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. The Roadless Rule came under a coordinated and sustained attack by the timber industry and its allies immediately after it was adopted in January 2001, and over eight years later, a final resolution has not yet been reached.
Currently, the 2001 Roadless Rule is in effect nationwide except in Idaho and in Alaska’s Tongass National Forest. Thus, the Forest Service may not undertake activities that violate the Roadless Rule on 40 million out of the 58.5 million total acres of inventoried roadless areas. Roadless area projects in the Tongass National Forest are subject to approval by the Secretary of Agriculture.
The Status of the Tongass
In December 2003, the Bush Administration amended the Roadless Rule by temporarily exempting the Tongass National Forest’s 9.3 million acres of inventoried roadless areas from the Rule. The exemption, which was adopted pursuant to a settlement of litigation brought by the state of Alaska, was supposed to remain in effect only until the Administration adopted a permanent rule for Alaska. However, no further rulemaking has occurred in Alaska, leaving the legally-viable duration of the Tongass exemption in doubt.
In April 2007 the Forest Service agreed to temporarily defer timber sales in the Tongass roadless areas through settlement of a lawsuit over the Tongass land management plan. The Tongass logging moratorium continued until the Forest Service completed a revision of its management plan, which occurred in February 2008.
We are now waiting to see whether the Obama Administration will continue the temporary exemption of the Tongass from the Roadless Rule.
The State Petitions Rule and its Demise
In May 2005, the Administration repealed the Roadless Rule and replaced it with a state petition process. The State Petitions Rule allowed road building and logging to resume in accordance with local forest management plans, and established a cumbersome process for individual state governors to request different management rules for roadless areas within their respective states. However, there was no certainty that the petition process would result in any protection for roadless areas.
In September 2006, Judge Laporte, a federal judge in California, invalidated the Bush Administration’s State Petitions Rule and reinstated the 2001 Roadless Rule nationwide, except in the Tongass. Judge Laporte held that the State Petitions Rule amounted to a repeal of the Roadless Rule and had been promulgated without complying with the requirements of the National Environmental Policy Act and the Endangered Species Act. The Bush Administration appealed that ruling to the Ninth Circuit.
Undeterred by the California court’s invalidation of the State Petitions Rule, the Bush Administration relied on general authorities of the Administrative Procedure Act to continue pursuing state-specific amendments to the Roadless Rule. Federal rulemaking processes were initiated for roadless areas in Idaho and Colorado. In October 2008, the Administration adopted a separate roadless rule for the state of Idaho, which has since been challenged in federal court. In Colorado, a draft rule was published in 2008 but not finalized prior to the end of the Bush Administration in January 2009.
On August 5, 2009, the Ninth Circuit Court of Appeals affirmed the California district court decision invalidating the Bush Administration’s rule and reinstating the 2001 Roadless Rule. The Ninth Circuit decision required the Forest Service to comply with the Roadless Rule in all national forests except those in Idaho (due to the separate Idaho rule) and the Tongass National Forest, (due to the Tongass temporary exemption).
Yet to be determined is whether the Obama Administration will finalize a Colorado rule and whether the Idaho rule will stand up in court.
Conflicting Judicial Decisions
Contrary to court decisions in the Ninth Circuit upholding the legality of the Roadless Rule, the Wyoming federal district court has twice declared the Rule to be invalid. In August 2008, Judge Brimmer released his second decision on the Roadless Rule, once again ruling that it violated NEPA and the Wilderness Act and enjoining the Forest Service’s use of the Rule nationwide. Environmental intervenors have again appealed Judge Brimmer’s decision to the Tenth Circuit, and on August 6, 2009 the Obama Administration joined them in that appeal.
Since Judge Brimmer’s injunction was in direct conflict with Judge Laporte’s injunction in California district court, the Bush Administration requested that both the Wyoming and California district courts suspend or change their injunctions in order to relieve the Forest Service of the potential to be held in contempt of court for complying or not complying with the Roadless Rule. In December 2008, Judge Laporte issued a partial stay of her injunction, temporarily reducing the geographic scope of her 2006 injunction to states located within the Ninth Circuit, plus New Mexico (since it is one of the state co-plaintiffs). However, now that the Ninth Circuit has affirmed Judge Laporte’s 2006 decision, the temporary stay has been lifted and the Roadless Rule is back in effect nationwide (except in Idaho and the Tongass National Forest).
Meanwhile, in June 2009, Judge Brimmer denied the government’s request and continued his nationwide injunction prohibiting the Forest Service from implementing the Rule. Judge Brimmer’s decision cleared the way for the Tenth Circuit to begin to consider environmentalists’ appeal of Judge Brimmer’s initial 2003 decision.
We are now waiting to see whether the Tenth Circuit will reverse or affirm Judge Brimmer’s decision that the Roadless Rule violated NEPA and the Wilderness Act.
Interim Direction
On May 28, 2009, the Obama Administration issued a one-year interim directive requiring approval by the Secretary of Agriculture of any road-building or logging projects in roadless areas. The directive does not apply to roadless areas in Idaho, but does apply to those in the Tongass National Forest.
Conclusion
The current status of the 2001 Roadless Rule is that all National Forests with Inventoried Roadless Areas, except those in Idaho and the Tongass, must comply with the 2001 Roadless Rule. Conflicting decisions by the Ninth Circuit Court of Appeals and the Wyoming district court put the Forest Service in a difficult legal position, which will likely continue at least until the Tenth Circuit decides on the appeal of Judge Brimmer’s decision. It is also possible that the Obama Administration could identify a new administrative approach to resolving lingering and conflicting roadless questions, or that Congress could choose to independently protect roadless areas.
— Mike Anderson is an attorney with The Wilderness Society.
