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Federal Public Land Management Reports
Congressional Research Service
The Administration's Moratorium
The Administration's Moratorium
April 8, 1999
On February 12, 1999, the Forest service announced a moratorium on new road construction in many roadless areas within the national Forest System. This measure is temporary (up to 18 moths) while national Forest transportation policy revision is being debated. areas protected by the moratorium include roadless areas of at least 5,000 acres, of at least 1,000 acres if contiguous to other roadless areas. However, the moratorium exempts 9 national forests with recently revised management plans and the 16 national forests encompassed by President Clinton's Northwest Forests Plan. Proponents of roadless area protection objected to exempting 25 national forests and roadless areas of less than 5,000 acres. Proponents of roadless area development object to the potential economic impact of halting planned and possible developing and to limiting public access. Congress may be asked to reverse the moratorium or to protect these areas permanently. This report will not be updated.
Forest Service road construction has been controversial for a long time.1 In 1964, Congress enacted the Wilderness Act P.L. 88-577; 16 U.S.C. 1131-1136) to assure that roadless areas identified by Congress would be managed to preserve their generally pristine character in perpetuity, with road construction and motorized access prohibited. Subsequent debates over which areas Congress should designate as wilderness have been quite contentious. 2
In January 1998, the Forest Service proposed to revise their regulations for managing the national forest transportation system, to consider how the road system is and should be developed, used, maintained, and funded. At the same time, the agency proposed a temporary moratorium on road construction in most roadless areas while the regulations were being revised (up to 18 months). After voluminous comments, the agency adopted the temporary road construction moratorium with little change in February 1999.
What Are Roadless Areas?
Roadless areas are, quite literally, federal lands that have no roads in or across them. Wilderness units are roadless areas that Congress has designated to preserve their natural conditions. The Forest Service has also administratively identified areas to be managed for their natural conditions, but roadless areas not in the National Wilderness System might be entered (i.e., have roads built into them) to allow activities that could conflict with the natural character of the areas. For some, keeping currently roadless areas in a natural condition is a moral imperative; for others, building roads into undeveloped areas allows multiple uses in areas that are currently only accessible by foot or horseback.
Debates over roadless areas have focused substantially on the national forests. The Forest Service and the Bureau of Land Management (BLM) both manage their lands for multiple uses, which can include development activities that are not compatible with maintaining areas in a roadless condition. The conflict over roadless areas on BLM lands appears similar to the conflict for national forests, but two differences have kept the focus on the national forests. First, Forest Service reviews of roadless areas for their wilderness suitability preceded BLM reviews by more than a decade; the Forest Service wilderness recommendations were presented in 1979, while the BLM recommendations were not required until the 1990s.
The second reason for greater conflict in the national forests is that timber harvests, which are more significant in the national forests than on BLM lands, is more restricted in designated wilderness areas than are other development activities, such as grazing and mining. Specifically, the Wilderness Act authorized continued grazing in designated wilderness areas. The Act also directed that entry and establishment of mineral rights were allowed in wilderness areas for 20 years (until December 31, 1983). It also allowed valid existing mineral rights to be developed within designated wilderness areas under "reasonable regulations" and permit stipulations that try to balance protecting wilderness characteristics with developing the minerals.
Debate over roadless areas in the National Park System is less controversial, because the Park Service's mission - recreation and preservation is generally more compatible with preserving roadless areas. Similarly, roadless areas in the national wildlife refuges are less controversial, because the dominant use - fish and wildlife habitat protection - is also generally compatible with preserving roadless areas.
Types of Roadless Areas
There are four basic categories of federal roadless areas: designated wilderness areas; recommended wilderness areas; administratively managed wilderness areas; and "unprotected" roadless areas. The basis for each category and distinctions among them, by type of protection granted and activities that are permitted, are described below.
Designated Wilderness Areas. Wilderness areas designated by Congress as part of the National Wilderness Preservation System were authorized by the Wilderness Act in 1964. That Act defines wilderness as "undeveloped Federal land retaining its primeval character ... , without permanent improvements ... "and 5,000 acres or of sufficient size to make it feasible to preserve its natural character. It also reserved to Congress the authority to designate new wilderness areas, while directing the Secretaries of Agriculture and of the Interior to review the wilderness potential of certain federal lands.
