The National Forest System Roadless Area Initiatives
National Forest System Roadless Area Initiatives
Updated October 24, 2008
American Law Division
Ross W. Gorte
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
National Forest System Roadless Area Initiatives
Roadless areas in the National Forest System have received special attention for
decades. Many want to protect their relatively pristine condition, to provide habitat
for wildlife, to protect water quality and aesthetics, and to retain their value for
dispersed recreation. Others want to use the areas in more developed ways — to
explore for and develop minerals (including oil and gas), to harvest timber, and to
provide opportunities for motorized recreation or developed recreation sites.
Two different roadless area policies have been offered in the last decade. On
January 12, 2001, the Clinton Administration’s roadless area policy established a
nationwide approach to managing roadless areas in the National Forest System to
protect their pristine conditions. The Clinton Rule, as it will be called in this report,
generally prohibited road construction and reconstruction and timber harvesting in
The Bush Administration initially postponed the effective date of the Clinton
Rule, then issued its own rule. It asked for public comment on key questions for
managing roadless areas, and issued new interim directives for managing roadless
areas. These efforts led to a new rule on May 13, 2005. The Bush Rule allowed
governors to petition the Secretary for a special rule for managing the inventoried
roadless areas in their state and to make recommendations for that management.
Several states filed petitions; those of Virginia, North Carolina, South Carolina,
Idaho, and Colorado were approved. The petitions of New Mexico and California
were halted when the Bush Rule was enjoined.
In 2001 the federal District Court for Idaho preliminarily enjoined
implementation of the Clinton Rule, but was reversed by the Ninth Circuit. In 2003
the federal District Court for Wyoming permanently enjoined implementation of the
Clinton Rule. This holding was dismissed as moot by the Tenth Circuit in light of
the 2005 Bush Rule. On September 20, 2006, the federal District Court for Northern
California enjoined the Bush Rule until the Administration had complied with the
requirements of the National Environmental Policy Act (NEPA) and the Endangered
Species Act. The court directed the Administration to apply the Clinton Rule until
it had complied with these requirements. Instead, the Administration allowed
governors to petition for a roadless area management rule for their state under the
Administrative Procedure Act (APA). The Idaho and Colorado petitions were filed
under this procedure. The Idaho petition was approved in October 2008. In the
meantime, a new lawsuit in Wyoming led to a second injunction of the Clinton Rule
by that district court, and the Ninth Circuit is considering an appeal of the California
order requiring the Clinton Rule to be followed.
In May 2007, H.R. 2516 and S. 1478 were introduced in the 110th Congress to
codify the Clinton Rule.
In troduction ......................................................1
Regulatory and Statutory Background..................................2
Roadless Areas: Statutory Background.............................2
The Clinton Administration Roadless Area Rule.........................3
The Clinton Rule..............................................3
Interim Management Before the Clinton Rule Took Effect..............5
Administrative Delay in Implementation............................6
Proposed Rulemaking for a New Roadless Policy.....................6
Clinton Rule Enjoined for Violating the Wilderness Act and NEPA......7
Management of Roadless Areas After Clinton Rule Was Enjoined.......8
Decision-Making on Timber Harvesting in Roadless Areas.........8
Decision-Making on Road Construction in Roadless Areas.........9
Dispute Over Tongass National Forest Roadless Areas...............10
2005 Roadless Area Policy: The Bush Rule............................11
Advisory Committee Established.................................12
State Responses to the Bush Rule................................12
State Petition Submissions and Responses.........................13
Roadless Rule Litigation...........................................15
Implementation of the Clinton Rule Enjoined: Part 1.................15
Ninth Circuit Decision on First Injunction of Clinton Rule............16
Implementation of the Clinton Rule Enjoined: Part 2.................16
Implementation of the Bush Rule Enjoined.........................17
Wyoming Redux: The Clinton Rule Enjoined: Part 3.................18
National Forest System
Roadless Area Initiatives
Roadless areas within the National Forest System (NFS)2 have long received
special management. Beginning in 1924, the Forest Service (FS) began protecting
areas administratively as wilderness, wild, and primitive areas. In 1964, Congress
enacted the Wilderness Act, creating the National Wilderness Preservation System
with the administratively-designated FS wilderness areas and directing the FS (and
the National Park Service and Fish and Wildlife Service) to review the wilderness
suitability of certain of their lands. Since 1964, the agencies have made numerous
wilderness recommendations, and Congress acted on many of them, but some
recommendations remain pending. President Clinton proposed a new rule to prohibit
most road construction and timber harvesting in the remaining FS roadless areas.3
Implementation was delayed, then enjoined; the injunction was overturned and
another injunction was set in place. President Bush then offered a new roadless area
rule, but on September 20, 2006, a court set aside the Bush Rule, and reinstated the
Clinton Rule until the Bush Administration had met certain legal requirements. The
FS announced it was accepting petitions from states to choose their roadless areas
under the Administrative Procedure Act (APA). In August 2008 a different federal
court ruled that the Clinton Rule was contrary to law. Legislation was introduced in
both the House and the Senate to establish a nationwide policy of protecting the4
inventoried roadless areas.
The management of the roadless areas of the NFS is of great interest to
wilderness proponents and to those who favor development of natural resources in
national forests. Proponents of additional protection point to the many purposes and
1 Pamela Baldwin, Legislative Attorney in the American Law Division of CRS, contributed
to earlier versions of this report.
2 The NFS includes 155 national forests (188.0 million acres), 20 national grasslands (3.8
million acres), and 125 other units (0.9 million acres), and is administered by the Forest
Service in the U.S. Department of Agriculture.
3 The inventoried roadless areas, identified in the Clinton Rule and most other documents,
generally refer to areas identified in the FS’s Roadless Area Review and Evaluation (RARE)
studies completed in the 1970s, excluding areas that have since been designated as part of
the National Wilderness Preservation System by Congress.
4 S. 1478/ H.R. 2516 (110th Congress). For more on current legislative activity, see CRS
Report RL33792, Federal Lands Managed by the Bureau of Land Management (BLM) andth
the Forest Service (FS): Issues for the 110 Congress, by Ross W. Gorte, Carol Hardy
Vincent, Marc Humphries, and Kristina Alexander.
values the roadless areas serve, including water quality protection, backcountry
recreation, and habitat for wildlife. Opponents assert that the formal congressional
wilderness review and designation process sets aside adequate areas for preservation
and the remaining areas should be available for timber harvesting, mining, developed
recreation, and other uses.
