Order Code RL30647
CRS Report for Congress
Received through the CRS Web
The National Forest System
Roadless Areas Initiative
Updated January 22, 2002
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The National Forest System Roadless Areas Initiative
Summary
In part to recognize the importance of roadless areas for many purposes and in
part because making project decisions involving roadless areas on a forest-by-forest
basis as part of the normal planning process was resulting in controversy and litigation
that consumed considerable time and money, the Clinton Administration established
a new national-level approach to the management of the roadless areas in the National
Forest System. A record of decision (ROD) and a final rule were published on
January 12, 2001, to be effective March 13, 2001, that prohibited road construction
and reconstruction in 58.5 million acres of inventoried forest roadless areas, with
significant exceptions. Most timber harvests in the roadless areas also were
prohibited, but some timber cutting would have been allowed for certain specified
purposes, including improving habitat for threatened, endangered, proposed, or
sensitive species, or maintaining or restoring ecosystem composition and structure,
such as by reducing the risk of uncharacteristic wildfire effects. The new prohibitions
would have applied immediately to the Tongass National Forest in Alaska, but roads
and harvests inventoried roadless areas could go forward if a notice of availability of
a draft environmental impact statement for the activities in question had been
published before January 12, 2001.
The Bush Administration initially postponed the effective date of the roadless
area rule, then decided to allow it to be implemented while proposing amendments.
However, the Federal District Court for Idaho concluded that intentions to amend the
Rule were not sufficient to cure its infirmities, and granted a preliminary injunction
preventing its implementation. In June the Chief of the Forest Service issued interim
management protections and on July 10th, 2001 the Administration filed an Advanced
Notice of Proposed Rulemaking on possible amendments to the Roadless Area Rule,
but new proposed rules have not yet been published. A series of interim management
directives were issued that largely reverse the roadless area management approach of
the previous Administration. This interim direction is already in effect, but comment
has been requested retroactively. On September 20, 2001, comments were also
requested on a proposed interim directive that would facilitate actions in roadless
areas, such as salvage sales of up to one million board feet of timber that currently are
“categorically excluded” from required environmental analyses in some instances.
Comments on this proposal were due by November 19, 2001, but final direction has
not yet been issued.
Although it is difficult to say with certainty what management direction currently
applies to the roadless areas and what will ultimately emerge, it appears that while
environmental analyses and protection of these areas are permitted under the current
provisions, those outcomes are neither compelled nor as likely as they would have
been under the previous policies, and more activities in the roadless areas are likely
to be allowed.
This report traces the development of the roadless area rule and related rules on
planning and roads. It also describes the statutory background, summarizes the final
rules, reviews subsequent events, and analyzes some of the legal issues. The report
will be updated as circumstances warrant.

Contents
The Roadless Areas and Related Initiatives – Background . . . . . . . . . . . . . 1
Roadless areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Roadless Areas – Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Final Clinton Administration Roadless Area Rule . . . . . . . . . . . . . . . . 6
Relationship of the Roadless Area Proposal to Forest Planning . . . . . . . . . . 8
General Legal Issues Relating to the Roadless Area Rule . . . . . . . . . . . . . . 9
Administrative Actions and Litigation Since January 20, 2001 . . . . . . . . . 12
The “Card” memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Effective date postponed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Implementation enjoined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Advanced notice of proposed rulemaking on roadless area
management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Interim roadless area management direction . . . . . . . . . . . . . . . . . . . 16
Proposed changes to “categorical exclusions . . . . . . . . . . . . . . . . . . 19
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

The National Forest System
Roadless Areas Initiative
The Roadless Areas and Related Initiatives – Background
The Clinton Administration undertook a series of actions affecting the roadless
areas of the National Forest System (NFS).1 More particularly, new rules were
finalized with respect to: (1) the roadless areas as such; (2) the NFS roads that make
up the Forest Development Transportation System, and (3) the planning process of
the Forest Service (FS). The provisions of these three new rules were intertwined and
each part affected the others. The new roadless area rules were issued in light of the
importance of the roadless areas for many forest management purposes and to the
American public, and because addressing projects in roadless areas on a forest-by-
forest basis as part of the usual planning process was resulting in controversy,
conflict, and the expenditure of time and money on appeals and litigation, such that
national-level guidance regarding projects in roadless areas was deemed advisable.
The Clinton Administration roadless area proposals were praised by some,
criticized by some for not being far-reaching enough, and criticized by others as being
too restrictive, creating “de facto wilderness,” and being procedurally flawed. Several
lawsuits were filed challenging the adequacy of the information provided the public,
the opportunity to comment, and other aspects of the rulemaking. The Bush
Administration initially postponed the effective date of the roadless area rule, but then
decided to implement it while considering changes. However, implementation of the
rule was enjoined on May 10, 2001. This case is on appeal to the 9th Circuit Court
of Appeals, but there has not yet been a ruling.
The Bush Administration has published a notice of intent to revise the roadless
rule, put into effect interim direction regarding roadless area management, solicited
comments retroactively on the interim directives and on the management of roadless
areas in general, and proposed an interim directive that would alter the requirements
for preparation of NEPA documents in some instances. Proposed regulations have
not yet been published.
1 The NFS includes the national forests and national grasslands and is administered by the
Forest Service in the Department of Agriculture. Roadless areas within the NFS have long
received special management. Beginning even before enactment of the 1964 Wilderness Act,
larger (generally 5,000 acres or more) roadless areas were “inventoried” to consider their
wilderness characteristics, and later their suitability for inclusion in the National Wilderness
Preservation System. These are the “inventoried” areas referred to in the Administration’s
initiative and in this report. A discussion of the roadless area initiative and many of the
related documents are available on the Forest Service website at:
[http://www.roadless.fs.fed.us/].

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This report focuses on the roadless areas initiative and describes the statutory
background, summarizes and provides citations for the various rules and subsequent
actions, and analyzes some of the legal issues in connection with the roadless area
initiative.
Roadless areas. On October 13, 1999, President Clinton directed the
Secretary of Agriculture, acting through the Forest Service, to develop regulations
to provide “appropriate long-term protection for most or all of the currently
inventoried ‘roadless’ areas, and to determine whether such protection is warranted
for any smaller roadless areas not yet inventoried.”2 A Notice of Intent to complete
an environmental impact statement (EIS) on alternatives for protection of NFS
roadless areas was published on October 19, 1999;3 a draft EIS (DEIS) was issued
in May, 2000, and accompanying regulations were proposed on May 10, 2000;4 and
a final environmental impact statement (FEIS) was issued on November 13, 2000.
A record of decision (ROD) and final rules were issued on January 12, 2001, to be
effective on March 13, 2001.5 The rules were issued in light of the importance of the
roadless areas for various forest management purposes and to the American public,
and because addressing projects in roadless areas on a forest-by-forest basis as part
of the planning process was resulting in controversy, conflict, and the expenditure of
a great deal of time and expense on appeals and litigation, such that national-level
guidance was deemed advisable.6
The ROD and final rule would have: 1) prohibited, with significant exceptions,
new roads in inventoried roadless areas; 2) prohibited most timber harvests in the
roadless areas, but allow cutting under specified circumstances; and 3) applied the
same prohibitions to the Tongass National Forest in Alaska, but allowed certain road
and harvest activities already in the pipeline to go forward. The details of the final
rule will be discussed below.
Roads. In related actions, the Forest Service on January 28, 1998, issued an
Advance Notice of Proposed Rulemaking to revise its Forest Development
Transportation System regulations related to roads in the NFS,7 and also proposed an
interim rule to temporarily suspend road construction and reconstruction in certain
NFS unroaded areas.8 On February 12, 1999, the agency published a final interim rule
that temporarily suspended road construction and reconstruction in unroaded areas,
2Memorandum from President William J. Clinton to the Secretary of Agriculture on Protection
of Forest ‘Roadless’ Areas, October 13, 1999.
364 Fed. Reg. 56,306.
465 Fed. Reg. 30,276.
566 Fed Reg. 3,244 (January 12, 2001).
6Id., at 3,246.
763 Fed. Reg. 4,350, regarding regulations at 36 C.F.R. § 212.
863 Fed. Reg. 4,354.

