Administrative rulemaking is a challenging way to manage public lands. The relative ease with which each new administration can reverse policy is particularly troublesome with regard to the conservation of roadless areas. The history of wilderness preservation shows that however sincere the promises of protection in administrative orders and plans may be, “anything less than statutory protection is temporary at best and illusory to boot.” Proponents of the Wilderness Act, who also sought lasting protection for the nation’s wilderness areas, specifically curbed administrative discretion to expand or eliminate wilderness areas. Congress retained the right to designate wilderness areas proposed by the administrative agencies. By contrast, while the 2001 Roadless Rule was designed “to provide lasting
protection for inventoried roadless areas within the National Forest System,” the past decade of litigation has frustrated that goal.
The failure of the executive branch and judiciary to manage these areas consistently is most problematic from the viewpoint of conservation. It only takes one road to end an area’s roadlessness. Roads may invite logging and development; as a result, the areas are no longer “untrammeled by man . . . with the imprint of man’s work substantially unnoticeable,” and the qualities that might qualify them for future inclusion in the National Wilderness Preservation System are destroyed. In short, agency management puts conservation at a perpetual disadvantage because development is often permanent. Roads cannot be built and then removed after every four-year election cycle.” Nevertheless, perhaps due to methodological or philosophical differences, or perhaps due to political pressure, Congress has stayed out of the fray, relegating the fate of 58.5 million acres of public forest to the administrative and judicial arenas. Part I of this paper examines the current state of the roadless litigation and the problems it exposes with regard to agency-judiciary governance of national forests. Part II traces these problems to a lack of clarity in the statutory provisions that guide the Forest Service. Part III concludes with a discussion of how the administrative rulemaking process might be improved to make it a more effective tool for resolving the kind of value-laden issues posed by the roadless debate.
I. The Roadless Litigation
The state of the roadless rule is currently indeterminate, as the Ninth Circuit upheld it on substantive and procedural grounds, while the unfavorable Wyoming decision remains on appeal to the Tenth Circuit. So it is possible that two western courts of appeals may uphold the original roadless rule; or we may have a circuit split and have to wait for the Supreme Court to sort it out.
A. California v. USDA and Wyoming v. USDA
In California v. USDA , the Ninth Circuit set aside the Bush administration’s State Petitions Rule for violating NEPA and ESA, and reinstated the Clinton administration’s Roadless Rule. The USDA argued that it was not legally obligated to prepare an EIS under NEPA because the rule fell within a categorical exclusion for “purely procedural” rules. The court rejected this argument, noting that because the State Petitions Rule removed the Roadless Rule from the Code of Federal Regulations and reinstated the prior regime of localized management under individual forest plans, it was not merely “procedural.” Such a drastic measure, the court reasoned, qualified as “substantive” action and triggered environmental analysis under
NEPA. The court cited its opinion in Kootenai Tribe v. Veneman, which found that the Roadless Rule had a demonstrable impact on the environment and provided greater substantive protections to roadless areas than the individual forest plans it superseded.174 Bound by this
precedent, the Ninth Circuit rejected the USDA’s arguments that the Roadless Rule was never meaningfully in effect. As the State Petitions Rule completely replaced subpart B of 36 C.F.R. § 294 (which contained the Roadless Rule), it amounted to a repeal. The Ninth Circuit also rejected the USDA’s reliance on the Wyoming District Court’s injunction to argue that the replacement of the Roadless Rule was simply procedural. Given that the Wyoming injunction is currently on appeal to the Tenth Circuit, the USDA was unreasonable to ignore the possibility that the Tenth Circuit would reverse and reinstate the Roadless Rule. Of course, it is also possible that the Tenth Circuit will affirm the injunction. But the Ninth Circuit undermined the significance of that potential outcome, dismissing the USDA’s claim that the Wyoming injunction nullified the Roadless Rule in all jurisdictions.
Intriguingly, the USDA also argued that the district court abused its discretion by reinstating the Roadless Rule (by the court’s own logic, a substantive action) as the remedy for the procedural inadequacies of the State Petitions Rule. The court rejected this argument as well, noting that NEPA permits invalidation of violative rules, and that under the APA “[t]he effect of invalidating an agency rule is to reinstate the rule previously in force.” The court also found that it was not bound by the State Petition Rule’s severability clause. Finally, the court observed that the FS remains free to change its approach to roadless area management at any time, as long as it complies with NEPA and ESA in doing so. This last point —that the Forest Service may change its approach to roadless area management—highlights the issue at hand. Administrative rulemaking is not effectively protecting roadless areas pending wilderness designation.
II. Accountability, Politics and Administrative Rulemaking
A. The Forest Statutes
This is a management problem. The statutory provisions that guide the Forest Service lack clear directions for how the agency should resolve what are essentially value-laden political issues. The 1897 Organic Act, for example, states in part that “(n)o national forest shall be established, except to improve and protect the forest within the boundaries, 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.” This broad mandate provides little resolution because some interest groups emphasize the “protect” and “water flows” provisions while others highlight the “supply of timber” component.
