Order Code RL30647
CRS Report for Congress
Received through the CRS Web
The National Forest System
Roadless Areas Initiative
Updated September 7, 2006
Pamela Baldwin
Legislative Attorney
American Law Division
Ross Gorte
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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The National Forest System Roadless Areas Initiative
Summary
The roadless areas of the National Forest System have received special
management attention for decades. In part to recognize the importance of national
forest 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, 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. With
some exceptions, the new prohibitions would have applied immediately to the
Tongass National Forest in Alaska.
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 preliminarily enjoined its
implementation. The Ninth Circuit reversed the Idaho district court, but on July 14,
2003, the Federal District Court for Wyoming again permanently enjoined
implementation of the Rule. This holding was appealed but dismissed as moot by the
10th Circuit. A final rule “temporarily” exempting the Tongass National Forest
(Alaska) from the roadless rule was published December 30, 2003. On July 16,
2004, a new general roadless rule was proposed and a new final rule was published
on May 13, 2005. The new rule eliminates the need for a separate Tongass rule, and
replaces the Clinton roadless rule with a procedure whereby the governor of a state
may petition the Secretary of Agriculture to promulgate a special rule for the
management of roadless areas in that state, and make recommendations for that
management. The new rule contains no standards by which the Secretary is to review
a state’s recommendations, and does not address the weight to be given to the views
of local residents versus those of out-of-state residents with an interest in the public
lands. Five states, including New Mexico and California, have filed petitions so far
and those of Virginia, North Carolina, and South Carolina have been approved.
Other states have until November 13, 2006, to file petitions under the special
procedure or may seek a rule change thereafter under 7 C.F.R. § 1.28.
A new final forest planning rule was also published on January 5, 2005. The
rule does not address roadless areas at all, but does require review of areas that might
be suitable for wilderness designation when plans are revised.
This report traces the development and content of the roadless area rules and
directives, describes the statutory background, reviews recent 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Roadless Areas: Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Final Clinton Administration Roadless Area Rule . . . . . . . . . . . . . . . . . . . . . 7
Can “De Facto” Wilderness Areas Be Created Administratively? . . . . . . . . . . . . 9
Administrative Actions and Litigation Since January 20, 2001 . . . . . . . . . . . . . 12
The “Card” Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Effective Date Postponed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Implementation Enjoined — Part 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Advance Notice of Proposed Rulemaking on Roadless Area
Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Interim Management of Inventoried Roadless Areas I . . . . . . . . . . . . . . . . 16
Interim Management of Inventoried Roadless Areas II . . . . . . . . . . . . . . . . 16
Changes to “Categorical Exclusions” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Comments on Possible Roadless Changes . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ninth Circuit Decision on 1st Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Interim Implementation; Tongass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Implementation Enjoined — Part 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
New Proposed Roadless Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Interim Management of Inventoried Roadless Areas III . . . . . . . . . . . . . . . 24
New Forest Planning Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2005 Roadless Area Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Advisory Committee Established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Multi-State Lawsuit to Enjoin 2005 Roadless Area Rule . . . . . . . . . . . . . . 29
Initial State Responses to 2005 Roadless Area Rule . . . . . . . . . . . . . . . . . . 29
State Petition Submissions and Responses . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pending Legislative Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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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. However, the rule was again enjoined by the Wyoming
District Court on July 14, 2003, on NEPA grounds and because the court concluded
it created de facto wilderness. This decision was appealed by intervenors to the 10th
Circuit but was dismissed as moot in light of the fact that the challenged roadless rule
has now been replaced.
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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The Bush Administration put into effect an initial set of interim directives
regarding roadless area management, solicited comments retroactively on the interim
directives and on the management of roadless areas in general, and finalized a
directive altering the requirements for preparation of NEPA documents in some
instances. A rule exempting the Tongass National Forest in Alaska from the Clinton
rule was then published, pending other possible rule changes to address the
application of the roadless rule in Alaska. On July 16, 2004, new roadless rules were
proposed that would eliminate the previous rule and provide a new procedure for the
governor of a state to petition the Secretary of Agriculture for a state-wide rule on the
management of roadless areas. In the meantime, roadless areas would be managed
under the interim direction, with some modifications. New final forest planning rules
were published on January 5, 2005, and a new round of interim directives was
published. A new final roadless area rule was published on May 13, 2005 that
returns roadless area management to the general forest planning processes, unless the
governor of a state petitions for a special state-specific rule.2 Five states — Virginia,
North Carolina, South Carolina, New Mexico, and California — have now petitioned
for special state-wide rules, and the first three of these have been approved. Other
states have until November 13, 2006, to file petitions under the roadless rule
procedures or may petition for a rule change under 7 C.F.R. § 1.28 thereafter.
This report focuses on the roadless areas initiative, 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 areas.
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.”3 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;4 a draft EIS (DEIS) was issued in May, 2000, and accompanying
regulations were proposed on May 10, 2000;5 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, 2001.6
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
2 70 Fed. Reg. 25,654.
3 Memorandum from President William J. Clinton to the Secretary of Agriculture on
Protection of Forest ‘Roadless’ Areas, Oct. 13, 1999.
4 64 Fed. Reg. 56,306.
5 65 Fed. Reg. 30,276.
6 66 Fed Reg. 3,244 (January 12, 2001), adding 36 C.F.R. § 294, Subpart B..

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expense on appeals and litigation, such that national-level guidance was deemed
advisable.7
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,8 and also proposed an interim rule to
temporarily suspend road construction and reconstruction in certain NFS unroaded
areas.9 On February 12, 1999, the agency published a final interim rule that
temporarily suspended road construction and reconstruction in unroaded areas, and
provided certain procedures related to such areas.10 A proposed rule11 and proposed
administrative policy12 regarding the Forest Development Transportation System
were published on March 3, 2000. Final Roads rules (36 C.F.R. §212) and a
transportation policy were published on January 12, 2001, both effective on that
date.13 (Note that the final roadless area management rule also was published on that
date.) Certain terms were changed in the final rule,14 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 Bush Administration.
7 Id., at 3,246.
8 63 Fed. Reg. 4,350, regarding regulations at 36 C.F.R. § 212.
9 63 Fed. Reg. 4,354.
10 64 Fed. Reg. 7,290 (Feb. 12, 1999).
11 65 Fed. Reg 11,680 (Mar. 3, 2000).
12 65 Fed. Reg. 11,684.
13 66 Fed. Reg 3,206 and 3,219 respectively.
14 “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.

