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Mountain West Perspectives
A rule to sue by
The proposed roadless rule won't result in less litigation, but it might well let the Bush administration off the hook

By Martin Nie
for Headwaters News

Some people want nearly 59 million acres of public land set aside from additional road building and believe that roughly 400,000 miles of roads in the national forest system is quite enough. Others disagree.

Both sides have legitimate arguments to make, but that is not the focus here. Instead, I wish to examine the roadless rulemaking process and how this important decision should not be made.

The Bush administration has proposed replacing the original roadless rule with a "petitioning process" that would give governors an opportunity to seek establishment of management requirements for roadless areas within their states.

The proposed change would be available to governors for 18 months following the final rule, a time frame seen as "sufficient for states to collaborate effectively with local governments, stakeholders and other interested parties to develop proposals that consider a full range of public input."

Any petition would then be evaluated, and if accepted by the Secretary of Agriculture, the Forest Service "would initiate subsequent state-specific rulemaking for the management of inventoried roadless areas in cooperation with the state involved in the petitioning process, and in consultation with stakeholders and experts."

It is also at this stage that the agency would comply with the National Environmental Policy Act and consider the environmental effects of these state-based rules.

The administration advocates this significant departure from the original roadless rule – and from public lands management, in general – as a way to partner with (primarily Western) state governments and deal with "the continued controversy, policy concerns, and legal uncertainty" surrounding implementation of the original.

Agriculture Secretary Ann Veneman said, "The prognosis for the 2001 rule is continuing litigation lasting perhaps many years in several judicial districts and in at least four separate circuit courts of appeal."

"The prospect of endless lawsuits represents neither progress, nor certainty for communities" she said.

While the 2001 rule emphasized the need to look at the national-level picture regarding roadless-area management, the proposed change accentuates the importance of the local.

This proposal has been met with a predictable amount of conflict and controversy, and the public comment deadline has been extended to Nov. 15. Some Western governors have embraced it, while others see it as an outright abrogation of federal responsibility.

Environmentalists rail against it, of course, for not only does it potentially open up millions of acres to possible development, it also sets a precedent for increased state control over public lands management and could very well be a more sophisticated tactic in advancing the ideals of the Sagebrush Rebellion and wise-use movement.

The proposal is also an excellent example of how the executive branch can use rulemaking to its political advantage. If implemented, it provides the executive significant powers to judge the acceptability of state petitions, while also giving it a potential way out of making politically risky decisions.

From a process standpoint, this proposal is fundamentally flawed. First, it is important to remember that Article IV of the U.S. Constitution gives Congress – not state governors – power over public lands management.

Of course, the administration argues that ultimate decision-making authority still will rest with the Secretary of Agriculture, as it must to be legal. Instead of outright delegation to governors, their petitions will be "considered."

But as anyone familiar with writing a letter during an administrative rulemaking process knows well, the term "considered" can be as hollow as it sounds.

For example, will gubernatorial petitions that advocate opening up more roadless areas be "considered" differently than roadless-friendly ones?

Second, what happens when there is a change in gubernatorial administrations? Will the status of a state's roadless lands swing widely on a four-year election cycle? If so, it places those advocating increased roadbuilding at an advantage because they only have to win once.

Also curious is the argument that the proposed rule will take care of the litigation surrounding the 2001 rule. This is poorly reasoned on numerous counts.

First, it is inaccurate to suggest that the courts have forced the administration to rewrite the original roadless rule. That rule is currently in legal limbo, as the 9th Circuit Court of Appeals upheld it on substantive and procedural grounds, while an unfavorable Wyoming District Court decision has been appealed to the 10th Circuit.

It is quite possible, then, that two western Courts of Appeals will uphold the original roadless rule promulgated under Clinton. Or, we may have another circuit split and wait for the Supreme Court to sort things out.

The claim that the new proposed rule will reduce future litigation surrounding roadless areas is also inaccurate. Instead, litigation will certainly proliferate, as some states go forward with crafting detailed petitions – petitions that are then subject to further NEPA analysis and more litigation. Instead of litigation over one national-level rule, it will be over several state-based ones.

And third, it is insincere to lament the amount of litigation surrounding the 2001 rule and use it as a reason to write a new one, when the administration has chosen not to mount a rigorous defense of the rule from the beginning. Instead it plays the role of the helpless federal government that has no choice but to back off from the original rule. And this comes from an administration that has exerted more raw executive power than any other in recent memory.

This is brilliant politics, but it also illustrates the limitations of relying too heavily upon the courts and bureaucracy to resolve conflicts over public lands management.

In the past, the procedural debate over the roadless rule was split between those advocating a national policy and those who favored more traditional forest-planning processes.

Those opposed to the rule often claimed that roadless-area decisions should be made on a forest-by-forest basis, as they have in the past.

So it will be odd if professional foresters and the timber industry now champion the proposed national rule giving governors more power over public lands management. If so, it raises serious questions about the authenticity of their previous arguments.

The proposed rule is particularly egregious from an accountability standpoint. It is an artful dodge of responsibility and may prove to be nothing more than a shrewd way of avoiding responsibility for a risky political decision.

Instead of making the tough choice to either defend or scrap the rule, the Bush administration passes the buck to state governors. If the petitions are made without authentic broad-based public input and participation, they will be a mockery of the original rulemaking process and the unprecedented public comment that went into it.

