Roadless Rule Litigation Reaching End of the Road
After more than a decade of litigation over the management of roadless areas in national forests, several developments over the past months have brought this long and drawn-out fight nearly to a close. All but three states will be governed by the terms of the 2001 Roadless Rule, while Idaho’s and Colorado’s state-specific rules will govern roadless areas in those two states. Alaska, with the nation’s two largest national forests, the Tongass and Chugach National Forests, as well as the most roadless acreage of any state, is the only state in which litigation continues.
In the 1970s, the Forest Service developed an “inventory” of roadless areas larger than 5,000 acres, to be considered by Congress for inclusion in the National Wilderness Preservation System. However, most of these inventoried roadless areas (IRAs) were never formally designated as “wilderness.” They remained governed by individual forest plans, which generally allowed for at least some extractive uses, including logging, mining, oil and gas development, and construction of off-road vehicle routes.
In the late 1990’s, the U.S Forest Service began developing the Roadless Area Conservation Rule (Roadless Rule), which it issued during the final days of the Clinton Administration. Subject to limited exceptions, the Roadless Rule prohibited road construction, reconstruction, and timber harvest in the 58.5 million acres of the IRAs within the national forests.
II. The First Wave of Roadless Rue Challenges
Shortly after it was published in 2001, the Roadless Rule was challenged by several states, including Alaska, Wyoming, and Idaho. The complicated history of the litigation surrounding the Roadless Rule, its rejection, replacement and reinstatement has been previously addressed in this Newsletter. See Tangled Up in Blue – Ninth Circuit Resurrects Roadless Rule, Marten Law, Environmental News (August 12, 2009); Roadless Rule Redux: Wyoming Federal Court Enjoins Roadless Rule (Again), Marten Law, Environmental News (August 20, 2008). Before turning to recent developments, the following two sections summarize this earlier history.
Idaho and the Kootenai Tribe of Idaho brought suit in 2000—before the final Rule was published—to enjoin the Forest Service from releasing a draft environmental impact statement for the proposed Rule until it released maps of roadless areas. A federal district court dismissed the claims as not ripe for adjudication because the draft EIS and proposed rule had not been published.
The Kootenai Tribe and Boise Cascade Corporation subsequently filed suit in January of 2001, after the final Rule was published, seeking to enjoin its implementation on the grounds that that the Rule violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) because of inadequate public participation. The court found a decision on injunctive relief to be premature. Eventually, the State of Idaho prevailed on a later challenge, similar to the Kootenai Tribe’s challenge, resulting in the district court of Idaho issuing a preliminary injunction blocking implementation of the Roadless Rule nationwide. However, this was reversed by the Ninth Circuit in December 2002, which reinstituted the Roadless Rule.
Alaska settled its initial lawsuit after the Forest Service agreed to amend the Roadless Rule to exempt the Tongass and Chugach National Forests from the rule’s restrictions. This Tongass Exemption was then promulgated by rule in December 2003.
Like Idaho, Wyoming brought a challenge to the Rule. It was successful in the district court of Wyoming, where Judge Brimmer ruled in 2003 that the Forest Service violated NEPA by failing to perform an adequate cumulative impact analysis and by failing to prepare a supplemental EIS that addressed new information. Finding that the Roadless Rule permitted the Forest Service to establish its own “de facto administrative wilderness,” Judge Brimmer also held that the Roadless Rule violated the Wilderness Act, and issued a nation-wide injunction against implementation of the Roadless Rule. On appeal, however, the Tenth Circuit held that the petitioners’ claims were moot because the Forest Service had already replaced the 2001 Roadless Rule with a new rule – the State Petitions Rule – before the appellate decision could be rendered.
III. The State Petition Rule
Recognizing that because of the ‘one-size fits all’ approach of the nation-wide Roadless Rule, “some states and communities felt disenfranchised by the process,” the Roadless Rule was repealed by the Bush Administration, and replaced by the State Petitions for Inventories Roadless Areas Rule (State Petitions Rule). The State Petitions Rule set up an eighteen-month window in which states could petition the U.S. Department of Agriculture (USDA) for state-specific modifications of the stringent requirements of the Roadless Rule. But before any such petitions could be filed, the State Petitions Rule was already under attack.
A. The Second Wave of Challenges
The issuance of the State Petitions Rule in 2005 was met by two new lawsuits filed in the Northern District of California on behalf of several western states and various environmental groups. In a consolidated decision, U.S. Magistrate Judge Laporte held in California ex rel. Lockyer v. U.S. Dep’t of Agriculture (Lockyer I) that promulgation of the State Petitions Rule violated both NEPA and the Endangered Species Act (ESA) because the Forest Service had not performed a programmatic EIS to assess the impacts of repealing the Roadless Rule and replacing it with the State Petitions Rule. This decision reinstated the Roadless Rule nationally.
