RS20384 The President's Forest/Roadless Area
Initiative
Pamela Baldwin
Legislative Attorney
American Law Division
October 28, 1999
| Summary
On October 13, 1999, President Clinton announced a new approach
to the management of the roadless areas in the National Forest System that may prohibit
new road construction and certain other activities in inventoried readless areas and
extend some protections to non-inventoried roadless areas as well. An environmental impact
statement will be prepared to explore management alternatives prior to issuance of new
regulations. These regulations have not yet been proposed, but this report describes the
new initiative and offers preliminary analysis of the authority to implement it. This
report will be updated as circumstances may require.
On October 13, 1999, President Clinton issued a
memorandum directing the Secretary of Agriculture to take certain steps with respect to
the National Forest System (NFS). Simultaneous with the President's memorandum and
remarks, a draft Notice of Intent to prepare an environmental impact statement (Notice)
was released, which then was published on October 19.1
The memorandum, Presidential remarks, and Notice begin a new initiative
for managing the roadless areas of the NFS that apparently will impose new restrictions on
such areas and that raises several policy and legal issues. The changes would be
accomplished through a two-part rulemaking: the first part would impose restrictions on
inventoried roadless areas that would be effective as soon as regulations are finalized;
the second part would address non-inventoried roadless areas and accomplish changes
through the plan amendment and revision processes set out in law. Before turning to the
details of the President's initiative, some background on the relevant portions of the
statutes that govern the management of the national forests may be helpful. |
Background
The principal forest management statutes relevant to
analysis of the President's Initiative are the Organic Act of 1897,2
the Multiple-Use Sustained-Yield Act of 1960,3
and the National Forest Management Act.4
The 1897 Act directs that the national forests be managed to improve and
protect the forest or "for the purpose of securing favorable conditions of water
flows, and to furnish a continuous supply of timber for the use and necessities of
citizens of the United States . . . "5
The 1897 Act also authorizes the Secretary to issue such regulations
"as will insure the objects of such reservations, namely, to regulate their occupancy
and use and to preserve the forests thereon from destruction. . ."6
Over the years, many uses of the national forests in
addition to timber and watershed management have been allowed administratively. The
Multiple-Use Sustained-Yield Act (MUSYA) expressly recognized and authorized the
"multiple use" of the forests, a term MUSYA defines as the management of all the
various renewable surface resources of the national forests "in the combination that
will best meet the needs of the American people" and recognizes that "some land
will be used for less than all of the resources. . . without impairment of the
productivity of the land, with consideration being given to the relative values of the
various resources, and not necessarily the combination of uses that will give the greatest
dollar return or the greatest unit output."7
MUSYA states that the national forests are established and shall be
administered for their original purposes and also for "outdoor recreation,
range, timber, watershed, and wildlife and fish purposes"8
and that "[t]he establishment and maintenance of areas of wilderness
are consistent with the purposes and provisions of [the act.]9
This latter language, which preceded enactment of the Wilderness Act of
1964,10 was a
recognition of the fact that the FS had been managing some forest areas as administrative
wilderness or natural areas.
MUSYA also requires "sustained yield,"
which is defined as the "achievement and maintenance in perpetuity of a high-level
annual or regular periodic output of the various renewable resources of the national
forests without impairment of the productivity of the land."11
How much is a "high-level annual or regular periodic output"
of forest resources that does not impair the productivity of the land, of course, is the
subject of much debate.
The National Forest Management Act of 1976 (NFMA),
set out new detail on management of the national forests, and also established new
procedures for developing the forest management plans that are to guide that management.
The NFMA directs that regulations be adopted to guide forest planning and accomplish
specific goals set by the Congress, including: insuring consideration of the economic and
environmental aspects of various systems of renewable resource management including
"silviculture and protection of forest resources, to provide for outdoor recreation
(including wilderness), range, timber, watershed, wildlife, and fish; and providing for
diversity of plant and animal communities."12
Note that administrative wilderness is again mentioned, twelve years
after enactment of the Wilderness Act of 1964.
The roadless areas in the National Forest System
have long received special management attention. Beginning long before enactment of MUSYA,
the FS managed many forest areas as natural, primitive, or wilderness areas. This practice
was expressly approved in MUSYA. More permanent, congressionally approved statutory
wilderness areas were provided for in the Wilderness Act of 1964, which established the
National Wilderness Preservation System. The Wilderness Act directed review of certain
roadless areas to consider their suitability for inclusion in the national system. This
review was carried out and expanded (with respect to the national forests) in the
"RARE" studies (Roadless Area Review and Evaluation). Roadless areas inventoried
either as part of the RARE studies or as part of subsequent reviews during the NFMA
planning process are the "inventoried" roadless areas referred to in the Notice.
Congress has designated many additional wilderness areas since 1964, but, under the
statutes summarized above, the FS also still may manage parts of the national forests as
natural, wildlife areas, or administrative wilderness areas. The management of the
remaining roadless areas is of great interest to both wilderness proponents and opponents.
