Environmental Law News

Published by the Environmental Law Section of the Virginia State Bar for its members Environmental Law News Volume XVI, No. 2 Fall 2004 The Forest Service s Roadless Rule: Not Out of the Woods Yet Erin M. Sullivan Introduction O n January 12, 2001, the United States Forest Service adopted the Roadless Area Conservation Rule ( Roadless Rule or Rule ), announcing its intent to provide lasting protection for inventoried roadless areas within the National Forest System in the context of multiple use management. 1 The Roadless Rule bans additional road construction and prohibits timber harvesting in inventoried roadless areas on National Forest System lands, with specific exceptions. 2 If implemented, this significant conservation measure would affect 58.5 million acres, or 31% of Forest Service lands, throughout the country. 3 Controversy surrounding the Roadless Rule surfaced immediately. The Rule was hailed by environmental and conservation groups as one of the most significant conservation initiatives of the last century and vigorously opposed by Western business interests and local communities dependent upon forest resources. Although the Roadless Erin M. Sullivan is a J.D. Candidate, May 2005, at Washington and Lee University School of Law. An expanded version of this article with a more extensive analysis of the Roadless Rule may be obtained from the Environmental Law Digest web site at http://eld.wlu.edu. Chair s Corner Rule was originally scheduled to take effect on March 13, 2001, the new administration under President Bush delayed the effective date until May 12, 2001, to allow for incoming administration review. 4 Despite these initial plans, the Rule has yet to be implemented and has recently been amended to exempt the Tongass National Forest in Alaska. Moreover, aside from these political maneuverings, the Roadless Rule has also prompted several lawsuits challenging its validity. Adding to the confusion surrounding the Roadless Rule, the two judicial decisions on the Rule have resulted in conflicting outcomes, with one decision upholding the Rule and the other enjoining its implementation. More recently, the Bush Administration has proposed to jettison the Roadless Rule entirely, and to replace it with a new rule that would merely authorize Governors to petition the Department of Agriculture to provide regulatory protection for National Forest lands within their states. In sum, the future of the Roadless Rule remains highly uncertain. THE FINAL ROADLESS RULE As early as 1967, the Forest Service began to evaluate roadless areas under its jurisdiction in order to identify areas that could be continued on page 3 Happy New Year! Thank you for your continued support of the Environmental Law Section. We hope you enjoy this edition of the Environmental Law News. It is hard to believe another year has flown by. Your Board of Governors has been planning for spring. Upcoming events include a Spring CLE program entitled Environmental Science for Lawyers and Judges which will be held in Richmond in late February or early March. This program has been coordinated by distinguished VCU/MCV faculty for several years. It not only provides a primer on environmental science but also is a terrific opportunity to meet state officials with expertise in and responsibility for administering environmental programs. Please watch for flyers announcing this program in late January. We are also collaborating with the Real Estate section to sponsor a program at the Virginia State Bar's annual meeting in June on evaluating and remediating properties with environmental contamination. If you have not continued on page 3

Volume XVI, No. 2, Fall 2004 Prepared by the staff of Environmental Law Digest Washington and Lee University School of Law Lexington, Virginia 24450 Editor-in-Chief Terrence Egland Executive Editor Erin Sullivan Senior Articles Editor Gabrielle Butcher Senior Case Review Editor Stephen Brownback Senior Legislative Editor Nathaniel Parker Managing Editor April Ballou Articles Editor Tiffany Davidson Case Review Editor Stephen Mealor Staff Michael Bauer Shannon Borromeo Michael Bourdaa James Braswell Clint Carpenter Grace Doe Ryan Dunlavey Laura Fleischmann Roswell Henry Taylor Menlove Abigail Parolise Zahid Raja Jennifer Rawls Jason Reid Michael Spencer Edward Standley Brien Van Wagner Michelle Williams Faculty Advisors Professor Sean H. Donahue Professor Mark A. Drumbl All statements, expressions, opinions or comments appearing herein are those of the by-lined authors or the editors and are not necessarily those of the State Bar or the Environmental Law Section. From the Editor As I sit down to write this issue s From the Editor column, final exams are over and an eventful and hectic fall semester has drawn to a close. The writing, editing, and publishing of the by the students of Washington & Lee is a process that is laid over all of our other classes and activities, which this year include the Black Lung Clinic, the Community Legal Practice Clinic, the Virginia Capital Case Clearinghouse, the Race, Ethnicity, and Ancestry Law Journal, Public Prosecutor Clinic, Judicial Clerkships, and, of course, the Law Review. Each writer and editor approaches their educational experience in their own unique way with varying goals and aspirations. But we all have in common an interest in and a desire to inform you about current news and changes in the field of environmental law. Together with the Board of the Environmental Section of the Virginia State Bar, as well as with our faculty advisors Mark Drumbl and Sean Donahue, we hope that you find this publication informative and useful. In an effort to expand on that usefulness, the students on the Editorial Board of the ELN have decided to post expanded material material that does not make it into the quarterly publication of the Law News on our web site located at http://eld.wlu.edu. As an example of this expanded coverage the articles presented in this fall issue, written by 3Ls Erin Sullivan and Michelle Williams, can be found in their entirety in PDF format on the web site. As is true with those two articles, most of the student-written articles submitted for publication each quarter are substantial academic articles that are too large to be printed unedited. Therefore, in the past, a large portion of the work done by the students has never seen the light of day. However, by publishing the complete versions of pieces submitted to the ELN on the web site, the authors will get the opportunity to publish their entire article while the ELN can maintain its slim newsletter format. The editors of the ELN hope that this expanded coverage will be a useful tool for those of you whose curiosity is peaked by what you read in the shortened version of the articles. As always, do not hesitate to let us know what you think, whether your comments are by way of constructive criticism or praise. And by all means let us know what you would like to see in the future in both the printed and electronic versions of the. Terrence T. Egland Editor-in-Chief eglandt@wlu.edu Table of Contents Chair s Corner...1 The Forest Service s Roadless Rule: Not Out of the Woods Yet...1 From the Editor...2 Request for Articles...8 A Local Reaction to a National Concern: The Impact of Recent Endangered Species Act Litigation on Virginia Property Owners...8 Call for Abstracts...13 Case Digest...13 Page 2