This report focuses on the two roadless areas initiatives. It discusses the
regulatory and statutory background, summarizes and provides citations for the
various rules and subsequent actions, and analyzes some of the legal and policy
issues in connection with the roadless areas, including the litigation related to the
Regulatory and Statutory Background
Roadless Areas: Statutory Background
The principal forest management statutes relevant to analysis of the roadless
rules are the “Organic Act of 1897,”5 the Multiple-Use Sustained-Yield Act of
1960,6 and the National Forest Management Act of 1976.7 The 1897 Act directs that
the national forests be managed to improve and protect the forests 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.”8 The 1897 Act
also authorizes the Secretary to issue regulations to “regulate their [the forest
reservations’] occupancy and use and to preserve the forests thereon from
Over the years many uses of the national forests in addition to timber and
watershed management have been allowed administratively. What constitutes the
most desirable combination of uses for a forest has been hotly debated for decades.
Statutorily, the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) expressly
recognizes and authorizes the multiple use of the forests, defined 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
5 The 3rd through 17th unnumbered paragraphs under “Surveying the Public Lands,” in the
Sundry Civil Expenses Appropriations Act for FY1898; Act of June 4, 1897 (ch. 2, 30 Stat.
6 P.L. 86-517, 74 Stat. 215; 16 U.S.C. §§ 528-531.
7 P.L. 94-588, 90 Stat. 2949, primarily amending P.L. 93-378, the Forest and Rangeland
Renewable Resources Planning Act of 1973 (RPA); 16 U.S.C. §§ 1600-1614.
8 16 U.S.C. § 475.
9 16 U.S.C. § 551.
the greatest dollar return or the greatest unit output.”10 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”11 and that “the establishment and maintenance of areas of wilderness are
consistent with the purposes and provisions of” this act.12 This latter language, which
preceded enactment of the 1964 Wilderness Act,13 recognized that the FS managed
some forest areas as administrative wilderness or natural areas.
MUSYA also requires sustained yield, 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.”14 How much is a “high-level annual or regular periodic
output” of forest resources that does not impair the productivity of the land has also
been the subject of much debate.
The National Forest Management Act of 1976 (NFMA) set out additional
provisions on the management of the national forests that include direction for
developing land and resource management plans. NFMA directs that regulations be
adopted to guide forest planning and accomplish specific goals set by the Congress
“under the principles of” MUSYA. This included insuring “consideration of the
economic and environmental aspects of various systems of renewable resource
management, including the related systems of silviculture and protection of forest
resources, to provide for outdoor recreation (including wilderness), range, timber,
watershed, wildlife, and fish; ... [and] provide for diversity of plant and animal
The Clinton Administration
Roadless Area Rule
The Clinton Rule
The Clinton Administration undertook a series of actions affecting the NFS
roadless areas. On October 13, 1999, President Clinton directed the Secretary of
Agriculture to develop regulations to provide “appropriate long-term protection for
most or all of the currently inventoried ‘roadless’ areas, and to determine whether
10 16 U.S.C. § 531.
11 16 U.S.C. § 528.
12 16 U.S.C. § 529.
13 P.L. 88-577, 78 Stat. 890; 16 U.S.C. §§ 1131-1136.
14 16 U.S.C. § 531.
15 16 U.S.C. § 1604(g). Note that FS wilderness management is again mentioned in law, 12
years after enactment of the Wilderness Act.
such protection is warranted for any smaller roadless areas not yet inventoried.”16 In
response, the FS prepared an environmental impact statement (EIS) on alternatives
to protect NFS roadless areas. The final rule, issued on January 12, 2001, was to take
effect on March 13, 2001.17 The Clinton Rule established a nationwide policy for
roadless areas. National-level guidance was deemed advisable because of the
importance of the roadless areas for various forest management purposes and to the
American public, and because addressing projects in roadless areas on a forest-by-
forest basis as part of the planning process had resulted in controversy, conflict, and
a great deal of time and money spent on appeals and litigation.18
The Clinton Rule (1) prohibited, with significant exceptions, new roads in
inventoried roadless areas; (2) prohibited most timber harvests in the roadless areas,
but allowed cutting under specified circumstances; and (3) applied the same
prohibitions to the Tongass National Forest in Alaska, but allowed certain road and
harvest activities already in the pipeline to go forward.
The FS identified approximately 58.5 million acres of inventoried roadless
areas, 30% of all NFS lands. Roads are also currently prohibited in an additional
34.9 million acres of congressionally-designated wilderness areas (18% of NFS
lands), and is restricted in another 9.2 million acres (5% of NFS lands) of other
congressionally-designated areas, such as national recreation areas and wild and
scenic river corridors. The roughly 47% of NFS lands with roads contain about
The explanatory material in the final rulemaking states that roadless areas
provide significant opportunities for dispersed recreation, are sources of public
drinking water, and are large undisturbed landscapes that provide open space and
natural settings, serve as a barrier against invasive plant and animal species, are
important habitat, support the diversity of native species, and provide opportunities
for monitoring and research.20 In contrast, the explanatory material continues,
installing roads can increase erosion and sediment yields, disrupt normal water flow
processes, increase the likelihood of landslides and slope failure, fragment
ecosystems, introduce non-native species, compromise habitat, and increase air
The final roadless area rule was more restrictive, in several respects, than either
the proposed rule or the preferred alternative in the final EIS. With some exceptions,
16 Memorandum from President William J. Clinton to the Secretary of Agriculture,
Protection of Forest ‘Roadless’ Areas (October 13, 1999).
17 66 Fed. Reg. 3244 (January 12, 2001), adding 36 C.F.R. § 294, Subpart B.
18 66 Fed. Reg. at 3246.
19 The FS does not report its inventory of roads, but identified that the 64,866 miles of road
maintained to standard was 22% of all roads. U.S. Dept. of Agriculture, Forest Service
Performance and Accountability Report — Fiscal Year 2004 (April 2005).