Compared to the Multiple Use Sustained Yield Act of 1960 (MUSYA), the Organic Act is a paragon of clarity. Through MUSYA, Congress formally charged the FS with administering the national forests for multiple uses, namely, outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” The statute contains relatively little direction as to how forest managers should balance these uses. They are to manage for multiple use and sustained yield, the latter meaning “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.” Sadly, the statute does not prioritize between these values, leaving the agency without a consistent or coherent mission. For instance, what are the needs of the American people and what constitutes the most judicious use of the land? What does providing “due consideration” of “the relative values of the various resources in particular areas” actually mean?
Perhaps most problematic is the Act’s failure to specify the spatial scale for implementing multiple uses: should uses be balanced on a forest-by-forest basis, or at the national forest level? This is not to say that MUSYA was a failure, as the multiple use requirement proved to be a major challenge for the FS in its efforts to focus primarily on timber mining. But its ambiguity has been used by the FS to justify everything from designating 58.5 million acres as protected roadless areas to proposing an 8.7 billion board-foot timber sale in the Tongass National Forest. The timber industry could accommodate multiple uses, according to the FS. For example, in Montana’s Bitterroot National Forest, the agency embraced clearcutting as a way to simultaneously achieve its timber, wildlife, and recreational hunting purposes, by providing “beneficial openings” for browsing game species.
A similar policy in the Monongahela National Forest prompted the famous Fourth Circuit ruling that the Organic Act prohibited clearcutting in national forests. Congress responded with the National Forest Management Act of 1976 (NFMA). Primarily a planning-based statute, the NFMA called for new interdisciplinary processes and expanded opportunities for public participation. The NFMA also set limits on the size of clearcuts and required the FS to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” The NFMA has been criticized as failing to provide the FS with any intelligible standards for its timber management policy, a result of Congress’s commitment to avoiding responsibility for difficult resource management decisions.
One consequence of statutory ambiguity is that many important policy and management decisions are relegated to the administrative rulemaking process. At its best, rulemaking can be seen as a type of practical compromise between general legislative ideals and on-the-ground localized reality. How well it performs this role is of great importance to public land policy and the conflict it generates.
B. The Roadless Rule
While Congress is the most appropriate body for resolving issues like this, the simple reality is that when Congress cannot organize a majority, or simply abandons its responsibilities, the decision-making is left with the FS. Regardless of how the courts ultimately decide the NEPA issue, the fact remains that roadless rulemaking is within the constitutional and legal discretionary authority of the FS. Article IV, section 3 of the U.S. Constitution, the Property Clause, states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The federal government has proprietary and sovereign powers over its property (including public lands) and may regulate activity on private lands that affect its public lands. The scope of the Property Clause has been debated, but the courts have consistently read the Clause broadly, going so far as to say that this congressional power over public lands is “without limitations.” Congress has power over national forest management and has exercised that power in this case by giving it to the FS.
This is not necessarily a bad thing. The roadless rulemaking process, though exasperating and deeply flawed, is still a workable and legitimate source of law in our administrative state. Steps can and should be taken to improve it. After all, discretion cuts both ways: the broadly written forest laws have allowed the FS to build more than 380,000 miles of roads in the forest system–and they also allow the FS to stop building any more.
III. Improving the Process
Roadless areas represent different values to different groups: some view them as economic resources to be exploited, some emphasize their recreational value, others recognize their ecological significance, and still others focus on the spiritual values associated with these lands. These values animate the two main viewpoints on roadlessness, which academics have called the “roadless issue” view and the “roadless resource” view. The “roadless issue” group sees roadlessness as a “designation which should cease to exist,” arguing that land should either be designated as wilderness or opened up to multiple use, while the “roadless resource” group wishes to protect the valuable roadless resource for its own sake.
1. Forest Planning
Critics of the original roadless rule claimed that roadless issues should be resolved through the traditional forest planning process, in part because of President Clinton’s controversial role in the rule’s initiation. On this view, the forest planning process is assumed to be value-and decision-neutral, which it is not. The FS has historically emphasized intensive management and timber mining over other values, such as basic economics and diversity. Furthermore, it was the forest planning process that led to 58.7 percent of inventoried roadless areas being “allocated to a prescription that allows road construction and reconstruction.” It may be that those defending forest planning as a way to deal with the roadless issue are really defending roads and not the planning process. For them, there is not much difference between policy substance and process: the rule means no more roads and the forest planning process means more roads. In reality, however, the difference is important. NFMA planning regulations call for decision making at the appropriate scale, and the FS saw the roadless issue as one that should be addressed nationally. This makes sense. Given trends in habitat fragmentation and administrative priorities like ecosystem management, some issues go beyond the purview of individual forests. Sometimes it is necessary to make decisions on a national basis.
