Order Code RL30647
Report for Congress
Received through the CRS Web
The National Forest System
Roadless Areas Initiative
Updated May 22, 2003
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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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 was resulting in controversy and litigation that consumed considerable time and
money, the Clinton Administration established a new nationwide 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 most road construction and reconstruction in 58.5
million acres of inventoried forest roadless areas, with significant exceptions. Most
timber cutting in roadless areas also was prohibited, with some exceptions, including
improving habitat for threatened, endangered, proposed, or sensitive species, or
reducing the risk of wildfire and disease. The new prohibitions would have applied
immediately to the Tongass National Forest in Alaska, but roads and harvests in
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 preliminarily enjoined its
implementation. The Forest Service has issued interim management directives that
largely reverse the Clinton roadless rule. Although the directives are unclear, it
appears that environmental analyses and protection of roadless areas would be
permitted but neither be 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.
The Administration has also filed an Advanced Notice of Proposed Rulemaking for
the roadless areas, but no rules have yet been proposed. However, a proposed Rule
on forest planning has been issued that, if finalized, would also return management
decisions regarding roadless areas to the individual forest level. 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,
but final direction has not yet been issued.
The Ninth Circuit reversed the district court and has denied Idaho’s request for
additional review. There has not yet been any action on remand to the district court,
and there is some dispute as to whether the injunction is or is not still in effect. If the
injunction is lifted, the roadless rule may then be in effect for some or all of the
forests. 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.

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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
A Chronology of 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
Comments on Possible Roadless Changes . . . . . . . . . . . . . . . . . . . . . . 21
Ninth Circuit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
What Now? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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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. Implementation of the rule
was enjoined on May 10, 2001, but this district court decision was reversed and
remanded by the 9th Circuit.
The Bush Administration has published a notice of intent to revise the roadless
rule, has 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
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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regulations on the roadless areas have not yet been published, but new proposed
forest planning rules that could affect the roadless areas have been.
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
2 Memorandum from President William J. Clinton to the Secretary of Agriculture on
Protection of Forest ‘Roadless’ Areas, October 13, 1999.
3 64 Fed. Reg. 56,306.
4 65 Fed. Reg. 30,276.
5 66 Fed Reg. 3,244 (January 12, 2001).
6 Id., at 3,246.
7 63 Fed. Reg. 4,350, regarding regulations at 36 C.F.R. § 212.
8 63 Fed. Reg. 4,354.

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areas, 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
9 64 Fed. Reg. 7,290 (February 12, 1999).
10 65 Fed. Reg 11,680 (March 3, 2000).
11 65 Fed. Reg. 11,684.
12 66 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.
14 66 Fed. Reg. 3,230.
15 65 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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new planning rules was also enjoined in the case that has now been reversed. The
date for compliance with the new planning regulations was extended.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 1964 Wilderness Act ,25 recognized that the FS had
been managing some forest areas as administrative wilderness or natural areas. What
16 The 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.
17 Act of June 4, 1897, ch. 2, 30 Stat. 34.
18 Pub. L. No. 86-517, 74 Stat. 215.
19 Pub. L. No. 94-588, 90 Stat. 2949, primarily amending Pub. L. No. 93-378.
20 16 U.S.C. § 475.
21 16 U.S.C. § 551.
22 16 U.S.C. § 531.
23 16 U.S.C. § 528.
24 16 U.S.C. § 529.
25 Pub. L. No. 88-577, 78 Stat. 890.

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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
roadless areas serve, including water quality protection, backcountry recreation, and
habitat for wildlife; opponents assert that the formal congressional wilderness review
26 16 U.S.C. § 531.
27 16 U.S.C. § 1604(g). Note that “wilderness” management is again mentioned, twelve
years after enactment of the Wilderness Act.
28 Pub. L. No. 88-577, supra.

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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
restoration action under CERCLA, Section 311 of the Clean
Water Act, or the Oil Pollution Act;
29 66 Fed. Reg. 3,245 (January 12, 2001).
30 Id., at 3,246.