20 66 Fed. Reg. 3245 (January 12, 2001).
21 66 Fed. Reg. at 3246.
the rule imposed immediate, national-level, Service-wide limitations on new road
construction and reconstruction in the inventoried roadless areas throughout the NFS,
and imposed nationwide prohibitions on timber harvesting in those areas, with some
exceptions. The regulations were to apply immediately to the Tongass National
Forest in Alaska, although certain activities already in the planning stages in that
forest were allowed to go forward.
The final rule prohibited new road construction and reconstruction, but with
exceptions for health, safety, resource protection, or other issues related to the public
interest.22 Any classified roads (those in the NFS transportation system or otherwise
authorized by the FS) could be maintained in inventoried roadless areas.
Harvesting timber was expected to be infrequent under the rule. Cutting, selling,
or removing timber from inventoried roadless areas was prohibited unless one of
specified circumstances existed. Cutting small-diameter trees was permissible to
maintain or improve one or more of the roadless area characteristics and “to improve
threatened, endangered, or sensitive species habitat; or to maintain or restore the
characteristics of ecosystem composition and structure, such as to reduce the risk of
uncharacteristic wildfire effects.”23
Other cutting could be permitted if incidental to implementing a management
activity that was not otherwise prohibited; if needed and appropriate for personal or
administrative use in accordance with 36 C.F.R. § 223 (the regulations on sale and
disposal of timber); or if roadless characteristics had been substantially altered in a
portion of an inventoried roadless area due to the construction of a classified road and
subsequent timber harvest before January 12, 2001. In this last instance, timber could
only be cut in the substantially altered portion of the roadless area.24
The Clinton Rule expressly did not affect any permit, contract, or other legal
instrument authorizing the occupancy and use of NFS lands issued before January 12,
2001; nor did it alter any project or activity decision made prior to that date.25 The
rule did not apply to roads or harvest in the Tongass National Forest if a notice of
availability of a draft EIS for the activities had been published in the Federal
Register before January 12, 2001.26 Otherwise the new rule applied to the Tongass
National Forest immediately.
Interim Management Before the Clinton Rule Took Effect
The Clinton Rule did not take effect immediately, except for the Tongass
National Forest. Interim guidance in the FS Manual on the management of roadless
areas and the construction of roads in roadless areas would have applied until a roads
22 See 66 Fed. Reg. 3272; 36 C.F.R. § 294.12(b)
23 36 C.F.R. § 294.13(b)(1).
24 36 C.F.R. § 294.13(b)(2)-(4).
25 36 C.F.R. § 294.14(a) and (c).
26 36 C.F.R. § 294.14(d).
analysis was completed and incorporated into the relevant forest plans.27 The FS
Manual contained considerable detail that would have permitted new roads only if
the regional forester determined there was a compelling need for the road, and both
an EIS and a science-based roads analysis had been completed. The management
direction was to apply both to inventoried roadless areas and to areas of more than
and met stated criteria. Exceptions were provided to the applicability of the interim
Administrative Delay in Implementation
Immediately after President Bush took office, his Chief of Staff, Andrew Card,
issued a memorandum that postponed for 60 days the effective date of regulations
that were not yet in effect.28 The roadless area regulation was covered by this
On February 5, 2001, notice was published in the Federal Register postponing
the effective date of the Clinton Rule from March 13, 2001, to May 12, 2001.29 The
Administration would then decide whether or not to implement the rule. The Clinton
Rule was enjoined by the District Court of Idaho on May 10, 2001 (see below,
“Litigation Over the Roadless Rule”).
Proposed Rulemaking for a New Roadless Policy
On July 10, 2001, the FS published an Advance Notice of Proposed
Rulemaking, asking for public comment on 10 questions relating to “key principles”
involving management of the roadless areas. Comments were due in September.
The questions asked about the role of local forest planning, collaboration, wildfire
prevention, access to roadless areas, and appropriate activities.
On June 26, 2002, the FS released its summary report (dated May 31, 2002) on
the public comments received in response to the Advance Notice of Proposed
Rulemaking. The FS received about 726,000 responses, mostly form letters but
including 52,432 original responses. The report urged caution in relying on the gist
of the comments received, in that “respondents are self-selected; therefore their
comments do not necessarily represent the sentiments of the entire population. The
analysis attempts to provide fair representation of the wide range of views submitted,
but makes no attempt to treat input as if it were a vote.” Appendix E indicated that
the overwhelming number of “organized” responses were in favor of the roadless30
27 66 Fed. Reg. 3219.
28 Andrew H. Card, Jr., Memorandum for the Heads and Acting Heads of Executive
Departments and Agencies (January 20, 2001).
29 66 Fed. Reg. 8899. The postponement notice stated that the action was exempt from
notice and comment because it was a procedural rule and for good cause shown.
30 The Report on the Public Comments is available at [http://www.roadless.fs.fed.us]. The
Clinton Rule Enjoined for Violating the Wilderness Act
On July 14, 2003, the federal District Court for Wyoming permanently enjoined
the Clinton Rule for violating NEPA and on the grounds that it was a “thinly veiled
attempt to designate ‘wilderness areas’ in violation of the clear and unambiguous
process established by the Wilderness Act for such designation.”31 The court equated
the roadless areas with de facto wilderness, characterizing the severity of the
restrictions under the roadless rule as restrictive, or more so, than for congressionally32
designated wilderness areas. The court concluded that the rule was “in violation of
the clear and unambiguous process established by the Wilderness Act for such33
Only Congress can designate areas for inclusion in the National Wilderness
Preservation System.34 However, MUSYA — enacted before the 1964 Wilderness
Act — expressly provides for the administrative management of national forest lands
for many purposes, and states that “the establishment and maintenance of wilderness
areas is consistent with” the purposes of the act. NFMA — enacted after the
Wilderness Act — directs that forest plans “assure ... coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and wilderness” (emphasis
added). Therefore, it appears that as a general matter, the roadless rule might be
defended as appropriate management of non-timber resources for multiple use
purposes (such as outdoor recreation, water quality protection, mineral development,
and game and other wildlife habitat). However, it also is possible that severe and
extensive restrictions might be seen as violating sustained yield under MUSYA.
