He's supposedly on "senior status" in his judicial duties - - "a fancy name for half-assed retirement," he says. But on this sunny September day, he's in his courthouse office, still handling a full caseload.
And that's too bad for the environmental movement. Brimmer gained notoriety through court decisions that spurned many green ambitions over the years, including the spread of wolves, grazing restrictions and Yellowstone snowmobile regulations. Even when other judges overrule his decisions, he undercuts the environmentalists' campaigns.
Frail though he appears, now Brimmer is closing in on a major kill. He's determined to wipe out what environmentalists call "the most significant land conservation initiative in nearly a century:" the Roadless Area Conservation Rule.
Imposed by the Clinton administration in 2001, the rule protected 58.5 million acres of national forest, mostly in the West - the wildest portions that were not already designated wilderness. Clinton's rule has since been shoved around by the Bush and Obama administrations, various courts and state governments. People argue whether it still protects all the acres it originally did, or only some or none. Regardless, it's earned superlatives - especially for how the enviros pulled it off.
It was simply "the most extensive national environmental Campaign yet waged in the United States, combining grass-roots organizing in nearly every state; massive infusions of philanthropic support; support from hunters and anglers; religious leaders, scientists, and the outdoor recreation industry; relentless lobbying of Congress and the executive branch; and complex and extremely long-lived litigation," writes Earthjustice's Tom Turner in his recent book, Roadless Rules: The Struggle for the Last Wild Forests.
Brimmer has issued a series of rulings against the roadless rule, most recently last June, when he reaffirmed his nationwide injunction against it. Enviros and the Obama administration appealed that decision, and the 10th Circuit Court of Appeals in Denver will soon begin weighing arguments on the case. The U.S. Congress and the states are also reacting to Brimmer's decision.
In a typical dismissal of Brimmer, an Ivy League enviro lawyer calls him "a crazy rightwing judge for whom reality is irrelevant."
But a closer look reveals things that the environmentalists might rather keep under wraps. The details behind the making of the rule, along with the PR campaign, demonstrate how all interest groups - from liberal enviros to libertarian Tea Partiers - carry out their goals using a mix of idealism, cynicism and brute-force politics.
Brimmer believes the roadless rule was created in a sneaky, illegal way. And he says, "I feel we have to play the cards face up."
By the 1990s, science demonstrated the value of national forest areas where roads had not yet penetrated. They contain some of the best remaining old-growth ecosystems, home to rare spotted owls, salmon and other endangered species. Existing laws protected less than half the roadless areas not in congressionally designated wilderness. Even those protections seemed tenuous, given the timber industry's political power and appetite.
National environmental groups couldn't persuade Congress to pass a law protecting roadless forest in general, and passing a single wilderness bill can take years of frustrating politicking. During the long negotiations, bulldozers often cut new roads through potential wilderness areas, taking them out of the running for strong protection. Roads also bring in weeds, wildlife-stressing traffic and other impacts. Small groups of forest activists protested by chaining themselves to heavy equipment and obstructing loggers in the woods.
That atmosphere of desperation led to the campaign for a large-scale roadless-forest rule. Leaders say it emerged organically, not through any conspiracy. But they agree that three forces provided traction in late 1997: President Clinton pushed the Forest Service to invent some means of protecting roadless areas. The Philadelphia-based Pew Charitable Trusts, reportedly the biggest funder of environmental groups, launched the Heritage Forests Campaign to rally public support. And many other groups were ready to join the effort.
The huge effort was necessary because the environmentalists - in both the campaign and the administration - wanted more than just an executive order issued by Clinton. A Forest Service "administrative rule" would be harder for future presidents to change. Prodded by Clinton, the Forest Service announced its general intentions in October 1999. Then the agency spent 15 months on an environmental impact statement, including rounds of analysis and public comments. About 10,000 people commented in public hearings near the forests and far more than a million commented by mail, fax and e-mail.
"Wholesale and retail organizing" - that's how Rait describes the campaign's strategy. The "wholesale" end used new Internet tools. The groups pooled their e-mail lists and sent out e-mail "blasts" to hundreds of thousands of activists, directing them to Web sites where they could click to generate boilerplate e-mail comments and "e-mail postcards" to the Clinton administration. They "pioneered new electronic tricks," Turner reports, "Internet banner ads, click-through ads on Yahoo, ads that people could send to their friends and colleagues (so-called viral ads)." Specialized tech companies and nonprofits did that work, including The Technology Project, based at the Rockefeller Family Fund in New York, and The Partnership Project, which The Turner Foundation launched in 1999 with a separate $5 million grant just to make groups' e-mail lists more effective.
The "retail" organizing dispatched activists to metro neighborhoods, malls and colleges, asking people to sign pre-printed postcards supporting the roadless rule. "We explained to people the importance of protecting roadless areas and got them to take the first step in political action," recalls Angela Storey, then a college student, who asked thousands of people in Washington state and the Boston area to sign postcards in 1999 and 2000. She says many who did had a "personal connection" with forests through recreation or living nearby. "For me, it was a really important campaign. I grew up in the Cascades and saw the increase in clear-cuts and roads, and I studied biology in college, learning about the massive changes in the environment."
