Wilderness in the National Forests: California Court Finds RARE II NEPA Violations, Congress Ponders 'Release'

Appropriate use of the enormous tracts of federally owned lands in the western United States has been a subject of constant dispute over the years. The protracted battle between proponents of resource development and those more concerned with the preservation of natural values over the vast acreage in Alaska is but a current example.¹ In addition, the "sagebrush rebellion" is generating increasing friction in the West as well as in Washington.² Another recent conflict has ensnarled the Forest Service, which controls a quarter of the nation's 755 million acres of federal lands.³ In January 1979, the Service completed its second roadless area review and evaluation (RARE II), an inventory of the third of its lands most suitable for wilderness, to determine which areas should be congressionally designated as wilderness and which could be opened for development. As a result of RARE II, President Carter submitted a major proposal to Congress recommending that certain areas be formally set aside as wilderness. The Service then decided that those areas not covered by the RARE II recommendations would be released for development consistent with its multiple-use management policies.

Last January, the federal district court for the Eastern District of California ruled⁴ that the environmental impact statement (EIS) prepared by the Forest Service in support of its RARE II classifications violated the National Environmental Policy Act (NEPA).⁵ The court enjoined the Service from taking any action regarding 46 tracts in California designated as nonwilderness until an EIS is prepared that adequately considers the impact of such designations on the lands' wilderness characteristics. In California v. Bergland, Judge Karlton conducted a thorough and scholarly exposition of NEPA principles and was especially insightful in his application of the requirements for programmatic EISs. The direct impact of the decision, however, is limited to the designated nonwilderness areas in California, comprising little more than a million acres, and no other litigation is pending in which Judge Karlton's conclusions might be applied to RARE II lands in other states. Meanwhile, a battle is shaping up in Congress over proposals that lands not set aside as wilderness be legislatively decreed as open for resource development.

National Forest Lands: Statutory Management Authority

The National Forest System consists of 154 national forests and 19 national grasslands, comprising 187.7 million acres, and is managed by the Forest Service, an agency of the Department of Agriculture. When it first established the system near the end of the nineteenth century, Congress authorized the President to reserve federal lands exclusively for timber productionand watershed protection.⁶ By the middle of the twentieth century, however, Congress had come to recognize that the national forests contain a multitude of resources besides timber and watersheds, including recreation, wildlife habitats, and grazing range. In 1960, the Multiple-Use Sustained-Yield Act⁷ directed that management of the National Forest System be based on promoting a combination of objectives among which economic return is not necessarily the highest priority.⁸

More recently, the National Forest Management Act of 1976⁹ has become the central statutory charter governing management of the national forests. The statute reaffirms the basic multiple-use, sustained-yield concept laid out in 1960¹⁰ and mandates preparation of a Renewable Resources Program every 10 years, which maps out in detail protection, management, and development of the National Forest System.¹¹ To be prepared in accordance with the Multiple-Use Sustained-Yield Act and the National [10 ELR 10097] Environmental Policy Act, the Program is to inventory specific private and public needs, identify potential benefits of various actions, and recommend alternatives for achieving various objectives. In addition, each national forest unit must have, by 1985, a land and resource management plan¹² that establishes forest management systems and resource harvesting levels, based on coordinated uses of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.

While Congress was developing legislation for the management and development of public land resources, it also moved ahead on preserving and enhancing noneconomic values of the public lands. The Wilderness Act of 1964¹³ established the National Wilderness Preservation System, to be composed of federal lands legislatively designated as "wilderness areas" to preserve and protect their natural condition for the present and future use of the public.¹⁴ On wilderness lands, virtually no consumptive activity of any kind would be permitted. The system would, however, continue to be managed for this purpose by the agency that previously had jurisdiction over them.

Roadless Area Review and Evaluation (RARE)

The Wilderness Act required the Secretary of Agriculture to determine whether any "primitive"¹⁵ areas within the national forests were suitable for formal inclusion within the wilderness system.¹⁶ In response to this statutory mandate, the Service commenced the roadless area review and evaluation to provide a comprehensive and systematic method of inventorying Forest Service lands in order to assess their suitability as wilderness. RARE I began in 1972, and at its completion in October 1973, the Service had inventoried 56 million acres, proposing 12.3 million acres for formal wilderness designation. No environmental impact statement was prepared, however, and when the Forest Service attempted to sell timber on land that had been classified as nonwilderness, the sales were enjoined pending preparation of an EIS for each such classification.¹⁷

