CRS Report: RL30647 - The National Forest System Roadless Areas Initiative

Summary

The Clinton administration has undertaken a new approach to the management of the roadless areas in the National Forest System. A draft environmental impact statement (DEIS) has been released that analyzes management alternatives, and proposed regulations were issued on May 10, 2000. The comment period on the proposed regulations ended on July 17,2000, and a final rule is anticipated in late fall of this year. The regulations propose prohibiting new road construction or reconstruction in all (with some exceptions) currently unroaded "inventoried" roadless areas. Decisions on the possible extension of the ban to non-inventoried roadless areas, and on the possible imposition of additional management restrictions for roadless areas would be left up to the forest planning process, but managers would be required to evaluate the characteristics and values of roadless areas. This report traces the development of the new initiative and discusses the draft EIS and the proposed regulations. The report will be updated as circumstances warrant.

The Clinton Administration has undertaken a series of actions relating to: 1) roads within the National Forest System (NFS) that comprise the Forest Development Transportation System; and 2) the roadless areas of the NFS.1 These actions involving the NFS roads system and NFS roadless areas are intertwined and each part affects the other.

On January 28, 1998, the Forest Service issued an Advance Notice of Proposed Rulemaking to revise its Forest Development Transportation System regulations related to roads in the NFS,2 and also proposed an interim rule to temporarily suspend road construction and reconstruction in certain NFS unroaded areas.3 On February 12, 1999, the agency finalized the interim rule that temporarily suspended road construction and reconstruction in unroaded areas.4 This rule was to remain in effect until adoption of a revised "road management policy," or 18 months from its effective date of March 1,1999. Eighteen months from that date would be September 1,2000.

On October 13, 1999, the President directed the Secretary of Agriculture, acting through the Forest Service, to develop and propose regulations to provide "appropriate long-term protection for most or all currently inventoried 'roadless' areas, and to determine whether such protection is warranted for any smaller roadless areas not yet inventoried."5 A Notice of Intent to complete an environmental impact statement (EIS) on alternatives for protection of NFS roadless areas was published on October 19,1999.6

A proposed rule 7 and proposed administrative policy 8 regarding the Forest Development Transportation System were published on March 3, 2000. These proposed requirements and procedures regarding roads would emphasize maintenance and decommissioning of existing roads rather than the construction of new roads. The explanatory material for these documents reiterated that the interim rule suspending roads in roadless areas that was announced in February would remain in effect for 18 months from its effective date of March 1, 2000 or until rules on the Transportation System were finalized.9 The policy document also proposed changes to the Forest Service Manual to put in place transitional management procedures regarding roads in roadless areas, that would remain in effect until new final processes for roadless areas are integrated into the forest plan revision process.10

A draft environmental impact statement (DEIS) on the management and protection of NFS roadless areas was completed in May 2000, and regulations were proposed on May 10, 2000.11 The comment period on these proposed regulations closed on July 17, 2000, and a final EIS and regulations are expected in the late fall of 2000.

The proposed roadless areas regulations take a two-part approach. First, they propose imposing nationwide limitations on new road construction and reconstruction in the currently unroaded areas of inventoried roadless areas throughout the NFS (with some exceptions to the prohibition). Secondly, the regulations propose new procedures as part of the existing planning process to consider applying the reading ban to non-inventoried roadless areas as well, and to consider the possible imposition of additional management restrictions (such as restrictions on timber harvesting) on roadless areas.

The roadless area proposals have been praised by some, criticized by some for not being far-reaching enough, and criticized by others as being too restrictive and creating "de facto wilderness." Lawsuits were filed challenging the adequacy of the information provided the public and the time to comment. Some of these suits have been dismissed or withdrawn, aspects of the others remain outstanding.

This report describes the statutory background, summarizes the DEIS and the proposed rule, and analyzes some of the legal issues in connection with the proposal.

In considering the roadless area proposal, a review of the most relevant portions of the statutes that govern the management of the NFS may be helpful.

