Roadless petition heads to Supreme CourtWritten by Christy Martinez
Governor Matt Mead made the decision after the 10th Circuit Court of Appeals issued an order denying Wyoming’s petition for a rehearing en banc in the Roadless Rule case. That decision came on Feb. 16 and reaffirmed the October 2011 ruling to uphold the 2001 Roadless Area Conservation Rule.
In their October ruling, the 10th Circuit overturned lower courts that said the rule violated other federal environmental regulations, such as the Wilderness Act and the National Environmental Policy Act. The rule was originally instated by the Clinton administration in 2001 and was replaced by the Bush administration in 2005.
“The Roadless Rule has seriously impacted Wyoming, our people, our industries and the health of our forests. Given the consequences it is important to ask the Supreme Court to hear this case,” said Mead of the action.
Mead’s Natural Resources Policy Analyst Rebekah Fitzgerald says the Wyoming Attorney General’s Office will prepare the petition for the Supreme Court.
“Other states can’t join our petition, but they can file an amicus brief,” she notes of other states that are in a position similar to Wyoming’s. “We’ll look for other states to join with us.”
Wyoming will petition the U.S. Supreme Court for a writ of certiorari, and four Supreme Court Justices must agree to hear the case for it to proceed. Wyoming has 90 days to submit the petition, and Fitzgerald says they will send it as soon as possible, after which it will go through the review by the Supreme Court, which has an unknown timeframe.
“When this Roadless Rule was put in place, the concerns of the people of Wyoming about the significant adverse effects of the rule were ignored. This petition is a way to make our voice heard,” said Mead.
State roadless settlements
An alternative to the federal roadless rule is a state version of the rule, which would have to be approved at the federal level. Fitzgerald says Mead has asked his staff to pursue that avenue, but she says there’s not yet any specific information as to what that would look like.
“There is an option for states to petition for a roadless settlement for their own state,” says Wyoming State Forester Bill Crapser. “Idaho was successful in doing that, and Colorado has attempted it, but hasn’t yet been able to get one implemented.”
Crapser says the state settlement would involve a petition to the Secretary of Agriculture and a large collaborative group that would go through a reanalysis of the roadless rule and come up with a proposed plan that would have to be approved.
“It’s a several-year process, and the Governor’s office would lead the process, with State Forestry supporting as needed,” says Crapser.
Managing with roadless
The Roadless Rule limits activity on three million acres of national forest in Wyoming.
“Currently the state has some specific projects where the Forest Service might allow us to go in and treat some roadless areas to improve forest health,” says Fitzgerald, noting that they’re waiting for approval from the Secretary of Agriculture. “We have a couple areas pending in Lincoln and Uinta counties, and the Governor and his office are trying to work to get those areas approved to go forward with forest health work.”
“So many of our forest lands are on federal lands,” says Crapser. “With the mountain pine beetle problem, roadless areas limit the Forest Service’s ability to do any management on those lands, which in turn impacts the surrounding private and state lands.”
“The purpose of the whole petition is to take a better analysis to see what’s really out there on federal forest lands,” says Crapser.
Litigation history follows Roadless Rule
On Jan.12, 2001, after nearly three years of analysis, the U.S. Forest Service adopted the Roadless Area Conservation Rule to conserve 58.5 million acres of national forests and grasslands from most logging and road construction.
“In 2001, before they went out of office, the Clinton administration put a roadless bill in place that tied up any currently inventoried roadless areas,” says Wyoming State Forester Bill Crapser. “The problem was that the inventory was really bad, and in many of the forests, Bridger Teton, for example, a lot of land was classified as roadless that actually had roads in it.”
Crapser adds, “When the roadless analyses were done, the Forest Service was under a really short timeline, and many areas of which they were unsure they just decided to call roadless.”
When he entered office, President George W. Bush modified these regulations to allow a more autonomous approach, wherein state governments would be permitted to designate their own roadless areas.
“The Bush administration had another roadless rule that was a lot easier, and allowed for changing the maps, but that got thrown out,” says Crapser. “The State of Wyoming sued the federal government over the Roadless Rule, with the contention that the forest plan should deal with roadless areas on a forest by forest basis.”
However, on Sept. 20, 2006, U.S. District Judge Elizabeth Laporte ruled against the Bush administration’s plan to reverse the Clinton-era regulations, saying that the Bush plan “established a new regime in which management of roadless areas within the national forests would, for the first time, vary not just forest by forest but state by state. This new approach raises a substantial question about the rule’s potential effect on the environment.”
On Nov. 29, 2006, Judge Laporte issued an order to ban road construction on 327 oil and gas leases issued by the Bush administration since January 2001, most of them in Colorado, Utah and North Dakota – areas that were already protected before the Bush administration’s reversal of the 2001 law.
In 2011, a federal appeals court in Denver, Colo. upheld the federal government’s authority to prohibit western states from building roads on public land. The unanimous ruling, issued by a three-judge panel, said a lower court had erred in finding for the State of Wyoming, the plaintiff in the case, and ordered that the rule be put into force nationally.
Wyoming had argued that preventing road construction into or on national forests or other lands is a de facto wilderness designation, something that only Congress can do, and that the Forest Service had exceeded its own authority in trying to put the system into effect.
“The Forest Service did not usurp Congressional authority because the roadless rule did not establish de facto wilderness,” the court said in a decision written by Judge Jerome A. Holmes.