Passage of the National Forest Management Act in 1976 revitalized the issue of national forest wilderness areas, and RARE II commenced in June 1977. As with the earlier effort, the purpose was to inventory lands that met the minimum criteria for wilderness consideration under the Wilderness Act, i.e., that were "fully capable of providing wilderness benefits to the public." RARE II thus encompassed areas that had experienced past timber harvesting, mining, range improvements, or recreation site construction if the passage of time had allowed the imprint of such activities to fade.¹⁸ And as with RARE I, the intent of RARE II was to speed the process of wilderness allocation and to open remaining roadless areas to development.¹⁹

The final RARE II inventory lists 2,919 roadless, undeveloped areas containing approximately 62 million acres²⁰ of the national forests and national grasslands.Although areas in 39 states are included, the vast majority are located in the West, including Alaska.²¹ The RARE II's final environmental impact statement (FEIS), which contained the Forest Service's wilderness recommendations, was released to the public on January 4, 1979. The Service proposed that a total of 15.1 million acres be added to the National Wilderness Preservation System, 36.2 million acres be allocated to nonwilderness uses, and 10.8 million acres be placed in a "further planning" category. Once an area has been added to the wilderness system, it would not be available for timber harvesting, road construction, or other activities that reduced the wilderness potential of the area. Nonwilderness areas, on the other hand, would be available for logging, intensive grazing, recreation site development, motor vehicle recreation, and other such activities that adversely affect the wilderness characteristics of the areas in accordance with multiple-use, sustained-yield forest management policy. The "further planning" areas would be considered for all uses, including wilderness, during later development of land and resource management plans. Development activities [10 ELR 10098] that might reduce wilderness potential would be prohibited, however.²²

On April 16, 1979, President Carter forwarded to Congress his recommendation²³ regarding designations, which encompassed 15.4 million acres and essentially adhered to the Forest Service's proposals, with some additions. An act of Congress is required for the President's recommended areas to become part of the wilderness system.²⁴ Congressional action on the nonwilderness and further-planning allocations is not required, however, as those lands remain subject to the administration of the Forest Service.

California Challenge to RARE II

There was consternation among conservationists when the Forest Service unveiled its voluminous FEIS for RARE II, and it became apparent that the Service had recommended less than a quarter of its wilderness-potential lands for inclusion in the Wilderness Preservation System. Only one lawsuit was actually filed, however. On July 25, 1979, the State of California sued the Secretary of Agriculture in the federal district court in Sacramento²⁵ challenging many of the nonwilderness classifications within its borders on the grounds that the Forest Service had violated the requirements of NEPA. Subsequently, several timber companies and associations, four California counties, and a number of environmental groups joined the lawsuit as intervening plaintiffs and defendants.²⁶ On January 8, 1980, Judge Karlton held, in California v. Bergland,²⁷ that the FEIS failed to comply with NEPA in that, among other things, it did not adequately address the impact of the nonwilderness classification on the wilderness qualities of the affected lands. As a result, the court enjoined the Forest Service from developing any of the disputed 46 RARE II areas in California designated as nonwilderness, comprising approximately 900,000 acres, until the wilderness values of the areas were examined in accordance with NEPA.²⁸

The first major dispute between the parties concerned the detail of environmental analysis required in the impact statement. Plaintiffs argued for an exhaustive treatment of the environmental consequences of nonwilderness designations on each specific unit. Defendants characterized RARE II as a large-scale planning document which appropriately assumed a programmatic format, and urged that site-specific environmental assessment could be deferred by the agency, at its discretion, until individual forest management plans were prepared.

The court recognized that under NEPA programmatic EISs need not consider site-specific impacts when either the program being considered will not have site-specific impacts or when later EISs will consider such effects before they occur. It was skeptical, however, that the RARE II process could properly be viewed as solely a policy decision. The court noted that the nonwilderness designations would permit development to occur on those lands and erode their wilderness characteristics, making them potentially ineligible for preservation as wilderness at a later date.²⁹ It followed then that the designations themselves were "tantamount" to a decision to engage in development activities on the individual areas and, the court concluded, required site-specific analysis under NEPA.³⁰

A preliminary issue, however, concerned the proper time for such an environmental analysis of the nonwilderness designations. Judge Karlton found that RARE II committed the Forest Service to a specific management direction with respect to the specific nonwilderness areas and precluded the later assessment of wilderness values on these lands.³¹ He thus ruled that the Forest Service was required to assess the site-specific environmental consequences of the nonwilderness designations in the RARE II FEIS.³²