continued from page 1 designated as wilderness under the Wilderness Act. 5 The Forest Service generally considers roadless areas to be portions of the national forests that contain no roads or that have very low road density less than half a mile of road per 1,000 acres. 6 Inventoried roadless areas typically exceed 5,000 acres and meet the minimum criteria for wilderness designation under the Wilderness Act. 7 In October 1999, President Clinton directed the Forest Service to begin administrative proceedings to provide long-term protection for inventoried roadless areas. 8 The Forest Service published the final version of the Roadless Rule on January 12, 2001. 9 If implemented as written, the Rule would undoubtedly provide tremendous benefits for the rich ecological values that characterize roadless areas. Inventoried roadless areas provide pristine soil, water, and air three key resources upon which other resources depend. 10 Roadless areas are better able than areas with roads to support a diversity of plant and animal species and help prevent the spread of nonnative invasive species. 11 Furthermore, roadless areas serve as habitat for threatened and endangered species as well as other species that depend on large, undisturbed land areas. 12 Protection of roadless areas is also necessary to safeguard public health including the drinking water supply and to provide natural recreation opportunities. 13 In addition to considering these values, the Forest Service took practical and fiscal considerations into account in promulgating the final Roadless Rule. The agency felt that its struggle to maintain existing roads made it impractical to build additional roads in inventoried roadless areas. 14 Furthermore, the Forest Service recognized that some of the planned timber sales in inventoried roadless areas were likely to cost more than they realized in revenues. 15 Finally, in promulgating the Roadless Rule, the Forest Service sought to resolve the continuing national controversy over roadless area management, which generates costly and time-consuming litigation and appeals. 16 The Roadless Rule has two main components. First, it prohibits road construction or reconstruction in inventoried roadless areas, and, second, it prohibits timber cutting, sale, and removal in inventoried roadless areas. The prohibition on road construction or reconstruction is subject to seven specific exceptions: (1) construction is permitted if needed to protect public health and safety in cases of an imminent threat of flood, fire or other catastrophe that would cause the loss of life or property without intervention; 17 (2) construction is permitted if needed to conduct a response action or a natural continued on page 4 Chair s Corner continued from page 1 attended the VSB meeting in Virginia Beach in some time, consider attending this year. We will present an interesting and very practical program this summer that promises to include one or more nationally known experts. Try to reserve June 18-20, 2005 on your calendar. In addition, we are expanding our VSB Environmental Section website to include a list-serve that you will be able to sign up for in mid-january. Please check it out at http://www.vsb.org/sections/en/index.htm. Participation is voluntary. The list-serve will enable us to send you email announcements about CLEs, brownbag luncheons, the Virginia State Bar's Annual meeting and new decisions about regulatory matters of interest. We hope the website, on the other hand, will be a two-way tool to facilitate your ability to communicate with other colleagues in the Environmental Law Section and the Board. Please let us know how we can make the Section s website a useful tool for practitioners. Would it be helpful to post a list of Environmental Law Section members with email addresses? If so, please contact me or any other Board member if you have suggestions or questions about the Section. We want you to get involved! The October 2005 edition of Virginia Lawyer will feature four articles on environmental issues. If you are interested in authoring one of those articles, please submit an abstract of not more than 100 words describing your proposed topic by February 15, 2005. Abstracts must be typed and can be sent via mail, e-mail, or fax to: Brooks M Smith, Hunton & Williams LLP, Riverfront Plaza, East Tower, 951 Byrd Street, Richmond, Virginia 23219-4074, telephone (804) 787-8086, fax (804) 788-8218, e-mail - bsmith@hunton.com. In this issue we want to recognize and thank Dolly Shaffner, the Virginia State Bar's terrific liaison to the Environmental Law Section's Board of Governors. Dolly is always organized and well prepared for our bi-monthly meetings. Thank you, Dolly, for your help this year. Each New Year brings a clean slate and a fresh start for us all. Best wishes to you and your families in 2005. Karen T. Lebo, Chair Page 3

continued from page 3 resource restoration action under certain environmental statutes; 18 (3) construction is allowed pursuant to outstanding rights, or as provided by a statute or treaty; 19 (4) existing road realignment is permitted when needed to prevent irreparable resource damage resulting from the road s design, location, use or deterioration; 20 (5) reconstruction is permitted to implement a road safety improvement project on a road that is hazardous due to past accidents or accident potential; 21 (6) construction is allowed if a Federal Aid Highway project is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no reasonable and prudent alternatives exist; 22 and (7) construction is permitted in conjunction with the continuation, extension, or renewal of a current mineral lease on lands that were leased before the publication of the Roadless Rule or for a new lease that is issued immediately upon the expiration of an existing lease. 23 The Rule s prohibition on timber cutting, sale, and removal in inventoried roadless areas also contains several exceptions. 