The explanatory material with the final Clinton Rule distinguished roadless
areas from wilderness areas, stating that other management is still allowed — such
as development of mineral claims, livestock grazing, off-highway vehicle use, and35
fire management efforts.
Ninth Circuit pointed out that the Attorney General of Montana had asserted that nationally,
“96% of commenters favored stronger protections.” Kootenai Tribe of Idaho v. Veneman,th
31 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d 1197, 1239 (D. Wyo. 2003).
32 The court reviewed the rule’s exceptions allowing roads in roadless areas, but failed to
mention that Federal Aid Highways could be permitted in some instances (p. 1236). On the
other hand, the court noted that the roadless rule was more restrictive for constructing roads
in roadless areas to combat problem conditions than was the Wilderness Act, which allows
necessary measures to control fire, insects, and diseases, while the roadless rule only allows
roads in the case of an “imminent flood, fire, or other catastrophic event that, without
intervention, would cause the loss of life or property.”
33 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d at 1239.
34 16 U.S.C. § 1131.
35 66 Fed. Reg. 3249 (January 12, 2001).
The Wyoming court did not address the provisions for using NFS as wilderness
under either the MUSYA or NFMA. Congress repeatedly declined to direct that
roadless areas not designated as part of the National Wilderness Preservation System
be managed for only non-wilderness uses, but instead permitted their management
for uses that might retain their wilderness attributes.36 The validity of the court’s
assertion, that the roadless rule was “in violation of the clear and unambiguous
process established by the Wilderness Act for such [Wilderness] Designation,”37
would seem to depend on whether one agrees that management of the roadless areas
under the roadless rule would be as restrictive as that under the Wilderness Act, and
on how one views the references to wilderness in MUSYA and NFMA and the
actions of Congress in continuing to allow management of the roadless areas to
maintain wilderness characteristics on national forest lands.
Management of Roadless Areas After Clinton Rule
After the Clinton Rule was enjoined, the Bush Administration issued a series
of interim directives governing roadless area protection and management until it
could formulate its own rule. However, the interim directives were only to be in
effect for 18 months and were apparently to cease to apply once a forest plan was
revised or amended.
A December 2001 directive, I.D. 1920-2001-1, appeared to replace many of the
previous interim directives (both Clinton and Bush). However, the Federal Register
notice did not clearly indicate which provisions were being replaced or the precise
extent of the revisions. The published explanatory material stated that affected
material was shown and unaffected material was not. Yet some of the earlier
provisions were neither shown nor discussed and, therefore, might still have been in
effect. The final text of new FS Manual § 1925 did not show these undiscussed
earlier provisions — as though they were superseded. Thus, it was not clear which
of the previous materials were still in effect. For example, some of former FS
Manual § 7712.16 (that contained specific details on permissible road construction)
was expressly revised in the December directives, and the explanatory materials
stated that the revised provisions were moved to the FS Manual as a new § 1925. Yet
other provisions that were in § 7712.16 were neither discussed as superseded or
modified, nor set out in the new § 1925. Thus, it was not clear exactly which of the
previous interim directives were still in effect after the December directive took
Decision-Making on Timber Harvesting in Roadless Areas. The
December directives reserved authority to the Chief of the Forest Service to approve
certain proposed timber harvests in inventoried roadless areas until a forest plan was
completed “that has considered the protection and management of inventoried
roadless areas pursuant to FSM 1920.” They also provided that the Chief could
36 See compromise release language in wilderness acts from the mid-1980s through the
37 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d at 1239.
designate an Associate Chief, Deputy Chief, or Associate Deputy Chief, on a case-
by-case basis, to be the responsible official.
Regional foresters were to screen timber harvest projects in inventoried roadless
areas for possible referral to the Chief. The Chief was to make decisions regarding
harvests except for those that were: (1) generally of small-diameter material, the
removal of which is needed for habitat or ecosystem reasons (including reducing fire
risk); (2) incidental to a management activity not prohibited under the plan; (3)
needed for personal or administrative use; or (4) in a portion of an inventoried
roadless area where harvests had previously taken place and the roadless
characteristics had been substantially altered. (These exceptions conform to the
timber harvest exceptions in the Clinton rule.) Decisions as to these harvests were
to be made by forest officers normally delegated such authority.
The December 2001 directive stated that the Chief’s authority with respect to
timber harvests did not apply if a Record of Decision for a forest plan revision was
issued as of July 27, 2001 — as was true of the Tongass National Forest — and
would otherwise terminate when a plan revision or amendment that has considered
the protection and management of inventoried roadless areas was completed.
Decision-Making on Road Construction in Roadless Areas. The
Chief’s authority for road construction in inventoried roadless areas was to remain
in effect until a forest-scale roads analysis was completed and incorporated into each
forest plan.38 Regional foresters were to make many decisions on road construction
projects under the new FS Manual § 1925.04b. There was no express provision for
terminating the authority of regional foresters, but the general policy, § 1925.03,
keyed termination of the special provisions to completion of a roads analysis and its
incorporation into the relevant forest plan.
The December Directives apparently eliminated the Clinton-era requirement that
there be a compelling need for a road, a science-based analysis, and full EIS in all
cases. The applicability of the interim directive to certain contiguous areas also was
eliminated. The responsible official could still do an EIS and could protect
contiguous areas, and could find a compelling need for a road. However, roadless
areas could have reduced protections because the directives did not contain the higher
thresholds for approval of activities and more formalized documentation
requirements previously required.
On July 16, 2004, simultaneously with a proposed new roadless rule, the FS
reinstated the December 2001 directive ID 1920-2001-1, which had expired on39
June 14, 2003. It was renumbered as ID 1920-2004-1, and modified in two
respects. This reestablished the provisions allowing the Chief to make decisions
affecting inventoried roadless areas involving: 1) road construction — until a forest-
scale roads analysis is completed and incorporated into a forest plan or a
determination is made that a plan amendment is not needed; and 2) timber harvests
until a forest plan had “considered” protecting and managing roadless areas.
38 66 Fed. Reg. 65801.
39 69 Fed. Reg. 42648.
