Not so dead on arrival
by Rob Inglis
The Roadless Area Conservation Rule, which Bill Clinton signed into law eight days before he left office, protected 58.5 million acres of national forest land from logging and energy development. It was one of the boldest conservation measures in the history of federal land management, but it seemed doomed to a very short lifespan. Because it was only an administrative rule, it could be overturned by the next administration, which strongly opposed it.
But nearly eight years later, the Clinton Roadless Rule remains in effect for 35.6 million acres of national forest in seven Western states. Idaho has adopted, and Colorado is about to adopt, state-specific roadless regulations that fall short of the Clinton rule but still provide protection for large swaths of land. (Roadless lands in Wyoming and Utah are currently unprotected.) The Clinton rule's survival still hangs on the outcome of two ongoing court cases, but even if it were to succumb, it is likely that Democrats in Washington would replace it with either a new administrative rule or legislative protection for roadless areas. Thanks to the incompetence of the Bush administration and the tenacity of some never-say-die environmental lawyers, the long-shot maneuver might have worked.
The Forest Service first inventoried its roadless areas in the 1970s, after the 1964 Wilderness Act directed it to determine which of its lands were eligible for wilderness protection. Some of this land was preserved in a piecemeal fashion, through state-specific bills. But much of it stayed unprotected. The goal of the Clinton Roadless Rule was to systematically protect these remaining road-free lands without going through the arduous wilderness-designation process. More than 1.5 million people commented on the proposed rule, and over 95 percent of them were in favor.
The Bush administration at first thought it could get rid of the rule quietly, simply by not defending it against lawsuits from timber companies. "They didn't go about it very directly, at least not at the outset," says Mike Anderson of The Wilderness Society. "It was more of a subterranean strategy of trying to get the courts to take down the rule." It wasn't until 2005 that the administration launched a frontal assault, issuing a weaker replacement rule that required governors to petition the Forest Service to protect their states' roadless land. But the administration had done only a cursory environmental assessment of the new rule, leaving it vulnerable to legal challenge. In 2006, 9th Circuit District Court Judge Elizabeth LaPorte ruled that the administration had violated the National Environmental Policy Act in establishing the new rule. She overturned it and reinstated the original Roadless Rule. Her reinstatement stood until August of this year, when 10th Circuit District Court Judge Clarence Brimmer issued an injunction against the 2001 rule, saying, as he had in a previous injunction, that it also violated NEPA.
This left the nation's roadless areas in a curious legal position, with one judge saying that the 2001 rule was the law of the land and another judge of equal rank, but in a different judicial circuit, saying that it wasn't. To ease this tension, LaPorte has reduced the scope of her 2006 decision, limiting it to the 9th Circuit plus New Mexico until a randomly selected panel of three appeals judges rules on the validity of the decision. The three judges are all Republican appointees -- two of them appointed by George W. Bush -- so they may well reverse LaPorte's decision and reinstate the Bush rule. Even if LaPorte's 2006 decision withstands the appeal, Judge Brimmer's latest decision -- which is currently being appealed to the 10th Circuit -- could still undo the Roadless Rule.
But even if the Clinton Roadless Rule ultimately goes down in the courts, it has effectively protected the nation's roadless areas -- in which only seven miles of new roads have been constructed -- for the past eight years. "The Bush administration has basically blown it," says Craig Allin, professor of political science at Cornell College. "They have spent eight years trying to abolish the rule, and they have been so incompetent in their efforts that it's going to be left for the next administration."
Obama, who has expressed support for roadless preservation, could craft another administrative rule protecting most or all of the nation's roadless areas. The more difficult -- but more permanent -- way to protect roadless lands is through legislation. Even with Democratic majorities in the House and Senate, however, any bill would have to deal with the threat of filibuster. "If there are 60 votes in the Senate, a statute like that might very well pass," says Allin. "Without sixty votes, its chances are poor."
If such a bill does pass, the Clinton Roadless Rule will be remembered not just for buying time but also for changing the terms of the roadless debate. "It's completely changed the context of how we talk about these undeveloped areas," says Franz Matzner of the Natural Resources Defense Council. "Ten years ago, these places were just the places we were going to log next. Now, if someone wants to log a roadless area, they've got a fight on their hands, and they know it. People are recognizing that their forests have more to offer than just board feet."© High Country News