Chest bump to the Tenth Circuit, chest bump to the 2001 roadless rule. The biggest remaining swath of unprotected wild America is now, finally, protected.
The appeals court reinstated the rule, which blocks logging and road construction on 49 million acres of public forests. In a mammoth 120 page opinion, the court overturned a Wyoming federal court’s decision in 2008 that the rule illegally usurped congressional power to designate wilderness.The decision resolves a federal court split, but raises questions about Colorado’s proposed state-specific approach to managing national forests.
Clinton famously passed the rule in final hours of his administration, and the Bush administration spent eight years trying to unpass it. Hundreds of communities around the country get their water from roadless areas. Roadless forests are a source of clean water. They are often where our imperiled wildlife clings for survival. And, they are where millions of people go to recreate and experience wild country.
Colorado officials, you can be sure, are reviewing the decision carefully. Nothing in the decision appears to prohibit state-specific rules for protecting national forests. And Colorado natural resources officials have developed their own, nuanced, tiered-protection plan for protecting 4.2 million acres of roadless national forest in the state.
It would protect only about 13 percent of the 4.4 million acres of national forest in Colorado protected by the national rule. The Colorado proposal would make exceptions for mining, logging and ski-area expansion.
Today’s federal appeals court decision “does not preclude further litigation, which could continue to create uncertainty,” King said.
State officials, he said, will keep working to finalize the state-specific rule.
If the Tenth Circuit Court of Appeals had backed the 2008 Wyoming federal court’s ruling, federal land managers’ power to prevent logging and road-building would have been limited.
Attorneys for Wyoming and Colorado Mining Association argued that the Forest Service was trying to create de facto wilderness areas. The Wyoming court agreed with them, saying the roadless rule violated the 1964 Wilderness Act that requires congressional actions to create wilderness.
But the federal appeals judges reversed that, finding that the Wyoming court abused judicial discretion.
Colorado Mining Association President Stuart Sanderson said the industry is “disappointed with the ruling” and is “carefully evaluating next steps.” The decision “does not reflect a practical understanding of the impact that the Clinton Rule will have upon mining jobs in Colorado and the United States,” Sanderson said.
Practically speaking, without the roadless rule, protection of these national forests would be left to a patchwork management system that in the past resulted in millions of acres lost to logging, drilling and other industrial development. When Clinton officials in 2001 issued the Roadless Area Conservation Rule, it was designed to protect nearly 60 million acres, or about a third of the undeveloped U.S. Forest Service lands.
Bush administration officials in 2005 tried to replace that rule with a state-based approach to managing forests.
In 2009, the Ninth Circuit Court of Appeals in California upheld a lower court decision to reinstate the roadless rule for the majority of roadless areas. Obama administration officials then expressed support for a national rule and asked the Tenth Circuit Court of Appeals to uphold the national rule.
Elizabeth O’Nan lives alone on an 80 acre “island” of land she owns in the middle the Pisgah National Forest in northwestern North Carolina. O’Nan is 86 years old. Her property is accessible only by a small forest service road, over which she holds an easement. In December of 2010, the Forest Service charged O’Nan with blocking that forest road, in violation of 36 C.F.R. § 261.12(d), because she told a hunter that she owned the road and he had no right to use it.
O’Nan proceeded prose before a federal magistrate judge and was convicted. On appeal to the district court, O’Nan raised a first amendment defense to the charge. She argued, in essence, that the rule is constitutionally infirm because it permits punishment of protected speech based on viewpoint — that is, speech excluding hunters from the road. The district court reviewed for plain error and affirmed. The case is now before the Forth Circuit.
O’Nan’s position goes something like this. When she told the hunter he had no right to use the road, she engaged in constitutionally-protected speech. If so, the district court mischaracterized her speech as criminal interference with the use of a road. In holding that O’Nan could be sanctioned for what she said to the hunter, the court conflated protected speech and criminal conduct. On this theory, the two are distinctly different: while an agency may criminalize physically blocking a service road, it may not criminalize speech, even when the purpose of the speech is to stop people from using the service road.
To prevail on this argument, O’Nan would have to distinguish her case from the line of cases in which the Supreme Court has permitted the punishment of speech as an “illegal course of conduct.”
