Alaska Roadless Rule: What About Hydropower and Rare Earth Minerals?

The Christian Science Monitor has a story on Alaska Roadless here.  I’m not an Alaska expert, but my Roadless Geek antennae started quivering when I read the the below bolded statements.

Lisa Murkowski, a Republican, is the state’s senior senator. Her opposition to the Roadless Rule is “not only about timber,” she says in a phone interview. She says the rule hampers access to mineral resources and hydroelectric sites. The goal, she says, is to “make sure people can actually access the region.”

Mr. Watson, the former Craig mayor, hopes that a new mine extracting rare earth metals, elements in demand for electronics and high performance magnets, will soon open at an inaccessible site on the island, the first such mine in the U.S. But he says red tape could slow approval of a road to the location, even though the Roadless Rule permits transportation corridors in support of such nonlogging activities. “We’d like to have things happen on this island that will allow us to survive,” he said.

Eric Jorgensen, managing attorney of EarthJustice’s Alaska office and veteran of more than a dozen lawsuits countering challenges to the Roadless Rule, says Mr. Watson’s and Sen. Murkowski’s concern is “not based in reality.” He says that “even if red tape were a problem, that would not be a rationale for gutting the rule,” as the Forest Service could solve that issue without allowing new logging roads.

Since we had issues and even litigation about a linear construction zone for a pipeline under the 2001 Rule, I was surprised that the writer (or perhaps Mr. Watson?) said that the 2001 Roadless Rule “permits transportation corridors in support of such nonlogging activities.” It almost sounds as if only “logging” roads are not allowed by the 2001 Rule.

Here’s what the Rule says exactly. It’s short and simple.

§ 294.12 Prohibition on road construction and road reconstruction in inventoried roadless areas.
(a) A road may not be constructed or reconstructed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.
(b) Notwithstanding the prohibition in paragraph (a) of this section, a road may be constructed or reconstructed in an inventoried roadless area if the Responsible Official determines that one of the following circumstances exists:
(1) A road is needed to protect public health and safety in cases of an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property;
(2) A road is needed to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or to conduct a natural resource restoration action under CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;
(3) A road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty;
(4) Road realignment is needed to prevent irreparable resource damage that arises from the design, location, use, or deterioration of a classified road and that cannot be mitigated by road maintenance. Road realignment may occur under this paragraph only if the road is deemed essential for public or private access, natural resource management, or public health and safety;
(5) Road reconstruction is needed to implement a road safety improvement project on a classified road determined to be hazardous on the basis of accident experience or accident potential on that road;
(6) The Secretary of Agriculture determines that a Federal Aid Highway project, authorized pursuant to Title 23 of the United States Code, is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no other reasonable and prudent alternative exists; or
(7) A road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease by the Secretary of the Interior as of January 12, 2001 or for a new lease issued immediately upon expiration of an existing lease. Such road construction or reconstruction must be conducted in a manner that minimizes effects on surface resources, prevents unnecessary or unreasonable surface disturbance, and complies with all applicable lease requirements, land and resource management plan direction, regulations, and laws. Roads constructed or reconstructed pursuant to this paragraph must be obliterated when no longer needed for the purposes of the lease or upon termination or expiration of the lease, whichever is sooner.
(c) Maintenance of classified roads is permissible in inventoried roadless areas

In Colorado, we didn’t see any exceptions for dams (except when their condition is “imminent threat” of flooding)- we had quite a discussion about how this might be defined (!) and addressed in the state-specific Rule. Perhaps the mine under discussion is a patented claim so there would be access? The Forest Service has been litigated successfully for approving road building for patented mining claims (in this case, within the Frank Church Wilderness) and made the Forest Service do extra analysis (not sure what’s happening with this now.)

It seems reasonable to me to question whether the 2001 would allow roads for new hydroelectric facilities or mines. Conceivably, rare earth mines and hydropower are new uses that have increased in importance since 2001 and are also positive in terms of carbon mitigation. Perhaps a mine could be accessed by water. Does anyone have more information on this?

