On Aug. 20, the USDA published a proposed rule to rescind what is commonly known as the “Roadless Rule,” which has largely constrained certain activities in designated roadless areas since 2001. For National Forest System grazing permittees, rescission of the Roadless Rule is less about gaining new grazing rights or necessarily changing existing rights, and more about what may change around existing allotments. Changes may include increased opportunities for road access and improved allotment conditions through expanded timber harvest and vegetation management.
The Roadless Rule’s enactment did not generally prohibit livestock grazing or terminate grazing permits, so rescission does not suddenly “open” allotments or new acres to livestock. Rather, the rule established prohibitions on road construction, road reconstruction and timber harvesting within “roadless areas” on National Forest System lands. Currently, the Roadless Rule applies to more than 44 million acres across the U.S.
Practically, if rescission is finalized, this does not mean that roads can suddenly be built or timber harvested without restriction. Decisions regarding these activities would rest with individual forest managers and be guided by their land management plans. These plans, required under the National Forest Management Act of 1976, are extensive roadmaps that guide vegetation management, grazing considerations, species management, timber harvesting and other “multiple uses.”
Specific to timber harvest, the Roadless Rule prohibits the cutting, sale or removal of timber unless limited exceptions are met. Yet, those exceptions are “expected to be infrequent.” Upon successful rescission, individual forests would have greater flexibility to authorize timber harvest in otherwise prohibited areas, as long as land management plans and other regulations are followed. This will expand the opportunities for fuels reduction and wildfire mitigation. Meaning national forest timber production may see some of the most significant effects of rescission.
For grazing permittees, these management decisions and otherwise prohibited acts under the Roadless Rule can have practical consequences on the ground. Vehicle and road access is necessary to maintain fences, maintain stock tanks or water developments, move livestock, haul materials, and allow ranchers to more easily respond to changing conditions across an allotment. Rescission of the Roadless Rule does not give permittees an unrestricted right to construct roads or operate vehicles wherever they choose. Rather, local managers would have greater flexibility to determine when and where such access is appropriate.
Vegetation and timber management is equally important as a potential increase in access. Timber harvest and fuels reduction measures can affect range health and forage availability. Removing dense timber can change forage conditions and improve livestock distribution. Those changes may also improve access to portions of an allotment that are difficult to effectively utilize. Perhaps the most important consideration for the West is greater flexibility for reducing wildfire risk. Rescission does not guarantee that a particular timber sale or harvest will occur, but it opens the door for those activities to be considered, where previously prohibited.
So, what does this rescission mean for public lands ranchers? The significance of rescinding the Roadless Rule is unlikely to be found in the grazing permit itself. Instead, it will be found in the management decisions made around that permit, where roads can be constructed or reconstructed, where vegetation can be treated, how forests address wildfire risk, and how individual forests balance those activities. This may be a win-win for industry and agriculture. None of those outcomes are guaranteed by rescission alone. But allowing those decisions to be made based on the local on-the-ground realities of individual forests creates opportunities that a nationwide prohibition cannot.
However, it is critical to note that since the Roadless Rule was enacted in 2001, it has been subject to extensive debate, rescissions, reregulation and litigation. Will this proposal be the end of the Roadless Rule forever? I am not so sure. But it is a step in the right direction to remove broad regulatory red tape and allow more effective management.
For National Forest System permittees located in Colorado and Idaho, state-specific roadless regulations will remain unchanged if the proposal is finalized. It is also important to note that the USDA’s proposed Aug. 20 action is just that, a proposal. The public comment period required under the Administrative Procedure Act closed on Oct. 6. The USDA must now consider public comments prior to issuing any final rule, which may include edits or changes to the August proposal. Following a final rescission of the Roadless Rule, the effects may be gradual, but the change offers hope for more effective forest management, improved access, and reduced wildfire risk in the years ahead. — ELISE BALIN HILL
(Elise Balin Hill is an attorney for Nicholas Law in Cheyenne, WY, where she covers civil litigation, agriculture, natural resources, water, environmental and energy law.)