II. Discussion: Speech as an Illegal Course of Conduct
A. 36 CFR s. 261.12(d)
The road-blocking rule is a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. It was triggered against O’Nan by what she communicated. So we might call the rule content- based as applied, because the content of her speech triggered its application. This mechanism does not just restrict some speech more than other speech–most content-neutral laws do that. Rather, the rule applies to speech precisely because of the harms that supposedly flow from the content of the speech: threatening to have the hunter arrested for trespassing violated the road-blocking rule because it interfered with his use of the road.
In 1998, an Idaho district court upheld this regulation against a First Amendment challenge. The Ninth Circuit affirmed without comment. That case involved an environmental protestor who physically blocked traffic on a logging road. The protestor, Scranton, was found perched on top of a tripod structure in the center of the Forest Service road. The tripod stood thirty feet tall; near the top of the tripod a plywood platform supported Scranton. Forest Service officers used a “cherry picker” to elevate themselves to the platform level. As they did so, Scranton placed her arms inside a welded, L-shaped metal pipe attached to a tripod leg. She told the officers that she would not quit the tripod “until the logging stopped.” Forest Service officers attempted to remove Scranton’s arms from the pipe. When their efforts proved unsuccessful, they cut the strap securing the pipe to the tripod leg. After approximately twenty minutes, Scranton announced that her arms were going numb and that she was willing to leave the tripod platform. She was then removed and arrested.
Scranton argued that the language of the rule was unconstitutionally vague, and that a facial challenge was warranted because the rule implicated constitutionally protected conduct. The district court disagreed. First, it determined that the rule’s prohibition of “blocking, restricting or otherwise interfering” with the use of a Forest Service road did not reach a substantial amount of constitutionally protected conduct. Second, the court found that the regulation did not prevent the expression of First Amendment conduct in a multitude of other, lawful ways. Therefore, Scranton’s vagueness challenge had to be “examined in the light of the facts at hand.” Scranton’s conduct clearly fell within the scope of the regulation – she blocked the Forest Service Road by maintaining a giant tripod in the roadway.
By contrast, O’Nan’s conduct involved only speech. This difference, however, may not be enough to distinguish her case from the Supreme Court’s “speech as an illegal course of conduct” jurisprudence.
“It has never been deemed an abridgement of freedom of speech,” Justice Black wrote for the Court in Giboney v. Empire Storage & Ice Co., “to make a course of conduct illegal merely because the conduct was in part carried out by means of language.” In subsequent opinions, the Court has characterized Giboney as stating that speech may be punished when it’s “brigaded with illegal action.” The Fourth Circuit described the Giboney principle as authorizing speech restrictions when the speech is tantamount to a “speech act.”
Giboney upheld an injunction against peaceful picketers who were trying to pressure a business “to agree to stop selling ice to nonunion peddlers.” Such an agreement, the Court said, would have violated antitrust law; therefore, enjoining such picketing did not violate the First Amendment. But the Giboney argument has also been used to justify a wide variety of speech restrictions:
(a) The DOJ and a court of appeals have recently reasoned that Giboney lets the government restrict books that may inform people how to violate the law, at least when the publisher intends that those books help people commit crimes. This “speech act” rationale goes something like this. If the speech in question is an integral part of conduct that the government otherwise is empowered to prohibit, it typically may be proscribed, since it is merely incidental that such “conduct” takes the form of speech.
(b) The Supreme Court described Giboney as supporting the proposition that “[a] man may be punished for encouraging the commission of a crime.” The Court cited as an example a 1915 case that upheld the punishment of a newspaper editor who endorsed nudism.
(c) Some courts have recently used Giboney to defend restrictions on doctors’ recommending medicinal marijuana to their patients.
(d) Courts have similarly used the “conduct not speech” argument to justify restricting speech that creates an offensive work environment.
(e) Judges have relied on Giboney to support restrictions on speech that urges political boycotts aimed at pressuring governments to change their policies.
(f) The dissent in Cohen v. California cited Giboney to argue that wearing a jacket containing the phrase “Fuck the Draft” should be constitutionally unprotected: “Cohen’s absurd and immature antic . . . was mainly conduct and little speech.”