25 thoughts on “Alaska Roadless Rule: What About Hydropower and Rare Earth Minerals?”

  1. Pretty much all you need to know is that R-10 (Alaska) has found a way to exempt ALL of the 58 requests since 2001. This strongly suggests that the Roadless Conservation Rule is NOT an impediment to non-timber road construction.

    • That’s fascinating, Jim. Thanks for the info… do you have any project names I could look up? Like I said, R-2 was litigated about a not-road (construction zone) in a Roadless area under the 2001 Rule.

      • The national roadless rule exception (3) relates to roads allowed by statute, and my understanding is that the FS in AK has taken the position that the 1872 Mining Law provides for access to minerals, including roads in some cases.

        The preamble to the 2001 Rule addresses this issue:

        “Access for the exploration of locatable
        minerals pursuant to the General
        Mining Law of 1872 is not prohibited by
        this rule. Nor is reasonable access for
        the development of valid claims
        pursuant to the General Mining Law of
        1872 prohibited. In some cases, access
        other than roads may be adequate for
        mineral activities. This access may
        include, but is not limited to, helicopter,
        road construction or reconstruction, or
        non-motorized transport. Determination
        of access requirements for exploration
        or development of locatable minerals is
        governed by the provisions of 36 CFR
        part 228.”

        The R2 case related to whether an access route to build a pipeline, which route had a designated passing lane, constituted “road construction.” The 10th Circuit ruled it was pipeline construction, which the Rule does not specifically bar, and not road construction. That decision is here:

        • Thanks, Ted! I really appreciate your expertise. That would cover new locatable minerals, do you have any thoughts on the hydropower and why roads to new dams could be allowed?

        • Also, do you think it would be different than the Wilderness mining case I mentioned, in which a judge might request analysis of a non-roaded alternative? It does seem like even though it would be legal to do it, there could be similar hold-ups due to litigation.

          • Interestingly I found this on the Earthjustice timeline..
            SEPTEMBER 12 (2008)
            Earthjustice attorneys file a challenge to an expansion of the Smoky Canyon phosphate mine in Idaho—an expansion into two roadless areas.

            Was that an 1872 Mining Act issue?

            Note to others.. during the Idaho Roadless Rule (state-specific rule which has held up in court) hosphate mining in some areas was an issue. Here’s what the Idaho Rule says.

            So it appears that litigation over the phosphate mine extension may have been dealt with by rulemaking in the Idaho Roadless Rule.. so it’s not just Alaska that considered the Roadless Rule a potential issue. I’m sure if you are a LIEG, the more potential legal hooks for projects you don’t want, the better. On the other hand if you want the project, you don’t want a project exposed to unnecessary legal hooks. That’s one reason Colorado changed the inventory so that areas within ski area boundaries were removed from the Roadless inventory. This seems like natural governmental co-evolution to me.

            • Sharon:

              Phosphates are a “lease-able” mineral (like coal) under the 1920 Mineral Leasing Act, and not locatable under the 1872 Mining Law (like rare earth minerals). See (describing phosphates as lease-able). B/c the FS has discretion whether or not to consent to the mining of lease-able minerals under the MLA, exception (3) to the Roadless Rule would not apply (b/c there is no “right” granted by “statute” for anyone to mine lease-able minerals).

              Re: hydropower, the FS has taken the position that access for hydro installations in Alaska do not violate the Roadless Rule, relying on a U.S. district court decision from Alaska and the Federal Power Act. And, as Jim Furnish correctly noted, the FS has approved many such projects in roadless. See this FS Q&A doc from 2014: (explaining that roads for hydro can be, and have been, approved in Alaska due to court and FPA authority, and that “As of January 2018, 57 projects within roadless areas in Alaska have been submitted for Secretarial or Chief’s review and all have been approved,” including 38 mining projects and 10 hydro or intertie projects).

              This confirms that the proposed Alaska Roadless Rule is all about accessing old growth timber for commercial logging.