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(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 Clinton Administration’s planning
rule of November 9, 2000 indicated that it 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 additional
protection and the level of protection to be afforded.”36
31 New 36 C.F.R. § 294.13(b)(1), 66 Fed. Reg. 3,273.
32 Id., § 294.13(b)(2)-(4).
33 Id., § 294.14(a) and (c).
34 Id., § 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.
36 65 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.
37 Note 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
38 66 Fed. Reg. 3,249.
39 Pub. L. No. 88-577, 78 Stat. 890.
40 Pub. L. No. 86-517, 74 Stat. 215.
41 16 U.S.C. § 1604(e).
42 See, 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.

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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.
43 66 Fed. Reg. 3,249, quoting 65 Fed. Reg. 67,523.
44 66 Fed. Reg. 3,249.
45 16 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).
46 36 C.F.R. § 219.8 (2000).
47 36 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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CRS-12
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
A Chronology of 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
48 Southern 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).
49 Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1317 (W.D. Wash. 1994.)
50 Seattle Audubon Society v. Moseley, 80 F. 3d 1401 (9th Cir. 1996).
51 See 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.
52 Memorandum 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.

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CRS-13
published 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
53 Several 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.
54 Under 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
(continued...)

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CRS-14
disapproved the 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 in other states 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
54 (...continued)
may be relevant to 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.
55 66 Fed. Reg. 8,899.
56 The 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.”
57 Idaho 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.

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CRS-15
period had ended), inadequate information was presented during the scoping process
(FS employees were alleged to be 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 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
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 environmental groups who
had been granted intervenor status did appeal. Several other lawsuits have been filed,
including suits in North Dakota, Idaho, Alaska and the District of Columbia, raising
various issues. The Ninth Circuit reversed the district court and remanded the case
to the district court, as will be discussed further below.
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, on such questions as: what is the appropriate role of local
forest planning in evaluating roadless management; what are the best ways to work
58 USDA News Release No. 0075.01.

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CRS-16
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 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 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.
59 66 Fed. Reg. 3,219.
60 The 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).
61 I.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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CRS-17
However, the final text of new FSM §1925 does not show these undiscussed earlier
provisions – as 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
62 Another 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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CRS-18
§2404.2, which is unchanged. (These delegations include Forest Service line
officers.)
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
63 FSM §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.
64 Id., at 65,801.
65 66 Fed. Reg. 65,801.

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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
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
66 40 C.F.R. 1508.4.

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CRS-20
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 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
67 Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
68 66 Fed. Reg. 48412 (September 20, 2001).
69 The 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....”
70 See e.g., 40 C.F.R. §1500.1(c).

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of threatened or endangered species, is found.71 However, the cited case involved 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.
Comments on Possible Roadless Changes. On June 26, 2002, the
Forest Service released its summary report dated May 31, 2002 on the public
comments received in response to the Advance Notice of Proposed Rulemaking. The
Forest Service received approximately 726,000 responses, said to be mostly form
letters to the 10 questions, but which included 52,432 original responses. The report
includes appendices that describe the system used to analyze the comments, and
urges caution in relying on the gist of the comments received, in that “respondents
are self-selected; therefore their comments do not necessarily represent the
sentiments of the entire population. The analysis attempts to provide fair
representation of the wide range of views submitted, but makes no attempt to treat
input as if it were a vote.” Appendix E indicates that the overwhelming number of
“organized” responses were in favor of the Roadless Rule.74
Ninth Circuit Decision. On December 12, 2002,75 the Ninth Circuit reversed
the district court stating:
We hold that the district court had discretion to permit intervention, under Fed.
R. Civ. P. 24(b), and intervenors now can bring this appeal under Fed. R. Civ. P.
24(b); that plaintiffs have standing to challenge the Roadless Rule; and, assessing
71 Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F. 3d 1443, 1450
(9th Cir. 1996).
72 Pub. L. No. 104-19, 109 Stat. 194, 240-247.
73 Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
74 The Report on the Public Comments can be reached via the June 26, 2002 News Release
at [http://www.roadless.fs.fed.us]. The Ninth Circuit pointed out that the Attorney General
of Montana had asserted that nationally “96% of commenters favored stronger protections.”
Kootenai Tribe of Idaho v. Veneman, 313 F. 3d 1094 (9th Cir. 2003).
75 313 F. 3d 1094 (9th Cir. 2003).

