The Roadless Area Conservation Rule was taken in the final days of Clinton administration on January 5, 2001. The rule bans the construction of roads and the harvest of timbers in 58.5 million acres of America’s national forests, except under certain circumstances, such as having access to the current mineral lease boundaries, or for the safety and public health. It started in January 1998, when Forest Service Chief Mike Dombeck proposed to temporarily suspend road construction and reconstruction in most inventoried roadless areas and other adjacent unroaded areas. In October 1999, Former president Clinton directed the Forest Service to develop regulations that would provide appropriate long-term protection for currently inventoried roadless areas. On January 12, 2001, after nearly three years of analysis and the greatest public outreach in the history of federal rulemaking, the U.S. Forest Service adopted the Roadless Area Conservation Rule to conserve 58.5 million pristine acres of National Forests and Grasslands from most logging and road construction. The Roadless Area Final Rule was supposed to go in effect on March 13, 2001, but on February 5, 2001 the United States Department of Agriculture (USDA) postponed the implementation of the rule due to an order from Bush administration for 60 days. In the absence of further delay, the current effective date of the Roadless Rule would be May 12, 2001. On May 13 2005, the Bush administration repealed the Roadless Area Conservation Rule and replaced it with a state petition process based on several separate lawsuits challenging the implementation of the Roadless Area final rule. Under the new rule almost sixty million acres of the national forests was opened to road construction, oil exploration, logging, mining, and other forms of developments; so that the roadless areas may receive protection only if the governors of the states in which the roadless areas lie, complete and file the petition at the Department of Agriculture. There is no guarantee that the petition will be accepted and the government can either accept it or reject it. The officials and citizens outside those states can’t be involved in the decision either. This decision was made because of the several complaints from various recreational groups, livestock companies, minerals companies and Indian tribes, challenging the implementation of the Roadless Area final rule.
On January 8, 2001, the Kootenai Tribe of Idaho, two Idaho counties, various recreational groups and snowmobile and ranching companies, some livestock companies, and the Boise Cascade Corporation filed suit in the federal district court in Idaho to block the federal government from implementing the Roadless Rule. According to the complaint, the Forest Service failed to involve the public adequately as required by the Administrative Procedure Act (APA), and failed to consider environmental impacts and reasonable alternatives for the recommended course of action in the Environmental Impact Statement (EIS) as required by the National Environmental Policy Act (NEPA). Since the Forest Service violated its procedural obligations, the plaintiffs have requested that the court issue a preliminary injunction preventing the Forest Service from implementing the Final Rule until the case is heard and adjudicated. According to Mike Moser, the spokesman for plaintiff Boise Cascade, a timber company, the rule was predetermined and one-sided and failed to consider the long- term consequence for managing the health of the national forests.
On May 10, 2001, federal district judge Edward Lodge made a preliminary determination that the Roadless Rule likely violated NEPA and APA. He believed that the Clinton rule-making process was improperly hurried and the Forest Service was not given time to produce a coherent proposal so that the end result was predetermined. Surprisingly, the federal government, represented by the Bush Administration, filed a response that failed to defend the Roadless Rule; instead it invited the court to order a stay of the effective date of the regulation until the case is resolved. “The government also declared that the USDA clearly retains the discretion and authority to promulgate, amend, revise, or rescind rules such as the Roadless Rule here at issue. Furthermore, Justice Department attorneys went so far as to say that the intervening defendant environmental organizations would not be harmed by a delay in the implementation of the rule because any timber sales that might move forward as a result of a delay could be challenged on a site specific basis where the sales would be occurring.”(Vermont Journal of Environmental Law, J. Fidel)
The federal government, the defendant, did not appeal Lodge’s decision. But the federal appellate court in San Francisco allowed a consortium of activist groups to appeal the ruling. When the activist groups were allowed to appeal, the Bush administration surprised the supporters of multiple uses by filing a brief supporting the Roadless Rule. Turning to the merits of the appeal, the appellate court, determined that the Roadless Rule did not violate NEPA.
