In January 2001, a little more than a week before the peaceable transfer of power to his successor, President Bill Clinton’s administration finalized the Forest Service Roadless Area Conservation Rule, which somewhat protects 58.5 million acres of the National Forest System. It was a landmark administrative rule that provided substantive protection (but with some loopholes sometimes since exploited) for many—but not all—roadless areas in the National Forest System larger than 5,000 acres. Court challenges seeking to overturn the rule followed shortly, along with attempts by the George W. Bush administration to delay the rule.
Soon after the first attacks on the roadless rule, legislation was introduced in both the Senate and the House of Representatives to “codify” the roadless rule into a statute, making it part of the United States Code. The first roadless area bills were introduced in 2002 in the 107th Congress. The bills have been reintroduced in most, but not all, Congresses since 2002 and are due to be introduced again. While the bill is again pending in the House, introduction in the Senate has been delayed due to pressing matters of an impeachment trail and enacting COVID-19 relief legislation, but lead sponsor Senator Maria Cantwell (D-WA) has announced her intention to reintroduce the bill.
The bill still needs work if it’s to do more than merely restore the status quo prior to the Trump administration. A brief review of its history shows how the roadless rule has been diluted over the years to the point where amendments are needed if the bill is to secure enduring conservation of federal public lands for the benefit of this and future generations.
The Rule’s (and the Bill’s) Trials and Tribulations
Earthjustice has created an excellent timeline of the trials and tribulations of this abused administrative rule.
Soon after President George W. Bush took office in 2001, attempts were made to remove the roadless rule from the Code of Federal Regulations. Many rounds of litigation ensued, resulting in the temporary removal of the Tongass National Forest in Alaska from the rule and two conflicting federal court of appeals rulings. (The Ninth Circuit said the rule was legal, and the Tenth Circuit said it was not.)
Over the decades, Idaho and Colorado received their own “special” (pronounced “weaker”) rules for national forest roadless areas in those states. The George W. Bush administration’s “special” administrative rule for Idaho roadless areas (October 16, 2008) and the Obama (yes, Obama!) administration’s “special” administrative rule for Colorado roadless areas (July 3, 2012, and since one assault was not enough, also December 19, 2016) both gutted substantive protections and reduced the acreage of roadless areas.
In October 2020, the Trump administration did a really special number for roadless areas on the Tongass National Forest by exempting all of them from any form of protection. At least the Trump administration’s clear-cut revocation of the roadless rule for the Tongass National Forest was forthright. Litigation promptly ensued and is pending. Earthjustice and co-counsel NRDC are representing five Alaska Native Tribes, several small businesses, and several conservation organizations. It is widely hoped and expected that either the Biden administration’s Department of Justice will decline to defend the Trump Alaska road-it rule, and/or the Forest Service will reinstate the 2001 roadless rule for the Tongass National Forest. To date, the Department of Agriculture has put a pause on the Forest Service’s rule.
National forest roadless areas are important everywhere and should not be subject to differing rules because of a state’s politics and who is in the White House. Thus the importance of the proposed legislation. Its language has been modified over the decades, mostly in minor ways. However, egregiously, later versions have embraced the Idaho and Colorado dilutions.
The original congressional champions for Forest Service roadless area protection were Senator Maria Cantwell (D-WA, still the lead champion for roadless area protection) and then-Representative Jay Inslee (D-1st-WA). Inslee is now the governor of Washington, and the new House champion is Representative Ruben Gallego (D-7th-AZ). Senator Cantwell chairs the Committee on Commerce, Science, and Transportation, and is also a member of other Senate committees: Energy and Natural Resources; Finance; Indian Affairs; and Small Business and Entrepreneurship. Representative Gallego is chair of the Subcommittee on Indigenous Peoples of the United States and a member of the Subcommittee on National Parks, Forests, and Public Lands, both part of the Committee on Natural Resources of the House of Representatives.
Figure 2. Senator Maria Cantwell, chief sponsor of the Roadless Area Conservation Act in the US Senate. Source: Senator Cantwell’s Office.
Figure 3. Representative Ruben Gallego (D-7th-AZ), chief sponsor of the National Forest Roadless Area Conservation Act in the US House of Representatives. Source: Rep. Gallego’s Office.
Table 1 tracks the roadless area legislation in the House and Senate over the decades, listing the number of cosponsors and noting whether or not members of the Oregon congressional delegation have their names on the bill.
Nine Recommended Fixes
The Biden administration has embraced the goal of permanently protecting 30 percent of the lands and waters of the United States by 2030 (“30x30”). If enacted into law as drafted, the statutorily codified roadless rule would not contribute to 30x30.
The US Geological Survey has categorized national forest roadless areas protected by the current roadless rule as GAP 3. Only areas categorized as GAP 1 and GAP 2 (out of four such categories) are permanently protected for the conservation of biological diversity. The GAP 3 assignment reflects loopholes large enough to drive logging trucks and bulldozers through, as well as national forest roadless areas continuing to be open to mining.
Figure 4. The 4,378-acre North Fork Smith River Roadless Area on the Siuslaw National Forest. Source: David Stone, Wildlands Photography (first appeared in Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004).
Following are nine possible amendments that would convert the proposed Roadless Area Conservation Act from a bill that merely seeks to restore the status quo prior to the Trump administration to a bill that would secure enduring conservation of more than 100 million acres of federal public lands for the benefit of this and future generations.
