The real world roadless rules challenges.

• Author: Aarons, Kyle J.

The legal status of America's 58.5 million acres of Inventoried Roadless Areas has been unsettled for nearly a decade. These wild areas were given strict protection in the final days of the Clinton Administration, but President Clinton's Roadless Rule was suspended and later overturned by the Bush Administration when it promulgated its State Petitions Rule. Both rules were challenged in various courts, with conflicting results. As it stands, the United States Forest Service is simultaneously compelled to follow the Roadless Rule by the Ninth Circuit and barred from following the rule by the Tenth. This Note argues that both rules are invalid and that a new rule is needed for long-term stability. This new rule should initially require strict protection by the federal government but should allow for some local input to prevent another reversal when the Republican Party eventually retakes the White House.

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY OF ROADLESS AREA MANAGEMENT IN THE NATIONAL FOREST SYSTEM A. The Development of and Injunction Against, the Roadless Rule B. The State Petitions Rule C. The Current Status of Inventoried Roadless Area Management II. A NEW RULE IS REQUIRED FOR STABLE AND EFFECTIVE ROADLESS AREA MANAGEMENT A. The Roadless Rule and NEPA B. The Roadless Rule and the Wilderness Act C. The State Petitions Rule and NEPA D. Inventoried Roadless Area Management Without a Federal Forest Service Rule III. A NEW ROADLESS AREA MANAGEMENT RULE A. A National Roadless Rule Serves the Public Interest B. Proposed Changes to a New Roadless Rule 1. Rulemaking and Substance of a Federal Rule 2. State Petitions C. Lessons from Colorado and Idaho CONCLUSION "American Democracy, in its myriad personalities, in factories, workshops, stores, offices--through the dense streets and houses of cities, and all their manifold sophisticated life--must either be fibred, vitalized, by regular contact with out-door light and air and growths, farm-scenes, animals, fields, trees, birds, sun-warmth and free skies, or it will certainly dwindle and pale.... I conceive of no flourishing and heroic elements of Democracy in the United States ... without the Nature-element forming a main part--to be its health-element and beauty-element--to really underlie the whole politics, sanity, religion and art of the New World."

--Walt Whitman (1)

INTRODUCTION

Many historians agree that wilderness is a critical facet of the American experience. (2) It seems beyond dispute that we should maintain some amount of land in pristine condition, but questions about how much should be preserved, and through which processes, remain. In contemplating these issues, Whitman unwittingly points to an intriguing problem: What if the only way to protect these democracy-supporting natural landscapes is to do so by an undemocratic process? (3) Is wilderness so critical to democracy that it should be protected by executive decree if necessary, or does a top-down approach cut too strongly against our political ideals?

Undeveloped land has a variety of cultural, biological, educational, historical, recreational, and economic benefits--benefits that the government has sometimes recognized, despite opposition, through increased wilderness protection. (4) The value of protected federal land is recognized by the public. As illustrated by a nationwide survey conducted in 2000, the public appreciates a variety of the values of protecting pristine areas: almost 55 percent noted that protecting undeveloped federal land is "extremely important" to protecting water quality, and 85 percent felt that it is "extremely important" or "very important" to preserve wild lands for future generations. (5) Keeping developers and timber companies out of wild land is critical to the mission of several major environmental groups, including The Wilderness Society, (6) The Nature Conservancy, (7) and the Natural Resources Defense Council ("NRDC"). (8)

In contrast, timber companies and off-road vehicle enthusiasts believe Americans are entitled to free and full access to public lands. (9) Also in opposition to preservation efforts, the American Forest Resource Council has gone so far as to state that increased logging will help the environment by reducing intensity of forest fires as well as the amount of climate-change-causing greenhouse gases in the atmosphere. (10) Yet in spite of such opposing forces, the turn of the twenty-first century witnessed increased protection for undeveloped regions." Public land conservation policy has generally followed the same trend as environmental protection as a whole, which enjoyed a steady rise from the 1960s through the 1990s. (12)

