there for a nationwide injunction against the 2001 roadless rule.
Rey said no one can predict the outcome of any of the litigation, meaning that circumstances will remain unsettled at least for the foreseeable future and possibly for years to come.
The 2005 rule allowed governors to submit petitions to the Forest Service showing their own preferences for roadless areas in their states. The advisory council, made up of industry, environmental and recreational interests, was set up to review the petitions.
Rey told the group that the Administrative Procedure Act allows anyone to petition the government on rulemaking and that they could continue their work under that authority.
He noted that they might wonder why the administration put in place the 2005 rule if the same work could be done under the act.
“That authority is passive in nature. It merely says anybody has the right to petition the federal government on rulemaking,” he said. “What we meant to do in 2005 is make a more permanent statement that we were eager to work with states and with governors to try to resolve this more amicably on a state-by-state basis.”
He said Idaho and California have reported they would like to proceed with their petitions under the APA and Colorado is expected to do so soon.
He recommended that they continue to use the criteria from the 2005 rule as their framework in reviewing petitions, but said they could add or change the criteria and that the 90-day timeframe for reviewing a petition could be extended.
In a daylong meeting, the group rewrote its charter and made a few minor changes to the criteria. They will reconvene Thursday and, if nobody objects, finalize the changes.
“The addition (to the charter) is the roadless area management, so we're not limited to just addressing the petitions,” said co-chair Greg Schaefer, a Wyoming resident.
Rey said that if anyone can petition the government, it's possible they could get hundreds of thousands, if not millions, of petitions.
“I would not anticipate the department proceeding with a petition if the governor is not so inclined,” he said.
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