05/14/2020 - Regulatory Rollback

Alaska Roadless Rule

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why It Matters

Alaska is home to the Tongass and Chugach National Forests, respectively the largest and third-largest national forests in the United States. The Tongass alone, at 16.7 million acres—roughly the size of West Virginia­—is larger than 48 of the 153 other national forests combined. The Tongass and Chugach National Forests are particularly known for their vast stands of old-growth forests. These stands play significant environmental roles. For example, the Tongass National Forest acts as massive carbon sink, storing eight percent of the total carbon stored by all forests in the lower forty-eight. Yet the timber industry built around these forests – once the lifeblood of Southeast Alaska – still plays a significant but reduced role in the Alaskan economy.

The highly controversial and litigated 2001 Roadless Rule limits logging, road construction, mineral leasing, and other activities in designated roadless areas in national forests across the country. Alaska has 14.7 million acres of designated roadless areas – about 67% of the national forest land. The extent to which the 2001 Roadless Rule applies to Alaska significantly affects the types of industry activities permitted in the Tongass and Chugach National Forests.

Current Status

October 17, 2019 The Forest Service releases proposed regulations exempting the Tongass from the Roadless Rule, as well as a Draft Environmental Impact Statement for the regulations.

November 20, 2019 The fall 2019 Unified Agenda published by the Office of Information and Regulatory Affairs (OIRA) projects that a final Alaska Roadless Rule will be published in June 2020.

May 8, 2020 Nine Southeast Alaska tribes have asked the Department of Agriculture to extend the time for consultation regarding the Draft Environmental Impact Statement for the proposed Alaska Roadless Rule.

 History

Given the complex history of the Roadless Rule, this timeline is abbreviated. For more complete timelines of the Roadless Rule, please see The Wilderness Society’s Chronology from 2001-2006 and EarthJustice’s timeline.

May 10, 2000 The Forest Service publishes a proposed rule to conserve and protect roadless areas in the National Forest System. The Forest Service proposes to delay the decision of whether to exempt the Tongass National Forest from the rule’s restrictions until April 2004. 

Jan. 12, 2001 The Forest Service publishes the Roadless Area Conservation Rule (Roadless Rule). The rule protects around 58.5 million acres of roadless areas in National Forest System lands from road construction and timber harvest. The final rule applies to the Tongass National Forest, but it exempts certain areas in the Tongass where the agency already began environmental reviews for road construction or timber harvest projects.

Jan. 31, 2001 Alaska files a lawsuit alleging that the Roadless Rule is unlawful. Alaska v. USDA, No. 3:01-cv-00039-JKS (D. Alaska). Coalitions of states, tribes, and interested organizations also file lawsuits in different courts challenging the Roadless Rule.

Feb. 5, 2001 Following the inauguration of President George W. Bush, the Forest Service delays the implementation of the Roadless Rule for 60 days.

May 10, 2001 A judge for the Idaho US District Court blocks implementation of the Roadless Rule. The decision follows a filing by the Bush administration stating that the Forest Service would let the rule go into effect on May 12 but planned to review the rule and restart the public comment process. Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Idaho).

Dec. 12, 2002 The 9th Circuit Court of Appeals reverses the district court’s decision and reinstates the Roadless Rule. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).

June 10, 2003 The government and parties settle Alaska v. USDA. As part of the settlement, the government agrees to publish a proposed rule temporarily exempting the Tongass from the Roadless Rule and to begin the process of promulgating a permanent exemption. Alaska v. USDA, No. 3:01-cv-00039-JKS (D. Alaska)

July 14, 2003 In an unrelated case, the Wyoming US District Court blocks further implementation of the Roadless Rule, finding that the rule was unlawfully issued. Wyoming v. USDA, 277 F. Supp. 2d 1197 (D. Wyo. 2003).

