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RL30647: The National Forest System Roadless Areas Initiative

Pamela Baldwin

Legislative Attorney
American Law Division

Updated May 18, 2001

CONTENTS

Summary

The Clinton Administration established a new approach to the management of the roadless areas in the National Forest System. A record of decision (ROD) and a final rule were issued on January 12, 2001, effective March 13, 2001, that would prohibit most road construction and reconstruction in 58.5 million acres of inventoried roadless areas in national forests. Exceptions to the roads prohibition would be allowed for several reasons: for public health and safety; to comply with the Superfund (CERCLA) law, the Clean Water Act, or the Oil Pollution Act; as needed to serve reserved or outstanding rights; if realignment of a road is needed to prevent irreparable resource damage by a classified road; if road reconstruction is needed to implement a road safety improvement on a hazardous classified road; for Federal Aid Highway projects under certain conditions; or, with limitations, if a road is needed in connection with a mineral lease under certain conditions.

Most timber harvests in the roadless areas would also be prohibited, but some timber cutting would be allowed for certain specified purposes, including the harvesting of small diameter trees to maintain or improve roadless area characteristics by improving habitat for threatened, endangered, proposed, or sensitive species, or to maintain or restore ecosystem composition and structure, such as by reducing the risk of uncharacteristic wildfire effects. Cutting could also be allowed for certain other minor uses or in inventoried roadless areas whose characteristics have been substantially altered.

The new roadless area management prohibitions would apply immediately to the Tongass National Forest in Alaska, but road construction, reconstruction, or the cutting, sale, or removal of timber in inventoried roadless areas can go forward if a notice of availability of a draft environmental impact statement for the activities in question had been published before January 12, 2001.

The roadless area rule was determined to be a "major" rule and therefore not to be effective for 60 days (March 13, 2001) in order to afford the Congress the opportunity to review and possibly disapprove it. On February 5, 2001, notice was published further postponing the effective date of the roadless rule for 60 days from its previous effective date to May 12, 2001. The Bush Administration ultimately decided to allow the Rule to be implemented, but to propose amendments in early June to address important issues that had been raised regarding the rule. However, the Federal District Court for Idaho concluded that intentions to amend the Rule were not sufficient to cure its infirmities, and granted a preliminary injunction preventing its implementation.

This report traces the development of the roadless area rule and related rules on planning and roads. It also describes the statutory background, summarizes the final rules, and analyzes some of the legal issues. The report will be updated as circumstances warrant.

The Roadless Areas and Related Initiatives - Background

The Clinton Administration undertook a series of actions affecting the roadless areas of the National Forest System (NFS). (1) More particularly, new rules were finalized with respect to: (1) the roadless areas as such; (2) the NFS roads that make up the Forest Development Transportation System, and (3) the planning process of the Forest Service (FS). The provisions of these three new rules are intertwined and each part affects the others.

The Clinton Administration roadless area proposals were 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." Several lawsuits were filed challenging the adequacy of the information provided the public, the opportunity to comment, and other aspects of the rulemaking. A preliminary injunction was issued May 10, 2001, preventing implementation of the Rule.

This report focuses on the roadless areas initiative, but will summarize relevant aspects of the administrative actions on planning and roads as well. It also describes the statutory background, summarizes the final rules, and analyzes some of the legal issues in connection with the roadless area initiative.

Roadless areas. On October 13, 1999, President Clinton directed the Secretary of Agriculture, acting through the Forest Service, to develop regulations to provide "appropriate long-term protection for most or all of the currently inventoried 'roadless' areas, and to determine whether such protection is warranted for any smaller roadless areas not yet inventoried." (2) 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; (3) a draft EIS (DEIS) was issued in May, 2000, and accompanying regulations were proposed on May 10, 2000; (4) and a final environmental impact statement (FEIS) was issued on November 13, 2000. A record of decision (ROD) and final rules were issued on January 12, 2001, to be effective on March 13, 2001. (5) On February 5, 2001, the effective date was postponed until May 12, 2001. (6)

The ROD and final rule would:

prohibit (with some exceptions) new roads in inventoried roadless areas;

prohibit most timber harvests in the roadless areas, but allow cutting under specified circumstances; and

apply the same prohibitions to the Tongass National Forest in Alaska, but allow certain road and harvest activities already in the pipeline to go forward.

