An appellate court decision in Wyoming, reversing a lower court, will allow the federal government to enforce the Clinton era’s “roadless rule,” which places restrictions on energy exploration and production, logging and other commercial activities on more than 58 million acres of forest lands.
The Agriculture Department’s U.S. Forest Service and a number of environmental/conservation groups challenged an August 2008 ruling by the U.S. District Court for the District of Wyoming, which found that the Forest Service roadless rule violated the Wilderness Act of 1964 (which allows only Congress to designate wilderness lands), the National Environmental Policy Act of 1969 (NEPA), the Multiple-Use Sustained Yield Act and other federal laws (see NGI, Aug. 18, 2008). That decision enjoined the agency from enforcing the rule.
Filing in opposition to the challenge, the state of Wyoming and the Colorado Mining Association asked the U.S. Court of Appeals for the 10th Circuit in Wyoming to affirm the district court’s ruling, claiming that the roadless rule does in fact violate the Wilderness Act or NEPA.
“We reverse the district court’s order granting plaintiff’s [state of Wyoming] declaratory relief and issuing a permanent injunction [against the roadless rule], and remand the case for the district court to vacate the permanent injunction,” a three-judge panel said in a 120-page ruling.
The roadless rule case has come before the Wyoming district court twice. It permanently enjoined enforcement of the Clinton-era rule in 2003, saying it violated the Wilderness Act and NEPA. The decision had been appealed to the Tenth Circuit. But the appeal was dismissed as moot in 2005 because during the pendency of the appeal the Forest Service adopted the state petitions rule, which superseded the roadless rule (see NGI, July 18, 2005).
The state petitions rule established a process for state governors to petition the Agriculture Department to potentially open up vast acres of remote national forest lands in their respective states to road building, energy exploration and other activities. The rule gave state governors the option to either keep their wilderness lands roadless or open them up to development.
In October 2006 a judge for the U.S. District Court for the Northern District of California reinstated the roadless rule, despite the fact that the Wyoming district court had found that the rule violated federal law (see NGI, Sept. 25, 2006). That set the stage for the state of Wyoming to renew its challenge to the roadless rule.
The Wyoming district court held that the Forest Service’s roadless rule established de facto wilderness areas in violation of the Wilderness Act. The Forest Service argued that the Wilderness Act did not repeal or in any way limit its broad authority to regulate National Forest System lands for conservation purposes, including “wilderness,” and thus it was authorized to promulgate the roadless rule.
“We agree…that the Forest Service did not usurp congressional authority because the roadless rule did not establish de facto wilderness areas — and, therefore, conclude that the district court erred in holding otherwise,” the court said in its latest ruling [[D.C. No. 2:07-CV-00017-CAB].
The court ruling pointed out that the roadless rule would not prohibit mineral development that is dependent on existing roads. “Leasing activities not dependent on road construction, such as directional (slant) drilling, underground development,” that could be carried out through utilities of existing roads, “would not be affected by the prohibition,” it noted.
It further added that road construction would be permitted in “conjunction with the continuation, extension or renewable of a mineral lease on lands that are under lease by the secretary of the Interior as of Jan. 12, 2001.”
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