ID 1920-2004-1 differs from the 2001 version by allowing the Chief to grant
project-specific exceptions to allow a regional forester or forest supervisor to exercise
the authority to conduct projects in roadless areas. Adding forest supervisors to those
who can decide to conduct projects in roadless areas expanded the 2001 directive,
and arguably made it easier to approve projects in those areas. FS Manual §
1925.04b also was changed to allow regional foresters to make decisions on road
construction and reconstruction in inventoried roadless areas for lands associated
with any mineral lease, license, permit or approval for mineral leasing operations.
Dispute Over Tongass National Forest Roadless Areas
The Clinton Rule was scheduled to apply immediately to the Tongass National
Forest in Alaska. The State of Alaska sued, arguing that the Clinton Rule abrogated
the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) that
provided there would be no additional administrative withdrawals of federal lands
in the state. To settle the lawsuit, the Bush Administration agreed it would publish
a proposed roadless rule that would exclude the Tongass National Forest.40 A
proposed rule to exclude the Tongass from the Clinton Rule and an Advance Notice
of Proposed Rulemaking to exclude both the Tongass and Chugach National Forests
(also in Alaska) were published on July 15, 2003.41 A final rule “temporarily”
exempting the Tongass from the roadless rule was published on December 30,
2003.42 Specifically, the roadless area restrictions on road construction and
reconstruction and on the cutting, sale, or removal of timber in inventoried roadless
areas did not apply to the Tongass National Forest. The explanatory material
indicated that the exemption was in place only until an Alaska-wide roadless rule was
finalized. The exemption meant that areas protected under the Revised Tongass Land
Management Plan would remain protected, but an additional 300,000 acres of
inventoried roadless areas would be available for logging under that plan.
The Forest Service has taken the position that the Bush Rule, published on
May 13, 2005 (discussed in “2005 Roadless Area Policy — The Bush Rule,” below),
eliminated the need for further Tongass-specific rulemaking and that timber harvest
decisions that include an inventoried roadless area component will be made in
accordance with the forest plan unless changed through state-specific rulemaking.43
40 Alaska v. U.S. Department of Agriculture, No. A01-039 CV (D. Alaska June 10, 2001).
41 68 Fed. Reg. 41865 and 68 Fed. Reg. 41864 (July 15, 2003), respectively.
42 68 Fed. Reg. 75136 (December 30, 2003).
43 See [http://www.fs.fed.us/r10/tongass/forest_facts/faqs/roadless.shtml].
2005 Roadless Area Policy: The Bush Rule
New final roadless area rules were published on May 13, 2005, giving power to44
the states to request which roadless areas would remain unchanged. The changes
to 36 C.F.R. § 394 permitted the governor of a state to recommend management of
roadless areas in the state in a petition to the Secretary. Petitions were required to
provide specified information, including (1) a description of the particular lands for
which the petition is made; (2) particular management recommendations; (3)
identification of the needs and circumstances intended to be addressed by the
petition, including conserving roadless value, protecting health and safety, reducing
hazardous fuels, maintaining dams, providing access; (4) information on how the
recommendations differ from the relevant federal plans and policies; (5) a
comparison of the recommendations with state land management policies and
direction; (6) impact of the recommendations on fish and wildlife and habitat; (7) a
description of any public involvement efforts undertaken by the state in developing
the petition; and (8) a commitment by the state to participate as a cooperating agency
in any environmental analysis for the rule-making.
Petitions were allowed until November 13, 2006, with provisions for late
petitions under 7 C.F.R. § 1.28. If the Secretary approved a petition, the FS must
coordinate development of the proposed rule with the state, but the Secretary would
make the final decision on any rule. The rationale for imposing a deadline on the
roadless area petition process, and the consequences of a state’s failure to meet the
deadline, are unclear. The rule does not indicate what happens when there is a change
in governors. This ambiguity became focused when the new Governor of Colorado
disagreed with the designations made in the petition submitted by his predecessor
shortly after losing re-election.
The rule does not include any standards on the scope or balance required for
public participation in developing a state’s recommendations, or for how a state is to
gather its information about an area’s resources and values. There also are no
requirements or standards for the Secretary’s review and approval of a petition, and
no statement as to the relative weight to be given to a state’s recommendations versus
the preferences of non-state residents who may express an opinion on the desired
management of these national lands.
The background materials accompanying the proposed and final rule refer to the
importance of collaborating with partners, including state governments, stating:
“strong State and Federal cooperation regarding management of inventoried roadless45
areas can facilitate long-term, community-oriented solutions.” The materials
review the promulgation of the Clinton Rule and note that “concerns were
immediately expressed by those most impacted by the roadless rule’s prohibitions”
and that the new rule is proposed in response to those concerns.46 This latter
comment raises questions about the role of public input in the rulemaking in that only
44 70 Fed. Reg. 25654.
45 70 Fed. Reg. 25654.
4% of the comments received on the original roadless rule opposed or expressed
concerns about its protections. Similarly, the responses to the new roadless rule
overwhelmingly favored continuing protection. The explanatory materials justify
taking a different approach by stating that “the public comment process is not
intended to serve as a scientifically valid survey process to determine public
Advisory Committee Established
In accordance with the new roadless rule, a Roadless Area Conservation
National Advisory Committee was established by the Secretary under the Federal
Advisory Committee Act to provide advice and recommendations on implementing
the state-petition-based roadless area rules.48 The Committee consists of up to 15
members representing a “balanced group of representatives of diverse national
organizations who can provide insights into the major contemporary issues associated
with the conservation and management of inventoried roadless areas.” The
Committee operates “in a manner designed to establish a consensus of opinion.”
State Responses to the Bush Rule
Response to the Bush Rule by governors has been mixed. Most states that filed
petitions sought to preserve all of their roadless areas, providing the same protection
as under the Clinton Rule.49 On January 12, 2004, nine governors wrote in opposition50
to the rule. Other governors have expressed concern that the new roadless area rule
petition process is too vague to provide states proper guidance in proposing state-
based rules, and places undue burdens on state resources. North Carolina Governor
Michael Easley raised the vagueness issue in a letter to the Secretary of Agriculture,
asserting that the rule provides “insufficient clarity” on how the Department will
respond to state petitions or the criteria the Department will use to consider them.51
The Governor also noted that the rule does not clarify how the Department will
coordinate state-specific rule development among individual states or how it will52
approach management of roadless areas that cross state boundaries.