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and provided certain procedures related to such areas.9 A proposed rule10 and
proposed administrative policy11 regarding the Forest Development Transportation
System were published on March 3, 2000. A final Roads rules (36 C.F.R. §212) and
a transportation policy were published on January 12, 2001, both effective on that
date.12 (Note that the final roadless area management rule also was published on that
date.) Certain terms were changed in the final rule,13 and the policy provided new
direction to be contained in the Forest Service Manual that emphasizes the
maintenance and decommissioning of existing roads rather than the construction of
new roads. The policy addressed when and how to conduct roads analyses, required
that a compelling need for a new road be demonstrated, and also required an
economic analysis that addressed both initial and long-term costs, a scientific analysis,
and a full EIS before a road could be built in roadless areas. The new final policy was
to supersede the interim policy except with respect to roads in the Tongass National
Forest, in which forest the interim policy would continue to govern the activities that
are permitted to go forward. These policies and interim direction have now been
changed under the new Administration, as will be discussed below, but the Roads rule
itself has not yet been changed.
Under new 36 C.F.R. § 212.5(b),14 the focus is on providing and maintaining the
minimum forest transportation system needed for safe and efficient travel and for the
administration, utilization, and protection of NFS lands. This is to be determined by
science-based roads analysis at the appropriate scale and is to minimize adverse
environmental impacts. Unneeded roads would be decommissioned and the roadbeds
restored. The economic and ecological effects of roads would be analyzed as part of
an interdisciplinary, “science-based” process in which the public would be engaged.
Until the new road inventories and analyses are completed, interim requirements
would pertain and a compelling need for new roads would have to be demonstrated.
These rules are still in effect.
Planning. On a third track, the Forest Service on November 9, 2000 issued
final new planning regulations, effective on that date.15 These regulations addressed
roadless area reviews as part of the planning process, and required changes in uses of
roadless areas to be determined through this process. This roads-related part of the
new planning rules has been enjoined. The date for compliance with the new planning
964 Fed. Reg. 7,290 (February 12, 1999).
1065 Fed. Reg 11,680 (March 3, 2000).
1165 Fed. Reg. 11,684.
1266 Fed. Reg 3,206 and 3,219 respectively.
13“Forest development roads” is changed to “National Forest System roads” and “forest
transportation plan” is changed to “forest transportation atlas.” Other new definitions also
are added, e.g. to clarify “road construction” and “road reconstruction.” 66 Fed. Reg. 3,216-
3,217.
1466 Fed. Reg. 3,230.
1565 Fed. Reg. 67,514. Revising the planning regulations has been a contentious issue for the
Forest Service for quite some time. Most recently, proposed planning rules were published
in 64 Fed. Reg. 54,074 (October 5, 1999).

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regulations has been extended to May 9, 2002, and public comment has been sought
on that extension.16
Roadless Areas – Statutory Background
In considering the roadless area initiatives, a review of the most relevant portions
of the statutes that govern the management of the NFS may be helpful.
The principal forest management statutes relevant to analysis of the Roadless
Area Initiative are the Organic Act of 1897,17 the Multiple-Use Sustained-Yield Act
of 1960,18 and the National Forest Management Act of 1976.19 The 1897 Act directs
that the national forests be managed to improve and protect the forests or “for the
purpose of securing favorable conditions of water flows, and to furnish a continuous
supply of timber for the use and necessities of citizens of the United States ....”20 The
1897 Act also authorizes the Secretary to issue regulations to “regulate the occupancy
and use of the forests and to preserve them from destruction ....”21
Over the years, many uses of the national forests in addition to timber and
watershed management have been allowed administratively. Statutorily, the Multiple-
Use Sustained-Yield Act of 1960 (MUSYA) expressly recognizes and authorizes the
“multiple use” of the forests, a term MUSYA defines as the management of all the
various renewable surface resources of the national forests “in the combination that
will best meet the needs of the American people” and recognizes that “some land will
be used for less than all of the resources ... without impairment of the productivity of
the land, with consideration being given to the relative values of the various resources,
and not necessarily the combination of uses that will give the greatest dollar return or
the greatest unit output.”22 MUSYA states that the national forests are established
and shall be administered for their original purposes and also for “outdoor recreation,
range, timber, watershed, and wildlife and fish purposes”23 and that “[t]he
establishment and maintenance of areas of wilderness are consistent with the purposes
and provisions of [the act.]”24 This latter language, which preceded enactment of the
16The compliance date was extended in an interim final rule. 66 Fed. Reg. 27,552 (May
17,2001). On that same date, that extension was also proposed as a rule 66 Fed. Reg. 27,555.
The interim final rule is to remain in effect until it is replaced, but no such rules have yet been
proposed.
17Act of June 4, 1897, ch. 2, 30 Stat. 34.
18Pub. L. No. 86-517, 74 Stat. 215.
19Pub. L. No. 94-588, 90 Stat. 2949, primarily amending Pub. L. No. 93-378.
2016 U.S.C. § 475.
2116 U.S.C. § 551.
2216 U.S.C. § 531.
2316 U.S.C. § 528.
2416 U.S.C. § 529.