Designated wilderness areas are to be managed to protect their undeveloped or roadless nature. The Wilderness Act prohibits commercial activities and permanent roads and facilities, except for minimum administrative requirements and for health and safety emergencies. However, §4 provides exceptions to these limitations, including:
Thus, the principal prohibitions within designated wilderness areas are for harvesting timber (except for insect or disease control), for motorized or mechanized recreation, and for general commercial services, including most road building. 3
Recommended Wilderness Areas. Each agency has also recommended areas it believes to be suitable for wilderness designation. The reviews of and recommendations of areas in the National Park System and National Wildlife Refugee System were required to be completed by 1974; many recommendations are still awaiting congressional action. The BLM was required to review the wilderness potential of its lands by the Federal Land Policy and Management Act of 1976 (FLPMA; P.L. 94-579; 43 U.S.C. 1701, 1782). The recommendations to the President were due (and done, at least in draft) by 1991, and presidential recommendations to Congress were due and made by 1993; most of these BLM recommendations are also still awaiting congressional action.
The Forest Service has taken a different approach, partly because managing areas administratively as wilderness is expressly recognized as a legitimate use of the national forests in the Multiple-Use Sustained-Yield Act of 1960 (P.L. 86-517; 16 U.S.C. 528-531), and partly because the agency is required by the National Forest Management Act of 1976 (NFMA; P.L. 94-588; 16 U.S.C. 1600-1614) to revise its management plans at least every 15 years. An initial wilderness study, the Roadless Area Review and
Evaluation (RARE), was begun in 1970 on the agency's initiative, but was abandoned in 1972 prior to issuing recommendations, because of a legal challenge. A second study (RARE II) was begun in 1977, with recommendations presented to President Carter in January 1979, and then by Carter to Congress in April 1979. This study was also challenged in court, and the Assistant Secretary of Agriculture directed the Forest Service to reevaluate the wilderness potential of identified roadless areas in the NFMA plans then being prepared.
Congress precluded this reevaluation (dubbed RARE III) for the national forests in each state for which Congress had enacted a statewide national forest wilderness statute with "release language." Release language was a statutory provision, developed in 1980 and revised in 1984, directing the agency not to do any further statewide evaluations, and allowing, but not compelling, the agency not to preserve the wilderness characteristics of areas not recommended for wilderness; rather, roadless areas not added to the Wilderness System were to be managed according to the relevant NFMA plan, which could include administrative protection of natural conditions. Language directing development of roadless areas not added to the Wilderness System was considered at that time, but was not enacted. 4 Statewide national forest wilderness statutes with release language have been enacted for most states; notable exceptions are Idaho and Montana, which have extensive roadless acreage and thus substantial controversies over which areas to preserve and which to make available for potential development.
National forest roadless areas recommended for statutory wilderness designation, in RARE II or in subsequent NFMA plans, are preserved temporarily in the same way as designated wilderness areas: timber harvests, motorized access, roads, and facilities are generally prohibited to protect wilderness suitability while Congress considers action on the recommendations. If Congress has not designated the areas as wilderness, the Forest Service reviews the wilderness suitability of all remaining roadless areas when the NFMA plan is next revised. The plans for some national forests are being revised now, and most will be revised within the next few years. Areas that were preserved as recommended wilderness could be made available for development activities in the revised plans. Although the BLM also prepares land use plans, FLPMA does not require periodic plan revision. FLPMA also directed that the wilderness character of recommended areas be protected until Congress directs otherwise; thus, recommended BLM areas could be preserved in a roadless condition for many years.
Finally, Congress has also directed the agencies to study the wilderness potential of particular areas, typically identified as wilderness study areas. The various laws requiring wilderness studies mostly direct the agencies to protect the wilderness character of the study areas until Congress directs otherwise.
Administratively Protected Roadless Areas. As noted above, the Multiple-Use Sustained-Yield Act of 1960 expressly recognized wilderness as a legitimate use of the national forests. In addition, the multiple-use direction for managing both the national forests and BLM lands include uses and values that can best be achieved by administering lands to protect and preserve natural conditions to maintain watersheds, to provide fish and wildlife habitats (including but not limited to endangered and threatened species), and for other purposes. Thus, within the land management planning processes, the agencies may identify areas to be managed to preserve their wilderness characteristics, even though these areas are neither designated as wilderness nor recommended for wilderness. Such areas are managed under such direction until the plans are revised, at which time their suitability for wilderness would again be reviewed and the areas might be recommended for addition to the Wilderness System.
