 August 19, 2003
Murkowski, in an August 13th letter to USFS Roadless Content Analysis Teams, provided the State of Alaska's position on the proposed nationwide roadless rule, citing violations of the Alaska National Interest Lands Conservation Act, the Wilderness Act, the National Environmental Policy Act, and the National Forest Management Act, among others. Application of the roadless rule to the 16.9 million acre Tongass would essentially dictate management of 90 percent of the forest as wilderness, and under a recent US District Court decision in Wyoming, this violates the Wilderness Act by creating de facto wilderness. Under that Act, only Congress may designate wilderness areas. Specifically for Alaska, the various "no more" clauses of ANILCA stand as the operative protection against federal agencies designating more wilderness, or even setting aside more federal land for consideration as wilderness. "ANILCA was enacted with the promise that it provided sufficient protection for Alaska land and that no further administrative withdrawals would be allowed without express Congressional approval," Murkowski wrote in his letter. "Section 101(d) explicitly provides that 'this Act provides sufficient protection for the national interest in the scenic, natural, cultural, and environmental values on the public lands in Alaska;' and that it represents 'a proper balance between the reservation of national conservation system units' and lands available for other purposes; and concludes that 'Congress believes that the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, has been obviated thereby.'" Murkowski also pointed out that the roadless rule violates the process of preparing forest plans under NFMA. "The roadless rule is a one-size-fits-all, national directive that dictates the management prescription to be applied to vast acreage of Alaska without the required analysis of local and specific social, environmental and economic impacts."
August 13, 2003 Roadless TNF Dear Roadless Content Analysis Teams: The State of Alaska appreciates this opportunity to submit comments on the Advance Notice of Proposed Rulemaking (ANPR), published at 68 FR 41864 (July 15, 2003), and the proposed temporary rule to exempt the Tongass National Forest from the roadless rule until a final rule is promulgated, published at 68 FR 41865 (July 15, 2003). The ANPR requests comment on whether to exempt permanently the Tongass and Chugach National Forests in Alaska from the roadless rule. These comments apply to both Federal Register notices. Alaska strongly supports a permanent exemption from the roadless rule for both of Alaska's national forests, and the exemption for the Tongass until a permanent rule exempting both forests is in place. Promulgation of the roadless rule violated the National Environmental Policy Act and the rule is unlawful in general under several federal statutes. Specifically in Alaska, the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3101, et seq. (ANILCA), prohibits it. More than 25 percent of the acreage affected nationwide by the roadless rule is in Alaska. The Tongass National Forest contains 16.9 million acres. More than one third of the Tongass, 5.8 million acres, is designated wilderness. It contains an additional 9.3 million roadless acres. Application of the roadless rule to the Tongass would essentially dictate management of 90 percent of the forest as wilderness. Under the 1997-revised Tongass Land Management Plan (TLMP), 300,000 acres of roadless area would be available for multiple-use forest management if the Tongass is exempted from the roadless rule. The Chugach National Forest contains 5.49 million acres of which 5.43 million, or 98.9 percent, are roadless. The recently completed revised Chugach Land and Resource Management Plan (CLMP) recommends that Congress designate 1.4 million acres, 25 percent of the Chugach, as wilderness. Application of the roadless rule to the Chugach would essentially dictate management of 99 percent of the forest as wilderness. Under the management prescriptions adopted in the CLMP, exemption of the Chugach from the roadless rule would permit access on approximately 150,000 roadless acres. Both the Chugach and Tongass National Forests have small communities scattered throughout them; the state capital, Juneau, is in the Tongass. Many communities are surrounded by roadless areas and water. Application of the roadless rule will prevent the development of infrastructure, such as roads and utilities, taken for granted elsewhere in the United States, and will have long-term negative social and economic consequences. The Final Environmental Impact Statement (FEIS) for the roadless rule estimated that approximately 900 jobs in Southeast Alaska could be lost if the roadless rule is applied to the Tongass (FEIS, Vol. 1, p. 3-380, November 2000); it essentially ignored the impacts to communities in the Chugach. The Forest Service has recently completed wide-ranging reviews and revisions of both the Tongass and Chugach National Forests' management plans. These plans were revised after extensive public planning processes mandated by the National Forest Management Act, 16 U.S.C. 1600, et seq. (NFMA), and other federal laws. Unlike the imposition of a nationwide rule, the forest planning process ensures evaluation and balancing of diverse uses, site-specific management prescriptions, and management flexibility. Forest plans should be prepared and revised in close consultation and coordination with the governor of the affected state. With state, local, and public input and thorough scientific review, the TLMP and CLMP reviewed social, economic, and ecological values, and provide a high level of protection for the ecological values of the nation's two largest forests. Under these plans timber harvest is prohibited on over 95 percent of Alaska national forest lands. All old-growth reserves, riparian buffers, beach fringe buffers, wilderness designations and recommendations, and other protections are insured by the forest plans, and any development proposal is subject to extensive, site-specific, and public environmental review. Against this factual backdrop, application of the roadless rule in Alaska is unwarranted; under federal law, it is prohibited. ANILCA Congress enacted ANILCA in 1980 following years of national debate and controversy over conservation issues. ANILCA placed 40 percent of all Alaska land, 150 million acres, in conservation system units. Approximately 58 million acres in Alaska are designated wilderness, more than 50 percent of all designated wilderness in the nation. Section 101 of ANILCA sets out the broad general purposes for which ANILCA was