Fix #1: Delete the “log truck loophole” by prohibiting roading or logging of any kind. Delete the last nine words from the most important sentence of the bill: “The Secretary shall not allow road construction, road reconstruction, or logging in an inventoried roadless area where those activities are prohibited by the Roadless Rule.”
Fix #2: Withdraw inventoried roadless areas from the application of the federal mining laws. If an area of the National Forest System is important enough to not log and road, it is important enough to not mine.
Fix #3: Claw back the roadless area losses in Idaho and Colorado. Roadless areas in the National Forest System should be treated equally. Merely changing the color on the map without changing management on the ground is greenwashing.
Fix #4: Prohibit off-road vehicles in roadless areas. If an area of the National Forest System is important enough to not log and road (and to not mine), it is important enough to not be defiled by motorized vehicles.
Fix #5: Require the Forest Service to inventory (and protect) roadless areas larger than 5,000 acres that they missed previously. The Forest Service roadless areas inventory, upon which the current roadless rule is based, missed a lot of large roadless areas. Based on an extrapolation of Oregon Wild’s excellent federal forest roadless areas inventory to other states, the Forest Service missed inventorying (actually has refused to inventory) 39.6 million acres of roadless areas larger than 5,000 acres.
Fix #6: Require the Forest Service to inventory (and protect) roadless areas between 1,000 and 4,999 acres in size. The minimum-size cutoff for the roadless area inventory was 5,000 acres. In a November 14, 1997, letter to President Clinton urging the protection of roadless areas, 136 scientists stated:
There is a growing consensus among academic and agency scientists that existing roadless areas—irrespective of size—contribute substantially to maintaining biodiversity and ecological integrity on the national forests. The Eastside Forests Scientific Societies Panel, including representatives from the American Fisheries Society, American Ornithologists’ Union, Ecological Society of America, Society for Conservation Biology, and The Wildlife Society, recommended a prohibition on the construction of new roads and logging within existing (1) roadless regions larger than 1,000 acres, and (2) roadless regions smaller than 1,000 acres that are biologically significant. . . . Other scientists have also recommended protection of all roadless areas greater than 1,000 acres, at least until landscapes degraded by past management have recovered. . . . As you have acknowledged, a national policy prohibiting road building and other forms of development in roadless areas represents a major step towards balancing sustainable forest management with conserving environmental values on federal lands. In our view, a scientifically based policy for roadless areas on public lands should, at a minimum, protect from development all roadless areas larger than 1,000 acres and those smaller areas that have special ecological significance because of their contributions to regional landscapes.
Based on an extrapolation of Oregon Wild’s excellent federal forest roadless areas inventory to other states, there are 43.9 million acres of roadless areas between 1,000 and 4,999 acres in size.
Map 1. Oregon Wild’s inventory of Oregon’s generally forested roadless resource, illustrating how the citizens roadless inventory exceeds the Forest Service roadless inventory. Click on the link at the end of this caption for a larger version. Source: Oregon Wild.
Fix #7: Extend the same statutory protection to Bureau of Land Management–identified lands with wilderness characteristics. Federal roadless areas anywhere should be protected for the benefit of this and future generations. Extrapolating from the Oregon Natural Desert Association’s excellent inventory of generally tree-free roadless areas in Oregon, it is guestimated that there are 17.3 million acres of comparable roadless lands (minimum size: 5,000 acres) on BLM public lands that are not designated BLM wilderness study areas (12.8 million acres).
Fix #8: Require that inventoried roadless areas be managed to maintain or restore their suitability to be considered for wilderness designation by Congress. Preserving the wilderness option is in the best interests of the American people.
Fix #9: Provide the option for ranchers with federal grazing permits in roadless areas to voluntarily relinquish their permits to the government. A major and irreconcilable conflict with the preservation of natural values in roadless areas is the grazing of domestic livestock. Congress has included provisions in other statutes that facilitate, in exchange for compensation from a third party, the voluntary relinquishment of federal grazing permits, which then ends grazing in the allotment. Such a provision is ecologically imperative, economically rational, fiscally prudent, socially just, and politically expedient.
Figure 5. Mount Bailey Inventoried Roadless Area on the Umpqua National Forest. Source: Mike Piehl (first appeared in Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004).
The expenditure of political capital needed to enact a roadless area bill into law is essentially the same with or without the proposed fixes. In other words, none of the proposed fixes will lose the bill any votes. The line between those who are for and against roadless areas is immovable.
Political Chances in the 117th Congress (2021–2022)
What are the chances that the Roadless Area Conservation Act will pass in this session of Congress?
The roadless area legislation could pass the House of Representatives, but a fair political question is: Why bother, as getting sixty votes in the Senate is necessary to overcome the inevitable filibuster threat? One indicator of just how interested the public lands conservation community is in enacting the bill into law is the number of cosponsors for the bill. Most cosponsorships do not happen spontaneously.
Contemplating the bill’s chances leads to the thought that there might be a better solution. Rather than codifying the regulatory roadless rule into statute, Congress should put all roadless areas in the National Forest System into the National Wilderness Preservation System, along with all roadless areas on BLM public lands. Just a thought….
For More Information
• Kerr, Andy. 2004. Oregon Wild: Endangered Forest Wilderness. Portland, OR: Timber Press.
• Kerr, Andy. 2011. “‘Small’ Wilderness: No Big Deal.” Larch Occasional Paper #8. The Larch Company, Ashland, Oregon.
Figure 6. Yamsay Mountain Inventoried Roadless Area on the Fremont-Winema National Forest. Source: Sandy Lonsdale, Wildlands Photography (first appeared in Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004).