These applications of Giboney seem confusing. This might be because the logic of Giboney itself is pretty confusing, and inconsistent with the logic of the more recent Supreme Court cases like Cohen, Brandenburg , and Claiborne Hardware. In particular, there are at least three different interpretations of Giboney’s ambiguous language that might bear on O’Nan’s first amendment claim, but none of them makes much sense.
1. “Course of Conduct” Referring to the Noncommunicative Harms of Speech
Modern Supreme Court case law has recognized a sort of conduct/speech distinction. Speech may be restricted because of harms flowing from its noncommunicative component (noise, obstruction of traffic, etc.)–which we might think of as a “conduct” element–but not because of harms flowing from its communicative component, the “speech” element. But this can’t be the distinction Giboney or the above cases that cite Giboney are using, or that could justify O’Nan’s conviction, since those cases all involve speech that’s restricted because of harms that flow from its content.
2. Illegal Course of Conduct Meaning Speech that Itself Violates a Law
Maybe we could explain the opinions that rely on Giboney by reasoning that the speech itself–picketing to achieve a certain result, publishing a book describing how to commit a crime, threatening hunters to stop them from using the forest road–violates a law, and in that sense becomes an illegal “course of conduct.” On this theory, speech that amounts to the commission of an independently illegal act, such as bribery, perjury, and some threats, is constitutionally unprotected because it “is properly treated as action, even if it consists solely of words.”
But the point of modern First Amendment law is that speech is often protected even though it violates a law restricting it. Public profanity (as in Cohen ), speech that violated a Sedition Act , and speech “encouraging the commission of a crime” (as in Cox ) would indeed be illegal courses of conduct under laws that prohibit such speech. Such laws, though, are obvious speech restrictions, and courts rightly evaluate them–and often strike them down–under the First Amendment.
A threat is no less speech, and no more action, than was speech that violated the Sedition Act. A threat is speech in a particular context, such as the beliefs O’Nan had about her property rights, but it is still communication that is punished because of what it communicates. Certain kinds of threats are clearly punishable, but only because they fall within an exception to free speech protection and not because they are somehow not speech.
3. Illegal Course of Conduct Meaning Speech That Violates a Generally Applicable Law
O’Nan’s conviction, like many cases the Giboney line, might best be explained on the grounds that the speech violates a generally applicable law that bans a wide range of conduct.183 On this interpretation, speech should be treated as conduct when it has the same harmful effects and it is covered by a generally applicable law that restricts all conduct that has those effects. This sort of argument, though it would support the application of the road-blocking rule against O’Nan, would reduce the Giboney principle to an approval of speech restrictions that are content-based as applied.
This point is not a trivial one. Such an interpretation of Giboney cuts against the very purpose of the content based / content neutral distinction: allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions. Because a content-neutral law – for instance, a leafleting ban — can potentially apply to a wide range of speakers, it can’t even come close to driving certain views entirely from public debate.
On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co. , bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion–the draft is evil, blacks should boycott white-owned businesses– would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. O’Nan could not persuade hunters not to use the road in any way – she could not send this message with pamphlets, or on the radio. She could not write it on a billboard or post it on a blog. Her message would always be illegal, because it could have the effect of discouraging the use of the road.
The Court has confronted cases where a law was content-based as applied. In these cases, either the Court held that the speech was constitutionally protected, or–if it held otherwise–the decision is now viewed as obsolete.
The Court’s the World War I-era cases Debs, Frohwerk, and Schenck, upheld the criminal punishment of antiwar speech. In those cases, the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct–speech or not–that “willfully obstructed the recruiting or enlistment service of the United States.” These cases are now generally seen as wrongly decided. Under modern First Amendment law, courts would overturn convictions for antiwar leafleting or speeches, and would treat the law as content-based, because it is the content of such antiwar speech that causes the interference with the draft.
More broadly, if generally applicable laws were immune from First Amendment scrutiny, the government could suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal conduct, praise of illegal conduct, and even advocacy of legal conduct. For example, a general ban on “assisting, directly or indirectly, conspiracies to overthrow the government” could prohibit advocacy of overthrow as well as physical conduct like making bombs: Advocacy could assist by persuading people to join the rebellion. A ban on “assisting interference with the provision of abortion services” could ban speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.
