CHAPTER 9 ROADLESS RULE: WHERE ARE WE NOW?

• Jurisdiction: United States

Public Land Law, Regulation, and Management
(May 2014)
CHAPTER 9
ROADLESS RULE: WHERE ARE WE NOW?
Robert C. Mathes
Shareholder
Bjork Lindley Little P.C.
Denver, Colorado
Timothy R. Canon II
Associate
Bjork Lindley Little P.C.
Denver, Colorado

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ROBERT C. MATHES is a Shareholder with the Firm of Bjork Lindley Little PC in Denver, Colorado. Rob has practiced with the firm since 2001. Rob's practice has focused on public land law, including environmental compliance and federal land use and planning. Rob additionally has extensive experience with complex transactions, including purchase and sale agreements and asset divestitures. Rob attended law school at the University of Wyoming where he graduated with honors in 2000 and was appointed the Editor-in-Chief of the Land & Water Law Review (now the Wyoming Law Review). Upon his graduation from law school, Rob worked for a year as a law clerk to United States Magistrate Judge William C. Beaman in Cheyenne, Wyoming. He is admitted to practice before the Supreme Court of the United States, the Tenth Circuit Court of Appeals, and both the federal and state courts in Wyoming, Colorado, and the District of Columbia. Rob actively participates in the Rocky Mountain Mineral Law Foundation and served as a Trustee of the Rocky Mountain Mineral Law Foundation from July of 2007 to July of 2010, and again from July of 2011 to the present. Rob teaches at the Foundation's Federal Oil and Gas Leasing Short Course, is the Vice Chair of the Special institute Committee, reports on federal oil and gas issues for the Foundation's Mineral Law Newsletter, and served as the Public Lands Chair for the 56th Annual Rocky Mountain Mineral Law Institute. Rob was named a Colorado Super Lawyer Rising Star in 2009, 2010, 2011, and 2012, and Best Lawyers in America in 2013.

TIMOTHY R. CANON II joined Bjork Lindley Little PC in 2013, after a brief stint with an upstream producer while he studied for the bar. He practices primarily in the areas of public land use and planning, and environmental and regulatory compliance. He has worked with the Endangered Species Act, the National Environmental Policy Act, the organic acts for both the Forest Service and the Bureau of Land Management, and the Federal Oil and Gas Royalty Management Act. To a lesser extent, he also works with mineral title and other oil and gas issues. Tim graduated summa cum laude with a degree in economics from the University of Colorado at Colorado Springs in 2010, where he received the Economics Department's Outstanding Graduate award for 2010. He also served as the student newspaper's managing editor and the vice chairman of the College Republicans. He then graduated cum laude in 2013 from Boston University School of Law, where he served as an articles editor for, and published a legal developments article in, the Review of Banking and Financial Law. Tim is admitted to practice in Colorado.

I. Introduction and Background

The management of roadless areas within the National Forest Service lands has been a source of considerable controversy for the last 40 years. Though we finally have reached a state of relative calm regarding the Roadless Rule's validity, the road to nirvana was slow and chaotic, consisting of numerous legal hurdles, judicial and administrative back-and-forths, and executive policy shifts that, together, make the Roadless Rule one of the more complicated stories in the history of United States public lands. Our story begins in 1972, when the Forest Service began the Roadless Area Review and Evaluation (RARE I), an inventory of roadless areas within the National Forest System designed to determine their suitability for inclusion in the National Wilderness Preservation System. The Forest Service's RARE I effort ended when a federal court enjoined further work until the Forest Service completed an environmental impact statement or EIS.¹ A second review for wilderness consideration of roadless areas was initiated on the national scale in 1978. This process was known as RARE II and led to the issuance of a Final Environmental Impact Statement (FEIS) in January of 1979. The lands identified in the RARE II FEIS as containing roadless characteristics are generally known as "inventoried roadless areas" or IRAs and encompass approximately 54.3 million acres.² The United States Court of Appeals for the Ninth Circuit determined in California v. Block³ that the RARE II FEIS violated the National Environmental Policy Act of 1969 (NEPA) because it was insufficiently site specific and did not consider a sufficient range of alternatives.⁴ The Ninth Circuit thus set aside the RARE II FEIS for further analyses. The Forest Service elected not to pursue additional analysis at that time, and between 1982 and January of 2001, inventoried roadless areas were managed pursuant to the terms of local forest plans developed within each unit of the National Forest System. The references to IRAs continued in many local forest plans despite the fact the Ninth Circuit overturned the RARE II process.