The details of the final rule will be discussed further below.

Roads. In related actions, the Forest Service on January 28, 1998, issued an Advance Notice of Proposed Rulemaking to revise its Forest Development Transportation System regulations related to roads in the NFS, (7) and also proposed an interim rule to temporarily suspend road construction and reconstruction in certain NFS unroaded areas. (8) On February 12, 1999, the agency published a final interim rule that temporarily suspended road construction and reconstruction in unroaded areas, and provided certain procedures related to such areas. (9) A proposed rule (10) and proposed administrative policy (11) regarding the Forest Development Transportation System were published on March 3, 2000 and final rules and policy were published on January 12, 2001, both effective on that date. (12) Certain terms are changed in the final rule, (13) and the policy provides new direction to be contained in the Forest Service Manual that emphasizes the maintenance and decommissioning of existing roads rather than the construction of new roads. The policy addresses when and how to conduct a roads analysis and requires an economic analysis that addresses both initial and long-term costs.

The new final policy will supersede the interim policy except with respect to roads in the Tongass National Forest, in which forest the interim policy will continue to govern the activities that are permitted to go forward.

Under new 36 C.F.R. § 212.5(b), (14) the focus is on providing and maintaining the minimum forest transportation system needed for safe and efficient travel and for the administration, utilization, and protection of NFS lands. This is to be determined by science-based roads analysis at the appropriate scale and is to minimize adverse environmental impacts. Unneeded roads would be decommissioned and the roadbeds restored. The economic and ecological effects of roads would be analyzed as part of an interdisciplinary, "science-based" process in which the public would be engaged. Until the new road inventories and analyses are completed, interim requirements would pertain and a compelling need for new roads would have to be demonstrated.

Planning. On a third track, the Forest Service on November 9, 2000 issued final new planning regulations, effective on that date. (15) These regulations address roadless area reviews as part of the planning process, and require changes in uses of roadless areas to be determined through this process.

Roadless Areas - Statutory Background

In considering the roadless area initiatives, 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, (16) the Multiple-Use Sustained-Yield Act of 1960, (17) and the National Forest Management Act of 1976. (18) The 1897 Act directs that the national forests be managed to improve and protect the forests 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 ...." (19) 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 ...." (20)

Over the years, many uses of the national forests in addition to timber and watershed management have been allowed administratively. Statutorily, 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." (21) 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" (22) and that "[t]he establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of [the act.]" (23) This latter language, which preceded enactment of the 1964 Wilderness Act , (24) recognized 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 been hotly debated for decades.

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." (25) 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 that include direction for developing land and resource management plans. 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." (26)

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 1964 Wilderness Act, (27) 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, which expanded on studies begun before enactment of the 1964 Wilderness Act. 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 October 19, 1999 Notice. Congress has designated many additional wilderness areas since 1964, but, under the statutes summarized above, especially the MUSYA, the FS may still manage parts of the national forests as natural, primitive, or wildlife areas, which might be characterized as "administrative wilderness" areas.

The management of the roadless areas of the NFS 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 congressional wilderness review and designation process sets aside adequate natural areas and the remaining areas should be available for timber harvesting, mining, developed recreation, and other uses.

The FS has identified approximately 58.5 million acres of inventoried roadless areas, roughly one-third of all NFS lands. Road building is not allowed in 20.5 million acres of this total under current plans. Roads are also currently prohibited in an additional 42.4 million acres of Congressionally-designated areas such as Wilderness or Wild and Scenic River corridors. There are approximately 386,000 miles of FS and other roads in the NFS. The explanatory material in the final rulemaking states that roadless areas provide significant opportunities for dispersed recreation, are sources of public drinking water, and are large undisturbed landscapes that provide open space and natural settings, 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. (28) 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, fragment ecosystems, introduce non-native species, compromise habitat, and increase air pollution. (29)

The Final Roadless Area Rule

The final roadless area rule is more restrictive in several respects than was the proposed rule or the preferred alternative set out in the FEIS. With some exceptions, the final rule imposes immediately-effective, nationwide, limitations on new road construction and reconstruction in the inventoried roadless areas throughout the NFS, and also imposes nationwide prohibitions on timber harvesting in those areas, with some exceptions. The regulations apply immediately to the Tongass National Forest in Alaska, although certain activities already in the planning stages in that Forest are allowed to go forward.

