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Briefing Paper on the USFS’s Proposed Action Roadless Areas on the Tongass National Forest

by Jack E.Phelps

Prepared by the Alaska Forest Association (AFA)
February 6, 1998                                                                       

INTRODUCTION

On Thursday, January 22, 1998, Forest Service Chief Mike Dombeck made the remarkable announcement that the agency will be making new determinations regarding roadless areas on the Tongass National Forest during the current Tongass Land Management Plan (TLMP) appeal process. Apparently, the Forest Service intends to implement a new roadless area policy for
the Tongass through the administrative appeal process, contrary to the statutory and regulatory authorities controlling such policy determinations and despite the fact that the Forest Service is limited to correcting legal errors during the administrative appeal process.

Chief Dombeck made the announcement about the Tongass roadless areas during the course of announcing two Forest Service rulemakings affecting other national forests. First, the Forest Service gave advanced notice of its intent to develop a new long- term policy regarding the construction of roads in roadless areas on the national forests. Second, the Forest Service immediately implemented a moratorium suspending all road construction and road reconstruction activities in roadless areas on the national forests until the long-term policy is promulgated. Although the Tongass National Forest is exempted from the moratorium that the Forest Service implemented with respect to roadless areas in the majority of the national forests, the Forest Service’s announcement that Tongass roadless areas would be addressed during the TLMP appeal process is a portent of new agency policy regarding the classification and treatment of Tongass roadless areas.

No regulatory or statutory mechanism or process exists for the Forest Service to unilaterally change the recently revised TLMP during an appeal process or otherwise. Any determinations that the Forest Service attempts to make during the TLMP appeal process must be limited to correcting what the Forest Service agrees were legal errors in the TLMP planning process. Any other changes (including changes to the Tongass roadless areas policy) must be pursued as a plan amendment through the appropriate Forest Planning regulations, in the same way that the AFA is pursuing plan amendments through the process established in the regulations.

Note #1 The purpose of this briefing paper is to outline why the agency’s proposed action to change its Tongass roadless areas policy would be unlawful under the National Forest Management Act ( NFMA ) of 1976 (16 USC § 1604), the National Environmental Policy Act (NEPA) of 1969 (42 USC § 4321 et seq.) and the Alaska National Interest Lands Conservation Act (ANILCA ) of 1980 (16 USC § 3201 et seq.). It is the further purpose of this briefing paper to describe why implementation of a new policy under the guise of correcting a legal error in preparation of TLMP would likewise be unlawful under the above statutes and regulations.

It should be noted that while this briefing paper deals specifically with the issues surrounding the implementation of the proposed roadless policy on the Tongass , many of the same legal principles apply equally to the application of the policy with respect to the Chugach National Forest. This is especially true regarding the discussion of the "no more" provisions of ANILCA
(See point II., below).

DISCUSSION

Chief Dombeck’s recent announcement notifies the public of two agency actions. First, the agency intends to develop a long-term policy with respect to road management in roadless areas on the national forests.Note #2 The Forest Service will be conducting studies for at least the next 18 months to determine what that policy will be and how it will apply to approximately 33 million acres of roadless areas, 9 million of which are suitable for timber harvest. Chief Dombeck stated that "[w]e anticipate that the final long- term road policy will apply to all forests." (Forest Service News Release dated January 22, 1998 (emphasis added).

Second, the agency is implementing an interim policy which places an 18-month moratorium on road construction and reconstruction in roadless areas.Note #3 The moratorium immediatelyNote #4 suspends road construction and road reconstruction in areas equal to or greater than 5,000 acres in inventoried RARE II (Roadless Area Review and Evaluation) areas in the national forests and in "other unroaded areas, regardless of size, identified in a forest plan." Note #5 The moratorium also applies to unroaded areas greater than 1,000 acres which are contiguous to (1) wilderness areas, (2) wild and scenic rivers that are classified as "wild," and (3) roadless areas of 5,000 acres or more which are located on other federal lands. Furthermore, the moratorium will apply to two other categories of land:

1.any National Forest System (NFS) area of low-density road development or
2.any other NFS area that retains its roadless characteristics which the Regional Forester subsequently determines have such special and unique ecological characteristics or social values that no road construction or reconstruction should proceed. The agency does not anticipate that Regional Foresters will create a new inventory of roadless areas that meet the criteria of these latter two categories. Rather, it is expected that Regional Foresters will apply these categories on a project-by-project basis. Examples of areas that might be considered under these latter categories are areas needed to protect the values of municipal watersheds, including public drinking water sources, or to provide habitat for listed or proposed endangered and threatened fish, wildlife, or plants.