The court found that the Forest Service's document failed to fulfill this requirement by not taking the necessary "hard look" at environmental impacts. The FEIS neither fully considered the present wilderness values of each area nor disclosed what the effects would be of turning potential wilderness over to development. The document failed to describe each area's wilderness values individually, relying instead on inadequate computer printouts,³³ while providing a detailed assessment of each area's resource deposits. The court brushed aside the defense that the Forest Service could not be sure of future development and could therefore not evaluate with certainty future environmental effects. The court noted that since nonwilderness areas were selected because of resource potential, the Service would know and the FEIS could indicate what impacts would result from developing those particular resources. Furthermore, by describing wilderness values only superficially while recounting at length the resources potentially affected, the court found an "unexplained and thus unjustified bias that preselects against wilderness."

Moving from the site-specific analysis to a review of the programmatic decision, Judge Karlton found serious [10 ELR 10099] deficiencies with the FEIS's consideration of alternatives.³⁴ The court concluded that the plaintiffs had met their burden of demonstrating that the Forest Service had not considered or even discussed a reasonable set of alternatives. Ten alternatives were described, ranging from allocating all RARE II areas to nonwilderness to designating all areas as wilderness, with no action (development decisions to be made through the forest management plans) as an additional option. Aside from the one alternative placing all RARE II lands in the wilderness system, however, not one of the remaining alternatives would have placed more than 34 percent of the inventoried lands in the wilderness category. It was, in essence, a choice between all wilderness and a group of options varying from zero to 34 percent wilderness. Furthermore, the criteria used by the agency to develop the skewed set of alternatives were never justified. Since the RARE II program made site-specific decisions that would preclude future consideration of wilderness allocation in the designated nonwilderness areas, the court ruled that a site-specific discussion of alternatives was required but found it totally lacking in the FEIS.

The final procedural failure of the FEIS concerned the lack of full opportunity for public comment and the inadequate responses to comments. In the first place, the alternative finally selected by the Forest Service in the FEIS was not identified in the draft EIS, and there was thus no opportunity for focused comment. Second, rather than responding specifically to site-specific comments, the Service simply tabulated the responses. Third and most blatant in Judge Karlton's view, was the weight ultimately assigned to the various points of view in public comments. Although the Service had stated in the draft EIS that it would be influenced less by petitions with many signatures than by substantive personal letters, after it received thousands of petitions favoring nonwilderness, it changed the ground rules to give greater weight to the numbers of signatures than to the substance of comments. This was found by the court to be manifestly unfair and thus a violation of NEPA.

The court noted that its role was not to determine the correctness of the Forest Service's decisions but merely to ensure that NEPA's procedures were followed. Injunctive relief was nonetheless justified in this case, Judge Karlton emphasized, because "the methodological inadequacies of the RARE II EIS are not mere legal nitpicking, but go to the heart of the NEPA process."³⁵ In the court's view, two irreparable injuries flowed from the Service's failure to comply with NEPA. First, development that might destroy wilderness characteristics could soon be authorized, in the areas designated as nonwilderness, without full consideration of the impact upon wilderness values and of possible alternatives for preserving them. Second, Congress would be denied an opportunity to consider for inclusion within the Wilderness Preservation System areas designated as nonwilderness. Judge Karlton concluded that a balancing of the equities was not appropriate in this case where a substantial NEPA violation had been shown. In his view, issuance of an injunction against altering the wilderness character of the areas classified as nonwilderness

simply requires the Forest Service to fully consider wilderness values prior to developing any specific RARE II areas in dispute. I do not dictate what decision as to use or development the Forest Service must reach. That decision is committed to the Forest Service's discretion. What I do order is that the Forest Service must take the "hard look" it has thus far failed to take prior to acting in any area.³⁶

He thus ordered the Forest Service to conduct what amounts to "RARE III" with respect to the disputed tracts and not to take any further action regarding these areas until such a review is completed.

Impact of Decision

Despite its devastating examination of the deficiencies of the RARE II FEIS, Judge Karlton's decision directly affects only the 46 disputed tracts in California. The Forest Service is now treating those lands as if they had been designated for "further planning," which effectively freezes the status quo.³⁷ Their future may ultimately be determined by the forest management plans to be prepared, by 1985, in accordance with § 6 of the National Forest Management Act, despite Judge Karlton's order that a new wilderness review must be conducted even before the management plans are prepared.³⁸ The federal government has appealed the ruling to the Ninth Circuit, although a decision could be at least a year away.

