Traveling in opposite directions: roadless area management under the Clinton and Bush Administrations.

AuthorGlicksman, Robert L.
PositionPublic Lands Management at the Crossroads: Balancing Interests in the 21st Century
  1. INTRODUCTION II. A SHORT HISTORY OF FOREST SERVICE MANAGEMENT OF ROADLESS AREAS A. Forest Service Management of Primitive and Roadless Areas Before the Roadless Rule B. The Current Legal Framework for Managing Roadless Areas in the National Forests III. MANAGEMENT OF ROADLESS AREAS UNDER THE CLINTON AND BUSH ADMINISTRATIONS A. The Clinton Administration's Initiatives 1. The Roadless Area Conservation Rule 2. The National Forest Transportation System 3. Forest Service Planning Rules 4. Summary of the Clinton Administration's Approach B. The Bush Administration's Initiatives 1. The Roadless Area Conservation Rule a. In General b. As Applied to the National Forests in Alaska c. The Proposed Roadless Area Management Rule 2. The National Forest Transportation System 3. Forest Service Planning Rules 4. Summary of the Bush Administration's Approach IV. LEGAL CONSTRAINTS ON MANAGEMENT OF ROADLESS AREAS IN THE NATIONAL FORESTS A. The Legality of the Clinton Roadless Rule 1. NEPA Issues a. The Ninth Circuit Litigation b. The Tenth Circuit Litigation c. NEPA and the Roadless Rule 2. Wilderness Act Issues a. The Tenth Circuit Litigation b. The Wilderness Act and the Roadless Rule B. The Legality and Merits of the Developing Bush Approach to Managing Roadless Areas 1. Potential Legal Weaknesses in the Bush Administration's Approach 2. The Merits of the Bush Approach as a Matter of PoKey V. CONCLUSION I. INTRODUCTION

    It is obvious to anyone paying attention (and perhaps even to some of those who are not) that the Clinton and Bush (1) Administrations have taken widely different approaches on a variety of important environmental issues. One of the most prominent areas in which the two Administrations have staked out different policy initiatives relates to the management of roadless areas contained in the national forests. Roadless area management by the United States Forest Service (Forest Service) has long been and continues to be a source of controversy, especially when the issue is whether those areas are suitable for intrusive activities such as road building and timber harvesting. (2)

    One reason for the controversy over this issue is the amount of valuable land and the importance of the natural resources affected by its resolution. The Forest Service has jurisdiction over more than 190 million acres of land located in more than 150 national forests and grasslands. (3) These lands contain about half of the nation's softwood timber inventory. (4) The value of these forests as a source of harvested timber is reflected in the fact that timber receipts in fiscal year 1991 alone amounted to about three quarters of a billion dollars. (5) This probably understates the value of the affected timber because many Forest Service timber sales are priced below cost. (6) But the value of the national forests obviously is not limited to the harvestable timber resources they contain. The lands under the jurisdiction of the Forest Service, for example, provide habitat for nearly one third of all species listed as endangered or threatened (7) under the Endangered Species Act. (8) The national forests also provide valuable opportunities for outdoor recreation.

    The presence of roads within the national forests facilitates access not only for the purpose of extracting some of the forests' resources, such as timber and minerals, but also for certain forms of motorized recreation. Road construction has the potential, however, to impair the suitability of land for other kinds of recreational use, and it can destroy or fragment the habitat of wildlife within the forests. The National Forest System contains an extensive system of roads. It includes approximately 373,000 miles of roads, which carry about 9,000 Forest Service administrative vehicles dally for purposes such as wildlife habitat improvement projects, maintenance of recreation activities, fire suppression, law enforcement, and search and rescue activities, and about 15,000 vehicles daily for timber harvesting and resource development. (9)

    Despite this extensive system of roads, the National Forest System contains approximately 58.5 million acres of inventoried roadless areas, (10) about one third of all National Forest System lands. Forest Service land and resource management plans prohibit road building in 20.5 million acres of this total. Road building is barred in an additional 42.4 million acres of congressionally designated areas that include wilderness areas and wild and scenic river corridors. (11) The question facing both the Clinton and Bush Administrations was whether to restrict activities such as road construction and timber harvesting in these roadless areas. The stakes were high. Former Forest Service Chief Mike Dombeck described the Clinton Administration's efforts to protect roadless areas as "one of the most significant conservation efforts in United States history." (12) Professor Charles Wilkinson called it "an epic initiative." (13) Opponents of the Clinton approach would undoubtedly describe it in less charitable terms.

