The Road to Roadless: The Roadless Conservation Rule and the Tongass National Forest

In southeast Alaska there is an expanse of federally protected land larger than the state of West Virginia. It spans seventeen million acres comprised of thick forest that covers more than a thousand separate islands, as well as a stretch of Pacific coastline.[1] Within those trees are species that have long since disappeared from the rest of the country: brown bears, bald eagles, and wolverines among numerous others. In fact, as one of the world’s last remaining old-growth temperate rain forests, this national forest contains more biomass per acre than any other ecosystem.[2] It is also home to about seventy thousand people, including some who have called the forest home for the last ten thousand years.[3] This is the Tongass National Forest.

 

President Theodore Roosevelt set aside the forest reserve that would become the Tongass in 1902, primarily due to the value of its timber.[4] Up until World War II, the region’s economy was comprised of small business, fishing, and independent logging and milling.[5] During the 1940s, however, the U.S. Forest Service sought to transform southeast Alaska into a timber production capital. Tongass trees were transformed into wings on British planes and pulp to produce newspapers.[6] Later, the Tongass Timber Act of 1947 opened the forest to large-scale timber manufacturing, an industry still considered to be central to the Alaskan economy.[7]

 

While initially lucrative, Alaska’s timber and pulp industry has reduced dramatically in recent years. This is primarily due to public backlash against the industry’s impacts on indigenous heritage and biodiversity. Despite several major pieces of legislation in the late 20th century meant to protect the Alaskan wilderness, the Forest Service continued to subsidize the logging industry. In 2014, logging accounted for only 109 jobs in southeast Alaska but received $21 million dollars in subsidies from the Forest Service.[8] Meanwhile, the tourism and fishing industries account for a combined 17,000 jobs and approximately $2 billion in the local economy; together they received only $14 million from the agency.[9]

 

This tension between economy and biodiversity is why the Tongass National Forest has been at the center of a massive policy debate. One of the byproducts of the timber industry was the development of roads — over five hundred thousand miles of roads across the country — that fractured ecosystems and facilitated the expansion of logging.[10]  While the Wilderness Act of 1964 designated areas that were to be devoid of industry and roads, only 5.4 million acres of the Tongass actually qualified for protection.[11] The Alaska National Interests Lands Conservation Act of 1980 (ANICLA) established 104.3 million acres of additional parks, wilderness areas, and reserves, which seemed to further limit the timber industry’s ability to exploit regional resources. Alaska’s congressional delegation, however, managed to get a mandate into the bill: the Tongass paper mills would receive, at a minimum, 450 million board feet of lumber (1 million cubic meters), as well as a $40 million annual subsidy to promote the development of access roads to timber.[12] Congress took another ten years to pass the Tongass Timber Reform Act, which repealed the mandate and the subsidy.[13]

 

The conflict between loggers and conservationists culminated in 1999 with one of the Clinton Administration’s final policy acts: The Roadless Rule. In response to an increase in litigation from environmental groups as well as the increased costs of maintenance, the Forest Service’s Chief, Michael Dombeck, issued an 18-month moratorium on new road construction. The Tongass, however, was exempted from this moratorium.[14] When Clinton announced his intentions to make the moratorium permanent, the Forest Service issued a Notice of Intent for the Roadless Rule in October 1999, and issued its Draft Environmental Impact Statement in May 2000.[15] During the scoping phase of the assessment, the agency received over five hundred thousand comments, and over sixteen thousand attendees at its scoping meetings.[16] Citing the need to manage the national forest system as a whole and the litigious history of the issue, the Forest Service asserted Roadless’ authority on a national scale in its Record of Decision.[17] The final rule, enacted on January 1, 2001, prohibited “road construction, reconstruction, and timber harvest in inventoried roadless areas,” and was projected to impact “roughly one-third of all National Forest System lands, or approximately 58.5 million acres.”[18]

 

Due to the wide scope of its influence, the Roadless Rule has been bandied back and forth between the district and circuit courts for 16 years.[19] Most notable of the early suits was the challenge in the District of Wyoming. In July 2003, Judge Clarence Brimmer found that Roadless violated the National Environmental Policy Act (NEPA), the Wilderness Act, and the Administrative Procedures Act (APA). Judge Brimmer halted Roadless with an injunction.[20] An appeal was made to the Tenth Circuit, but the case was dropped when the Forest Service, then under the Bush Administration, repealed Roadless and implemented the State Petitions Rule in 2005. This new rule allowed states to submit their own forest management plans to the Forest Service for approval, rather than allow the Forest Service to implement a national plan.[21] Quickly after the switch, several states and environmental groups challenged the States Petition Rule in the Northern District of California. In late 2006 a judge held that the Forest Service had violated NEPA in the transition from Roadless to the State Petitions Rule. Roadless was put back on the books.[22] In 2007 Judge Brimmer issued another injunction against Roadless when the state of Wyoming renewed its case.[23] The enjoinment of Roadless continued until the Ninth Circuit affirmed the ruling from the Northern District of California and the Tenth Circuit reversed the District of Wyoming’s injunction in 2009.[24]

