In the possibly least surprising news ever in our world, the Alaska Roadless Rule has been reinstated. Because Roadless geekhood is part of my lived experience, and because we can’t really expect reporters to understand the ins and outs of Roadless, I’ll take a stab at explaining it in some detail, because I think some interesting points were missed in the news coverage I saw.
First, a question for our legal TSW folks:
If a District Ranger said specifically what she wanted to do, in say the details of a NEPA project, and announced it in advance, that would be considered “pre-decisional” and we were told that was not a good thing to do; not sure if it’s actually illegal or just bad NEPA practice, or doesn’t build trust with the public.
However, the President said very clearly that he wanted to reinstall the Alaska Roadless Rule specifically. So that seems pre-decisional also..unless Presidents don’t follow the same rules. But his (in this case) ideas are carried out via the regulatory process. So is pre-decisional only an issue for projects and not regs?
First, they made a new decision from the old EIS, which is great for not making FS employees and others do more work when the ultimate outcome was known. So kudos to the Admin for that!
Why Did it Take So Long?
Looking at their project site, it looks like they did an ANPR on November 23, 2021. I couldn’t find the reading room for the ANPR comments, so I don’t know how many they had.
Now, you might say, this is 2023, why did it take so long? I’d be interested in hearing from anyone who knows the answer. There were a set of other decisions announced at the same time, and I heard much pressure from ENGOs recently, so maybe they were saving it for an opportune time.
Anyway, here’s the link to the Final Rule.
Which Alternative was the Environmentally Preferred and Why?
What interested me was Alternative 2, which according to the summary in the text:
Alternative 2 provided limited additional timber harvest opportunities in comparison to Alternative 1 by removing protections from certain areas designated as roadless in 2001 while maximizing protection for unroaded
areas by adding other Roadless Area designations. It removed from roadless designation approximately 142,000 acres that were substantially altered by road construction or timber harvest conducted during periods when the Tongass National Forest was exempted from the 2001 Roadless Rule.
Alternative 2 also would have added 110,000 acres of unroaded lands as Alaska Roadless Areas that were not designated by the 2001 Rule, and by extension, remained undesignated in Alternative 1 (the 2020 Rule).
Now, Alternative 2 was designated the Environmentally Preferable Alternative
As described in the 2020 Alaska Roadless Rule decision, Alternative 2 has been determined to be the environmentally preferred alternative, although the environmental benefits of Alternative 2 in comparison to Alternative 1 are minor. While Alternative 2 would designate and manage slightly fewer acres (approximately 32,000 acres) as Alaska Roadless Areas relative to the acres of Inventoried Roadless in Alternative 1, it would increase conservation of roadless characteristics and values because all the acres designated and managed as Alaska Roadless Areas under Alternative 2 are undeveloped at this time. Specifically, Alternative 2 would remove the roadless designation from 142,000 acres that are designated as Inventoried Roadless Areas under Alternative 1, but have already been roaded, harvested, or substantially altered, and therefore do not currently possess the roadless characteristics and values the 2001 Roadless Rule is intended to conserve. At the same time, Alternative 2 would designate as Alaska Roadless Areas approximately 110,000 acres that are undeveloped land but that were not designated as Inventoried Roadless Areas under the 2001 Rule and, by extension, are not designated as such in Alternative 1. Alternative 2 limits timber harvest opportunities, road construction, and road reconstruction, on the most acres of undeveloped land out of all the alternatives considered.
All other action alternatives considered in the 2020 FEIS involve sizeable roadless area reductions. For this reason, Alternative 2 is the environmentally preferred alternative.
For those of you who aren’t familiar with this stuff, the 2001 Rule included lands that were logged and roaded, because of the problems with the maps at the time and the process that they used (including being in a hurry). Knowing that, they put an exception in the 2001 Rule for these areas (the term of art is “substantially altered” but you can substitute Roaded Roadless without any loss of meaning.)
If you look at §294.12, you’ll find that you can maintain classified roads in roadless areas, and also reconstruct them but only if there are environmental threats.
and for timber harvest §294.13 (b) 4: Roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest. Both the road construction and subsequent timber harvest must have occurred after the area was designated an inventoried roadless area and prior to January 12, 2001. Timber may be cut, sold, or removed only in the substantially altered portion of the inventoried roadless area.
In simple language, the 2001 Rule allows continued maintenance of roads (and reconstruction for environmental problems) and timber harvest on “substantially altered acres.”
So back to Alternative 2. It sounds like the idea was to swap out “Roaded Roadless” for new “Unroaded Roadless ” acres. This is what the Colorado Rule did. Given that explanation, let’s go back to why Alternative 2 was designated environmentally preferred . It would take the 142K acres already roaded, harvested, and substantially altered out, and designate 110K new Unroaded Unharvested acres to put under new Roadless protection. So that is how the Department concluded:
Alternative 2 limits timber harvest opportunities, road construction, and road reconstruction, on the most acres of undeveloped land out of all the alternatives considered.
My next post will talk about the Department’s stated rationale for not selecting the environmentally preferable alternative in this case.
If you have any questions or corrections please put them in the comments. This is complicated stuff!