47 70 Fed. Reg. 25656.
48 70 Fed. Reg. 25663.
49 States that filed to protect all of their roadless areas are: California, New Mexico, North
Carolina, South Carolina, and Virginia. Petitions from Colorado and Idaho recommended
development in some of the inventoried roadless areas.
50 The governors are from the following states: Arizona, Iowa, Kansas, Maine, Missouri,
New Mexico, Pennsylvania, Virginia, and Washington.
51 Letter to Ann Veneman, U.S. Secretary of Agriculture (August 16, 2004).
52 Governor Easley stated, “The proposal’s state-specific rulemaking could result in
inconsistent management plans due to conflicting state priorities. Actions on one side of the
border will undoubtedly impact and could potentially undermine management strategies on
the other side.”
Other governors also have expressed concern over the rule’s burden on states.
On October 14, 2004, Oregon Governor Theodore Kulongoski filed a petition with
Secretary Johanns to permit states to adopt the 2001 roadless area rule through an
expedited process. The Governor argued that the 2005 roadless area rule will require
states to expend significant financial and personnel resources to ensure adequate
public participation and technical analysis on its provisions and implementation.53
North Carolina Governor Easley stated in his August 2004 letter to Secretary
Veneman that the administrative and financial investment in the petitioning process
could be “onerous” to state agencies. Tennessee Governor Bredesen similarly stated
in a September 8, 2004, letter to Secretary Veneman that the rule may place an
“undue financial burden on our state agencies without providing some assurances of
any concurrence or approval from the Department of Agriculture.”54 Virginia
Governor Mark Warner expressed concern in a July 30, 2004, letter to the Secretary
that, although the 2005 rule confirms that the FS has final authority for managing
roadless areas, the rule places on individual states the burden of seeking protection
of the areas.55
State Petition Submissions and Responses
Governors of five states filed petitions with the Secretary of Agriculture under
the Bush Rule. On December 22, 2005, Virginia Governor Warner filed a petition
requesting protection for all roadless areas in the state. Subsequently, the Governors
of North Carolina, South Carolina, New Mexico, and California submitted similar
petitions requesting comprehensive protection of all roadless areas in their respective
states. The Governor of Idaho filed a petition for managing Idaho’s inventoried
roadless areas on October 5, 2006.56 The lame-duck Governor of Colorado filed a
petition on November 13, 2006, to keep a significant portion of the areas roadless.
An amended petition was filed by his successor in April 2007, recommending
preservation of even more acreage.57 Both the Idaho and the Colorado petitions were
53 Letter from Theodore Kulongoski, Governor of Oregon, to Mike Johanns, U.S. Secretary
of Agriculture (October 14, 2005). On October 27, 2005, the Department denied the petition
for an expedited process scheme, expressing doubt that the Governor’s proposed rule would
substantially decrease states’ burdens. Letter from Mark Rey, Under Secretary of Natural
Resources and Environment, U.S. Dept. of Agriculture, to Theodore Kulongoski, Governor
54 Letter to U.S. Secretary of Agriculture Ann Veneman (September 8, 2004).
55 Letter to U.S. Secretary of Agriculture Ann Veneman (July 30, 2004). The FS has
provided financial assistance to several states for costs incurred relating to petition
development. On December 20, 2005, the FS announced a $150,000 grant to the State of
Idaho, and on June 28, 2006, it announced a $200,000 grant to the State of Arizona. The
grants were in response to formal requests by the states for financial support for the
petitioning process. U.S. Dept. of Agriculture Press Releases Nos. 0560.05 and 0225.06.
56 Petition of Governor James E. Risch for Roadless Area Management in Idaho, available
57 The Roadless Area National Advisory Committee recommended approving the April 2007
petition. Daily Env’t Rep. (BNA), p. A-7 (August 13, 2007).
made after the Bush Rule was enjoined (see “Implementation of the Bush Rule
The advisory committee recommended that the petitions of North Carolina,
South Carolina, and Virginia be approved, and on June 21, 2006, the Department of
Agriculture approved them.58 Letters from the Department to the governors outlined
the process for moving forward with proposed state-specific roadless area rules and
that the Department and the respective state should take the following steps: develop
a memorandum of understanding regarding the “appropriate level of environmental
analysis” required under NEPA and the Endangered Species Act; ensure that the rule
provides for public involvement and “active solicitation” of the views of interested
parties; coordinate the development of the rule; and consider how the rule will amend
any existing state land management plans.59 The letters reiterated that the proposed
state-based rules would be subject to federal notice and comment rulemaking
requirements and that the Secretary has sole authority to formally adopt any such
rules after issues emerging from the notice and comment period have been resolved.
The advisory committee did not make recommendations on the petitions of New
Mexico and California, as the deadlines for responding to these petitions were
interrupted by the injunction halting application of the Bush Rule (see below).
In response to the September 20, 2006 injunction (see below), the Bush
Administration announced it would process state petitions to manage roadless areas
under the APA. On October 4, 2006, the charter for the advisory committee was
formally amended to direct the committee’s review of state petitions under the APA
(5 U.S.C. § 553(e)) and under 7 C.F.R. § 1.28.60 Both Idaho and Colorado submitted
petitions under this procedure. The committee has recommended approval of the
Idaho and Colorado petitions. The Idaho roadless rule became final October 16,
58 USDA News Release No. 0212.06.
59 Letter from Mark Rey, Under Secretary of Natural Resources and Environment, U.S.
Dept. of Agriculture, to Timothy Kaine, Governor of Virginia (June 21, 2006); Letter from
Rey to Michael Easley, Governor of North Carolina (June 21, 2006); Letter from Rey to
Mark Sanford, Governor of South Carolina (June 21, 2006).
60 71 Fed. Reg. 58577 (October 4, 2006).
61 73 Fed. Reg. 61455 (October 16, 2008).
62 73 Fed. Reg. 43543 (July 25, 2008).
