Judge rejects Bush forest regulations

In a summary judgment Tuesday, a Missoula federal judge rejected three Bush administration-era regulations that for three years have shielded U.S. Forest Service projects from public scrutiny and appeals.

Ruling on a lawsuit filed by several like-minded conservation groups against the Forest Service, Chief U.S. District Court Judge Donald Molloy issued a nationwide injunction against the regulations, declaring them unlawful and calling them "invalid and contrary to the ARA (1992 Forest Service Decisionmaking & Appeals Reform Act)."

That statute requires the undersecretary of Agriculture, Mark Rey, and the chief of the Forest Service, Dale Bosworth, to establish and maintain a public notice and comment process for any national forest projects moving forward.

But according to the 2003 lawsuit, brought by the Wilderness Society, American Wildlands and Pacific Rivers Council, the government was skirting and subverting the public comment process by exploiting legal loopholes.

"It was a closed-door, secret process where the Forest Service was essentially thumbing its nose at the public," said Doug Honnold, an attorney who represented the conservationists in the case. "We should have an open, democratic process where the Forest Service at least has to listen to the public's suggestions."

In his order, Molloy bolstered a legal precedent by reversing three regulations previously invalidated by a federal court in California.

One of those regulations required that members of the public submit "substantive comment" prior to a Forest Service project, or else lose the right to challenge that project.

But according to Honnold, the "substantive comment" requirement was a "serious problem," and members of the public often wouldn't know whether a project threatened their interests until the deadline for redress had passed.

"In a lot of cases, you might not know if a logging project was going to have an impact on the American bald eagle or affect your drinking water until after the deadline for public comment," Honnold said.

In agreement, Molloy wrote that the regulation "narrows the parties holding a right to appeal from those who have notified the Forest Service of their interest in the proposed action to those who have filed 'substantive comments.' "

Molloy's decision immediately replaces the illegal rule with another statute that governed the Forest Service appeals process for nearly a decade - from 1993 until the Bush administration revised it in 2003.

Molloy also declared unlawful a Forest Service rule that allowed the government to exclude the public from management decisions by seeking project approval directly from the secretary or undersecretary of Agriculture, rather than the Forest Service itself.

Defense attorneys argued that approval from a higher authority exempted a project from the public comment process.

However, Molloy ruled that any national forest project must be transparent to members of the public, in spite of approval from above.

Honnold said the buck shouldn't stop with Undersecretary Rey, who is a former lobbyist for the timber industry, and that Molloy's ruling revives the public's role in the decision-making process.

"The public's right to be involved in decision-making on national forest projects is a democratic issue," Honnold said. "The Forest Service should listen to the people who use the national forests and care about them."

Molloy rejected a third rule that exempts from the public review process "all Forest Service projects that have been categorically excluded' from public comment under the National Environmental Policy Act."

"Exempting a project from NEPA analysis cannot happen, because what the Forest Service calls 'small potatoes' might really be a logging project with huge impact," Honnold said.

Shawn Regnerus, the water program coordinator at American Wildlands, said Molloy's decision is a perfect example of how the democratic process functions.

"This is just a classic checks and balances kind of case, where the judicial branch calls out the administration," Regnerus said. "This was an attempt by the Bush administration to make it difficult for the average citizen to have a real public role in how our national forests are managed.

"Public lands are a big part of why a lot of us live in Montana," he added. "Pulling the public out of those decisions I think is undemocratic."