Forest Policy - Forest Practice

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 Newshttp://www.headwatersnews.org/p.nie093004.html

Snippets:

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.