9 thoughts on “Alaska Roadless Rule: The Biden Administration Did Not Select the Environmentally Preferable Alternative: I. The Alternative Not Chosen”
“It removed from roadless designation approximately 142,000 acres that were substantially altered by road construction or timber harvest conducted during periods when the Tongass National Forest was exempted from the 2001 Roadless Rule.” This would be different from the map errors you alluded to with the original Roadless Rule.
As for your “pre-decisional” question, I think the bar there is pretty high. The agency gets to lay out its “proposed action” prior to the NEPA process. NEPA is a procedural statute, and I think the only time a court would find a problem with this is where there has been some kind of commitment made towards an outcome that makes it likely that information from the NEPA process would be ignored. The specific example I can think of is contractual commitments to third parties. (Not something I’ve dealt with directly; maybe someone else has.)
Yes, well… there are actually three different things.. with regard to the original mapping:
Because of maps and (random forest decisions on mapping) it turns out that there are two mapping issues.
1. Unroaded that should have gone in to the maps
2. Roaded that arguably should have not been included.
Now, perhaps there’s someone out there who can explain exactly why areas that even today are uncut and unroaded were not included. Bad maps at the time? Random errors?
Between 2001 and today, there were times that the 2001 was enjoined by the 10th circuit as I recall. But during the Obama Admin we were told to have projects reviewed by the WO.. and none were ever allowed to go forward that were not allowed by the enjoined Rule. This did not seem legal to me, but what do I know?
Then there was what we might call the Trump decision. And the Region didn’t do anything against the Rule during that time period. So… as you say, this number of acres is quite puzzling. I will ask the Region.
The “predecisional” issue can arise in a couple of ways. One, as Jon mentioned, is that NEPA prohibits the “irreversible or irretrievable” commitment of resources before the NEPA process is complete. Maybe the easiest way to violate that provision is for the agency to enter into a contract to, say, build a road before the decisionmaking process is completed.
The other way it comes up is when a court holds that the agency considered an impermissibly narrow range of alternatives in its NEPA analysis because it had predetermined the result. This very outcome occurred regarding the first iteration of the roadless rule.
This is one of the more incendiary opinions I’ve ever read, and the 10th Circuit was no doubt relieved when the Bush admin agreed to rewrite the rule, allowing the appellate court to vacate the district court decision. The district court did not provide much legal support for this aspect of its opinion, and I have some doubts that this holding would have survived on appeal if the 10th Circuit had reached the merits.
Thanks for this, Rich and Jon!
However it’s very confusing to me. So people can say “hey I’m going to pick this alternative” in advance, and it’s not illegal, but just poor form and bad “dealing with the public” practice unless you’re a political figure?
There may be a couple of other things to think about. One is that is that NEPA regs specifically authorize the deciding official to select a preferred alternative, and while this is not required, agencies typically do so in the DEIS (or at least typically in my experience). Indeed, on those occasions when the FS has not done so it has sometimes come in for criticism for being insufficiently transparent. But only the deciding official can select the preferred alternative – most agency employees probably shouldn’t be discussing that publicly beyond what the deciding official has (or has not) said.
And then there’s the issue of specificity – the project or action generally should be defined with sufficient clarity to enable the agency to perform useful analysis and receive informed comment, but not so specific that it forecloses entirely all but a single manner of carrying it out.
This may all sound a bit hazy, but in my experience these are not the NEPA issues that agencies typically struggle with (though I’ve seen only a small part of this elephant so others may have different views). (Agencies do struggle with the range of alternatives, but the argument there generally centers on analytical adequacy rather than on the existence of predecisional bias.)
I was just on a MOG Zoom with a fellow named Blaine Miller-McFeeley of Earthjustice. He said that the Secretary’s statement that timber harvesting is not a threat in the Secretary’s order was predecisional (not sure exactly what the Sec’s memo said).
The MOG is supposed to go to a rulemaking so it seems like almost the same thing as Alaska Roadless in terms of legal status.
So now I’m really confused.
Just literally reading what you have written, what is a “threat” is not a “decision.” It could be the scientific information on which a decision is based, tending to get judicial deference unless the agency ignored relevant contrary information.
I think Blaine’s point was that 1) the Sec wrote a letter about MOG
2) at some point there will be a rulemaking with environmental docs including beaucoup science, 3) he already said in his letter that he held some views about it. (I don’t have the exact quote in the Sec’s letter).
Well, harumph… having been “in the room” with the Chief (as Dep Chief at that time) when Brimmer issued his infamous “Roadless is really Wilderness” decision, I can tell you Brimmer received a favorable audience among many in the FS, incl FS staff who’d been assigned temp duties at USDA Nat Res office to help Dave Tenney, acting Undersecy. I sat there a bit incredulous hearing the brief for the Chief. I walked away accompanied by an OGC atty, and offered my opinion (see Rich J above) that Brimmer’s take was among the more incendiary opinions on record (not to mention biased, irrational). To which the OGC replied “Wow, OK, I thought I was going a bit nuts hearing the spin in there”. Brimmer was ultimately overturned by the 10th Cir in the decisive Roadless litigation (3-0 shutout by Bush judges). They’re assessment of Brimmer’s opinion was kind of like a wrestling pin in 30 seconds. Ridicule might be a bit strong, but it had to hurt.
BTW, no decision has been made as to whether FS will issue a MOG Rule, but they’re acting very resistant… (says I)