The speech in these examples, like O’Nan’s speech, could bring about the harms that the generally applicable law is trying to prevent. O’Nan’s speech may interfere with the use of the road, an effect that is unquestionably punishable if it were brought about by a giant tripod structure rather than communication. But the idea behind the rejection of Schenck, and of the adoption of the Brandenburg v. Ohio rule , is that the government must generally tolerate speech even when its persuasiveness or the informational content could lead to eventual harm.
Similarly, in NAACP v. Claiborne Hardware Co. the Court held that speech constituting tortious interference with business relations may nonetheless be constitutionally protected. Tortious interference covers a variety of conduct, not just speech. But when the interference flows from the persuasive or informative effect of speech–for instance, when the speech in Claiborne Hardware persuaded people to boycott a business, publicized the names of people who weren’t complying with the boycott, or persuaded others to ostracize people who refused to join the boycott– courts treat the tort as a speech restriction.
In short, O’Nan faces an uphill battle. Her speech did not express a view on a topic of public debate. Rather, she made a purposeful threat that misrepresented the law and interfered with a public right. Because her threat was likely to have the same harmful effects as a physical impediment blocking the road, the court will probably classify her speech as an illegal course of conduct.
O’Nan’s best argument is that because the regulation is content-based as applied to her, it should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Her speech does not fall clearly into an exception to protection, so the presumption may only be rebutted if the restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.
Gibson Guitar Corp., one of the most widely known makers of guitars in the world, was recently raided by the U.S. Fish and Wildlife Service for a failure in the compliance arena. It was not for a violation of the Foreign Corrupt Practices Act, U.K. Bribery Act, OFAC or other more widely recognized anti-corruption statutes. Gibson was raided through an investigation regarding alleged violations of the Lacey Act of 1900.
Originally passed to protect wildlife, the Lacy Act was expanded in 2008 to cover wood products. It now requires companies to make detailed disclosures about wood imports and bars the purchase of goods exported in violation of a foreign country’s laws. Congress passed the amendment to curb the market for illegally harvested wood and to document the foreign sources of wood products to help with compliance and conservation activities abroad. It is also intended to level the playing field for U.S. producers so they aren’t undersold by suppliers of illegal wood. Under the Act, importers are prohibited from buying or selling of wood in violation of national forestry laws anywhere in the world, and must electronically submit an import declaration listing the scientific name of the wood, quantity, value and country of origin.
The Gibson raid offers a lesson: companies should be diligent about ensuring their entire supply chain is sourcing wood legally. Guitar makers would be wise to retain local counsel in the countries where they purchase tonewoods to make sure that the wood is not exported in violation of local law.
On Aug. 24, agents from the FWS and Department of Homeland Security raided Gibson’s executive headquarters, as well as two factories in Nashville and Memphis, Tenn., where they confiscated several pallets of wood, guitars and electronic files, according to the company and news reports. The investigation centers on Gibson’s acquisition of two fingerboard woods, partially finished ebony and Madagascar rosewood, from an Indian supplier. Ebony and rosewood are endangered trees.
It took almost a week for Gibson to get back to full operations. The one-day shutdown and the materials taken cost more than $1 million, according to Henry Juszkiewicz, Gibson’s chairman and chief executive officer. FWS made two allegationin its affidavit to obtain a search warrant for the raids. The first was that the woods in question were “exported from India by Atheena Exports under an incorrect tariff code (HS 9209), allegedly to avoid the Indian government’s prohibition on export of sawn wood products (HS 4407), and was declared upon import as finished veneer (HS 4408).” The second was that Gibson Guitar was not identified as the end user. The importer of record, Luthier Mercantile International, listed itself as the end user. The Lacey Act imposes strict liability on a company for those in its supply chain.
An affidavit filed by the Fish and Wildlife Service to obtain the search warrant alleges Gibson falsely labeled the wood import to make it sound legal and omitted the company’s name as the recipient. The sawn wood in question was exported from India by Atheena Exports under an incorrect tariff code (HS 9209), allegedly to avoid the Indian government’s prohibition on export of sawn wood products (HS 4407), and was declared upon import as finished veneer (HS 4408). According to the affidavit, discrepancies among the paperwork accompanying 11 shipments over two years suggest the recipients knew they were purchasing sawn wood.