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Under 36 C.F.R. § 212.5(b),15 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, though new rules have been proposed.
Planning
On a third track, the Forest Service on November 9, 2000, issued final new
planning regulations, effective on that date.16 However, new planning regulations
were again proposed on December 6, 2002, and the date for compliance with the
2000 planning regulations was extended,17 — which had the effect of restoring the
1982 planning regulations until new planning regulations were finalized. New
regulations were published on January 5, 2005.18
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 1897,19 the Multiple-Use Sustained-Yield Act
of 1960,20 and the National Forest Management Act of 1976.21 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 ....”22 The
15 66 Fed. Reg. 3,230.
16 65 Fed. Reg. 67,514. Revising the planning regulations has been a contentious issue for
the Forest Service for quite some time.
17 The compliance date was extended in an interim final rule, 66 Fed. Reg. 27,552 (May 17,
2001). Compliance with the 2000 regulations was later postponed until new planning
regulations are finalized. 67 Fed. Reg. 35,431 (May 20, 2002). See also extension of
compliance for projects implementing plans, 68 Fed. Reg. 53,294 (September 10, 2003).
18 70 Fed. Reg. 1,023.
19 Act of June 4, 1897, ch. 2, 30 Stat. 34.
20 P.L. 86-517, 74 Stat. 215.
21 P.L. 94-588, 90 Stat. 2949, primarily amending P.L. 93-378.
22 16 U.S.C. § 475.

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1897 Act also authorizes the Secretary to issue regulations to “regulate the occupancy
and use of the forests and to preserve them from destruction ....”23
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.”24 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”25 and that “[t]he establishment and maintenance of areas of wilderness
are consistent with the purposes and provisions of [the act.]”26 This latter language,
which preceded enactment of the 1964 Wilderness Act ,27 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.”28 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.”29
23 16 U.S.C. § 551.
24 16 U.S.C. § 531.
25 16 U.S.C. § 528.
26 16 U.S.C. § 529.
27 P.L. 88-577, 78 Stat. 890.
28 16 U.S.C. § 531.
29 16 U.S.C. § 1604(g). Note that “wilderness” management is again mentioned, twelve
(continued...)

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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,30 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
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 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.31 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,
29 (...continued)
years after enactment of the Wilderness Act.
30 P.L. 88-577, supra.
31 66 Fed. Reg. 3,245 (Jan. 12, 2001).

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fragment ecosystems, introduce non-native species, compromise habitat, and increase
air pollution.32
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;
(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
32 Id., at 3,246.

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(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
maintain or restore ecosystem composition and structure, such as to reduce the
risk of uncharacteristic wildfire effects.33
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.34
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, 2001.35 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
33 New 36 C.F.R. § 294.13(b)(1), 66 Fed. Reg. 3,273.
34 Id., § 294.13(b)(2)-(4).
35 Id., § 294.14(a) and (c).

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12, 2001.36 These provisions would have grandfathered the activities addressed, but
otherwise the new rule would have applied to the Tongass immediately.37
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.”38
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. 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.
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 Clinton roadless area regulation stated
that the regulation preserves “multiple use” management and that a wide range of
multiple uses were permitted in inventoried roadless areas subject to the management
direction in forest plans before the roadless rule, and that a wide range of multiple
uses would still be allowable under the new 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
36 Id., § 294.14(d).
37 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 five-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.
38 65 Fed. Reg. 67,529.

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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 ....
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 ....39
Certainly, only Congress can designate areas for inclusion in the National
Wilderness Preservation System.40 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 states that “the establishment and maintenance of wilderness areas
is consistent with [MUSYA’s] purposes.”41 The NFMA (enacted after the
Wilderness Act), directs that forest plans “assure ... coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and wilderness ....”42
Therefore, it appears that, as a general matter, some new prohibitions on activities in
roadless areas could lawfully be imposed administratively and the roadless rule might
be defended as appropriate management of non-timber resources for multiple use
purposes (such as outdoor recreation, mineral development, game and other wildlife),
yielding those benefits without permanent impairment of the lands. However, it also
is possible that, as applied, restrictions that were severe and extensive might be
challenged as violating the “sustained yield” aspects of the MUSYA.
Some of these issues have been raised in suits challenging the roadless area rule,
and on July 14, 2003, Judge Brimmer of the Federal District Court for Wyoming
permanently enjoined the roadless rule, in part on NEPA grounds and in part on the
ground that it was a “thinly veiled attempt to designate ‘wilderness areas’ in violation
of the clear and unambiguous process established by the Wilderness Act for such
designation.”43 The court equated the roadless areas with de facto wilderness, noted
the severity of the restrictions under the roadless rule, which the court characterized
as restrictive, or more so, than that of congressionally designated wilderness areas,44
39 66 Fed. Reg. 3,249.
40 P.L. 88-577, 78 Stat. 890.
41 P.L. 86-517, 74 Stat. 215, 16 U.S.C. § 529.
42 16 U.S.C. § 1604(e).
43 Wyoming v. U.S. Department of Agriculture, 277 F. Supp. 2d 1197, 1239 (D. Wyo 2003).
44 The court reviewed the exceptions by which roads could be allowed in roadless areas
under the rule, but did not mention that Federal Aid Highways could be permitted in some
instances (p. 1236). On the other hand, the court noted that the roadless rule was more
constrained with respect to constructing roads in roadless areas in order to combat problem
(continued...)

