Legal Status of the Roadless Area Conservation Rule (August 2004)
The Roadless 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 prohibits road construction and timber cutting in 58.5 million acres of inventoried roadless areas, covering about 30 percent of the National Forest System. Almost immediately after the rule was promulgated, the Bush Administration held up implementation pending an internal policy review. In addition, opponents of the rule filed a total of nine lawsuits in five different federal district courts.
In May 2001, the Administration announced its qualified support for the Roadless Rule, saying it would implement the Roadless Rule but also change the rule to address concerns. 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 July 12, 2004, the Administration proposed to replace the Roadless Rule with a State petition process. A two-month public comment period on the Administration's proposal ends on September 14.
Roadless Rule In The Courts
The Roadless Area Conservation Rule has been under a sustained attack by the timber industry and its allies ever since it was adopted in January 2001. While the rule is currently enjoined in Wyoming until the appeal is resolved or the rule is changed, citizens may still go to court to enforce the rule in all other states in the lower 48. The Wyoming court decision has been appealed by environmental intervenors but not by the Administration. The Rule has specifically been upheld by the Ninth Circuit Court of Appeals in a challenge by timber companies and the State of Idaho.
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. Since then, Judge Lodge has postponed any further action in the Idaho case until the Tenth Circuit Court of Appeals rules 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 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, have appealed. This appeal is similar to the one that environmentalists have already won in the 9th Circuit Court.
The Administration is working with foes of the Roadless Rule in an effort to dismiss the environmental intervenors' appeal. The Department of Justice in November 2003 filed a brief in support of the State of Wyoming's motion to dismiss the appeal, arguing that intervenors should not be allowed to interfere with the Administration's policy decision not to appeal Brimmer's ruling. The Tenth Circuit Court is expected to rule on the appeal sometime in 2005.
Judge Brimmer's injunction against the Roadless Rule, while it states that it is nationwide, does not mean that the Roadless Rule has ceased to exist. Citizens can still sue to enforce the Rule anywhere outside of Wyoming. For example, on August 20, 2004, a federal district court in California enforced the Roadless Rule in blocking a timber sale within the Duncan Canyon Roadless Area. In addition, the Bush Administration can still defend the Roadless Rule in other cases notwithstanding Judge Brimmer's decision.
Alaska Settlement and Rule Amendments
On June 12, 2003, the Bush Administration announced that it had settled a lawsuit filed by the State of Alaska against the Roadless Rule. The State had argued that the rule violated the Alaska National Interest Lands Conservation Act by creating new land conservation units within Alaska's two national forests. The Administration agreed to propose amending the rule to exempt both the Tongass and Chugach National Forests. On July 15, the Administration proposed a rule temporarily exempting the Tongass, along with an advance notice of proposed rulemaking to permanently exempt the Tongass and Chugach.
Despite overwhelming public opposition to the proposed exemption, the Administration adopted a final rule on December 30, 2003, that temporarily exempts the Tongass from the Roadless Rule. The Tongass exemption will remain in effect until it is set aside or the Administration adopts a final rule dealing with the Roadless Rule for both the Tongass and Chugach forests. The Tongass exemption helps pave the way for more than fifty roadless area timber sales to proceed.
North Dakota Settlement Talks
In September 2003, attorneys for the Bush Administration, plaintiffs, and intervenors in the two North Dakota cases met with a magistrate judge to discuss potential settlement terms. These discussions are confidential and difficult to monitor, and at this time no settlement has been announced.
Proposed State Petition Process
On July 12, 2004, the Bush Administration proposed to replace the Roadless Rule with a State petition process. In essence, the proposal would repeal the Rule, allow road building and logging to resume in accordance with local forest management plans, and establish a cumbersome process for individual State governors to request different management rules for roadless areas within their respective States. There is little reason to believe, however, that the process would result in any protection for roadless areas. A governor's petition would not necessarily be accepted and, even if a petition is accepted, the outcome of the subsequent State-specific rulemaking would still be left up to the federal Administration. Faced with meeting burdensome process requirements and lacking control over the results, few if any governors might choose to use the petition process. The Administration's proposal is open for public comment until September 14.
The Forest Service in July 2004 also 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, but allows several exceptions.
Although the Bush Administration's public statements have repeatedly professed support for the Roadless Rule, in fact it has worked covertly to defeat and weaken the rule. Following are some examples of the Administration's contradictory statements and actions.
Statement: At his Senate confirmation hearing on January 17, 2001, Attorney General John Ashcroft promised that he would "support and enforce" the Roadless Rule.
Actions: An investigative report by the Senate Committee on Governmental Affairs (Rewriting the Rules, Oct. 24, 2002) found evidence that the Bush Administration secretly worked to subvert the Roadless Rule: "The documents reviewed contained proposals and option papers discussing tactically how to achieve the desired result an overturning of the rule as written." In particular, the committee uncovered the Administration's "apparent strategy of using the [Idaho] court case to undermine the rule."
Statement: On May 4, 2001, Department of Agriculture Secretary Ann Veneman announced that the Forest Service "will implement the Roadless Area Conservation Rule.... This Administration is committed to providing roadless protection for our national forests." Veneman also stated, "Through this action, we are reaffirming the Department of Agriculture's commitment to the important challenge of protecting roadless values."
Actions: The Senate Governmental Affairs Committee report (p. 43) concluded, "Despite the Secretary's assertions, it is clear from the documents that the USDA was in fact working to undermine the very protections the Secretary claimed to support."
Statement: On June 9, 2003, the Department of Agriculture issued a press release proclaiming, "USDA Retains National Forest Roadless Area Conservation Rule." Secretary Veneman is quoted saying, "We are committed to maintaining the character of designated, authentic roadless areas."
Actions: The Administration had just completed secret settlement discussions with the State of Alaska and had agreed to commence proceedings to exempt all roadless areas in Alaska from the Roadless Rule, a process that resulted in allowing more than fifty timber sales to proceed in the Tongass National Forest.
Statement: On July 12, 2004, USDA Secretary Veneman said that the proposal to replace the Roadless Rule with a State petition process "illustrates our commitment to working closely with the nation's governors to meet the needs of local communities, and to maintaining the undeveloped character of the most pristine areas of the National Forest System."
Actions: One week earlier, the Bush Administration approved a plan to log more than 8,000 acres of inventoried roadless areas in the Siskiyou National Forest, despite strong opposition by Oregon Governor Ted Kulongoski. The State of Oregon has appealed the plan to log the Siskiyou roadless areas, pointing out that the Administration's plan is "fundamentally at odds with its rhetoric espoused in connection with the proposed amendment of the Roadless Rule to vest control over decisions with the states."
The Bush administration's actions regarding the Roadless Rule have often contradicted its statements, raising serious questions about its roadless area policy position and strategy. Following are a few questions left to be answered by the Bush administration:
- Will the Administration defend the Roadless Rule in the Idaho court case, now that it has been remanded by the Ninth Circuit? Will it defend any of the other pending cases?
- Why did the Administration not appeal Judge Brimmer's injunction?
- Is the Administration working to weaken the Roadless Rule through Alaska-style secret settlement discussions in other court cases, such as in North Dakota?
- How does exempting the Tongass National Forest from the Roadless Rule protect roadless area values?