FORESTS: Report suggests Congress resolve roadless rule before case reaches Supreme Court (04/21/2011)
Phil Taylor, E&E reporter
A decade-long, litigious battle over how to manage the nation’s remaining roadless forests may have to be decided by Congress, according to a report issued this week by the nonpartisan Congressional Research Service.
The 19-page report suggests the ongoing legal battle over the Clinton administration’s controversial 2001 roadless rule could also be solved if the Obama administration promulgates its own rule for managing the nation’s remaining unspoiled forests.
The Obama administration could also follow the lead of the George W. Bush administration, which allowed states to petition for their own roadless plans rather than follow the national model, the report suggests. The Bush plan was panned by conservation groups and found to be unlawful by the 9th U.S. Circuit Court.
At issue is the fate of 58 million acres of relatively pristine forests — roughly a third of the national forest system — where the Clinton administration banned most road construction and timber harvesting.
The rule could face conflicting legal opinions from the 9th and 10th circuit courts, setting the stage for a possible Supreme Court case, the report warns.
“The ultimate decision of which roadless rule applies may not be in the courts, unless it is brought before the Supreme Court, but by Congress,” the report said. “The contradictory court decisions may indicate a statutory fix is needed.”
The report notes that the Clinton rule was upheld in 2009 by the 9th Circuit but that the 10th U.S. Circuit Court of Appeals is still considering a Wyoming court’s decision overturning the rule on the grounds that it violated the National Environmental Policy Act and created de facto wilderness, which only Congress can declare.
“This could lead to a conflict between the two circuits with one saying the nationwide rule is valid nationwide, and another saying the contrary,” the report says.
However, the report cites language in both the Multiple Use Sustained Yield Act and National Forest Management Act that gives the Forest Service authority to manage areas as wilderness and assure the protection of watersheds, wildlife and recreational opportunities. The report did not say whether the Clinton rule restrictions violate a separate mandate to maintain productive forests.
Rep. Jay Inslee (D-Wash.) and Sen. Maria Cantwell (D-Wash.) last Congress introduced a pair of bills to make the Clinton rule protections permanent and resolve the ongoing legal battle (E&ENews PM, Oct. 1, 2009).
The bills would allow for continued forest management to promote forest health, preserve public access to existing roaded areas and ensure continued opportunities for hunting, fishing, hiking and other forms of outdoor recreation, according to the lawmakers.
“Numerous lawsuits have tracked the roadless rule’s course, both in favor and opposed,” Inslee said on the House floor at the time. “This legislation will permanently protect our nation’s roadless areas and remove all ambiguity concerning their conservation and protection.”
Staff for both Inslee and Cantwell this morning did not immediately say whether the lawmakers planned to reintroduce the proposals in this Congress.
While Inslee’s bill carried several Republican co-sponsors, such a measure would likely face heavy resistance in the current Republican-led House, where some members have pledged to roll back Obama administration policies they say have locked up federal lands.
Greenwire obtained the CRS report from the office of Rep. Kevin McCarthy (R-Calif.), who last week introduced a bill to release the majority of inventoried roadless lands into multiple-use management, which could include timber, oil and gas development or other road-dependent uses ( E&ENews PM, April 15).
McCarthy’s bill, H.R. 1581, calls for the reversal of the 2001 roadless rule and would open up roughly 49 million acres to logging, road building and extractive uses, according to critics.
The bill has 22 Republican co-sponsors including National Parks, Forests and Public Lands Subcommittee Chairman Rob Bishop (R-Utah), and Western Caucus Chairman Steve Pearce (R-N.M.).
Conservation groups have slammed the proposal, calling it a threat to the “last refuge” of many of the nation’s wildlife species.
“This bill threatens to kill off wide-ranging species that just cannot survive in the developed landscape,” said Earthjustice attorney Tim Preso, in a statement. “We are talking about grizzly bears, wolves, elk, and bighorn sheep. The bill would also remove protections for some of our last, best fisheries, including blue-ribbon trout streams and some of the last available spawning habitat for imperiled wild salmon.”
In the meantime, Agriculture Secretary Tom Vilsack said he will decide which timber or road building proposals are allowed to go forward in roadless areas on a case-by-case basis.
Last May, he authorized 14 road construction projects to honor pre-existing mining claims and to allow the construction of methane vents in Colorado coal mines located underneath roadless areas (Greenwire, May 13, 2010).