The most recent shipment, with 1,250 pieces of ebony, arrived in Dallas June 27 from Germany on American Airlines. The shipment was detained by Customs officers for suspected violations of the Lacey Act and referred to Fish and Wildlife, according to the affidavit. The importer was Luthier Mercantile International, a Windsor, Calif.-based wood supplier, which told investigators the ultimate consignee was Gibson. The customs entry listed Luthier as the end user.
Gibson responded unsurprisingly in a statement on its web site: “Gibson has complied with foreign laws and believes it is innocent of any wrongdoing. We will fight aggressively to prove our innocence.” The statement further contends the Justice Department misinterpreted Indian law, that Indian officials did not consent to the enforcement action, and that if wood from the same tree was finished by Indian workers the material would be legal under the Lacey Act. Indian law requires that all finishing work on ebony and rosewood be done in India before they are exported, an attempt to add value to diminishing natural resources.
Juszkiewicz has mounted an aggressive media campaign to discredit the government’s position. He says that Gibson has been sourcing fingerboard wood for 17 years and that it is being bullied by the Justice Department. To wit, at a press conference outside Gibson’s Nashville factory on Aug. 25:
The issue here is not about whether this wood is legally logged. This is not about conservation. This is not about the environment. This is specifically about a law in India that requires domestic labor content that we (the United States) are enforcing.
The executive disputed the government’s interpretation of the Indian law in a radio interview, saying he has affidavits from government officials that it is legal to export fingerboard blanks. He told the Wall Street Journal that a customs broker probably made a mistake in labeling the goods. His affidavit identifies the broker as a Memphis company called V Alexander & Co. Inc. Gibson has been warned that any guitar with infringing materials that it sells and transports will be considered a separate violation of the Lacey Act. “I’ve instructed our staff to continue building the product and I’m taking personal responsibility for that action,” Juszkiewicz said.
This is not the first time that the FWS has targeted Gibson. In November 2009, more than a dozen agents raided the Nashville factory in search of illegally harvested ebony and rosewood from Madagascar, marking the first major enforcement action of the 2008 Lacey Act. Gibson claims that most of the wood it procures is certified by the Forest Stewardship Council, an international organization of timber users, traders and environmental groups that sets standards for forest management. It offers voluntary certification, through accredited third parties, that wood products are made from responsibly harvested and verified sources.
The wood confiscated from Gibson is actually not FSC certified. It is what the FSC considers “controlled wood.” Controlled wood is wood from small areas which fail the requirements for certification, but which are exempted by the FSC so that the entire forest area can be certified. “Gibson has a long history of supporting sustainable and responsible sources of wood and has worked diligently with entities such as the Rainforest Alliance and Greenpeace to secure FSC-certified supplies,” the company said in the statement.
After the 2009 raids Gibson said it takes the subject of responsible wood sourcing “very seriously” and that it was working to increase the amount of wood purchased from certified sources. The guitar maker has tried to make sure, to the extent possible, that it is dealing with reputable suppliers, Juszkiewicz said. A statement to The Tennessean newspaper from the Rainforest Alliance said Gibson has made a good effort to locate and import legal woods since the earlier raid, but added the effort “also must be accompanied by a clear commitment to eliminating any volume, no matter how small, of illegal wood that may contaminate its supply chain.”
No charges have been filed so far in either case, although internal e-mails and other information released in court documents related to the first case indicate that Gibson decided to buy illegal wood knowing the risks involved. Federal prosecutors have filed motions stating that Gibson was not allowed to obtain the wood from Madagascar because it was unfinished wood and the in-country supplier was not authorized to sell it.
Gibson sourced the ebony in the form of blank strips from a German company, which obtained it from a supplier in Madagascar. The country prohibits the harvest of ebony wood as well as the exportation of unfinished ebony, according to the current civil case in the District Court of Tennessee, where Gibson has sued for return of its confiscated materials.
Gibson maintains the wood seized in 2009 was legally exported and that it violated no law in Madagascar.