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CRS-11
and that the argument that the roadless rule permits multiple uses (such as motorized
uses, grazing, and oil and gas development) to proceed so long as roads were not
constructed “fails because all of those uses would, in fact, require the construction
or use of a road.”45 Because it felt that the roadless areas under the new rule were
tantamount to wilderness areas, the court concluded that the rule was “in violation
of the clear and unambiguous process established by the Wilderness Act for such
Designation.”46 The court did not reach Wyoming’s assertions that the roadless rule
also violated NFMA and MUSYA, but did mention that the Wilderness Act
“provides protection for a use of the National Forests that was not contemplated by
either the Organic Act or the MUSYA ...,”47 and repeatedly equated roadless areas
generally with congressionally designated wilderness.
As discussed above, both MUSYA and NFMA mention wilderness as a use of
the national forests, a point the Brimmer opinion did not discuss. Furthermore, in the
compromise “release” language in state-by-state wilderness acts since the mid-1980s,
Congress repeatedly declined to direct that roadless areas that were not designated
as part of the National Wilderness Preservation System when forest management
plans were revised be managed for only non-wilderness uses, but instead permitted
their management for uses that might maintain their wilderness attributes. The court
noted part of the legislative history of the Wilderness Act to the effect that “the
statutory framework of the Wilderness Act would ... assure that no further
administrator could arbitrarily or capriciously either abolish wilderness areas that
should be retained or make wholesale designations of additional areas in which use
would be limited.”48 The validity of the assertion that the roadless rule was “in
violation of the clear and unambiguous process established by the Wilderness Act for
such [Wilderness] Designation,”49 would seem to depend on whether one agrees that
management of the roadless areas under the roadless rule would be as restrictive as
that under the Wilderness Act, and on how one views the references to wilderness in
MUSYA and NFMA and the actions of Congress in continuing to allow management
of the roadless areas that maintains wilderness characteristics on national forest
lands.
44 (...continued)
conditions than was the Wilderness Act, in that the Wilderness Act allows roads “to control
fire, insects, and diseases,” while the roadless rule only allows roads in the case of an
“imminent flood, fire, or other catastrophic event that, without intervention, would cause the
loss of life or property.” (Comparing 16 U.S.C. 1133(d)(1) with 36 C.F.R. § 294.12(b)(1).
45 Id. .
46 Id. at 1239.
47 Id., at 1234.
48 Id., at 1233, quoting from H.Rept. 88-1538.
49 Id., at 1239.

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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.50 The roadless area regulation was
covered by this language, since although it was published as a final rule on January
12, 2001, it was not to be effective until March 13, 2001.51 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.52 If Congress had disapproved the roadless area rule
50 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.
51 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, P.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.
52 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
(continued...)

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CRS-13
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 Register53 postponing
for 60 days the effective date of the roadless area rule from its previous effective date
52 (...continued)
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 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.
53 66 Fed. Reg. 8,899.

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CRS-14
of March 13, 2001, to May 12, 2001.54 The Administration then decided to
implement the rule, but to consider amending it.
Implementation Enjoined — Part 1
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.55 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 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 Bush 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 12, 2001.
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
54 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 Jan. 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.”
55 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
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.56
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 raising various
issues were filed, including suits in North Dakota, Idaho, Alaska and the District of
Columbia. The Ninth Circuit reversed the district court and remanded the case to the
district court, as will be discussed further below.
Advance Notice of Proposed Rulemaking
on Roadless Area Management
On July 10, 2001, the Forest Service published an Advance 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
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.
56 USDA News Release No. 0075.01.

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CRS-16
Interim Management of Inventoried Roadless Areas I
The final Clinton administrative policy on National Forest System roads
published on January 12, 2001,57 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.
Interim Management of Inventoried Roadless Areas II
Pending expected publication of proposed new roadless area rules, the Bush
Administration issued a series of Interim Directives affecting roadless area protection
and management. The first Directive was effective May 31, 2001, but was not
published until August.58 On June 7, 2001, additional new interim roadless area
management direction 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. Additional directives
issued in December of 2001 were difficult to interpret.59 These ambiguities are
57 66 Fed. Reg. 3,219.
58 The first of these (I.D. No. 7710-2001-1) was actually published on August 24, 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 31. See 66
Fed. Reg. 44,590 (August 24, 2001) and 66 Fed. Reg. 44,111 (August 22, 2001).
59 Interim Directive 1920-2001-1 and I.D. No. 7710-2001-3, both effective December 14,
2001, were published on December 20, 2001 (66 Fed. Reg. 65,796). I.D. 1920-2001-1
appeared to substantially replace much of the previous directives. However, the Notice did
not clearly indicate which provisions were being replaced or the precise extent of revisions.
The published explanatory material stated that affected material was set out and unaffected
material was not. Yet some of the earlier provisions were neither shown nor discussed and
therefore, might still have been in effect. However, the final text of new FSM §1925 did not
show these undiscussed earlier provisions — as though they were superseded. Therefore,
it was not clear which of the previous materials were still in effect. For example, some of
former FSM §7712.16 (that contained many specific details on permissible road
construction) was 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 stated that
the revised provisions were then moved to appear in the Planning part of the Manual as new
§1925. Yet other provisions that were in §7712.16 were 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 disappeared without comment. Another example is
(continued...)

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CRS-17
relevant because some of these directives were later reinstated, as will be discussed
below.
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 were developed. However, the interim directive was
only to be in effect for 18 months, unless this time were extended to 36 months, and
also apparently was to cease to apply once a forest plan was 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 were subject to the interim requirements. The December
Directive reserved, 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 was completed “that has considered the protection and
management of inventoried roadless areas pursuant to FSM 1920.” It also provided
that the Chief could designate an Associate Chief, Deputy Chief, or Associate Deputy
Chief on a case-by-case basis to be the responsible official. This delegation authority
was changed to also include Forest Supervisors in the reinstated and amended
directive.
The Regional Forester was to screen timber harvest projects in inventoried
roadless areas for possible referral to the Chief. The Chief was to make decisions
regarding harvests except for those that were: (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 had previously taken place and the roadless
characteristics had been substantially altered. Decisions as to these harvests were to
be made by forest officers normally delegated such authority under existing FSM
§2404.2. (These delegations included Forest Service line officers.)
The December 2001 directive stated that the Chief’s authority with respect to
timber harvests did 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
would otherwise terminate when a plan revision or amendment that has considered
the protection and management of inventoried roadless areas was completed.
59 (...continued)
§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. These ambiguities made analysis of and comment on the December
Directives difficult.