(63 Fed. Reg. at 4351-52.) The moratorium will remain in effect for 18 months or until the agency has developed "improved analytical tools&7quot; for making future road decisions, whichever is earlier. The agency believes that the moratorium may have some impacts on other activities already approved for these areas.

The Forest Service exempts the Tongass National Forest from the moratorium. Instead, the agency states that "issues related to the construction of roads in roadless areas [on the Tongass] will be addressed in the [TLMP] appeal decision, when appropriate." (Parenthetical statement found at end of proposed 36 CFR § 212.13(b)(2), 63 Fed. Reg. at 4354.) The agency specifically requests "comment on whether additional measures are needed to implement the [Tongass] exemption."

I. The Forest Service cannot make unilateral or "back door" policy changes to a forest plan in the guise of granting a forest plan appeal point. Any development and implementation of a new roadless area policy on the Tongass must be formulated as a forest plan amendment in accordance with the process set forth in NFMA, must provide for full and meaningful public
participation, and must meet the environmental review requirements provided under NEPA.


AFA is concerned that the Forest Service may seek to implement a new roadless areas policy on the Tongass by either

1.announcing a unilateral agency change in the recently revised TLMP to prohibit or severely limit any development activities (including logging and road construction) in Tongass roadless areas Note #6 or
2.justifying application of the new roadless area policy to the Tongass based upon the agency’s purported corrections of alleged legal errors raised by environmental groups appealing the revised TLMP.

Either approach would violate NFMA and NEPA.
NFMA establishes a process for forest plan amendments (such as the new roadless area policy) when the agency proposes significant changes to a forest plan. Development and implementation of a new roadless area policy will constitute a significant and major plan amendment because it will affect the classification and use of resources on millions of acres of forest land. Under NFMA, a plan amendment which results in a significant change in a plan must undergo the same land management planning process that is used for original and revised plans, including, but not limited to, the preparation of an environmental impact statement (EIS) in accordance with NEPA. (16 USC 1604(d)-(g).)

(A) NFMA Prohibits Unilateral Forest Service Changes to Forest Plans

The NFMA establishes a process for amending a Forest Plan:
16 USC § 1604(c) states that "[u]ntil such time as a unit of the National Forest System is managed under plans developed in accordance with this subchapter , the management of such unit may continue under existing land and resource management plans." The necessary implication is that once a plan (such as the revised TLMP for the Tongass ) has been developed, management pursuant to that plan must continue until the plan is amended.
16 USC § 1604(f)(4) provides that amendment of forest plans "in any manner whatsoever" resulting in significant change be made in the same manner as the plan itself was developed. A plan is developed by the Forest Supervisors using the NEPA process as the decision making process for meeting the NFMA planning requirements (36 CFR 219.1 et seq.) Hence a proposed amendment must follow the same process as the original plan.
16 USC § 1604(d) and 36 CFR § 219.6 require the agency to provide for meaningful public participation in the development, review, and revision of a forest plan, including plan amendments. (16 USC § 1604(d); 36 CFR § 219.6.)
The above description of the process for amending a forest plan is corroborated by the agency’s
regulatory requirements and the Forest Service Handbook and Manual. (See, e.g., 36 CFR § 219.10(f) and FSH 5.32.5 (both of which require preparation of an EIS for a significant plan amendment).) If a proposed change to an existing plan is significant, then the plan must be amended in accordance with the forest planning process, including full public participation.

In short, the Forest Service cannot dictate a change in how roadless areas on the Tongass will be treated and/or classified under the revised TLMP without first initiating the plan amendment process.

(B) NFMA Prohibits Back Door Policy Changes to Forest Plans

During the administrative appeal process, the Forest Service can only correct what it agrees are legal errors which occurred in the forest planning process. It cannot change agency policy during the administrative appeal process. If the Forest Service implements the roadless area policy by granting a point made on appeal of the TLMP by an environmental group, such "back door" action to implement a new policy would also be a violation of the NFMA planning regulations and NEPA.