adopted. Congress intended to preserve for present and future generations certain lands and waters in Alaska "that contain nationally significant natural, scenic, historic, archeological, geological, scientific, wilderness, cultural, recreational, and wildlife values." ANILCA was enacted with the promise that it provided sufficient protection for Alaska land and that no further administrative withdrawals would be allowed without express Congressional approval. Section 101(d) explicitly provides that "this Act provides sufficient protection for the national interest in the scenic, natural, cultural, and environmental values on the public lands in Alaska;" that it represents "a proper balance between the reservation of national conservation system units" and lands available for other purposes; and concludes that "Congress believes that the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, has been obviated thereby." This theme is repeated throughout ANILCA, most notably in section 1326. Section 1326(a) prohibits executive withdrawals of more than 5000 acres without Congressional approval. And in section 1326(b), Congress specifically prohibited "further studies of federal land in the State of Alaska for the single purpose of considering the establishment of a conservation system unit or for related or similar purposes" without Congressional authorization. (Emphasis supplied.) Provisions specific to the national forests echo this intent. Section 708 prohibits the Department of Agriculture from conducting further studies of national forest roadless areas in Alaska for the purpose of determining their suitability for wilderness status. It also directs that such areas need not be managed to protect their suitability for wilderness designation. Section 501(b) reaffirmed multiple-use principles and directs that on lands added to the Chugach National Forest by the act, "[m]ultiple use activities shall be permitted in a manner consistent with the conservation of fish and wildlife and their habitat." Section 1110(b) requires the Secretary of Agriculture "to assure adequate and feasible access for economic and other purposes" for state or private owners. Where Congress desired additional wilderness studies on land in Alaska, it specifically required them. Section 1320 makes the Federal Land Policy and Management Act's wilderness evaluation provision inapplicable to BLM land in Alaska. In contrast, section 1004 required a wilderness review of an area referred to as the Central Arctic Management Area. Section 1317 directed the secretary to review national park and preserve lands and national wildlife refuge lands for suitability for wilderness designation and report to Congress within a specified time. Section 704 designated a wilderness study area in the Chugach National Forest. Section 703 designated 5.5 million acres in the Tongass National Forest as wilderness. The Tongass Timber Reform Act of 1990 (TTRA) designated an additional 0.3 million acres. Absent new Congressional authority, it is contrary to ANILCA for the department to either initiate additional wilderness studies or set aside land for management as de facto wilderness. The stated purpose of the roadless rule is to "conserve and protect" roadless areas, and to do it in a manner that cannot be changed in the forest planning process. FEIS, Vol.1, pp. 14, 15. The rule, in violation of ANILCA as applied to land in Alaska, usurps authority Congress reserved to itself to make land set aside decisions. It also violates the TTRA which amended section 705(a) of ANILCA to require the Forest Service to seek to provide a timber supply from the Tongass to meet market demand. National Forest Management Act (NFMA) NFMA and its implementing regulations require that forest plans and plan revisions be prepared by an interdisciplinary team that coordinates with state and local governments. The plans are based on inventories of the applicable resources of and impacts on each national forest. 16 U.S.C. 1604; 36 C.F.R. Part 219. The roadless rule is a one-size-fits-all, national directive that dictates the management prescription to be applied to vast acreage in Alaska without the required analysis of local and specific social, environmental, and economic impacts. These include impacts on communities, schools, fish and game management, transportation, recreation, tourism, utilities, fire hazards, pest and disease control, water management, mining and timber harvest. The roadless rule, as applied to Alaska, also violates the Multiple-Use Sustained-Yield Act, 16 U.S.C. 528-531, and the Organic Administration Act, 16 U.S.C. 475, by severely limiting the uses that can occur in the national forests in Alaska. These laws require that forests be managed for recreation, range, timber, watershed, and fish and wildlife purposes. The roadless rule would require all of the Chugach and most of the Tongass to be managed as wilderness rather than national forest land subject to multiple uses. The Wilderness Act The Wilderness Act, 16 U.S.C. 1131-1136, reserves to Congress the exclusive authority to designate wilderness areas. As the U.S. District Court for the District of Wyoming recently found, the roadless rule administratively creates de facto wilderness areas in violation of the Wilderness Act. Wyoming v. USDA, (D. Wyo., case no. 01-CV-86-B, July 14, 2003). The lands subject to the roadless rule are largely the inventoried roadless areas identified in the RARE II process. The roadless FEIS defines "inventoried roadless area" as "[u]ndeveloped areas typically exceeding 5000 acres that met the minimum criteria for wilderness consideration under the Wilderness Act." FEIS, Vol. 1, p. G-5. The roadless rule mandates management of all roadless areas essentially as wilderness, creating by administrative fiat a preservation category Congress alone has authority to designate. Conclusion The State of Alaska strongly opposes application of the national roadless rule to national forests in Alaska. It is unlawful and unwise. As the District Court for Wyoming recently ruled, its promulgation violated the National Environmental Protection Act in numerous, significant ways. The forest planning process is the appropriate means for making decisions about how to manage the Tongass and Chugach National Forests. The Department of Agriculture should proceed promptly with a new rulemaking, which permanently exempts both forests from any national roadless area conservation rule. Until such a rulemaking is final, the Tongass should be exempt. Thank you for your consideration. Sincerely yours, Frank H. Murkowski Governor
Source of News Release & Letter:
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