On December 12, 2002, the Ninth Circuit Court of Appeals, the most liberal and frequently overruled appellate court in the country, put more than 58 million acres, or nearly half of America’s national forests, effectively off-limits to U.S. citizens for the foreseeable future. The court ruled a federal district judge had abused his discretion in setting aside the Clinton administration’s “Roadless Rule” for national forests.
The Roadless Area Conservation Rule was one of a flurry of regulatory actions taken in the final days of the Clinton administration. According to the rule, no new roads can be built in 58.5 million acres of America’s national forests, with the exception that new roads can be built to access current mineral lease boundaries. The rule, issued on January 5, 2001, has the practical effect of precluding recreation and resource recovery in an area more than twice the size of the state of Ohio.
District Court Halts Enforcement
On January 8, 2001, the Kootenai Tribe of Idaho, two Idaho counties, various recreational groups, some livestock companies, and the Boise Cascade Corporation filed suit in the federal district court in Idaho to block the federal government from implementing the Roadless Rule. According to the complaint, the Roadless Rule violated the National Environmental Policy Act (NEPA), which prescribes multiple-use policies for national forests, and the Administrative Procedure Act (APA), which requires fair procedures and public input in formulating and implementing new federal regulations. The next day, the State of Idaho filed a separate complaint in the District of Idaho stating similar allegations.
“The roadless rule was predetermined and one-sided and failed to consider the long-term consequences for managing the health of the national forests,” summarized Mike Moser, spokesman for plaintiff Boise Cascade, a timber company.
On May 10, 2001, federal district judge Edward Lodge made a preliminary determination that the Roadless Rule likely violated NEPA and APA. Lodge barred implementation of the Rule until and unless a full trial on the merits demonstrated the Rule was lawful.
Lodge determined there was strong evidence that the Clinton rule-making process was improperly hurried such that the Forest Service was not given time to produce a “coherent proposal or meaningful dialogue and that the end result was predetermined.” Lodge further characterized the process as “grossly inadequate” in providing for public notice and input before the rule was issued.
In his decision, Lodge similarly criticized the Bush administration’s decision to allow the Roadless Rule to go into effect temporarily, while proposed roads were analyzed on a case-by-case basis. Lodge characterized the Bush approach as a “Band-Aid approach” to the problems presented by the Clinton plan. Bush’s decision, wrote Lodge, “ignores the reality … that once something of this magnitude is set in motion, momentum is irresistible, options are closed and agency commitments, if not set in concrete, will be the subject of litigation for years to come.”
“How you go about doing something is about as important as what you end up doing. … [W]e need to have people feel they’ve been listened to and engaged and to be a part of the solution,” noted Lodge in his opinion.
Dale Bosworth, head of the same U.S. Forest Service that had implemented the Roadless Rule under the Clinton administration, agreed with Lodge. “The most you can hope for is that there’s credibility to the decision and that the people who felt like they didn’t get their way at least believe that the process was fair and thoughtful,” stated Bosworth. By putting the new rule on a fast track during its final days in office, the Clinton administration undermined its own credibility and the principle of fair play, Bosworth said.
Appeals Court Grants Review
The federal government, which through its agents was the sole defendant in the case, did not appeal Lodge’s decision. Normally, this would end the dispute. But the federal appellate court in San Francisco allowed a consortium of activist groups to appeal the ruling, even though neither plaintiffs nor defendants sought review. The appeal was justified, according to the appellate court, because of the importance of the issues to the activist groups.
Once the activist groups were allowed to appeal, the Bush administration surprised supporters of multiple use by filing a brief supporting the Roadless Rule. The administration has to date refused to approve a single project that would violate the Clinton Roadless Rule.
Turning to the merits of the appeal, the appellate court, by a 2-1 decision, determined the Roadless Rule did not violate NEPA. According to the court, NEPA “simply provides the necessary process to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions.” That “hard look,” the court ruled, required only that the Forest Service give some input to state and local governments, affected Indian tribes, and the general public in preparing and implementing a plan to prevent degradation of national forests.
Rejecting the district court’s determination that the Clinton administration had moved too quickly to implement the rule, the appellate court determined a 69-day comment period was sufficient to allow meaningful public participation in the NEPA process.
The appellate court also rejected the district court’s determination that the Clinton administration should have considered and offered comment on alternative plans for protecting national forests that did not contemplate a complete ban on new road-building.
