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May 06, 2005

Roadless: A Rule to Sue By
Martin Nie

Last fall I suggested that the proposed roadless rule wouldn't result in less litigation, but it might well let the Bush administration off the hook. Now that the rule is out, perhaps it is time to see how well my forecasts conform to what unfolds. Here are snippets from my earlier essay.

A rule to sue by
By Martin Nie
for Headwaters News

The Bush administration has proposed replacing the original roadless rule with a "petitioning process" that would give governors an opportunity to seek establishment of management requirements for roadless areas within their states.

The proposed change would be available to governors for 18 months following the final rule, a time frame seen as "sufficient for states to collaborate effectively with local governments, stakeholders and other interested parties to develop proposals that consider a full range of public input."

Any petition would then be evaluated, and if accepted by the Secretary of Agriculture, the Forest Service "would initiate subsequent state-specific rulemaking for the management of inventoried roadless areas in cooperation with the state involved in the petitioning process, and in consultation with stakeholders and experts."

It is also at this stage that the agency would comply with the National Environmental Policy Act and consider the environmental effects of these state-based rules.

While the 2001 rule emphasized the need to look at the national-level picture regarding roadless-area management, the proposed change accentuates the importance of the local.

The proposal is also an excellent example of how the executive branch can use rulemaking to its political advantage. If implemented, it provides the executive significant powers to judge the acceptability of state petitions, while also giving it a potential way out of making politically risky decisions.

From a process standpoint, this proposal is fundamentally flawed. First, it is important to remember that Article IV of the U.S. Constitution gives Congress – not state governors – power over public lands management.

Of course, the administration argues that ultimate decision-making authority still will rest with the Secretary of Agriculture, as it must to be legal. Instead of outright delegation to governors, their petitions will be "considered."

For example, will gubernatorial petitions that advocate opening up more roadless areas be "considered" differently than roadless-friendly ones?

Second, what happens when there is a change in gubernatorial administrations? Will the status of a state's roadless lands swing widely on a four-year election cycle? If so, it places those advocating increased roadbuilding at an advantage because they only have to win once.

Also curious is the argument that the proposed rule will take care of the litigation surrounding the 2001 rule. This is poorly reasoned on numerous counts.

First, it is inaccurate to suggest that the courts have forced the administration to rewrite the original roadless rule. That rule is currently in legal limbo, as the 9th Circuit Court of Appeals upheld it on substantive and procedural grounds, while an unfavorable Wyoming District Court decision has been appealed to the 10th Circuit.

It is quite possible, then, that two western Courts of Appeals will uphold the original roadless rule promulgated under Clinton. Or, we may have another circuit split and wait for the Supreme Court to sort things out.

The claim that the new proposed rule will reduce future litigation surrounding roadless areas is also inaccurate. Instead, litigation will certainly proliferate, as some states go forward with crafting detailed petitions – petitions that are then subject to further NEPA analysis and more litigation. Instead of litigation over one national-level rule, it will be over several state-based ones.

And third, it is insincere to lament the amount of litigation surrounding the 2001 rule and use it as a reason to write a new one, when the administration has chosen not to mount a rigorous defense of the rule from the beginning. Instead it plays the role of the helpless federal government that has no choice but to back off from the original rule. And this comes from an administration that has exerted more raw executive power than any other in recent memory.

This is brilliant politics, but it also illustrates the limitations of relying too heavily upon the courts and bureaucracy to resolve conflicts over public lands management.

In the past, the procedural debate over the roadless rule was split between those advocating a national policy and those who favored more traditional forest-planning processes.

Those opposed to the rule often claimed that roadless-area decisions should be made on a forest-by-forest basis, as they have in the past.

So it will be odd if professional foresters and the timber industry now champion the proposed national rule giving governors more power over public lands management. If so, it raises serious questions about the authenticity of their previous arguments.

