Supreme Court rejects appeal of roadless rule

Oct 5, 2012

As the Supreme Court begins its 2012-2013 term, it appears that a decade-long legal battle over the management of undeveloped areas of the nation’s national forests may have hit the end of the road.

A legal appeal of the Clinton-era Roadless Area Conservation Rule (or “roadless rule”) by the state of Wyoming and the Colorado Mining Association was rejected Oct. 1 by the court. The case, which has been closely watched for years by natural resource users and environmental preservationists alike, challenges a regulation written in the last days of the Clinton admin istration

that prohibits road construction and timber harvest on 58.5 million acres of inventoried roadless areas on National Forest System (NFS) lands.

The rule effectively eliminates any potential for commercial logging, oil, gas or mineral extraction on the 58.5 million acres of inventoried roadless areas, a landmass that represents approximately one third of all NFS lands. When roadless areas are combined with the 36 million acres of existing wilderness in the NFS, over 94 million acres of national forest would be closed to natural resource develop ment,

or just under half of the entire 193 million acres of national forests nationwide.

The rule is unlikely to directly affect grazing in the near term. Grazing in designated roadless areas will continue under the rule, and motorized access on any remaining open roads within these areas is expected to be allowed. However, development of new roads will be prohibited.

Environmental preservationists hailed the decision as a major victory of the public interest over natural resource industries. In a press release, The Wilderness Society President Jamie Williams heralded the development as “good news for the millions of Americans who have called for safeguarding our nation’s 58 million acres of pristine roadless forest areas for current and future generations.”

Yet in western states, where the federal government often owns over 50 percent of the land base, leaders were concerned that the decision will negatively impact the rural communities that depend on natural resource extraction, which helps to fund rural schools and road maintenance as well as providing jobs. In a written statement, Wyoming Gov. Matt Mead pointed out that “[t]he Roadless Rule … places restrictions on three million acres of National Forests in Wyoming, impacting important aspects of our economy.”

“While I am disappointed in the decision, I am ready to move on, continuing to work with the Forest Service about these concerns,” Mead stated.

The Supreme Court’s refusal to review the appeal caps over 10 years of legal tug-o-war between states and natural resource users, who have contested the rule, and the Forest Service and environmental groups, which have sought to uphold it. The rule was vacated twice in Wyoming Federal District Court by Judge Clarence Brimmer, once in 2003 and subsequently in 2008, following its reinstatement by a different federal court. Both times, Brimmer ruled that the roadless rule violated the Wilderness Act by administratively creating de facto wilderness.

Interveners on behalf of the Forest Service appealed Brimmer’s decision in the Denver-based 10th Circuit Court of Appeals, which reversed Brimmer’s ruling in October 2011. By denying Wyoming’s petition for review of that decision a place on the docket, the Supreme Court has effectively agreed to let the 10th Circuit’s decision stand.

The state of Alaska is independently appealing the roadless rule in the Federal District Court in Washington, D.C. However, the Supreme Court’s refusal to hear Wyoming’s appeal is understood by those familiar with the courts to indicate other appeals will be unsuccessful.

Not all states, however, will have to live with the controversial regulation. During the Bush administration, Idaho and Colorado broke with the pack of states opposing the rule and took the opportunity to develop their own state-based roadless rules in its stead. These plans were approved in 2008 and 2012, respectively.

Environmental groups have complained that the Colorado and Idaho roadless rules are less protective than the national rule by allowing for natural resource use under certain circumstances.

The Idaho rule was unsuccessfully challenged by environmental interests in 2011.

There is little question that other administrative departments tasked with managing federal lands will have taken careful note of the Supreme Court’s apparent blessing of the roadless rule.

In 2010, Secretary of Interior Ken Salazar attempted to create a similar classification—Wildlands—for lands deemed to be potential candidates for wilderness through a secretarial order. Like the roadless rule, the Wildlands policy proved highly unpopular with many western congressional representatives, who successfully managed to defund the initiative through an appropriations bill last year. The state of Utah has also filed suit to prevent the policy’s implementation.

The Wildlands classification bore some significant similarities to the “inventoried roadless areas” or IRAs protected under the roadless rule, in particular, prohibitions on natural resource extraction. But whereas the roadless rule technically only prohibits road building and timber extraction, excluding other forms of extraction by eliminating road access, the Wildlands order was more explicit in its prohibitions.

Since its defunding by Congress, Salazar has agreed to take the Wildlands policy “off the table,” although he has not rescinded Secretarial Order 3310, which brought the policy into being.

However, if Salazar continues to seek a new level of protection on multiple use lands, holding the Wildlands policy in the wings may not be necessary. With the apparent legal success of the roadless rule, it is alltogether conceivable that the Forest Service has provided an easily repeatable recipe for Salazar to follow. — Andy Rieber, WLJ Correspondent