The final rule prohibits new road construction and reconstruction with some exceptions. The exceptions are:

(1) A road is needed to protect public health and safety in cases of an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property;

(2) A road is needed to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or to conduct a natural resource restoration action under CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;

(3) A road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty;

(4) Road realignment is needed to prevent irreparable resource damage that arises from the design, location, use, or deterioration of a classified road and that cannot be mitigated by road maintenance. Road realignment may occur under this paragraph only if the road is deemed essential for public or private access, natural resource management, or public health and safety;

(5) Road reconstruction is needed to implement a road safety improvement project on a classified road determined to be hazardous on the basis of accident experience or accident potential on that road;

(6) The Secretary of Agriculture determines that a Federal Aid Highway project, authorized pursuant to Title 23 of the United States Code, is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no other reasonable and prudent alternative exists; or

(7) A road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease by the Secretary of the Interior as of January 12, 2001 or for a new lease issued immediately upon expiration of an existing lease. Such road construction or reconstruction must be conducted in a manner that minimizes effects on surface resources, prevents unnecessary or unreasonable surface disturbance, and complies with all applicable lease requirements, land and resource management plan direction, regulations, and laws. Roads constructed or reconstructed pursuant to this paragraph must be obliterated when no longer needed for the purposes of the lease or upon termination or expiration of the lease, whichever is sooner.

Maintenance of classified roads is permissible in inventoried roadless areas.

The cutting, sale, or removal of timber from inventoried roadless areas also is prohibited unless one of the specified circumstances exists, and the expectation is expressed that cutting will be infrequent. The proposed regulations had allowed timber to be cut for "stewardship" purposes, but the final regulation eliminated the use of that term in favor of specifying the purposes for which cutting could be allowed. Cutting of small diameter trees is permissible if doing so will maintain or improve one or more of the roadless area characteristics and would:

improve habitat for species that are listed as threatened or endangered under the Endangered Species Act or are proposed for listing under that Act, or which are sensitive species; or

maintain or restore ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects. (30)

Other cutting could be permitted if incidental to the implementation of a management activity that was not otherwise prohibited; if needed and appropriate for personal or administrative use in accordance with 36 C.F.R. § 223 (the regulations on sale and disposal of timber); or if roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest before January 12, 2001. In this last instance, timber may only be cut in the substantially altered portion of the roadless area. (31)

The new roadless area rule expressly would not revoke, suspend, or modify any permit, contract, or other legal instrument authorizing the occupancy and use of NFS lands that was issued before January 12, 2001, nor would it revoke, suspend, or modify any project or activity decision made prior to January 12, 2001. (32) The rule would not apply to roads or harvest in the Tongass National Forest if a notice of availability of a draft environmental impact statement for the activities had been published in the Federal Register before January 12, 2001. (33) These provisions would grandfather the activities addressed, but otherwise the new rule would apply to the Tongass. (34)

Relationship of the Roadless Area Proposal to Forest Planning

The proposed roadless areas regulations (proposed 36 C.F.R. § 294.13) would have expressly provided procedures for the consideration of additional management measures for roadless areas during the forest plan revision process, and also provided additional details in that regard.

The final rule, however, eliminates these express provisions in favor of the treatment of roadless areas in the new planning regulations published November 9, 2000. The explanatory material accompanying the new planning rule indicates that the new rules are very similar to the proposed roadless area rule and also states that the "final planning rule clarifies that analyses and decisions regarding inventoried roadless areas and other unroaded areas, other than the national prohibitions that may be established in the final Roadless Area Conservation Rule, will be made through the planning process articulated in this final rule. Under this final rule, the responsible official is required to evaluate inventoried roadless areas and unroaded areas and identify areas that warrant protection and the level of protection to be afforded." (35) Therefore, other possible restrictions on use of the roadless areas would be developed as part of the planning process. The materials compare particular parts of the proposed roadless areas rule with the final planning rule. (36) It appears that the final regulations are less specific with respect to roadless area reviews than were the proposed regulations. As noted, the final rule eliminates the separate treatment of roadless area reviews within that rule.

