10th U.S. Circuit Court vs. Colorado Roadless Rule
The ruling by the 10th U.S. Circuit Court of Appeals upholding the 2001 Roadless Conservation Rule has a special relevance for Colorado. As reported by The Daily Sentinel’s Dennis Webb, the “recent federal appeals court ruling upholding a 2001 rule protecting national forest roadless areas is raising questions about the status of oil and gas leases issued in such areas over the last decade in Colorado and other states.”
This important decision comes after three successive Colorado governors have spent years attempting to complete an optional state plan to conserve and protect Colorado’s remaining national forest roadless areas.
Colorado’s petition took advantage of the Bush administration’s efforts to roll back the 2001 Roadless Rule prohibitions against building new roads in undeveloped forests and grasslands meeting roadless criteria.
The Bush rules required states to petition the Secretary of Agriculture with a plan for managing federal roadless areas within their borders. Most Western states either joined litigation against the Bush rollback of roadless area protections or hunkered down to await a decision from the courts before moving to implement the Bush plan.
One of only two states — the other being Idaho — to opt out of the 2001 Roadless Rule, Colorado justified its go-it-alone position as an “insurance policy” in case the federal protections went away.
“The (10th Circuit) ruling undermines the basic tenant of the Colorado Roadless rule being necessary as an insurance policy,” said Suzanne Jones, regional director of the Wilderness Society in Denver. “It is no longer necessary.”
By the time the Colorado petition was submitted, the 2001 Roadless Rule had been reinstated in part of the West by a 9th Circuit federal judge in California, while a federal judge in Wyoming — in the 10th Circuit — had overturned the 2001 rule. The state elected to continue its plan to opt out of federal protections in favor of its own industry-friendly plan. That plan is now threatened by the 10th Circuit ruling.
According to The Wilderness Society’s Steve Smith, several exemptions in the Colorado plan make it weaker than the 2001 rule. These include a controversial provision to retroactively validate oil and gas leases issued in roadless areas since January 2001. Without federal regulation, energy companies will build roads and install pipelines and other infrastructure in roadless areas that would be protected by the Clinton rules.
The Colorado rule also establishes an “upper tier” category for roadless areas that would be granted similar protections as those in the federal rules. However, the “upper tier” status would be limited to only about 12 percent of Colorado’s inventoried wilderness areas, thousands of acres less than the federal rule would protect.
State exemptions would also allow road building for installing ventilation shafts for the expansion of underground coal mining. Inventoried roadless areas that overlap potential areas for ski operation expansion would be removed from the roadless inventory, according to Smith.
Conservation, environmental, sporting and recreational groups are urging the state to drop its petition. As Jones said, “They don’t have to do anything. They could just say, ‘You know what? Game over. We have the federal rule in place.’ Certainly from a legally defensible position, it’s much simpler for them to now just simply enforce the (federal) rule.”
Unfortunately, neither the Forest Service nor the state seems prepared to take that logical step.
“This ruling in the 10th Circuit does not change the process we’re going through,” Jim Pena, associate deputy chief for the national forest system in Washington, D.C. told a reporter. “We’re not just automatically going to stop considering the Colorado rule. We’re going to follow through on some sort of decision.”
State officials also reject a return to the protections of the 2001 Roadless Rule. Mike King, executive director of the Colorado Department of Natural Resources, pointed out that the 10th Circuit ruling does not rule out continued legal challenges to the federal roadless rule. These challenges, he says, “could continue to create uncertainty,” justifying the need for a Colorado specific rule.
The threat of further litigation of the 2001 Roadless Rule could become a self-fulfilling prophecy if Colorado continues its pursuit of a state-based solution to federal roadless area management.
Colorado should not settle for second-class protection for its first class roadless areas.
Gov. John Hickenlooper should withdraw the state’s roadless petition and cooperate with the Forest Service to develop first-class protections for all of Colorado’s first class roadless areas.