In National Forests, All Roads Lead to Court

You need a scoreboard to keep track of the litigation vortex that has tied up conservation of national forest roadless areas for the better part of a decade.

The latest salvo was a ruling August 12 by U.S. District Judge Clarence Brimmer, who tossed out the Clinton roadless rule, which was reinstated in 2006 after Judge Elizabeth LaPorte tossed out the Bush roadless rule, which was adopted in 2005 after a 2003 Brimmer ruling tossed out the Clinton rule, which was adopted in 2001.

Got all that? In the national forests, all roads lead to the courthouse.

The good news is that the uncertainty created by the litigious interregnum has resulted in the Forest Service approving few new roads in the 58 million acres of roadless areas.

It’s good news because the national forest system has too many roads as it is. Roads cost money to build and maintain, they damage fish and wildlife habitat, and they degrade watersheds that supply clean drinking water for 60 million people. The Forest Service has better things to do with its limited funds than expand its too-large road network.

The bad news is that management by court edict is a bad way to run the forests. Rangers can’t manage land rationally when they’re on a lawsuit roller coaster.

Legislation might be the only way to fix the problem. Legislation offers the certainty and political buy-in that is not possible with administrative rules that can be erased by executive fiat or sued out of existence.

The Wilderness Act offers a useful precedent.

In 1939, some national forest roadless areas were given a degree of administrative protection through the Forest Service’s “U” regulations. In part, it was a Forest Service strategy to fend off what the forest rangers perceived as land grabs by the rival National Park Service.

But the visionaries who brought us the Wilderness Act, led by Benton MacKaye and Howard Zahniser, knew full well the vulnerabilities of administrative regulations. So began the 17-year battle for legislation, culminating in 1964, to create what we now know as the National Wilderness Preservation System. The Wilderness Act provides that Congress may designate as wilderness any federal lands that meet the law’s qualifying criteria.

However, neither the “U” regulations nor the initial wilderness designations in the Wilderness Act protected all of the roadless areas in the national forest system.

Old wilderness hands with long memories will recall the stream of court battles that attended the Forest Service’s Roadless Area Review and Evaluations (RARE) during the 1970s and early 1980s.

Political pressures grew to drain the litigation swamp with a legislated compromise that would designate some of the unprotected roadless areas as wilderness while releasing others for possible development. The “released” acreage was not precluded, however, from future consideration for wilderness.

The result of the bickering and dickering was the cascade of 1984 wilderness bills that the Democratic Congress and the Reagan administration worked out. The bills were developed state by state, codifying locally negotiated compromises.

A quarter-century later, the future of remaining roadless areas is clouded by lawsuits.

As was the case with the 1984 wilderness bills, a state-by-state approach may be the most politically workable.

Idaho and Colorado could point the way towards a solution. Under the federal Administrative Procedures Act, those states elected to develop state-specific rules, subject to U.S. Department of Agriculture approval. The idea is to protect roadless areas, but to accommodate state concerns, such as protecting communities from wildfire.

Idaho, for example, developed a zoning system for that state’s 9.3 million roadless acres. In some cases, the protections exceed those of the 2001 Clinton rule.

Doing roadless protection state by state sounds laborious, and it has been. But codifying state-specific roadless protections may be the only politically workable way to get the roadless issue out of the courts and put to bed.