According to the court, “NEPA simply provides the necessary process to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions, That “hard look,” the court ruled, required only that the Forest Service give some input to state and local governments, affected Indian tribes, and the general public in preparing and implementing a plan to prevent degradation of national forests (Appeals Court Upholds Clinton Roadless Rule, J.M. Taylor.).”The appellate court rejected the district courts determination and claimed that the Clinton administration had moved too quickly to implement the rule and it should have considered alternative plans for protecting national forests that did not contemplate a complete ban on new road-building. The appellate court determined the NEPA requirement to consider a variety of alternative plans “must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than harm it (Taylor).” On the other hand, appellate court judge Andrew Kleinfeld argued that the activist groups had no legal right to intervene in and appeal district judge Lodge’s preliminary injunction. Kleinfeld wrote: “The majority admits that “the interveners do not have an independent protectable interest.” The majority nevertheless claims the interveners assert “defenses of the Roadless Rule directly responsive to the claim for injunction” and have “an interest in the use and enjoyment of roadless lands.” This is plainly insufficient under Rule 24(b), which requires common claims or defenses, not merely parallel but distinct interests. The government’s interest in this action is in compliance with the procedural requirements of NEPA, not in the enjoyment of national forests (Taylor).” He also argued that all the few alternatives suggested by Clinton Administration banned the road construction, and didn’t give any alternatives of not banning road construction. Kleinfeld believed that since roads are necessary to protect the forests and those who have property affected by them from avoidable destruction by fire, insects, and disease, other alternatives such as allowing road construction with limits on density, allowing construction of roads made of certain materials only, or limiting road use to low-emission vehicles could be included.
Kleinfeld believed that “the national forests [are] established to provide a source of timber and to protect the flow of water. “National forests [at their creation] were not to be reserved for aesthetic, environmental, recreational, or wildlife-preservation purposes.” (United States v. New Mexico, 438 U.S. 696, 707 (1978)).They are not the same as wilderness areas, and the national forests are not “natural environments.” They’ve been a managed rather than a natural environment for a hundred years. For most of that time they were managed to serve as a federal tree farm, supplying timber as a renewable resource” (Taylor).
On July 14, 2003, Wyoming U.S. District Court Judge, Clarence Brimmer, blocked implementation of the Roadless Area Conservation Rule. He believed that Roadless Area Conservation Rule violated NEPA for five reasons:
1. Failure to extend the scoping comment period
2. Failure to explain denial of cooperating agency status to the State of Wyoming
3. Inadequate range of alternatives
4. Inadequate cumulative effects analysis
5. Failure to prepare a supplemental EIS.
2. Failure to explain denial of cooperating agency status to the State of Wyoming
3. Inadequate range of alternatives
4. Inadequate cumulative effects analysis
5. Failure to prepare a supplemental EIS.
The State of Alaska filed its own suit over the Roadless Rule, and the Mountain States Legal Foundation filed a separate suit in the U.S. District Court for the District of Columbia representing Communities for a Great Northwest (Great Northwest is a rural grassroots group located in Libby, Montana).
After the Roadless Area Rule was suspended by the federal court, in September 2003, the Bush administration decided to propose a new roadless rule, rather than to continue with rule revisions it proposed in June.
In May 2005, the United States Forest Service issued a new national roadless policy in an effort to repeal the 2001 Roadless Area Conservation Rule. The 2005 rule terminated that protection and directed each Governor to develop a new public process and petition the federal government to either open lands for development or maintain their protections. This interim rule reserves most decisions on timber harvesting and road building projects in these areas to the chief and regional foresters. Under the 2005 rule, the states were granted 18 months for the petition process. However, there was no guarantee that the U.S. Forest Service would grant protections to the areas identified by the states. A state has the option to include all or a portion of its roadless areas in a petition, and the governor could agree with most of a Forest Service’s land management plan with the exception of one area. Governors had until November 13, 2006 to submit petitions to the Secretary of Agriculture. If a governor decides not to file petitions, the conservation and management direction for these areas will continue to be guided by current land management plans. The interim directive will remain in effect as well, and it is the Secretary of Agriculture who makes the final decision on a petition.
It was the breadth of the Roadless Area Conservation Rule that spurred lawsuits by several states, caused lots of challenging through the procedural process of the rule and the authority of the government to implement such a policy. The Roadless Area Conservation Rule limits or prohibits new road construction or reconstruction in inventoried roadless areas on National Forest System lands unless:
In May 2005, the United States Forest Service issued a new national roadless policy in an effort to repeal the 2001 Roadless Area Conservation Rule. The 2005 rule terminated that protection and directed each Governor to develop a new public process and petition the federal government to either open lands for development or maintain their protections. This interim rule reserves most decisions on timber harvesting and road building projects in these areas to the chief and regional foresters. Under the 2005 rule, the states were granted 18 months for the petition process. However, there was no guarantee that the U.S. Forest Service would grant protections to the areas identified by the states. A state has the option to include all or a portion of its roadless areas in a petition, and the governor could agree with most of a Forest Service’s land management plan with the exception of one area. Governors had until November 13, 2006 to submit petitions to the Secretary of Agriculture. If a governor decides not to file petitions, the conservation and management direction for these areas will continue to be guided by current land management plans. The interim directive will remain in effect as well, and it is the Secretary of Agriculture who makes the final decision on a petition.
