It happens.
Roadless
Alaska Roadless Upheld
Here’s a link and below is an excerpt.
SEATTLE — A court in Washington, D.C., has rejected the last legal challenge to prohibitions on logging and road building in backcountry roadless areas, ending more than 12 years of fighting over one of the nation’s signature wilderness protection policies.
The state of Alaska had challenged the rule adopted in 2001 by President Clinton to preserve the last large tracts of untouched forest in states including Idaho, Wyoming, Colorado and Alaska — along with about 1.7 million acres in California — that still have not been opened to logging and other development.
U.S. District Judge Richard J. Leon ruled Monday that Alaska’s challenge in 2011 came too late under the statute of limitations to invalidate a policy that already has survived multiple lawsuits in courts across the country.
You gotta wonder whether by the time something’s “too late under the statute of limitations” (10 years), the NEPA has to be “stale”.. Does that mean you can start another case based on that? Aargh.. maybe Congress should have done this in the first place.
Healthy Forests
This is just a reminder that some of our forests are healthy, and need no management. This view from the Pass Creek area of the Salmon-Challis National Forest shows an idyllic scene that might be similar to the land of 400 years ago. This land is full of the kinds of wildlife people want to see returned to our National Forests. While I was there on assignment, I met a guy who wandered this rugged terrain, recording wildlife sightings. This thin and wiry guy was amazing in how he could gain and lose thousands feet of elevation, day after day.
Comparing Colorado and Idaho- Some Forest Management Related Statistics
Here are the relevant slides from a 2008 RACNAC (Roadless Area Conservation National Advisory Committee) meeting, comparing Idaho and Colorado. It might be interesting for the People’s Database to have the same figures for all western states. Note: you can click on this photo to get better resolution.
Idaho Roadless Upheld by Appeals Court, Plus An Idea For CREATE
Thanks to Terry Seyden for this one.. Here’s the link.
First congratulations to all those folks who worked on the Idaho Rule throughout the state, the Forest Service folks, and OGC and DOJ for all their assistance. I met some of the folks who worked on the Rule at various RACNAC meetings and other roadless geekfests and they were extremely dedicated to an excellent public process, persevering and knowledgeable. And thanks to the RACNAC members as well. And for that matter, Mark Rey, who thought up the “State plus national advisory committee” model.
A three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously to uphold Idaho’s national forest roadless rule.
The panel, which included Idaho Senior Appeals Judge Stephen Trott, denied the appeal by the Wilderness Society, the Greater Yellowstone Coalition and other environmental groups of the decision in 2011 of U.S. District Judge B. Lynn Winmill upholding the rule.
“After scouring both the administrative and district court records in this case, we conclude that the district court’s grant of summary judgment to the defendants was warranted,” the panel said in its decision. “The inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error.”
The rule, negotiated by Jim Risch when he was governor, set up a unique system to protect nearly 9 million acres of roadless land in Idaho. The Idaho Conservation League and Trout Unlimited filed briefs in support of the Idaho rule, splitting with their environmental partners.
The rule is separate from the 2001 roadless rule that has been upheld by two appeals courts and the
Supreme Court by its decision not to hear the case.
Note from Sharon: After I read the stories of the Idahoans traveling to the appeals court (in this previous blog discussion), I was thinking that this might be a good project for accountability in litigation and direct action by other concerned individuals, as per some of the ideas in CREATE (previous post here).
This formed a mental image that might be worthy of a photo..
The federal courtroom in Portland was packed. A dozen people made the trip from Idaho to sit in silent support of the state’s roadless rule, including former Idaho governor Jim Risch and the chair of the Kootenai tribe.
Attorney Julie Weis represents the tribe. She says the rule is a good compromise, hashed out between environmental groups and mining interests. And it hasn’t led to more roads in Idaho’s national forests.