Roadless Areas Available For Entry. Some roadless areas administered by each agency have not been recommended for wilderness designation. Roadless areas not recommended for wilderness designation have none of the wilderness protections that are provided permanently for designated wilderness and at least temporarily for recommended wilderness and congressionally designated wilderness study areas. Proposed uses of such areas are subject to resource management and environmental statutes, such as the National Environmental Policy Act and the Endangered Species Act. Also, wilderness advocates may challenge uses that they feel are inappropriate for such areas, using administrative as well as judicial options.
The Administration's Moratorium
On January 28, 1998, in an advanced notice of proposed rulemaking (63 Federal Register 4350), the Forest Service proposed to revise their regulations for managing the national forest transportation system, to consider how the road system is and should be developed, used, maintained, and funded. At the same time, the Forest Service proposed an interim rule (63 Federal Register 435l) suspending road construction in most roadless areas while the regulations were being revised (up to 18 months). After voluminous comments, the agency adopted the road construction moratorium with little change (64 Federal Register 7290) on February 12, 1999, to be effective March 1, and to continue for 18 months or until the regulations governing the transportation system are revised.
The moratorium would suspend new road construction in many roadless areas:
However, certain national forests and road projects have been exempted from the moratorium:
Viewpoints on Roadless Area Entry and on the Moratorium
Opponents of Entry. Wilderness advocates prefer wilderness-type preservation for roadless areas, to maintain their potential for future designation. Sometimes, the goal is to prevent some particular development, particularly a timber sale, since timber harvesting clearly alters the aesthetics and ecology of the area for many years after the harvest. Both opponents and proponents of entry argue, respectively, for/against wilderness designation to prevent/allow development of minerals, even though the Wilderness Act clearly allows the development of valid existing mineral rights. Philosophically, wilderness advocates oppose development in roadless areas because the decision is likely to be irreversible once the area has been entered, it is no longer roadless and thus can probably never be designated and protected as a wilderness area. However, some activities could be allowed and not foreclose future designation if the visual and structural effects were temporary.
Advocates of roadless area preservation proclaim the moratorium to be insufficient because it exempts 25 of the 115 national forests including some of the most controversial, such as the Tongass and the forests of the Pacific Northwest and because it excludes roadless areas of less than 5,000 acres that are not contiguous to other roadless areas and all areas of less than 1,000 acres. They assert that exemptions should be few, because road development in a roadless area is irreversible; once the road is built, the area is no longer roadless and can never become roadless again. 5
Proponents of Entry. Development interests generally argue that entry into roadless areas recommended for wilderness is inevitable, and that delaying entry merely postpones development while imposing costs on the development interests and on the people of the region and of the nation. Entry is particularly important for timber, because timber sale quantities are determined by the available land (as well as by timber growth). Some roadless areas available for entry have been identified as suitable for timber harvests in NFMA plans, and timber in those areas is part of the base for the annual timber sale program. Because the agency has delayed controversial timber harvest entries into roadless areas, and because water quality and habitat fragmentation standards restrict additional timber harvests in roaded areas, timber sales in roadless areas may be needed to sustain harvest levels for the industry and communities that depend on public timber.
Proponents of roadless area development object to the moratorium. They assert that it violates the existing agreements on which areas to protect and which to enter that were developed with substantial local effort in the NFMA plans. They particularly object to the impact on planned timber sales, several of which will not be offered because road access will not be allowed under the moratorium. While the total volume of timber sales affected is relatively modest (estimated to be 100-250 million board feet, about 2-6% of the annual Forest Service timber program), it could be significant locally. An amendment to the FY 1999 emergency supplemental appropriations bill, to prevent implementation of the moratorium, was discussed in the Senate, but was modified (§3006 of P.L. 105-174) to encourage the Forest Service to provide supplemental timber in areas affected by the moratorium and to compensate the counties for lost revenue-sharing.
1. See CRS Report 97-706 ENR, Forest Roads: Construction and Financing
2. See CRS Report 94-976 ENR, Wilderness: Overview and Statistics.
4. For more information on the development and content of release language, see CRS Report 93-280 ENR, Wilderness Legislation: History of Release Language, 1979-1992.
5. Numerous exceptions to roadless conditions have been provided in wilderness legislation, typically to accommodate some historic access for a particular purpose. See CRS Report 98-848 ENR, Wilderness Laws: Prohibited and Permitted Uses.
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