“We feel totally abused. We believe the arrogance of federal power is impacting me personally, our company and the employees here in Tennessee,” Juszkiewicz told reporters at the press briefing, a video of which is posted on the Gibson Web site. He said Gibson feels singled out because all guitar manufacturers use Indian ebony and rosewood for their products. The company also hasn’t been afforded due process as the government drags its feet trying to postpone the civil proceedings or filing any charges, he complained, adding that investigators won’t explain what Gibson allegedly did wrong. “We’re guilty of something they can’t tell us what it is yet” so the company can’t defend its reputation, Juszkiewicz said.
A troubling aspect of the Lacey Act is that it imposes strict criminal liability on any non-compliant company, even a company that didn’t know it was doing anything wrong. There is no mens rea requirement. Importers are expected to take all reasonable means to comply, but the law doesn’t define the steps a company should take to ensure it doesn’t obtain prohibited wood products. For Gibson, understandably, this is exasperating. As Juszkiewicz pointed out
If people wanted to stop us from doing something you would think they’d tell you in advance. ‘Hey, look guys we have a problem with this. You need to do something. Give us a plan. In two cases, we had a SWAT team treat us like drug guys. Come in and shut us down with no notice. That’s just wrong.
After the first raid the manufacturer no longer deals with Madagascar. Juszkiewicz has conducted a series of interviews, mostly on talk radio shows, in an apparent effort to bring public pressure on the government to back off. In one radio interview he said the raid two weeks ago is an attempt “to intimidate us into copping a plea” in the first case as Gibson prepares to present evidence that it behaved properly.
The National Association of Music Manufacturers expressed “deep frustration” with the Lacey Act in a Sept. 1 letter to President Obama and members of Congress:
The wide range of interpretation possible in the law and lack of regulatory clarity has resulted in great difficulty in compliance. The confusion is due in large part to the law’s ambitious scope, including enforcement of the laws from all other countries that are the source of these natural materials. . .
The recent high profile raid of Gibson . . . compounded with the slow response on needed guidance for compliance that we have been seeking has created fear and uncertainty for all those involved in the manufacturing, distribution and retailing of instruments and increasingly, artists and owners of musical instruments. We cannot state strongly enough the impact that this confusion, uncertainty and threat of criminality are having on our industry even when intentions of due care and compliance are followed and documented. We have concrete ideas on how to improve the law and are ready to work with members of Congress and federal agencies to make positive changes that will fulfill the intended vision of the Lacey Act and preserve not only the world’s forests, but the vital work of U.S. manufacturing and commerce in the music products industry.
Gibson’s public campaign is generating support on the company’s Facebook page from people opposed to big government and outsourcing of U.S. jobs. And in an interview on KMJ 105.9 in Fresno, Calif., Rep. Thaddeus McCotter, R-Mich., claiming to be a guitar player himself, said, “You‘re looking at American artisans having the federal government come in and tell them they’d be better off if they let people in Madagascar or elsewhere do the work is insane. That’s outsourcing by government fiat from an administration that claims to oppose it.” What we’re looking at has absolutely nothing to do with outsourced labor.
The Gibson case underscores the importance of having strong internal controls over compliance activities. So how does a company, or an entire industry subject to the Lacey Act, manage all of these risks? I suppose the first thought would be to only buy American, but that thought is probably as unrealistic as a U.S.-based energy company not doing business overseas because of the FCPA. The answer is that a company must first identify the risks it faces and then manage those risks. Here the primary risks would appear to be knowledge of local laws and liability for the acts of those in your supply chain. There are two keys to managing these risks. The first is process, process and process. The second is document, document and document.
Whatever business you are in, the requirement is for you to understand what laws are applicable to your business. If you have to hire local lawyers in the jurisdiction where you are doing business to ascertain if your exports violate local law, don’t whine about it–hire them. If your company has strict liability for those in your supply chain, engage in due diligence, train those vendors in the law and your requirements, and manage those relations going forward. All of the above should be documented so that your company can produce those records in short order if it is investigated . Whining about unfair 111 year-old laws will not get you much sympathy from the U.S. Department of Justice, the U.S. Fish and Wildlife Service or a federal judge.
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.