Where the Wild Things Were: a Chance to Keep Alaska's Challenge of the Roadless Rule Out of the Supreme Court

• Publication year: 2012

§ 29 Alaska L. Rev. 237. WHERE THE WILD THINGS WERE: A CHANCE TO KEEP ALASKA'S CHALLENGE OF THE ROADLESS RULE OUT OF THE SUPREME COURT

Alaska Law Review
Volume 29, No. 2, December 2012
Cited: 29 Alaska L. Rev. 2

WHERE THE WILD THINGS WERE: A CHANCE TO KEEP ALASKA'S CHALLENGE OF THE ROADLESS RULE OUT OF THE SUPREME COURT

Kirsten Ronholt ^[*]

INTRODUCTION

In a 2010 decision out of the Tenth Circuit, an injunction against the Roadless Area Conservation regulations, known as the "Roadless Rule," ^[1] was reversed, representing an important step in finally solidifying federal protection of the inventoried "roadless areas." The Roadless Rule prohibits road construction, reconstruction, and timber harvesting in designated areas. ^[2] Between the Ninth and Tenth Circuits, there are now two major circuit decisions recognizing the validity of the Roadless Rule. These decisions are significant partly because they were decided by the two circuits most deeply impacted by the Roadless Rule, and are thus the most crucial in its survival. The Ninth and Tenth Circuits contain, respectively, the first and second largest National Forest lands areas subject to the Roadless Rule among judicial circuits. ^[3]

Prior to the recent Tenth Circuit decision, the Roadless Rule endured many political and legal challenges. ^[4] Although the unanimous circuit decisions staved off the Roadless Rule's permanent enjoinment, the State of Alaska is currently attempting to essentially re-try the case in a new forum. ^[5] This Article focuses on the Roadless Rule's history ^[6] and ongoing litigation ^[7] , discussing the decisions upholding the Roadless Rule in the Ninth and Tenth Circuits. Finally, it analyzes Alaska's pending challenge in the District Court for the District of Columbia and the Roadless Rule's likely treatment should it reach the Supreme Court. ^[8]

I. HISTORY AND EVOLUTION OF THE ROADLESS RULE

The Organic Administration Act of 1897 ^[9] established the national forest system, and articulated a directive of the Forest Service: "No national forest shall be established, except to improve and protect the forest within . . .or for the purpose of . . . fumish[ing] a continuous supply of timber for the use and necessities of citizens . . . ." ^[10] From this auspicious beginning, with two apparently competing interests to balance, the Forest Service is mandated to provide the public with access to and use of its forest lands, while simultaneously working to preserve, improve, and protect them.

Subsequently, the Wilderness Act of 1964 ^[11] ("Wilderness Act") established a procedure by which Congress can designate roadless areas as "wilderness," ^[12] which had the effect of keeping them in a primitive state in perpetuity. ^[13] Looking to preserve and protect forest lands, the Forest Service began the Roadless Areas Review and Evaluation ("RARE I") in 1967-the first attempt to inventory the roadless areas within the national forest system with the goal of ultimately recommending certain lands to Congress as appropriate for wilderness designation. ^[14] Almost ten years later, in 1976, after a district court outlawed clear-cutting nationwide, ^[15] Congress passed the National Forestry Management Act(fn16)("NFMA"), "allow[ing] the Forest Service to resume clear-cutting with certain restrictions" and accomplish its other interest. ^[17] NFMA required the Forest Service to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System . . . . " ^[18]

In 1977, the Forest Service began RARE II, its second attempt to inventory the roadless areas within its jurisdiction. ^[19] This effort, however, was short-lived; a successful court challenge, brought under the National Environmental Protection Act ("NEPA") ^[20] against the Forest Service's wilderness designation procedure, halted any further action by the Forest Service. ^[21] When it became clear that there would be no RARE III, Congress took control of roadless area policy by enacting numerous bills to establish wilderness designations on a state-by-state basis. ^[22]