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1964 Wilderness Act ,25 recognized that the FS had been managing some forest areas
as administrative wilderness or natural areas. What constitutes the most desirable
combination of uses for a forest has been hotly debated for decades.
MUSYA also requires “sustained yield,” which is defined as the “achievement
and maintenance in perpetuity of a high-level annual or regular periodic output of the
various renewable resources of the national forests without impairment of the
productivity of the land.”26 How much is a “high-level annual or regular periodic
output” of forest resources that does not impair the productivity of the land has also
been the subject of much debate.
The National Forest Management Act of 1976 (NFMA) set out additional
provisions on the management of the national forests that include direction for
developing land and resource management plans. NFMA directs that regulations be
adopted to guide forest planning and accomplish specific goals set by the Congress,
including: insuring consideration of the economic and environmental aspects of
various systems of renewable resource management including “silviculture and
protection of forest resources; to provide for outdoor recreation (including
wilderness), range, timber, watershed, wildlife, and fish; and providing for diversity
of plant and animal communities.”27
The roadless areas in the National Forest System have long received special
management attention. Beginning in 1924, long before the enactment of MUSYA,
the FS managed many forest areas as natural, primitive, or wilderness areas – a
practice expressly approved in MUSYA. More permanent, congressionally approved
statutory wilderness areas were provided for in the 1964 Wilderness Act,28 which
established the National Wilderness Preservation System. The Wilderness Act
directed review of FS-designated primitive areas and other larger roadless areas to
consider their suitability for inclusion in the national wilderness system. This review
was carried out and expanded (with respect to the national forests) in the Roadless
Area Review and Evaluation or “RARE” studies, which expanded on studies begun
before enactment of the 1964 Wilderness Act. Roadless areas inventoried either as
part of the RARE studies or as part of subsequent reviews during the NFMA planning
process are the “inventoried” roadless areas referred to in the October 19, 1999
Notice. Congress has designated many additional wilderness areas since 1964, but,
under the statutes summarized above, especially the MUSYA, the FS may still
manage parts of the national forests as natural, primitive, or wildlife areas, which
might be characterized as “administrative wilderness” areas.
The management of the roadless areas of the NFS is of great interest to both
wilderness proponents and to opponents of additional natural or wilderness area
protection. Proponents of additional protection point to the many purposes the
25Pub. L. No. 88-577, 78 Stat. 890.
2616 U.S.C. § 531.
2716 U.S.C. § 1604(g). Note that “wilderness” management is again mentioned, twelve years
after enactment of the Wilderness Act.
28Pub. L. No. 88-577, supra.

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roadless areas serve, including water quality protection, backcountry recreation, and
habitat for wildlife; opponents assert that the formal congressional wilderness review
and designation process sets aside adequate natural areas and the remaining areas
should be available for timber harvesting, mining, developed recreation, and other
uses.
The FS has identified approximately 58.5 million acres of inventoried roadless
areas, roughly one-third of all NFS lands. Road building is not allowed in 20.5 million
acres of this total under current plans. Roads are also currently prohibited in an
additional 42.4 million acres of Congressionally-designated areas such as Wilderness
or Wild and Scenic River corridors. There are approximately 386,000 miles of FS and
other roads in the NFS. The explanatory material in the final rulemaking states that
roadless areas provide significant opportunities for dispersed recreation, are sources
of public drinking water, and are large undisturbed landscapes that provide open
space and natural settings, serve as a barrier against invasive plant and animal species,
are important habitat, support the diversity of native species, and provide
opportunities for monitoring and research.29 In contrast, the explanatory material
continues, installing roads can increase erosion and sediment yields, disrupt normal
water flow processes, increase the likelihood of landslides and slope failure, fragment
ecosystems, introduce non-native species, compromise habitat, and increase air
pollution.30
The Final Clinton Administration Roadless Area Rule
The final roadless area rule put in place by the Clinton Administration was more
restrictive in several respects than was either the proposed roadless rule or the
preferred alternative set out in the FEIS. With some exceptions, the final rule
imposed immediately-effective, national-level, Service-wide, limitations on new road
construction and reconstruction in the inventoried roadless areas throughout the NFS,
and also imposed nationwide prohibitions on timber harvesting in those areas, with
some exceptions. The regulations were to apply immediately to the Tongass National
Forest in Alaska, although certain activities already in the planning stages in that
Forest were allowed to go forward.
The final rule prohibited new road construction and reconstruction, but with
some significant exceptions. The exceptions were if:
(1) A road is needed to protect public health and safety in cases
of an imminent threat of flood, fire, or other catastrophic event
that, without intervention, would cause the loss of life or
property;
(2) A road is needed to conduct a response action under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) or to conduct a natural resource
2966 Fed. Reg. 3,245 (January 12, 2001).
30Id., at 3,246.

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restoration action under CERCLA, Section 311 of the Clean
Water Act, or the Oil Pollution Act;
(3) A road is needed pursuant to reserved or outstanding rights,
or as provided for by statute or treaty;
(4) Road realignment is needed to prevent irreparable resource
damage that arises from the design, location, use, or
deterioration of a classified road and that cannot be mitigated by
road maintenance. Road realignment may occur under this
paragraph only if the road is deemed essential for public or
private access, natural resource management, or public health
and safety;
(5) Road reconstruction is needed to implement a road safety improvement
project on a classified road determined to be hazardous on the basis of
accident experience or accident potential on that road;
(6) The Secretary of Agriculture determines that a Federal Aid Highway
project, authorized pursuant to Title 23 of the United States Code, is in the
public interest or is consistent with the purposes for which the land was
reserved or acquired and no other reasonable and prudent alternative exists;
or
(7) A road is needed in conjunction with the continuation, extension, or
renewal of a mineral lease on lands that are under lease by the Secretary of
the Interior as of January 12, 2001 or for a new lease issued immediately
upon expiration of an existing lease. Such road construction or
reconstruction must be conducted in a manner that minimizes effects on
surface resources, prevents unnecessary or unreasonable surface
disturbance, and complies with all applicable lease requirements, land and
resource management plan direction, regulations, and laws. Roads
constructed or reconstructed pursuant to this paragraph must be obliterated
when no longer needed for the purposes of the lease or upon termination
or expiration of the lease, whichever is sooner.
Maintenance of classified roads was permissible in inventoried roadless areas.
The cutting, sale, or removal of timber from inventoried roadless areas also was
prohibited unless one of specified circumstances exists, and the expectation was
expressed that cutting would be infrequent. The proposed regulations had allowed
timber to be cut for “stewardship” purposes, but the final regulation eliminated the use
of that ambiguous term in favor of specifying the purposes for which cutting could be
allowed. Cutting of small diameter trees was permissible if doing so would maintain
or improve one or more of the roadless area characteristics and would:
improve habitat for species that are listed as threatened or
endangered under the Endangered Species Act or are proposed
for listing under that Act, or which are sensitive species; or

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maintain or restore ecosystem composition and structure, such
as to reduce the risk of uncharacteristic wildfire effects.31
Other cutting could be permitted if incidental to the implementation of a
management activity that was not otherwise prohibited; if needed and appropriate for
personal or administrative use in accordance with 36 C.F.R. § 223 (the regulations on
sale and disposal of timber); or if roadless characteristics had been substantially
altered in a portion of an inventoried roadless area due to the construction of a
classified road and subsequent timber harvest before January 12, 2001. In this last
instance, timber could only be cut in the substantially altered portion of the roadless
area.32
The new roadless area rule expressly would not have revoked, suspended, or
modified any permit, contract, or other legal instrument authorizing the occupancy
and use of NFS lands that was issued before January 12, 2001, nor would it have
revoked, suspended, or modified any project or activity decision made prior to
January 12, 2001.33 The rule would not have applied to roads or harvest in the
Tongass National Forest if a notice of availability of a draft environmental impact
statement for the activities had been published in the Federal Register before January
12, 2001.34 These provisions would have grandfathered the activities addressed, but
otherwise the new rule would have applied to the Tongass immediately.35
Relationship of the Roadless Area Proposal to Forest
Planning