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CRS-18
The Chief’s authority with respect to road construction was to remain in effect
until a forest-scale roads analysis was completed and incorporated into each forest
plan, at which point it terminated.60 The Regional Forester was to make many
decisions on road construction projects under new §1925.04b. There was no express
provision in that section for termination of the authority of the Regional forester.
However, the general policy section, 1925.03, keyed 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.61
Under FSM 1925.04a, the Chief had approval authority over all road
construction and reconstruction except those decisions delegated to the Regional
Forester. Under FSM 1925.04b, the Regional Forester was 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 for certain purposes.
Note that the December Directive apparently eliminated the requirement that
there be a compelling need for a road and also eliminated 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 was eliminated.
Although the responsible official could still do an EIS and could protect contiguous
areas, and a compelling need for a road might exist in some instances, less protection
to roadless areas could result because although the new directive permitted
protection, it did not contain the higher thresholds for approval of activities and more
formalized documentation requirements of the previous direction.
This interim directive expired on June 14, 2003. However, as discussed under
the heading “2005 Roadless Areas Regulations” below, the directive, renumbered
and with certain changes, was later reinstated.
Changes to “Categorical Exclusions”
Changes to agency 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
60 Id., at 65,801.
61 66 Fed. Reg. 65,801.

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CRS-19
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.62
Several agency actions have expanded the activities that may be conducted as
categorical exclusions, and have replaced previous categorical exclusions on timber
sales. Joint Forest Service/Bureau of Land Management categorical exclusions were
finalized for hazardous fuels reduction projects that can include mechanical
treatments on up to 1,000 acres.63 A categorical exclusion was also finalized for
smaller FS timber sales.64 In addition, certain silvicultural treatments may proceed
as categorical exclusions under Title IV of the Healthy Forests Restoration Act.65
Previously, the categorical exclusions portion of the FS Handbook set out types
of activities that normally would be excluded from NEPA documents — unless
extraordinary circumstances are present. One of the listed extraordinary
circumstances was the presence of inventoried roadless areas. Extraordinary
circumstances were 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 removed the proposed action from qualifying
as a categorical exclusion and required 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.66
New interim guidance was proposed67 and finalized,68 such that the presence of
circumstances previously considered “extraordinary” do not necessarily preclude an
action from being a categorical exclusion if the responsible official, based on
scoping, 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 the proposed action may have a significant effect on
the environment, in which case an EIS is to be prepared. Or, if the responsible
official is uncertain whether the proposed action may have a significant effect on the
environment, an EA is to be prepared. Under this approach, the presence of
circumstances that previously were per se “extraordinary” now are merely “resource
conditions” that must specifically be considered in determining whether an action
may have a significant effect. “It is the degree of the potential effect of a proposed
62 40 C.F.R. 1508.4.
63 68 Fed. Reg. 33,814 (June 5, 2003).
64 68 Fed. Reg. 44,598 (July 29, 2003).
65 P.L. 108-148, 117 Stat. 1887.
66 Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
67 66 Fed. Reg. 48412 (September 20, 2001).
68 67 Fed. Reg. 54622 (August 23, 2002).

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action on these resource conditions that determines whether extraordinary
circumstances exist.”69 This is a significant change from the previous text.
In defense of the proposed changes on explanatory circumstances, the
explanatory material asserted 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
found.70 However, the cited case involved a salvage sale under §2001 of the
Rescissions Act,71 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.72 Under the final directive, some timber sales could be conducted as
categorical exclusions in roadless areas (and possibly in a roadless area with
endangered or threatened species) if the official 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.73
69 FSH 19909.15 — Environmental Policy and Procedures Handbook, § 30.3b.2.
70 Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F. 3d 1443, 1450
(9th Cir. 1996).
71 P.L. 104-19, 109 Stat. 194, 240-247.
72 Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
73 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).

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CRS-21
Ninth Circuit Decision on 1st Injunction
On December 12, 2002,74 the Ninth Circuit reversed the Idaho 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
the merits, that the district court abused its discretion in granting [sic]
preliminary injunction against implementation of the Roadless Rule.75
. . . .
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.76
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,77 and that the EIS considered an
adequate range of alternatives.78 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. the Ninth Circuit denied Idaho’s petition for
rehearing, and the case was remanded to the district court to reconsider its previous
reasoning and injunction in light of the opinion of the appellate court. Several other
lawsuits challenging the Roadless rule were stayed pending the decision by the Ninth
Circuit. Because litigation in the 10th Circuit was dismissed as moot, the opinion of
the Ninth Circuit is the only precedent on these issues.
Most of the unfavorable response to the Ninth Circuit 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
74 313 F. 3d 1094 (9th Cir. 2003).
75 Id. at 1104.
76 Id. at 1126.
77 Id. at 1118-1119.
78 Id. at 1120-1121.

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CRS-22
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 raised 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.79
79 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, had held that only
the federal government can defend the adequacy of its NEPA compliance. 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). The dissenting
opinion in the Roadless Rule case questioned 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. (Kootenai, at 1109.) 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. (Id.) The
court stated that “intervenors asserted their interests related to the Roadless Rule in moving
to intervene” (Id. at 1111), 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” the court mentioned
previously. 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.” 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 party to express its views before
the court.” (Forest Conservation council v. Forest Service, 66 F. 3d 1489, 1496 n.8 (9th Cir.
1995)(citation omitted)). This same court, at 1497, approached the ‘interest’ test of Rule
24(b) generously as “primarily a practical guide to disposing of lawsuits by involving as
(continued...)