It was the breadth of the Roadless Area Conservation Rule that spurred lawsuits by several states, caused lots of challenging through the procedural process of the rule and the authority of the government to implement such a policy. The Roadless Area Conservation Rule limits or prohibits new road construction or reconstruction in inventoried roadless areas on National Forest System lands unless:
1. To protect the health and safety in cases of an imminent threat of flood, fire or other catastrophic event that, without intervention, would cause the loss of life or property
2. To conduct environmental clean up required by federal law.
3. To allow for reserved or outstanding rights provided for by statute or treaty.
4. To prevent irreparable resource damage by an existing road.
5. To rectify existing hazardous road conditions.
6. Where a road is part of a Federal Aid Highway project.
7. Where a road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease, or for new leases issued immediately upon expiration of an existing lease.
The Roadless Area Conservation Rule limits or prohibits activities that would most negatively affect the roadless, such as: cutting, sale, and removal of timber in inventoried roadless areas, except for the removal of generally small diameter trees which improves roadless characteristics and habitat for threatened or endangered species, or to maintain or restore ecosystem composition and structure, such as reducing the risk of uncharacteristic wildfire effects. In practice, the rule would prohibit road building and most timber cutting in inventoried roadless area, and would effectively bar most off road vehicles and new oil, gas, and mining operations.
New Mexico was the first western state to file a petition to protect all of its inventoried roadless areas in May 2006, but the state also joined a suit to invalidate the Bush administration's rule. In September and October, 2006, a Federal court in California reinstated the Clinton Roadless Area Conservation Rule. In November 30, 2006, the court blocks many oil and gas and road projects approved while roadless area protections were removed. After that Oregon joined the two other states, California and New Mexico, as well as Virginia and North Carolina and filed a law suit against U.S. Forest Service, to stop the implementation of the 2005 Roadless Rule, and to get the full protection of the roadless acres in their states that were covered by 2001 Roadless Rule, and to make sure that the state has the role in the management of federal lands. In October 2006, Idaho became the first state to request less than 100% protection. The lawsuit states that undeveloped lands in national forests are not only critical to a healthy Oregon ecosystem, but also are of "enormous national importance”. Oregon’s roadless areas are vital to the survival and recovery of at least seven rare and endangered species, including the bald eagle and several species of salmon. Governor Kulongoski opposed repeal of the 2001 Rule and expressed serious concerns about the rule that replaced it. He has consistently supported placing Oregon’s 1.9 million acres of roadless areas back into protected status. He asked Oregon Attorney General, Hardy Myers to file for a temporary restraining order in the Federal District Court in San Francisco to stop the federal government from proceeding with the sale of timber in the South Kalmiopsis Roadless Area of the Siskiyou National Forest. He believed that the federal timber auction would foreclose his ability to influence the management of Oregon’s unroaded national forests when he petitions the federal government, but the U.S. Forest Service is moving forward with the timber sale despite the Governor’s March 9th letter requesting the agency not do so.
2. To conduct environmental clean up required by federal law.
3. To allow for reserved or outstanding rights provided for by statute or treaty.
4. To prevent irreparable resource damage by an existing road.
5. To rectify existing hazardous road conditions.
6. Where a road is part of a Federal Aid Highway project.
7. Where a road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease, or for new leases issued immediately upon expiration of an existing lease.
The Roadless Area Conservation Rule limits or prohibits activities that would most negatively affect the roadless, such as: cutting, sale, and removal of timber in inventoried roadless areas, except for the removal of generally small diameter trees which improves roadless characteristics and habitat for threatened or endangered species, or to maintain or restore ecosystem composition and structure, such as reducing the risk of uncharacteristic wildfire effects. In practice, the rule would prohibit road building and most timber cutting in inventoried roadless area, and would effectively bar most off road vehicles and new oil, gas, and mining operations.
