REPORT ON ROADLESS SUIT COURT HEARING

The first hearing on the State of Idaho's suit against the Forest Service over the Roadless Initiative was held on February 8 in Boise. The hearing was held before the United States District Court, for the District of Idaho, Judge Edward Lodge, presiding. Judge Lodge said the hearing would address whether to grant the federal-defendant's motion to dismiss the case, or to let the suit proceed and consider additional information. He acknowledged the importance of the case, and said that a ruling would likely occur "in the near future".

The Idaho State Snowmobile Assn., BlueRibbon Coalition, and American Council of Snowmobile Associations had been granted intervenor-plaintiff status as had the Intermountain Forestry Assn. The judge gave these groups the opportunity to address the court, but stated that they should confine their remarks to only those issues brought up by the State. He noted that the motion to dismiss applied only to the State's claim, and not to other issues brought up by intervenors.

The Idaho Conservation League (and other greens) asked to also address the court. They have applied for intervenor-defendant status, but this has not yet been granted. The judge denied their request. He stated that if he decided that the suit should proceed, then they would likely be granted intervenor status. Kootenai Tribes have also applied for intervenor-plaintiff status.

The Forest Service's counsel, Andrea Berlowe, addressed the court.

  • She stated that the Administrative Procedures Act establishes that only after final agency action can a court challenge be initiated. An agency's actions cannot be challenged during the NEPA process. If there are problems during the scoping period, then those deficiencies can be corrected as the process moves forward; there are additional opportunities to comment. The comment period for the Draft EIS is at least 45 days.

  • She stated that the case is not ripe for judicial review. The courts can't interfere until the NEPA process is complete.

    The State of Idaho's counsel, Matt McKeown, addressed the court:

  • He stated that thc procss currently violates NEPA, and cited that only 60 days were given for public comment; that relevant information was not available (location of roadless areas); that the criteria for identifying unroaded areas was not established. There was insufficient information for meaningful participation.

  • The State only wants meaningful participation, and does not want to dump the process. The State only asks for 120 additional days during which crucial information can be acquired and addressed. He cited court cases that support this, and that Council on Environmental Quality rules support this.

    Intermountain Forestry Assn.'s counsel, Bruce Smith, addressed the court:

  • IFA concurs with the state. The government has failed to acknowledge the scope and uniqueness of this case. The NEPA on a simple timber sale takes 2 to 5 years. This NEPA analysis involves 40 to 60 million acres, yet the Notice of Intent was prepared in 4 days and is internally conflicting and inconsistent. This is not the normal case. There will be no opportunity to review and correct current deficiencies at a later date because the process is moving forward too fast. Issues failed to be raised now can't be challenged later.

    ISSA-BlueRibbon-ACSA's counsel, Paul Turcke, addressed the court:

  • He noted that the case represented a procedural injury, an injury that is continuing to occur (as opposed to a final action). On-the-ground activity is currently adversely affected as evidenced by Don Amador's declaration. He also cited the insufficiency of the comment period.

    Forest Service counsel responded to the court:

  • She restated the agency's original argument, that the case was not ripe for judicial review and should be dismissed.

  • The judge remarked to her that the plaintiffs are afraid they won't be heard (due to the conduct of the scoping and the apparent truncated process).

  • She said the agency has the authority to define the frame of the issue.

  • The judge said that the scoping process is to be meaningful. If there are no maps and insufficient information, how can there be meaningful participation.

  • She said these questions cannot be asked of the court until the end of the administrative process. It's not ripe for review now.

    The judge again stated that there would be a prompt response by the court on the motion to dismiss.

    Also.....

    On Feb. 7, the Governor of Montana requested that the court allow him to submit an amicus (friend of the court) brief in support of the State of Idaho.

    On Feb. 8, the State of South Dakota requested that the court allow the State to submit an amicus (friend of the court) brief in support of the State of Idaho.

    Idaho Governor Dirk Kempthorne said Feb. 12 that the State of Nebraska would also take this action.

    If the judge grants the government's motion to dismiss, that will be the end of it; there will be no new intervenors, no additional information from intervenors, and no amici briefs. We'll see what happens!!!!