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CRS-23
Interim Implementation; Tongass
It will be recalled that 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.
On June 9, 2003, the Bush Administration indicated that it would “retain” the
roadless rule and would not renew the interim management directives. However, the
roadless rule would be modified to exclude the Tongass National Forest as part of a
settlement of the lawsuit filed by the State of Alaska. A proposed rule to exclude the
Tongass from the broader protection of the roadless rule was published on July 1580
and an Advance Notice of Proposed Rulemaking to exclude both the Tongass and the
Chugach National Forest (also in Alaska) was also published on the same day.81 A
final rule “temporarily” exempting the Tongass from the roadless rule was published
on December 30, 2003.82 Specifically, the roadless area restrictions on road
construction, road reconstruction, or the cutting, sale, or removal of timber in
inventoried roadless areas would not apply on the Tongass National Forest. The
explanatory material indicated that the exemption was temporary — until an Alaska-
wide roadless rule was finalized. The exemption meant that roadless areas protected
under the Revised Land Management Plan for the Tongass would remain protected,
but an additional 300,000 acres of roadless areas would be available for logging
under that plan.
The Forest Service has taken the position that the finalization of the new
roadless rule on May 13, 2005 (discussed below), has eliminated the need for further
Tongass-specific rulemaking and that timber harvest decisions that include a roadless
component will be made in accordance with the forest plan unless changed through
state-specific rulemaking.83
Implementation Enjoined — Part 2
On July 14, 2003, Judge Brimmer of the Federal District Court for Wyoming
permanently enjoined the Roadless Rule, in part because of NEPA defects, and in
part because he concluded it created de facto wilderness in violation of the
79 (...continued)
many apparently concerned persons as is compatible with efficiency and due process.” The
Ninth Circuit denied Idaho’s petition for rehearing, and the case was remanded to the district
court to reconsider its previous reasoning and injunction in light of the opinion of the
appellate court. Several of the other lawsuits challenging the Roadless Rule were stayed
pending the decision by the Ninth Circuit.
80 68 Fed. Reg. 41865 (July 15, 2003).
81 68 Fed. Reg. 41864 (July 15, 2003).
82 68 Fed. Reg. 75136 (Dec. 30, 2003).
83 See [http://www.fs.fed.us/r10/tongass/forest_facts/faqs/roadless.shtml].

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CRS-24
Wilderness Act.84 (See discussion of the wilderness issues, supra.) The court
concluded that 1) the FS’s decision not to extend the scoping comment period was
arbitrary and capricious; 2) the FS’s denial of cooperating agency status to Wyoming
and other states was arbitrary and capricious; 3) the FS’s failure to rigorously explore
and objectively evaluate reasonable alternatives to the Roadless Rule was contrary
to law; 4) the FS’s failure to adequately analyze cumulative effects was a clear error
in judgment; and 5) the FS’s decision not to issue a supplemental EIS in light of new
information on updated roadless area inventories was arbitrary and capricious, and
contrary to law.85 The court stated that the agency drove the rule “through the
administrative process in a vehicle smelling of political prestidigitation”86in its “rush
to give President Clinton lasting notoriety in the annals of environmentalism”87 —
and concluded that the agency must “start over.”88 On July 11, 2005, the Tenth
Circuit dismissed the appeal in this case and vacated the district court’s decision.
It held that new roadless regulations published on May 13, 2005, discussed below,
made the case moot.89
New Proposed Roadless Regulations
On July 16, 2004, a new proposed roadless rule was published.90 Under the
proposed changes to 36 C.F.R. §394, no protections of roadless areas would be
prescribed in the rule. Instead, a new procedure would be put in place under which
there would be a window of time within which the governor of a state could petition
the Secretary of Agriculture to promulgate a state-specific rule on the management
of roadless areas.
Interim Management of Inventoried Roadless Areas III
Effective upon publication of the proposed rules in the Federal Register, and for
the duration of the time allowed for the state petition process, the FS reinstated the
December 2001 directive 1920-2001-1, renumbered as ID 1920-2004-1 and modified
it in two respects.91 This reinstatement put in place again the provisions described
above that allow the Chief of the FS to make decisions affecting inventoried roadless
areas involving 1) road construction — until a forest-scale roads analysis is
completed and incorporated into a forest plan or a determination is made that a plan
amendment is not needed; and 2) the cutting of timber until a forest plan is in place
that “considers” the protection and management of roadless areas.
84 Wyoming v. United States Department of Agriculture, 277 F. Supp. 2d 1197 (D. Wyo.
(2003).
85 Id. at 1231 - 1232.
86 Id. at 1203.
87 Id. at 1232.
88 Id. at 1239.
89 Wyoming v. United States Department of Agriculture, 414 F.3d 1207 (10th Cir. 2005).
90 69 Fed. Reg. 42,636 (July 16, 2004).
91 69 Fed. Reg. 42,648.

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CRS-25
ID 1920-2004-1 differs from the previous one in that it allows the Chief to grant
project-specific exceptions to allow a Regional Forester or a Forest Supervisor, for
good cause, to exercise the authority to conduct projects in roadless areas. The
addition of forest supervisors to those who can conduct projects in roadless areas is
an expansion of the previous ID that arguably could make it easier to approve
projects in those areas. Secondly, FSM 1925.04b is changed to allow the Regional
Forester to make decisions on road construction and reconstruction in an inventoried
roadless area for lands associated with any mineral lease, license, permit or approval
for mineral leasing operations.
New Forest Planning Regulations
New regulations on National Forest System land management planning were
published on January 5, 2005.92 A separate rule repealed the 2000 planning
regulations at 36 C.F.R. § 219, Subpart A, but did not repeal the roadless area
management rule at 36 C.F.R. § 294, Subpart B.
Section 219.7(a)(5)(ii) of the new rules basically retains a provision from the
2000 rules93 and provides that
Unless otherwise provided by law, all National Forest System lands possessing
wilderness characteristics must be considered for recommendation as potential
wilderness areas during plan development or revision.
Depending on how ‘wilderness’ characteristics and evaluation criteria might be
defined, this provision could require many roadless areas to be reviewed for possible
wilderness designation as part of the cyclical plan revision process. No management
guidance is provided for inventoried roadless areas that are not recommended for
inclusion in the National Wilderness Preservation System.94 Another section
indicates that, initially at least, all forest lands generally will be considered to be
available for multiple uses going into the planning process.95 “Roadless area” and
“inventoried roadless area” are removed from the definitions section because the
terms are not used in the rule. Comments raising concerns about protection for
roadless areas were submitted when the planning regulations were proposed and the
response was that the “Responsible Official considers these values during the
planning process for the plan’s desired conditions and objectives, which will involve
local, regional, and national interests, and use the best available local information.”
This response seems to indicate that roadless values will be only one factor among
many to be considered in managing the forests.96
92 70 Fed. Reg. 1,023.
93 36 C.F.R. § 219.27(b)(2004).
94 Id., at 1,044.
95 Section 219.12 at 1,059.
96 Supplemental Response to Public Comments on the 2002 Proposed Planning Rule, at 31.