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the merits, that the district court abused its discretion in granting (sic)
preliminary injunction against implementation of the Roadless Rule.76
. . . .
Because of its incorrect legal conclusion on prospects of success, the district
court proceeded on an incorrect legal premise, applied the wrong standard for
injunction, and abused its discretion in issuing a preliminary injunction.77
Idaho’s petitions for panel rehearing was denied on April 4, 2003.
In reaching its conclusions, the Ninth Circuit reviewed the substantive grounds
considered by the district court and disagreed that plaintiffs had demonstrated a
likelihood of success on the merits, finding instead that the Forest Service did
adequately comply with NEPA in its provision for public comment on the Roadless
Rule because the maps provided did not suffer from the grave inadequacies alleged
by plaintiffs, plaintiffs had actual notice as to the roadless areas that would be
affected, and at most possibly inadequate maps would only affect the propriety of the
Rule on the 4.2 million acres added during the EIS process. The court also found that
the Forest Service had provided more than the minimum required amount of time for
comment, the time allowed was adequate,78 and that the EIS considered an adequate
range of alternatives.79 Because it felt that the district court wrongfully found that
plaintiffs were likely to succeed on the merits, the appellate court concluded that the
district court accepted only a minimal showing of irreparable harm and incorrectly
issued the injunction.
Most of the unfavorable response to the decision has focused on whether it was
proper for the intervenors to bring the appeal when the government did not. It will
be recalled that the case came forward in an unusual context: although several
statutes were initially involved in the lawsuits, the district court decision focused on
the inadequacy of the federal defendants’ NEPA compliance, a decision the federal
defendants did not appeal. Certain environmental groups had been granted
intervenor status and appealed the district court’s ruling. The decision of the Ninth
Circuit raises significant issues relating to whether the intervenor groups could appeal
NEPA-compliance rulings when the federal defendants – the only ones who could
comply with NEPA – did not.
Under Rule 24 of the Federal Rules of Civil Procedure, a potential intervenor
must meet certain criteria to intervene, either as of right under Rule 24(a) or with the
permission of the court under Rule 24(b). Earlier cases, including two in the Ninth
Circuit, have held that only the federal government can defend the adequacy of its
76 Id. at 1104.
77 Id. at 1126.
78 Id. at 1118-1119.
79 Id. at 1120-1121.

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NEPA compliance,80 and the dissenting opinion questions whether the majority
adequately established that the appealing intervenors fit within even permissive
intervention under Rule 24(b). The majority held that the district court erred to the
extent it permitted intervention under Rule 24(a), but found intervention proper under
Rule 24(b). In reaching this conclusion, the court quoted from a leading treatise
which seems to postulate generous grounds for allowing intervention.81 In a search
for “independent jurisdictional grounds”sufficient to support intervention to pursue
an appeal abandoned by the other parties, the court looked to the standing of the
intervenor applicants. The court determined that the applicants need not show that
they independently could have sued the party who prevailed in district court, but need
allege only a threat of injury stemming from the order they seek to reverse, an injury
which would be redressed if they win on appeal.82 The court stated that “intervenors
asserted their interests related to the Roadless Rule in moving to intervene,”83 but did
not clearly set out what those interests were. Possibly, they are the “interest in the
use and enjoyment of roadless lands and in the conservation of roadless lands in the
national forest lands subject to the roadless Rule” discussed on p. 20. The court also
discussed the fact that the district court expressly noted the magnitude of the case and
that “the applicants’ intervention will contribute to the equitable resolution of this
case,” to which opinion the appellate court added that the presence of intervenors
would “assist the court in its orderly procedures leading to the resolution of this case,
which impacted large and varied interests.”84 This approach echoes another Ninth
Circuit opinion that had applied a generous approach to intervention saying: “[a]
liberal policy in favor of intervention serves both efficient resolution of issues and
broadened access to the courts. By allowing parties with a practical interest in the
outcome of a particular case to intervene, we often prevent or simplify future
litigation involving related issues; at the same time we allow an additional interested
80 An earlier Ninth Circuit case, Churchill v. Babbitt, 150 F. 3d 1072, as amended by 158
F. 3d 491 (9th Cir. 1998) held that the district court in that instance did not err in allowing
Intervenors under Rule 24(a) to intervene only as to the remedial part of the case. In
Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989) the court held that
environmental intervenors did not qualify under Rule 24(a) to intervene as of right to defend
a NEPA challenge although they evidently were allowed intervenor status on other claims.
This latter case referred to an earlier Seventh Circuit case (Wade v. Goldschmidt, 673 F. 2d
182 (7th Cir. 1982)) in which the court denied intervenor status to an applicant because it
failed to assert an interest sufficient to warrant intervention as of right under Rule 24(a) in
the context of a NEPA challenge, stating: “In a suit such as this, brought to require
compliance with federal statues regulating governmental projects, the governmental bodies
charged with compliance can be the only defendants.” (Wade, at 185.) Furthermore, the
court found that “as it should be clear from our discussion of intervention of right,” the
applicants did not have “a question of law or fact in common” to satisfy the requirement for
permissive intervention under Rule 24(b).
81 Kootenai, at 1109.
82 Id.
83 Id. at 1111.
84 Id. at 20-21.

