Big Road Victory
Utah won a big victory in its battle to preserve rural roads and rural lifestyles.
This battle concerns special interest groups' campaign to manufacture wilderness by eliminating roads. The roads in question were established across federal lands pursuant to an 1866 law intended to promote settlement of the West. The district court, rather than interpret the law as it had been written in 1866, agreed that BLM could impose newly created standards to determine whether roads were actually roads. No surprise, the result was that counties did not meet the standards that had been newly created specifically to eliminate roads.
For example, BLM and the special interests would have required that the roads be constructed "mechanically" -- a standard that undoubtedly would leave 1866 lawmakers scratching their heads. Also, the wilderness advocacy groups argued that the roads were invalid because they don't go anywhere important (like to WalMart, I guess). So, where do the roads go? To overlooks of land proposed by the special interest groups for wilderness designation. Yes, if you follow the reasoning, wilderness advocates argue that WalMarts are more important that wilderness areas, but there you have it.
The Court of Appeals properly ruled that the validity of these roads must be determined according to the standards that were in place when the roads were created, not the revisionist standards created after the rights had been established. Now, interests and activities built up around these roads can continue. Though I see the spinmeisters are working hard, this decision simply means that the rule of law won.
Though the onslaught was vicious, efforts by the Clinton Administration to undo rural Utah communities by redefining roads and wilderness have fallen short. But as the comments of the special interest groups indicate, there are many, many battles left to fight. Rather than leave the issues up to judges and subject the rural counties to endless litigation, Congress needs to step up to the plate and end these disputes.
This battle concerns special interest groups' campaign to manufacture wilderness by eliminating roads. The roads in question were established across federal lands pursuant to an 1866 law intended to promote settlement of the West. The district court, rather than interpret the law as it had been written in 1866, agreed that BLM could impose newly created standards to determine whether roads were actually roads. No surprise, the result was that counties did not meet the standards that had been newly created specifically to eliminate roads.
For example, BLM and the special interests would have required that the roads be constructed "mechanically" -- a standard that undoubtedly would leave 1866 lawmakers scratching their heads. Also, the wilderness advocacy groups argued that the roads were invalid because they don't go anywhere important (like to WalMart, I guess). So, where do the roads go? To overlooks of land proposed by the special interest groups for wilderness designation. Yes, if you follow the reasoning, wilderness advocates argue that WalMarts are more important that wilderness areas, but there you have it.
The Court of Appeals properly ruled that the validity of these roads must be determined according to the standards that were in place when the roads were created, not the revisionist standards created after the rights had been established. Now, interests and activities built up around these roads can continue. Though I see the spinmeisters are working hard, this decision simply means that the rule of law won.
Though the onslaught was vicious, efforts by the Clinton Administration to undo rural Utah communities by redefining roads and wilderness have fallen short. But as the comments of the special interest groups indicate, there are many, many battles left to fight. Rather than leave the issues up to judges and subject the rural counties to endless litigation, Congress needs to step up to the plate and end these disputes.
posted by steve u. at 9/10/2005
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3 Comments:
Mr. U,
Sorry to post the subject of judicial activism on this thread, but I was afraid you wouldn't see it.
Bear with me...I'm confused. When you say judicial activism, what exactly do you mean. Where and when does it occur that judges write a law, then enact it. I thought legislators write prospective laws, then get approved by congress and signed into law by the president. The courts determine whether the new laws are constitutional. You talk about Judicial Activism as if the judges write the law instead of just interpret it. If you don't agree with their interpretation, then that is a whole 'nother issue.
I wonder if you complained vociferously about judicial activism when the Bush administration tried to bully the judges into making a new law for "one person" during the Terry Schaivo case. (this happens to be against the law, but I guess you can interpret the constitution any way you want when it is meaningful for you!) The Bushies were looking to coerce and intimidate judges to be activists in their favor. i.e. reinterpret the law meaningful to the religious right. Don't you think?
I think what I hear when people talk about judicial activism, and what the Bushies are intimating, is that the interpretation of the constitution does not meet the platform of the neo-conservative or religious agenda. Therefore you and others call it judicial activism. What it really is, is just a decision that you don't like. IT IS NOT WRONG...JUST DOESN'T FIT YOUR AGENDA!
When Bush tries to push through Roberts and some other ultra-conservative judge...and the less conservative or liberal calls them judicial activists because they are adjusting the laws to their interpretations, will you complain then?
There are hundreds of versions of Christianity. Dare you call any of them wrong? Each religious group, be it Episcopalian, Methodist, Mormon, Baptist...interprets the bible the way they see fit. The constitution is no better than or different from the bible in that it is simply a group of written words that are up for interpretation. Some will focus on the need to convert everyone to their faith of choice. Some will focus on the need to respect other's choices and not pressure for conversion. Some will kill for their belief. Some will 'turn the other cheek'. Each 'ACTS' in their own way. that makes them activists.
Sounds like what your saying is that the courts should be ACTING the way you want them to. So rather than the issue being judicial activism, the issue really is that the courts follow your system of beliefs. I just wanted to clarify!
Alan
Mr. U,
I wanted to wish you good luck and ask you a quick question.
What current U.S. Senator(s) would you say you are most similar to and would be most similar to in the Senate?
-thanks for your time
I have to disagree with Doc's characterization in his comment above of "judicial activism" merely as a judge ruling in a way that is disagreeable to one's own politics. Judicial activism, in contrast to judicial restraint, refers to a belief among some judges that courts ought to play an affirmative role - that judicial power ought to be wielded - to promote the judge's own view of the social good. Such activism is liberal or conservative depending upon what the judge views as the social good. If the judge thinks a right to gay marriage is a social good, and if he rules based on his views, he will be called liberal. If the judge thinks the social good is promoted by unfettered markets, then that judge's activism would probably be widely characterized as conservative. It is nevertheless no less activist for it.
By comparison, judicial restraint is concerned with preserving to the other branches of government their roles as the shapers of social policy with the consent of the governed. Such judges will defer to legislative judgment even when it disagrees with the judge's own conception of the social good. Whether judicial restraint benefits primarily liberal or conservative views depends entirely on what sort of legislative judgment is being deferred to.
There are other definitions of judicial activism - legislating from the bench, ignoring constitutionally sound precedent, utilizing bizarre or contrived interpretive methods. In any case activism may be put to the service of either liberal or conservative policy preferences. And judicial restraint might preserve either liberal or conservative policies. The complaint about judicial activism isn't a complaint about judgments with which one disagrees. It is rather a statement about the proper role of judges in a democracy.
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