The final rule also states that the new roadless rule "does not compel the amendment or revision of any land and resource management plan," but that the prohibitions and restrictions of the rule are not subject to reconsideration, revision, or rescission in subsequent project decisions or land and resource management plan amendments or revisions. (37)

General Legal Issues Relating to the Rule

Two legal issues involving the roadless area initiative have come up repeatedly: 1) whether the rule would create "de facto" wilderness and, if so, whether that can lawfully be done administratively; and 2) whether management restrictions can be imposed immediately, 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 with the final regulation states that the regulation preserves "multiple use" management and that currently a wide range of multiple uses are permitted in inventoried roadless areas subject to the management direction in forest plans and "a wide range of multiple uses will still be allowable under the provisions of this rule."

Under this final rule, management actions that do not require the construction of new roads will still be allowed, including activities such as timber harvesting for clearly defined, limited purposes, development of valid claims of locatable minerals, grazing of livestock, and off-highway vehicle use where specifically permitted. Existing classified roads in inventoried roadless areas may be maintained and used for these and other activities as well. Forest health treatments for the purposes of improving threatened, endangered, proposed, or sensitive species habitat or maintaining or restoring the characteristics of ecosystem composition and structure, such as reducing the risk of uncharacteristic wildfire effects, will be allowed where access can be gained through existing roads or by equipment not requiring roads ....

The Roadless Area Conservation rule, unlike the establishment of wilderness areas, will allow a multitude of activities including motorized uses, grazing, and oil and gas development that does not require new roads to continue in inventoried roadless areas .... (38)

Certainly, only Congress can designate areas for inclusion in the National Wilderness Preservation System. (39) However, the MUSYA, enacted before the 1964 Wilderness Act, expressly provides for the administrative management of national forest lands for fish and wildlife, outdoor recreation, and watershed purposes, as well as for timber, and that establishment of wilderness areas is consistent with those purposes. (40) The NFMA directs that forest plans "assure ... coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness ...." (41) 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 resources for multiple use purposes (such as outdoor recreation, game and other wildlife), yielding those benefits without permanent impairment of the lands.

Defenders of the initiative may argue that current law permits increased protection of roadless areas, and that it is desirable to protect 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 to date. (42)

Can management restrictions be imposed "effective immediately" even if contrary to forest plans already in place? Some have questioned whether it is lawful for such sweeping new management direction to be imposed without going through the usual process of amending existing forest plans. The final regulation appears to contemplate immediately-effective new management direction. The explanatory material notes that the new planning regulations require planning to be conducted at the appropriate level depending on the scope and scale of the issues, and that it is the nature of the issue that guides the selection of the appropriate scale and level of the organization to address it. (43) Further, the materials state that some issues are of a national scale and national management direction is appropriate:

The use of rulemaking to address the conservation of inventoried roadless areas is both appropriate and consistent with the NFMA implementing regulations .... Just as development and approval of forest plans must conform to existing laws and regulations, new laws or regulations, including this rule, can supersede existing forest plan management direction. This rulemaking process does not require amendments or revisions to forest plans. However, a Forest or Grassland Supervisor may consider whether an amendment or revision is appropriate given overall circumstances for a particular administrative unit. (44)

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. (45) Plan changes are to occur through amendment or revision of plans. However, even under the old planning system, binding management direction above the level of the forest plans was recognized in the Forest Service regulations. "Regional guides" were developed to coordinate the many forest-related programs and to provide standards and guidelines for addressing major issues and management concerns that need to be considered at the regional level. These guides were required to be developed with public participation and in compliance with the National Environmental Policy Act (NEPA). (46) In addition, some other aspects of the former planning process reflected national guidance. For example, one planning regulation directed that recreation be maximized and planned in accordance with national and regional direction. (47)

The new roadless area rules assert that overall standards to guide the management of the NFS roadless areas are desirable to end protracted controversy over the use of each such area, and that the management of roadless areas is a subject suitable for a national solution. Given that the regulations were adopted in accordance with NEPA and rulemaking procedures, arguably they may withstand challenges.