The principal forest management statutes relevant to analysis of the Roadless Area Initiative are the Organic Act of 1897,12 the Multiple-Use Sustained-Yield Act of 1960,13 and the National Forest Management Act of 1976.14 The 1897 Act directs that the national forests be managed to improve and protect the forest or "for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States ...."15 The 1897 Act also authorizes the Secretary to issue regulations to "regulate the occupancy and use of the forests and to preserve them from destruction .... 16

Over the years, many uses of the national forests in addition to timber and watershed management have been allowed administratively. The Multiple-Use Sustained-Yield Act of 1960 (MUSYA) expressly recognizes and authorizes the "multiple use" of the forests, a term MUSYA defines as the management of all the various renewable surface resources of the national forests "in the combination that will best meet the needs of the American people" and recognizes that "some land will be used for less than all of the resources ... without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output."17 MUSYA states that the national forests are established and shall be administered for their original purposes and also for "outdoor recreation, range, timber, watershed, and wildlife and fish purposes"18 and that "[t]he establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of [the act.]"19 This latter language, which preceded enactment of the Wilderness Act of 1964,20 was a recognition that the FS had been managing some forest areas as administrative wilderness or natural areas. What constitutes the most desirable combination of uses for a forest has typically been hotly debated.

MUSYA also requires "sustained yield," which is defined as the "achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land."21 How much is a "high-level annual or regular periodic output" of forest resources that does not impair the productivity of the land has also been the subject of much debate.

The National Forest Management Act of 1976 (NFMA) set out additional provisions on the management of the national forests, and also established new procedures for developing land and resource management plans to guide management. NFMA directs that regulations be adopted to guide forest planning and accomplish specific goals set by the Congress, including: insuring consideration of the economic and environmental aspects of various systems of renewable resource management including "silviculture and protection of forest resources; to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish; and providing for diversity of plant and animal communities."22

The roadless areas in the National Forest System have long received special management attention. Beginning in 1924, long before the enactment of MUSYA, the FS managed many forest areas as natural, primitive, or wilderness areas - a practice expressly approved in MUSYA. More permanent, congressionally approved statutory wilderness areas were provided for in the Wilderness Act,23 which established the National Wilderness Preservation System. The Wilderness Act directed review of FS-designated primitive areas and other larger roadless areas to consider their suitability for inclusion in the national wilderness system. This review was carried out and expanded (with respect to the national forests) in the Roadless Area Review and Evaluation or "RARE" studies. Roadless areas inventoried either as part of the RARE studies or as part of subsequent reviews during the NFMA planning process are the "inventoried" roadless areas referred to in the Notice. Congress has designated many additional wilderness areas since 1964, but, under the statutes summarized above, the FS also still may manage parts of the national forests as natural areas, wildlife areas, or administrative wilderness areas.

The management of the remaining roadless areas is of great interest to both wilderness proponents and to opponents of additional natural or wilderness area protection. Proponents of additional protection point to the many purposes the roadless areas serve, including water quality protection, backcountry recreation, and habitat for wildlife; opponents assert that the formal wilderness review and designation process sets aside adequate natural areas and the remaining areas should be available for timber harvesting, mining, and other uses.

The FS has identified approximately 54.3 million acres of inventoried roadless areas. Road building is currently not allowed in 20.5 million acres of this total under current plans. Roads are prohibited in an additional 42.4 million acres of Congressionally-designated areas such as Wilderness or Wild and Scenic River corridors. This leaves approximately 95.2 million acres out of approximately 192 million acres in the NFS on which roads are not prohibited. Some of this acreage is currently unroaded, some is not. Approximately 2.8 million of the inventoried roadless areas have had roads built within them since the time they were inventoried. The new road prohibitions would apply only to currently unroaded, inventoried roadless areas - areas estimated as totaling 51.5 million acres. If the unroaded acreage of the Tongass National Forest (8.5 million acres) also is subtracted, as is proposed in the rule (see below), the new rulemaking would apply to approximately 43 million acres.24

