WASHINGTON – Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., and Senator Maria Cantwell, D-Wash., asked the Department of Agriculture Monday for assurances it is implementing the Roadless Area Conservation rule, which prohibits most new road construction and timber harvesting on more than 58 million acres within the national forest system. In a letter dated Monday, March 3, 2003, the two Senators reminded Agriculture Secretary Ann Veneman of the Administration’s “hollow support” for the rule in the past, and asked for details of the Department’s plans to ensure full compliance.
“The Administration’s track record on this rule is not comforting,” Lieberman said. “Agriculture Department documents provided to the Governmental Affairs Committee two years ago underscored the administration’s hollow support. The Administration never defended the rule against a legal challenge in Idaho District Court and, in fact, according to documents, hoped the court would throw the rule out, so the Administration didn’t have to.”
“President Bush took an oath to uphold the law; his Administration cannot arbitrarily bypass rules it doesn’t like,” said Cantwell, the author of legislation to codify the roadless rule.
“This rule protects roadless areas for clean drinking water and recreational uses like hunting, fishing, and other outdoor activities.
”The rule was issued in January 2001 and was challenged in eight separate law suits in six federal judicial districts. In Idaho, the District Court enjoined the rule. The Ninth Circuit Court of Appeals recently overturned that decision, concluding the plaintiffs were unlikely to win their case, and therefore the District Court’s preliminary injunction was wrongly issued. On the day that the Ninth Circuit issued its opinion, the Under Secretary for Natural Resources and the Environment acknowledged during a briefing that the Department must comply with the rule but the Department’s recently proposed regulation on forest management planning continues to engender great doubt about its commitment to protecting the nation’s forests. Roadless areas, found within 661 of the over 2,000 major watersheds in the continental United States, serve as sources of public drinking water for millions of Americans and help maintain fish and wildlife populations. Following is the letter:
March 3, 2003
The Honorable Ann Veneman
Secretary U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, D.C. 20250
Dear Secretary Veneman:
We are writing to inquire about the Department of Agriculture’s (“USDA”) current plans for implementation of the Roadless Area Conservation rule by the U.S. Forest Service. As you know, the Ninth Circuit Court of Appeals recently overturned an Idaho district court’s decision to preliminarily enjoin the rule,1 which prohibited most new road construction and timber harvesting on 58.5 millions acres of roadless areas within the national forest system. These areas, found within 661 of the over 2,000 major watersheds in the continental United States, serve as sources of public drinking water for millions of Americans and help maintain fish and wildlife populations.
Despite the fact that the government failed to defend the rule, the Ninth Circuit concluded that the plaintiffs were unlikely to win their case, and therefore that the District Court’s preliminary injunction was wrongly issued. On the day that the Ninth Circuit issued its opinion, the Under Secretary for Natural Resources and the Environment acknowledged during a briefing that the Department must comply with the rule.
He also issued a written statement which said, in part: On May 4, 2001, the Department announced that it would allow the rule to go into effect as it now will with the injunction vacated by the court.2 However, as indicated in USDA documents provided to the Governmental Affairs Committee, the May 4, 2001 announcement was merely a hollow statement of support. It was made the same day that the USDA apparently undertook a strategy not to defend the legal challenge in Idaho. Department officials were concerned that rescinding the rule through the required notice and comment rulemaking process would feed the “[p]erception of diminished concern for environmental protection.”3 Thus, USDA did not propose a rescission of the rule, but rather, adopted the approach to await a “final ruling that the rule is illegal. . . .” or, put more simply, to “let judge take rule down.”4
During the period between the Idaho Court’s preliminary injunction and the Ninth Circuit’s ruling, the USDA adopted guidance for the Forest Service (in a series of interim directives) which is inconsistent with the requirements of the rule. For example, the guidance — which was issued without prior public comment — differs from the rule’s ban on construction of roads in inventoried areas by allowing the Chief of the Forest Service to approve or disapprove timber harvests in roadless areas. Furthermore, it provides that decisions can be made by local Forest Service officials regarding construction of such roads in the 12 forests in which a forest plan revision had been issued as of July 27, 2001 (as was true of Alaska’s Tongass National Forest).