The explanatory material accompanying the new planning rule of November 9,
2000 indicated that that new rule was very similar to the proposed roadless area rule
and also stated that the “final planning rule clarifies that analyses and decisions
regarding inventoried roadless areas and other unroaded areas, other than the national
prohibitions that may be established in the final Roadless Area Conservation Rule, will
be made through the planning process articulated in this final rule. Under this final
rule, the responsible official is required to evaluate inventoried roadless areas and
unroaded areas and identify areas that warrant protection and the level of protection
to be afforded.”36
31New 36 C.F.R. § 294.13(b)(1), 66 Fed. Reg. 3,273.
32Id., § 294.13(b)(2)-(4).
33Id., § 294.14(a) and (c).
34Id., § 294.14(d).
35 The proposed rule would not have applied the prohibitions on new road construction to the
Tongass National Forest in Alaska. Rather, decisions on whether the prohibitions should
apply to any or all of the inventoried roadless areas in the Tongass would have been
considered at the time of the 5-year review of the April 1999 revised Tongass Plan (i.e. in
2004). In contrast, the preferred alternative in the FEIS would have applied the road and
timber prohibitions to the Tongass in April, 2004.
3665 Fed. Reg. 67,529. The proposed roadless areas regulations (proposed 36 C.F.R. §
(continued...)

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Therefore, possible additional restrictions on use of the roadless areas beyond
those provided by the national rule would be developed as part of the planning
process. The materials also compared particular parts of the proposed roadless areas
rule with the final planning rule.37 It appears that the final planning regulations are
less specific with respect to roadless area reviews than were the proposed regulations.
As noted, the final rule eliminated the separate treatment of roadless area reviews
within that rule.
General Legal Issues Relating to the Roadless Area Rule
Two legal issues involving the roadless area initiative have come up repeatedly:
1) whether the rule would create “de facto” wilderness and, if so, whether that result
can lawfully be done administratively; and 2) whether management restrictions can be
imposed immediately, without formal amendment or revision of the forest plans.
Can “de facto” wilderness areas be created administratively? Some
have asserted that the management changes involved in the roadless area initiative
would amount to “de facto” wilderness, and that only Congress can designate
wilderness areas.
The explanatory material with the final regulation stated that the regulation
preserves “multiple use” management and that currently a wide range of multiple uses
are permitted in inventoried roadless areas subject to the management direction in
forest plans and “a wide range of multiple uses will still be allowable under the
provisions of this rule.”
Under this final rule, management actions that do not require the
construction of new roads will still be allowed, including
activities such as timber harvesting for clearly defined, limited
purposes, development of valid claims of locatable minerals,
grazing of livestock, and off-highway vehicle use where
specifically permitted. Existing classified roads in inventoried
roadless areas may be maintained and used for these and other
activities as well. Forest health treatments for the purposes of
improving threatened, endangered, proposed, or sensitive species
habitat or maintaining or restoring the characteristics of
ecosystem composition and structure, such as reducing the risk
of uncharacteristic wildfire effects, will be allowed where access
can be gained through existing roads or by equipment not
requiring roads ....
36(...continued)
294.13) would have expressly provided procedures for the consideration of additional
management measures for roadless areas during the forest plan revision process. The final
rule, however, moved these express provisions from the roadless rule in favor of treating
roadless areas in the new planning regulations published November 9, 2000.
37Note that the materials at several points state that the roadless areas are to be reviewed at
the time of plan revisions “and” at other times as appropriate. The regulation says “or,”
which could mean that review at the time of plan revision is not required.

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The Roadless Area Conservation rule, unlike the establishment
of wilderness areas, will allow a multitude of activities including
motorized uses, grazing, and oil and gas development that does
not require new roads to continue in inventoried roadless areas
....38
Certainly, only Congress can designate areas for inclusion in the National
Wilderness Preservation System.39 However, the MUSYA, enacted before the 1964
Wilderness Act, expressly provides for the administrative management of national
forest lands for fish and wildlife, outdoor recreation, and watershed purposes, as well
as for timber, and that establishment of wilderness areas is consistent with those
purposes.40 The NFMA directs that forest plans “assure ... coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and wilderness ....”41
Therefore, it appears that, as a general matter, some new prohibitions on activities in
roadless areas could lawfully be imposed. It is possible that, as applied, restrictions
that were severe and extensive might be challenged as violating the “sustained yield”
aspects of the MUSYA. On the other hand, the new rules might be defended as
appropriate management of non-timber resources for multiple use purposes (such as
outdoor recreation, game and other wildlife), yielding those benefits without
permanent impairment of the lands.
Defenders of the roadless initiative might argue that current law permits
increased protection of roadless areas, and that it is desirable to protect remaining
open space and natural areas, but critics may assert that the likely breadth and severity
of the application of the new regulations would effect significant changes that more
properly should be made by Congress.
Some of these issues have been raised in suits challenging the roadless areas
actions, but there have been no holdings on the issues to date.42
Can management restrictions be imposed “effective immediately”
even if contrary to forest plans already in place? Some have questioned
whether it is lawful for such sweeping new management direction to be imposed
without going through the usual process of amending existing forest plans. The final
regulation appears to contemplate immediately-effective new management direction.
The explanatory material notes that the new planning regulations require planning to
be conducted at the appropriate level depending on the scope and scale of the issues,
and that it is the nature of the issue that guides the selection of the appropriate scale
3866 Fed. Reg. 3,249.
39Pub. L. No. 88-577, 78 Stat. 890.
40Pub. L. No. 86-517, 74 Stat. 215.
4116 U.S.C. § 1604(e).
42See, e.g., Boise County v. Glickman, Civ. No 00-0141 (D. Idaho), questioning the authority
to create de facto wilderness areas, consolidated with the surviving claims in Idaho v. U.S.
Forest Service, 99-0611-N-EJL (D. Idaho); and Communities for a Great Northwest v.
Clinton, et al., 00-CV-1394 (D. D.C.). Information obtained through personal
communication with representative from the U.S. Department of Agriculture.

