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On the same day that the Bush administration announced its support of a Clinton administration rule to protect national forests from new roads and logging, the Bush Justice Department filed papers in an Idaho district court that undermined that support. In its defense against an industry-backed legal challenge to the “roadless rule,” the government conceded that the rule would cause the plaintiffs irreparable harm. The judge cited this admission in granting an injunction that the logging and the snowmobile industries and the state of Idaho had sought that will block the rule. Environmental critics charge that the Bush administration has consistently mounted a lackluster defense of the rule and dragged its feet in the case. “It’s hypocritical,” says Doug Honnold, a lawyer with Earthjustice Legal Defense Fund. “On the one hand, they’re trying to convince the American public they uphold the rule, but everything they’ve done administratively and in the judicial process can only be seen to help gut the rule.” Honnold represents several environmental groups that have intervened as defendants. On May 4, Agricultural Secretary Anne Veneman said that the Bush administration would implement Clinton’s Roadless Area Conservation Rule, which would have become effective May 12, banning new roads and logging in 58.5 million acres, mostly in the West. “This administration is committed to providing roadless protection for our national forests,” a press release said. Accompanying that promise, however, were plans to make amendments to the rule, which suggested that local officials would have more control over the policy. Environmentalists say that would undermine the goal of having a cohesive national policy. Some environmentalists charge that the administration aims to put the blame for disabling the rule on the courts, while taking credit for an effort to preserve the popular protections for national forests. The rule was announced in the last days of the Clinton administration. President Bush postponed its effective date to consider whether to implement it. Meanwhile, the plaintiffs sued the U.S. Forest Service, claiming that the rule was improperly adopted and thus illegal on statutory grounds. The state of Idaho asked for a preliminary injunction on the ground that the ban would prevent forest management to fight disease, insect infestations and fires. The intervenor defendants, which include the Idaho Conservation League, the Sierra Club and The Wilderness Society, opposed the injunction. Among other arguments, the groups claimed it would harm the environment by permitting timber sales to go forward that otherwise would have been banned. Department of Justice lawyers asked the court to postpone a decision on the injunction until after May 4, when the administration was to finish its review of the rule. A brief, filed in March, contained a passage that environmentalists say bolstered the state’s argument and invited an injunction. The government told the court that it had several options to remedy any harm to the plaintiffs but detailed only the following: “For instance, the Court could fashion an appropriate remedy — including a one- to two-month stay of the effective date of the regulation — to preserve the status quo for a brief additional period pending resolution of the merits.” The brief took a poke at environmentalists’ opposition to an injunction, saying that speculation about impending timber was insufficient to show irreparable harm. At a March 30 hearing on the preliminary injunction, the federal government used just four of its allotted 30 minutes to make a case. A lawyer read a statement repeating the request for a postponement of the decision. On April 5, Judge Edward Lodge agreed to wait until after the government’s status report was filed to make a decision. He leaned toward the plaintiffs on the merits of the attack on the rule-making process. But he said that it was premature to determine the issue of irreparable injury. Judge Lodge also noted what had frustrated the intervenors — that the government had not argued that the rule was legal as a matter of law or that it was legally adopted. On the day that Secretary Veneman announced the administration’s support of the road ban, Department of Justice lawyers submitted their status report on behalf of the U.S. Department of Agriculture (USDA). The government opposed the injunction but wrote, “Although the USDA shares plaintiffs’ concerns about the potential for irreparable harm in the long term under the current Rule, it would appear unlikely that such harm will occur in the short term.” In his May 10 order granting the injunction, Judge Lodge criticized the government. He said its proposed amendments to the rule — promises for informed decision-making, working with local communities and protecting forests from wildfire and disease — were vague. But irreparable harm was all that was hanging in the balance, he said. “As previously noted, Plaintiffs need only make a minimal showing of harm to justify an injunction,” he wrote, “Here, the Federal Government has conceded that without the proposed rulemaking amending the Roadless Rule there is a potential for long-term irreparable harm.” The Justice Department declines to discuss its litigation strategy, saying it has “worked closely with its client, the USDA, and has made its arguments in court accordingly.” The Department of Agriculture also declines to comment. Environmentalists complain that duplicity is becoming routine in President Bush’s approach to environmental policy. “The Bush administration said that it was supporting the snowmobile ban in Yellowstone and Grand Teton Park,” Honnold says. “But at the same time, what was going on behind closed doors are settlement discussions with the snowmobile manufacturers.” In Idaho, the environmental intervenor-defendants have filed an expedited appeal on the injunction. The government hasn’t yet decided whether it will appeal, also prompting criticism by environmentalists. “Everything they’ve said every time they had an opportunity is, ‘Don’t bother us, we’re taking a look at this or we don’t like it either,’ ” Honnold says. “ That’s a pretty unusual litigation posture unless you’re intent on reversing the field.”

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