The Spirit of 76: Does President Clinton's Roadless Lands Directive Violate the Spirit of the National Forest Management Act of 1976?

• Citation: Vol. 17
• Publication year: 2000

§ 17 Alaska L. Rev. 127. THE SPIRIT OF 76: DOES PRESIDENT CLINTON'S ROADLESS LANDS DIRECTIVE VIOLATE THE SPIRIT OF THE NATIONAL FOREST MANAGEMENT ACT OF 1976?

Alaska Law Review
Volume 17
Cited: 17 Alaska L. Rev. 127

THE SPIRIT OF 76: DOES PRESIDENT CLINTON'S ROADLESS LANDS DIRECTIVE VIOLATE THE SPIRIT OF THE NATIONAL FOREST MANAGEMENT ACT OF 1976?

JENNIFER L. SULLIVAN ^[*]

I. INTRODUCTION

II. EXECUTIVE AND LEGISLATIVE ACTION GUIDING THE MANAGEMENT OF THE TONGASS NATIONAL FOREST

A. Conservation by Executive Decree in the Tongass National Forest

B. Congress Steps in: ANCSA, ANILCA, and the TTRA

C. The NFMA and the Tongass Land Management Plan

III. THE CHANGING FACE OF FOREST SERVICE ROAD SYSTEM MANAGEMENT POLICIES AND PRESIDENT CLINTON'S ROADLESS LANDS DIRECTIVE

A. Impetus Behind the Roadless Directive: Intrinsic Values of Undisturbed Land and the High Cost of Road Maintenance

B. Legal Challenges to the Roadless Directive

IV. PROPOSED NATIONAL FOREST SYSTEM ROAD MANAGEMENT POLICY

V. CONCLUSION

FOOTNOTES

This Article explores the competing resource protection and production interests surrounding President Clinton's proposal to ban new road building in areas of the Tongass National Forest. The Tongass is currently exempted from a temporary moratorium on road building while the Forest Service determines whether to include the Tongass in the roadless ban. This Article analyses the current legislative framework that guides Forest System management of the Tongass and legal challenges to the roadless ban's application to the Tongass. Finally, the Author suggests a potential compromise that balances commercial and production interests.

I. INTRODUCTION

The "'crown jewel of the national forest system,'" ^[1] Alaska's Tongass National Forest stands tall among America's natural treasures. Created by President Theodore Roosevelt in 1907 and named after the Tlingit Indian clan, ^[2] the Tongass is the largest na- [*pg 128] tional forest by a factor of three. ^[3] In fact, it is the largest remaining coastal temperate rainforest in the world, ^[4] rendering the forest of inestimable value to biologists, conservationists, and recreational users. The seventeen million acres of the Tongass is home to the nation's largest remaining old growth stands, hundreds of species of fish and wildlife, and 9.4 million acres of roadless area, more roadless acres than any other national forest. ^[5] The timber extracted from the Tongass, however, is of determinable, tangible value to the timber industry of southeast Alaska. The magnitude and gravity of competing resource protection and production values have fueled the dispute over timber harvesting in the Tongass and the national forests in general, the "single longest-running unresolved conflict in federal public land law and policy." ^[6] This conflict has generated debate over how best to protect the nation's largest remaining old growth stands, located in roaded and unroaded portions of the Tongass. The roadless acres are the subject of what may be the most significant environmental initiative of William J. Clinton's Presidency, ^[7] and possibly of this century.

The Tongass National Forest is at the eye of a mounting hurricane of public and political debate over President Clinton's recently announced Roadless Lands Directive (the "Roadless Directive"). On October 13, 1999, President Clinton unveiled an initiative that William H. Meadows, president of the Wilderness Society, described as "the most significant land preservation undertaking since Teddy Roosevelt built the national forest system." ^[8] The Roadless Directive is a proposal for a nationwide change to the Forest Service's management of roadless areas in the National Forest System, requiring the Forest Service to analyze methods for identifying, managing, and preserving the roadless areas. Previous congressional and Forest Service efforts to encourage the Tongass- [*pg 129] based timber industry ^[9] suggest that the impact of the changes proposed will be more keenly felt in southeast Alaska than elsewhere in the country. The Roadless Directive proposes a road building ban in the unroaded portions of inventoried roadless areas of the National Forests, which would effectively halt most major logging operations in the Tongass National Forest. ^[10]