CRS-11
and level of the organization to address it.43 Further, the materials state that some
issues are of a national scale and national management direction is appropriate:
The use of rulemaking to address the conservation of inventoried
roadless areas is both appropriate and consistent with the NFMA
implementing regulations .... Just as development and approval
of forest plans must conform to existing laws and regulations,
new laws or regulations, including this rule, can supersede
existing forest plan management direction. This rulemaking
process does not require amendments or revisions to forest
plans. However, a Forest or Grassland Supervisor may consider
whether an amendment or revision is appropriate given overall
circumstances for a particular administrative unit.44
The NFMA directs a planning process under which a land and resource
management plan is adopted for a forest unit, and then particular projects and
activities are approved that must be consistent with the plan.45 Plan changes are to
occur through amendment or revision of plans. However, even under the old planning
system, binding management direction above the level of the forest plans was
recognized in the Forest Service regulations. “Regional guides” were developed to
coordinate the many forest-related programs and to provide standards and guidelines
for addressing major issues and management concerns that need to be considered at
the regional level. These guides were required to be developed with public
participation and in compliance with the National Environmental Policy Act
(NEPA).46 In addition, some other aspects of the former planning process reflected
national guidance. For example, one planning regulation directed that recreation be
maximized and planned in accordance with national and regional direction.47
The new roadless area rules asserted that overall standards to guide the
management of the NFS roadless areas are desirable to end protracted controversy
over the use of each such area, and that the management of roadless areas is a subject
suitable for a national solution. Given that the regulations were adopted in
accordance with NEPA and rulemaking procedures, arguably they may withstand
challenges on this basis.
4366 Fed. Reg. 3,249, quoting 65 Fed. Reg. 67,523.
4466 Fed. Reg. 3,249.
4516 U.S.C. § 1604(g); Idaho Conservation League v. Mumma, 956 F. 2d 1508, 1511-1512
(9Th Cir. 1992), Portland Audubon Society v. Lujan, 795 F. Supp. 1489, 1491-1492 (D. Or.
1992).
4636 C.F.R. § 219.8 (2000).
4736 C.F.R. § 219.21 (2000) stated: “To the degree consistent with needs and demands for
all major resources, a broad spectrum of forest and rangeland related outdoor recreation
opportunities shall be provided for in each alternative. Planning activities to achieve this shall
be in accordance with national and regional direction and procedural requirement of
paragraphs (a) through (g) of this section.”

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Some exceptions to the normal plan amendment processes have been upheld,
even aside from the rulemaking context. In one case, a court upheld immediately-
effective management direction regarding an endangered species as a temporary,
emergency protective measure.48
A court has also upheld immediately-effective changes to forest plans contained
in the President’s Pacific Northwest Forest Plan, which amended the planning
documents for nineteen national forests and seven Bureau of Land Management
districts. In defense of its action, the government made a ‘functional equivalent’
argument -- that wholesale amendment of the plans through adoption of the
overarching Northwest Plan was proper because the usual requirements for public
involvement and disclosure in connection with a significant amendment of plans had
been met and other procedural features of the planning regulations would be deferred
until the time of individual forest plan revision. The court concluded that “[t]he
Secretaries may properly divide the planning process in this way .... To require that
planning be done only on an individual forest basis would be unrealistic.”49 The
appeals court that affirmed the district court decision did not address this issue.50
This issue also has been raised in some of the lawsuits filed in response to the
previous aspects of the roadless areas initiative.51
Administrative Actions and Litigation Since January 20, 2001
The “Card” memorandum. Immediately after President Bush took office,
his Chief of Staff, Andrew Card, issued a memo that directed, among other things,
that the effective date of regulations that had been published in the Federal Register,
but had not yet taken effect, be postponed for 60 days, unless a department head
appointed by President Bush had reviewed and approved the regulatory action.52 The
roadless area regulation was covered by this language, since although it was published
48Southern Timber Purchasers Council v. Alcock, 779 F. Supp. 1353 (N.D. Ga. 1991), in
which the court upheld applying a new policy for conserving the red-cockaded woodpecker
pending amendment of the relevant plans. The court noted that the policy was temporary and
designed to preserve the status quo in terms of species decline while a later policy would be
developed. The NFMA claims were dismissed on appeal for lack of standing: 993 F. 2d 800
(11th Cir. 1993).
49Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1317 (W.D. Wash. 1994.)
50Seattle Audubon Society v. Moseley, 80 F. 3d 1401 (9th Cir. 1996).
51See e.g., Wyoming Timber Industry Assn. v. U.S. Forest Service, 80 F. Supp. 2d 1245 (D.
Wyo. 2000), dismissed for lack of jurisdiction, appeal pending No. 00-8016 (10th Cir.)(re the
interim rule); and Idaho v. U.S. Forest Service, 99-0611-N-EJL (D. Idaho), per conversation
with representative of U.S. Department of Agriculture.
52Memorandum for the Heads and Acting Heads of Executive Departments and Agencies,
Andrew H. Card, Jr. January 20, 2001. Exceptions are also made for rules that are subject
to statutory or judicial deadlines, or rules the Office of Management and Budget Director
deems are excepted because they are needed for an emergency or other urgent situation
relating to health and safety.

CRS-13
as a final rule on January 12, 2001, it was not to be effective until March 13, 2001.53
The delay was because the roadless rule was determined to be a “major” rule under
the Congressional Review Act, under which Congress is given a certain amount of
time to possibly take action to disapprove the rule.54 If Congress had disapproved the
53Several dates surround the roadless rule: the 60-day delayed effectiveness date in the rule
itself – which derives from the Congressional Review Act (CRA)(Subtitle E of the Small
Business Regulatory Enforcement Act of 1996, Pub. L. No 104-121, 110 Stat. 857-874, 5
U.S.C. §§801 et seq.); the 60-day delay resulting from the President’s directive; and the usual
30-day delay that might otherwise apply under the Administrative Procedure Act (APA)(5
U.S.C. 501 et seq.). Normally, the 30-day APA delay period and the 60-day CRA delay
period run concurrently.
54Under 5 U.S.C. § 804(2), a major rule is one that “has resulted in or is likely to result in –
(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs
or prices for consumers, individual industries, Federal, State, or local government agencies,
or geographic regions; or (C) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets” other than rules under
the Telecommunications Act of 1996. Under the Review Act, a rule that has been determined
to be a major rule cannot become effective for at least 60 days after publication. This delay
period is to give the Congress time to consider the rule and to address legislatively issues
raised by it. A major rule will take effect the later of the date occurring 60 days after the date
on which – (1) Congress receives the report submitted pursuant to § 801(a)(1); or after the
rule is published in the Federal Register, if it is; (2) if the Congress passes a joint resolution
of disapproval which is subsequently vetoed by the President, then the earlier of when one
House votes and fails to override the veto, or 30 session days after Congress receives the veto
message from the President; or (3) the date the rule would otherwise have taken effect if not
for the review requirement. 5 U.S.C. § 801(a)(3). Other provisions allow a major rule to
become effective earlier under certain circumstances, such as those involving an imminent
threat to health or safety or other emergency circumstances, national security, etc., or if either
House votes to reject a joint resolution of disapproval. When, as in this instance, a rule is
published and/or reported within 60 session days of adjournment of the Senate or 60
legislative days of adjournment of the House through the date on which the same or
succeeding Congress first convenes its next session, that Congress may consider and pass a
joint resolution of disapproval during a period of 60 session or legislative days after receiving
the reported rule. A held-over rule takes effect as otherwise provided; but the opportunity for
Congress to consider and disapprove it is extended.
The usual effective date of a regulation under the APA is 30 days after publication, during
which time affected persons may prepare for and adjust to the impending effects of the rule.
The 30-day period is intended as a minimum, and an agency may set a longer interval if that
appears advisable, and longer times have been afforded in circumstances when it is anticipated
that economic adjustments must be made in response to the new regulatory requirements.
However, there are exceptions to the applicability of the APA, one of which is that the usual
rulemaking procedures do not apply to rules relating to agency management or public
property.
However, in 1971, Secretary of Agriculture Hardin partially waived the APA exemption for
rules related to public property (36 Fed. Reg. 13804 (July 24, 1971). The Hardin Order
subjects Department of Agriculture rulemaking to the public notice and comment requirements
prescribed by 5 U.S.C. 553(b) and (c), subject to exceptions for good cause. However, the
Order does not appear to subject Department rules to the 30-day delay requirement of §
553(d), or to other APA provisions beyond § 553(b) and (c), a fact which may be relevant to
(continued...)

