Roadless Area Ping Pong

Andy Kerr

Top Line: 58.5 million acres of inventoried roadless areas within the National Forest System are once again in existential jeopardy.

Figure 1. Lookout Mountain Inventoried Roadless Area on the Ochoco National Forest, Oregon. Source: Larry Olson (first appeared in Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004).

I’ve never met a roadless area I didn’t like. Alas, Donald Trump has never met a roadless area, unless you count golf courses.
 
As President Trump’s secretary of agriculture, Brooke Rollins, announced the administration’s plan to open up the entire 58.5 million acres of national forest roadless areas to roading and logging, I thought of the words of John Muir.

These temple destroyers, devotees of ravaging commercialism, seem to have a perfect contempt for Nature, and, instead of lifting their eyes to the God of the mountains, lift them to the Almighty Dollar.

While it was 1912 and John was railing against those bastards who would (and did) damn the Tuolumne River in Hetch Hetchy Valley in Yosemite National Park, his words apply to the modern-day bastards who would road and log most of the last of the nation’s forested roadless areas. These bastards can only be stopped by appropriate congressional action.

Map 1. Inventoried roadless areas on the National Forest System west of the hundredth meridian. Source: Conservation Biology Institute.

The Ping Pong Game Thus Far
 
Since the Clinton administration promulgated the roadless area conservation rule (RACR) shortly before leaving office in 2001, the RACR has been extensively litigated, with the forces of darkness generally losing every challenge (so far).
 
In a nutshell, Republican administrations (Little Bush I and II, and Trump I) have sought wholesale revocation of the rule, as well as rule changes to exempt certain roadless areas in Alaska, Colorado, and Idaho. In contrast, later Democratic administrations (Obama I and II, Biden I and only) have generally—but not completely—undone the damage to the RACR done by Republican predecessors.
 
The history of administrative action and litigation is too long to recount here, but Earthjustice has an excellent timeline of the roadless rule. (You can find detailed inventoried roadless area maps by state and national forest here.)

Map 2. Inventoried roadless areas on the National Forest System east of the hundredth meridian. Source: Conservation Biology Institute.

A Time to Delegate and a Time to Undelegate
 
As the federal government has become larger over the centuries, Congress has explicitly delegated many of its powers to the executive branch. Because Congress cannot anticipate every possible circumstance, Congress has had to delegate powers in ways that give discretion to the president. While all presidents have tended to abuse such discretion, none has done so as spectacularly as Trump II.

Figure 2. Yamsay Mountain Inventoried Roadless Area on the Fremont-Winema National Forest, Oregon. Source: George Wuerthner (first appeared in Oregon Wild: Endangered Forest Wilderness).

As recent relevant examples, the US Constitution explicitly reserves to Congress the powers to declare war, levy tariffs, and control public lands. In the case of the latter, the US Constitution in Article 4, Section 3, Clause 2 states:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .


Any power or authority the president, any cabinet member, or any other executive branch official has over the nation’s public lands is a result of Congress having delegated such power. Regarding the property clause, the Supreme Court has found that “the power over the public land thus entrusted to Congress is without limitations” (United States v. Gratiot, 39 U.S. 526, 1840).

See Public Lands Blog “The Constitutionality of Federal Public Lands” (2016)

This present president skirts, ignores, or disregard laws (both statutes and regulations) that are inconvenient to his agenda. Many federal judges, appointed by several presidents, have ruled against this administration on numerous cases.
 
President Trump’s habit of pushing matters to the edge and often beyond has become a stark reminder that much of our government operation has relied not only on laws but also on norms (“a standard or pattern, especially of social behavior, that is typical or expected of a group”). It turns out that Trump also cares not a whit for norms.
 
Clearly, Congress has delegated far too much of its power to the executive branch—variously the president (in the case of national monuments), the secretary of the interior (for example, Bureau of Land Management holdings), and the secretary of agriculture (for example, the National Forest System). It has long been a problem that the Forest Service and the BLM routinely abuse the discretion given to them. It is another level of hell now that Trump II views what is a congressional grant of power that comes with discretion to act in the best interests of the nation as rather a congressional grant of power that comes with no discretion so as to be able to act in the best interests of Donald Trump.
 
In view of this new reality, members of Congress now need to undelegate much of the control they have ceded to the executive branch.

Map 3. Inventoried roadless areas on the National Forest System in southeast Alaska. Source: Conservation Biology Institute.

A Good (But Extremely Slow) Start: The Proposed Roadless Area Conservation Act

In 2002, in response to President George W. Bush attempting to revoke President Bill Clinton’s RACR during the 107th Congress, then and now US Senator Maria Cantwell (D-WA) and then Representative Jay Inslee (D-WA) (later governor) introduced into their respective houses of Congress the proposed Roadless Area Conservation Act (RACA). The RACA has been introduced in most—but not all—Congresses since, every time with no further action in Congress (see Table 1).

The current (119 th Congress) Senate and House versions are identical. Turnover in the House of Representatives has now resulted in Representative Andrea Salinas (D-OR-5th) picking up the mantle. Thanks, Andrea, for stepping up! And thanks, Maria, for hanging in!