The decision in California v. Bergland is a through and scholarly application of NEPA. In particular, its conclusion that a programmatic EIS must provide detailed site-specific analyses if the overall decision commits the agency to an irreversible course of action for specific resources is solidly grounded in the case law.³⁹ In permitting the Forest Service to use a single environmental impact statement to evaluate thousands of individually significant actions, the court accorded deference to the agency's choices of operating procedures despite the near impossibility of the task. But "[w]hile the scope of the project is committed to the sound discretion of the agency, if its choice of scope results in an inability to comply with its statutory mandate [to consider site-specific effects], that exercise of discretion must be considered unsound."⁴⁰

Judge Karlton's second major ruling was that the Forest Service had not adequately considered the full range of possible alternatives. The fact that all of the RARE II inventory lands by definition met the minimum criteria for wilderness designation deepened Judge Karlton's dismay over the fact that no alternative was [10 ELR 10100] even considered that would have put more than 34 percent and less than 100 percent of the inventoried lands in the wilderness system. This failure to explore the feasibility of intermediate ranges was an obvious violation of the rule of reason and reinforced the court's basic feeling that the agency had failed to take the "hard look" required by NEPA. Finally, the court's isolation of the Service's failure to follow proper procedures for soliciting and evaluating public comments puts deserved emphasis on this critical but often overlooked aspect of the NEPA process. Full disclosure at this stage is necessary to assure that those who make the final decision take into account concerns from outside the agency's circle of decision makers.

The comprehensive detail with which Judge Karlton analyzed the RARE II FEIS and his emphatic conclusion that it failed to comply with NEPA would seem to provide strong support for lawsuits raising similar claims against nonwilderness classifications in other states. Environmental groups may be reluctant to pursue challenges in court, however, for fear of adverse public reaction. Indeed, some may feel that the more effective arena for wilderness protection of the RARE II lands is instead in Congress, where state delegations may be persuaded to work toward expanding specific wilderness designations.⁴¹ Thus, the only other RARE II lawsuit raises the essentially unrelated claim that six tracts in North Carolina designated for "further planning" be recommended to Congress for inclusion within the wilderness system.⁴² As a result, in all states other than California, the Forest Service will proceed to open its RARE II nonwilderness lands for multiple-use, sustained-yield development without further consideration of wilderness values, although no timetable has been established.

Consequently, the scene of battle over RARE II and wilderness has now shifted to Capitol Hill. Rather than adopting President Carter's proposal for wilderness allocations in 35 states in one massive piece of legislation, Congress has decided to deal with the matter on a state-by-state basis.⁴³ This procedure will necessarily stretch out the final wilderness decisions for several years, a dismaying prospect for the lumber industry, which would prefer additional Forest Service land opened for timber sales quickly. The controversy between wilderness and development interests has crystallized into a battle over language in the wilderness bills to "release" all RARE II lands not congressionally allocated to wilderness by a certain time for multiple-use, sustained-yield development.

Late in 1979, Rep. Foley (D-Wash.) introduced H.R. 6070,⁴⁴ under which all lands recommended for wilderness but not included in the National Wilderness Preservation System by Congress before January 1, 1984 would automatically lapse into nonwilderness status, and all "further planning" areas not designated wilderness by January 1, 1987 or recommended for inclusion in the wilderness system by the Secretary of Agriculture would be treated as nonwilderness. In addition, all lands not recommended for wilderness or identified for further planning would, notwithstanding any other law, continue to be managed under the multiple-use, sustained-yield concept. This would be a congressional affirmation of Forest Service's RARE II policy and would essentially constitute a legislative reversal of the California v. Bergland decision as well as a bar against further NEPA challenges. Although Rep. Foley has offered a substitute bill that would designate 12.4 million acres of wilderness as recommended by President Carter while containing the same "release" language,⁴⁵ Congress does not appear to be favorably disposed toward the idea.⁴⁶ The "release" concept failed its initial test when the House passed a bill establishing certain wilderness areas in Idaho without any "release" language.⁴⁷

Conclusion

The nation's public lands contain vast stores of valuable resources as well as spectacular wilderness. Given this country's seemingly insatiable appetite for these resources, the task of determining which lands to develop and which to preserve is at once difficult and politically charged. And given the resulting pressure upon the federal land managers,⁴⁸ it is not surprising that Judge Karlton found pervasive pro-development bias throughout the RARE II impact statement.⁴⁹ Indeed, President Carter himself directed the Department of Agriculture a year ago to increase timber harvests from national forests by departing from the current nondeclining, even-flow policy in favor of more intense cutting in mature timber stands.⁵⁰ Market conditions may slow harvesting in the immediate future as the current economic recession and the consequent falloff in housing construction run their course. Regardless, California v. Bergland stands as an important, although isolated, application of NEPA to assure that the rush to resource development does not unthinkingly destroy important wilderness values in the nation's forests.