CRS-14
roadless area rule and the President had signed the resulting act, that new legislated
direction, of course, would have been binding, but Congress did not take action.
Effective date postponed. On February 5, 2001, notice was published in
the Federal Register55 postponing for 60 days the effective date of the roadless area
rule from its previous effective date of March 13, 2001 to May 12, 2001.56 The
Administration then decided to implement the rule, but to consider amending it.
Implementation enjoined. The state of Idaho sued for a declaratory
judgment and to enjoin implementation of the roadless rule for violation of NEPA,
NFMA and the APA, and other suits also were filed.57 The court in the Idaho case
found that plaintiffs were likely to succeed on their assertion that the FS had not
provided the public an opportunity to comment meaningfully on the rule in that there
was inadequate identification of the inventoried roadless areas (the court noting that
statewide maps were not made available until after the public comment period had
ended), inadequate information was presented during the scoping process (FS
employees were ill-prepared), and the period for public comment was not adequate
(all of the public meetings in Idaho occurred within 12 business days of the end of the
54(...continued)
options available to change the rule. Many Forest Service rules, including the new Planning
rule and the Roads rule, are effective immediately upon being finalized.
Under the APA, interested persons have the right to petition for issuance, amendment, or
repeal of a rule, even during the 30-day delay period, although by what procedures an agency
may accomplish changes in response to such a petition during the delay period is not totally
clear. As noted above, however, the roadless rule does not appear subject to these provisions.
Even if it were, the roadless rule is a final published rule, even though it is not yet in effect,
and at least one court has held that an agency cannot simply “repeal” such a regulation, but
rather may need to modify or revoke the final regulation through commensurate procedures
(Consumer Energy Council of America v. Federal Energy Regulatory commission, 673 F. 2d
425 (D.C. Cir. 1982)) – here those that may be required by the NFMA and other agency
regulations.
5566 Fed. Reg. 8,899.
56The postponement notice stated that the action was exempt from notice and comment either
because it is a procedural rule or for good cause shown: “[t]o the extent that 5 U.S.C. section
553 applies to this action, it is exempt from notice and comment because it constitutes a rule
of procedure under 5 U.S.C. section 553(b)(A). Alternatively, the Department’s
implementation of this rule without opportunity for public comment, effective immediately
upon publication today in the Federal Register, is based on the good cause exceptions in 5
U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable,
unnecessary and contrary to the public interest. The temporary 60-day delay in effective date
is necessary to give Department officials the opportunity for further review and consideration
of new regulations, consistent with the Assistant to the President’s memorandum of January
20, 2001. Given the imminence of the effective date, seeking prior public comment on this
temporary delay would have been impractical, as well as contrary to the public interest in the
orderly promulgation and implementation of regulations. The imminence of the effective date
is also good cause for making this rule effective immediately upon publication.”
57Idaho v. Dombeck, CV01-11-N-EJL (D.C. Id. 2001); Kootenai Tribe of Idaho et al v.
Dombeck, CV01-10-N-EJL. (D.C. Id. 2001) Colorado and Alaska have joined Idaho in the
suit and Utah also has filed suit.

CRS-15
first 60-day comment period and many of the public comments were received within
the last week of the time given and no responses were provided). The court
characterized the comment period as “grossly inadequate” and an “obvious violation”
of NEPA. The court further found that the FEIS did not consider an adequate range
of alternatives, since all but the “no action” alternative included “a total prohibition”
on road construction and the EIS did not analyze whether other alternatives might
have accomplished protection of the environmental integrity of the roadless areas. In
addition, the court concluded that FS did not analyze possible mitigation of negative
impacts of the alternatives it did study.
The new Administration did not defend the rule, but did ask the court to
postpone ruling on the motion for preliminary injunction until it had had an
opportunity to complete a full review of the rule, arguing that an injunction was not
necessary because the rule was not to be implemented until at least May 12th. The
court reserved its ruling until on or after May 4th, the day that the Administration was
to submit a status report on its review and findings. On May 4th, the Administration
filed its status report with the court and announced that it would implement the
Roadless Rule, but would take additional actions to address “reasonable concerns
raised about the rule” and ensure implementation in a “responsible common sense
manner,” including providing greater input at the local planning level.58 Proposed
amendments to the Roadless Rule were expected in early June.
However, on May 10th, Judge Lodge granted a preliminary injunction to prevent
implementation both of the Roadless Rule and of the portion of the Planning Rule that
relates to prescriptions for the roadless areas (36 C.F.R. § 219.9(b)(8)). The court
found the Government’s “vague commitment” to propose amendments to the Rule
indicative of a failure to take the requisite “hard look” that an EIS is expected to
perform, leaving the court with the “firm impression” that implementation of the
Roadless Rule would result in irreparable harm to the National Forests. The court
concluded that the government’s response was a “band-aid approach” and enjoined
implementation of the Rule while the agency goes forward with its new study and
development of proposed amendments.
The United States did not appeal this decision, but the intervenors did. The case
has been argued before the 9th Circuit and a decision is expected soon. Several other
lawsuits have been filed, including suits in North Dakota, Idaho, Alaska and the
District of Columbia, raising various issues.
Advanced notice of proposed rulemaking on roadless area
management. On July 10, 2001, the Forest Service published an Advanced Notice
of Proposed Rulemaking and asked for public comment on ten questions relating to
“key principles” involving management of the roadless areas. Comments were due
by September 10, 2001, but no new rules have been proposed yet. The questions ask
such things as: what is the appropriate role of local forest planning in evaluating
roadless management; what are the best ways to work collaboratively; how to protect
the forests, including protection from severe wildfires; how to protect communities
and homes from wildfires on federal lands; how to provide access to nonfederal
58USDA News Release No. 0075.01.