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CRS-26
The new planning regulations stress that plans are not decisional in nature, but
rather are aspirational only, setting out goals for the management of forest units. Nor
do they contain much detail on how to manage the forests, leaving that to the Forest
Service Manual, Handbooks, and directives. In particular, the explanatory material
states that guidance about special area concerns, such as roadless areas are more
properly included in Forest Service directives.97 In response to another comment that
special protection for roadless areas was lost in the new regulations, the materials
point only to the provision on wilderness evaluations quoted above, and state that
additional guidance on roadless wilderness evaluations will be forthcoming in
directives.98
Several publications of interim directives with solicitation of comments
occurred since the publication of the final planning rules, principally the 12 IDs
published on March 23, 2005.99 However, as has been true of previous directives, it
is difficult to find the texts in question100 and to ascertain the current status of a
particular management issue — in this case the management of inventoried roadless
areas. In addition, the relationship of the March 23rd ID to the previous interim
directive on roadless area management is not clear. It may be recalled that ID 1920-
2001-1 (issued December 14, 2001, and expired June 14, 2003) was reinstated and
renumbered as ID 1920-2004-1 “to provide guidance for addressing road and timber
management activities in inventoried roadless areas until land and resource
management plans are amended or revised.”101 (Again, although that July 16, 2004,
publication indicates the ID is available at [http://www.fs.fed.us/im/directives], it in
fact is not — but see the discussion of it in the preceding section of this report.) The
March 23rd interim directives include ID 1920-2005-1, which states that it does not
supersede any previous IDs. The new 1920 series directive does not address the
previous directive bearing that number, nor address roadless area management at all,
except to indicate that part 1925 of the Forest Service Manual is “reserved” for IDs
and field management guidance on the Management of Inventoried Roadless Areas
— with no indication that there is in fact already such a directive in effect that is not
referenced. Therefore, it was not clear whether there was any direction in effect with
regard to management of roadless such areas pending revision of plans under the new
planning regulations.
The final 2005 roadless area rules discussed below originally stated that the July
16, 2004, interim directive would remain in place until January 16, 2006, unless
97 Id., at 1,044.
98 Id.
99 70 Fed. Reg. 14,637.
100 Although directives purportedly are available at [http://www.fs.fed.us/im/directives/], the
actual text of the new directives is unavailable at that site as of April 19, 2005. If a citizen
visits the directives site mentioned in the Federal Register [http://www.fs.fed.us/emc/nfma/],
the text of the new interim directives is available, but the sequence of the relevant IDs is not
evident and the relationship between previous and current IDs is not clear.
101 69 Fed. Reg. 42,648 (July 16, 2004).

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CRS-27
renewed for an additional 18 months.102 The directive was so renewed on January 16,
2006, and now is scheduled to remain in place until July 16, 2007, or until a
statewide rule is finalized under the new roadless area regulations or a forest plan
“considers” roadless areas.103
2005 Roadless Area Regulations
New final roadless area rules were published on May 13, 2005.104 The final roadless
area regulations are very similar to the proposed regulations. The Forest Service
asserts that the rule incorporates the department’s five conservation principles for
inventoried roadless areas:
1. Make informed decisions to ensure that inventoried roadless area management
is implemented with reliable information and accurate mapping, including local
expertise and experience.
2. Work with states, tribes, local communities and the public through a process
that is fair, open, and responsive to local input and information.
3. Protect forests to ensure that the potential negative effects of severe wildfire,
insect, and disease activity are addressed.
4. Protect communities, homes and property from the risk of severe wildfire and
other risks on adjacent federal lands.
5. Ensure that states, tribes, and private citizens who own property within
inventoried roadless areas have access to their property as required by existing
law.105
The new regulations establish a procedure to permit a Governor of a state to
submit a petition to the Secretary regarding roadless areas in a state, and to make
recommendations as to management of such areas. Petitions are required to provide
specified information, including 1) a description of the particular lands for which the
petition is made; 2) particular management recommendations; 3) identification of the
circumstances and needs intended to be addressed by the petition, including
conserving roadless value, protecting health and safety, reducing hazardous fuels,
maintaining dams, providing access, etc.; 4) information on how the
recommendations differ from the relevant federal plans and policies; 5) how the
recommendations compare to state land policies and management direction; 6) how
the recommendations would affect fish and wildlife and habitat; 7) a description of
any public involvement efforts undertaken by the state during development of the
petition; and 8) a commitment by the state that it will participate as a cooperating
agency in any environmental analysis for the rulemaking.
102 70 Fed. Reg. 25,658.
103 I.D. 1920-2006-1, effective January 16, 2006.
104 70 Fed. Reg. 25,654.
105 See [http://www.roadless.fs.fed.us/].

