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Legislative and Regulatory Update

October 2005 by Scott

• Roadless Rule back in court again
The states of California, Oregon and New Mexico filed a lawsuit against the federal government over the Bush administration’s decision to repeal the Clinton Roadless Rule.

California Attorney General Bill Lockyer said, “The Bush administration is putting at risk some of the last, most pristine portions of America’s national forests.”

President Clinton placed almost one-third of the 192 million acres of national forest off-limits eight days before he left office when he issued the Roadless Rule.

Bush placed the rule on hold, then replaced it with a new policy in May 2005 that requires states to work with the Forest Service on forest management plans. Governors were given 18 months to petition the federal government to keep roadless areas off-limits or to develop a management plan of their own. The Forest Service offered their expertise with development of a plan.

Most western governors welcomed the change; however, some politicians don’t want the responsibility. If a governor allows road development, he or she will risk alienating the environmentalists and risk the loss of votes and campaign contributions from influential non-governmental organizations. But preventing any development in roadless areas could cost them votes and contributions from those individuals and companies dependent upon access to natural resources.

The Agriculture Department’s Mark Rey called Tuesday’s lawsuit “unfortunate and unnecessary.”

“The quickest way to provide permanent protection is through the development of state-specific rules, not by resuscitating the 2001 rule,” Rey said.

The Clinton-era rule was struck down in federal court in 2003 by a judge in Wyoming. The 10th US Circuit Court of Appeals dismissed an appeal by environmentalists.

The states say in their lawsuit that the federal government was required to do a complete environmental impact review prior to revoking the Clinton Roadless Rule.

Chris West, vice president of the American Forest Resource Council, stated he believes the lawsuit was motivated by politics, and pointed out that all three attorney generals involved are Democrats.

“This is all about politics and not about protecting wildlife, watersheds and forests. It’s ironic that the states are all given the opportunity in the new rule to determine what’s in the interest of the lands within their states and they don’t want to take that on,” West told the Associated Press.

Washington Governor Christine Gregoire stated in August that she would work to protect most, if not all, roadless areas in her state. Elliot Marks, a policy adviser to Gregoire, stated they learned of the lawsuit too late to review it.

• New mining regulations considered in Europe
The European Parliament has drafted rules requiring EU governments to monitor and control the handling of waste by mining companies.

Companies would be required to follow EU licensing and operation requirements for mining sites to prevent accidents or deliberate leaks according to the new rules, which would also apply to closed sites and waste storage facilities.

The EU legislators exempted non-hazardous waste from some of the new rules, and also amended certain measures concerning the terms of financial guarantees companies must deposit before starting any operation that involves amassing mining waste.

The Council of Ministers, the EU’s decision making body made up of national ministers, now must decide whether to accept the parliament’s amendments before the new rules go into effect.

• PLP in court on behalf of miners
At press time, Public Lands for the People (PLP) president Jerry Hobbs was scheduled for a court hearing in Siskiyou Regional Education Project (SREP) v. United States Forest Service. This suit was filed by SREP in an attempt to force the Forest Service to require Plans of Operation and financial guarantees for all mining in Riparian areas.

In another case against the Bureau of Land Management’s (BLM) 36 CFR 3809 regulations, the judge asked the parties to meet again in an effort to hash out a compromise in lieu of a trial. Issues involved in this case include BLM’s restriction of 14 days occupancy on a mining claim in a 90-day period and current financial guarantee requirements.

In an effort to cover the costs associated with having two attorneys on retainer, PLP will be raffling off several thousand dollars worth of prizes. More information on the raffle is available in the PLP update.

• Karuk Tribe to appeal
The Karuk Tribe of Northern California has announced their intent to appeal the recent decision in their suit against the Forest Service. Some of the arguments in this case are similar to those in the SREP case.

The Karuk’s contend that the Forest Service must require a Plan of Operation for all mining in riparian areas.

The judge ruled in favor of the Forest Service and the intervening miners, stating, among other things, “the Forest Service may not interfere with mining that is not likely to result in a significant disturbance of surface resources.”

A more complete review of the ruling was published in the “Legislative and Regulatory Update” section in our August 2005 issue.

• NEPA rewrite drive gets boost from Katrina
The drive to fix the National Environmental Policy Act (NEPA) received a huge boost following the devastating hurricane that struck the gulf coast area.

NEPA, a well-intentioned framework established to evaluate possible environmental impacts of major projects, has evolved into a barrier that often prevents necessary projects from moving forward according to a task force looking at revamping the 35-year-old law.

Following Hurricane Katrina, the task force, made up of 22 members of the House Resources Committee, said NEPA was used at least twice by environmental groups as a tool to block improvements intended to protect New Orleans from a hurricane. It stated the Sierra Club and other environmental groups sued the US Army Corps of Engineers in 1996, successfully blocking a project designed to raise and fortify levees around the city.

The task force also cited a Los Angeles Times story that said Save the Wetlands sued the Corps in 1977 to block a previously planned hurricane barrier around New Orleans. In this case, a federal judge ruled the Corps plans did not comply with NEPA, and the Corps eventually gave up on the plan by the mid-1980s.