2. Public Participation
The role of public participation in the rulemaking process is a central theme in the roadless debate. Proponents of the Clinton rule are quick to point out the record-breaking number of comments generated by the DEIS, and credit public input for the decision to include the Tongass in the FEIS. But opponents make the argument–one that is often made by the environmental community with other issues–that the rule was predetermined and an example of the “decide, announce, defend” model of decision making. The ambiguous role of public participation in rulemaking compounds the problems stemming from the ambiguity of the forest statutes. The “content analysis team,” responsible for analyzing the public comment on the roadless rule, makes this point. The team noted that many commenters believed that the FS should be guided by the majority opinion, but differed on what they believed constituted the majority opinion. Many comments argued that some voices should count more than others because certain segments of the population were disproportionately impacted by the rule. Some believed that the public had spoken loud and clear and that the rule should be implemented accordingly. Others contended that the rule was fixed from the outset and questioned the integrity of the whole public comment process in general. Some questioned the validity of the self-selecting nature of the public comment process. Many writers insisted that a nationwide vote should be held.
Overall, the FS procedure for gathering and weighing public input does not exactly imbue the process with clarity. Comments are basically non-committal, and their self-selected writers might not represent the sentiments of the entire population; there is no criteria for assessing public input beyond the agency’s generic assurance that “that every comment is considered at some point in the decision process.”
3. Legislative Measures
Unless and until Congress clarifies the central purpose of our forests and the core mission of the FS, the FS will continue to be dogged by procedural and decision-making inefficiencies.
There are a number of ways in which Congress can act to direct the Forest Service to protect roadless areas more permanently. It could codify the original 2001 roadless rule into law. It could and should amend the Wilderness Act to expand protection for roadless areas. For example, an amendment could provide for periodic reviews, and include different levels of protection for different kinds of wilderness. Third, Congress could Amend NFMA to require that forest service planning take roadless values into account. Such an amendment could create a strong presumption that roadless areas remain roadless, and require specific findings to overcome that presumption, subject to judicial review. Amending the NFMA in this manner would still allow for flexibility in roadless area decision making, but it would set a baseline of protection.
Sadly, Congress is unlikely to pass meaningful roadless legislation anytime soon. The tremendous sway of commodity and recreation interests, combined with Congress’s general inability to agree on anything, are serious barriers to legislative action. Ultimately, the roadless resource will continue to be addressed through the administrative and judicial process.
3. Electronic Rulemaking
The technical nature of rulemaking often limits the extent of public input to experts and interest groups that have the necessary knowledge, time, and resources to fully engage in the process. Electronic rulemaking might provide a politically feasible way to make the process more transparent and accessible. Electronic commenting is already being tried by other federal agencies, including the EPA, the DOT, and NOAA. The problem with notice and comment rulemaking is that it relies on one-way communication. Little or no dialogue takes place between the public and agency. Online rulemaking could change that. Internet-accessible dockets, for example, could give the public easy access to important information, increase transparency, and facilitate the sharing of information. Public comment blogs could also lead to interactive discussion, as commentators could read and respond to other comments accessible online. Lastly, the FS could refocus its website to educate the public about proposed rules and their scientific and legal context, with hyperlinks to primary sources — the scientific studies, maps, legal instruments, and internal documents it used to design the rule. This could increase the quality of comments received and help the public understand their role in this process. One purpose of e-rulemaking, then, might be to find better ways to integrate scientific knowledge and public values in environmental decision making.
4. Expanded Scoping
FS use of public input, whether through NEPA scoping or notice-and-comment rulemaking, is usually very restricted and circumscribed. The public is asked to comment on specific and often highly technical topics. This is especially true at the beginning of the EIS process. Inevitably, much of the comment received by the agency is not solely focused on the decision at hand. This kind of non-technical, often value-laden and personal comment is usually deemed irrelevant to the decision and discarded. This practice was probably necessary in the traditional forest planning process. At the same time, these types of comments should have a place in the rulemaking process. Another possibility, made increasingly feasible by the online forums discussed above, is to expand the scoping process to make it more inclusive. For example, blogs could be used to facilitate discussion of future resource scenarios or to maintain an ongoing public conversation between stakeholders and the agency. Scoping in this way could encourage important and relevant dialogue that might go beyond a particular project, proposal, or rule. Lastly, by expanding the permissible discourse, this type scoping could give the public a greater say in what types of issues need to be addressed. As the Wyoming and Idaho district courts emphasized, the use of scoping by the FS left a lot to be desired on both sides of the debate. Its broadened use, therefore, should be embraced by a wide variety interests.
In conclusion, the roadless debate illustrates a pattern in natural resource management. Vague or contradictory laws leave important policy questions unanswered, so agencies try to answer these questions through the rulemaking process. The agencies are sued. Courts answer the policy questions avoided by Congress, and are either championed as guardians of the earth or vilified as judicial activists. The bottom line is that something is not right. Important national issues are being decided by unelected judges and interest group litigants at the exclusion of the citizenry. We need a productive debate on how to fix this.