AFA presents the following examples to illustrate how Forest Service determinations based on various appeal points will violate federal law:

As part of its administrative appeal, the Southeast Alaska Conservation Council (SEACC) has requested that the agency reclassify SEACC’s list of "special areas" as remote recreational, since that classification would be most similar to LUD II roadless areas. (See selected pages from SEACC’s Appeal attached as Exhibit 3.) Note #7 The Forest Service did not develop such land use designations as part of the planning process and was not required to do so by the planning regulations. Thus, the agency cannot now, without commencing the plan amendment process, including the opportunity for public participation, change TLMP in response to SEACC’s appeal. Note #8 Such a change could only be made through the plan amendment process, and then only if statutory constraints on the classification and/or withdrawal of federal lands in Alaska do not preclude a proposed amendment. (See discussion under Section II, below.)

As such, changes to the Tongass roadless area policy cannot be addressed by the Forest Service during the administrative appeal process.
SEACC asserts that the Forest Service did not conduct an adequate review of roadless areas pursuant to 36 CFR § 219.17, in order to determine whether to recommend any of these areas as additional wilderness. (SEACC Appeal at 42-48.) AFA disputes that contention and agrees with the agency’s assertions that Congress addressed wilderness issues in the Tongass Timber Reform Act (TTRA) of 1990 (16 USC 539(d)). Note #9 Moreover, ANILCA § 708(b)(4) prohibits any further review of roadless areas for purposes of wilderness recommendations.

Throughout the TLMP revision process, the Forest Service has stated that no additional wilderness was included in any plan revision alternative. Note #10 There is no requirement that the Forest Service recommend any additional wilderness areas. Indeed, as the Ninth Circuit noted in City of Tenakee Springs v. Block, ANILCA "prohibits any further review of National Forests in Alaska ‘for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System.’" (778 F.2d 1402, 1406 (9th Cir. 1985) (quoting the statutory language in ANILCA § 708(b)(4) (Pub. L. No. 96-487, 94 Stat. 2371, 2421 (1980)).) Only Congress can authorize such reviews. (ANILCA § 708(b)(4).) Thus, SEACC’s appeal points regarding roadless area reviews are directly contrary to federal law specifically dealing with national forest lands in Alaska, and the Forest Service cannot rely on SEACC’s appeal or similar appeals to further review roadless areas in Alaska for purposes of recommendation or designation as wilderness.

The National Audubon Society (NAS) challenges the TLMP standards and guidelines which permit construction of roads and logging in roadless watersheds, including the Kadashan Watershed, which potentially provide habitat for brown bears and wolves. (See NAS appeal at 6-7 and 10.) The appeal challenges the agency’s decision not to fully adopt the recommendations of the brown bear and wolf assessment panels. This appeal point challenges agency policy regarding the management of watershed areas and does not allege a legal error. As such, changes to the Tongass roadless area policy cannot be addressed by the Forest during the administrative appeal process.

(C) A Forest Plan Amendment is the Only Process for Changing the Existing Plan on the Issue of Roadless Areas

All of the above points, considered together, demonstrate that the law commands the Forest Service to abide by its own statutory forest planning process. If the Forest Service wants to develop a new roadless areas policy for the Tongass, it must refer the proposal to the Forest Supervisors who will then consider it in accordance with the process described in 36 CFR 219.1 et seq. If the Forest Service wants to set aside and reclassify certain roadless areas on the Tongass as remote recreational, natural research area, or for some other nondevelopment purpose, the agency cannot do so on the basis of roadless area challenges made by environmental groups in their appeals, because the agency never included alternatives for review during the revision process which proposed such set asides and reclassifications. A "back door" attempt at implementing a purported road management policy is clearly prohibited by law.

II. ANILCA prohibits (1) Forest Service studies which contemplate the establishment of additional conservation, recreation, or similar units, (2) the withdrawal of more than 5,000 acres of land, in the aggregate, without Congress’s approval, and (3) the review of roadless areas on national forest lands in Alaska for the purpose of evaluating their suitability as wilderness.

Even if the Forest Service commenced the plan amendment process in accordance with NFMA and NEPA to establish a change in policy for Tongass roadless areas, the Forest Service faces other strict constraints prohibiting further withdrawals of federal lands in Alaska. Although the Forest Service maintains that "issues related to the construction of roads in roadless areas [of the Tongass] will be addressed in the appeal decision," the real purpose of the proposed action is to study and/or withdraw millions of acres of Tongass roadless areas and reclassify them as conservation, wilderness, recreational or other similar units.

