For years, the U.S. Forest Service has been closing thousands of miles of motorized trails in Arizona and more throughout the American Southwest.
A significant number of the road closures were imposed ostensibly to maintain forest health, reduce wildfire, close access to sensitive sites, limit erosion or confine the public to better-maintained trails and roads. The result has been the exclusion of the taxpaying public from huge swaths of public lands. Opponents argue that these road restrictions and closures, which may have based on noble intentions to protect the environment from abuse, have gone way overboard and are imposed on a whim, perhaps to reduce the need for rangers to police certain areas, spend staff time or money maintaining the roads or protect small areas within a large area.
There is also the pressure placed on local forest rangers by private property owners abutting or surrounded by public lands, who want to restrict general public access to “their roads” and “their lands,” which they see as part of their private domain.
Ranchers, who use allotments on public lands to graze their privately-owned cattle herds, are often the loudest voices calling for road closures on public lands.
Defense of these road closures has relied largely on the U.S. Supreme Court’s 1984 ruling in Chevron v. Natural Resources Defense Council, which stated that if legislation passed by Congress is ambiguous or leaves specific rulemaking up to a federal administrative agency in the executive branch, courts must defer to that regulatory agency’s interpretation if the interpretation is “reasonable.”
This “Chevron deference” means that Congress can pass vague rules and leave it up to federal agencies to work out the details. While that seems like a pragmatic workaround, considering the millions of regulations the government imposes on everything from the ingredients of toothpaste to water pipe equipment or when to close a forest road, it also means that these regulations can — and often do — change every four years when the tenant of the White House is from a different political party. Through Chevron, Congress also surrendered to the president’s administration, appointees and staff — who are unelected — its constitutional power to legislate regulations.
Still, Congress has often intentionally passed ambiguous statutes, knowing that subject-area experts and specialists would later define the technical details of the general regulations, and judges were unable to modify these rules even if they proved burdensome, illogical or seemingly arbitrary.
However, in Loper Bright v. Raimondo, a case involving private fishing boat owners paying to have federal monitors from the National Marine Fisheries Service aboard, SCOTUS overruled Chevron deference on June 28, ending the 30-year-old practice.
Ending Chevron deference doesn’t negate preexisting regulations made due to Chevron, nor does it compel federal agencies to revisit every regulatory decision made with Chevron in mind. It only eliminates the application of Chevron in the future, but all previous Chevron deference-related decisions or regulations will remain in effect and lawful, per the court’s opinion, except those currently in litigation.
The court’s opinion specifically states that Chevron deference is still the existing law for past decisions, just not those in the future: “Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to ‘ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion’ … is for us to leave Chevron behind. By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis despite our change in interpretive methodology … Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided’ … That is not enough to justify overruling a statutory precedent.”
Legal scholars summarized it better as: “Chevron is dead, long live Chevron.”
So the ruling won’t immediately upend all public road closures; however, it will preclude the USFS from using Chevron to close new ones, and when forest travel management plans are renewed or updated, the public can successfully argue for closed roads to be reopened if Chevron had been used to justify closing them in the first place.
The ruling puts the onus back on Congress to be far more explicit when passing legislation rather than using experts from the executive branch as a crutch to handle regulations lawmakers can’t be bothered to write. It also gives courts, under the weaker 1944 Skidmore deference, the ability to rule on cases when the law is still too vague.