In response, Wyoming filed a motion requesting that the district court in Wyoming reinstate its 2003 injunction, which was denied by the court, which found “no dramatic change in controlling authority, no significant new evidence previously unavailable, and no blatant error” justifying reopening the case. But Judge Brimmer advised the State of Wyoming to “inform the Tenth Circuit of the California ruling and ask that the circuit court recall its mandate,” which the state did by motion to the Tenth Circuit.
The Tenth Circuit, however, denied Wyoming’s motion, and directed Judge Brimmer to evaluate possible comity issues created by the Lockyer I decision. On remand, Judge Brimmer, in a fiery opinion, took aim at both the California district court and the Forest Service, expressing “shock” at the court’s actions and accusing the Forest Service of “flagrantly and cavalierly railroad[ing] this country’s present environmental laws in an attempt to build an outgoing President’s enduring fame.” Judge Brimmer then once again issued a permanent, nation-wide injunction against the 2001 Roadless Rule.
B. Appellate Decisions Reinstate the Roadless Rule
In 2009, the Ninth Circuit affirmed Judge LaPorte’s Lockyer I decision, holding in Lockyer II that the State Petition Rule effectively repealed the Roadless Rule and should have undergone NEPA and ESA review, and that Judge LaPorte did not abuse her discretion in weighing the equities and reinstating the Roadless Rule. Similarly, the Tenth Circuit held that Wyoming had failed to demonstrate that the Forest Service’s promulgation of the Roadless Rule violated any environmental laws, and the court overturned Judge Brimmer’s injunction against the Roadless Rule.
Wyoming petitioned the Supreme Court for a writ of certiorari, but the Supreme Court denied the state’s petition in October 2012. Thus, after a long and winding road, the Roadless Rule was upheld once again as the law of the land – or at least most of it.
IV. The Idaho Rule
Before the State Petitions Rule was overturned by the Lockyer decision, Idaho had already begun work on its own plans for management of the roadless national forest lands in the state. Despite judicial rejection of the State Petitions Rule, Idaho proceeded with its plans to opt out of the Roadless Rule. But instead of following the specific petition authority conferred by the since-invalidated State Petitions Rule, Idaho relied on the general authority granted by the Administrative Procedures Act that allows anyone to petition for agency rulemaking. In 2006, Idaho submitted a petition for a state-specific rule, and after an extensive series of public meetings, as well as review by both the Roadless Area Conservation National Advisory Committee (RACNAC) and the USDA, Idaho’s petition for a state-specific roadless rule was approved on December 22, 2006.
Developed through a collaborative process that included conservation groups Idaho Conservation League and Trout Unlimited, along with county commissioners, timber companies, hunters and recreation groups, the Idaho Rule was envisioned by then-Governor Jim Risch as “a plan written by Idahoans, for Idahoans.” Instead of blanket restrictions on the use of all IRAs, as provided by the national Roadless Rule, the Idaho Rule creates several different categories of lands within Idaho’s 9.3 million acres of IRAs and applies different management “themes” to each category. Under three of the themes covering over 3 million acres, the Idaho Rule provides more protection than the national Roadless Rule, banning all road-building, with a single exception for roads required by “statute, treaty, reserved or outstanding rights, or other legal duty of the United States.”
Unlike the national rule, however, the Idaho Rule does permit some temporary road-building and logging in lands covered by the “Backcountry/Restoration” (BCR) theme, while providing certain restrictions to ensure that the roadless characteristics of the lands are maintained or improved over the long term. Road construction is also authorized to provide access to specifically identified phosphate deposits in the Caribou-Targhee National Forest managed under the “General Forest, Rangeland, Grassland” (GFRG) theme.
A. Challenges to the Idaho Rule
Plaintiff environmental groups, including the Wilderness Society, Sierra Club, and Natural Resources Defense Council, brought suit in the federal district court of Idaho, challenging the Idaho Rule under both NEPA and the Endangered Species Act (ESA). The challenges in that case, Jayne v. Rey, were previously discussed in this Newsletter. District Court Upholds Implementation of Idaho’s Roadless Rule, Rejecting ESA and NEPA Challenges, Marten Law, Environmental News (Feb. 10, 2011).
i. The Endangered Species Act Challenge
As the more-permissive GHRG and BCR themes include areas that contain habitat for grizzly bear and caribou, two species listed under the ESA, the U.S. Fish and Wildlife Service (FWS) – after Section 7 consultation with the Forest Service – issued a Biological Opinion (BiOp) discussing the potential impacts on these two species. The BiOp concluded that the protections afforded wildlife in the national forests’ Long Range Management Plans (LRMPs) were sufficient to ensure that the caribou were not likely to be jeopardized, and that an Access Amendment setting standards for wheeled, motorized use within grizzly bear habitat was sufficient to protect the species. 
