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Friday, July 27, 2012

National Forest System (NFS) Roadless Area Initiatives

Kristina Alexander
Legislative Attorney

Roadless areas in the National Forest System (NFS) have received special attention for decades. Many want to protect their relatively pristine conditions; others want to use the areas in more developed ways.

Two different roadless area policies have been offered in the last decade. On January 12, 2001, the Clinton Administration 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 all 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 on May 13, 2005, superseding the Nationwide Rule which allowed states to plan how roadless areas would be managed. This rule, referred to in this report as the State Petitions 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. The Ninth Circuit ultimately held in 2009 that the Nationwide Rule should be in place, and the Tenth Circuit agreed two years later.

While the legal challenges were being decided, the Forest Service changed how it managed roadless areas. In 2006, following a California district court ruling that the State Petitions Rule had not been adopted properly, 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 the APA process in 2006. The Idaho Rule was approved in October 2008, and upheld by a federal court in 2011.

Following the Ninth Circuit 2009 decision upholding the Nationwide Rule, the Secretary of Agriculture did not begin applying that rule, but instead, 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.

Because Colorado twice amended its petition, a proposed rule for Colorado roadless areas was not issued until April 15, 2011. In that proposed rule, the Forest Service recommended more than twice as many acres to be protected at the highest level—from 257,000 acres in the state’s petition to 562,200 acres in the proposed rule. The final rule, announced July 3, 2012, increased that amount to 1.2 million acres. According to the Forest Service, the rule is more protective than the Nationwide Rule, but since it allows road construction in approximately 3 million acres, some may disagree with that assessment.

The Tongass National Forest has taken its own route. At first, it was included in the Nationwide Rule, but then was temporarily exempted from the rule. That temporary exemption seemed moot when the State Petitions Rule came into effect, but after the 2009 Ninth Circuit ruling that the Nationwide Rule applied, it was unclear whether the Tongass was still exempt. In March 2011, a federal court ruled it was not, and that the roadless areas in the Tongass National Forest were covered under the Nationwide Rule. Proposed legislation (H.R. 2526/ S. 1357) appears intended to remove the Tongass from the rule’s application.

Date of Report: July 17, 2012
Number of Pages: 20
Order Number: RL30647
Price: $29.95

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