Roadless Rule Litigation
Implementation of the Clinton Rule Enjoined: Part 1
The Kootenai Tribe of Idaho, a forestry corporation, livestock concerns,
motorized recreation groups, and others sued to stop the Clinton Rule for violating
NEPA, NFMA, and the APA.63 The State of Idaho sued the next day, seeking similar
relief.64 The federal district court deciding both Idaho cases found that plaintiffs were
likely to succeed on their assertion that the FS had not provided the public an
opportunity to comment meaningfully on the rule because of inadequacies in (1)
identification of the inventoried roadless areas (noting that statewide maps were not
made available until after the public comment period had ended); (2) information
presented during the scoping process (FS employees were alleged to be ill-prepared);
and (3) the period for public comment (all of the public meetings in Idaho occurred
within 12 business days of the end of the first 60-day comment period and many of
the public comments were received within the last week of the time given and no
responses were provided). The court characterized the comment period as “grossly
inadequate” and an “obvious violation” of NEPA.65 The court further found that the
final EIS did not consider an adequate range of alternatives, since all but the “no
action” alternative included “a total prohibition” on road construction and the EIS did
not analyze whether other alternatives might have accomplished protection of the
environmental integrity of the roadless areas. In addition, the court concluded that
FS did not analyze possible mitigation of negative impacts of the alternatives it did
The Bush Administration asked the court to postpone putting the preliminary
injunction into effect until the FS had reviewed the Clinton Rule, arguing that an
injunction was not necessary because the rule was not to be implemented until
May 12, 2001. The court reserved its ruling until May 4, 2001, the day that the
Administration was to submit a status report on its review and findings. The
Administration announced that it would take additional actions to address
“reasonable concerns raised about the rule” and ensure implementation in a
“responsible common sense manner,” including providing greater input at the local
On May 10, 2001, the court granted a preliminary injunction preventing
implementation of the roadless rule and the portion of the planning rule related to
prescriptions for roadless areas (36 C.F.R. § 219.9(b)(8)).68 The court found that the
government’s “vague commitment” to propose amendments to the rule indicated a
63 Kootenai Tribe of Idaho v. Dombeck, 142 F. Supp. 2d 1231. (D. Id. 2001).
64 Idaho v. Dombeck, 142 F. Supp. 2d 1248 (D. Id. 2001).
65 Kootenai Tribe of Idaho v. Dombeck, 142 F. Supp. 2d at 1244-1247.
66 Id. at 1247.
67 U.S. Department of Agriculture News Release No. 0075.01.
68 Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL, 2001 WL 1141275 (D. Id. May
failure to take the requisite “hard look” that an EIS is expected to perform, leaving
the court with the “firm impression” that implementation of the roadless rule would
result in irreparable harm to the national forests. The court concluded that the
government’s response was a “band-aid approach” and enjoined implementation of
the rule while the agency proceeded with its new study and developed amendments.
While United States did not appeal this decision, environmental groups who had
Ninth Circuit Decision on First Injunction of Clinton Rule
The Ninth Circuit combined the two Idaho cases on appeal, and on
December 12, 2002, reversed the Idaho district court stating:
Because of its incorrect legal conclusion on prospects of success, the district
court proceeded on an incorrect legal premise, applied the wrong standard for69
injunction, and abused its discretion in issuing a preliminary injunction.
In reaching its conclusion, the Ninth Circuit reviewed the substantive grounds
considered by the district court and disagreed that plaintiffs had demonstrated a
likelihood of success on the merits. It found that the FS adequately complied with
the NEPA public comment provision because the maps provided did not suffer from
the grave inadequacies alleged by the plaintiffs. According to the Ninth Circuit, the
plaintiffs had actual notice as to the roadless areas that would be affected. The court
also found that the FS had provided adequate time for comment,70 and that the EIS71
considered an adequate range of alternatives. The Ninth Circuit denied Idaho’s
petition for rehearing, and the case was remanded to the district court to reconsider
its previous reasoning and injunction in light of the opinion of the appellate court.
Most of the unfavorable reaction to the Ninth Circuit decision focused on
whether it was proper to allow the intervenors to bring an appeal when the
government chose not to. The case came forward in an unusual context. The district
court decision focused on the inadequacy of the federal defendants’ NEPA
compliance, but the defendants did not appeal that issue. Instead, certain
environmental groups that had intervened on the government’s side appealed the
district court’s ruling. The Ninth Circuit decision raised significant issues about
whether intervenors could appeal NEPA-compliance rulings when the federal
defendants — the only ones who could comply with NEPA — did not.
Implementation of the Clinton Rule Enjoined: Part 2
On July 14, 2003, the federal District Court for Wyoming permanently enjoined
the Clinton Rule, in part because of NEPA defects, and in part because the court
69 313 F. 3d 1094, 1126 (9th Cir. 2003).
70 Id. at 1118-1119.
71 Id. at 1120-1121.
concluded it created de facto wilderness in violation of the Wilderness Act.72 (See
“Clinton Rule Enjoined for Violating the Wilderness Act and NEPA” above.) In
addition to the Wilderness Act conflict, the court found the FS had committed the
following NEPA defects in the rulemaking:
!not extending the scoping comment period;
!denial of cooperating agency status to Wyoming and other states;
!failure to rigorously explore and objectively evaluate reasonable
alternatives to the Roadless Rule;
!failure to adequately analyze cumulative effects; and
!not issuing a supplemental EIS in light of new information on
updated roadless area inventories.73
The court stated that the agency drove the rule “through the administrative
process in a vehicle smelling of political prestidigitation”74 in its “rush to give
President Clinton lasting notoriety in the annals of environmentalism”75 — and
concluded that the agency must “start over.”76
On July 11, 2005, the Tenth Circuit dismissed the appeal in this case and
vacated the district court’s decision. It held that the case was made moot by the new
roadless regulations published by the Bush Administration on May 13, 2005.77
Because the Tenth Circuit dismissed the litigation as moot, and the Tongass case was
settled, as a principle of legal precedence, the opinion of the Ninth Circuit was the
only precedent on the Clinton Rule. Another lawsuit changed that.