  2. My personal view is that the FS has, generally speaking, bent over backwards to allow activities in roadless areas, to ensure that the effect of the rule is non-binding. Alaska, in particular, has approved dozens of exemptions without exception. I think this has much to do with the FS’s internal antipathy to roadless area protection. The FS, in conjunction with USDA, sought to eliminate the rule, developed the state petition process, and DOJ did not even defend the rule and FEIS/ROD in litigation. The back stop has been the COURTS which have for years relied on the RECORD developed by the FS in 2000, and the stout defense of the rule by environmental interests — as will be the case again in Alaska if the FS capitulates to the “arbitrary and capricious” whims of Trump and Perdue.

    • Jim, “bent over backwards” is not my experience. In fact, when the 2001 Rule was not in force (at least in our circuit), we had to submit our projects to DC, where they wouldn’t be approved unless they were within the bounds of the Rule. I wondered whether this was contempt of court, but figured there are real lawyers somewhere above me that were considering that question.

      This caused some consternation when we had a road reconstruction project at a campground on the edge of roadless area and rerouting the road out of the creek would go into the roadless area. We figured it was OK because it was reconstruction and LIEGs (litigiously inclined environmental groups) did not seem concerned. But it languished in the pile of projects in DC to be approved for a while until we pointed out that the money for it had already been announced as a “shovel-ready” stimulus project. Then, after a series of briefing papers and some discussions, it got approved.

  3. About ID — I had retired, but analyzed Idaho Roadless EIS and viewed making big accommodations to allow phosphate mining as a “bad buy” — it would benefit large industrial fertilizer manufacturers (ADM) and, really, do we need MORE artificial fertilizer at the expense of roadless values? Once again, environmental values lose at the hands of commerce. I’d have turned thumbs down had I still been Dep Chief.

    • I’m not sure that that decision was made at the Deputy Chief level. For Colorado it seemed like it was mostly the Chief and higher levels. Direction seemed to go from the Chief to the RF at least during the Obama administration (we also worked on it in the Bush administration). I’m sure that there were levels above telling the Chief what to tell us as well, but I never knew which was which (Chief or politicals) nor did I particularly care.

      FWIW one of the things we did in Colorado was “swap out” “real” (unroaded acres not in IRAs) for roaded acres in IRA’s so we ended up with a net plus roadless acres in Colorado Roadless. I know that the environmental group position was “keep ’em all”- ones with roads and the “new” ones- but at the end of the day we had more roadless acres than before, so the idea of losing roadless acres was different. they were swapped, not lost.

      Our wise Lands and Minerals Director, Randy Karstaedt, used to say “the problem with minerals is that they’re never where we want them to be, and we can’t move them.”

  4. I’m not suggesting I would have been the “decision-maker”, only that my input would have been “No”. The net plus on roadless acres in CO was a good move. When has the FS ever usually put the minerals industry on the defensive and required them to sue the FS to win the right to mine? Think about it … how much more GOLD do we really need. Rare earth minerals and strategic minerals that may have national security concerns are different in my view.

    • This is one of the convos that in my experience would end up with lawyers talking about the 1872 Mining Act and what it allows the Executive Branch to do or not do.

      It doesn’t seem to me that the Forest Service has the ability to pick winner and loser industries based on their view of relative desirability, but I could be wrong.

  5. You can’t be serious, or that naive… That’s what agencies do – pick winners and losers. It’s almost the definition of decision-making. And in most big mining issues (at least until recently) the FS has “sided” with industry and then allowed the fight to play out in court. My point is: why not take the opposite tack? Say “No” to mine (think Pebble, Boundary Waters, copper mine on Tonto — there are legion reasons why) and let industry make their case in court, while DOJ mounts a robust defense. Historically the FS has been a patsy for mining industry.