The proposed rule is particularly egregious from an accountability standpoint. It is an artful dodge of responsibility and may prove to be nothing more than a shrewd way of avoiding responsibility for a risky political decision.

Instead of making the tough choice to either defend or scrap the rule, the Bush administration passes the buck to state governors. If the petitions are made without authentic broad-based public input and participation, they will be a mockery of the original rulemaking process and the unprecedented public comment that went into it.

The proposed rule's promotion to the public has also been disingenuous, for while it is offered as proof of "President Bush's commitment to cooperatively conserving roadless areas on national forests," it does no such thing, as the proposed rule is merely procedural in nature: Maybe it will, maybe it won't.

What is does do, however, is put an enormous responsibility on Western governors and gives the executive branch a sharpened rulemaking tool.

If implemented, the administration will be able to stand for the principle of roadless area conservation in the abstract while laying responsibility at the feet of Western state governors when these lands are proposed for development.

But by retaining final decision-making authority, the administration can also play the rulemaking "consideration" game when it suits itself.

In short, the proposed rule perfectly illustrates the possible dangers of using rulemaking as the primary means to resolve conflicts over public lands.

Posted by Martin Nie on May 6, 2005 at 03:39 PM | Permalink


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Posted by: John Rupe

One of the most frustrating aspects of the roadless question for Forest Service planners has been the problem with the basic inventory question. There has not been an effort to do a comprehensive inventory of roadless areas since RARE II. The maps for the 2001 rule were hastily put together, and in many instances were simply taking the old RARE II maps and digitizing them. Of course, we've been doing new inventories as part of forest planning, but our planning direction is confusing and unevenly applied (it requires us to interpret the meaning of what a passenger vehicle is and whether those vehicles can traverse a primitive road.) Starting with the original RARE, there has always been as much "art" as "science" in drawing the lines on the map, but the November 2000 maps have a lot of flaws. For one forest, we've probably overestimated roadless areas by as much as 1/3. Elsewhere, we have U.S. highways running through the mapped areas. In other places where we've closed roads, we've probably created "new" roadless areas, but it's often difficult to determine whether an old road template has altered the roadless values so that an area should be excluded.

There is also a problem in using inventories developed for one purpose for different purposes. The original inventories were developed to facilitate the identification of areas for Wilderness. However, the 2001 rule emphasized areas for roadless qualities, including wildlife habitat, water quality, solitude, semiprimitive recreation, etc. These are different values than Wilderness and probably demand a different type of inventory.

Ideally, Forest planning is probably the best scale to assess the unique values that individual roadless areas contribute, and how the lines on the map should be drawn. But Forest planning doesn't lend itself to political solutions. The politicians keep wanting to "settle the question." That will never happen because these values will change. In the meantime, let's enjoy the ride.

John Rupe | May 9, 2005 7:53:23 PM

Posted by: T R Blank

In fact Montana roadless areas --like most in the west Ill wager--include some of the finest backcountry hunting fishing camping hiking, horsepacking and outdoor recreation areas in the nation.

While some maps may include technical errors or need updating, most of these allegations are trumped up to potray a false picture of what is truly at stake--wild public lands, As Will Rogers said "they arent making any more of it!"

According to the Montana State Trails Plan, there are 6,000 miles of U S Forest Service mountain trails in Montana roadless areas --%44 of the state's entire backcountry trail system !

National forests in Montana inventoried roadless lands in forest plans (1986-7). The maps and descriptions are in appendix C of most forest plans. These have been updated on some though not all forests.

The 2001 National Forest Conservation Rule --established with overwhelming public support and 34 Montana hearings in 20m communities-- allows for the inventory to be updated and corrected where necessary. This was what the Forest Servuce planned to do --at least until the Bush Adminsitratiion issued new planning rules rendering planning decisions meaningless.

