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To:       Interested Persons

From:   Mike Anderson, The Wilderness Society

Re:       Tenth Circuit Decision in Roadless Rule Case

Following is a brief summary and analysis of the Tenth Circuit Court of Appeals’ October 21 ruling in which it reversed the Wyoming federal district court’s decision invalidating and enjoining the Roadless Area Conservation Rule (State of Wyoming v. USDA, #08-8061).

In its unanimous, 120-page opinion, the Tenth Circuit decisively and conclusively rejected all of the numerous legal claims and arguments in the State of Wyoming’s lawsuitchallenging the Roadless Rule.  The Court of Appeals ordered U.S. District Judge Brimmer to vacate his injunction, stating that “the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court’s action was based on the erroneous conclusion that Wyoming had succeeded on the merits of its claims” (Opinion, p. 120).

Background

The Tenth Circuit’s decision is the culmination of a long, complicated legal journey that began immediately after the Roadless Area Conservation Rule was adopted in January 2001.  As noted in the 14-page background section of the court’s opinion, the Roadless Rule has been the subject of at least nine lawsuits (p. 16, note 9).   The first lawsuit, brought by the State of Idaho and the Kootenai Tribe, culminated in a decision by the Ninth Circuit Court of Appeals in December 2002 that rejected the plaintiffs’ claims that the Forest Service had violated the National Environmental Policy Act (NEPA) (Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9^th Cir. 2002).

In a separate lawsuit, the State of Wyoming claimed that the federal government had issued the Roadless Rule in violation of the Wilderness Act as well as NEPA and two other laws.  In July 2003, Judge Brimmer issued a decision that largely agreed with the State (and disagreed with the Ninth Circuit’s December 2002 ruling) and issued a nationwide injunction prohibiting the Forest Service from implementing the Roadless Rule.  The Wilderness Society and other conservation groups represented by Earthjustice appealed Brimmer’s ruling to the Tenth Circuit Court of Appeals.  However, before the Tenth Circuit could rule, the Bush Administration in May 2005 repealed the Roadless Rule and replaced it with a State Petitions Rule.  The Tenth Circuit quickly responded by dismissing conservationists’ appeal and vacating Judge Brimmer’s decision and injunction as moot. 

The State Petitions Rule was challenged by the states of California, Oregon, Washington, and New Mexico and by a coalition of conservation groups represented by Earthjustice.  Those lawsuits resulted in decision by a California district court in October 2006 to enjoin the State Petitions Rule and reinstate the 2001 Roadless Rule – a decision that was affirmed by the Ninth Circuit in August 2009. 

Meanwhile, the State of Wyoming re-filed its lawsuit challenging the Roadless Rule, and in August 2008 – as he had done five years earlier – Judge Brimmer issued a decision invalidating and enjoining the Roadless Rule nationwide.  That decision was appealed to the Tenth Circuit by both the Obama Administration and Earthjustice.

Legal Issues and Outcomes

A.     Wilderness Act Issue

The State of Wyoming argued – and Judge Brimmer ruled – that the Forest Service violated the Wilderness Act’s requirement that only Congress has the power to establish “wilderness areas.” However, the Court of Appeals decided that the Roadless Rule did not establish de facto wilderness areas because the Wilderness Act imposes significantly more limits than the Roadless Rule does – such as prohibiting permanent structures and installations, motorized and mechanized recreational activities, etc.  “These distinctions clearly demonstrate that wilderness areas governed by the Wilderness Act and inventoried roadless areas governed by the Roadless Rule are not only distinct, but the Wilderness Act is more restrictive and prohibitive than the Roadless Rule” (p. 34). 

 B.     NEPA Issues

The State claimed that the Forest Service had committed numerous violations of the National Environmental Policy Act.  The Court of Appeals addressed and rejected each of those allegations.  

Scoping. The State argued that the Forest Service violated NEPA by failing to extend the comment period and to provide detailed maps during the initial public scoping process. The Court of Appeals disagreed, stating that the NEPA regulations include no particular time requirement for scoping.  Also, the scoping notice made reference to the Forest Service’s well-known RARE II areas, and the maps provided at public meetings were deemed adequate.  The Tenth Circuit noted that it was in accord with the Ninth Circuit’s Kootenaidecision on this issue (p. 50, 52 note 23)

Cooperating Agency.  The State alleged that the Forest Service violated NEPA by failing to justify denying cooperating agency status to Wyoming and other states.  The Court of Appeals dismissed this claim on the grounds that the decision was committed to agency discretion by law and not subject to judicial review (p. 55).

Range of Alternatives.  The State claimed that the Forest Service’s environmental impact statement (EIS) for the Roadless Rule did not contain an adequate range of alternatives.  The Court of Appeals disagreed:  “We conclude that the Forest Service’s decision to limit the alternatives considered in detail to those that focused on restrictions on road construction and timber harvest … was reasonable in light of its conclusion, based on ample evidence presented in the EIS, that these activities posed the greatest risk of destroying the characteristics of inventoried roadlessareas(IRAs) which the proposed rule was intended to protect and preserve” (p. 61).  Specifically, the court decided that: 

-         Alternatives 2 and 4 were sufficiently different to justify evaluating them as separate alternatives (p. 65). 

-         The Forest Service reasonably explained why it eliminated other alternatives from consideration (p. 66).

-         The EIS did not need to consider in detail an “active forest management” alternative because it was tantamount to the No Action alternative and because the agency reasonably determined that it would lead to widespread road building that would be incompatible with the rule’s purpose and need (p. 67). 

-         The EIS did not need to consider additional alternatives (specifically a mineral withdrawal exemptions alternative) based on the Forest Service’s decision to transfer the procedural aspects of the draft roadless rule to the forest planning rule (p. 69-71). 