 

To complicate matters further, Alaska also sued the Forest Service over the Roadless Rule in 2001. To avoid fighting the battle on two fronts, the Forest Service decided to settle. In 2003 the agency agreed to exempt the Tongass from Roadless, at least until the Department of Agriculture determined how to best implement the rule in this economically significant forest. Considering the immense biodiversity placed at risk, it is unsurprising that the Forest Service’s exemption was challenged in court. Under allegations of APA and NEPA violations, the District of Alaska found the exemption arbitrary and capricious, and finally implemented Roadless in the Tongass in 2011.[25] After initially reversing the District of Alaska’s ruling in 2014, an en banc Ninth Circuit decided to affirm Roadless’ reinstatement in the Tongass in 2015. [26]

 

While environmental groups are celebrating, it is possible that Alaska will petition for a writ of certiorari from the Supreme Court. This would align with Alaska’s endeavor to repeal the rule nationally. In a separate suit against the Forest Service in 2011, Alaska was prevented from challenging the rule due to a six-year statute of limitations against challenges.[27] In November 2014, however, the U.S. Court of Appeals for the District of Columbia Circuit reversed. The judges agreed with the state that when the Northern District of California reinstated Roadless in 2006, the clock was reset, extending the filing deadline to 2012.[28] The case has been remanded to the District Court for the District of Columbia for further proceedings.

 

It may feel like the courts are beating a dead horse, but the resolution of this case may change the very landscape of North American environmental — perhaps even administrative — policy, and how we interact with, use, and preserve our most precious forest systems. Over these 16 years of litigation, Roadless has confronted a variety of issues beyond natural resource management, including state’s rights, indigenous heritage, and economic stability. As the United States pushes forward with last year’s agreement in Paris, it is important to remember that there is still an integral policy that has yet to be settled at home — one that could significantly alter our ability to fulfill our obligations from Paris.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

-Carolyn Weltman is a General Member on MJEAL. She can be reached at cweltman@umich.edu.

 

[1] Carolyn Servid & Donald Snow, Introduction, in Book of the Tongass 2, 7 (1999)

 

[2] Douglas Chadwick, The Truth About Tongass, National Geographic, July 2007, http://ngm.nationalgeographic.com/2007/07/tongass/chadwick-text/1

 

[3] United States Department of Agriculture, About the Forest, Tongass National Forest (last visited Jan. 22, 2016), http://www.fs.usda.gov/main/tongass/about-forest

 

[4] Jackie Canterbury & Cheri Brooks, Up the Inside Passage – Bridge to the Past, in Book of Tongass 14, 23 (Carolyn Servid et al. eds., 1999)

 

[5] Id.

 

[6] Id.

 

[7] Id.

 

[8] The Tongass Timber Subsidy, Audobon Alaska, http://ak.audubon.org/sites/default/files/documents/tongass_subsidy_fact_sheet_2014.pdf. (last visited Jan. 22, 2016)

 

[9] Id.

 

[10] Martin Nie, Administrative Rulemaking and Public Lands Conflict: The Forest Service’s Roadless Rule, 44 Natural Resources Journal 687, 696 (2004).

 

[11] Id. at 698.

 

[12] See supra note 2.

 

[13] Id.

 

[14] See supra note 10 at 700.

 

[15] Id. at 701.

 

[16] Id.

 

[17] Id. at 702-03.

 

[18] Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244.01 (Jan. 5, 2001).

 

[19] Daniel Timmons, Roadless Rule Litigation Reaching End of Road, Marten Law (Feb. 11, 2013) http://www.martenlaw.com/newsletter/20130211-roadless-rule-litigation#_ftnref3

 

[20] Id.

 

[21] Id.

 

[22] Roadless Rule Redux: Wyoming Federal Court Enjoins Roadless Rule (Again), Marten Law (Aug. 20, 2008) http://www.martenlaw.com/newsletter/20080820-roadless-rule-enjoined

 

[23] Id.

 

[24] Tangled Up in Blue – Ninth Circuit Resurrects Roadless Rule, Marten Law (Aug. 12, 2009) http://www.martenlaw.com/newsletter/20090812-roadless-rule-resurrected

 

[25] Id.

 

[26] Organized Vill. of Kake v. U.S. Dep’t of Agric., 746 F.3d 970 (9th Cir.) reh’g en banc granted, 765 F.3d 1117 (9th Cir. 2014) and on reh’g en banc, 795 F.3d 956 (9th Cir. 2015)

 

[27] Alaska v. U.S. Dep’t of Agric., 772 F.3d 899 (D.C. Cir. 2014)

 

[28] Id.

 

Leave a Reply

Your email address will not be published. Required fields are marked *