II. 2001 Roadless Rule Timeline and Legal Challenges

A. The Road Begins: The 2001 Roadless Rule

In the waning days of the Clinton Administration the Forest Service embarked upon a significant process to modify the management of IRAs from a decentralized,

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forest-by-forest, local management approach to a nation-wide policy favoring the protection of the remaining roadless areas within the National Forest System.⁵ The process started in 1998 when the Forest Service announced that it would soon propose changes to the regulations governing management of the National Forest Transportation System, as well as a rule temporarily prohibiting road construction within areas identified in the RARE II inventory as well as "other unroaded areas."⁶ The stated purposes of this effort were twofold: To protect the nation's roadless areas' conservation values, and to save the Forest Service money.⁷ The Forest Service issued its final interim rule temporarily suspending road construction activities for eighteen months while the agency considered changes to the National Forest Transportation System.⁸

The Wyoming Timber Industry Association (WTIA) soon filed suit, claiming the interim rule violated NEPA and the Wyoming Wilderness Act (WWA) of 1984.⁹ Judge Brimmer--who went on to play a key role in the Roadless Rule saga--dismissed the claim for lack of jurisdiction, finding the WTIA lacked standing because it did not assert a valid procedural injury. Judge Brimmer first noted that the Organic Act provided the Forest Service with broad rulemaking authority, and that the WWA did nothing to restrain that authority; hence, the WTIA and its members had not sustained procedural injuries under that act.¹⁰ Judge Brimmer then found the WTIA's NEPA claim without merit because the timber trade group's economic interests were not within the zone of interests Congress sought to protect in enacting NEPA.¹¹ Accordingly, Judge Brimmer dismissed WTIA's claims.¹² Although Judge Brimmer dismissed WTIA's suit for lack of jurisdiction, Brimmer's discussion is notable for its framing of the roadless rule's history as arising "out of the struggle over wilderness designation within the National Forest System"¹³ --a point that both sides of the roadless rule debate would later hotly contest. Thus, at an early stage, Judge Brimmer indicated that he viewed the Forest Service's attempts to protect roadless areas as an extension of their duties to inventory and recommend wilderness areas for protection. This view would eventually serve as support for Judge Brimmer's later rulings on the actual Roadless Rule.

In October of 1999, President Clinton directed the Forest Service to "develop, and propose for public comment, regulations to provide appropriate long-term protection for most or all [inventoried roadless areas], and to determine whether such protection is

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warranted for any smaller 'roadless' areas not yet inventoried."¹⁴ Less than a week later, the Forest Service issued its Notice of Intent (NOI) to prepare an environmental impact statement on a rule to protect the National Forest system's remaining roadless areas.¹⁵ In May of 2000--a mere seven months following the NOI--the Forest Service announced the availability of the draft environmental impact statement (DEIS) and proposed rules.¹⁶ Under the proposed Roadless Area Conservation Rule, the Forest Service would have prohibited road construction and reconstruction activities, including temporary road construction, in only the unroaded portions (51.5 million acres) of inventoried roadless areas.¹⁷ The proposed rule would not have prohibited road construction in the approximately 2.8 million acres of National Forest System Lands that had been roaded since the completion of the RARE II inventory in 1979, but would have precluded road construction in areas which were open to road construction under existing management prescriptions.¹⁸ In addition, the proposed rule would have effectively prohibited road construction on approximately 33.8 million acres of inventoried roadless areas where the locally developed and then-effective forest plan would have allowed road construction.¹⁹

At this point, the State of Idaho and various other groups sued the Forest Service, claiming violations of NEPA, the National Forest Management Act (NFMA), and the Administrative Procedure Act (APA).²⁰ However, because the Roadless Rule had not yet been finalized, Judge Lodge of the District of Idaho dismissed the state's claims for lack of ripeness.²¹ Even though he dismissed the claims, Judge Lodge warned the Forest Service numerous times about the speed with which the agency was pursuing the Roadless Rule and the toll this speed might potentially take on public participation:

The Court . . . is very concerned about the speed at which the Forest Service is attempting to impact a significant portion of...