24 Specifically, cutting, sale, or removal of generally small diameter timber is permitted if it will maintain or improve roadless characteristics and is needed to improve habitat for threatened, endangered, proposed, or sensitive species 25 or if needed to maintain or restore ecosystem composition and structure. 26 Cutting, sale, and removal of timber in roadless areas is also permitted if it is incidental to the implementation of a management activity not otherwise prohibited, if needed for personal or administrative use, or where roadless characteristics have been substantially altered due to road construction and timber harvest that Page 4 occurred prior to the publication of the Roadless Rule. 27 RESPONSES TO FINAL RULE The majority of citizens who responded to the proposed rule expressed enthusiastic support. Ninetyfive percent of the comments favored strong protection for roadless areas. 28 However, some citizens strongly opposed the rule, including some public officials and local tribes. Many of these objections emphasized the importance of local knowledge in resource management decisions and opposed the development of uniform standards to govern every inventoried roadless area. 29 Even before the final version of the Roadless Rule was published, it was challenged in court. On January 8th, 2001, the Kootenai Tribe of Idaho and Boise Cascade Corporation, together with motorized recreation groups, livestock companies, and two Idaho counties, filed suit in a U.S. district court in Idaho, alleging that the Roadless Rule violated NEPA and the APA. 30 Judge Lodge, writing for the Idaho district court, granted Plaintiffs motion for a preliminary injunction, enjoining implementation of the Rule. 31 Although the federal defendants chose not to challenge the injunction, intervenor environmental groups appealed the Idaho district court decision. 32 The Ninth Circuit reversed, holding that Plaintiffs failed to establish a strong likelihood of success on the merits for their NEPA claim, the Roadless Rule did not cause irreparable injury, and Plaintiffs failed to show that the balance of hardships tipped in their favor. 33 After Idaho filed suit, several other states and organizations took action. 34 Thus far, however, the only other court that has reached a decision on the Roadless Rule is the United States District Court for the District of Wyoming, which issued a preliminary injunction against the implementation of the Rule. 35 In State of Wyoming v. United States Department of Agriculture, the district court, in an opinion by Judge Brimmer, agreed with the State that the Roadless Rule violated NEPA and the Wilderness Act. 36 The Wyoming preliminary injunction remains in effect. The government has decided not to appeal the decision despite its sharp inconsistency with the Ninth Circuit s ruling; a separate appeal filed by environmental intervenors remains pending in the 10th Circuit. 37 SUBSEQUENT DEVELOPMENTS Alaska s lawsuit challenging the Roadless Rule resulted in a settlement that ultimately modified the Rule by temporarily exempting the Tongass National Forest from the Roadless Rule. 38 In addition, on June 9, 2003, the Forest Service stated that it would propose an amendment to the Rule that would allow state governors to request exceptions from the rule for protecting human health and safety; reducing hazardous fuels and restoring wildlife habitats; maintaining existing facilities such as dams, or providing reasonable access to private property; and making technical corrections such as boundary adjustments to remove existing roaded areas. 39 Numerous Representatives and Senators have announced their support for the Roadless Rule and desire to codify its protections. 40 The Inslee (D-WA)-Boehlert (R-NY) roadless area conservation bill, which had over 170 original cosponsors, was introduced in the House of Representatives on June 5, 2002. 41 Additionally, on July 25, 2002, the Cantwell (D-WA)-Warner (R-VA) roadless area conservation

bill was introduced in the Senate. 42 On June 5, 2003, The National Forest Roadless Area Conservation Act was introduced in the House of Representatives 43 and the Roadless Area Conservation Act of 2003 was introduced in the Senate. 44 No action occurred on these bills, and prospects for roadless area legislation in the 109th Congress seem doubtful. In July 2004, the Department of Agriculture issued a proposed regulation that would repeal the Clinton Administration's Roadless Rule and replace it with a far more limited "petitioning process that would provide Governors an opportunity to seek establishment of management requirements for National Forest System inventoried roadless areas within their States. 45 The Department subsequently extended the period for public comment on the proposed rule to November 15, 2004. 46 ROADLESS RULE ANALYSIS Critics have argued that the Forest Service overstepped its authority in promulgating the Roadless Rule in violation of the Wilderness Act. While it is undoubtedly true that only Congress can designate federal wilderness areas under the Wilderness Act, 47 these arguments seem to misinterpret the Wilderness Act and the Roadless Rule. The Forest Service did not administratively create de facto wilderness areas through the Roadless Rule because roadless areas are not the same thing as wilderness areas. The activities permitted in federal wilderness areas are more limited than the activities permitted in roadless areas under the Roadless Rule, which include motorized uses, oil and gas development that does not require the construction of new roads, offhighway vehicle use, mountain biking, and road construction in roadless areas that are currently leased for oil, gas, and other minerals and for mineral leases that are immediately renewed upon expiration. 48 The Rule also allows for timber harvest in portions of roadless areas that have been substantially altered by roads and logging since the time the area was inventoried as a roadless area. 49 Arguments that the Forest Service promulgated the Roadless Rule in violation of NEPA by failing to provide the public with meaningful participation in the process are similarly unpersuasive. 50 During the rulemaking process, over 430 public meetings were held, which more than 23,000 citizens attended nationwide. 