Some exceptions to the normal plan amendment processes have been upheld, even aside from the rulemaking context. In one case, a court upheld immediately-effective management direction regarding an endangered species as a temporary, emergency protective measure. (48)

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." (49) The appeals court that affirmed the district court decision did not address this issue. (50)

This issue also has been raised in some of the lawsuits filed in response to the previous aspects of the roadless areas initiative. (51)

Administrative Actions and Litigation Since January 20, 2001

Immediately after President Bush took office, his Chief of Staff issued a memo that directed, among other things, that the effective date of regulations that had been published in the Federal Register, but had not yet taken effect, be postponed for 60 days, unless a department head appointed by President Bush had reviewed and approved the regulatory action. (52) The roadless area regulation was covered by this language since it was not to be effective until March 13, 2001.

Several dates surround the roadless rule: the 60-day delayed effectiveness date in the rule itself - which derives from the Congressional Review Act (CRA); (53) the 60-day delay resulting from the President's directive; and the usual 30-day delay that might otherwise apply under the Administrative Procedure Act (APA). (54) Normally, the 30-day APA delay period and the 60-day CRA delay period run concurrently.

The roadless rule was published as a final rule on January 12, 2001, but the effective date stated in the rule was March 13, 2001. This is because the roadless rule was determined to be a "major" rule under the CRA. (55) Under that Act, a rule that has been determined to be a major rule cannot become effective for at least 60 days after publication. This delay period is to give the Congress time to consider the rule and to address legislatively issues raised by it. A major rule will take effect the later of the date occurring 60 days after the date on which - (1) Congress receives the report submitted pursuant to § 801(a)(1); or after the rule is published in the Federal Register, if it is; (2) if the Congress passes a joint resolution of disapproval which is subsequently vetoed by the President, then the earlier of when one House votes and fails to override the veto, or 30 session days after Congress receives the veto message from the President; or (3) the date the rule would otherwise have taken effect if not for the review requirement. (56) When, as in this instance, a rule is published and/or reported within 60 session days of adjournment of the Senate or 60 legislative days of adjournment of the House through the date on which the same or succeeding Congress first convenes its next session, that Congress may consider and pass a joint resolution of disapproval during a period of 60 session or legislative days after receiving the reported rule. A held-over rule takes effect as otherwise provided; but the opportunity for Congress to consider and disapprove it is extended.

If Congress takes action to disapprove the roadless area rule and the President signs the resulting legislation, that new legislated direction, of course, is binding.

The usual effective date of a regulation under the APA is 30 days after publication, during which time affected persons may prepare for and adjust to the impending effects of the rule. (57) The 30-day period is intended as a minimum, and an agency may set a longer interval if that appears advisable, and longer times have been afforded in circumstances when it is anticipated that economic adjustments must be made in response to the new regulatory requirements. However, there are exceptions to the applicability of the APA, one of which is that the usual rulemaking procedures do not apply to rules relating to agency management or public property. However, in 1971, Secretary of Agriculture Hardin partially waived the APA exemption for rules related to public property (36 Fed. Reg. 13804 (July 24, 1971). The Hardin Order subjects Department of Agriculture rulemaking to the public notice and comment requirements prescribed by 5 U.S.C. 553(b) and (c), subject to exceptions for good cause. However, the Order does not appear to subject Department rules to the 30-day delay requirement of § 553(d), or to other APA provisions beyond § 553(b) and (c), a fact which may be relevant to options available to change the rule. Many Forest Service rules are effective immediately upon being finalized.

Under the APA, interested persons have the right to petition for issuance, amendment, or repeal of a rule, (58) even during the 30-day delay period, although by what procedures an agency may accomplish changes in response to such a petition during the delay period is not totally clear. As noted above, however, the roadless rule does not appear subject to these provisions. Even if it were, the roadless rule is a final published rule, even though it is not yet in effect, and at least one court has held that an agency cannot simply "repeal" such a regulation, but rather may need to modify or revoke the final regulation through commensurate procedures (59) - here those that may be required by the NFMA and other agency regulations.

