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Wednesday, January 13, 2010

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. 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 State Petition Rule allowed governors to petition the Secretary of Agriculture 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 State Petition Rule was enjoined. 

In 2001, the federal District Court for Idaho preliminarily enjoined 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 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 Nationwide 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 Nationwide Rule by that district court. To avoid conflicting rulings, the California district court limited its holding (that the Nationwide Rule applied) to the following states: Alaska, Arizona, California, Hawaii, Idaho, Montana, New Mexico, Nevada, Oregon, and Washington. 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. An appeal is still pending in the Tenth Circuit, although that court's decision could contradict the Ninth Circuit, leading to a conflict between the circuits and potentially creating an issue that can be resolved only by the U.S. Supreme Court or Congress unless the Forest Service (FS) initiates a new rule. 

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

Date of Report: January 6, 2010
Number of Pages: 22
Order Number: RL30647
Price: $29.95

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