51 The public comment period on the proposed rule was 69 days, substantially longer than the minimum requirement of 45 days. 52 Moreover, to date, 2.3 million public comments have been submitted in this rulemaking process almost ten times more comments than have ever been submitted for another federal rule. 53 The Forest Service actively considered these comments in issuing the final rule, demonstrating that the public was not deprived of meaningful participation in the process. An examination of the merits of the Roadless Rule arguably leads to the conclusion that the policy is a balanced approach to forest management in the nation s inventoried roadless areas. People greatly benefit from the pristine resources and recreational opportunities that roadless areas provide. Ecosystems likewise benefit from the Roadless Rule, which would preserve habitat, support species diversity, and protect large unfragmented tracts of land. The rule s adverse impacts on the timber industry and oil and gas development do not appear as significant as these vast benefits. For example, only 0.4% of domestic oil and gas is produced on national forest land, and the Roadless Rule continues to allow for road construction in conjunction with existing oil and gas leases and mineral rights. 54 Additionally, the Roadless Rule affects less than 0.5% of the country s timber production. 55 In contrast, nearly 80% of the country s drinking water originates on national forest land. 56 Although some communities will be disproportionately affected, the Forest Service included mitigation measures in the final rule to ease the economic transition. 57 THE ROADLESS RULE S IMPLICATIONS FOR VIRGINIA Although the Roadless Rule affects more land in the Western United States than in the East, this issue certainly affects local interests as well. In fact, Virginia has more acres of roadless national forestland than any other eastern state. The George Washington and Jefferson National Forests, which cover approximately 1.7 million acres in western Virginia, are highly valued for their scenic beauty, outdoor recreation opportunities, and ecological significance. 58 Together, the forests contain 89,862 acres (five percent of total acreage) that are classified as wilderness 59 and 414,000 acres that are classified as inventoried roadless areas. 60 Virginia alone contains 394,000 acres of inventoried roadless National Forest System land, 61 which is more roadless acreage than any other state east of the Mississippi. 62 As a result, the future of the Roadless Rule will affect forest management in Virginia s public forestland. The George Washington and Jefferson National Forests not only sup- continued on page 6 Page 5

continued from page 5 port abundant plant and animal life, but also provide many benefits to the people who visit and reside in the area, including supplying municipal water and providing outstanding recreation opportunities, which benefit both outdoor enthusiasts and the regional economy. The Roadless Rule would have an important impact in Virginia by mandating that all roadless areas in the George Washington and Jefferson National Forests retain their roadless characteristics, thereby promoting ecosystem health, ensuring that the above mentioned benefits remain, and maintaining the eligibility of these areas for future wilderness designation. The Roadless Rule would inevitably affect timber harvest and oil and gas leases in the George Washington and Jefferson National Forests, but these effects are not likely to be significant. For example, only 1% of Virginia s annual timber harvest comes from national forests. 63 Although the Roadless Rule would restrict oil and gas activities that require new road construction in roadless areas, it would not end leases that were in place by January 12, 2001, and it would also allow for lease renewal immediately upon expiration of an existing lease. 64 If the Roadless Rule is implemented with an amendment allowing state governors to seek exemptions, it is likely to have the same effects in Virginia as it would if implemented in its current form. Governor Warner has expressed his strong and enthusiastic support of the Roadless Rule and his disagreement with a stateby-state exemption policy, 65 making it unlikely that he would seek any Virginia exemptions should the policy take effect. If the Roadless Rule is not implemented, roadless areas in the George Washington and Jefferson National Forests will continue to Page 6 be managed by the forests respective management plans, which are revised at least every fifteen years. 66 If the Roadless Rule is not implemented, there are alternatives for protecting roadless areas, although these options do not provide as widespread protection as the Roadless Rule. One alternative is for Congress to designate more wilderness areas. This is the preferred option by those who support forest protection because it permanently protects land from development. 67 The drawback of relying on wilderness designation for national forest protection is that it protects a much smaller amount of land than the Roadless Rule would. Even if Congress eventually designates as wilderness all the areas recommended for wilderness study in the forest management plans, the Roadless Rule would still cover far more forest land and its protections would take effect immediately. Another option for protecting roadless areas is drafting more protective forest management plans. Managing certain areas to maintain their ecological values often means that these areas are protected from road construction and logging because such activities typically impair those values. This strategy does not provide as widespread protection as the Roadless Rule because it does not cover all roadless areas and does not provide permanent protection. 68 Nevertheless, special management area designations are an important management strategy for protecting ecologically sensitive areas of our national forests. CONCLUSION By banning road construction and timber harvest in roadless areas, subject to certain exceptions, the Roadless Rule was intended to provide long-term protection for inventoried roadless areas within the system of multiple-use management. Given the future uncertainty of this conservation policy, the best way to ensure lasting protection for roadless areas is for Congress to enact legislation safeguarding roadless areas in the National Forests. The force of an administrative rule comes and goes with administrations that have different political agendas, but the tremendous research and public involvement efforts that occurred throughout the development of the Roadless Rule should culminate in a more permanent conservation measure. 69 1 Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12, 2001) (codified at 36 C.F.R. pt. 294). 2 See infra notes 17-27, and accompanying text (discussing the provisions of the Roadless Rule and exceptions thereto). 3 United States Department of Agriculture, Roadless Area Conservation, at http://roadless.fs.fed.us (last visited February 19, 2004). 4 United States Department of Agriculture, Fact Sheet: Roadless Conservation Rule Chronology of Events, at http://www.usda.gov/news/releases/200 3/06/fs0200.htm (last revised June 9, 2003). 5 Wyoming v. United States Dep t of Agric., 277 F.Supp.2d 1197, 1204-05 (D. Wyo. 2003). 6 SOUTHERN ENVIRONMENTAL LAW CENTER, SAVING VIRGINIA S LAST WILD FORESTS 1, at http://www.southernenvironment.org/ cases/national_forests/va_roadless.pdf (last visited Mar. 25, 2004). 7 United States Department of Agriculture, Kootenai and Idaho Panhandle National Forests: Inventoried Roadless Areas and Proposed Wilderness Areas, at http://www.fs.fed.us/kipz/issues/ira_ wilderness.shtml (last visited Mar. 1, 2004). 8 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3247. 9 Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12, 2001) (codified at 36 C.F.R. pt. 294). 10 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3245. 11 Id. 12 For example, approximately 13% of the plant species and 25% of the animal species that are threatened, endangered, or proposed for listing under the federal Endangered Species Act, are

