Obama Administration Joins Roadless Rule Battle

8/18/2009

In an Aug. 13 filing, the U.S. Department of Justice (DOJ) reserved its right to appeal a district court ruling and support the 2001 roadless rule that protects millions of acres of forest land. If the district court ruling striking down the rule is allowed to stand, it would conflict with a recent appeals court decision upholding the roadless rule. The administration's support for the roadless rule could bring years of conflict over the rule's status to an end.

The 2001 Roadless Area Conservation Rule protected approximately 58 million acres of pristine forest land from new roads, logging, and development. The rule was developed through an extensive public process and a series of environmental reviews required by the National Environmental Protection Act (NEPA). It went into effect in 2001 and was an early target of the Bush administration's efforts to open vast expanses of forest lands to development and to change the way the U.S. Forest Service managed these lands.

The roadless rule has been the subject of constant court battles since it went into effect. In addition, the Bush administration tried to replace the rule with a program allowing states to determine which portions of federal lands would be open to development and resource extraction. This policy change has also been litigated extensively in an effort to reinstate the Clinton rule. (An April 2007 Watcher article summarizes some of those court actions.)

On Aug. 5, the U.S. Court of Appeals for the Ninth Circuit issued an opinion upholding the roadless rule. The court wrote, "The Forest Service’s use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change." The court further said that the Forest Service had violated NEPA and the Endangered Species Act in issuing the rule change.

According to a Wilderness Society press release summarizing the appeals court decision, reinstating the rule will protect more than 40 million acres of land but not the entire 58 million acres originally covered by the roadless rule. The Wilderness Society's senior policy analyst, Mike Anderson, said, "[T]he Obama administration must now take the next steps necessary to make protection permanent and nationwide.” The Tongass National Forest in Alaska and lands in Idaho are not covered by the reinstatement. In addition, Colorado is in the process of implementing its own rule.

In a separate case, the state of Wyoming challenged the roadless rule. In that case, Judge Clarence Brimmer of the U.S. District Court of Wyoming issued a decision Aug. 12 vacating the roadless rule, according to an Aug. 17 BNA article (subscription). Brimmer's decision is in direct conflict with the Ninth Circuit ruling and is being appealed by environmental groups.

More importantly, BNA reports that DOJ filed a notice Aug. 13 with the Tenth Circuit Court of Appeals preserving the administration's right to appeal Brimmer's decision. A DOJ spokesman told BNA that the administration had not yet decided whether to appeal.

Obama campaigned in support of the roadless rule. The notice filed with Tenth Circuit has given environmentalists hope that DOJ will join the appeal and lend weight to arguments supporting the need for a national standard to protect national forests, according to BNA.

Other indications of the administration's support for the roadless rule come from Agriculture Secretary Tom Vilsack. According to an Aug. 15 major statement on national forest policy, Vilsack said the Forest Service would not appeal the decision of the Ninth Circuit reinstating the Clinton-era policy and overturning the Bush change. The article also hinted at the possibility that the administration would appeal the Wyoming district court ruling.

If the Tenth Circuit comes to a conclusion substantially the same as what the Ninth Circuit decided, it is likely that the roadless rule will be fully reinstated. Since these two federal circuits cover all the western states primarily affected by the rule, another challenge from a circuit with less interest is this issue is unlikely.

If the two circuits agree, it is also less likely that the U.S. Supreme Court would agree to accept the case on appeal. If the two appeals courts are in conflict, however, the case will probably be appealed to the high court, and the outcome will remain in doubt pending Supreme Court action. The administration could also pursue a separate rulemaking to address the issue if the two appeals courts come to conflicting conclusions.

Image in teaser by flickr user glennwilliamspdx, used under a Creative Commons license.