There are approximately 386,000 miles of FS and other roads in the NFS. The explanatory material in the proposed rulemaking states that roadless areas provide significant opportunities for dispersed recreation, are sources of public drinking water, and are large undisturbed landscapes that provide privacy and seclusion, serve as a barrier against invasive plant and animal species, are important habitat, support the diversity of native species, and provide opportunities for monitoring and research.25 In contrast, the explanatory material continues, installing roads can increase erosion and sediment yields, disrupt normal water flow processes, increase the likelihood of landslides and slope failure, and increase air pollution.26 The explanatory material and the DEIS set out background and economic data on these assertions.

The DEIS and the proposed regulations take a two-part approach by addressing: 1) nationwide prohibitions regarding new roads in inventoried roadless areas; and 2) new procedures for considering whether to extend the reading prohibition to uninventoried roadless areas; and for considering possible additional management constraints for any roadless areas.

The DEIS. The DEIS considered four alternatives for nationwide prohibitions regarding roadless areas. Alternative I, the "no action" alternative, would preserve the current system of making all decisions regarding roadless areas as part of the planning and management of individual forest units - i.e., with no nationwide prohibitions. All of the other alternatives (aside from the "no action" alternative), include a prohibition on new road construction and reconstruction within the currently unroaded areas of inventoried roadless areas. The three action alternatives vary in the extent to which they would also prohibit timber harvesting in the unroaded inventoried areas. Alternative 2 would only prohibit road construction and reconstruction, but not prohibit timber harvesting. Alternative 3 would prohibit timber harvesting, except for stewardship purposes. Alternative 4 would prohibit all timber harvesting in the unroaded portions of inventoried roadless areas.

In addition to considering alternatives for nationwide prohibitions, the DEIS considered various "procedural alternatives" for whether and how managers should evaluate roadless areas in the future and consider road construction in uninventoried roadless areas, and whether and how to add additional management restrictions in all roadless areas. Alternative A was the "no action" (no change to current procedures) alternative. Alternative B would require managers to specifically evaluate whether and how to protect roadless characteristics during plan revisions. This alternative would apply both to the unroaded portions of inventoried roadless areas and to any other unroaded areas that the manager determined to be of sufficient size, shape and location to reasonably be able to preserve its roadless characteristics. Under Alternative C, managers would evaluate whether and how to protect roadless characteristics on a project-by-project basis, rather than in the forest planning process. Alternative D would combine C and B, such that managers would perform project- by-project analysis until the next plan revision put in place overall direction for that forest unit.

The "preferred alternative" combination was 2-B, under which new nationwide prohibitions would be imposed on the construction and reconstruction of roads in currently unroaded inventoried roadless areas, but inclusion of non-inventoried roadless areas in that prohibition and possible imposition of additional management limitations, such as restrictions on timber harvesting, would be left to the forest planning process.

The Proposed Regulation. The purpose of the proposed rule is stated as being to provide lasting protection for inventoried roadless areas and other unroaded areas in the context of multiple-use management through the national prohibitions set out in 36 C.F.R. � 294.12 and the procedural mechanisms set out in proposed � 294.13. The proposed regulations would define relevant terms, and reflect the preferred alternative 2-B of the DEIS.

Proposed 36 C.F.R. � 294.12 would prohibit the construction or reconstruction of new roads (but not trails), whether classified or unclassified, in the unroaded portions of inventoried roadless areas, with certain exceptions. The first exception is for roads necessary for public health and safety, which the explanatory material states are cases involving an "imminent threat" of a catastrophic event that might result in the loss of life or property (in contrast to routine forest health activities). The extent to which this language might permit roads in connection with thinning and hazardous fuels reduction to reduce fire threat is not clear. Such measures could probably be taken in areas and at times when fire was an imminent threat, but it is not clear how far in advance or over how large an area roads supporting fire threat- reduction might be allowed. Depending on how "imminent threat" is interpreted, this could constitute a significant exception to the road prohibition.

