Environmentalists celebrated in September when U.S. District Judge Elizabeth Laporte reinstated President Clinton’s 2001 Roadless Area Conservation Rule. Hailed as a clear victory against the Bush administration’s attempts to undermine the rule, the decision appeared to protect some 50 million acres of national forest land in the Lower 48 states.
But by the end of the week, the extent of the victory was less clear: Salvage logging continues in roadless forests; gas leases were spared from the shredder; the Bush administration is looking for ways to get around the new ruling; and new legal challenges to the Clinton rule have popped up in courts across the West.
Since the day Clinton handed down the rule as he left office in January 2001, it has been the focus of a legal and political tug-of-war. The incoming Bush administration delayed its implementation and vowed to amend it. In 2003, a Wyoming district court issued a nationwide permanent injunction against it. Then, last year, the Bush administration implemented its own rule allowing state governors to individually petition for roadless protection in their respective states.
Then came last month’s surprise: Laporte ruled that by rescinding the Clinton rule, the Bush administration violated the National Environmental Policy Act and the Endangered Species Act. Laporte’s ruling brought back Clinton’s ban on road building and timber sales on designated roadless acreage. Two days after the ruling, Forest Service Chief Dale Bosworth ordered forest managers to "not approve any further management activities in inventoried roadless areas that would be prohibited by the 2001 Roadless Rule."
Bosworth’s order, however, doesn’t mention the projects — at least 14 of them, from energy development to logging — that have gone forward in roadless areas since 2001. Environmentalists say those projects not only violated the Clinton rule, but also potentially contradicted states’ wishes before they had a chance to weigh in on roadless protections.
If there’s a poster child for such a project, it’s the Mike’s Gulch salvage timber sale in Oregon’s Rogue River-Siskiyou National Forest. Two years ago, the Forest Service outraged environmentalists by awarding salvage logging contracts within roadless areas burned by the 2002 Biscuit fire. Laporte’s decision, it seemed, would halt those projects.
But in a move that confounded environmentalists, Judge Laporte refused to issue an injunction. Matt Fisher of the Oregon Natural Resources Council thinks the reinstated rule should be applied retroactively to projects like Mike’s Gulch, which he believes violated the original rule. Forest Service spokeswoman Patty Burel argues the project complied with all existing regulations, hinting it would have been legal under the Clinton rule. "Anyway, at this point, we’re only using helicopters to remove the downed trees," says Burel. "Once we’re done with these two projects, we’re done."
Several projects in the White River National Forest of western Colorado are in limbo, including recent gas leases and the controversial Bull Mountain pipeline project, slated to cross an eight-mile stretch of roadless area. The Wilderness Workshop’s Sloan Shoemaker believes these projects violate the 2001 rule, but says the Forest Service refuses to explain how the ruling will affect them. "They’re in disarray, and I think (Agriculture Department Undersecretary) Mark Rey is trying to see how far he can push the envelope," says Shoemaker.
Even under the Clinton rule, Rey may not have to push the envelope very far to facilitate development in roadless areas. The Clinton rule left the door open to logging in the name of forest health. Selling new oil and gas leases was not prohibited, as long as no new roads were built to develop them, and new roads can be built to leases that were in place prior to 2001.
Even with the wiggle room built into the Clinton rule, Bush officials are keen to keep the state petition process alive, in one form or another. While the administration considers its options, Undersecretary Rey has begun touting the Administrative Procedures Act — which allows any individual to petition for regulatory change — as another option for states that hope to have a say in the way their forests are managed.
Most Western states were well on their way to meeting the original November petition deadline when Laporte announced her decision. Instead of abandoning their petitions, most have elected to carry on. Whether it’s under the Administrative Procedures Act, or Bush’s state petition rule is reinstated on a future appeal, chances are good the states’ recommendations will eventually make it to Washington for consideration.
And those recommendations are likely to be as diverse as the states themselves. California Gov. Arnold Schwarzenegger, R, and New Mexico Gov. Bill Richardson, D, have already requested that 100 percent of their states’ roadless forests be protected. Oregon and Washington are likely to follow suit, having joined California and New Mexico to successfully challenge the state petition plan in the first place.
From the beginning, Alaska and Wyoming refused to participate in the petition process, calling it "a paper-pushing exercise" that gave state governors no authority over local issues. Instead, they’ve chosen to hammer out management policies, forest by forest, under the existing Forest Service planning process.
Colorado Gov. Bill Owens, R, established a bipartisan task force to make recommendations concerning his state’s 4.1 million roadless acres. With a few exceptions, its suggestions are remarkably similar to the Clinton rule. Idaho Gov. Jim Risch, R, used a similar method to reach very different results. If the feds accept his proposal, more than half of his state’s roadless forests will be labeled as "backcountry" open to multiple-use management, including logging and temporary road building.
And finally, Montana, Utah, and Arizona are drafting their roadless petitions, hoping to submit them to the Department of Agriculture within the month. While the states continue to hedge their bets and environmentalists demand explanations, it seems that Laporte’s decision has done more to confuse the issue of forest management than anything else. But there is one thing everyone — conservationists, rangers, loggers, and agency officials alike — can agree on: Clinton’s roadless rule will be back in the courtroom soon.
The author is an HCN intern.