    This Article describes the approaches to roadless area management taken by the two most recent Administrations. Part II provides a brief overview of the manner in which the Forest Service managed roadless areas before the Clinton Administration as well as a summary of the statutory framework that currently governs roadless area management within the national forests. Part III describes the Clinton Administration's pursuit of three initiatives related to the management of roadless areas: the Roadless Area Conservation Rule, new rules governing management of transportation within the national forests, and changes to the Forest Service's land-use planning process. Part III then explains how the Bush Administration has already changed, or proposed to change, the direction of each of these initiatives.

    Part IV assesses the legality and policy merit of the Clinton and Bush initiatives, focusing in the case of the Clinton rules on a pair of lawsuits that challenged the validity of those rules, and concluding that the Clinton initiatives do not appear to have violated either the National Environmental Policy Act (NEPA) (14) or the Wilderness Act. (15) Part IV also concludes that, in finalizing its approach to the management of roadless areas, the Bush Administration will have the burden of justifying any dramatic about-face in policy direction it decides to pursue. Ultimately, however, the Forest Service has sufficient discretion under its governing statutes that it can probably justify the pursuit of a different direction in roadless area management policy. Finally, Part IV asserts that, even if the approach to which the Bush Administration seems committed is within the agency's discretion, elements of that approach are ill-advised as a matter of federal land management policy. In particular, the roadless area management documents issued by the Forest Service under the Bush Administration thus far emphasize the protection of private property rights and the protection of national forest resources from the adverse consequences of natural events, such as forest fires, but not from resource extraction and development. At the same time, the Forest Service seems intent on deemphasizing the pursuit of ecological sustainability. These elements of the developing Bush policy have the potential to facilitate the degradation of some of the most valuable resources contained within the national forests, especially for uses such as primitive recreation, wildlife preservation, and watershed protection.

  2. A SHORT HISTORY OF FOREST SERVICE MANAGEMENT OF ROADLESS AREAS

    The statutes delegating the authority to manage the national forests to the Forest Service vest broad discretion in the agency to determine what kinds of activities to allow in different areas of the forests. Although the Forest Service has restricted activities in roadless areas of the national forests for at least eighty years, the process of systematically assessing these areas to determine whether they should be preserved as wilderness began in earnest after the adoption of the Wilderness Act in 1964. For roadless areas not selected for such preservation, the agency decided whether to allow road construction, timber harvesting, and other activities through implementation of the land-use planning process created by the National Forest Management Act of 1976 (NFMA). (16) This Part briefly surveys the history of the Forest Service's management of roadless areas prior to the Clinton Administration and summarizes the relevant statutory provisions governing Forest Service management of these areas.

    1. Forest Service Management of Primitive and Roadless Areas Before the Roadless Rule

      The roadless areas of the national forests serve a variety of functions. According to the Forest Service,

      [w]hile National Forest System inventoried roadless areas represent only about two percent of the United States' land base, they provide significant opportunities for dispersed recreation, sources of public drinking water, and large undisturbed landscapes that provide privacy and seclusion. In addition, these areas serve as bulwarks against the spread of invasive species and often provide important habitat for rare plant and animal species, support the diversity of native species, and provide opportunities for monitoring and research. (17) Roadless areas also provide other invaluable resources, including clean air and uncontaminated soil. (18) The installation of roads in these areas can cause serious damage to these resources by increasing erosion and the possibility of landslides, disrupting water flow, fragmenting ecosystems, destroying wildlife habitat, and increasing air pollution. (19)

      The Forest Service has afforded special management attention to roadless areas for decades. As early as 1924, the agency managed some forest areas as natural, primitive, or wilderness areas. (20) Forest Service regulations...

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