Table 1. Legislative Nonhistory of the Proposed Roadless Area Conservation Act. Source: Congress.gov.

Table 1 is worth a closer look. The number of cosponsors is strongly indicative of the interest in the public land conservation community in roadless areas. Those four years where the RACR was not even reintroduced can be explained by complacency under Obama and anticipation of Hillary Clinton succeeding him.

Figure 3. Coleman Rim Inventoried Roadless Area on the Fremont-Winema National Forest, Oregon. Source: Sandy Lonsdale (first appeared in Oregon Wild: Endangered Forest Wilderness).

Like many legislative bills, the RACA has some good aspects, some bad aspects, and some ugly aspects.
 
The Good (But Not Great)
 
The RACA would codify the administrative rule (the RACR) into statute, which only Congress—and not a president—can undo.
 
The Bad
 
RACA doesn’t include all roadless lands on the National Forest System. While the Forest Service has inventoried 58.5 million acres of roadless areas, hence the “inventoried roadless areas” covered by the legislation, tens of millions of acres of uninventoried roadless areas exist that meet the same criteria (roadless and at least 5,000 acres in size) as inventoried roadless areas. Since the early 1970s, the Forest Service—through a sustained combination of malevolence, malfeasance, and incompetence—has failed/refused to inventory all roadless lands under its administration, usually (but not always) because these uninventoried roadless areas contain timber the bureaucracy wishes to log.
 
Then there is the matter of “small” roadless areas (1,000 to 4,999 acres in size) that are also ecologically, hydrologically, and recreationally important. Such roadless areas are estimated to add up to tens of millions of acres of the National Forest System.

Figure 4. Lake Fork Inventoried Roadless Area on the Wallowa-Whitman National Forest, Oregon. Source: Ric Bailey (first appeared in  Oregon Wild: Endangered Forest Wilderness).

See Public Lands Blog “The Proposed Roadless Area Conservation Act: Work Still Needed” (2021)

What’s Next?
 
It is predictable that Earthjustice and others, as they have several times previously, will wage massive legal resistance to the Trump administration’s attempt to revoke the RACR. While there are legal pathways for an administration to undo the rules of a previous administration, previous and (probably) current efforts to do so have taken illegal pathways. Stay tuned.
 
What is less predictable is whether the public lands conservation community will wake up to this latest wake-up call and actually expend effort to achieve permanent and comprehensive congressional (statutory) protection for Forest Service roadless areas. Administrative (regulatory) protection of public lands is—and always will be—impermanent.

Figure 5. A rather large tree in an uninventoried roadless area on the Umpqua National Forest, Oregon. Source: Umpqua Watersheds (first appeared in Oregon Wild: Endangered Forest Wilderness).

Bottom Line: Only Congress can permanently save Forest Service roadless areas for the benefit of this and future generations.

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Author
Czar at  | andykerr@andykerr.net | Website

Andy Kerr (andykerr@andykerr.net) is the Czar of The Larch Company (www.andykerr.net) and consults on environmental and conservation issues. The Larch Company is a for-profit non-membership conservation organization that represents the interests of humans yet born and species that cannot talk. Kerr started is professional conservation career during the Ford Administration.

He is best known for his two decades with the Oregon Wild (then Oregon Natural Resources Council), the organization best known for having brought you the northern spotted owl. Kerr began his conservation career during the Ford Administration.

Through 2019, Kerr has been closely involved in with the establishment or expansion of 47 Wilderness Areas and 57 Wild and Scenic Rivers, 13 congressionally legislated special management areas, 15 Oregon Scenic Waterways, and one proclaimed national monument (and later expanded). He has testified before congressional committees on several occasions.

Kerr was a primary provocateur in getting the Clinton Administration to impose the Northwest Forest Plan in 1994, which at the time was the largest landscape conservation in the world.

He has lectured at all of Oregon’s leading universities and colleges, as well at Harvard and Yale. Kerr has appeared numerous times on national television news and feature programs and has published numerous articles on environmental matters. He is a dropout of Oregon State University.

Kerr authored Oregon Desert Guide: 70 Hikes (The Mountaineers Books, 2000) and Oregon Wild: Endangered Forest Wilderness (Timber Press, 2004). His articles on solar energy, energy efficiency and public policy have appeared in Home Power magazine.

Kerr participated, by personal invitation of President Clinton, in the Northwest Forest Conference held in Portland in 1993 for which Willamette Week gave Kerr a “No Surrender Award.”

The Oregoniannamed Kerr one of the 150 most interesting Oregonians in the newspaper’s 150-year history.

Time reporter David Seideman, in his book Showdown at Opal Creek, described Kerr as the “Ralph Nader of the old-growth-preservation movement.”

Jonathan Nicholas of The Oregonian characterized Kerr as one of the “Top 10 people to take to (the) Portland bank” for “his gift of truth.”

The Oregonian’s Northwest Magazine once characterized him as the timber industry’s “most hated man in Oregon.” In 2010, The Oregonian said Kerr was “once the most despised environmentalist in timber country.”