Prior to the announcement of Clinton's Roadless Directive, in February 1999, the Forest Service imposed a temporary moratorium on road building in most unroaded areas of the National Forest System. ^[11] The temporary moratorium granted the Forest Service a "timeout" period to develop a new policy for managing the road system in the National Forest System. ^[12] The Tongass, however, was exempted from the interim suspension. The Forest Service determined that inclusion of the Tongass would "disrupt projected timber harvest substantially." ^[13] Moreover, the Tongass Land Management Plan, the document that guides Forest Service management of the forest, had recently been amended through a process that involved extensive regional and local public participation. The temporary moratorium is set to expire after eighteen months, unless a revised road management policy is adopted before then. ^[14] Clinton's Roadless Directive urges the Forest Service to impose a permanent ban on road building in roadless areas of the National Forest System. If adopted, such a ban would restrict road construction and reconstruction in areas covered by the new road management policy and a forest land management plan mandated by the National Forest Management Act ("NFMA"). ^[15] The Administration has not yet declared whether the Tongass will be included in any regulations adopting the Roadless Directive and prohibiting the building of roads in roadless areas in national for- [*pg 130] ests. Conservation-minded citizens, environmentalists, and politicians such as former President Jimmy Carter have urged President Clinton to include the Tongass, "'an area of global ecological significance.'" ^[16] Alaskan politicians and many of their constituents, including the southeast Alaska timber industry, oppose the inclusion of the Tongass, arguing that unique local and regional concerns call for different treatment of the Tongass.

Part II of this Article concerns the current legislative framework that guides the management and protection of the Tongass National Forest. This section focuses on the NFMA-mandated regional approach to managing the National Forest System in the form of forest land management plans individualized for different forests. Part II also discusses congressional legislation of management goals and objectives directing the Forest Service in the development of the Tongass Land Management Plan.

Part III of the Article describes the Roadless Directive as well as Forest Service efforts to revise its strategies for road management. In addition, it analyzes the viability of legal challenges to the Roadless Directive and concludes that, while the action most likely does not violate the letter of any law, it violates the spirit of the NFMA, which requires decisions regarding forest management be made on a regional basis.

Finally, in Part IV, this Article suggests that the Forest Service's recently proposed revised road management policy represents the optimal approach to achieving a balance between conservation values and resource production objectives.

II. EXECUTIVE AND LEGISLATIVE ACTION GUIDING THE MANAGEMENT OF THE TONGASS NATIONAL FOREST

A. Conservation by Executive Decree in the Tongass National Forest

President Theodore Roosevelt, widely recognized as our nation's greatest conservation president, designated the Tongass a National Forest in 1908 by presidential proclamation. ^[17] The birth of the Tongass initiated debate between conservationists and economic users of forest resources over the appropriate extent of supervision and regulation to be levied by the federal government. [*pg 131] The growth of federal regulation has paralleled the growth of the Tongass, designated largely by executive decree.

Designation of Alaskan lands for federal protection moved at a slow pace until the latter part of the twentieth century. Alaskan lands customarily joined the National Park System by executive decree, which aroused anti-federalist sentiment in the territory. ^[18] When Alaska achieved statehood in 1959, Congress granted the state 104.6 million acres of public lands administered by the Bureau of Land Management, to be selected within twenty-five years. ^[19] Five years after Alaska's entry into the Union, Congress passed the Wilderness Act of 1964. ^[20] Alaskan lands were not included in the federal protection scheme set forth in the Wilderness Act due to heated disputes between Native Alaskans, the State, and the federal government over the ownership of Alaskan lands. ^[21]

Prior to the 1970's, the Forest Service was given broad discretion to permit logging and clearcutting in the National Forest System. During the 1960's, the passage of the Wilderness Act and a growing awareness of federal land damage resulting from human activities heightened interest in conserving Alaskan lands. This effort was led by Stewart Udall, Interior Secretary for the Johnson Administration. At Udall's behest, President Johnson considered signing into law a presidential proclamation that would have "sen[t] Johnson into history as the greatest conservation President since T.R." ^[22] The...