likely to have habitat within inventoried roadless areas. See Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3245. 13 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3245. 14 Id. at 3246. 15 Id. 16 Id. at 3244. 17 36 C.F.R. 294.12(b)(1) (2004). 18 36 C.F.R. 294.12(b)(2) (2004). 19 36 C.F.R. 294.12(b)(3) (2004). 20 36 C.F.R. 294.12(b)(4) (2004). 21 36 C.F.R. 294.12(b)(5) (2004). 22 36 C.F.R. 294.12(b)(6) (2004). 23 36 C.F.R. 294.12(b)(7) (2004). 24 See 36 C.F.R. 294.13 (2004). 25 36 C.F.R. 294.13(b)(1)(i) (2004). The cutting of small diameter timber must be consistent with maintaining or improving at least one roadless area characteristic. 36 C.F.R. 294.13(b)(1) (2004). 26 36 C.F.R. 294.13(b)(1)(ii) (2004). 27 36 C.F.R. 294.13(b)(2)-(4) (2004). 28 Natural Resources Defense Council, The National Forest Roadless Area Rule, at http://www.nrdc.org/land/forests /qroadless.asp (last revised Dec. 20, 2002). The comments expressed the view that roadless areas deserve protection for their intrinsic value and esthetic benefits to humans. Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3249. 29 These comments argued that environmental concerns should not trump human needs and desires for land use and that resource production should be allowed. Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3249. Many who opposed the rule also contended that conservation requires active management including road construction for thinning forest vegetation, insect and disease treatment, resource production, and the development of recreation facilities. Id. at 3248-49. Another expressed concern was that future generations would not be able to choose a lifestyle dependent on resource use and production. Id. at 3249. Additionally, some public officials opposed the rule, concerned that decreased access to national forest system lands would be economically detrimental to local communities and commodity production industries. Id. 30 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1104 (9th Cir. 2002). 31 Kootenai Tribe of Idaho v. Veneman, No. CV01-10-N-EJL, 2001 WL 1141275, at *2 (D. Idaho 2001). 32 Kootenai Tribe, 313 F.3d at 1104. 33 Id. at 1123. 34 See The Wilderness Society, A Chronology of the Roadless Area Conservation Policy, at http://www.wilderness.org/ourissues/roa dless/chronology.cfm (last visited Feb. 21, 2004). 35 See Wyoming, 277 F. Supp. 2d at 1197. 36 Id. 37 Wyoming Outdoor Council v. State of Wyoming, No. 03-8058 (10th Cir.). 38 Special Areas; Roadless Area Conservation; Applicability to the Tongass National Forest, Alaska, 68 Fed. Reg. at 75, 136. 39 United States Dep t of Agric., News Release: USDA Retains National Forest Roadless Area Conservation Rule, at http://www.usda.gov/news/releases/200 3/06/0200.htm (June 9, 2003). 40 See, e.g., The Wilderness Society, A Chronology of the Roadless Area Conservation Policy, at http://www.wilderness.org/ourissues/roadless/chronology. cfm. 41 Id. 42 Id. 43 National Forest Roadless Area Conservation Act, H.R. 2369, 108th Cong. (2003). 44 Roadless Area Conservation Act of 2003, S. 1200, 108th Cong. (2003). 45 69 Fed. Reg. 42636, 42637 (July 16, 2004). 46 69 Fed. Reg. 54600 (Sept. 9, 2004). 47 The Wilderness Act, 16 U.S.C. 1131 (1964). 48 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3249-3273. 49 Id. 50 But see Brandon Dalling, Administrative Wilderness: Protecting Our National Forestlands in Contravention of Congressional Intent and Public Policy, 42 NAT. RESOURCES J. 385, 407-408 (2002) (concluding that the Roadless Rule s comment and scoping periods were inadequate to allow effective public participation). The Idaho district court, later overruled by the Ninth Circuit, was also convinced that the comment period was inadequate. Idaho ex rel. Kempthorne v. U.S. Forest Service, 142 F.Supp.2d 1248, 1261 (D. Idaho 2001). 51 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3248. 52 Kootenai Tribe, 313 F.3d at 1119. 53 Id. 54 See id. See also Southern Environmental Law Center, Roadless Area Protection in the Southern Appalachians, at http://www.southernenvironment.org/cas es/roadless/roadless_fact-sheet.shtml (last visited March 21, 2004). 55 Special Areas; Roadless Area Conservation, 66 Fed. Reg. at 3261. 56 Sierra Club, Environmental Issue: Virginia s Forests, at http://virginia.sierraclub.org/forests.html (last visited March 21, 2004). 57 Roadless Area Conservation, 66 Fed. Reg. at 3266. 58 See United States Department of Agriculture, George Washington and Jefferson National Forests Forest Facts, at http://www.southernregion.fs.fed.us/gwj/f orestfacts.htm (last visited February 25, 2004). 59 Id. 60 UNITED STATES DEPARTMENT OF AGRICULTURE, ROADLESS AREA CONSERVATION FINAL ENVIRONMENTAL IMPACT STATEMENT App. A, available at http://roadless.fs.fed.us/documents/feis/ data/sheets/acres/appendix_forest_acre s.html (Nov. 2000). 61 Id. 62 SOUTHERN ENVIRONMENTAL LAW CENTER, SAVING VIRGINIA S LAST WILD FORESTS 1, at http://www.southern environment.org/cases/national_forests/ va_roadless.pdf (last visited Mar. 25, 2004). 63 UNITED STATES DEP T OF AGRICULTURE, ROADLESS AREA CONSERVATION FINAL ENVIRONMENTAL IMPACT STATEMENT: App. B, available at http://roadless. fs.fed.us/documents/feis/documents/vol1 /appb_short.pdf (Nov. 2000). 64 See 36 C.F.R. 294.12 (2004). 65 Governor Warner wrote: We understand the administration is planning to propose state-by-state exemptions we believe that approach is unnecessary given the current rule s reasonable exemptions. Such an approach would undermine the important national rule necessary to insure the conservation of roadless areas for the use of present and future generations. Letter from Mark R. Warner, Governor of Virginia, to Ann Veneman, Secretary of the Department of Agriculture (August 22, 2003) (available at http://www.southernenvironment.org/cases/national_forests/gov_vi rginia.pdf). 66 See 16 U.S.C. 1604(f) (5) (2004). 67 See The Wilderness Society, A Plan for Wilderness on the Jefferson National Forest, at http://www.wilderness.org/ WhereWeWork/Virginia/wilderness.cfm (last visited March 19, 2004). See also SHIREEN PARSONS, THE WILDERNESS SOCIETY, VIRGINIA S MOUNTAIN TREASURES: THE UNPROTECTED Page 7

