Woods and Forests

A comprehensive term for a large collection of trees in their natural setting and the property on which they stand.

Reinstatement of the Roadless Area Conservation Rule

The U.S. Forest Department's Roadless Area Conservation Rule (the "Roadless Rule"), 66 Fed. Reg. 3244; codified at 36 CFR pt. 212 (2001) prohibited logging, mining, and other development on approximately 58 million acres of America's wilderness in 38 states and Puerto Rico. Its main objective was to keep "roadless" certain areas of pristine woodlands and forests. Research has shown that roads running through wilderness areas create barriers that separate and fragment some populations of wildlife (that will not cross or breach human paths or roads). Roads going through wilderness areas also have been shown to detrimentally increase erosion and siltation of wetlands. Moreover, roadways that penetrate pristine lands often introduce invasive species to the forests that would not normally be found there, including certain weeds, pathogens (that may infect wildlife with no natural immunity to them) and fish illegally dumped by fishers.

As good as it sounded (polls showed that the general public supported the ban), there was plenty of controversy. Nearly 97 percent of the subject pristine wilderness (albeit federally-owned land) was located in 12 western states, and many governors and congressional delegations from those states opposed the ban on road construction. Professional foresters and forest products groups objected that it would be harder to man-age the national forests or restore the millions of acres in poor ecological health without roads. And how would firefighters reach forest fires?

Those concerns found their common voice in government when in 2005, the U.S. Department of Agriculture issued the State Petitions for Inventoried Roadless Area Management Rule (the "State Petitions Rule") (70 Fed. Reg. 25,654; codified at 36 CFR pt. 294). Under this Rule, governors in affected states were given 18 months to affirmatively petition the Secretary of Agriculture to request continued protection from road construction. (Originally slated for expiration on January 16, 2006, the Rule was extended for another 18-month period effective January 16, 2006.)

Upon its enactment, four states (California, New Mexico, Oregon, and Washington) and 20 environmental groups filed suit in the U.S. District Court for the Northern District of California. They sought repeal of the 2005 State Petitions Rule and reinstatement of the 2001 Roadless Rule. In September 2006, they won their case. U.S. District Court Judge Elizabeth D. LaPorte granted plaintiffs' motion for summary judgment. In so ruling, she set aside the State Petitions Rule, and reinstated the 2001 Roadless Rule. People of the State of California, ex rel. Lockyer v. U.S. Department of Agriculture, et al., No. 3:05-CV-03508-EDL (N.D.Ca. 2006). (This was the caption for two consolidated cases, California, et al. v. U.S. Department of Agriculture, et al., and Wilderness Society, et al. v. U.S. Forest Service, et al.)

The quintessential question before the court was whether the State Petitions Rule was merely procedural fine-tuning of the Roadless Rule, or whether it constituted a substantive repeal of the Roadless Rule. This determination would dictate whether or not defendants had violated federal law prior to enacting the State Petitions Rule.

Under the National Environmental Protection Act (NEPA) and the Endangered Species Act (ESA), governmental agencies are required to conduct research and issue a Final Environmental Impact Statement (FEIS) prior to implementing new rules affecting the environment. Although the Forest Service had incorporated numerous studies before implementing the 2001 Roadless Rule, the Department of Agriculture had not done this prior to implementing the State Petitions Rule. Judge LaPorte agreed with the consolidated plaintiffs that the 2005 State Petitions Rule violated federal law. Specifically, she ruled that the administrative department failed to undergo environmental impact studies before implementing the new rule. But this was not the final chapter in the Rules litigation.

As background, just when the Roadless Rule (that Judge LaPorte reinstated) was about to take effect in 2001, the U.S. District Court in Idaho granted a preliminary injunction that stopped its implementation. Environmental groups appealed the Idaho injunction and in December 2002, the Ninth Circuit Court of Appeals reversed the injunction. Two years later, in 2003, the Ninth Circuit issued a mandate ending the injunction and the Roadless Rule went into effect.

Not more than three months later, in July 2003, the Wyoming federal district court issued a nationwide permanent injunction stopping the Roadless Rule. In its ruling, it acknowledged the Ninth Circuit's decision (above), but noted that it had "limited persuasive value." (Wyoming falls within the jurisdiction of the Tenth Circuit Court of Appeals.) Again, the environmental groups appealed. But in 2005, before the Tenth Circuit could render an opinion, the State Petitions Rule went into effect. Bases on this, the Forest Service petitioned the Tenth Circuit to simply dismiss the appeal as moot, without rendering a decision. The Tenth Circuit agreed and dismissed without ruling (Wyoming v. U.S. Department of Agriculture, 414 F.3d. 1207 (2005).

The environmental groups then reorganized, joined with the four states, and the present consolidated cases (ruled on by Judge LaPorte) followed in the California district court.

Following LaPorte's judgment, the State of Wyoming began procedural initiatives to rein-state the district court's 2003 injunction of the Roadless Rule (never decided on by the Tenth Circuit). Meanwhile, the states of Idaho and Alaska also appeared to side with Wyoming. The governor of Idaho filed a petition to reopen much of its unroaded wilderness to logging and road-building. Additionally, Several anti-Roadless Rule organizations, e.g., American Council of Snowmobile Associations, Silver Creek Timber Company, United Four Wheel Drive Associations, etc., were expected to join. The states of North Carolina, South Carolina, and Virginia, which had smaller tracts of wilderness at stake, timely filed their petitions for continued protection under the newer Rule and had been approved.