The President's Initiative
The President issued a memorandum to the Secretary
of Agriculture that directs the Secretary, acting through the Forest Service, to develop
and propose regulations to provide "appropriate long-term protection for most or all
of these currently inventoried 'roadless' areas, and to determine whether such protection
is warranted for any smaller 'roadless' areas not yet inventoried.". . . "In the
final regulations, the nature and degree of protections afforded should reflect the best
available science and a careful consideration of the full range of ecological, economic,
and social values inherent in these lands."13
Along with the memorandum and accompanying remarks
by the President, a Notice of intent to complete an environmental impact statement was
published on October 19, 1999. The Notice sheds additional light on what might constitute
the "appropriate long-term protection" for roadless areas. In reviewing the
Notice, it is helpfiil to keep in mind: 1) which proposals apply to inventoried national
forest roadless areas and which to uninventoried roadless areas; and 2) whether the new
restrictions are to be immediately effective when the regulations are finalized or are to
be effective only after the relevant forest management plans are amended or revised.
The roadless areas of the NFS are approximately 42
million of the 192 million acres in the NFS. The President pointed out that there are
approximately 380,000 miles of roads in the NFS and a $8.4 billion maintenance and
reconstruction backlog related to those roads. The background information in the Notice
recites that the roadless areas serve as reference areas for research, as a barrier
against invasive plant and animal species, as aquatic strongholds for fish of great
recreational, subsistence, and commercial value, as vital habitat and migration routes for
wildlife, and provide recreational value. In contrast, the Notice continues, roads
increase the risk of erosion, landslides, and slope failure, endangering the health of
entire watersheds that provide drinking water to millions of Americans and critical
habitat for fish and wildlife.
The October 13th announcement is the latest in a
series of Administration actions related to the roadless areas. On January 28, 1998, the
FS proposed revising its Transportation System regulations and proposed a rule to suspend
road construction and reconstruction temporarily in certain unroaded areas.14
On February 12, 1999, the agency published a final rule, referred to as
the "interim rule" that temporarily suspended road construction and
reconstruction in unroaded areas.15 The October 19th Notice states that "in the next several weeks,"
the FS will publish proposed changes to the NFS Transportation System rules "to
better manage the existing national forest road system. This proposal will also
"establish new procedural requirements to help managers make more informed decisions
concerning entry into roadless areas. A draft environmental assessment will accompany this
proposed rule."
The FS also will begin an additional two-part public
rulemaking process. The first part will address inventoried roadless areas and will
evidently impose new restrictions on such areas. When finalized, the part one rule
"would immediately restrict certain activities, such as road construction, in
unroaded portions of inventoried roadless areas ...." An environmental impact
statement will be begun to study alternatives for part one. All the examples of possible
alternatives provided in the Notice include a prohibition on new road construction and
reconstruction projects in the remaining unroaded portions of inventories roadless areas.
Except for the "no action" alternative, the other examples include a gradation
of additional prohibitions on activities, ranging from prohibiting timber harvest to
prohibiting "all activities, subject to valid existing rights, that do not contribute
to maintaining or enhancing the ecological values of roadless areas. . ."
The new rule has not yet been proposed so it is not
clear what its content will be. However, two things can be pointed out about part one.
First, it appears from the Notice and the President's remarks that, at a minimum, new road
construction in inventoried roadless areas will likely be prohibited and possibly other
activities will be as well. Secondly, these restrictions are to be immediately effective
when the regulations are finalized.
As to part two of the proposed rule, the Notice
states that the rule will "establish national direction for managing inventoried
roadless areas." Apparently this direction will be in addition to the direction
addressed in part one. Part two management direction will be implemented at the forest
plan level through plan amendinent and with NEPA process -- in contrast to the direction
in part one which will be effective immediately. In addition, part two will guide managers
in determining what activities are appropriate in uninventoned roadless areas. The extent
of the lands to which the management guidance for the uninventoried areas will apply is
not clear. At one point the Notice refers to the rule applying to uninventoried areas
"that have important ecological and social values." Yet the examples of possible
alternatives to be considered in the draft EIS for part two include protecting
uninventoried areas based on their ecological characteristics as only one possible
alternative. Other alternatives are broader and include protecting such areas based only
on their size (e.g. at least 1,000 acres) or their location.
In addition, the alternatives studied "may
consider certain exemptions under specific situations." It is not clear whether
exemptions may be studied for both part one and part two, or only with respect to part
two. Arguably, exemptions may be considered in connection with both parts because the
example of the Tongass National Forest is discussed and the question posed "whether
inventoried Tongass roadless areas should be covered under part one of the rule or only
under part two," as though exceptions to both parts of the rule will be considered.
Discussion
Although more complete analysis of the roadless area
initiative must be postponed until the text of the proposed rule is available, some points
can be noted.