WILDLANDS OF THE JEFFERSON NATIONAL FOREST 7 (1999). Wilderness protection is permanent, of course, unless a subsequent Congress repeals it. This has never occurred with respect to any significant area of land designated under the Wilderness Act. 68 PARSONS, supra note 64, at 7. 69 For an argument that Congress should participate in roadless area management efforts, given drastic changes under the successor administration, see Michael J. Mortimer, The Delegation of Law-Making Authority to the United States Forest Service: Implications in the Struggle for National Forest Management, 54 ADMIN. L. REV. 907, 965-967 (2002). Request for Articles The articles in this newsletter are intended to provide analysis and discussion of topics that may interest attorneys who practice in the areas of environmental law. The Environmental Law Digest welcomes submissions of appropriate articles. Suggestions of topics for articles and other comments are also welcomed. Please send any submissions or comments to the Environmental Law Digest at: or by e-mail at: eglandt@wlu.edu Environmental Law Digest Washington and Lee University School of Law Lexington, Virginia 24450 A Local Reaction to a National Concern: The Impact of Recent Endangered Species Act Litigation on Virginia Property Owners Michelle Williams INTRODUCTION T he United States, with arid deserts, snow-capped mountains, and verdant forests, is one of the few countries in the world that has such differentiation in landscape and climate, all within its mainland boundaries. Important parts of that landscape are the various terrestrial species that grow, live, and thrive there. The Endangered Species Act (ESA) was passed in 1973 in order to ensure the con- Michelle Williams is a J.D. Candidate, May 2005, at Washington and Lee University School of Law. An expanded version of this article with a more extensive analysis of the Endangered Species Act may be obtained from the Environmental Law Digest web site at http://eld.wlu.edu. Page 8 tinued preservation and protection of the various plants and animals that inhabit the panoramic landscape of not only the United States but beyond. 1 The ESA has been described as the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. 2 The primary purpose of the ESA is to protect and preserve endangered and threatened species and their critical habitats from extinction. 3 The United States Fish and Wildlife Service (the Service) achieves these important conservation goals primarily by listing species and their critical habitats and requiring federal agencies to ensure that any actions authorized, funded, or carried out by them do not jeopardize the continued existence of a listed species or interfere with their habitats. 4 Tasked with these primary directives, the Service endeavors to recover listed species to selfsustaining numbers. 5 THE ENDANGERED SPECIES ACT AND CRITICAL HABITAT DESIGNATION For over twenty-five years, the ESA has tried to protect and save animal and plant species from extinction. However, a recent deluge of anti- ESA litigation has threatened the survival of the ESA. 6 Court judgments in the west, like New Mexico Cattle Growers v. United States Fish and Wildlife Service, have specifically condemned the Service s implementation of critical habitat designation as flawed and erroneous. 7 Litigating such challenges has left the Service too financially exhausted and too preoccupied to carry out one of its statutory duties: to designate critical habitats for endangered species. 8 Decisions analogous to New Mexico Cattle Growers, like Arizona Cattle Growers Ass n v. United States Fish & Wildlife Service, have endeavored to highlight and publicly criticize the

deficiencies in the critical habitat designation process. 9 As of August 6, 2003, the Department of the Interior exhausted its critical habitat designation funds. 10 Federal funds that the Service would have used to list species and designate habitat have been re-directed to fund the Service s defense against litigation and to comply with court judgments. 11 In response to the growing litigation challenging Service action, the Department of the Interior issued a press release stating that the ESA was broken. 12 Section 1533 critical habitat designation is on the brink of extinction. The funds necessary to designate critical habitat are all but exhausted. Critical habitat designation and the consultation process are at the heart of anti-esa litigation. Although ESA section 1533 critical habitat designation has been the lifeblood of the conservation movement, it has been a major thorn in the sides of property rights advocates. Where critical habitat is designated, property owners are subject to Serviceimposed land use restrictions. Ironically, property rights advocates have an unexpected ally against Section 1533 critical habitat designations the Service itself. The Service has taken the position that designating critical habitat provides no added protection for species that are already endangered. 13 Eric Davis, endangered species biologist working out of the Charlottesville, Virginia Service office, expressed the Service consensus on designating critical habitat. 14 According to Mr. Davis, designating critical habitat is futile where the listed species is already living. 15 Since the species itself is already protected, its presence in an area is enough to protect it from injury and harm. 16 Because the Service sees little benefit in designating critical habitat, it has assigned this mandatory duty low priority. 17 THE ENDANGERED SPECIES ACT IN VIRGINIA Even though most anti-esa litigation has inundated courts in the southwestern and northwestern regions of the United States, the effects of cases like New Mexico Cattle Growers are starting to be felt right here in Virginia. 18 Many Virginia landowners face the presence of an endangered species living on their land. 19 When that occurs, the Service has the power to impose land use restrictions where critical habitat may not be designated if the actions of the landowner may jeopardize or take an endangered species. 20 For example, while there are only three critical habitats designated for endangered fish in Virginia (specifically, the Yellowfin Madtom, Slender Chub, and Spotfin Chub) 21, there are many endangered species that live within the state on privately owned land whose owners are subject to the Service s jurisdiction. 