There are so few places beyind the reach of roads in this country. Even the west is now riddled with roads and roads. Less than 12% of Montana is still backcountry, trasversed by western trails. There are already far too many roads in the once wild west. My children have camped, picked berries, snowshoed, skiid, fished since they were babies in roadless areas. They drink clean water from roadless headwaters and have been raised on elk harvested in nearby roadless areas. We are not about to further compromise our western heritage !

No way Mark Rey !

T R Blank | May 10, 2005 7:27:32 PM

Posted by: Dave Iverson

Forest Service Site for Roadless Rule:

FS Announcement:

Secretary announces Final State Petitions for Inventoried Roadless Area Management Rule

MAY 5, 2005 - Today the Department of Agriculture announced the adoption of a final rule that establishes a process for governors to propose locally supported regulations for conserving inventoried roadless areas within their states. Strong state and federal cooperation in the management of these areas will foster strong local involvement and support for how they are ultimately conserved. The Department also announced the establishment of a national advisory committee to assist the Secretary with the implementation of this rule. The administration and the Forest Service remain committed to working closely with the nation's governors to meet the needs of local communities and to maintaining the undeveloped character of these unique areas of our national forests and grasslands.

Note: There is more at this site, but here are the links to the "Final Rule"



Dave Iverson | May 11, 2005 4:13:35 PM

Posted by: John Freemuth

It seems to me that rulemaking has become another tool in the endless struggle for policy control in fedlands (and elsewhere). What I think has accelerated is the rewriting that goes on between administrations of different political persuasions, and the amount of time spent on that versus what some would call on the ground management. Maybe we ought to ask presidential candidates which rules they plan to rewrite if elected?

John Freemuth | May 12, 2005 3:14:36 PM

Posted by: Dave Iverson

Maybe it’s the bureaucrat in me. Maybe it’s because I’ve seen so many appeals, lawsuits, etc. over Roadless Areas in several rounds of forest planning. Maybe it’s because I’ve spent too much time hobnobbing with OGC attorneys who believe in rulemaking, if done well.

Whatever the reason, I am an advocate for rulemaking for big deal items like Roadless and the current impasse over off-highway vehicle (OHV) use.

The proposed OHV Rule, as I understand it, sets up a process to declare areas closed to off-highway and other motorized vehicle use (excepting snow machines) unless specifically designated open. But what separates this process from the old Roadless Rule is that it only goes into effect with site-specific decision making. Assuming the OHV Rule is released soon, the trick will be to manage the process so that site-specific exceptions to the general rule don’t become the rule.

The proposed OHV Rule moves decision making to the local forest level. The new Roadless Rule, by contrast, retains decision-making at the Department of Agriculture level but gives local States a petitioning process. To approve State petitions would require more Department level rulemaking.

This gets us to John Freemuth’s point. How much rulemaking ought the Administration to be engaged in? At what point do the benefits of such rulemaking outweigh the costs? (Personal note: I am not advocating for monetized cost-benefit tests, but rather for qualified, nuanced political-administrative decision making.)

Procedurally, I think the proposed OHV Rule process is the best of the three rules. But the proposed OHV Rule must pass a test. As applied, it must show that the exceptions do not overwhelm the rule.

Remember too, that the new Roadless Rule vacates the old Roadless Rule. If the States do not petition for something, it appears that the fallback is on Forest Service Chief’s memos and the forest plans. So if the States do nothing, there are no formal Roadless rules. It all makes for an interesting stew.

Here is a link to the old Roadless Rule: 36 CFR part 294. (See: 294.10 – 294.14) http://www.access.gpo.gov/nara/cfr/waisidx_02/36cfr294_02.html

Here is a link to the new Roadless Rule: 36 CFR 294.10 – 294.18

Dave Iverson | May 13, 2005 1:39:59 PM

Posted by: Joe Carbone

"In short, the proposed rule perfectly illustrates the possible dangers of using rulemaking as the primary means to resolve conflicts over public lands." I believe that was one of the reasons for the original roadless rule - to resolve conflicts. Hmmmm.

Joe Carbone | Jun 3, 2005 8:27:04 AM

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