In a case that potentially has an impact on oil, gas and future mineral development on federal lands, the state of Wyoming and the Colorado Mining Association on Monday jointly requested an en banc rehearing by the U.S. Tenth Circuit Court of Appeals in Denver.

Wyoming’s attorney general wants to air arguments before all the Tenth Circuit appellate judges regarding a federal appellate reversal of an earlier Wyoming federal district court injunction against the U.S. Forestry Service’s designation of added wilderness areas through the so-called “roadless rule.” Wyoming argues that the federal forestry agency’s actions unlawfully circumvented Congress, which is the only legitimate source of wilderness designations.

“The [roadless] rule has significant implications for Wyoming and our people,” according to Wyoming Gov. Matt Mead. “The case raises legal questions of exceptional importance, and I believe it is necessary to have this decision reviewed by the entire Tenth Circuit [Court].”

Wyoming argues that the Forest Service created what it called “de facto” wilderness areas across about 59 million acres of the nation’s forest, including 3 million acres in Wyoming. The designation, which dates back to the Clinton administration, could prevent what should be legally potential oil, gas and mineral development, said the joint petition filed in Denver.

The district court’s blockage of the roadless rule was undone in October by a three-judge panel in the Tenth Circuit (see Daily GPI, Oct. 25).

With the governor’s strong backing, Wyoming’s attorney general contends that the Forest Service “radically altered” the roadless rule’s scope without preparing a supplemental environmental impact statement, and that violated the National Environmental Policy Act (NEPA), along with circumventing the National Forest Management Act (NFMA).

Wyoming contends that the Forest Service is mandated by these federal laws to evaluate forest use on a “forest-by-forest basis rather than by national rule.” Further, the joint appeal alleges that the Forest Service originally predetermined the outcome of the roadless rule to comply with what it called a “presidential edict” from then-President Bill Clinton.

Over the more than a decade since the Clinton administration, the roadless rule was mostly muted by a 2003 federal district court ruling that it violated the federal Wilderness Act and an appeal was dismissed by the Tenth Circuit Court in 2005 because the Forest Service adopted a process for state governors to individually petition the U.S. Agriculture Department to open remote national forest lands in their jurisdictions to road building. Despite this, in 2006 the U.S. District Court for Northern District of California reinstated the roadless rule, leading to subsequent action in the Wyoming federal district court.

Mead said the creation of the de facto wilderness areas has “stifled” the voice of the general public and the state in managing these lands in Wyoming. “Not only does this prevent many uses of public land, but it also limits our ability to fight back against the bark beetles that are devastating our forests.”

The joint filing told the appeals court that the case at hand raises a number of legal questions that it considers of “exceptional importance.” Among those questions is whether the Forest Service violated its duties under NEPA and did an end-run around NFMA.

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