In 1998, a survey revealed that the Forest Service faced an $8.4 billion backlog of road maintenance and construction. ^[23] A year later, the Forest Service Chief published the "Interim Roadless Rule," placing an eighteen-month moratorium on road building in national roadless areas. ^[24] In a move met with wide public support, ^[25] the Clinton administration promulgated the "Roadless Area Conservation" regulations, known as the "Roadless Rule." The Roadless Rule, eventually adopted and made effective on March 13, 2001, established lasting protection for inventoried roadless areas in the National Forest System. ^[26] It set limits on road construction, reconstruction, and timber harvesting in designated areas, stating that these activities have the greatest potential for altering and fragmenting landscapes, which, in turn, would lead to immediate and long-term decline in the value and characteristics of roadless areas. ^[27] The environment's health was in need of serious consideration on a national level, and, to that end, the Forest Service was granted authority to examine the "whole picture" of land management for roadless areas by implementing a nationwide management system. ^[28]

In essence, the Roadless Rule forbids road construction and logging in inventoried roadless areas, which comprise about one third (58.5 million acres) of the National Forest System. ^[29] The rule had two elements: a "Prohibition Rule," which banned road construction and reconstruction in inventoried roadless areas, and a "Procedural Rule," which required forest managers to identify additional roadless areas and determine whether they warranted elevated protection. ^[30]

The Roadless Rule does not restrict access to inventoried roadless areas, but instead prevents the construction of new roads and reconstruction of existing roads. ^[31] It does not, as some assume, prohibit any sort of activity or development in an area, eliminating all economic use the land could provide.

Furthermore, the Roadless Rule includes several exceptions to the general prohibition against roadbuilding and timber harvesting in inventoried roadless areas. It allows for forest management activities that do not require the construction of new roads, ^[32] construction or reconstruction of roads when necessary for public safety, response actions, and other events, ^[33] and even allows for certain exceptions to the general prohibition against timber harvesting in roadless areas.(fn34)Moreover, the Roadless Rule was intended to have a negligible real impact on timber sales nationwide, as the industry had already experienced sharp declines in the previous decade. To that end, the availability of timbered lands would not be affected. ^[35]

A. The First Challenges to the Roadless Rule in Court

The State of Idaho was the first to challenge the proposed rule, claiming that the Forest Service's scoping process violated NEPA, ^[36] but the suit was dismissed. ^[37] on January 8, 2001, only three days after the Roadless Rule took effect, the Kootenai Tribe and others filed suit in the District of Idaho, alleging that the Roadless Rule was illegal and violated both NEPA and the Administrative Procedure Act. ^[38] Before the District Court published its opinion, President Bush postponed the Roadless Rule's effective date to May 12, 2001. ^[39]

The State of Alaska also challenged the Roadless Rule. Specifically, Alaska sought to prevent its application to the Tongass National Forest, and, ultimately, the state reached a separate settlement with the Forest Service promulgating a new rule exempting the Tongass from the Roadless Rule. ^[40] This was a huge setback for the Roadless Rule, given that the Tongass National Forest is the country's largest tract of national forest land; under the Tongass exemption Alaska was essentially removed from the Roadless Rule's reach. ^[41] However, this out of court settlement did not affect other states, and Idaho's challenge continued.

Despite postponement of the effective date, the Idaho District Court issued a nationwide injunction. ^[42] The Ninth Circuit subsequently vacated the injunction, holding that the district court had abused its discretion in enjoining the rule. ^[43] The Court of Appeals determined that beyond providing adequate notice, the affirmative duties NEPA imposes are actually rather limited, so that the plaintiff's allegations of procedural invalidity ^[44] were insufficient to support an injunction. ^[45] The Court of Appeals also held that the Forest Service was not required to issue a supplemental Environmental Impact Statement ("EIS") for the addition of 4.2 million acres of previously unidentified roadless areas to the final EIS. ^[46]

Most importantly, the Court of Appeals held that the Forest Service impact statements analyzed an adequate range of alternatives as required by NEPA, ^[47] and held that the Forest Service was not required under NEPA to consider alternatives in its EIS that were inconsistent with its basic policy objectives. ^[48] Since the decision was published, the greatest criticisms have focused on the Ninth Circuit's discussion of the Roadless Rule's purpose, particularly the panel's unsupported claims that "the policy of NEPA is first and foremost to protect the natural environment." ^[49] Although critics...