The second exception is for activities undertaken pursuant to the "Superfund" law and other identified statutes requiring remedial environmental actions to be taken.

The third exception is described as being for "valid existing rights" granted in statute or treaty, or pursuant to a reserved or outstanding right, such as the right of access under the Alaska National Interest Lands Conservation Act of 1980, R.S. 2477 highway rights, mining access, etc. However, the proposed regulation is not on its face limited to valid existing rights,27 and arguably might not prevent the granting of new easements that then would become "outstanding rights."

The fourth exception is for road realignments needed to prevent irreparable resource damage by an existing road that is deemed essential for public or private access, management, or public health and safety, where such damage cannot be corrected by maintenance.

Proposed new 36 C.F.R. � 294.13 would provide for consideration of additional management measures for roadless areas during the forest plan revision process. Managers would be required to evaluate the quality and importance of various aspects of roadless areas for the unroaded portions of inventoried roadless areas and for other unroaded areas that the responsible official judges to be of "a sufficient size, shape, and position within the landscape to reasonably achieve the long-term conservation of the characteristics" evaluated in the inventory process. The characteristics to be evaluated are: soil, water, and air; sources of public drinking water; diversity of plant and animal communities; habitat for threatened, endangered, proposed, candidate, and sensitive species and for those species dependent on large, undisturbed areas of land; primitive, semi-primitive non-motorized and semi-primitive motorized classes of dispersed recreation; reference landscapes; landscape character and scenic integrity; traditional cultural properties and sacred sites; and other locally identified unique characteristics.

Based on this evaluation of the characteristics and value of a roadless area, the managers might decide to apply the reading prohibition to a non-inventoried roadless area, or to impose other management limitations on any roadless area.

Additional roadless areas that might be afforded protection could be those that serve as wildlife movement corridors, or are adjacent to an inventoried roadless area of a component of the National Wild and Scenic River System. Additional management limits might involve timber harvesting, mineral development, or developed recreation. The managers may not, however, set aside the basic road prohibition set out in new � 294.12.

Proposed � 294.14 would address the scope and applicability of the new rules. Any project or activity decision signed before the effective date of the final regulation would be allowed but not required to proceed, (emphasis added.) Road construction or reconstruction associated with ongoing implementation of long-term special use authorizations would not be prohibited.

The explanatory material "clarifies" that the nationwide road prohibition would become applicable to all NFS unit plans when the rule is finalized and effective, without the necessity of amending each plan. However, the proposed rule, in new � 294.14 merely states that it "does not compel the amendment or revision of any land and resource management plan."

Tongass National Forest. The proposed rule would treat the Tongass National Forest in Alaska differently. The prohibition against new road construction would not apply to Tongass at the time the rule is finalized. Rather, whether the prohibitions should apply to any or all of the inventoried roadless areas in the Tongass would be considered at the time of the 5-year review of the April 1999 revised Tongass Plan (i.e. in 2004). The reasoning associated with the Tongass exception and the other aspects of the proposed rule are discussed in the explanatory material accompanying the proposed rule. The exclusion of the Tongass has generated controversy.

Two of the legal issues surrounding the roadless area initiative have come up repeatedly: 1) whether the rule would create "de facto" wilderness and whether that can be done administratively; and 2) whether management restrictions can be imposed without formal amendment or revision of the forest plans.

Can "de facto" wilderness areas be created administratively? Some have asserted that the management changes involved in the roadless area initiative would amount to "de facto" wilderness, and that only Congress can designate wilderness areas. The explanatory material states that the proposed regulation "is not an effort to expand the National Wilderness Preservation System. The Forest Service recognizes that only Congress may designate wilderness. The Forest Service will continue managing inventoried roadless areas and other unroaded areas within the multiple-use framework required by law."28

The proposed regulation provides that - aside from the prohibition on roads in inventoried areas - decisions on which roadless areas warrant protection and the level of protection to be afforded will be determined "in the context of overall multiple-use objectives."29 Therefore, it is not clear how extensive any additional management prohibitions might be, and whether they might approach those under the Wilderness Act.