Storey worked with Green Corps, a "graduate school for environmental organizers" run by the U.S. Public Interest Research Group; PIRG generated a torrent of postcard comments across the country. Sporting-goods stores and manufacturers - organized as the Outdoor Industry Association - passed out postcards to their customers. The most surprising player was the Aveda Corp., which sells eco-friendly beauty products and works with salons and spas nationwide. Aveda used its network to persuade more than 80,000 people to sign a petition in support of the roadless rule; many did so while getting their hair or nails done.
More than 1.6 million total comments swamped the Forest Service - "the most extensive public involvement in the history of federal rulemaking," according to The Wilderness Society. More than 90 percent were mass-mailed boilerplate comments supporting the rule one way or another.
The final version of Clinton's rule was published in the Federal Register on Jan. 12, 2001, eight days before Clinton left office. It was cleverly written. It banned logging as well as road construction, with exceptions for public safety or ecosystem health. But it didn't ban off-road driving or mining; the enviros believed they lacked the legal foundation to address those issues in an administrative rule. "We wanted as much protection as we could get that would be legally defensible," Rait says.
In effect, the rule created a new category of federal land: Wilderness Lite. When roadless acres were combined with designated wilderness, about half the total area of the national forests would be protected.
The typical pattern of rage erupted in response. Republican Idaho Sen. Larry Craig, a timber industry champion, called the idea "a hand grenade rolled under my door." Other Western Republicans in Congress denounced it, as did Republican governors, rural county commissioners, timber companies and people who said they preferred access and flexibility to increased federal control.
The leading critics failed to acknowledge the impacts of logging and mining and other industries, or the risks of rural communities locking themselves into undiversified boom-and-bust economies. They ignored the way oil and coal can get presidents such as George W. Bush to shape regulations in their favor. They didn't mind the iron triangles formed by big corporations, right-wing foundations and libertarian think tanks that use money and spin to influence federal land-use policies.
Instead of inspiring an honest dialogue that admitted the blind spots on both sides, the roadless rule fell into court battles. At least nine lawsuits in various federal courts have challenged either the Clinton rule or a 2004 Bush rollback of it. And the courts seem determined to carry on the political wrangling.
Brimmer said that Clinton's rule-making violated the National Environmental Policy Act - - the bedrock law for environmental impact statements - - because it had a "predetermined" outcome and only pretended to be based on analysis and public comment. Brimmer also found that Clinton's rule violated the Wilderness Act by establishing de-facto wilderness areas without Congress.
"In its rush to give President Clinton lasting notoriety in the annals of environmentalism, the Forest Service's shortcuts and bypassing of the procedural requirements of NEPA (have) done lasting damage to our very laws designed to protect the environment," says one of Brimmer's decisions. The roadless rule was "a once-over lightly ... without taking the 'hard look' that NEPA requires."
Brimmer's background made it easy for enviros to see his decisions as politically motivated. But the legal quagmire around the rule is fraught with misunderstandings. Many people see Laporte and Brimmer as dueling judges, issuing contradictory decisions on Clinton's rule. Actually, Laporte focused on Bush's rollback, which was done with no EIS - a process so bogus that no judge has backed it.
Brimmer and lawyers for Wyoming say that he's the only judge whose decisions are based on a full review of the mountainous "administrative record" - the official term for all the federal documents related to Clinton's rule-making that can be made public. And in that record - - and in reams of other evidence gathered by a particularly fierce anti-enviro lawyer who likes to be called the Wicked Witch of the West (see below) - - justification for Brimmer's decisions is piled high.
As the environmentalists' mass-mailed comments piled up, Nancy Thornburg, a retired museum archivist and journalist in Markleesville, Calif., a small town surrounded by the Humboldt-Toiyabe National Forest, wrote a personal comment letter opposing the rule. She also wrote to California Democratic Sen. Barbara Boxer, saying that "stacks of post cards and gang, boilerplate emails should not carry the same weight as carefully thought out letters with specific comments and suggestions." Thornburg included a copy of an alert on the Sierra Club Web site that urged people to get their "stack of cards" to help generate 250,000 postcard comments before the impending deadline. The Sierra Club also sent its chapters a video explaining the issue and asked the chapter leaders to show the tape to its half-million members to generate postcards.
Sen. Boxer forwarded Thornburg's 1999 letter about the mass postcards to the Forest Service, and the head of the Roadless Project, Scott Conroy, responded to Thornburg with a letter assuring her that, according to standard EIS procedure, "If the postcards all have the same message, they are treated as a single comment. ... Their content is given equal weight with that of individually composed comments."
Using that method of counting, the Forest Service's analysis team found that in the biggest round of comments, reacting to the Draft Environmental Impact Statement, "by far ... most comments ... are negative. ... Both those favoring and those opposed to the rule express concern over statements they consider to be vague, subjective, and open to interpretation." Most comments said the hearings for the DEIS were poorly planned and carried out, "held at extremely inconvenient times and locations and that presentations were not sufficiently clear and accurate ... respondents, on both sides of the issue, said the meetings they attended were dominated by persons and groups representing the other side, and they felt too intimidated to stand up in the face of so much opposition and express their own views. ... The overwhelming sentiment expressed is that (the 69-day DEIS comment period) was woefully inadequate and should be extended."