New Mexico was the first western state to file a petition to protect all of its inventoried roadless areas in May 2006, but the state also joined a suit to invalidate the Bush administration's rule. In September and October, 2006, a Federal court in California reinstated the Clinton Roadless Area Conservation Rule. In November 30, 2006, the court blocks many oil and gas and road projects approved while roadless area protections were removed. After that Oregon joined the two other states, California and New Mexico, as well as Virginia and North Carolina and filed a law suit against U.S. Forest Service, to stop the implementation of the 2005 Roadless Rule, and to get the full protection of the roadless acres in their states that were covered by 2001 Roadless Rule, and to make sure that the state has the role in the management of federal lands. In October 2006, Idaho became the first state to request less than 100% protection. The lawsuit states that undeveloped lands in national forests are not only critical to a healthy Oregon ecosystem, but also are of "enormous national importance”. Oregon’s roadless areas are vital to the survival and recovery of at least seven rare and endangered species, including the bald eagle and several species of salmon. Governor Kulongoski opposed repeal of the 2001 Rule and expressed serious concerns about the rule that replaced it. He has consistently supported placing Oregon’s 1.9 million acres of roadless areas back into protected status. He asked Oregon Attorney General, Hardy Myers to file for a temporary restraining order in the Federal District Court in San Francisco to stop the federal government from proceeding with the sale of timber in the South Kalmiopsis Roadless Area of the Siskiyou National Forest. He believed that the federal timber auction would foreclose his ability to influence the management of Oregon’s unroaded national forests when he petitions the federal government, but the U.S. Forest Service is moving forward with the timber sale despite the Governor’s March 9th letter requesting the agency not do so.
The 2001 Roadless Area Rule which was developed by the federal government may become the greatest land-use battle of the year to find the proper way to manage the last remaining parcels of undeveloped, unprotected forests. It was with extensive public input and based on scientific data.
The U.S. Forest Service held more than 600 meetings and hearings in 37 states. More than 25,000 people participated. 95 percent of the more than 1.6 million comments submitted favored the strongest possible protection for roadless areas. In 18 separate opinion polls, conducted by both Republicans and Democrats, Americans demonstrated robust support for roadless area protection. In July 2005, over 140 members of the U.S. House of Representatives introduced a bill to codify the Roadless Rule into law. There are valid scientific and economic reasons for preserving roadless areas on the national forests, and the public has come out in strong support of the concept of keeping roadless areas free from development. Obviously the Americans understand the need for roadless forest protection. These pristine lands are the sources of clean water for millions of Americans. Since 2001, the administration has been trying to gain access to roadless forests. It eliminated all protections, and reverting management of these areas back to existing forest plans. Forest plans allow road building in 34 million acres of inventoried roadless areas, about 59% of the 58.5 million acres of roadless forests. Inventoried roadless areas provide benefits to over 220 wildlife species listed as threatened, endangered, or proposed by the Endangered Species Act – approximately 25% of all animal species and 13% of all plant species. Inventoried roadless areas also provide large undisturbed blocks of important habitat for a wide variety of native terrestrial and aquatic plants including more than 1,400 Forest Service listed sensitive species.
References:
Repeal of the 2001 Roadless Area Conservation Rule
http://www.ourforests.org/threats/repeal_of_the_roadless_rule.html
Appeals Court Upholds Clinton 'Roadless Rule' http://www.heartland.org/Article.cfm?artId=11438
Wyoming District Court Blocks Implementation of Roadless Rule http://www.wilderness.org/OurIssues/Roadless/brimmer_decision_analysis_20030715.cfm
The Wilderness Society, http://www.wilderness.org/Library/Documents/upload/Roadless-StatePetition-FinalRule-Analysis1.pdf
Vermont Journal of Environmental Law http://www.vjel.org/editorials/2001S/fidel.html
Controversies: Public Participation in Roadless Area Management http://www.redlodgeclearinghouse.org/legislation/nationalforestmanagement5a.html
Governor Announces New Plan to Protect Oregon's Roadless Areas
http://governor.oregon.gov/Gov/p2005/press_083005.shtml
Governor Announces New Plan to Protect Oregon's Roadless Areas
http://www.ourforests.org/documents/AG_suit/or_ag_pr.pdf
Judge declares "roadless rule" illegal http://www.paohv.org/right_frame_casper.html
Questions and Answers on Roadless Area Conservation Final Rule
http://wyoming.gov/governor/policies/documents/RoadlessRuleQ_A.pdf
Governor Kulongoski will try to halt federal timber sale
http://governor.oregon.gov/Gov/p2006/press_060906.shtml
The National Forest "Roadless Area" Rule
http://www.nrdc.org/land/forests/qroadless.asp
Roadless Area Conservation Rulemaking Facts
http://roadless.fs.fed.us/documents/rule/zRULE_Facts_1-5-01.htm
No comments:
Post a Comment