22 Because of the Service s ability to impose land use restrictions in these instances, discovering an endangered species living on one s land has been a very unwelcome event for some Virginia landowners. In May of 2002, John Taylor of Alexandria, Virginia, won a four-year battle against the Virginia office of the Service to build on the lot that he purchased. 23 Taylor filed suit against the Service when it barred him from building on his lot because a bald eagle s nest was found very near his property. 24 As a condition of building on the property, the Service instructed Taylor that he had to pay for an eagle nesting platform and an educational exhibit, dedicated to the bald eagle, to be placed miles away from his property. 25 Taylor had the additional option of paying for a project to replenish fish stocks in the Potomac River basin for the eagles food supply. 26 Taylor refused and filed suit against the Service. 27 The case was eventually settled on the terms that the Service would issue Taylor the necessary permit to build on his lot and pay his lawyer s fees. 28 In a phone interview, Mr. Taylor stated that the Service got nothing out of the settlement. 29 He believed that the Service settled due to pressure from high ranking governmental officials who found out about the court case. 30 In the end, Mr. Taylor was allowed to build on his land and receive compensation for the trouble of defending his right to do so. 31 Although it has yet to be highly documented in Virginia, the shoot, shovel, and shut up formula has the potential to become a method landowners use to avoid the imposition of Service restrictions on their property.. 32 The method, as reported by the Washington Post when it covered such an incident in Texas, occurs when a landowner, upon discovering that an endangered or threatened species is living on his land, kills the animal, buries the carcass along with any of its eggs or offspring, and conceals the whole event from any governmental agency, especially the local Service office. 33 This is an extreme and dangerous option. But in the face of the arrested development of their valuable land, some property owners see this as their only real alternative. 34 Decisions like New Mexico Cattle Growers and proclamations of a broken 35 ESA ring like music in property owners ears because it means that the Service will be unable to breathe fire down their necks. The New Mexico Cattle Growers challenged the Service s critical habitat designation for the Southwestern Willow Flycatcher (flycatcher). 36 The Cattle Growers asserted that the Service did not continued on page 10 Page 9

continued from page 9 adequately consider the economic impact of designating the critical habitat for the flycatcher. 37 According to Section 1533 of the ESA, in designating critical habitat for a species, the Service must do so on the basis of the best scientific data available and after taking into consideration the economic impact. 38 In order to determine the critical habitat for the flycatcher, the Service used a baseline method, dubbed the but for method. 39 The baseline method only considered those economic impacts that were solely attributed to designating critical habitat. 40 If the Service determined that the economic impact could be attributed to other factors, such as listing the species itself, it would not consider that as economic impact caused by designation. 41 The Service determined, using the baseline method, that designating the critical habitat of the flycatcher yielded no economic impact and therefore finalized the designation. 42 The Tenth Circuit agreed with the New Mexico Cattle Growers on their first claim that the Service s adoption of the baseline approach to measuring the economic impact of the flycatcher [critical habitat designation was] an erroneous construction. 43 The court believed that the construction of the relevant section of the ESA, Section 1533(b)(2), required the Service to take into account all economic impacts of designating the critical habitat, regardless of whether those economic factors had been taken into account by other agency actions, such as listing. 44 The court felt that Section 1533(b)(2) of the statute clearly expressed Congress s intent for the Service to include all economic impacts in determining critical habitat for listed species. 45 Page 10 This case put critical habitat designation in jeopardy because the decision outlawed a method by which the Service designated habitat. 46 Therefore, after this decision, the Service was left with the task of defending from attack those current designations that were achieved through use of the baseline method. 47 For an agency that has limited federal funding, this decision was catastrophic. 48 For landowners who despise government control over what they can and cannot do with their land, this decision was a relief. Another lovely sound resounding in the ears of property owners was the Arizona Cattle Growers decision. The Arizona Cattle Growers challenged a Service Incidental Take Statement contained within a Biological Opinion issued after consultation concerning approximately 20 different plants and animals by the Service. 49 The Cattle Growers wanted to expand the grazing area of their cattle. They consulted the Service in order to determine whether their plans would injure any endangered or threatened species. 50 The Service issued a Biological Opinion stating that for all but one of the pieces of land at issue, the grazing activities proposed would not jeopardize the continued existence of any species that was found in the area. 51 But within the Biological Opinion the Service issued an Incidental Take Statement that stated that the grazing activities proposed may not jeopardize the existence of the species but would incidentally take kill or harm or adversely affect habitat some members of the endangered species living in the area. 52 The Arizona Cattle Growers challenged this part of the Biological Opinion, alleging that the Service s Incidental Take Statement was arbitrary. 53 The Ninth Circuit held that in order for the Service to issue an Incidental Take Statement the Service must first find that the species was actually present and that harm will actually be done to the species if the agency s actions were to be carried out. 54 In this case, the Service could not point to specific evidence that the species was even present in the disputed area. 55 In addition, the Service need not issue an Incidental Take Statement if the take of the species did not amount to any harm to the species as a whole. 