1. In December 1978, in the face of congressional inability to decide how much of the federal lands in Alaska should be protected from development, President Carter set aside 56 million acres in national monuments. See Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands, 8 ELR 10245 (1978). Two years later, Congress is still trying to resolve its differences. The House has passed a strong preservation bill, H.R. 39, but the Senate Energy Committee reported a much weaker version of H.R. 39. Floor debate on the Senate bill is scheduled for the end of July.

2. The aim of the "sagebrush rebellion" is to give the western states control over developing the resources on the federally owned public lands by means of enactments in the legislatures authorizing the states to assume ownership of the federal lands. The "rebellion" has generated more noise than action.

3. PUBLIC LAND LAW REVIEW COMMISSION, ONE THIRD OF THE NATION'S LAND 19-23 (1970).

4. California v. Bergland, 10 ELR 20098 (E.D. Cal. Jan. 8, 1980).

5. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

6. 16 U.S.C. §§ 471, 475, ELR STAT. & REG. 41405.

7. 16 U.S.C. §§ 528-531, ELR STAT. & REG. 41406.

8. (a) "Multiple use" means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American prople; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.

(b) "Sustained yield of the several products and services" means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.

16 U.S.C. § 531, ELR STAT. & REG. 41406.(ENDFOOT)

9. 16 U.S.C. §§ 1600-1676, ELR STAT. & REG. 14133, amending the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the Renewable Resources Extension Act of 1978 and the Forest and Rangeland Renewable Resources Research Act of 1978.

10. 16 U.S.C. §§ 1600(3), 1600(6), 1601(d)(1), 1602, 1607, 1609(a), ELR STAT. & REG. 41435-39.

11. 16 U.S.C. § 1602, ELR STAT. & REG. 41436.

12. 16 U.S.C. § 1604, ELR STAT. & REG. 41436. Regulations for preparation of these plans were promulgated last year. 44 Fed. Reg. 53928 (Sept. 17, 1979), to be codified at 36 C.F.R. pt. 219.

13. 16 U.S.C. §§ 1131-1136, ELR STAT. & REG. 41412.

14. … A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

16 U.S.C. § 1131(c), ELR STAT. & REG. 41412.

15. "Primitive" areas are essentially roadless and undeveloped. 36 C.F.R. § 293.17.

16. 16 U.S.C. § 1132(b), ELR STAT. & REG. 41412. The Forest Service's regulations for its wilderness areas are found at 36 C.F.R. pt. 293. Prior to RARE II, 15.2 million acres of Forest Service lands were managed as "wilderness." United States Department of Agriculture, Forest Service, Final Environmental Statement, Roadless Area Review and Evaluation (RARE II) 5 (Jan. 1979) (hereinafter cited as FEIS).

17. Sierra Club v. Butz, 3 ELR 20071 (N.D. Cal. Aug. 29, 1972). See also Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir.), rev'g 359 F. Supp. 1178, 3 ELR 20827 (D. Wyo. 1973).

18. FEIS, supra note 16, at 6.

19. Substantial harvesting of the timber in RARE II lands could supply four percent of the nation's needs. FEIS, supra note 16, at 15. Although the Forest Service is excluded from considering energy and mineral resources in its management decisions by the original national forest legislation, 16 U.S.C. § 475, ELR STAT. & REG. 41405, and by the National Forest Management Act, 16 U.S.C. § 1600, ELR STAT. & REG. 41435, it nonetheless placed great emphasis on energy and mineral resources in evaluating the RARE II lands. FEIS, supra note 16, at 17.

20. FEIS, supra note 16, at 11.

21. There are no RARE II areas in Connecticut, Delaware, Iowa, Kansas, Maine, Maryland, Massachusetts, New Jersey, New York, Ohio, and Rhode Island.

22. See FEIS, supra note 16, at 9 for a fuller description of the three classifications.

23. H.R. DOC. NO. 119, 96th Cong., 1st Sess. (May 4, 1979).

24. 16 U.S.C. § 1132(b), ELR STAT. & REG. 41413.