The guidance also permits officials to make decisions regarding construction of roads in additional forests after completion of a roads analysis and its incorporation into a forest plan, thereby undoing the nationwide roadless area rule by returning roadless area decisions to a forest-by-forest basis.5
In light of this history, we would appreciate your providing us with information about the Department’s plan to ensure full compliance with the rule and provide for an adequate defense of other currently pending legal challenges. Specifically:
1. Please describe the position of the United States taken in each of the remaining challenges to the rule and provide copies of the relevant briefs filed on behalf of the USDA. What is the current status of the Idaho case and what is the position taken by the United States?
2. On December 12, 2002, the Under Secretary provided assurances during a staff briefing sponsored by the Committee on Energy and Natural Resources that he would review existing Forest Service guidance to ensure its consistency with the regulation. Please provide detailed information regarding the results of the review. Be specific and identify the provisions of the guidance that are inconsistent with the rule. Describe the action taken to rescind any such provisions and when it was or will be taken. For those provisions determined to be consistent with the rule, explain how they are consistent.
3. Describe the action taken to ensure that officials at forests containing inventoried roadless areas are in full compliance with the regulation and the date on which the action was taken.
4. After the Idaho Court issued the preliminary injunction, the Forest Service announced a proposal to harvest an estimated 8 million board feet within an inventoried roadless area of the Tongass National Forest.6 Identify all additional proposals for harvesting within inventoried roadless areas since March 9, 2002. Describe the actions taken to ensure that these proposals, including the proposed Tongass harvest, are not proceeding.
5. During the proceedings in the Idaho case, the USDA advised the court that in June 2001, it would propose a new rulemaking to replace the challenged January 2001 rule, retaining the rule’s protections for roadless values. USDA has not yet proposed such a rule. The Under Secretary’s December 12 announcement states: “Over the last year, we have been working toward a responsible and balanced approach that fairly addresses concerns raised by states, tribes and local communities impacted by the rule. . . .” Does the Department intend to propose a new roadless area rule? If so, when? Please describe, in detail, the process followed by the Department in developing the new approach. Identify from whom and in what manner views of interested stakeholders have been solicited, other than the public comments formally received in response to the Advanced Notice of Proposed Rulemaking issued on July 10, 2001. How were the “interested stakeholders” from whom views have been solicited identified?
6. USDA’s recently proposed changes to its planning regulations state that roadless areas are to be reviewed for wilderness suitability when forest plans are revised.7 The proposed regulations also state that all lands are to be assumed to be potentially suitable for a variety of uses, including timber harvesting, except when specific areas are identified and determined not to be suitable for one or more uses.8 Does USDA intend to substitute this treatment of roadless areas under the proposed new planning rules for the roadless area rule? If so, how, and under what authority, will the Department take such action? Will USDA formally rescind the roadless area rule? When?
We would appreciate a response to these questions by March 21, 2003. In addition, a member of the Governmental Affairs Committee minority staff, Kathy Seddon, will be in contact with the USDA to schedule a briefing on these matters.
Joseph I. Lieberman
1 Kootenai Tribe of Idaho v. Veneman, et al and State of Idaho v. U. S. Forest Service,CV Nos. 01-35472 and 10-355399 (9th Cir. Dec. 12, 2002) (Opinion). 2 Release No. 0511.02 by Under Secretary Mark Rey On the Ninth Circuit Court of Appeals Ruling, December 12, 2002. 3 Quotation from USDA document, cited in Rewriting the Rules, S. Prt. 107-76, at 24. 4 Quotations from USDA documents, id. 5 Id. at 27. 6 67 Fed. Reg. 10661 (March 8, 2002). 7 67 Fed. Reg. 72795 (December 6, 2002). 8 67 Fed. Reg. 72802 (December 6, 2002).