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Legal Status of the Roadless Area Conservation Rule
The Roadless Area Conservation Rule was adopted by the U.S. Forest Service on January 12, 2001, after the most extensive public involvement in the history of federal rulemaking. The Roadless Rule generally prohibited road construction and timber cutting in 58.5 million acres of inventoried roadless areas, covering about 30 percent of the National Forest System. In December 2003, the Administration amended the Rule by temporarily exempting Alaska's Tongass National Forests, pursuant to a settlement with the State of Alaska. On May 13, 2005, the Administration repealed the Roadless Rule and replaced it with a State petition process. In addition, the Forest Service re-issued an "interim directive" that generally requires the Chief of the Forest Service to approve road building and logging projects within inventoried roadless areas.
Current legal status of the roadless rule (PDF)
Last updated March 23, 2010
The Roadless Rule
The Roadless Area Conservation Rule came under a coordinated and sustained attack by the timber industry and its allies ever since it was adopted in January 2001. The Ninth Circuit Court of Appeals in December 2002 strongly upheld the legality of the Roadless Rule and reversed a preliminary injunction by the federal district court in Idaho. A federal district court in Wyoming also enjoined the Rule, but the Tenth Circuit Court of Appeals dismissed an appeal and vacated the district court decision as moot in July 2005 because the Rule had been repealed by the Administration. Consequently, the Ninth Circuit decision is the last word of the courts on the Rule's legality. Find out more about the Roadless Rule.
The Roadless Rule in Courts
Idaho and the Ninth Circuit
On May 10, 2001, U.S. District Court Judge Edward Lodge in Idaho issued a preliminary injunction blocking implementation of the Roadless Rule. The Bush Administration elected not to appeal Judge Lodge's decision, but several environmental groups that had intervened in the Idaho lawsuits did appeal. On December 12, 2002, the Ninth Circuit Court of Appeals issued a 2-1 decision reversing Judge Lodge and soundly rejecting the District Court's assertions that the Rule was illegally adopted. In April 2003, the full court of appeals denied a request by the State of Idaho to reconsider its decision. Judge Lodge subsequently postponed any further action in the Idaho case until the Tenth Circuit Court of Appeals ruled on a Roadless Rule case in Wyoming. The Ninth Circuit Court of Appeals covers most of the western United States, including California, Oregon, and Alaska.
Wyoming and the Tenth Circuit
On July 14, 2003, U.S. District Court Judge Clarence Brimmer in Wyoming issued an opinion that directly contradicted the Ninth Circuit in a decision invalidating the Rule and enjoining its implementation. Brimmer also opined that the Roadless Rule violated the Wilderness Act by creating "de facto wilderness areas." As in the Idaho case, the Bush Administration opted not to appeal, but once again environmental intervenors, represented by Earthjustice, appealed.
On July 11, 2005, Tenth Circuit Court of Appeals dismissed environmentalists' appeal of the Wyoming district court decision and vacated the decision, solely on grounds that the case was made moot by the May 13 repeal of the Roadless Rule. The Tenth Circuit's decision marks the end of litigation over the Roadless Rule and clears the way for litigation over the Administration's Roadless Repeal. It also means that the Ninth Circuit Court's decision strongly upholding the Roadless Rule is the controlling case law on the issue of the Rule's legality.
Roadless Repeal and the State Petition Process
On May 13, 2005, the Bush Administration repealed the Roadless Rule and replaced it with a state petition process. The Roadless Rule repeal allows road building and logging to resume in accordance with local forest management plans, and establishes a cumbersome process for individual state governors to request different management rules for roadless areas within their respective states. However, there is no certainty that the process will result in any protection for roadless areas. A governor's petition will not necessarily be accepted, and even if a petition is accepted, the outcome of the subsequent state-specific rulemaking will still be left up to the Administration. Governors have 18 months to submit petitions, which will be reviewed by a national advisory committee. In the meantime, pursuant to a Forest Service "interim directive," road building and logging projects within inventoried roadless areas will generally have to be approved by the Chief of the Forest Service.
The Administration's Roadless Repeal will very likely by challenged in court in the coming months, which could result in reinstatement of the 2001 Roadless Rule.
California and the Ninth Circuit
Judge Elizabeth LaPorte, Magistrate for the U.S. District Court for Northern California, found the Bush administration's repeal of the Roadless Rule to be unlawful, reinstated the Roadless Area Conservation Rule, and issued an injunction on November 29, 2006 halting all activities inconsistent with the rule.
The injunction denied the U.S. Forest Service's request that projects approved during the time the 2001 Roadless Rule was repealed be allowed to proceed. Judge LaPorte stated that because the 2001 rule had been repealed illegally, all projects in roadless areas inconsistent with that rule are also illegal and must be halted.
According to the court's injunction:
- The Bush administration's State Petitions Rule and repeal of the 2001 Roadless Rule are set aside;
- The Roadless Area Conservation Rule, with the exception of the Tongass National Forest in Alaska, is reinstated;
- The U.S. Forest Service was enjoined from taking any further action contrary to the roadless rule outside of the Tongass National Forest in Alaska;
- The U.S. Forest Service was enjoined from approving or allowing any surface use of a mineral lease issued after January 12, 2001, that has not already commenced on the ground and which would violate the Roadless Rule;
- The U.S. Forest Service was enjoined from proceeding with the Coal Creek-Big Creek Road Project, Salmon-Challis National Forest in Idaho for all portions of the project not permitted under the Roadless Rule.
Currently this decision has been appealed by the administration. A schedule for the hearing of the appeal has not yet been set.
Wyoming Refiles its Case in the Tenth District
After the Ninth Circuit Court's decision in the fall of 2006 that reinstated the Roadless Rule, the State of Wyoming requested that the previously vacated court decision be revived. On June 8, 2007, after oral arguments from both sides, Judge Brimmer, denied the motion to reinstate the previous ruling.
As a result, the state of Wyoming refiled its case against the rule and requested a new hearing. On October 19th, 2007, Judge Brimmer heard oral arguments from the Wyoming Attorney General and lawyers representing the federal government and environmental groups. Currently, Judge Brimmer is reviewing documents presented by both sides and his ruling is expected in the near future. Currently, the Roadless Rule remains the governing law for National Forest roadless areas.
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