The proposed rule's promotion to the public has also been disingenuous, for while it is offered as proof of "President Bush's commitment to cooperatively conserving roadless areas on national forests," it does no such thing, as the proposed rule is merely procedural in nature: Maybe it will, maybe it won't.

What is does do, however, is put an enormous responsibility on Western governors and gives the executive branch a sharpened rulemaking tool.

If implemented, the administration will be able to stand for the principle of roadless area conservation in the abstract while laying responsibility at the feet of Western state governors when these lands are proposed for development.

But by retaining final decision-making authority, the administration can also play the rulemaking "consideration" game when it suits itself.

In short, the proposed rule perfectly illustrates the possible dangers of using rulemaking as the primary means to resolve conflicts over public lands.

Martin Nie is associate professor of Natural Resources Policy in the College of Forestry and Conservation at the University of Montana.

This piece is from "Administrative Rulemaking and Public Lands Conflict: The Forest Service's Roadless Rule" forthcoming in the Natural Resources Journal.
Readers respond

Back to local control
In general, Martin Nie's political analysis of the Bush roadless move was close to my own -- he says it was a brilliant political stunt (I agree) and has a good handle on what the proposal does and doesn't do.

But he glosses over the fact that the Clinton administration nationalized a traditionally local debate and turned it into a political football that environmentalists hoped to spike into the Western Political Sacrifice End Zone.

He also doesn't address the fact that the last forty years since the passage of the Wilderness Act has seen escalating opposition to further wildernessization of "roadless areas" at the local level, nor does he explore the reasons why.

Had he done so, then it would be obvious to Headwaters readers why the Bush rule is better in the view of many Westerners than the Clinton bag job.

I'll be voting for Bush ... because once the Bush process begins, then so will the debate...not in some courtroom, but in the affected communities.

You know, representative government and all that jazz?
Dave Skinner
Whitefish, MT

Artful dodging

By Shellie Nelson, assistant editor
Headwaters News

Sept . 29, 2004

The Bush administration would revamp the Roadless Area Conservation Rule put in place by President Clinton in January 2001, the provisions of which have been on hold since a federal judge issued an injunction in May 2001.

The rule has basically prohibited the building of new roads on public lands since 1999.

The Bush administration's revision would leave the decision on roughly 60 million acres of national forest, which are now largely off-limits to logging, mining or other development, to governors who would petition the federal government to allow more -- or less -- development of federal lands in their states.

Twelve states in the western United States hold 97 percent of the lands that would be affected by this ruling.

If the provision passes, the governors of Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming will have 18 months to craft and submit their plans.

The provision would also allow changes in roadless designations during that period with the permission of Forest Chief Dale Bosworth.

The proposal elicited a mixed response among Western governors, but fell fairly predictably along party lines, with Republican governors from Montana, Idaho and Colorado praising the proposal, and Gov. Bill Richardson, Democratic governor of New Mexico, castigating it as "bad environmental policy."

Gov. Dave Freudenthal, a Democrat, said he saw the proposal as a federal transfer of responsibility without any attendant transfer of authority.

Article IV of the Constitution gives Congress, not the executive branch, power to manage public lands. The Bush administration has proven its ability and willingness to use incremental rule changes to invoke wide-ranging policy.

When the administration could not get Congress to act on its plan to revamp air-pollution regulations, dubbed "Clear Skies," the administration simply rewrote administrative regulations to institute the policy.

So, too, has national energy policy and provisions of the Endangered Species Act undergone regulatory rule changes outside the purview of Congress and the public.

Conservationists and environmentalists are concerned this latest policy change is just another instance of regulatory sleight-of-hand.

The Bush administration and Congress have already tangled over roadless areas and timber harvest, notably just about a month before the Bush administration released its revision of the Roadless Area Conservation Act.

In a close vote, Congress voted to prohibit federal funding for 25 miles of new roads for two timber sales planned for Alaska's Tongass National Forest, an area exempted from Clinton's roadless restriction by an earlier decision.

The administration has argued its support of this rule change for a variety of reasons. One of the arguments put forth by Agriculture Secretary Ann M. Veneman was that it would help curb expensive litigation and move the decisions on roadless areas from the federal to the local level.

In reality, litigation may actually increase as opponents challenge diverse management plans in different states in different federal court jurisdictions.

Allowing governors the right to craft policy for federal public lands will put policy on a four-year election cycle. What will be the outcome if a sitting governor develops a plan that either pushes for development of public lands or opposes further development, and is defeated while a decision is still pending?

The public comment period on the proposed rule change was originally set to expire on Sept. 14, but was extended by the Bush administration for another 60 days to Nov. 14.

That decision was cynically viewed by some as a political move to postpone a potentially hot issue until after the Nov. 2 election and by others an allowance of much-needed additional time to address a complex and far-ranging policy.

When the Forest Service opened up Clinton's Roadless Area Conservation Rule for public comment, it received more than 1 million postcards or other form letters, 60,000 original letters, 90,000 e-mails and several thousand faxes.

It will be interesting to see the volume of public comments to the Bush administration's policy change and whether that volume will be heeded.

"T he reclamation companies tell me it could cost up to $1.5 million to repair. Even the company says, 'It’s dollars and cents. It's cheaper to pay you your annual fees than for me to clean it up.'"

Alberta rancher Tony Bruder, about the current environment that is prompting oil and gas companies to pay an annual fee on inactive wells rather than plug them.

- Calgary Herald

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