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CRS-28
Petitions must be submitted not later than November 13, 2006, but the
explanatory material mentions that petitions for rulemaking or amendment after that
time could be filed under 7 C.F.R. § 1.28. If the Secretary approves a petition, the
FS must coordinate development of the proposed rule with the state, but the Secretary
or the Secretary’s designee is to make the final decision on any rule.
The rationale for imposing a deadline on the roadless area special rule process,
and the consequences of a state’s failure to meet the deadline, are unclear. The rule
does not indicate what process will pertain if a newly-seated Governor of a state that
previously failed to submit a petition under the roadless rule petitions under 7 C.F.R.
§ 1.28 for a state-specific roadless rule. Section 1.28 states only that petitions filed
under the section “will be given prompt consideration and petitioners will be notified
promptly of the disposition made of their petitions.” Concerns relating to this
ambiguity are relevant, as it has been reported that the Governors of Minnesota, New
Hampshire, Utah, and Wyoming have decided not to submit petitions for state-
specific roadless rules in accordance with the deadline.106
The rule does not include any standards on the scope or balance required for
public participation in the development of a state’s recommendations, or for how a
state is to gather its information about an area’s resources and values. There also are
no requirements or standards for the Secretary’s review and approval of a petition,
and, perhaps most importantly, no statement as to the relative weight to be given to
a state’s recommendations versus the preferences of non-state residents who may
express an opinion on the desired management of these national lands.107
The background materials accompanying both the proposed and final rule refer
to the importance of collaborating with partners, including state governments, stating:
“strong State and Federal cooperation regarding management of inventoried roadless
areas can facilitate long-term, community-oriented solutions.”108 The materials
review the promulgation of the original roadless rule and note that “concerns were
immediately expressed by those most impacted by the roadless rule’s prohibitions”
and that the new rule is proposed in response to those concerns.109 This latter
comment raises interesting questions about the role of public input in the rulemaking
in that only approximately 4% of the extraordinary number of comments received on
the original roadless rule opposed or expressed concerns about its protections.
Similarly, the overwhelming number of responses to the new roadless rule favored
continuing protection. The explanatory materials justify taking a different approach
by stating that “every comment received is considered for its substance and
contribution to informed decisionmaking, whether it is one comment repeated by tens
of thousands of people or a comment submitted by only one person. The public
106 Don Thompson, Schwarzenegger Seeks to Maintain Roadless Areas in Forests, S.F. Gate,
July 11, 2006.
107 See CRS Report RL32436, Public Participation in the Management of Forest Service
and Bureau of Land Management Lands: Overview and Recent Changes, by Pamela
Baldwin.
108 70 Fed. Reg. 25,654.
109 Id.

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CRS-29
comment process is not intended to serve as a scientifically valid survey process to
determine public opinion.”110
Advisory Committee Established
In accordance with the new roadless rule, a Roadless Area Conservation
National Advisory Committee was established by the Secretary under the Federal
Advisory Committee Act, to provide advice and recommendations on the
implementation of the state petitions for special roadless area management rules.111
The Committee was to consist of up to 15 members representing a “balanced group
of representatives of diverse national organizations who can provide insights into the
major contemporary issues associated with the conservation and management of
inventoried roadless areas.”112 The Committee was to operate “in a manner designed
to establish a consensus of opinion.” On December 14, 2005, the Committee held
its first meeting in Washington, D.C.113
Multi-State Lawsuit to Enjoin 2005 Roadless Area Rule
On August 28, 2005, the States of California, Oregon, and New Mexico filed
a lawsuit in the Federal District Court for California to challenge the 2005 roadless
area rule.114 The State of Washington later joined the suit as a plaintiff intervenor.
The Earthjustice Legal Defense Fund and other environmental organizations also
filed suit to challenge the rule, and the two cases have been consolidated.115 The
plaintiffs allege that the Department of Agriculture violated NEPA and the
Administrative Procedure Act, 5 U.S.C. §701 et seq. (APA), when it promulgated the
2005 roadless area regulations. They argue that the Department finalized the
regulations without conducting requisite NEPA environmental analysis, allowing
meaningful public involvement, or explaining the rationale for the Department’s
change in roadless areas policy.116 The case currently is pending.
Initial State Responses to 2005 Roadless Area Rule
Several governors have expressed concern that the new roadless area rule
petition process is too vague to provide states proper guidance in proposing state-
based rules and places undue burdens on state resources. North Carolina Governor
110 70 Fed. Reg. 25,656.
111 70 Fed. Reg. 25,663.
112 Biographical information on the thirteen individuals serving as Committee members as
of July 6, 2006 can be accessed at [http://www.roadless.fs.fed.us/documents/adv-comm/
RACNAC-Bios.pdf].
113 70 Fed Reg. 70,580.
114 States of California et al. v. U.S. Department of Agriculture, et al., 3:05-CV-03508 (Cal.
D. August 30, 2005).
115 Montana and Maine have filed an amicus brief on behalf of plaintiffs; Alaska and
Wyoming have filed an amicus brief on behalf of defendants.
116 States of California et al.

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CRS-30
Michael Easley raised the vagueness issue in a letter to Secretary of Agriculture Ann
Veneman, asserting that the rule provides “insufficient clarity” on how the
Department will respond to state petitions or the criteria the Department will use to
consider them.117 The Governor also noted that the rule does not clarify how the
Department will coordinate state-specific rule development among individual states
or how it will approach management of roadless areas that cross state boundaries.118
Governors also have expressed concern over the rule’s burden on states. On
October 14, 2004, Oregon Governor Theodore Kulongoski filed a petition with
Secretary Johanns to permit states to adopt the 2001 roadless area rule through an
expedited process. The Governor argued that the 2005 roadless area rule will require
states to expend significant financial and personnel resources to ensure adequate
public participation and technical analysis relating to its provisions and
implementation.119 North Carolina Governor Easley stated in his August 2004 letter
to Secretary Venemen that the administrative and financial investment in the
petitioning process could be “onerous” to state agencies. Tennessee Governor
Bredesen similarly stated in a September 8, 2004, letter to Secretary Veneman that
the rule may place an “undue financial burden on our state agencies without
providing some assurances of any concurrence or approval from the Department of
Agriculture.”120 Virginia Governor Mark Warner expressed concern in a July 30,
2004, letter to Secretary Veneman that, although the 2005 rule confirms that the U.S.
Forest Service has final authority regarding management of roadless areas, the rule
places on individual states the burden of seeking protection of the areas.121
State Petition Submissions and Responses
To date, governors of five states have filed petitions with the Secretary of
Agriculture under the 2005 roadless area rule. Virginia Governor Warner filed a
117 Letter to Ann Venemen, U.S. Secretary of Agriculture (August 16, 2004).
118 In expressing concern over the use of a state-based rule scheme to manage interstate
roadless areas, the Governor stated, “The proposal’s state-specific rulemaking could result
in inconsistent management plans due to conflicting state priorities. Actions on one side of
the border will undoubtedly impact and could potentially undermine management strategies
on the other side.”
119 Letter from Theodore Kulongoski, Governor of Oregon, to Mike Johanns, U.S. Secretary
of Agriculture (October 14, 2005). On October 27, 2005, the Department denied the petition
for an expedited process scheme, expressing doubt that the Governor’s proposed rule would
substantially decrease states’ burdens. Letter from Mark Rey, Under Secretary of Natural
Resources and Environment, U.S. Department of Agriculture, to Theodore Kulongoski,
Governor of Oregon.
120 Letter to U.S. Secretary of Agriculture Ann Venemen, Sept 8, 2004.
121 Letter to U.S. Secretary of Agriculture Ann Venemen, July 30, 2004. The Forest Service
has provided financial assistance to several states for costs incurred relating to petition
development. On December 20, 2005, the FS announced a $150,000 grant to the State of
Idaho, and on June 28, 2006, it announced a $200,000 grant to the State of Arizona. The
grants were in response to formal requests by the states for financial support for the
petitioning process. U.S. Department of Agriculture Press Releases Nos. 0560.05 and
0225.06.

