Critics continue to claim the rule creates de facto wilderness
By Bob Berwyn
SUMMIT COUNTY — Eight states, numerous mining and ranching groups, along with several motorized recreation groups have joined the Colorado Mining Association in appealing the U.S. Forest Service’s national roadless rule to the U.S. Supreme Court.
In its petition to the Supreme Court, the Colorado mining group repeats the oft-rejected claim that the roadless rule was adopted in violation of federal environmental laws, and that the rule is “a sweeping usurpation of the authority vested solely in Congress to designate lands as wilderness.”
Even though federal appeals courts have rejected those legal challenges, at least one natural resource law expert thinks the array of heavyweight opposition could sway the Supreme Court’s conservative justices to take on the case.
The 2001 Roadless Area Conservation Rule limits road-building on about 58 million acres of national forest lands across the country. It was adopted after an extensive public process to protect water quality, wildlife habitat, and in recognition of the fact that the Forest Service has a massive backlog of maintenance on the existing national forest road system.
The rule was revoked in the early days of the Bush administration and replaced with a state-by-state rule-making process. It’s also been subject to several legal challenges, but was ultimately upheld as legal by two federal appeals courts, most recently by the 10th Circuit Court of Appeals..
Since the national rule was adopted, Colorado developed and adopted its own rule, covering about 4.2 million acres of national forest land within the state. Should the U.S. Supreme Court decide to hear the case, any subsequent ruling would probably not affect the Colorado version of the rule.
The Colorado Mining Association has been battling the Roadless Rule since 2007, intervening in an action originally brought by the State of Wyoming.
Conservation groups advocating for roadless protection don’t think there’s a good reason for the Supreme Court to hear the case.
“The character of this exercise is that the 10th Circuit Court got it wrong,” said Tim Preso one of many Earthjustice attorneys who has been defending the rule against legal challenges.
“We don’t think there’s any reason for the Supreme Court to take this up,” Preso said. “The federal 10th Circuit Court of Appeals thoroughly rejected every claim the state of Wyoming raised against the Roadless Rule. We think the 10th circuit got it right and will explain that to the Supreme Court.”
“It is always difficult to predict whether the Supreme Court will take a case,” said Mark Squillace, director of the Natural Resources Law Center at the University of Colorado’s School of Law. “On the one hand, since there is no circuit split, it seems less likely that the Court will hear the case.
“On the other hand, the high-powered parties behind the petition could very well influence several of the judges. You need at least four votes to grant a petition to hear the case and I can imagine that the four most conservative judges might just provide those votes,” Squillace said.
“CMA greatly appreciates the support of these organizations and states, which represent many diverse interests and millions of citizens not just throughout the west, but throughout the entire United States,” said CMA President Stuart Sanderson.
Sanderson claims the rule will result in harm to stakeholders beyond the mining industry, to agriculture, recreation and tourism interests. According to the CMA, the rule would prevent future mining and oil and gas operations on roadless lands, resulting in decreased production, job losses, and sharp decreases in taxes and revenues.
The list of organizations asking the U.S. Supreme Court to take the case includes: the National Mining Association, the American Petroleum Institute, the National Cattleman’s Beef Association, the American Forest Resource Council and the American Sheep Industry Association.
The NMA joined several state andregional organizations – including the Alaska Miners Association, Arizona Mining Association, Arizona Cattle Growers’ Association, Mining Minnesota, Montana Mining Association, Northwest Mining Association, New Mexico Mining Association, Utah Mining Association and the Western Business Roundtable.
The eight states filing amicus briefs are Alabama, Utah, Alaska, Arizona, Michigan, North Dakota, South Dakota, and Virginia. Also joining CMA are the Western Energy Alliance, Mountain States Legal Foundation, Wyoming Stock Growers Association, Intermountain Forest Association, and the Wyoming Farm Bureau Federation. The Blue Ribbon Coalition and the California Association of 4 Wheel Drive Club.
Even if the Supreme Court ultimately decides not to hear the case, the petition could be a delaying tactic by opponents to prevent full adoption and implementation beyond the outcome of the presidential election — in hopes that an industry friendly Romney administration might once again overturm the rule.
The court isn’t likely to make a decision on whether to hear the case until the autumn.
“This is a situation where two federal appeals courts, the 9th and 10th circuits, both agreed that the Roadless Rule is legal,” Preso said. Earthjustice is prepared to defend those decisions and make sure that protections for wild forests stand.”
Filed under: Colorado, energy, Environment, gas drilling, oil drilling, public lands, US Forest Service Tagged: | Colorado mining association, forest service roadless rule, Roadless area conservation, roadless rule legal challenge, U.S. Supreme Court