July 15, 2003 The Forest Service publishes two proposals as part of the settlement in Alaska v. USDA. The first is a proposed rule to temporarily exempt the Tongass. The second is an advanced notice of proposed rulemaking, which seeks comment on the applicability of the Roadless Rule to the Tongass and Chugach National Forests.

Dec. 30, 2003 The Forest Service publishes a final rule temporarily exempting the Tongass from the Roadless Rule. The rule states that it will be in effect until the Department issues a final rule regarding the applicability of the Roadless Rule to Alaska.

July 16, 2004 The Forest Service publishes a proposed rule to repeal the Roadless Rule and replace it with a state petition process.

August 18, 2004 The Forest Service begins the environmental review process for a timber sale in the Tongass, including previously protected roadless areas.

May 13, 2005 The Forest Service publishes a final rule repealing the Roadless Rule and replacing it with a state petition process. Under the proposed system, governors can petition the Forest Service to establish management requirements for roadless areas within their states. The agency also renews an interim directive requiring roadless areas to be “managed to preserve their roadless characteristics.” Under the directive, the Forest Service Chief can grant exceptions to projects.

July 11, 2005 The 10th Circuit Court of Appeals vacates (voids) the 2003 Wyoming district court decision blocking implementation of the Roadless Rule. The 10th Circuit holds that the issues are moot because of the May 2005 repeal of the Roadless Rule. Wyoming v. USDA, 414 F.3d 1207 (10th Cir. 2005).

June 21, 2006 The Agriculture Secretary approves the first three state roadless area petitions.

Sept. 20, 2006 The US District Court for the Northern District of California invalidates the May 2005 repeal of the Roadless Rule and the promulgation of the state petition rule. The court finds that the Forest Service failed to adequately comply with the National Environmental Policy Act when undertaking the rulemaking. The court reinstates the 2001 Roadless Rule and the 2003 exemption for the Tongass. Thus, the Tongass is excluded from roadless protections. California v. USDA, 3:05-cv-03508-EDL (N.D. Cal. Sept. 20, 2006).

Aug. 12, 2008 The Wyoming US District Court issues a second decision invalidating and blocking the implementation of the Roadless Rule. The court holds that the rule violates the Wilderness Act of 1964 and that the Forest Service did not meet the procedural requirements of the National Environmental Policy Act. Wyoming v. USDA, 2:07-cv-00017-CAB (D. Wyo. Aug. 12, 2008).

May 28, 2009 Agriculture Secretary Tom Vilsack signs a memo requiring that, for the next year, any projects in roadless areas receive specific approval from the Secretary himself. The memo includes projects in the Tongass. The memo is extended in 2010 and 2011.

Aug. 5, 2009 The 9th Circuit Court of Appeals invalidates the May 2005 state petitions rule on procedural grounds and reinstates the 2001 Roadless Rule. California v. USDA, No. 07-15613 (9th Cir. 2009).

March 4, 2011 The Alaska US District court vacates (voids) the 2003 rule exempting the Tongass National Forest. The decision reinstates the Roadless Rule’s application to the Tongass. Organized Village of Kake v. USDA, 1:09-cv-00023 JWS (D. Alaska March 4, 2011).

June 17, 2011 Alaska files suit, alleging that the application of the Roadless Rule to Alaska was unlawful. In effect, the lawsuit seeks a renewed exemption for the Tongass. Alaska v. USDA, 1:11-cv-01122-RJL (D.D.C.).

Oct. 21, 2011 The 10th Circuit Court of Appeals upholds the Roadless Rule and reverses the Wyoming district court’s decision. Wyoming v. USDA, No. 08-8061 (10th Cir. 2011).

March 25, 2013 The DC District Court denies Alaska’s challenge to the Roadless Rule, holding that the statute of limitations (the time in which challengers must file a lawsuit) has run out.

March 26, 2014 A panel for the 9th Circuit Court of Appeals reverses the Alaska district court’s decision vacating the 2003 rule exemption the Tongass from the Roadless Rule. Organized Village of Kake v. USDA, No. 11-35517 (9th Cir. 2014).

