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Friday, February 11, 2011

National Forest System (NFS) Roadless Area Initiatives

Kristina Alexander
Legislative Attorney

Ross W. Gorte
Specialist in Natural Resources Policy

Roadless areas in the National Forest System (NFS) 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.

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 Nationwide Rule, as it will be called in this report, generally prohibited road construction and reconstruction and timber harvesting in 58.5 million acres of inventoried roadless areas, with significant exceptions.

The Bush Administration initially postponed the effective date of the Nationwide Rule, then issued its own rule that allowed states to plan how roadless areas were managed. It issued a new rule on May 13, 2005. The State Petition Rule allowed governors to petition the Secretary of Agriculture for a special rule for managing the inventoried roadless areas in their states.

Both rules were heavily litigated, with the Ninth Circuit ultimately holding that the Nationwide Rule should be in place, and the Tenth Circuit still considering an appeal as to whether that rule is valid. The first action was a preliminary injunction in 2001, which halted implementation of the Nationwide Rule, but was reversed by the Ninth Circuit. In 2003, the federal District Court for Wyoming permanently enjoined implementation of the Nationwide Rule. This holding was dismissed as moot by the Tenth Circuit in light of the 2005 State Petition Rule. In 2006, the federal District Court for Northern California enjoined the State Petition Rule, and directed the Administration to apply the Nationwide Rule until it had complied with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Instead, the Forest Service allowed governors to petition for a roadless area management rule for their states under the Administrative Procedure Act (APA). Idaho and Colorado filed petitions under this process. The Idaho petition was approved in October 2008, and upheld by a federal court in 2011. Colorado filed and then twice amended its petition, which is still pending.

In the meantime, a new lawsuit in Wyoming led to a second injunction of the Nationwide Rule by that district court. To avoid conflicting rulings, the California district court limited its 2006 holding (that the Nationwide Rule applied) to certain states. In August 2009, the Ninth Circuit upheld the lower court finding that the State Petition Rule was invalid and that the Nationwide Rule should be in place nationwide. The appeal of the Wyoming injunction, pending in the Tenth Circuit, could lead to a conflict between the circuits, potentially creating an issue for the U.S. Supreme Court or Congress, unless the Forest Service initiates a new rule.

Following the Ninth Circuit decision, the Secretary of Agriculture reserved decisions related to timber harvesting and road construction in roadless areas to the Secretary. Much of that authority was subsequently delegated to the Chief of the Forest Service.

Legislation was introduced in the 111
th Congress to codify the Nationwide Rule by prohibiting building roads in or harvesting timber from areas designated on maps as roadless, with certain exceptions (H.R. 3692/S. 1738).

Date of Report:
February 2, 2011
Number of Pages: 22
Order Number: RL30647
Price: $29.95

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