Implementation of the Bush Rule Enjoined
On August 28, 2005, the states of California, Oregon, and New Mexico filed a
lawsuit in the federal District Court for Northern California challenging the Bush
Rule.78 Environmental groups also filed suit to challenge the rule, and the cases were
consolidated. The State of Washington joined the states’ suit as a plaintiff
intervenor, and other states filed amicus briefs on both sides.79 The plaintiffs alleged
that the Bush Rule offered less protection and a more localized approach than the
Clinton Rule, and thus required environmental analysis under NEPA and consultation
under the Endangered Species Act. They argued that the Department had violated
72 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d 1197 (D. Wyo. 2003).
73 Id. at 1231-1232.
74 Id. at 1203.
75 Id. at 1232.
76 Id. at 1239.
77 Wyoming v. U.S. Department of Agriculture, 414 F.3d 1207 (10th Cir. 2005).
78 California v. U.S. Department of Agriculture, C05-03508, 2006 WL 2711469 (N.D. Cal.
September 20, 2006).
79 Montana and Maine filed an amicus brief on behalf of plaintiffs; Alaska and Wyoming
filed an amicus brief on behalf of defendants.
the APA when it finalized the regulations without conducting requisite NEPA
analysis, allowing meaningful public involvement, or explaining the rationale for the
Department’s change in roadless area policy.80
In a summary judgment effective September 20, 2006, the federal District Court
for Northern California set aside the Bush Rule and reinstated the Clinton Rule until
the FS complied with NEPA and ESA.81 The FS appealed the decision. On
November 29, 2006, the judge clarified its injunction, prohibiting the FS from taking
any management activities that would have been banned under the Clinton Rule.82
This had the effect of nullifying oil and gas leases that had been issued under the
Bush Rule, among other things. The Ninth Circuit heard arguments on appeal on
October 20, 2008.
Wyoming Redux: The Clinton Rule Enjoined: Part 3
After the California suit had been filed in 2005, the State of Wyoming attempted
to revive the 2003 Wyoming District Court holding that the Clinton Rule was
invalid.83 The Tenth Circuit issued a mandate directing the District Court of
Wyoming to dismiss the 2005 challenge, which it did. Two days after the district
court in California enjoined the Bush Rule, the State of Wyoming again moved to
reinstate the 2003 decision that the Clinton Rule was contrary to NEPA and the
Wilderness Act. While that 2003 case had been appealed, the Tenth Circuit had not
ruled on its merits but instead found the Bush Rule rendered it moot. Wyoming
argued that the 2003 decision was still good law. The federal District Court of
Wyoming refused to consider Wyoming’s action to revive the holding, holding it
lacked the authority.84 However, the court stated it was “extremely perplexed” at
how the California court could effectively overturn its 2003 ruling: “This court is
troubled and questions the authority of the California court to raise this rule back to
life and force.”85
The State of Wyoming filed a new suit in district court, claiming the Clinton
Rule violated NEPA and the Wilderness Act. The District Court of Wyoming
agreed.86 The court considered that the Clinton Rule would allow certain uses of the
roadless areas, such as grazing, oil and gas development, and motorized vehicles, that
were not traditionally allowed in wilderness. However, the court distinguished those
uses, saying that to be effective, those uses all would require roads and the Clinton
Rule prevented that. The court acknowledged the California decision, saying that “the
80 California v. U.S. Department of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006).
81 California v. U.S. Department of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006). This
order was issued in October, superseding the September decision. The injunction dates from
September 20, 2006, however.
82 California v. U.S. Department of Agriculture, 468 F. Supp. 2d 1140 (N.D. Cal. 2006).
83 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d 1197 (D. Wyo. 2003).
84 Wyoming v. U.S. Dept. of Agriculture, No. 01-CV-86 (D. Wyo. June 7, 2007).
85 Wyoming v. U.S. Department of Agriculture, 01-CV-86-B, at 5 (D. Wyo. June 7, 2007).
86 Wyoming v. U.S. Department of Agriculture, 570 F. Supp. 2d 1309 (D. Wyo. 2008).
Court is disturbed, and frankly shocked at the fact that a Magistrate Judge essentially
re-instituted a policy that was not properly before that Court, and especially in light
of the fact that an Article III judge had already ruled that the re-instituted policy was
promulgated in violation of law.”87 Because the California court had not considered
the merits of the Clinton Rule when acting (but instead had followed a general rule
that invalidating one rule reinstates its precedent), the Wyoming court said its actions
were consistent with that order. The Clinton Rule was enjoined, again.
Following the Wyoming decision, it appeared that the Forest Service was
required to follow the Clinton Rule by the California order, and forbidden to follow
it by the Wyoming order. The Forest Service filed motions in both courts to suspend
the injunctions so it would not be held in contempt. However, some noted that the
Forest Service had not been following the Clinton Rule as directed by the California
court, but was allowing states to file state-by-state petitions (as was the goal of the
Bush Rule) under the APA instead.
Roadless areas of the National Forest System have received special attention for
decades. Some argue that the areas should be available for appropriate development
— mineral exploration and development, timber harvesting, motorized recreation,
developed recreation sites, and more. Other believe that the areas should remain
roadless to preserve the special values that their condition provides — clean water,
undeveloped wildlife habitats, dispersed recreation, aesthetics, and more.
Both the Bush Administration and the Clinton Administration issued rules
addressing inventoried roadless areas — one rule in which the states would take the
lead in management decisions, and the other applying a uniform national policy.
Both were rejected by courts, leading to conflicting decisions in two different district
courts — one reinstating the Clinton Rule, and the other enjoining it.
The Forest Service has responded by allowing governors to file petitions for a
state-specific rule for managing roadless areas under the APA, in effect modifying
the existing Clinton Rule by using the Bush Rule’s policy. Of the seven governors
who filed petitions under the Bush Rule, five sought to preserve all of their roadless
areas, as would have happened under the Clinton Rule. The two remaining states,
Idaho and Colorado, filed petitions under the APA after the Bush Rule was enjoined.
Idaho’s roadless areas became final in October 2008, and a proposed rule was issued
for Colorado’s areas in July 2008.
Legislation introduced in the 110th Congress (H.R. 2516 and S. 1478) has
favored the nationwide approach, as have most governors who have taken action on
87 Wyoming v. U.S. Department of Agriculture, 570 F. Supp. 2d at 1352.