    • But Jim, is that really the Forest Service making the decisions? Seems to me that saying “no” would be something some Administrations want to do, and other Administrations not. Mining projects, in my experience attracts politicals like magpies to carcasses. It seems to me that that is the hard part of being Chief or any political position (or really any position)- knowing when to submit and when you can make a difference. Like any relationship, you only have so many cards to play. I’m not about to second guess what any FS Chief should do and how they should play their cards. But that’s because I’m not good at reading tea leaves myself.
      As to picking winners and losers, for a unelected bureaucrat to decide “its OK to have environmental impacts for lithium but not gold” when there’s nothing in statute or regulation, to me is the very essence to something best left to politicals and DOJ.

      I don’t think I’m naive, but I did spend many years in DC and saw many things from a variety of positions in the FS, at USDA, and on the Hill, and at the White House on details. I never had a powerful position such as yours, but was in the trenches there for many years. I’d characterize my experience as “different” from yours.

  6. My point is that deliberations usually BEGIN with the position of the agency. FS has no shot at creating credibility on wariness about major mining proposals if the starting position is “Just say Yes”

  7. Whether it’s the agency or the administration making the decision, the effect of the government taking a position is to put a thumb on the scale that a court would use to review the decision. Judicial deference to the agency on substance stacks the deck in their favor. (Of course they can fail at the required procedures, as this administration is aptly demonstrating.)

  8. In this particular case, circling back to ID Roadless, it was the FS that elected to put roadless areas with phosphate potential into the bargain. The suggestion no doubt came from industry through the Gov’s office, but I’m suggesting the FS should have rejected it. Again – agri-business fertilizer vs roadless values is a bad bargain in my view. This possibility never even came up as an issue in ID when the original Roadless Rule was developed. The State petition process, engineered by Undersecretary Mark Rey as an end-run when early efforts to scuttle the Rule were beaten back by unsuccessful litigation, opened the door to political partisan tampering. It reached its nadir recently in Alaska when FS financed much of the State’s effort and Trump intervened (probably illegally).

    • Do you think it would have been OK if Idaho had swapped out that IRA for more desirable areas that had been overlooked during the 2001 rule-making process like Colorado did?

  9. Would have been much better, especially if it was better than 1:1 acres AND they moved high value or at risk acres into roadless coverage.

  10. After Colorado swapped out and added acres, they left an area in the roadless acres but put restrictions
    “For the Final Rule, there are 19,100 acres where temporary roads may be allowed, mostly to facilitate underground coal mining activities, including methane venting for miner safety. The roads will not be open to the public and are expected to be in place three to five years; after
    which they will be decommissioned to restore the landscape following use. Of the 19,100 acres in the North Fork coal mining area, 4,000 have existing coal leases.”

    This is all very complicated, and I retired before it was finished but this part of the rule is still being litigated as far as I know.

    It’s interesting that both the Hickenlooper and Obama administration signed off on it, but the deal that was done can’t be carried out due to litigation by NGO’s. My point being that you and I could agree about swapping out, but it wouldn’t matter if NGO’s are holding the cards.

  11. to which I would only ask: just how much more coal do we need, and should the FS be in the business of driving down that dead end street?

    • Jim, that’s a great question. There are different ways of looking at it. Right now and for the foreseeable future the US uses much coal EIA has data of all for 2018 . So, where should we get it? Well, first it has to be there, and it’s on both private and federal land. So we could get it only from private- but that has pros and cons. Or we could get it from other countries, but that has pros and cons.

      We essentially face the same problems for solar and wind development. Should it be on private or federal land? Conceivably we could protect our environment and get it from somewhere else? Again pros and cons.

      So that’s one way of looking at it. The other is “does the FS set energy policy or is that a broader question- for the Sec of Energy perhaps?” Ideally, most of us would think that agencies such as the EPA, DOE and the land management agencies would work together to figure that out. We once had a meeting with the land management agencies and CEQ at which the land management NEPA people thought the climate change impacts of fossil fuels should be analyzed at point of use, not of production. It seems though as though there might not be a federal nexus for that (???). Markets are such that substitution is unknown, although the courts want agencies to analyze it. Even though markets shift faster than a court case is usually finished.

      The question is the same for solar and wind. If an Administration decides they go on federal lands, and Congress doesn’t disagree, then the FS and BLM will (continue to) site them. Until told not to.


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