Eight states, mining, ranching and motorized groups ask U.S. Supreme Court to hear latest roadless rule challenge

Critics continue to claim the rule creates de facto wilderness

Will the U.S. Supreme Court hear a challenge to the Forest Service roadless conservation rule?

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The rule was revoked in the early days of the Bush administration and replaced with a state-by-state rule-making process.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.”

One Response

  1. I have made an extensive study of Colorado Roadless Areas based on all available data on transportation networks of roads and trails. I found extraordinary differences between the original (2001) Clinton-era version and the Colorado Roadless proposal. To sum it up, the original roadless proposal – the one upheld by the appeals courts – is a travesty of bad science, complete lack of detail, and improperly derived boundaries. It is the equivalent to the health care law claim by Nancy Pelosi that “We have to pass it so you can find out what is in it”.
    It is critical that people understand that the ruling by an appeals court does not establish that good law has been made, nor does it rule on constitutionality or whether the law addresses a proper solution to an issue. It is strictly a finding that process has been followed. It is entirely appropriate that the rulings by the Appeals courts be taken to the Supreme Court, which *will* rule on whether this outlandish takings action will prevail or not.
    Now, the Colorado Roadless Rule is a different matter. It appeared to be cleaned up nicely and to establish proper roadless boundaries – for instance, not having boundaries drawn over county roads and having bottlenecks that effectively made huge areas of developed land inaccessible. It has exceptions that are necessary for a small area of underground coal extraction on the western slope (it is bad practice to keep miners from breathing clean air), and it protects our ski industry. It was developed by the Forest Service at the request of the Governor of Colorado, and is a reasonable document that is suitable for public comment and discussion.
    My opinion? Each state has a unique set of issues, and the conservation of resources should be decided by each state individually. Local communities need to participate, and this level of participation is impossible to achieve with federal actions originating in Washington DC. The original roadless rule needs to be discarded by the Supreme Court and a precedent established that local decisions are far superior to the generalized policies established by partisan politics and lobbying efforts thousands of miles removed from the citizens that the action affects.
    We should stop trying to establish de facto wilderness without appropriate study and legislation by congress. It is never a good idea to create conservation policy by fiat. Let land mangers manage the land, not politicians. They dedicate their lives and careers to preserving our lands, not to attracting votes and donations.

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