Dec. 7, 2014 The DC Circuit holds that the DC District Court’s improperly dismissed Alaska’s challenge as untimely. The DC Circuit sends the case back to the district court to consider the substantive issues in the case. Alaska v. USDA, No. 13-5147 (D.C. Cir. 2014).

July 29, 2015 After rehearing the March 2014 decision en banc, the 9th Circuit affirms the Alaska district court’s original decision vacating the 2003 exemption for the Tongass. The court reinstates the application of the Roadless Rule to the Tongass. Organized Village of Kake v. USDA, No. 11-35517 (9th Cir. 2015).

Trump Era

September 20, 2017 The U.S. District Court for the District of Columbia dismisses Alaska’s suit against the federal government seeking an exemption for the Tongass from the Roadless Rule. Alaska v. USDA, 1:11-cv-01122-RJL (D.D.C.).

December 2017 Sen. Lisa Murkowski (R-Alaska) sponsors a rider on an appropriations bill exempting the Tongass from the Roadless Rule (see pp. 171–72).

January 19, 2018 The Alaska Department of Natural Resources petitions Secretary of Agriculture Sonny Perdue to exempt the Tongass from the Roadless Rule.

August 2, 2018 The Department of Agriculture announces its intent to create an Alaska-specific version of the Roadless Rule.

August 30, 2018 The Forest Service announces its intent to prepare an Environmental Impact Statement (EIS) for an Alaska-specific Roadless Rule.

October 24, 2018 Forest Service Chief Vicki Christiansen delegates the authority to designate roadless areas to regional foresters, breaking with Forest Service custom.

October 2018 The Forest Service publishes a Final Environmental Impact Statement for the Prince of Wales Landscape Level Analysis Project (POWLLA). The plan would last 10-15 years and allow for timber harvesting within the Tongass (on the Prince of Wales Island and surrounding islands). Planning for timber activities and other projects in areas of the Tongass not designated as roadless areas are ongoing.

May 7, 2019 Earthjustice and other groups file suit against the POWLLA on the grounds that it violates the National Environmental Policy Act (NEPA), the Alaska National Interest Lands Conservation Act (ANILCA), and the National Forest Management Act (NFMA). Southeast Alaska Conservation Council v. USFS, No. 1:19-cv-00006-SLG (D. Alaska).

August 27, 2019 President Trump reportedly instructs the Department of Agriculture to exempt the Tongass from the Roadless Rule.

October 17, 2019 The Forest Service releases proposed regulations exempting the Tongass from the Roadless Rule, as well as a Draft EIS for the regulations.

November 20, 2019 The fall 2019 Unified Agenda published by the Office of Information and Regulatory Affairs (OIRA) projects that a final Alaska Roadless Rule will be published in June 2020.

November–December 2019 The Forest Service holds twenty meetings regarding the proposed rulemaking with Alaska communities, including eighteen “subsistence hearings” evaluating the impact of the proposed action on Alaska Native subsistence uses, which are protected by ANILCA. Transcripts of those meetings are available here.

March 7, 2020 The Forest Service sends nine Southeast Alaska tribes a preliminary version of the Final EIS for the Alaska Roadless Rule, requesting comment by March 21.

 March 11, 2020 The Department of Agriculture’s Inspector General launches an investigation into the potential use of a Forest Service grant by the state of Alaska to support the requested exemption of the Tongass from the Roadless Rule.

March 12, 2020 The U.S. District Court for the District of Alaska rejects the Final EIS for the POWLLA as in violation of NEPA, ANILCA, and NFMA. Southeast Alaska Conservation Council v. USFS, No. 1:19-cv-00006-SLG (D. Alaska).

May 8, 2020 Nine Southeast Alaska tribes have asked the Department of Agriculture to extend the time for consultation regarding the proposed Alaska Roadless Rule.