The Lake County Examiner called Kerr “Oregon’s version of the Anti-Christ.”

In a feature on Kerr, Time magazine titled him a “White Collar Terrorist,” referring to his effectiveness in working within the system and striking fear in the hearts of those who exploit Oregon’s natural environment.

The Christian Science Monitor characterized Kerr as “one of the toughest environmental professionals in the Pacific Northwest.”

Willamette Week said Kerr “is entirely unwilling to give an inch when it comes to this state’s remaining old-growth timber.”

In his book Lasso the Wind, New York Times correspondent Tim Egan said of Kerr, “(h)e has a talent for speaking in such loaded sound bites that it was said by reporters that if Andy Kerr did not exist, someone would have to invent him…. (Kerr) forced some of the most powerful timber companies to retreat from a binge of clear-cutting that had left large sections of the Oregon Cascades naked of forest cover.”

High Country Newsranks Kerr “among the fiercest and most successful environmentalists.”

The Salt Lake Tribune described Kerr as “part provocateur and part policy wonk… Kerr . . . has long been a bur in the side of the cattle industry.”

Rocky Barker of the Idaho Statesman said, “There were a lot of environmentalists working to stop logging on old growth national forests in the 1980s and 1990s. But few were more outspoken and effective than Andy Kerr.”

Veteran Pacific Northwest journalist Floyd McKay, writing in Crosscut.com, said Kerr was “once considered [a] wild [man], aggressively challenging federal agencies and corporate land managers” who is now “an elder [statesman] in the region’s environmental leaders.”

His next book is Beyond Wood: The Case For Forests and Against Logging, which will argue that trees generally grow slower than money, forests are more important for any other use than fiber production, America can get nearly all of its fiber products from agricultural waste and other crops with less environmental impact, and that most private timberland in this nation should be reconverted to public forestlands.

Past and current clients include Advocates for the West, Campaign for America’s Wilderness, Conservation Northwest, Geos Institute, Idaho Conservation League, Klamath-Siskiyou Wildlands Center, National Public Lands Grazing Campaign, Oregon Natural Desert Association, Oregon Wild, Soda Mountain Wilderness Council, The Wilderness Society, Western Watersheds Project and the Wilburforce Foundation.

Current projects include advocating for additional Wilderness and Wild and Scenic Rivers in Oregon, achieving the permanent protection and restoration of mature and old-growth forests on lands administered by the Bureau of Land Management and the Forest Service, facilitating voluntary grazing permit buyout of federal public lands, conserving and restoring the Sagebrush Sea, opposing oil and gas exploitation offshore Oregon and elsewhere, and securing permanent conservation status for Oregon’s Elliott State Forest.

Kerr is a former board member of Friends of Opal Creek, Oregon League of Conservation Voters, The Coast Alliance and Alternatives to Growth Oregon.

Kerr’s only official public office is that of having been an Oregon Notary Public from 1983-1999.

A fifth-generation Oregonian, Kerr was born and raised in Creswell, a recovered timber town in the upper Willamette Valley. He splits his time between Ashland in Oregon’s Rogue Valley, and Hancock, in Maine’s Downeast—both recovered timber towns. He still regularly gets to Washington, DC, where the most important decisions affecting Oregon’s and the nation’s wildlands, wildlife and wild waters are made.

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Comments

4 responses to “Roadless Area Ping Pong”

  1. Jeff Hoffman Avatar
    Jeff Hoffman

    We need to close a bunch of roads, not create any new ones. Of course that’s the opposite of what’s been happening and will continue to happen. The vast majority of humans don’t prioritize the natural world, regardless of how much they supposedly like it, and that’s the fundamental problem here.

    Reply
  2. ccdowner Avatar
    ccdowner

    Humans had better wake up and fast, because we’re losing those intact natural ecosystem that permit the continuance of precious life on Earth — including that of that species who, lamentably and due to extreme hubris and irreverence, has become the monstrous destroyer, the mindless and heartless murderer of this beautiful live home we should be taking pride in honoring, protecting, preserving, restoring and learning to life in harmony with!

    Reply
  3. Bruce Bowen Avatar
    Bruce Bowen

    I do not think that legislation by itself will work. The executive branch and its various departments and services have an “unwritten” law that requires considering economic interests first and if necessary will “re write ” congresses laws in the process of promulgating regulations. There has been a steady trend to undermine the intent of laws that were supposed to provide protection for the natural environment and its inhabitants and now even NGO’s are no exception.

    On top of an already problematic bureaucracy, laws like “Citizens United” are making any expectation of a real democratic government rather moot. We need a new approach.

    Lastly- You guys need a good cartoonist. A kind of ‘Ding’ Darling reborn.

    Reply
  4. ChicoRey Avatar
    ChicoRey

    The Mountain Journal used to show cartoons by John Potter – also a painter – very good at both. But his cartoons are almost caricatures of the West and whats being done to wildlife and the environment. He’s really good!
    Although I think its going to take more than a cartoon to change the absolute idiocy being done in our name(!) by the supposedly elected “public” servants!

    All three of the above comments hit the nail on the head!

    Reply

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