In Brief: The Forest Service adopted a rule in early 2001 to protect 58.5 million acres of the public's forests. Industry responded with nine lawsuits.

10/15/03

Just before the Bush Administration took office, the Forest Service adopted a package of rules that generally prohibited the construction of new roads in 58.5 million acres of still-undeveloped National Forest System lands, largely in the West and Alaska. The rulemaking process lasted more than 18 months, gathered the overwhelming support of more than 1.6 million public comments, and survived two rounds of industry lawsuits.

The final rule became a target of the new administration even before it took office. Leery of tackling the rule (and the underlying public support for preserving wild national forest areas) head on, the Bush Administration hoped instead that the Roadless Area Conservation Rule would fall victim to a wave of suits by logging, mining, oil and gas interests and their political allies in the West. Victory for industry in those cases would give the new administration a chance to re-write forest policy under a judicial mandate, give industry access to what undeveloped national forest land remains, and let federal courts take the blame for overturning a popular policy.

Industry did its part, bringing nine different lawsuits in what it hoped would be friendly federal courts around the country -- one in Alaska, two in Idaho, two in North Dakota, one in Utah, one in Wyoming, and two more in Washington, D.C. (just in case). Under Attorney General John Ashcroft, the Department of Justice (DOJ) played its role, too. Rather than defend the rule as a valid exercise of legal authority, DOJ either coyly took no position for or against the rule while the Bush Administration "studied" it, or simply walked away. Earthjustice lawyers -- on behalf of national and local environmental organizations -- have intervened in all of those cases and continue to do almost all of the work defending the rule against industry attacks. All told, Earthjustice spent more than 1,600 hours in the 12 months ending in July 2003 defending the Roadless Area Conservation Rule in court and in Congress.

Our vigorous defense of the rule has blocked the Bush Administration's agenda for two and a half years. The litigation is far from over, but the Roadless Area Conservation Rule has to date avoided any lasting legal setback and currently enjoys the endorsement of the Ninth Circuit Court of Appeals, the highest court to consider it. Whether or not Earthjustice can defeat every claim in every court, this much is clear by now: provided our defense continues, the Roadless Area Conservation Rule will not be handed the conclusive judicial defeat that the Bush Administration wants as cover for eviscerating the rule's protections.

Frustrated that the rule has not proved to be a pushover in court, the Bush Administration has more recently begun to try to whittle away at the rule administratively. In June, for instance, the Forest Service announced a proposal to "waive" the current rule for forests outside of Alaska on request by state governors for fuel reduction purposes, among others. The governors of Wyoming, Montana and Idaho promptly announced they would seek such waivers. That proposal has yet to be finalized. Left with no choice, the Administration has also begun to write its own rules for managing undeveloped national forest lands even as it proclaims its commitment to protect roadless values.

In Alaska, thanks to a sweetheart settlement with the timber industry, the Forest Service is preparing to gut the Roadless Rule entirely, affecting 15 million acres of unspoiled coastal rainforest in the Tongass and Chugach National Forests. Anticipating the repeal of the rule in Alaska, the Forest Service is hard at work planning dozens of massive new timber sales in Tongass roadless areas.

It is a priority for Earthjustice to ensure that the strongest possible defense of the roadless rule continues to be mounted in order to preserve the most significant development for preservation of public lands in the past 100 years. Our policy and legislative staff in Washington, DC, is working with our lawyers and clients to meet this shift in the administration's strategy, and we will continue to bring to bear as many resources as we can to defend it.

Vawter "Buck" Parker, Executive Director
buckparker@earthjustice.org