On this key NEPA issue, the Tenth Circuit was in accord with the Ninth Circuit’s Kootenai decision (p. 60, 63).

Cumulative Effects.  The State argued that the EIS did not adequately address the cumulative impacts of three other Forest Service initiatives -- the forest planning rule, road management rule, and transportation policy.The Court of Appeals ruled that the cumulative effects analysis was adequate because the EIS disclosed that the three initiatives would likely result in an overall decrease in road construction and an increase in unroaded areas and because disclosure of more detailed impacts would be too speculative.  The EIS was only required to disclose reasonably foreseeable impacts (p. 75-79).  Again, the Tenth Circuit was in agreement with the Ninth Circuit on this issue (p. 79, note 32).

Site-specific Effects Analysis.  The State alleged that the Forest Service failed to conduct a site-specific analysis for each Inventoried Roadless Area.  The Court of Appeals addressed and rejected this issue (even thoughtJudge Brimmer had also rejected this part of the State’s lawsuit) on the grounds that NEPA regulations only require “generic” evaluation of federal regulations. The court also distinguished this case from a 1982 case, California v. Block, in which the Ninth Circuit invalidated the Forest Service’s RARE II EIS for lack of site-specific analysis, citing more recent NEPA regulations and the fact that RARE II opened areas to possible development that could lead to substantial environmental degradation (p. 84 note 34). 

Supplemental EIS.  The State complained that the Forest Service failed to prepare a supplemental EISin response to changes between the draft and final rules.  However, the Court of Appeals decided that none of the four changes (listed below) was “substantial” enough to require a supplemental EIS:

-         Shifting the procedural requirements to the forest planning rule. The court ruled that those effects were covered in the planning rule NEPA evaluation (p. 89).

-         Applying the Rule’s prohibitions to 2.8 million acres of “roaded portions” of IRAs as well as to unroaded portions.  The court concluded that the effects analysis in the draft EIS covered both portions (p. 91).

-         Adding 4.2 million acres of IRAs subject to the roadless rule. This change was deemed to be qualitatively within the spectrum of alternatives in the draft EIS, since the added areas are similar in nature to the other IRAs (p. 94-95).

-         Limiting the timber harvest stewardship exception to small diameter trees. The draft EIS had adequately explained that the stewardship objective in Alternative 3 was commonly achieved through removal of small-diameter trees (p. 97).

In addition, the court appreciated that the Forest Service had provided the public an added opportunity to comment on the final EIS before promulgating the rule (p. 99 note 39).

Predetermined Outcome.   The State argued that the Forest Service had already determined the outcome of the rulemaking process.  The Court of Appeals rejected this claim because the evidence did not establish that the Forest Service was irreversibly and irretrievably committed to an outcome (p. 106). 

C.     Multiple-Use Sustained-Yield Act Issues

The State of Wyoming argued that the Roadless Rule violated the Multiple-Use Sustained-Yield Act in several respects.  (Judge Brimmer had declined to rule on the State’s MUSYA claim, since he had already invalidated the rule based on the Wilderness Act and NEPA.)

-         The roadless rule’s “one size fits all” approach requires identical treatment of IRAs.  The Court of Appeals disagreed, noting that the Roadless Rule’s exceptions allow different actions depending on local conditions, and IRAs will continue to be managed according to the local forest planning process (p. 108-109).

-         The rule precludes multiple use management.  The court disagreed on the grounds that the MUSYA gives the Forest Service broad discretion to determine the proper mix of uses (p. 110).

-         The rule does not consider relative values of various uses in particular areas.  The court ruled that the EIS adequately assessed resource values (p. 112)

D.     National Forest Management Act Issues

The State alleged several violations of the National Forest Management Act (Judge Brimmer declined to rule on the State’s NFMA claim).  The State’s NFMA issues were:  (1) the rule does not comply with the NFMA requirement of one integrated plan for each national forest, (2) the rule re-designates 9 million acres of suitable timberland in forest plans, (3) NFMA requires a three-month comment period, and (4) NFMA requires forests to be managed by individual forest plans, not national prescriptions.

The Court of Appeals decided that there was no conflict between the NFMA and theRoadless Rulesince the rule was promulgated under general rulemaking authority of the Forest Service’s 1897 Organic Act.The court stated, “The Forest Service is permitted to rely on its rulemaking authority under the Organic Act and MUSYA to resolve issues of broad, even nationwide, applicability – such as protection of IRAs – even though it is nevertheless required to engage in localized forest planning under the NFMA” (p.116).  On this key issue, the Tenth Circuit again was in accord with the Ninth Circuit’s 2002 ruling in theKootenaicase (p. 118).

Next Steps

At this point in the litigation process, the State of Wyoming can request a re-consideration by the Tenth Circuit or petition the U.S. Supreme Court to hear its case.  However, since the decision by the three-judge panel was unanimous and there is no conflict between the Ninth and Tenth Circuit’s rulings on the Roadless Rule, the case does not present any of the typical factors that weigh in favor of such further review.  Furthermore, the Court of Appeals addressed and rejected all of the claims raised by the State that U.S. District Court Judge Brimmer had declined to address.  The Court of Appeals thereby effectively foreclosed the possibility that the State could keep its case alive by asking Judge Brimmer to reconsider those remaining claims. 

While the Roadless Rule’s legal prospects have always been difficult to predict, the Tenth Circuit’s definitive ruling has fundamentally resolved the legal uncertainty that has persisted for most of the past decade.   The Roadless Rule now is clearly “the law of the land.”

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Masthead photo credits: Rolf Sklar, Curtis J. Carley FWS, NOAA