If the Department of Agriculture sets out reasons to reconsider the rule and begins amendment or revocation processes during the delay period, this appears to be a valid course of action. Whether the rule must be modified or revoked in this manner during the delay period before its effective date, especially if in response to a petition, is not clear, but likely. It is possible that the effective date of the regulation could be further postponed in order to consider such a petition (60) (although, as discussed above, the 30-day delay period and petition provisions of the APA arguably do not apply to the Roadless rule), or to reconsider the rule in general, although postponing the rule indefinitely may also require more formal actions such as notice and comment.

NFMA separately requires public participation in forest planning in general, and also specifically requires adequate public notice and opportunity to comment on the formulation of standards, criteria, and guidelines applicable to FS programs. (61) These notice and comment requirements would appear to apply to any new agency policies and guidance at the regional and national level, even if such might otherwise be exempt from APA requirements.

Added to these elements was the Administration's directive to postpone not-yet-effective rules for 60-days in order to allow President Bush's Administration to review them. On February 5, 2001, notice was published in the Federal Register (62) postponing for 60 days the effective date of the roadless area rule from its previous effective date of March 13, 2001 to May 12, 2001. (63)

Absent legislation disapproving, changing, or otherwise addressing the roadless rule, the Bush Administration could amend, revise, or revoke the roadless rule through the usual processes. Whether changes to the rule could be accomplished other than through the usual notice and comment procedures appears unlikely. Furthermore, possible changes sought to be made in the form of new policy directives also appear subject to the notice and comment public participation requirements of the NFMA. However, litigation has modified the course of events.

Litigation. The state of Idaho sued for a declaratory judgment and to enjoin implementation of the roadless rule for violating NEPA, NFMA and the APA., and other suits also were filed. (64) In the context of considering a motion for a preliminary injunction to halt implementation of the rule, on April 5, 2001 the court rejected the arguments of intervenor-defendants Idaho Conservation League that the NFMA did not apply and that no EIS was necessary under NEPA. The court found that plaintiffs were likely to succeed on their assertion that the FS had not provided the public an opportunity to comment meaningfully on the rule in that there was inadequate identification of the inventoried roadless areas (the court noting that statewide maps were not made available until after the public comment period had ended), inadequate information was presented during the scoping process (FS employees were ill-prepared), and the period for public comment was not adequate (all of the public meetings in Idaho occurred within 12 business days of the end of the first 60-day comment period and many of the public comments were received within the last week of the time given and no responses were provided). The court characterized the comment period as "grossly inadequate" and an "obvious violation" of NEPA. The court further found that the FEIS did not consider an adequate range of alternatives, since all but the 'no action' alternative included "a total prohibition" on road construction and the EIS did not analyze whether other alternatives might have accomplished protection of the environmental integrity of the roadless areas. In addition, the court concluded that FS did not analyze possible mitigation of negative impacts of the alternatives it did study.

The Administration did not defend the rule, but did ask the court to postpone ruling on the motion for preliminary injunction until the new Administration had had an opportunity to complete a full review of the rule, arguing that an injunction is not necessary because the rule was not to be implemented until at least May 12th. The court reserved its ruling until on or after May 4th, the day that the Administration was to submit a status report on its review and findings.

On May 4th, the Administration filed its status report with the court and announced that it would implement the Roadless Rule, but would take additional actions to address "reasonable concerns raised about the rule" and ensure implementation in a "responsible common sense manner," including providing greater input at the local planning level. (65) Proposed amendments to the Roadless Rule were expected in early June.

However, on May 10th, Judge Edward J. Lodge granted a preliminary injunction to prevent implementation both of the Roadless Rule and of the portion of the Planning Rule that relates to prescriptions for the roadless areas (36 C.F.R. § 219.9(b)(8). The court found the Government's "vague commitment" to propose amendments to the Rule indicative of a failure to take the requisite "hard look" that an EIS is expected to perform, leaving the court with the "firm impression" that implementation of the Roadless Rule would result in irreparable harm to the National Forests. The court further noted that there is no date certain for proposed amendments, nor any guarantee that the amendments would cure the defects identified by the court in its April 5th opinion, which the federal government acknowledged existed. In short, the court concluded that the government's response was a "band-aid approach" that "does not address the 'hard look' analysis for a cure as required by NEPA before environmentally altering actions are put into effect." While the agency goes forward with its new study and development of proposed amendments, and while litigation continues, the court enjoined implementation of the Rule.