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party to express its views before the court.”85 This same court approached the
‘interest’ test of Rule 24(b) generously as “primarily a practical guide to disposing
of lawsuits by involving as many apparently concerned persons as is compatible with
efficiency and due process.”86
Several of the other lawsuits challenging the Roadless Rule were stayed pending
the decision by the Ninth Circuit, but suits in North Dakota and Wyoming are now
proceeding.
What Now? The Ninth Circuit denied Idaho’s petition for rehearing, and the
case has been remanded to the district court to reconsider its previous reasoning and
injunction in light of the opinion of the higher court. There appears to be a difference
of opinion as to whether the injunction has been automatically lifted or whether the
district court must now act to do so; no action has been taken by the district court.
If the injunction is lifted and the current Administration has not finalized new
regulations with respect to the roadless areas, then the question becomes what
management is in effect regarding them. It will be recalled that even the Clinton
Administration on January 12, 2001 had issued interim direction for the management
of roadless areas until a roads analysis had been completed and incorporated into
relevant forest plans. This interim direction was followed by other interim directives
issued by the Bush Administration in light of the injunction. Therefore, the import
of the lifting of the injunction against implementation of the Roadless Rule is not
clear. Possibly, the Forest Service will propose new roadless regulations, or simply
suspend or eliminate the Roadless Rule in light of the recently proposed new
planning regulations.
Depending on how they are finalized, the new proposed planning regulations
published on December 6, 200287 may obviate the need for a separate Roadless Rule
by reiterating the stance of the Bush Administration’s interim directives in returning
roadless area management to the forest-by-forest planning processes. Furthermore,
under proposed 36 C.F.R. §219.4(a)(4), all National Forest System lands, including
roadless areas, are to be assumed potentially suitable for a variety of uses – including
commercial timber harvest – unless a plan excludes them as not suited for one or
more uses. The categories set out as mandatory exclusions do not include roadless
areas, nor are they mentioned as an example of a discretionary special designation or
“other management area” in § 219.4(a)(5), and may be scheduled for more active
management than has previously been the case.
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 the court decision enjoining
85 Forest Conservation Council v. Forest Service, 66 F. 3d 1489, 1496 n.8 (9th Cir.
1995)(citation omitted).
86 Id. at1497.
87 67 Fed. Reg. 72770.

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implementation of the Clinton Administration’s Roadless Rule has now been
reversed, it is not clear what management applies at the current time. If the Bush
Administration’s interim management directives apply, 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. Also, the proposed changes to categorical exclusions,
if finalized, arguably would allow the authorization of certain actions in roadless
areas without written environmental analyses. If the new planning regulations
proposed on December 6, 2002 are finalized as proposed, the roadless areas may be
presumed available for a variety of uses, including timber harvests, subject to unit-
by-unit planning processes and a separate roadless area rule could be unnecessary.

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