— Sarah Peters is Legal Liaison for Wildlands CPR.
Currently, the 2001 Roadless Rule is in effect nationwide except in Idaho and in Alaska’s Tongass National Forest. Thus, the Forest Service may not undertake activities that violate the Roadless Rule on 40 million out of the 58.5 million total acres of inventoried roadless areas. Roadless area projects in the Tongass National Forest are subject to approval by the Secretary of Agriculture.
The Status of the Tongass
In December 2003, the Bush Administration amended the Roadless Rule by temporarily exempting the Tongass National Forest’s 9.3 million acres of inventoried roadless areas from the Rule. The exemption, which was adopted pursuant to a settlement of litigation brought by the state of Alaska, was supposed to remain in effect only until the Administration adopted a permanent rule for Alaska. However, no further rulemaking has occurred in Alaska, leaving the legally-viable duration of the Tongass exemption in doubt.
In April 2007 the Forest Service agreed to temporarily defer timber sales in the Tongass roadless areas through settlement of a lawsuit over the Tongass land management plan. The Tongass logging moratorium continued until the Forest Service completed a revision of its management plan, which occurred in February 2008.
We are now waiting to see whether the Obama Administration will continue the temporary exemption of the Tongass from the Roadless Rule.
The State Petitions Rule and its Demise
In May 2005, the Administration repealed the Roadless Rule and replaced it with a state petition process. The State Petitions Rule allowed road building and logging to resume in accordance with local forest management plans, and established a cumbersome process for individual state governors to request different management rules for roadless areas within their respective states. However, there was no certainty that the petition process would result in any protection for roadless areas.
In September 2006, Judge Laporte, a federal judge in California, invalidated the Bush Administration’s State Petitions Rule and reinstated the 2001 Roadless Rule nationwide, except in the Tongass. Judge Laporte held that the State Petitions Rule amounted to a repeal of the Roadless Rule and had been promulgated without complying with the requirements of the National Environmental Policy Act and the Endangered Species Act. The Bush Administration appealed that ruling to the Ninth Circuit.
Undeterred by the California court’s invalidation of the State Petitions Rule, the Bush Administration relied on general authorities of the Administrative Procedure Act to continue pursuing state-specific amendments to the Roadless Rule. Federal rulemaking processes were initiated for roadless areas in Idaho and Colorado. In October 2008, the Administration adopted a separate roadless rule for the state of Idaho, which has since been challenged in federal court. In Colorado, a draft rule was published in 2008 but not finalized prior to the end of the Bush Administration in January 2009.
On August 5, 2009, the Ninth Circuit Court of Appeals affirmed the California district court decision invalidating the Bush Administration’s rule and reinstating the 2001 Roadless Rule. The Ninth Circuit decision required the Forest Service to comply with the Roadless Rule in all national forests except those in Idaho (due to the separate Idaho rule) and the Tongass National Forest, (due to the Tongass temporary exemption).
Yet to be determined is whether the Obama Administration will finalize a Colorado rule and whether the Idaho rule will stand up in court.
Conflicting Judicial Decisions
Contrary to court decisions in the Ninth Circuit upholding the legality of the Roadless Rule, the Wyoming federal district court has twice declared the Rule to be invalid. In August 2008, Judge Brimmer released his second decision on the Roadless Rule, once again ruling that it violated NEPA and the Wilderness Act and enjoining the Forest Service’s use of the Rule nationwide. Environmental intervenors have again appealed Judge Brimmer’s decision to the Tenth Circuit, and on August 6, 2009 the Obama Administration joined them in that appeal.
Since Judge Brimmer’s injunction was in direct conflict with Judge Laporte’s injunction in California district court, the Bush Administration requested that both the Wyoming and California district courts suspend or change their injunctions in order to relieve the Forest Service of the potential to be held in contempt of court for complying or not complying with the Roadless Rule. In December 2008, Judge Laporte issued a partial stay of her injunction, temporarily reducing the geographic scope of her 2006 injunction to states located within the Ninth Circuit, plus New Mexico (since it is one of the state co-plaintiffs). However, now that the Ninth Circuit has affirmed Judge Laporte’s 2006 decision, the temporary stay has been lifted and the Roadless Rule is back in effect nationwide (except in Idaho and the Tongass National Forest).
Meanwhile, in June 2009, Judge Brimmer denied the government’s request and continued his nationwide injunction prohibiting the Forest Service from implementing the Rule. Judge Brimmer’s decision cleared the way for the Tenth Circuit to begin to consider environmentalists’ appeal of Judge Brimmer’s initial 2003 decision.
We are now waiting to see whether the Tenth Circuit will reverse or affirm Judge Brimmer’s decision that the Roadless Rule violated NEPA and the Wilderness Act.
Interim Direction
On May 28, 2009, the Obama Administration issued a one-year interim directive requiring approval by the Secretary of Agriculture of any road-building or logging projects in roadless areas. The directive does not apply to roadless areas in Idaho, but does apply to those in the Tongass National Forest.
Conclusion
The current status of the 2001 Roadless Rule is that all National Forests with Inventoried Roadless Areas, except those in Idaho and the Tongass, must comply with the 2001 Roadless Rule. Conflicting decisions by the Ninth Circuit Court of Appeals and the Wyoming district court put the Forest Service in a difficult legal position, which will likely continue at least until the Tenth Circuit decides on the appeal of Judge Brimmer’s decision. It is also possible that the Obama Administration could identify a new administrative approach to resolving lingering and conflicting roadless questions, or that Congress could choose to independently protect roadless areas.
— Mike Anderson is an attorney with The Wilderness Society.
— Sarah Peters is Legal Liaison for Wildlands CPR.
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