56 Both the New Mexico Cattle Growers and Arizona Cattle Growers decisions show that agencies and landowners are sending a strong message to Congress and the Service about the ESA: It does not work for us. The future for Virginians is uncertain with regard to the ESA because of the Service s reported financial situation. Although it is becoming more and more apparent that the ESA s troubles in the West are stretching to Eastern borders (property owners disobeying the law to avoid Service regulations and the Service), those troubles might be heightened because the Service no longer has the money to enforce the listing and critical habitat prohibitions of the ESA. 57 While Taylor s fight with the Service was only two years young, the fight could have gone on longer had there not been a settlement agreement. 58 The Secretary of the Interior made his declaration that the ESA was broken in May of 2003 with the prediction that the Service would totally exhaust its funds set aside to make critical habitat designations for that fiscal year by July of 2003. 59 Could the Taylor settlement be a cost-saving suggestion for a local Service office that predicts a tight squeeze on its budget? If so, Virginians who find themselves in the precarious situation of having an

endangered or threatened species on or near their land need not worry about the Service pursuing them just yet. But, in an article reported by the Richmond Times Dispatch, two grants from the Service were awarded to Virginia to support purchases of habitat for endangered species. 60 The grants were reportedly a part of a more than seventy million dollar grant that was awarded by the Service to twentynine states to preserve habitat for endangered species. 61 One grant was used to buy areas of land where the perennial Virginia Sneezeweed grew. 62 For Virginia property owners, this grant could be a sign that the Service, while reporting itself to be on the brink of bankruptcy, is still trying to preserve habitat in the state. Therefore, decisions like New Mexico Cattle Growers are not having the affect on Service implementation of the ESA in Virginia as they might be having in the western states. So, while the western court decisions may be slowing Service action against property owners out West, that reaction may not have reached Eastern borders just yet. CONCLUSION While the idea of designating a specific area of habitat to ensure that an endangered species may live peaceably is an idea that should be maintained, the ESA needs revision to better frame that idea in the context of recovery and conservation of the species. In order to do this, Section 1533 needs to better direct the Service on how to evaluate potential habitat so that enough habitat is designated for a species to rebound from dwindling numbers. Simultaneously, this evaluation of potential habitat needs to better assess the possible economic impacts that designation may have on the surrounding area. The Service needs to work with affected farmers and small business owners more closely so that there is less friction when designations need to occur on certain lands. If critical habitat needs to be designated on private lands, incentives need to be created so that property owners are not economically penalized for having property that is designated as critical habitat. The main problem with the ESA is that it does not give the Service an adequate roadmap as to how to designate critical habitat so that it achieves the recovery goals that the statute had first intended. This has resulted in unnecessary and ineffective designations that serve more to irritate and harass local interests than conserve and recover the species. Because of the Service s haphazard application of the statute, local interests become antagonized by Service efforts to protect species. This creates opponents to recovery efforts where proponents are most needed. Changing the statute to particularize recovery efforts would hopefully make ineffective and duplicative designations a bad memory. Therefore, local interested parties, like Taylor, may feel more receptive to recovery efforts because those efforts would be specified and would not have the aura of taking land unnecessarily. After recovery of a species is made, the Service could start to deregulate lands in order to promote the temporal idea of conservation regulation. Therefore, more habitats and species could be de-listed and local interests would feel that regulation of their land was more of a temporary discomfort rather than a permanent plague. Coupled with adding incentives to regulation on private lands, new reforms to the ESA would hopefully change the nation s overall outlook on conservation. The idea is to make conservation a positive experience for all involved. Sounds like a good idea. 1 See Endangered Species Act of 1973, 16 U.S.C. 1531 (1973) (stating the statute s pledge to work to protect and conserve endangered and threatened species pursuant to various international treaties). 2 TONY A. SULLINS, ESA ENDANGERED SPECIES ACT 2 (Section of Environment, Energy, and Resources Book Publications Committee 2001). 3 See Endangered Species Act of 1973, 16 U.S.C. 1531(b) (2004) (stating the purposes of the ESA). 4 See id. 1536(a)(2) (directing all federal agencies to insure that their actions not jeopardize the continued existence of endangered or threatened species and their respective designated critical habitats). 5 See id. 1531(b) (stating the conservation and preservation motives of the ESA). 6 See cases discussed infra pp. 4-5 (providing examples of current litigation that has called into question the Service s implementation of the ESA). 7 See N.M. Cattle Growers Ass n v. United States Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (rejecting the base-line approach to economic analysis of the impact of critical habitat designation). 8 Press Release, U.S. Department of the Interior, Endangered Species Act Broken Flood of Litigation Over Critical Habitat Hinders Species Conservation (May 28, 2003) (on file with author). 9 See cases discussed infra pp. 4-6 (detailing one of anti-esa litigation s primarily motivations: to publicly demonstrate how the ESA is lacking). 10 National Resource Defense Council, FWS Puts Wildlife in Critical Condition, http://www.nrdc.org/bushrecord/articles/ br_1384.asp (Aug. 6, 2003). 11 See id (reporting Service inability to financially keep up with critical habitat designations and their attempts to comply with lawsuits filed by environmentalists). 12 Press Release, U.S. Department of the Interior, Endangered Species Act Broken Flood of Litigation Over Critical Habitat Hinders Species Conservation (May 28, 2003) (on file with author). 13 Press Release, U.S. Department of the Interior, Endangered Species Act Broken Flood of Litigation Over Critical Habitat Hinders Species Conservation (May 28, 2003) (on file with author). 14 Telephone Interview with Eric Davis, Endangered Species Biologist, United Page 11