25. California v. Bergland, No. Civ. S-79-523 (E.D. Cal., complaint filed July 25, 1979). For a summary of the complaint and accompanying memorandum, see ELR PEND. LIT. 65653.

26. California v. Bergland, 9 ELR 20795 (E.D. Cal. Sept. 27, 1979).

27. 10 ELR 20098 (E.D. Cal. Jan. 8, 1980).

28. Judge Karlton specifically severed the "further planning" and "wilderness" classifications from the scope of his opinion. Id. at 20100 nn. 6 & 7.

29. Id. at 20102.

30. Citing Cady v. Morton, 527 F.2d 786, 5 ELR 20445 (9th Cir. 1975); Minnesota PIRG v. Butz, 498 F.2d 1314, 4 ELR 20700 (8th Cir. 1974); Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973).

31. 10 ELR at 20101. See also Forest Service planning regulations, 44 Fed. Reg. 53988 (Sept. 17, 1979), to be codified at 36 C.F.R. § 219.12(e).

32. Judge Karlton found that last year's decision in Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 9 ELR 20268 (9th Cir. 1979), squarely controlled on this point.

33. The Forest Service used a computer scoring system, the wilderness attribute rating system (WARS), printouts from which were not widely available. In addition, the court found that WARS simply failed to consider each area's inherent wilderness values. As an example, Judge Karlton hypothesized that under WARS the Grand Canyon might be described as "canyon with river, little vegetation." 10 ELR at 20106 n.22.

34. See NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010. The NEPA regulations consider the discussion of alternatives to be "the heart of the environmental impact statement." 40 C.F.R. § 1502.14, ELR STAT. & REG. 46022.

35. 10 ELR at 20109.

36. Id. at 20013.

37. A decision by the Department of Agriculture prohibits development that would harm the wilderness values of "further planning" lands. In re Polk Springs Salvage Sale, 10 ELR 30010 (USDA Dec. 5, 1979).

38. This directive is contained in the next to last sentence of the judge's order. 10 ELR at 20113. In essence, he is calling for a "RARE III" on the 46 California tracts in dispute.

39. See Environmental defense Fund, Inc. v. Andrus, 596 F.2d 848, 9 ELR 20268 (9th Cir. 1979); accord, Environmental Defense Fund, Inc. v. Andrus, 10 ELR 20252 (10th Cir. 1980) (programmatic EIS can comply with NEPA if site-specific impacts are described in sufficient detail).

40. 10 ELR at 20106.

41. Judge Karlton noted "that there is sentiment in Congress to expand the number of areas designated for wilderness to include areas rejected by RARE II." Id. at 20106 n.24.

42. North Carolina Wildlife Federation, Inc. v. Bergland, No. A-C-80-1 (W.D.N.C., complaint filed Jan. 3, 1980).

43. See S. 2009 (River of No Return Wilderness in Idaho), S. 2031 (Oregon), S. 2123 (Colorado), H.R. 5487 (Colorado and South Dakota), H.R. 5578 (California), and H.R. 5586 (California), 96th Cong., 1st Sess. (1979).

44. 96th Cong., 1st Sess. (1979).

45. H.R. 6607, 96th Cong., 2d Sess. (1980).

46. The Charter Administration does not favor the idea either. Although Agriculture Assistant Secretary for Conservation Rupert Cutler has indicated some "personal" support for the "release" concept in state and regional national forest wilderness bills, the Administration's position is that "release is not necessary." 5 PUBLIC LAND NEWS, No. 6, at 1 (Mar. 20, 1980), No. 9, at 5 (May 1, 1980).

47. S. 2009, 96th Cong., 1st Sess. (1979). The bill, which creates the River of No Return Wilderness, passed the Senate in November 1979, also without "release" language.

48. The Bureau of Land Management (BLM) is also carrying out an inventory of its wilderness-potential lands. Although the review is not yet complete, out of 173.7 million acres of BLM-managed land subject to possible inclusion in the inventory, only 10.7 million acres are certain to make the final inventory, from which BLM will make wilderness recommendations. 5 PUBLIC LAND NEWS, NO. 8, at 6 (Apr. 17, 1980).

49. See, e.g., 10 ELR at 20106 ("the WARS ratings introduce an unexplained and thus unjustified bias that preselects against wilderness ….") and 20107 n.26 ("The emphasis on resource exploitation that pervades the environmental statement made [the FEIS's] rejection inevitable.").

50. Memorandum, President Carter to Secretary of Agriculture (June 12, 1979), copy on file at ELR.