Footnotes

1. (back) The NFS includes the national forests and national grasslands and is administered by the Forest Service in the Department of Agriculture. Roadless areas within the NFS have long received special management. Beginning even before enactment of the 1964 Wilderness Act, larger (generally 5,000 acres or more) roadless areas were "inventoried" to consider their wilderness characteristics, and later 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".

2. (back)Memorandum from President William J. Clinton to the Secretary of Agriculture on Protection of Forest 'Roadless' Areas, October 13, 1999.

3. (back)64 Fed. Reg. 56306.

4. (back)65 Fed. Reg. 30276.

5. (back)66 Fed Reg. 3244 (January 12, 2001).

6. (back)66 Fed. Reg. 8899.

7. (back)63 Fed. Reg. 4350, regarding regulations at 36 C.F.R. § 212.

8. (back)63 Fed. Reg. 4354.

9. (back)64 Fed. Reg. 7290 (February 12, 1999).

10. (back)65 Fed. Reg 11680 (March 3, 2000).

11. (back)65 Fed. Reg. 11684.

12. (back)66 Fed. Reg 3219 and 3206 respectively.

13. (back)"Forest development roads" is changed to "National Forest System roads" and "forest transportation plan" is changed to "forest transportation atlas." Other new definitions also are added, e.g. to clarify "road construction" and "road reconstruction." 66 Fed. Reg. 3216-3217.

14. (back)66 Fed. Reg. 3230.

15. (back)65 Fed. Reg. 67,514. Revising the planning regulations has been a contentious issue for the Forest Service for quite some time. Most recently, proposed planning rules were published in 64 Fed. Reg. 54074 (October 5, 1999).

16. (back)Act of June 4, 1897, ch. 2, 30 Stat. 34.

17. (back)Pub. L. No. 86-517, 74 Stat. 215.

18. (back)Pub. L. No. 94-588, 90 Stat. 2949, primarily amending Pub. L. No. 93-378.

19. (back)16 U.S.C. § 475.

20. (back)16 U.S.C. § 551.

21. (back)16 U.S.C. § 531.

22. (back)16 U.S.C. § 528.

23. (back)16 U.S.C. § 529.

24. (back)Pub. L. No. 88-577, 78 Stat. 890.

25. (back)16 U.S.C. § 531.

26. (back)16 U.S.C. § 1604(g). Note that "wilderness" management is again mentioned, twelve years after enactment of the Wilderness Act.

27. (back)Pub. L. No. 88-577, supra.

28. (back)66 Fed. Reg. 3245 (January 12, 2001).

29. (back)Id., at 3246.

30. (back)New 36 C.F.R. § 294.13(b)(1), 66 Fed. Reg. 3273.

31. (back)Id., § 294.13(b)(2)-(4).

32. (back)Id., § 294.14(a) and (c).

33. (back)Id., § 294.14(d).

34. (back) The proposed rule would not have applied the prohibitions on new road construction to the Tongass National Forest in Alaska. Rather, decisions on whether the prohibitions should apply to any or all of the inventoried roadless areas in the Tongass would have been considered at the time of the 5-year review of the April 1999 revised Tongass Plan (i.e. in 2004). In contrast, the preferred alternative in the FEIS would have applied the road and timber prohibitions to the Tongass in April, 2004.

35. (back)65 Fed. Reg. 67529.

36. (back)Note that the materials at several points state that the roadless areas are to be reviewed at the time of plan revisions "and" at other times as appropriate. The regulation says "or," which could mean that review at the time of plan revision is not required.

37. (back)§ 294.14(b) and (e), at 66 Fed. Reg. 3273.

38. (back)66 Fed. Reg. 3249.

39. (back)Pub. L. No. 88-577, 78 Stat. 890.

40. (back)Pub. L. No. 86-517, 74 Stat. 215.

41. (back)16 U.S.C. § 1604(e).

