For more than a century, our national forests have served the nation’s needs for timber, minerals, forage and other resources. At the same time, they have provided millions of people with an unparalleled recreational and aesthetic resource, and with the satisfaction that comes with knowing that our society has preserved vast natural landscapes more or less intact.
The 386,000 miles of existing roads in our national forests are more than adequate to ensure that the forests will continue to be used to help supply our nation’s need for resources. Far less secure and far more valuable to future generations are those remaining tracts of undeveloped land that have managed to survive in our forests. If we lose these lands now, we will never get them back. We should bear that in mind as we engage in the ongoing debate over the protection of forest roadless areas.
That debate, thanks to a recent court decision, seems destined to drag on for several more years, prolonging the uncertainty about the future of our forests.
Use of the forests has been debated for more than a century, but the current round kicked off on Jan. 5, 2001, in the waning days of the Clinton administration. After a lengthy public review process, the Department of Agriculture approved final rules that prohibited new road construction in many national forest roadless areas, subject to limited exceptions.
That rule effectively placed 58.5 million acres of land – about 2 percent of the total land base in the United States – off-limits to new roads. The proposal generated well over a million public comments, and the vast majority of those enthusiastically supported the final rule.
In an era of increasingly tight budgets, the Forest Service lacks the resources to maintain its existing road system. But the driving force behind the Clinton rules was the growing awareness of the ecological importance of preserving large, unbroken landscapes. The emerging disciplines of conservation biology and landscape ecology suggest that wildlife needs large expanses of undeveloped land and, where possible, travel corridors between these areas to thrive.
Our national forests are home to most of the remaining large, undisturbed tracts of land in the United States and thus the last best hope for promoting the ecological health of animal and plant communities.
When the Bush administration took office, it placed a temporary hold on all of the Clinton rules that had not yet taken effect, including the roadless rules. Meanwhile, various states and private entities had sued the Forest Service over the Clinton rules, and a federal judge in Idaho quickly blocked their implementation. Although the Bush administration chose not to challenge that decision, the environmental groups that had joined the case appealed the decision to the 9th Circuit Court of Appeals, which has jurisdiction over cases in Alaska, Montana, Idaho, Arizona, Nevada and the three West Coast states.
The 9th Circuit overturned the Idaho decision, but the controversy was hardly over. A federal judge in Wyoming, which sits in the 10th Circuit and includes Wyoming, Colorado and New Mexico, sided with the Idaho court in finding the Clinton rules unlawful. Once again, the Bush administration stood pat while the environmental groups appealed.
While that appeal was pending, the Bush administration issued new rules that were designed to replace the Clinton rules with a different approach. Rather than simply setting aside all remaining roadless areas, the Bush rules established a process in which a state would petition the secretary of agriculture to designate all or some part of the roadless areas within the state for roadless protection.
The state petition rules met with a mixed reception. Some states, including Colorado, appointed committees to make recommendations to their governors for lands to be protected. Others simply filed petitions asking that all of the roadless areas in their states be protected. Still other states refused to participate in the process, complaining that they lacked adequate resources to perform work that was the responsibility of the federal government. The environmental community objected to the new rules on a number of grounds, including the argument that forests are national resources, so it was not appropriate to give undue weight to the preferences of particular states.
These objections led several states and environmental groups to sue the federal government over the state petition rules, and they argued specifically that the rules were flawed due to the agency’s failure to perform new environmental and endangered species analyses to justify the rejection of the original Clinton rules.
In mid-September, just two months before state petitions were due, a federal judge in California struck down the Bush rules for failing to prepare an appropriate environmental analysis and for failing to consult with the U.S. Fish and Wildlife Service about the possible impact on endangered species. The effect was to reinstate the Clinton rules.
The battle, of course, is hardly over.
Opponents of the Clinton rule have now gone back to the Wyoming court in an effort to reinstate its earlier ban on the Clinton rules, and that will surely lead to another appeal to the 10th Circuit.
Meanwhile, a logging company has already appealed to the 9th Circuit, and the administration has indicated that it may still accept state petitions as proposals.
It’s not unreasonable to think that this issue may ultimately wind up in the U.S. Supreme Court. The roadless issue seems likely to remain wholly unresolved until the Bush administration is history.
Sometimes lost in this seemingly unending procedural fight is the reason for adopting the rules in the first place, and the strong public support for them.
And that public support for protection of roadless areas doesn’t seem to have diminished, given that many of the states preparing petitions do not seem inclined to recommend that the federal government open up large tracts of roadless areas to new development.
Mark Squillace is the Director, Natural Resources Law Center, University of Colorado School of Law