The federal government's growing commitment to conservation was halted during the presidency of George W. Bush, whose environmental policy reversals have led to some frustrating legal ambiguities. (13) One such policy reversal involves President Bush's elimination of the Roadless Area Conservation Rule ("Roadless Rule"), the status of which has been unsettled for nearly a decade. (14) At the end of the Clinton Administration, the United States Forest Service ("Forest Service"), (15) at President Clinton's urging, issued a massive agency directive called the Roadless Rule. This rule prohibited almost all road building and timber harvesting on tens of millions of United States National Forest ("National Forest") acres known as Inventoried Roadless Areas ("IRA"). (16) Once in office, President Bush immediately suspended the Roadless Rule, and later issued the State Petitions for Inventoried Roadless Area Management Rule ("State Petitions Rule"), overturning the Roadless Rule entirely and opening IRAs to logging and other commercial interests, subject to laws in place prior to the Roadless Rule. (17) The State Petitions Rule favors more localized control over IRAs and allows for states to petition the Forest Service to set state-specific levels of IRA preservation. (18) During the Bush Administration both rules were challenged, and conflicting holdings in the Ninth and Tenth Circuits led to uncertainty regarding which rule, if either, is valid. (19) President Obama inherited this uncertainty and has not yet taken definitive action regarding the protection of the federal land in question. (20)

This Note argues that the National Forest Service under President Obama should institute a new rule for the management of the land at the center of this conflict. The new rule should blend the Clinton and Bush rules, mirroring an early draft version of the State Petitions Rule that set the default at strict protection but allowed for state-instituted changes under extraordinary circumstances. Part I traces the history of roadless area management, including the promulgation of the Roadless Rule, the State Petitions Rule, and the current situation facing the Obama Administration. Part II argues that neither the Roadless Rule nor the State Petitions Rule is legally valid due to violations of the National Environmental Policy Act ("NEPA"). As such, the current rules are likely to be struck down, and management of roadless areas will revert to an uncoordinated, localized planning process led by the Forest Service. Part III contends that a new national rule is in the public interest and suggests that, rather than copy the staunchly conservationist Roadless Rule that is likely be undone by the next Republican president, President Obama should institute a rule that provides both roadless area protection and long-term stability. This new national rule would mandate strict protection as a default but would allow for state-instituted alterations, such as those developing in Idaho and Colorado, under certain circumstances.

1. THE HISTORY OF ROADLESS AREA MANAGEMENT IN THE NATIONAL FOREST SYSTEM

   The Forest Service has a long history of conserving pristine land from development--a history that reached its apex, in both breadth and degree of protection, with the Roadless Rule. (21) Decades after the Forest Service first administratively set aside land for strictly conservationist purposes, Congress took a substantial legislative step by enacting the Wilderness Act of 1964 ("Wilderness Act")(22) The Wilderness Act constitutes the strictest protection of America's wild lands; it created a nine-million-acre National Wilderness Preservation System ("Wilderness") upon which commercial enterprises and permanent roads are banned. (23) In addition to directly preserving Wilderness land, the Wilderness Act requires the Forest Service to survey National Forests to identify other areas appropriate for legislative protection. (24) Suitable surveyed lands that do not yet have legislative protection are now known as Inventoried Roadless Areas. (25) Many former IRAs have been formally designated as "Wilderness" by Congress and are therefore protected by the Wilderness Act, but many others remained unprotected as of 2000. (26) This Note focuses on the management of the millions of acres of these IRAs, and this Part deals specifically with the lands' status over the past decade.

   This Part traces the factual history of IRA management, including Forest Service rulemaking procedures under the Clinton and Bush Administrations and lengthy legal battles in the Ninth and Tenth Circuits. Section I.A discusses the promulgation of the Roadless Rule and the subsequent legal challenges. Though the Roadless Rule has been upheld by the Ninth Circuit, a district court in the Tenth Circuit has since issued a nationwide injunction, putting in question the rule's legal validity. Section I.B explores the development of the State Petitions Rule, which effectively overturned the Roadless Rule, as well as a successful legal challenge in the Ninth Circuit. Section I.C summarizes the current status of IRA management, including state-instituted rules proposed in Colorado and in place in Idaho. Due to the complexity of recent IRA management history, this Part sets the stage...