CRS-16
properties; what factors the FS should consider in evaluating roadless area
management; what activities should be expressly prohibited or allowed in roadless
areas through the planning process; should roadless areas protected under a forest
plan be proposed to Congress for wilderness designation or should they be maintained
under a specific roadless management regime; how should the FS work with
individuals and groups with strongly competing views; and what other concerns relate
to the roadless areas.
Interim roadless area management direction. Pending publication of
proposed new roadless area rules, the Secretary has amended interim management
direction in several ways. The final Clinton administrative policy on National Forest
System roads published on January 12, 2001,59 provided interim direction on the
management of roadless areas and the construction of roads in roadless areas that was
to apply until a roads analysis was completed and incorporated into the relevant forest
plans. This direction was in the Forest Service Manual (FSM) and contained
considerable detail that would have permitted new roads only if the Regional Forester
determined there was a compelling need for the road and both an EIS and a science-
based roads analysis had been completed. Examples of instances that constituted
compelling need were provided. The management direction was to apply to both
inventoried roadless areas and to areas of more than 1,000 acres that were contiguous
to inventoried roadless areas (or certain other areas) and met stated criteria.
Exceptions were provided to the applicability of the interim guidelines.
The Bush Administration issued a series of Interim Directives affecting roadless
area protection. The first Directive was effective May 31, 2001, but was not
published until August.60
On June 7, 2001, additional new interim roadless area management was
provided. On that date, the new Chief of the Forest Service issued a memorandum
addressing protection of roadless areas and requiring his approval for some proposed
roads or timber harvests in inventoried roadless areas pending completion of forest
plan revisions or amendments.
The most recent directives were published on December 20, 2001.61 These
December directives appear to substantially replace much of the previous directives.
However, the Notice does not clearly indicate which provisions are being replaced or
the precise extent of revisions. The published explanatory material states that affected
material is set out and unaffected material is not. Yet some of the earlier provisions
are neither shown nor discussed and therefore, may still be in effect. However, the
final text of new FSM §1925 does not show these undiscussed earlier provisions – as
5966 Fed. Reg. 3,219.
60The first of these (I.D. No. 7710-2001-1) was actually published on August 24th, two days
after the second of these directives (I.D. No. 7710-2001-2 and I.D. No. 2400-2001-3, both
issued July 27, 2001), even though the first one had been in effect since May 31st. See 66
Fed. Reg. 44590 (August 24, 2001) and 66 Fed. Reg. 44111 (August 22, 2001).
61I.D. No. 7710-2001-3 and I.D. No. 1920-2001-1, both effective December 14, 2001. 66
Fed. Reg. 65796.

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though they are now superseded. Therefore, it is not clear which of the previous
materials is still in effect. For example, some of former FSM §7712.16 (that
contained many specific details on permissible road construction) is expressly revised
in the December Directives (notably the former requirements for protection of
contiguous areas and the requirement for preparation of an EIS for projects in
roadless areas are eliminated) and the explanatory materials state that the revised
provisions are then moved to appear in the Planning part of the Manual as new §1925.
Yet other provisions that were in §7712.16 are neither discussed as superseded or
modified, nor set out in new §1925. One example is that the previous requirement for
a “compelling need” for the road project has disappeared without comment.62 These
ambiguities make analysis of and comment on the December Directives difficult,
which could affect public comment. Some of the discussion of the December
Directive that follows in this report, therefore, may be modified if the agency or the
courts clarify the Directive.
As with earlier directives, the December directive was already in effect (as of
December 14, 2001) when published, but retroactive comment was invited – to be
considered if final directives are developed. However, the interim directive is only to
be in effect for 18 months, unless this time is extended to 36 months, and also
apparently ceases to apply once a forest plan has been revised or amended.
As noted, the December directive moved some provisions that more directly
address roadless area management into the planning part of the Manual. Only
inventoried roadless areas are subject to the interim requirements. The December
Directive continues to reserve, as did the earlier ones, authority to the Chief to
approve or disapprove certain proposed timber harvests in inventoried roadless areas
until a plan revision or amendment is completed “that has considered the protection
and management of inventoried roadless areas pursuant to FSM 1920.” It also
provides that the Chief may designate an Associate Chief, Deputy Chief, or Associate
Deputy Chief on a case-by-case basis to be the responsible official.
The Regional Forester is to screen timber harvest projects in inventoried roadless
areas for possible referral to the Chief. The Chief is to make decisions regarding
harvests except for those that are: 1) generally of small diameter material the removal
of which is needed for habitat or ecosystem reasons (including reducing fire risk), 2)
incidental to a management activity not prohibited under the plan; 3) needed for
personal or administrative use; or 4) in a portion of an inventoried roadless area where
harvests have previously taken place and the roadless characteristics have been
substantially altered. Decisions as to these harvests are to be made by forest officers
normally delegated such authority under existing FSM §2404.2, which is unchanged.
(These delegations include Forest Service line officers.)
62Another example is §7712.16b, paragraph 3, which distinguished between classified and
unclassified forest roads and stated that environmental mitigation and environmental
restoration of unclassified roads are appropriate in inventoried roadless and contiguous
unroaded areas and must follow NEPA-based decisionmaking processes. However,
reconstruction or maintenance of unclassified roads in inventoried roadless and contiguous
unroaded areas is inappropriate, other than to prevent or correct resource damage, as such
activity would lead to de facto road development. It is not clear whether this direction is now
repealed.

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The December directive states that the Chief’s authority with respect to timber
harvests “does not apply” if a Record of Decision for a forest plan revision was issued
as of July 27, 2001 – as was true of the Tongass National Forest – and will otherwise
terminate when a plan revision or amendment that has considered the protection and
management of inventoried roadless areas is completed.63
The Chief’s authority with respect to road construction is to remain in effect until
a forest-scale roads analysis is completed and incorporated into each forest plan, at
which point it terminates.64 The Regional Forester is to make many decisions on road
construction projects under new §1925.04b. There is no express provision in that
section for termination of the authority of the Regional forester. However, the
general policy section, 1925.03, keys termination of the special provisions to
completion of a roads analysis and its incorporation into the relevant forest plan:
Inventoried roadless areas contain important environmental
values that warrant protection. Accordingly, until a forest-scale
roads analysis (FSM7712.13b) is completed and incorporated
into a forest plan, inventoried roadless areas shall, as a general
rule, be managed to preserve their roadless characteristics.
However, where a line officer determines that an exception may
be warranted, the decision to approve a road management
activity or timber harvest in these areas is reserved to the Chief
or the Regional Forester as provided in FSM 1925.04a and
1925.04b.65
Under FSM 1925.04a, the Chief has approval authority over all road
construction and reconstruction except those decisions delegated to the Regional
Forester. Under FSM 1925.04b, the Regional Forester is to screen proposed road
projects, forward certain of them to the Chief for approval, but be the deciding officer
for many decisions on road projects in inventoried roadless areas, such as when a road
is needed:
to protect public health and safety in cases of an imminent threat
of flood, fire, or other catastrophic event that, without
intervention would cause the loss of life or property
to conduct a Superfund response or to conduct a natural
resources restoration action under Superfund, §311 of the Clean
Water Act, or Oil Pollution Act
63FSM §1925.04a. 66 Fed. Reg. 65,801-65,802. Therefore, if the interim direction does not
apply to Tongass, and the new roadless area rule is enjoined, it appears that the usual forest
line officers may approve timber harvests in that forest under the procedures and provisions
in place before the new roadless area management rule and in accordance with the plan for
that forest. Whether a plan adequately considered the protection of roadless areas may present
additional issues.
64Id., at 65,801.
6566 Fed. Reg. 65,801.