Note #11 Under ANILCA § 1326, Note #12 the Forest Service is prohibited from (1) using the plan amendment process, the moratorium, or any other process to conduct additional studies of public lands in Alaska, the single purpose of which is to set aside roadless areas from further development and (2) withdrawing lands in excess of 5,000 acres in the aggregate, without
Congressional approval.

(A) ANILCA’s "No More Studies" Clause
Under the "'no more studies" clause, ANILCA § 1326(b) prohibits the executive branch from studying federal lands in Alaska for the single purpose of considering whether to establish "a conservation system unit, national recreation area, national conservation area, or for related or similar purposes" unless authorized under ANILCA or by Congress. (16 USC § 3213(b) (emphasis added).) Thus, the Forest Service is prohibited from studying any roadless areas during a plan amendment process, much less the administrative appeal process, if the purpose is
to establish a conservation unit, recreation area, conservation area or any other unit serving related or similar purposes.

The single purpose of reviewing roadless areas as a result of the TLMP appeal process would be to conduct a Forest Service study of a proposed action which will probably result in a decision to lock up millions of acres of Tongass roadless areas, essentially converting several of these areas to remote recreational, conservation, or some other type of nondevelopment status. Such a study is banned under ANILCA § 1326(b).

Furthermore, Congress expressly stated that the conservation areas established under ANILCA were sufficient protection "for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska." (16 USC § 3101(d).) Congress also expressly stated that because ANILCA established a "proper balance" of interests and uses of federal lands in Alaska, no further legislative designations of conservation areas (including recreation areas) were needed. (Id.) If the Forest Service proceeds to study roadless areas during the appeal process or as part of a plan amendment, the agency action establishing new
conservation areas in Alaska that ban road construction, timber harvesting, and other development activities, will violate Congress’ explicit finding that additional conservation and recreational units and units serving related or similar purposes are not needed.

B. ANILCA’s "No More Withdrawals" Clause
In addition to the "no more studies" provision, ANILCA also states that the permanent withdrawal of public lands in Alaska greater than 5,000 acres in the aggregate, will not become effective "unless Congress passes a joint resolution of approval within one year after the notice of such withdrawal has been submitted to Congress."
(16 USC § 3213(a).) At a minimum, the Forest Service must give specific notice of those Tongass roadless areas it intends to withdraw under this section via notice in the Federal Register and to both Houses of Congress. (Id.)

Even then, however, the identified land withdrawals will not become effective unless Congress approves them through a joint resolution within one year. Given the congressional opposition expressed in ANILCA to the withdrawal of additional lands on national forest lands and the heated "roads" debate from last year, it is highly unlikely Congress would approve any land withdrawals on the Tongass .

The process set forth in ANILCA §1326(a) is the only process established for the Forest Service to withdraw more than 5,000 acres, in the aggregate, of public land on the Tongass. As a result, the Forest Service cannot make such withdrawals through the TLMP administrative appeal process or through a proposed plan amendment.

C. ANILCA’s "No More Wilderness Reviews" Clause

As stated in Section I, Part B, above, ANILCA prohibits the Forest Service from conducting further review of roadless areas on national forests in Alaska "for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System." (ANILCA § 708(b)(4); City of Tenakee Springs v. Block, 778 F.2d at 1406.) The Forest Service has no independent authority to embark on such a wilderness review without the express authorization of Congress. (ANILCA § 708(b)(4).) Note #13 Thus, the Forest Service cannot recommend or designate any of the Tongass roadless areas as wilderness, either through the plan amendment process or the administrative appeal process.

CONCLUSION

The Forest Service cannot change its roadless areas policy for the Tongass as part of the agency’s deliberations during the on-going administrative appeal process. Such action would violate NFMA and NEPA. Furthermore, ANILCA prohibits the Forest Service from conducting further studies of public lands for the purpose of establishing additional conservation units or similar units, which surely will be the purpose of the roadless area review during the administrative appeal process for the Tongass . ANILCA also prohibits the Forest Service from withdrawing from development roadless areas of more than 5,000 acres, in the aggregate, if such withdrawals are attempted as a part of determinations made during the administrative appeal
process rather than in accordance with the express process set forth in ANILCA. Finally, ANILCA expressly forbids the Forest Service from reviewing Tongass and Chugach roadless areas for purposes of determining whether those lands are suitable for wilderness status. Since more than 98 percent of the Chugach National Forest is currently classified as roadless, the proposed policy would predispose the Chugach Land Management Plan, currently under revision, toward preventing any development activities on that forest.