Roadless Rule Emerges Victorious From Decade of Legal Challenges

By Mr. Michael Anderson

Get the latest expert analysis on the federal "Roadless Area Conservation Rule," which bans road building and logging on millions of acres of national forest land in numerous states. This article includes an overview of the extensive roadless rule litigation and discusses implications of the U.S. Supreme Court's October 2012 decision not to review a Tenth Circuit opinion.

Excerpt from the Commentary:

On October 1, 2012, the U.S. Supreme Court effectively ended more than a decade of litigation over the Roadless Area Conservation Rule. Adopted by the Clinton Administration in January 2001, the Roadless Rule banned most road building and logging on 58.5 million acres of national forest land in 38 states, including 4 million acres in California. The Roadless Rule immediately became embroiled in numerous lawsuits, and the Bush Administration attempted to repeal the rule. Federal district courts in California, Idaho, and Wyoming issued conflicting decisions, leaving the legality of the Roadless Rule in doubt for much of the past decade.

In the end, legal defenders of the Roadless Rule-including the State of California-have emerged victorious. By denying the State of Wyoming's petition for review, the Supreme Court let stand a Tenth Circuit Court of Appeals' decision in favor of the Roadless Rule. The Tenth Circuit decision fully accords with previous rulings by the Ninth Circuit Court of Appeals. Thus, the Roadless Rule is now the law of the land for all national forest roadless areas except those in Idaho and Colorado, where state-specific roadless area regulations apply.

This article examines the Roadless Rule's tortuous legal journey through the federal courts. The Roadless Rule litigation has followed three main paths, the first through Idaho and the Ninth Circuit, the second through California and the Ninth Circuit, and the third through Wyoming and the Tenth Circuit. Regulatory actions by the Bush and Obama administrations have intertwined with the various legal cases, adding complexity and political intrigue to the story. Eight of the western states-Alaska, Idaho, Colorado, Wyoming, California, Oregon, Washington, and New Mexico-have played prominent roles in the legal and regulatory skirmishes. The article pays special attention to the Tenth Circuit's lengthy and definitive opinion on the legality of the Roadless Rule. It concludes with a brief discussion of the remaining cases and the future of the Roadless Rule.

For the practicing environmental lawyer, the Roadless Rule is a fascinating and instructive case study of the legal interplay between the administrative and judicial branches of government. Many lessons can be learned from the way in which rulemaking and litigation were used by the proponents and opponents of roadless area protection over the course of three presidential administrations and in two federal circuit courts. The Tenth Circuit's well-reasoned and definitive opinion in the Roadless Rule case, Wyoming v. USDA, 661 F.3d 1209 (10th Cir. Wyo. 2011), provides insights into the way the courts are likely to address similar legal issues under the National Environmental Policy Act and other federal laws in future cases involving conservation-oriented agency regulations.

Michael Anderson is senior resource analyst for The Wilderness Society, which has been party to several of the lawsuits over the Roadless Area Conservation Rule and the State Petitions Rule.

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