The plaintiffs argued to the district court that the FWS could not rely on such “promises” of future actions to ensure the protection of listed species as required by the ESA. But the court rebuffed these arguments, distinguishing the Ninth Circuit’s decision in National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008), where the court had rejected a biological opinion from NMFS that relied on the agency’s promise to install certain structural improvements to Columbia River dams for its no-jeopardy decision. In contrast, the district court in Jayne found that the FWS’ reliance on the Forest Service commitments was proper because the “Access Amendment was not some vague aspiration but a detailed proposal,” and that the Forest Service “has made a firm commitment to protect the grizzly bear in other areas, and it is reasonable to assume they would follow the same course.”
ii. The NEPA Claim
Plaintiffs also challenged the Forest Service’s Final Environmental Impact Statement (FEIS) as based on incorrect data and assumptions. In particular, plaintiffs challenged the Forest Services’ reliance on “the realities of budgets and the balancing of priorities” for its projections that neither logging nor road-building would be greatly increased from the amounts authorized under the national Roadless Rule. While the court recognized that the Idaho Rule technically allows more road-building and logging than under the national rule, it found the Forest Service’s projections of only modest increases to be “entitled to deference given the expertise the agency has in matters of its own budget and how it affects project priorities.”
iii. The Rule’s Phosphate Mining Provision
The environmental plaintiffs also claimed that the Forest Service violated NEPA by failing to conduct a site-specific analysis of future mining operations in the area opened to future phosphate mining. But the court rejected these arguments, finding it preferable under NEPA “to defer detailed analysis until a concrete development proposal crystallizes the dimensions of a project’s probable environmental consequences.” Here, the FEIS concluded that the only known proposal for mining phosphate in an IRA was a planned expansion of the Smoky Canyon Mine, but that the proposed expansion of that particular mine had already been studied in a site-specific EIS, which concluded that mitigation measures were sufficient to protect water quality and contain selenium contamination. Further, the Smoky Canyon Mine EIS and the decision to proceed with the mine expansion had recently been upheld by the Ninth Circuit as meeting NEPA requirements in Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143, 1153 (9th Cir. 2010).
B. The Ninth Circuit Appeal
Environmental plaintiffs appealed the district court’s decision to the Ninth Circuit. But “[a]fter scouring both the administrative and district court records,” the Ninth Circuit recently “conclude[d] that the district court’s grant of summary judgment was warranted.” The Ninth Circuit briefly noted that the “inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error,” and adopted the district court’s “comprehensive opinion” as its own.
V. The Colorado Rule
Originally proposed in 2006 and modified in 2007, the Colorado Rule was finally formalized and issued as a final rule modifying the Roadless Rule in July 2012. Similar to the Idaho Rule, the Colorado Rule generally prohibits road-building and timber cutting in the state’s IRAs, “with narrowly focused exceptions.” As with the Idaho Rule, the Colorado Rule provides more stringent protections for some lands than the 2001 Roadless Rule, while relaxing some requirements on other lands. The Colorado Rule establishes a two-tiered system, such that on the 1.2 million acres of “upper tier” lands, “exceptions to road construction and tree cutting are more restrictive and limiting than the 2001 Roadless Rule.” Further, the Colorado Rule provides additional restrictions on the development of linear construction zones (LCZs), such as electric power or telecommunications lines, and adds 409,500 acres that were not covered by the 2001 roadless rule. On the other hand, the Colorado Rule removes roadless protections from 8,300 acres of ski areas and 459,100 acres of lands identified under the 2001 Roadless Rule, but substantially altered from a truly roadless condition.
Like the Idaho Rule, the Colorado Rule was drafted to provide the state with additional flexibility to manage wildfire risk, and to address specific local economic and job growth concerns. In particular, the Colorado Rule addresses state-specific concerns including:
(1) Reducing the risk of wildfire to at-risk communities and municipal water supply systems; (2) facilitating exploration and development of coal resources in the North Fork coal mining area on the Grand Mesa, Uncompahgre, and Gunnison National Forests; (3) permitting the construction and maintenance of water conveyance structures; (4) restricting linear construction zones, while permitting access to current and future electrical power lines and telecommunication lines; and (5) accommodating existing permitted or allocated ski areas.”