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in conjunction with the continuation extension, or renewal of a
mineral lease on lands under lease as of January 12, 2001
pursuant to reserved or outstanding rights or as provided by
statute or treaty
for critical resource restoration and protection
to prevent resource damage by an existing road that is deemed
essential for public or private access, management, or public
health or safety, and where such damage cannot be corrected by
maintenance; or
to restore wildlife habitat.
Note that the December Directive apparently eliminates the requirement that
there be a compelling need for a road and also eliminates the requirements for a
science-based analysis and a full EIS in all cases. In addition, the applicability of the
interim direction to certain important contiguous areas also is eliminated. Although
the responsible official may still do an EIS and may protect contiguous areas, and a
compelling need for a road may exist in some instances, less protection to roadless
areas may result because while the new directive permits protection, it does not
contain the higher thresholds for approval of activities and more formalized
documentation requirements of the previous direction.
Proposed changes to “categorical exclusions.” A proposed change to
NEPA documentation requirements also could significantly affect the roadless areas.
Under NEPA, agencies must prepare an EIS for proposed actions that might have a
significant effect on the human environment. If it is not clear whether if an action
might have such an effect, the agency is to prepare an environmental assessment (EA)
to determine if an EIS is necessary. Depending on what the EA finds, preparation of
an EIS may then follow, or the agency may issue a Finding of No Significant Impact
(FONSI), in which case no further analysis is required. However, some actions have
been shown to have so little effect on the environment that not even an EA is
necessary. An agency may indicate what these clearly non-harmful actions are
through its articulation of “categorical exclusions” – actions that are excluded from
preparation of even an EA.66
Currently, the categorical exclusions portion of the FS Handbook sets out types
of activities that normally would be excluded from NEPA documents – unless
extraordinary circumstances are present. One of the listed extraordinary
circumstances is the presence of inventoried roadless areas. Extraordinary
circumstances are currently defined as “conditions associated with a normally
excluded action that are identified during scoping as potentially having effects which
may significantly affect the environment.” (Emphasis added.) The presence of an
extraordinary circumstance arguably removes the proposed action from qualifying as
a categorical exclusion and requires the preparation of an EA in order to probe further
6640 C.F.R. 1508.4.

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the possible environmental effects. This is the interpretation of the Handbook section
and its legislative history in a Seventh Circuit case.67
New interim guidance (pending final changes to the Handbook expected in
several years) has been proposed68 that would seemingly change this posture such that
the presence of an extraordinary circumstance would not preclude an action from
being a categorical exclusion if the responsible official determines there would be no
significant environmental effects – indeed, under the new directive a circumstance is
“extraordinary” only if the responsible official determines it is because it would have
a significant effect.69 This is a significant change from the current text and appears
arguably contrary to the intent of NEPA that such conclusions as to environmental
effects should both follow and rest upon analysis in order to produce better
decisions.70
In defense of the change, the explanatory material asserts that there is a split in
the decisions of the circuits on the effects of the presence of extraordinary
circumstances, and that the Ninth Circuit has held that an agency may issue a
categorical exclusion even where a certain resource condition, such as the presence
of threatened or endangered species, is present.71 However, the cited case involved
67Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
6866 Fed. Reg. 48412 (September 20, 2001).
69The proposed directive would change the definition of “extraordinary circumstance” to take
out some of its reference to possible but uncertain effects. Current wording defines the term
in FSH 1909.15, par. 2 as: “Conditions associated with a normally excluded action that are
identified during scoping as potentially having effects which may significantly affect the
environment.” The new wording would be: “where a proposed action normally excluded from
documentation in an EIS or EA is identified as potentially having a significant effect on
resource conditions as set out in section 30.3, paragraphs 2a through 2g.” This change
facilitates the next change.
New FSH 1909.15 §30.3 - 1b states that a proposed action may be categorically excluded
from documentation in an EIS or an EA only if the proposed action is within the categories
of excluded actions “and there are no instances of extraordinary circumstances (as described
in the following para.2 and defined in sec. 30.5) related to the proposed action that could
result in a significant environmental effect.” “2. Extraordinary circumstances (as defined in
sec. 30.5) occur when a proposed action would have a significant effect on the resource
conditions .... The responsible official may issue a categorical exclusion even when one or
more of the resource conditions listed in paragraphs 2a through 2g [including roadless areas]
are present only if the official determines on a case-by-case basis that the proposed action
would not have a significant effect on these resource conditions and thus an instance of
extraordinary circumstances does not exist for that proposed action.
” (Emphasis added.)
A commensurate change is made in 31.2 (2), which states that a project file regarding an
action on which a decision memo is required to be documented must include “the
determination that no instance of extraordinary circumstances related to the proposed action
exists that may have a significant environmental effect on resource conditions....”
70See e.g., 40 C.F.R. §1500.1(c).
71Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F. 3d 1443, 1450 (9th
Cir. 1996).

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a salvage sale under §2001 of the Rescissions Act,72 a statute that sets out a very
narrow scope of judicial review of environmental decisions and a very broad range of
discretion in the Secretary to determine the adequacy of any environmental reviews.
In contrast, the Seventh Circuit opinion, which analyzed the wording and derivation
of the current categorical exclusion provisions was not so contextually limited, and
hence is arguably more on point.73
That the difference in language is important can be seen from the fact that one
of the actions categorically excluded from NEPA analysis absent extraordinary
circumstances is a salvage sale of one million board feet of wood. Arguably, under
the proposed language such a sale could be conducted in a roadless area (and possibly
in a roadless area with endangered or threatened species) if the official simply
determines, without the necessity of written documentation of the underlying analysis
relied upon, that there would be no significant environmental effects.
Conclusions
Management of the roadless areas of the National Forest System has been
addressed by two administrations through a complex series of interrelated actions on
roads, roadless areas, and forest planning. Although it is very difficult to say with any
certainty exactly what management requirements and direction currently apply, or
who the decision-makers are to be in any particular instance, it appears that the
roadless areas may still enjoy some degree of protection greater than before the
Clinton Administration began its initiatives, but less than would have been the case if
those measures were fully in effect. In addition, it could be argued that while
environmental analyses and protection are permissible, and may in fact ensue under
the new management directives, those outcomes are neither compelled nor as likely
as they would have been under the previous management prescriptions and policies.
Rather, it appears that more roads and activities are likely to be allowed under the
new management direction, should it be fully implemented. Lastly, the proposed
changes to categorical exclusions, if finalized, arguably would allow the authorization
of certain actions in roadless areas without written environmental analyses.
72Pub. L. No. 104-19, 109 Stat. 194, 240-247.
73Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).