On April 6, the Bush administration appealed the first of two recent federal district court decisions that held the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the Endangered Species Act when it overturned the 2001 Roadless Area Conservation Rule and rewrote forest management plans.

The Clinton-era rule declared more than 58 million roadless acres managed by the Forest Service off-limits to logging, road building, and oil and gas leases. It was passed after extensive public comment and protects some of the most remote and wild lands in the federal system. The rule was challenged through a number of lawsuits filed by extraction industries and several states and counties.

According to a BNA story, a district court in northern California in Sept. 2006 overturned a 2005 Forest Service rule that allowed states to petition the federal government to open these roadless areas because the Forest Service "failed adequately to consider the environmental and species aspects" when it issued the new rule. The court said the Forest Service should have conducted an environmental impact statement, required under NEPA, for such a significant rule change. The Forest Service argued it was exempt from NEPA because the new rule was merely a procedural change. The court rejected this argument.

According to the Heritage Forests Campaign, the Forest Service rule would have replaced "environmental protections for much of our national forests with a voluntary process that allows governors to petition for protection of roadless areas in their states — or for more logging, mining, drilling or other forms of commodity development. In the end this new policy does not assure any type of federal protections for these national forestlands." The state petition process did not allow any elected officials or citizens outside those states containing the protected roadless areas any means of participating in the process.

Several states had already filed petitions under the Bush administration's new rule. The same district court that heard the case in September issued an injunction in November 2006 that halted all activity in the roadless areas. The court issued a final injunction on Feb. 6, 2007, that clarified the injunction covered oil and gas leases that had been issued under the Bush rule. The injunction also prevented the Forest Service from "approving or authorizing any management activities in inventoried roadless areas that would be prohibited by the 2001 Roadless Rule, including the Tongass Amendment, and issuing or awarding leases or contracts for projects in inventoried roadless areas that would be prohibited by the 2001 Roadless Rule" until it remedied the violations of NEPA and the Endangered Species Act.

The administration's decision to appeal the district court ruling comes on the heels of another district court rebuke of the way the Forest Service has ignored legal processes established for agency rulemaking. A different judge in the same California district court ruled that the administration illegally rewrote forest management rules governing 192 million acres of federally owned lands. According to a March 31 Washington Post story, the judge suspended rules issued in 2005 because the government "did not adequately assess the policy's impact on wildlife and the environment and did not give sufficient public notice of the 'paradigm shift' that the rule put in place."

The court ordered the administration to undergo another rulemaking analysis that considers the environmental and public participation requirements of NEPA, the Endangered Species Act and the Administrative Procedure Act. The court's decision describes the history and the arguments made by the Bush administration that NEPA's environmental impact assessment requirements didn't apply. Although acknowledging that the 2005 rule was a "paradigm shift," the administration argued that the rule was a strategic and aspirational change, not one that resulted in "on-the-ground" impacts and, therefore, were outside the scope of NEPA's impact assessment requirements. It argued that changes in the management plans do not impact the environment and so are exempt from NEPA.

Defenders of Wildlife, Sierra Club, The Wilderness Society, and the Vermont Natural Resources Council brought the suit and argued that the rule changes set aside Reagan-era forest management planning processes that included considerations of species diversity and viability and limited logging and resource extraction activities. The 2005 rule, they argued, set aside these considerations and allowed local officials to set logging limits without public participation or amendments to the management plans. The court agreed.