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CRS-31
petition on December 22, 2005, requesting protection for all roadless areas in the
state. Subsequently, the Governors of North Carolina, South Carolina, New Mexico,
and California submitted similar petitions requesting comprehensive protection of all
roadless areas in their respective states.
The Advisory Committee recommended that the petitions of North Carolina,
South Carolina, and Virginia be approved, and on June 21, 2006, the Department of
Agriculture approved them.122 Letters from the Department to the governors outlined
the process for moving forward with proposed state-specific roadless area rules —
that the Department and the respective state should take the following steps: develop
a memorandum of understanding regarding the “appropriate level of environmental
analysis” required under NEPA and the Endangered Species Act; ensure that the rule
provides for public involvement and “active solicitation” of the views of interested
parties; coordinate the development of the rule; and consider how the rule will amend
any existing state land management plans.123 The letters reiterated that the proposed
state-based rules would be subject to federal notice and comment rulemaking
requirements and that the Secretary has sole authority to formally adopt any such
rules after issues emerging from the notice and comment period have been resolved.
No decision on the petition of New Mexico has been made by the advisory
committee.
Pending Legislative Responses
Several bills have been introduced in the 109th Congress in response to the
roadless area initiatives of the Bush Administration. On October 19, 2005, then
Senator Jon Corzine of New Jersey introduced S. 1897, The Act to Save America’s
Forests.124 This measure would provide more comprehensive protections of roadless
areas than did the 2001 rule. On March 2, 2006, Senator Marie Cantwell of
Washington introduced S. 2364, The Roadless Area Conservation Act of 2006.125
The measure essentially would enact the previous 2001 rule.
Conclusion
Roadless areas of the National Forest System have received special management
for decades and more recently have been addressed by two administrations through
122 USDA News Release No. 0212.06.
123 Letter from Mark Rey, Under Secretary of Natural Resources and Environment, U.S.
Department of Agriculture, to Timothy Kaine, Governor of Virginia (June 21, 2006); Letter
from Rey to Michael Easley, Governor of North Carolina (June 21, 2006); Letter from Rey
to Mark Sanford, Governor of South Carolina (June 21, 2006).
124 The Save America’s Forests Act, S. 1897, 109th Cong. (2005). The last major
Congressional action on this bill was taken on October 19, 2005, when it was referred to the
Senate Committee on Energy and Natural Resources.
125 Roadless Areas Conservation Act of 2006, S. 2364, 109th Cong. (2006). The last major
Congressional action on this was taken on March 3, 2006, when it was referred to the Senate
Committee on Energy and Natural Resources.

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CRS-32
a complex series of interrelated actions on roads, roadless areas, and forest planning.
A new nationwide rule providing protections and use restrictions on inventoried
roadless areas was promulgated in January 12, 2001, in an effort to standardize
management of such areas and avoid persistent litigation. However, a federal court
enjoined implementation of the Clinton Administration’s roadless rule, and although
this decision was later reversed, another federal district court has again permanently
enjoined implementation of the rule. A new roadless area rule has been finalized
that replaces previous protections with a new process by which a governor of a state
may petition the Secretary to promulgate a state-specific rule for the management of
roadless areas. A petition would also contain recommendations for the management
of the areas. The proposed rule does not contain details on how the public is to be
involved in the development of a state petition, or how the state’s recommendations
are to relate to the preferences expressed by non-state residents regarding the same
public lands. Virginia, North Carolina, South Carolina, New Mexico, and California
have submitted petitions so far, and the first three of these have been approved and
will proceed to development of state-specific rules.
During the time allowed for the new process, previous interim direction for the
management of the roadless areas was reinstated, with some modifications, to govern
the management of these areas during the time allowed for the new process. This
direction allows the Chief of the FS to make decisions as to roads and timber cutting,
but to delegate that responsibility in some circumstances, including to authorize
forest supervisors to conduct projects in roadless areas. The interim provisions
currently are in effect until July 16, 2007, a statewide rule is finalized, or a forest plan
“considers” roadless areas.
New final planning regulations published on January 5, 2005, appear to presume
that roadless areas are basically available for a variety of uses, including timber
harvests, subject to unit-by-unit planning processes. Other administrative changes
regarding categorical exclusions and extraordinary circumstances now appear to
allow certain actions to be taken in roadless areas without written environmental
analyses.
In summary, the regulatory direction for the management of the remaining
National Forest System inventoried roadless areas arguably has gone from
embodying a special recognized status with nationwide protections to having no
special status or even separate mention in the new forest-by-forest planning
regulations. Also, a new petition process has been established under which a
Governor of a state may seek a special statewide rule regarding roadless areas. What
management protections, if any, may apply to roadless areas in the future is not clear.

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