Only Congress can designate areas for inclusion in the National Wilderness Preservation System.30 However, the MUSYA expressly provides for the administrative management of national forest lands for fish and wildlife, outdoor recreation, and watershed purposes, as well as timber, and that establishment of wilderness areas are consistent with these purposes.31 The NFMA directs that forest plans "assure... coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness ...."32 Therefore, it appears that, as a general matter, some new prohibitions on activities in roadless areas could lawfully be imposed. It is possible that, as applied, restrictions that were severe and extensive might be challenged as violating the "sustained yield" aspects of the MUSYA. On the other hand, the new rules might be defended as appropriate management of non-timber renewable resources (such as game and other wildlife), yielding those benefits without permanent impairment of the lands.

Defenders of the initiative may point to the fact that current law appears to permit increased protection of roadless areas, and to the desirability of protecting remaining open space and natural areas, but critics may assert that the likely breadth and severity of the application of the new regulations would effect significant changes that more properly should be made by Congress.

Some of these issues have been raised in suits challenging the roadless areas actions, but there have been no holdings on the issues.33

Can management restrictions be imposed "effective immediately"? As discussed above, the explanatory material accompanying the regulation indicates that, because it would be a general regulation change, the nationwide prohibition on roads (if finalized) would automatically "supersede" all contrary provisions in forest plans.34 However, this point is less than clear in the text of the proposed regulation. Assuming that the regulation as finalized purports to amend forest plans by being immediately applicable to them, the question can be asked whether this would be lawful.

The NFMA directs a planning process under which a land and resource management plan is adopted for a forest unit, and then particular projects and activities are approved that must be consistent with the plan.35 Plan changes are to occur through amendment or revision of plans. However, some exceptions to the normal amendment processes have been upheld. In one case, a court upheld immediately-effective management direction regarding an endangered species as a temporary, emergency protective measure.36 A court has also upheld immediately-effective changes to forest plans contained in the President's Pacific Northwest Forest Plan, which amended the planning documents for nineteen national forests and seven Bureau of Land Management districts. In defense of its action, the government made a 'functional equivalent' argument — that wholesale amendment of the plans through adoption of the overarching Northwest Plan was proper because the usual requirements for public involvement and disclosure in connection with a significant amendment of plans had been met and other procedural features of the planning regulations would be deferred until the time of individual forest plan revision. The court concluded that "[t]he Secretaries may properly divide the planning process in this way .... To require that planning be done only on an individual forest basis would be unrealistic."37 The appeals court that affirmed the district court decision did not address this issue.38 Depending on the justifications offered for making the new roadless area rule effective immediately, a court may or may not uphold this approach.

This issue also has been raised in some of the lawsuits filed in response to the roadless areas initiative.39

Final regulations on the roadless areas are anticipated in late fall 2000. This report will be updated at that time.

1 Roadless areas within the NFS have long received special management. Larger (generally 5,000 acres or more) roadless areas were "inventoried" to consider their suitability for inclusion in the National Wilderness Preservation System. These are the "inventoried" areas referred to in the Administration's initiative and in this report. A discussion of the roadless area initiative and many of the related documents are available on the Forest Service website at:" http://roadless.fs.fed.us ".

39 See e.g., Wyoming Timber Industry Assn. v. U.S. Forest Service, 80 F. Supp. 2d 1245 (D. Wyo. 2000) dismissed for lack of jurisdiction, appeal pending No. 00-8016 (10^th Cir.)(re the interim rule); and Idaho v. U.S. Forest Service, 99-0611-N-EJL(D.ldaho), per conversation with representative of U.S. Department of Agriculture.

*Downloaded from the National Library for the Environment*