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Legal news from Saturday, October 22, 2011 |
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Tenth Circuit reinstates Roadless Rule in national forests
Julia Zebley on October 22, 2011 3:58 PM ET

[JURIST] The US Court of Appeals for the Tenth Circuit [official website] unanimously ruled [opinion text] to restore the Roadless Rule [text], ending a 2008 national injunction [JURIST report]. The Roadless Rule blocks road-building and commercial timber harvesting on expanses of roadless areas around the country, primarily the National Forests. The National Forest Services (NFS) and the US Department of Agriculture [official websites] argued that promulgation of the Roadless Rule did not violate the National Environmental Policy Act (NEPA) and the Wilderness Act [texts], and that they believed a national prohibition on the law was inappropriate. The court agreed that a national injunction was not permissible, and that the agencies had leverage to enforce the Roadless Rule:[A]gencies have considerable discretion to define the purposes and objectives of a proposed action, as long as they are reasonable. In this action, the Forest Service stated that the defined purpose of the Roadless Rule was, to provide long-term "protect[ion] [of] the values prevalent in roadless areas" by "immediately stop[ping] activities that have the greatest likelihood of degrading desirable characteristics of [IRAs]."... To achieve the defined purpose of the proposed rule, "the agency determined that only those uses and activities that are likely to significantly alter landscapes and cause landscape fragmentation on a national scale [would] be considered for prohibition in this proposal." [...] Unlike the district court, we will defer to the Forest Service's judgment on this issue. Accordingly, we find that the Forest Service reasonably limited the detailed alternatives analysis to the three alternatives—in addition to the required "no action" alternative—that prohibited road construction, because any alternative permitting road construction to a greater extent would not further the defined objective of the Roadless Rule and would therefore not be "reasonable." Earthjustice [advocacy website], who argued the case for a number of environmental groups, praised [press release] the decision as a major victory: "There's mostly bad news in the headlines these days; this is most definitely of the other kind." However, a defender of the injunction, the Colorado Mining Association [advocacy website] stated [press release, PDF] that the ruling threatens mining jobs in the region, as well as limiting access to vital minerals.
The Roadless Conservation Area Rule was implemented by former president Bill Clinton in 2001 and replaced by the Bush administration in 2005. The Clinton-era rule would have prohibited mining, logging, and road construction in the forests of 38 states and Puerto Rico, totaling more than 58 million acres of land. The Clinton administration measure was effectively overturned [JURIST report] in 2005 by the State Petitions Rule [text], enacted by the US Department of Agriculture [official website] under President George W Bush. The State Petitions Rule allowed governors to petition for Roadless Rule protections, depending on their individual state needs, in lieu of blanket protection. The US Court of Appeals for the Ninth Circuit [official website] in 2009 affirmed a district court ruling reinstating the Roadless Rule [JURIST report], a decision analyzed [JURIST op-ed] by JURIST Hotline contributor Mike Dubrasich, Executive Director of the Western Institute for Study of the Environment [advocacy website]. In March of 2009, the US House of Representatives voted to approve [JURIST report] the Omnibus Public Land Management Act of 2009 [HR 146 materials], a collection of more than 160 bills aimed at preserving federal land as wilderness areas. The Act includes a rule which allows governors to request that regulations on the management of roadless areas be developed to meet the needs of individual states.


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Australia to petition UK to re-open cases of its soldiers convicted of war crimes
Julia Zebley on October 22, 2011 2:07 PM ET

[JURIST] On Friday, Australian Attorney General Robert McClelland [official website] announced [ABC News transcript] that he will be petitioning the United Kingdom's Ministry of Defense [official website] to re-examine the war crime convictions of Australian Lieutenants Harry "Breaker" Morant [advocacy website] and Peter Handcock during the Boer War. Morant and Handcock were convicted through a court martial of murdering Boer civilians and sentenced to death by firing squad 18 hours later. McClelland believes there are issues of judicial fairness that need to be confronted:There was a range of material, for instance in the court of enquiry which was held before the court martial, the accused weren't provided with any legal representation. That enquiry also heard evidence that wasn't provided to the accused. The defense lawyer was engaged with essentially one day's notice. The prosecution had three months and the defense lawyer was put in a conflict of interest representing all three accused rather the accused having separate representation. ... I am advised indeed by government lawyers that if established they would also be heinous breaches of the procedures of 1902. McClelland differentiated the case from previous unsuccessful attempts as looking solely at procedural defects rather than questioning whether or not Morant and Handcock had British orders to shoot the prisoners. He further stated he wanted to make clear to Britain that questions still exist about the government's fair treatment of the Australian soldiers [ABC News report]. Last year, Britain's Secretary of State for Defense, Liam Fox, rejected a petition for pardons brought by several members of Australian parliament.
Morant and Handcock remain the only Australian citizens convicted of war crimes, when they executed Boer civilians and a German missionary in 1901. Both Morant and Handcock claimed they were ordered by British commanders to "take no prisoners" and thus were not culpable for the deaths. A third Australian soldier, George Whitton, was convicted for the murders but was not executed after King George VII received a petition from 80,000 Australian citizens asking for mercy. Morant was well-known as a poet, and his death has been seen by many Australians as an injustice, and a symbol of the United Kingdom's destructive colonial rule over the nation. Despite the support behind absolving Morant and Handcock, many disagree with seeking a pardon for the pair. McClelland admitted that, British orders or not, the two murdered civilians, an act that was unacceptable. The Australian Defense Association [advocacy website] described the petition as arrogant [The Australian report]. Although often regarded as a folk hero in Australia, Morant is viewed in South Africa as a war criminal and citizens have been critical of attempts to pardon the duo [Digital Journal report].


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UN rights expert warns lethal force during arrests could violate international standards
Zach Zagger on October 22, 2011 12:50 PM ET

[JURIST] United Nations Special Rapporteur on on extrajudicial, summary or arbitrary executions, Christof Heyns [official profile], on Thursday urged respect for international standards [press release] concerning the use of lethal force during arrests and warned that the growing use of targeted killings with unmanned drones is legally problematic. Heyns made a report to the UN the General Assembly saying that "International standards provide adequate room for States to pursue their legitimate security interests, both at home and abroad," and warned that abusing these standards to reach short-term goals could cause "long-term damage to the protection of human rights." Heyns said that: While it is correct that lethal force should not be used unless there is a reasonable suspicion that the suspect has committed a crime involving serious violence, or has threatened to do so, that is not enough. For deadly force to be used by the police, there must be an immediate or ongoing threat to the public if the person were to escape. Heyns also warned that the use of unmanned drones for targeted killings is dangerous because it leads to a "global war without borders, in which no one is safe." He called for an international discussion on the growing use of unmanned drones.
The United States has been at the center of controversy with using lethal force to arrest international terror suspects and the targeted killings of terrorist leaders with unmanned drone strikes. Last month, a CIA drone strike in Yemen killed [JURIST report] senior al Qaeda [GlobalSecurity backgrounder] leader and US citizen Anwar al-Awlaki [BBC profile; JURIST news archive]. Last May, US forces killed [JURIST report] al Qaeda leader Osama Bin Laden [WP obituary; JURIST news archive] while attempting to capture him at his hideout in Pakistan. US Attorney General Eric Holder [official website] later defended the killing [JURIST report] saying it was lawful and justified. Testifying before the US Senate Judiciary Committee [official website], Holder said that the shooting of Bin Laden was "consistent with our values," and that the soldiers who killed him "conducted themselves totally appropriately." US State Department [official website] Legal Adviser Harold Koh [official profile] has also defended the legality of both killing Bin Laden and the targeted killings with unmanned drones [JURIST reports].


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