The Bush Administration announced on June 9, 2003, major changes in the Roadless Area Conservation Rule. The changes amount to a devastating one-two punch to national forest roadless area conservation, completely eliminating the Roadless Rule's protection for roadless areas in the Alaska and severely weakening the Rule everywhere else in the National Forest System. As discussed below, some of the Administration's characterizations, explanations, and justifications for the changes are highly misleading and inaccurate.
This brief analysis is based primarily on information in the Department of Agriculture's news release, fact sheet, and Q&A document.
Proposed Changes
First, the Administration announced that, rather than issue any further interim direction on roadless area management, it will amend the Roadless Rule to establish a process for carving out exceptions to the Rule for individual states. Under the proposal, any governor can request a "waiver" from the Rule's prohibitions for various specified reasons. Most important, waivers could be obtained for the purposes of "reducing hazardous fuels and restoring essential wildlife habitat." These changes would greatly expand the Roadless Rule's current exceptions for cutting of small-diameter trees to reduce fire risk or improve endangered species habitat. The Administration intends to propose the nationwide rule amendment in the fall and finalize it by the end of 2003.
Second, the Administration said it will completely exempt Alaska's Tongass and Chugach National Forests from the Roadless Rule. The exemption will settle a lawsuit filed by the State of Alaska and the timber industry, which alleged that the rule violated the Alaska National Interest Lands Conservation Act. The exemption of the Tongass will be fast-tracked, with a temporary rule to be proposed in the next few weeks followed by a truncated public comment period of 30 days and then publication of a final rule in September.
Analysis
Much of the information distributed yesterday by the Administration is seriously misleading or inaccurate. Following are some of the most glaring problems.
The Administration Is Not "Retaining" the Roadless Rule
The headline of the Administration's press release -- "USDA Retains National Forest Roadless Area Conservation Rule" -- is highly misleading. In reality, the Administration is fundamentally altering the Roadless Rule by entirely exempting the Tongass and Chugach National Forests, which contain one-quarter of all Forest Service inventoried roadless land, and establishing an exemption process for other national forests.
Exemption for Hazardous Fuels Reduction Projects Is a Huge and Counterproductive Loophole
The Administration downplays the significance of the exemption process, saying that Governors can only seek relief for "exceptional circumstances" and that only "a relatively small portion" of the roadless areas will be eligible for exemptions. However, the exemption for "reducing hazardous fuels" could apply to millions of acres. The Bush Administration has declared that 190 million acres of federal land need to be treated to reduce hazardous fuels. While less than 1 percent of roadless areas are located near communities considered at risk from wildfires, the Administration has made little effort to prioritize fuel reduction work near communities. Thus, the exemption could be applied to vast areas of roadless land located many miles from any community.
The hazardous fuels exemption is also unnecessary and counterproductive to reducing wildfire risk to rural communities. The existing Roadless Rule already allows the Forest Service to thin small-diameter trees for the purpose of fuel reduction, so long as it can be accomplished without building new roads (36 CFR 294.13(b)(1)(ii)). The Bush Administration's proposal will expand that exception to allow road building and logging of large trees, which would likely increase rather than reduce fire risk. According to the Forest Service's environmental impact study of the Roadless Rule, fires are much more common in areas with roads than in roadless areas.
Existing Rule Already Provides Exceptions for Health, Safety, and Access
To justify the need to amend the Roadless Rule, the Administration wrongly portrays the Rule as inflexible and overly restrictive. For example, the Administration claims that the Rule needs to be amended to allow exceptions for protecting public health and safety and providing access to private property. However, the Roadless Rule already contains exceptions for public health and safety and for access to private property (36 CFR 294.12(b)).
Reliance on Governors Is Misplaced
The Administration's unprecedented proposal to give individual state governors authority to request waivers from the Roadless Rule abdicates federal responsibilities to manage the national forest roadless areas for the benefit of all Americans. The federal government does not tell the states how to manage state forest lands; likewise, states should not become co-managers of national forest roadless areas. State governors are not qualified to represent the national interest in roadless area conservation, nor do they necessarily have the information and expertise at their disposal to make scientifically sound judgments about national forest roadless area management. Wyoming Governor Dave Freudenthal called the Administration's roadless proposal an "unfunded mandate... It means the state will have to develop significant expertise in forest planning that we don't really have."
The Roadless Rule Does Not Violate ANILCA
In explaining why it settled the State of Alaska's lawsuit, the Administration erroneously suggests that the Roadless Rule may have violated the Alaska National Interest Lands Conservation Act (ANILCA). The State of Alaska's case relied primarily on an extremely expansive and unprecedented interpretation of the "no more" clause of ANILCA (section 101(d)), which declares that ANILCA strikes a reasonable balance between natural resource utilization and preservation and that no additional "conservation system units" need to be established.
However, the roadless areas protected by Roadless Rule clearly are not conservation system units, which are specifically defined in ANILCA. In fact, in its responses to public comments on the Roadless Rule, the Forest Service rejected the argument that the Rule violated ANILCA, stating, "The Forest Service has addressed agency legal requirements of the ANILCA.... [T]he proposed rule does not seek to establish Conservation System Unit(s) as defined by ANILCA." (Roadless Rule FEIS, Vol. 3 (Response to Public Comments), p. 191).
Thus, it is obvious that the Administration is simply using the State of Alaska settlement as legal cover for what is a patently political deal to benefit the timber industry at the expense of the incomparable scenic and ecological values of the Tongass and Chugach National Forests.
Administration's "Sue and Settle" Strategy Violates Public Trust
The Alaska court settlement is the latest egregious example of the Administration's unethical "sue and settle" strategy to undermine sound environmental policies that enjoy enormous public support. Other examples include settlements to allow more logging of old-growth forests in the Pacific Northwest, permit more snowmobile use in Yellowstone National Park, and halt wilderness inventories by the Bureau of Land Management.
The Roadless Rule has been the unfortunate target for the Bush Administration's underhanded legal tactics. Despite Attorney General Ashcroft's promise to uphold and defend the Rule, the Administration schemed to defeat the Rule by failing to defend it in court.
The Changes Contradict Recommendations of the Forest Roads Working Group
The Administration falsely implies that the Rule changes are based on the recommendations of the Forest Roads Working Group, which includes representatives of the timber industry, wildlife managers, and the recreation industry. The Administration's Roadless Questions and Answers states, "In addition, the Department considered the recommendations on the management of roadless areas submitted in March of 2003 from the Forest Roads Working Group."
To the contrary, the FRWG recommended that the Administration should halt its effort to amend the Roadless Rule and instead should appoint an advisory committee to oversee implementation of the Rule. The group's report states, "[T]he FRWG recommends that the Service (1) postpone the rulemaking process commenced by its July 10, 2001 Advance Notice of Proposed Rulemaking for several years; (2) leave the Roadless Area Conservation Rule substantially unchanged in order to gain experience, information and policy insight from its implementation; and (3) establish an advisory committee" to identify issues, gather data, and suggest improvements.
For More Information