Despite the criticism, in every step - from the initial "scoping" to the DEIS, then to the final impact statement, then to the Federal Register - the roadless rule got tougher, either by covering more and more acres or in its prescriptions. The range of alternatives in both the draft and the final EIS was narrow; other than the "No Action" alternative - which has probably never been selected in the entire 40-year history of EISes - the other alternatives all called for banning road construction in roadless areas. The differences lay in the details. None of the "Action" alternatives considered banning roads only in the most sensitive areas, or setting limits on road densities, strict standards on road construction or other regulations on exactly where roads could be built.
Mike Dombeck, the Forest Service chief at the time, defends the rule-making process. "The instructions (from the White House) were to go ahead and take a look at protecting roadless areas and how we can do it," he says. "Typically, agencies are criticized for not being able to get things done. Then when something does happen, those opposed to it say it happens too fast."
Speaking off the record, one of the top Clintonites during the rule-making acknowledges: "It was a very calculated operation. We weren't signaling at the beginning where we wanted to go, or at least where I wanted to go. If we'd tipped our hand, it would've gotten killed - some conservative Westerners in Congress would've put an appropriations rider on it (cutting off funding) and it would've been dead." He adds, "The process had plenty of integrity - probably more integrity than most EIS processes on highly controversial issues. If this EIS isn't good enough (to survive a legal challenge) none of them are good enough."
Judge Brimmer decorates his office with photos of the orchids he raises in his greenhouse. He has more than 300 orchids from jungles and semitropical habitats. "All colors of the rainbows and exotic shapes," he says. "They're an unusual plant, hard to raise." He's kept some of those plants flowering for more than 40 years. He also displays memorabilia from a lifetime of downhill skiing and awards of appreciation from the regional judges association, the Boy Scouts and the Wyoming Trial Lawyers Association - "for devotion to the cause of justice, inspiring all attorneys."
Brimmer explains his Republican background: "It's a die-hard Republican state. You had to get along with the party or you wouldn't get anywhere." He defends his judicial philosophy: "The enviros view me as an anti-environmentalist - I reject that position heartily. ... I'm not anti-environment." Public hearings, comment evaluation and adequate time in an EIS process "are all valuable rights that a citizen of this country has and they shouldn't be ignored."
Brimmer hasn't thrown out every environmental regulation that came within his reach; he has made some landmark rulings for Wyoming's wildlife. In the famous 1985 Red Rim fence case, he ordered a wealthy ranch owner from out of state to take down a fence that was blocking antelope migration. "I've been for Wyoming - first, last and always," he says. "I'm not trying to be anything I'm not. In 34 years on the bench, one thing I've insisted on is fairness."
Of course, that's what all judges say. But it's a striking image: The whole massive enviro-Clinton juggernaut up against the wisplike Brimmer.
The 10th Circuit Court, which leans Republican, will probably decide the issue next year. The enviros are already making contingency plans.
The Pew Charitable Trusts, which reportedly has about $5 billion devoted to a range of missions, is still funding the Heritage Forests Campaign. It's cranking out ads and alerts urging the Obama administration and Congress to defend Clinton's rule. In May, Obama's secretary of Agriculture, Tom Vilsack, who oversees the Forest Service, declared a "one-year moratorium" in which any activity proposed in most roadless areas must be approved by him. Congress has frequently considered proposals to make Clinton's rule a full-fledged law; the most recent bills were introduced on Oct. 1. Most sponsors aren't from the West, but they include the senators from Washington and California, as well as Oregon Sen. Jeff Merkley, New Mexico Sen. Jeff Bingaman, Arizona Rep. Raúl Grijalva, Washington Rep. Jay Inslee and California Rep. George Miller (all Democrats).
That opens a provocative line of thought. What if the Clinton rule had never been made, or something like the Bush rollback had taken effect? Maybe giving the states more say in roadless forests would have worked out better politically for the environmental movement. Turning Utah's roadless forests over to the mercy of Utah's politics, for instance, might have given the Southern Utah Wilderness Alliance a chance to connect with Utah's hunters and anglers. California and New Mexico have signaled that they want most of their roadless forests preserved. Maybe roadless areas could have been protected in a more bipartisan fashion, within detailed guidelines set by the people in each state. It wouldn't have protected every acre, but enough to satisfy many people.
Dombeck, now a professor of global conservation at University of Wisconsin-Stevens Point, says he hopes Congress or the Obama administration will step up if the 10th Circuit backs Brimmer. "The bottom line, in my view, is that the mechanism of how we keep wild places wild is less important than doing it."
Frampton, who's now with a corporate law firm working on energy and climate issues, says he thinks the roadless rule "will stick forever, but it might take a couple of years of creativity" from Congress and Obama. "Making sure the roadless rule is permanent, that's the first phase. The second phase is to turn much of that into wilderness."
This coverage is supported by contributors to the High Country News Enterprise Journalism Fund.