As Democratic Governor John Hickenlooper emphasized upon the rule’s promulgation, “[t]he Colorado Roadless Rule reflects the diverse, creative and passionate suggestions contributed by thousands of Coloradans … The rule adds new protections to millions of acres of our state’s cherished national forests while providing sufficient, targeted flexibility crucial to local economies and communities.”
Unlike the Idaho Rule, Colorado’s state-specific roadless rule (Colorado Rule) has managed to avoid facial legal challenges since its promulgation in July 2012. However, individual projects proposed for Colorado’s roadless areas to face ongoing challenges. In mid-December 2012, environmental groups filed a notice of intent to sue the Forest Service, alleging ESA violations related to the agency’s approval of a coal lease expansion in the North Fork coal mining area identified by the Colorado Rule. On January 28, 2013, these environmental groups also filed an administrative appeal of a Bureau of Land Management decision authorizing that same mine expansion.
VI. The Alaskan Saga Continues
As mentioned above, Alaska initially challenged the promulgation of the 2001 Roadless Rule, but withdrew its challenge after the Forest Service agreed to exempt the Tongass National Forests from the rule’s restrictions. In December, 2003, the Forest Service amended the Roadless Rule to temporarily exempt the Tongass from its prohibitions against timber harvest, road construction, and reconstruction in IRAs (“the Tongass Exemption”), until the Forest Service could adopt a rule to address the specific situation of the Tongass. The State Petitions Rule, however, stated that management of IRAs on the Tongass would continue to be governed by the existing forest plan, thus, “negat[ing] the need for further Tongass-specific rulemaking as contemplated in the 2003 Tongass Exemption.
A. The Challenge to the Tongass Exemption
On December 22, 2009, plaintiffs filed a complaint against the Forest Service challenging the Tongass Exemption as violating the APA and NEPA. In promulgating the Tongass Exemption, the Forest Service had argued that such exemption was needed to prevent significant job losses and to allow for roads and utilities to be constructed to connect isolated southeast Alaska communities. The federal district court of Alaska dismissed these arguments as contrary to the evidence, and on March 4, 2011, the court granted summary judgment for the plaintiffs, holding that the Tongass Exemption was “arbitrary and capricious” in violation of the APA. In its decision, the court reinstated the 2001 Roadless Rule on the Tongass.
Alaska appealed that decision to the Ninth Circuit, but after hearing oral arguments, the court referred the parties to mediation proceedings on December 13, 2012, and the appeal was stayed pending the outcome of mediation.
B. A New Challenge to the 2001 Roadless Rule
In addition to appealing the district court’s decision reinstating the Roadless Rule, in June 2011 Alaska also filed a new suit in the district court for the District of Columbia, once again directly challenging the 2001 Roadless Rule itself. As well as now-familiar challenges that the Roadless Rule violates the Wilderness Act, NEPA, and the APA, the complaint also includes several Alaska-specific claims, including violations of the Alaska National Interest Lands Conservation Act (ANILCA) and the Tongass Timber Reform Act (TTRA).
Alaska argues that because Congress explicitly determined the appropriate balance between protection and development in ANILCA, that statute requires that “Congress itself had to approve, by joint resolution, any further designation of public land in excess of 5,000 acres that would no longer be available for ‘more intensive use and disposition.’” Similarly, Alaska claims that “[b]y setting aside so much commercial forest land pursuant to the 2001 Roadless Rule that insufficient timber volume is available to meet industry needs, Defendants have violated TTRA §§ 101 and 105 by eliminating the ability of the USFS to even consider an option of offering sufficient timber for sale to meet annual and planning cycle market demand.” The parties await the court’s decision on the defendant’s motion to dismiss, filed in May 2012.
Given that both the Ninth and Tenth Circuits have upheld the Roadless Rule against challenges based on NEPA, the APA, and the Wilderness Act, Alaska faces an uphill challenge to prevail on those claims. However, its claims based on the Alaskan land management statutes, specifically ANILCA and TTRA, have yet to be considered. Moreover, the state has not asked the court to overturn the Roadless Rule in its entirely, but is simply seeking “[a]n order invalidating the Roadless Rule and permanently enjoining the Defendants from applying the 2001 Roadless Area Conservation Final Rule and Record of Decision to the Tongass National Forest or the Chugach National Forest.”  Thus, any decision in the Alaska case is not likely to affect the management of national forest lands outside of Alaska.
The 2001 Roadless Rule has now been upheld by both circuits which have heard challenges to the rule. As for the state-specific rules, the Idaho Rule has now been upheld by the Ninth Circuit, while the Colorado Rule has to date avoided direct challenges. Developers of projects in the IRAs of both states, however, should continue to diligently comply with required site-specific NEPA and ESA analyses in anticipation of potential challenges from certain environmental groups who remain opposed to any development of the natural resources of our national forests.
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