Under NEPA, the federal government is required to “study, develop, and describe appropriate alternatives to recommended courses of action.” The Clinton administration studied a few alternatives to its final Roadless Rule, but all options contemplated a complete ban on new road-building, differing only on secondary issues. The appellate court determined the NEPA requirement to consider a variety of alternative plans “must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than harm it.”
Added the appellate court, “the policy of NEPA is first and foremost to protect the natural environment. … The district court’s opinion, in our view, gives inadequate weight to analysis of the conservation and environmental values supporting the Rule and of the budgetary and safety considerations pertinent to it. All these values are worthy and they deserve consideration.” Accordingly, “[t]he Forest Service was not required under NEPA to consider alternatives … that were inconsistent with its basic policy objectives.”
In dissent, appellate court judge Andrew Kleinfeld argued “we review preliminary injunctions only for abuse of discretion. It is not enough that we disagree with the district judge.” Rather, “we must conclude that the district court relied on an erroneous legal premise or abused its discretion. Such a determination cannot be made in this case.”
According to Kleinfeld, the activist groups had no legal right to intervene in and appeal district judge Lodge’s preliminary injunction. Wrote Kleinfeld:
The majority admits that “the intervenors do not have an independent protectable interest.” The majority nevertheless claims the intervenors assert “defenses of the Roadless Rule directly responsive to the claim for injunction” and have “an interest in the use and enjoyment of roadless lands.” This is plainly insufficient under Rule 24(b), which requires common claims or defenses, not merely parallel but distinct interests. The government’s interest in this action is in compliance with the procedural requirements of NEPA, not in the enjoyment of national forests.
Even if the activist groups could intervene, asserted Kleinfeld, Lodge’s preliminary injunction should have been upheld. Noting the few alternatives to the Clinton administration’s final Roadless Rule all contemplated a complete ban on new roads, Kleinfeld argued, “all of them ban road construction. They omit the obvious alternative of not banning road construction and repair. Thus the agency failed, as the district court found and the agency concedes, to give a ‘hard look’ at all the alternatives.”
Other alternatives, observed Kleinfeld, could have included allowing road construction with limits on density; allowing construction of roads made of certain materials only; or limiting road use to low-emission vehicles. “The majority writes as if the stated objective were banning roads in roadless areas. Such was not the case, and could not be the case under circuit precedent. Roads may be necessary to protect the forests and those who have property affected by them from avoidable destruction by fire, insects, and disease.”
The majority claims “The NEPA alternatives requirement must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than to harm it.” No citation of authority for this proposition is provided. It makes no sense. The national forests were established to provide a source of timber and to protect the flow of water. “National forests [at their creation] were not to be reserved for aesthetic, environmental, recreational, or wildlife-preservation purposes.” (United States v. New Mexico, 438 U.S. 696, 707 (1978)) They are not the same as wilderness areas, and the national forests are not “natural environments.” They’ve been a managed rather than a natural environment for a hundred years. For most of that time they were managed to serve as a federal tree farm, supplying timber as a renewable resource.
Finally, Kleinfeld rejected the majority’s conclusion that the Clinton administration had allowed sufficient opportunity for meaningful public comment before implementing the new Rule:
Here, in an action involving two percent of the land mass of this country, the Service allowed a mere 69-day public comment period. The district judge made a finding of fact that state maps of the affected area were not available until one month after the public comment period ended. Many responses were received in the final week, and the Service did not deign to respond. The documents offered to the public contained bizarre, Orwellian terms like “roaded roadless.” To top it all off, 4.2 million acres were added after the public comment period ended.
“What we have here,” summarized Kleinfeld, “is a case where the agency attempted a massive management change for 2 percent of the nation’s land on the eve of an election, and shoved it through without the ‘hard look’ NEPA required, as the district court so found and the agency itself now acknowledges. … There is no justification for abandoning our precedents on intervention in NEPA actions in order to prevent the government from taking a harder look at a massive policy change.”
Nevertheless, as a result of the appellate court majority’s decision, the Roadless Rule will remain in effect until and unless a full hearing on the merits determines implementation of the Rule violated NEPA. Given the appellate court’s ruling, the Roadless Rule is unlikely to be disturbed unless the U.S. Supreme Court agrees to hear arguments on the issue.
James M. Taylor is managing editor of Environment & Climate News.
For more information …
The 54-page opinion of the Ninth Circuit Court of Appeals is available in Adobe Acrobat’s PDF format through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for document #11377.