1. Lands subject to the roadless area
initiative. The Notice indicates that the rulemaking process will apply to the
"remaining roadless areas within the National Forest System" and it
appears that exceptions to that broad coverage, whether through exclusion of particular
forests, such as the Tongass, or development of threshold criteria for inclusion of
roadless areas, will be studied as part of the consideration of alternatives during the
preparation of the draft EIS. Therefore, it appears there is the presumption of broad
coverage, subject to exceptions being developed during the study.
2. Can "de facto wilderness areas"
be created administratively? Although only Congress can designate areas for inclusion
in the National Wilderness Preservation System, current law expressly provides for the
management of national forest lands for fish and wildlife, watershed, and wilderness
purposes. Therefore, it appears that new prohibitions on activities in roadless areas
could be imposed, within the parameters of the law. For example, depending on the extent
and severity of the restrictions imposed, the rules might be challenged as violating the
"sustained yield" aspects of the MUSYA. On the other hand, the new rules might
be defended as yielding non-timber renewable resources (such as game and other wildlife)
without permanent impairment of the lands.
Defenders of the initiative may point to the fact
that current law appears to support increased protection of roadless areas and to the
desirability of protecting remaining open space and natural areas, but critics may assert
that the likely breadth and severity of the new regulations would effect significant
changes that more properly should be made by Congress.
3. Can management restrictions be imposed
"effective immediately." The Notice indicates that restrictions to be
imposed on inventoried roadless areas under part one of the proposed rule are to be
effective immediately when the regulations are finalized, rather than being phased in as
part of the NFMA planning process. Whether this can lawfully be accomplished
administratively is not totally clear. The NFMA directs a planning process under which a
land and resource management plan is adopted for a forest unit and then particular
projects and activities are approved that must be consistent with the plan.16
Plan changes are to occur through amendment or revision of plans.
However, some exceptions to the normal amendment processes have been upheld. A court
upheld immediately-effective management direction regarding an endangered species as a
temporary protective measure.17 A court also has upheld immediately-effective changes to forest plans in
the President's Pacific Northwest Forest Plan, which amended the planning documents for
nineteen national forests and seven Bureau of Land Management districts. In defense of its
action, the government made a 'functional equivalent' argument -- that wholesale amendment
of the plans through adoption of the overarching Northwest Plan was proper because the
usual requirements for public involvement and disclosure in connection with a significant
amendment of plans had been met and other procedural features of the planning regulations
would be deferred until the time of individual forest plan revision. The court concluded
that "[t]he Secretaries may properly divide the planning process in this way. . . To
require that planning be done only on an individual forest basis would be unrealistic.
"18 The appeals
court that affirmed the district court decision did not address this issue.19 Depending on the justifications offered for making the new roadless area
rule effective immediately, a court may or may not uphold that approach.
4. What exceptions might apply to the new
rule? It remains to be seen whether the rules will except certain forests or regions
and how they will recognize valid existing rights- whether, for example, the exercise of
such rights will be subject to new regulations. In addition, it is not yet clear whether
roadless areas would be withdrawn from mining, mineral leasing, or mineral exploration
activities, or how access issues for various purposes such as livestock, wildlife
management, recreation, and inholdings will be dealt with.
Footnotes:
1 [back] 64 Fed. Reg. 56306 (October 19, 1999).
2 [back] Act of June 4, 1897, ch. 2, 30 Stat. 34.
3 [back] P.L. 86-517, 74 Stat. 215.
4 [back] P.L. 94-588, 90 Stat. 2949, amending P.L. 93-378.
5 [back] 16 U.S.C. § 475.
6 [back] 16 U.S.C. § 551.
7 [back] 16 U.S.C. § 531.
8 [back] 16 U.S.C. § 528.
9 [back] 16 U.S.C. § 529.
10 [back] P.L. 88-577, 78 Stat. 890.
11 [back] 16 U.S.C. § 531.
12 [back] 16 U.S.C. § 1604(g).
13 [back] Memorandum from President William J. Clinton to the Secretary of
Agriculture on Protection of Forest 'Roadless' Areas, October 13, 1999.
14 [back] 63 Fed. Reg. 4350.
15 [back] 64 Fed. Reg. 7290-7305
16 [back] 16U.S.C. § 1604(g). Idaho Conservation League v. Mumma, 956 F. 2d
1508, 1511-1512 (9th Cir. 1992), Portland Audubon Soc'y v. Lujan, 795 F. Supp. 1489,
1491-1492 (D. Or. 1992).
17 [back] Southern Timber Purchasers Council v. Alcock, 779 F. Supp. 1353
(N.D. Ga. 1991), in which the court upheld applying a new policy for conserving the
red-cockaded woodpecker pending amendment of the relevant plans. The court noted that the
policy was temporary and designed to preserve the status quo in terms of species decline
while a later policy would be developed. The NFMA claims were dismissed on appeal for lack
of standing: 993 F. 2d 800 (11th Cir. 1993).
18 [back] Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1317 (W.D.
Wash. 1994.)
19 [back] Seattle Audubon Society v. Moseley, 80 F. 3d 1401 (9th Cir. 1996).
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