Clinton-era roadless rule reinstated by courts

Nov 4, 2011

Ten years of legal see-sawing were capped off in late October when the 10th Circuit Court of Appeals ruled to reinstate a Clinton-era rule that bans road building, rebuilding, and timber extraction on almost 49 million acres of National Forest Service (NFS) land. Environmental groups, including the Wilderness Society, who were among the numerous interveners in the case, are hailing the decision as a landmark victory for the preservation of primitive, wild forests.

“The win in the U.S. 10th Circuit Court of Appeals is a great victory that validates the massive support of millions of Americans for protecting roadless forests and removes the clouds of legal uncertainty from this issue,” said William H. Meadows, president of The Wilderness Society, on the group’s website. “This is a day for celebration for everyone who cherishes our roadless forests for their scenic beauty, clean water supplies, recreational opportunities and wildlife habitat.”

As the principal plaintiff in the case, the State of Wyoming has argued that the 2001 Roadless Area Conservation Rule, or “Roadless Rule,” administratively created de facto wilderness and therefore usurped the exclusive authority of Congress to make wilderness designations. The 10th Circuit sharply disagreed, overturning

two separate rulings by the Federal District Court in Wyoming that had sided with the State, and vacating a permanent, nationwide injunction of the Roadless Rule issued by that court in 2008.

The newly reinstated Roadless Rule impacts nearly one-third of all land managed by NFS. The land was originally inventoried in 1979 as part of the Roadless Area Review and Evaluation process (RARE II) in an effort to identify areas on the NFS that were suitable for congressional designation as wilderness.

Several wilderness areas were created as a result of the RARE II study. Yet the question of how to manage the vast remaining “inventoried roadless areas” (IRAs) has been fraught with controversy. Natural resource users have supported returning the IRAs to standard multiple-use management, particularly including logging.

Environmental interests have objected, maintaining that the IRAs should be protected in their more-or-less primitive state.

In 2001, during the final days of the Clinton administration, NFS issued the Roadless Rule, effectively ending logging on one-third of the national forests and forbidding the building of new roads. Although the State of Wyoming successfully overturned the Rule in 2003, the 9th Circuit Court reinstated it following a challenge by environmental groups to the Bush-era State Petitions Rule, which had replaced the Roadless Rule. Although Wyoming again successfully enjoined the Roadless Rule in Federal District Court, the present ruling by a three-judge panel of the Denver-based 10th Circuit has effectively settled the issue, at least for the mean time.

Critics of the rule have questioned whether the restrictive management on these “roadless” areas makes much sense, pointing out that the IRAs are actually covered with roads that are used for recreation and other purposes, like grazing.

Renny MacKay, communications director for Wyoming Gov. Matt Mead, underlined the point.

“[W]hat I view as ironic is that you have roads in the roadless area,” MacKay said.

“[Y]ou have a couple campgrounds that are in areas that are inventoried as ‘roadless.’ We actually have a state highway that goes right through an [IRA], and you have a lot of roads that people have been using for many, many years …in these areas.”

Attorney William Perry Pendley, president and CEO of Mountain States Legal Foundation of Denver, CO, concurred with MacKay’s analysis. “Westerners know those are not roadless areas,” stated Pendley. “They know there are roads there; they know they are well traveled. Those are recreational roads.”

In a lengthy 121-page decision, the 10th Circuit Court emphasized that management of IRAs is not as restrictive as on wilderness areas. The court specifically pointed out that motorized access is allowed on IRAs, roads can be maintained, and “commercial activities” like livestock grazing are appropriate.

Yet Jim Magagna, executive vice president of the Wyoming Stock Growers, was concerned that the special protections afforded to IRAs might form a slippery slope that would eventually lead to more restrictive wilderness-like management.

In recent years, many roads have been closed on regular multiple use NFS land, and there is growing concern that the Roadless Rule will speed the process considerably.

“Probably the biggest fear that I have is that it’s a progression,” explained Magagna. “We go from multiple use to roadless, then pretty soon, those roadless areas get proposed by someone to become wilderness areas, and here we go down that path. And as we further move down the path, then all uses, including livestock grazing, become more difficult.”

Magagna further speculated that building range improvements on IRAs could eventually become problematic for ranchers.

“[The ruling] creates an expectation that those lands will be managed as wilderness,” Magagna continued.

“A lot of what is wilderness is based on the public expectation of what can happen there.”

Speculation over public perception has further raised fears that the Roadless Rule will invite litigation from parties who expect IRAs to be managed according to strict, wilderness-like standards.

“What I would anticipate happening is that environmental groups will file a lawsuit against the U.S. Forest Service since the president decreed these are ‘roadless’ areas and they’re to be managed as roadless areas,” remarked Pendley.

Questions have also been raised over whether banning the building of new roads will make management of the forest resource impossible. Many thousands of acres of trees on NFS lands have been killed by pine beetles, but without the possibility of building new roads and allowing for timber removal, critics like Magagna and MacKay believe that these trees could pose a serious fire hazard.

Explained Magagna, NFS is “setting the stage for a real holocaust” by not removing dead and dying trees.

“Like all natural resources, [forests] need to be managed in an appropriate way, and this [ruling] is just another way of saying ‘we won’t manage, we’ll let nature take it’s course,’” Magagna said.

Several exceptions to the sweeping Roadless Rule remain. In Idaho, an exemption rule has excluded some 9.5 million acres of national forest from restrictive Roadless Rule management, while a special Colorado Roadless Rule identifying 4.2 million acres of roadless areas for state management is still under consideration. Environmental groups are pursuing legal action to have these state-specific rules repealed.

Presently, the State of Wyoming is reviewing the court’s decision and weighing its options. It may be able to ask for a review of the decision by a full en banc panel of 10th Circuit. Alter natively,

Wyoming may attempt to appeal the ruling to the Supreme Court.

Despite the court’s insistence that IRAs are not de facto wilderness, there is little doubt that among skeptics, the Roadless Rule is intended to be the tip of a very large iceberg of increasingly restrictive designations by NFS. That, certainly, is how Pendley reads the situation.

“The court, I think, is engaging in pure speculation as to what the Forest Service is going to do,” Pendley remarked. “People in the West know, because it’s happened… you go into an area that you used to use in a national forest, and all of a sudden it’s all closed. …It’s one of those ‘emperor has no clothes’ situations, and the 10th Circuit was willing to go along with the charade.” — Andy Rieber, WLJ Correspondent