42. (back)See, e.g., Boise County v. Glickman, Civ. No 00-0141 (D. Idaho), questioning the authority to create de facto wilderness areas, consolidated with the surviving claims in Idaho v. U.S. Forest Service, 99-0611-N-EJL (D. Idaho); and Communities for a Great Northwest v. Clinton, et al., 00-CV-1394 (D. D.C.). Information obtained through personal communication with representative from the U.S. Department of Agriculture.

43. (back)66 Fed. Reg. 3249, quoting 65 Fed. Reg. 67523.

44. (back)66 Fed. Reg. 3249.

45. (back)16 U.S.C. § 1604(g); Idaho Conservation League v. Mumma, 956 F. 2d 1508, 1511-1512 (9Th Cir. 1992), Portland Audubon Society v. Lujan, 795 F. Supp. 1489, 1491-1492 (D. Or. 1992).

46. (back)36 C.F.R. § 219.8 (2000).

47. (back)36 C.F.R. § 219.21 (2000) stated: "To the degree consistent with needs and demands for all major resources, a broad spectrum of forest and rangeland related outdoor recreation opportunities shall be provided for in each alternative. Planning activities to achieve this shall be in accordance with national and regional direction and procedural requirement of paragraphs (a) through (g) of this section."

48. (back)Southern Timber Purchasers Council v. Alcock, 779 F. Supp. 1353 (N.D. Ga. 1991), in which the court upheld applying a new policy for conserving the red-cockaded woodpecker pending amendment of the relevant plans. The court noted that the policy was temporary and designed to preserve the status quo in terms of species decline while a later policy would be developed. The NFMA claims were dismissed on appeal for lack of standing: 993 F. 2d 800 (11th Cir. 1993).

49. (back)Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1317 (W.D. Wash. 1994.)

50. (back)Seattle Audubon Society v. Moseley, 80 F. 3d 1401 (9th Cir. 1996).

51. (back)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 (10th Cir.)(re the interim rule); and Idaho v. U.S. Forest Service, 99-0611-N-EJL (D. Idaho), per conversation with representative of U.S. Department of Agriculture.

52. (back)Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, Andrew H. Card, Jr. January 20, 2001. Exceptions are also made for rules that are subject to statutory or judicial deadlines, or rules the Office of Management and Budget Director deems are excepted because they are needed for an emergency or other urgent situation relating to health and safety.

53. (back)Congressional Review Act (CRA), enacted as Subtitle E of the Small Business Regulatory Enforcement Act of 1996, Pub. L. No. 104-121, 110 Stat. 857-874, codified at 5 U.S.C. §§ 801 et seq.

54. (back)Pub. L. No. 89-554, 80 Stat.381, 5 U.S.C. §§ 501 et seq.

55. (back)Under 5 U.S.C. § 804(2), a major rule is one that "has resulted in or is likely to result in - (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets" other than rules under the Telecommunications Act of 1996.

56. (back)5 U.S.C. § 801(a)(3). Other provisions allow a major rule to become effective earlier under certain circumstances, such as those involving an imminent threat to health or safety or other emergency circumstances, national security, etc., or if either House votes to reject a joint resolution of disapproval.

57. (back)5 U.S.C. § 553(d). In contrast to the roadless area rule, the new Planning rule and the Roads rule were both effective immediately upon publication, evidently because they are not subject to the 30-day delay of § 553(d).

58. (back)5 U.S.C. § 553(e).

59. (back)Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F. 2d 425 (D.C. Cir. 1982).

60. (back)See, Natural Resources Defense Council v. EPA, 683 F. 2d 752, 768 at n.28 (3d Cir. 1982).

61. (back) 16 U.S.C. §§ 1604, 1612.

62. (back)66 Fed. Reg. 8899.

63. (back)The notice stated that it was exempt from notice and comment either because it is a procedural rule or for good cause shown: "[t]o the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, the Department's implementation of this rule without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this rule effective immediately upon publication."

64. (back)Idaho v. Dombeck, CV01-11-N-EJL (D.C. Id. 2001); Kootenai Tribe of Idaho et al v. Dombeck, CV01-10-N-EJL. (D.C. Id. 2001) Colorado and Alaska have joined Idaho in the suit and Utah also has filed suit.

65. (back)USDA News Release No. 0075.01.

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