Given that some organizations made the decision to invest in a court appeal, I thought perhaps if I lived in Idaho and was involved with the rule development, I would try this. I would get a group together to email or write a letter to each member of the Board of Directors, include the above photo, and tell them that I was willing to meet with them anytime anyplace to talk to them about why they were choosing to appeal this decision. What did they think about the Idaho Rule, and why did they think it was worth the investment to appeal? Then folks who had worked on it and knew about it (and the 2001, and the differences) could engage them in a meaningful discussion.
If they did not answer the emails or letters to talk, then that would be another story. From my board memberships, I take the role of the board in providing direction very seriously. It seems to me that communicating directly (people who know about the project or rule) with board members (people who are deciding whether to invest in litigation) would be a useful and educational exercise. We often talk about accountability of federal agencies (not that they are paragons ;)), but shouldn’t we all be accountable to the people affected (that is, all taxpayers, in this case, as well as Idahoans) for our actions?
This direct action is probably not OK for federal employees to do, but I would think that concerned citizens (involved in collaborative groups?) certainly could do so. The results of these discussions could be reported back through this blog or in the press.
Now there is one easy fix that will help this process. The board members, as part of their fiduciary oversight, know how much their appeal cost their organization, but do not know how much it cost the taxpayer. That is why IMHO it is important for the FS, OGC, and DOJ to accurately track costs of litigation. How can anyone decide whether and how much to spend when they have no idea of the costs?
Local People and Governments Case Study: Idaho Roadless Rule- Who Decides?
Continuing our thread on the role of local people in managing national forest lands, it seems timely to bring up Idaho Roadless. I could understand why people who wanted A National Rule (albeit with some flaws) would be against Idaho and Colorado before the 2001 was upheld, as that may have been seen to be a harbinger of other states potentially escaping the 2001 Roadless corral. But now. I just don’t see why it is worth it for them to spend the bucks to go to appeals court with the Idaho Rule.
I am also curious if there have been settlement talks, and if so, what the USG put on the table. I wonder if such talks are protected by attorney-client privilege, or otherwise able to be FOIAed. But all that aside, what I see is the desire to not do what the State Government and the people of Idaho came to agreement about. For reasons that seemed originally ideological, but now are not so clear. I would really like to know what the groups are thinking, which I believe to be The Wilderness Society, Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club and The Lands Council. The groups are represented by Earthjustice.
Earthjustice’s story is that “protections were removed.” What we were told by other conservation groups is that Idaho gained additional protections in some places and lost in others but the net result was positive. This was generally a criticism of then-current Colorado efforts. It seems like there might be a lot of donated money sitting around marked “roadless,” with nothing else to litigate?
I guess they’re just “rolling the dice” (as my colleague says) with their donated, and our taxpayer money. It would be interesting to get estimates of the total cost (forest, region, OGC, DOJ) to the taxpayer for litigation and especially when legal decisions are appealed. My hypothesis, having signed many timesheets, and been on phone calls with a plentitude of attorneys, is that EAJA is the tip of a very grand iceberg.
Anyway, what triggered my thoughts about the Idaho Rule is this report on the efforts of the Implementation Committee.
Here’s a link and below is an excerpt:
Those were among the recommendations the Idaho Roadless Commission made to U.S. Forest Service staff across Idaho last week.
The panel, made up of foresters, county officials, conservationists and industry representatives, met as a federal appeals court deliberates on its future. It is designed to give the Forest Service a first look at how Idahoans react to proposed projects.
The commission was established by the Idaho Roadless Rule, which protects nearly 9 million acres of Idaho’s 20 million acres of national forest. The rule designates 250 roadless areas and establishes five management themes that guide temporary road construction, timber cutting, mineral development and recreation.These themes, and especially the logging and other activities allowed in 5.5 million acres designated as backcountry restoration, are what prompted several environmental groups to challenge the rule in federal court. The Idaho Conservation League and Trout Unlimited supported the rule that then-Gov. Jim Risch negotiated as an alternative to the 2001 national roadless rule.
A three-judge panel of the Ninth Circuit Court of Appeals heard arguments on the rule Friday in Portland. The judges will decide in two to six months whether to uphold U.S. District Judge B. Lynn Winmill’s decision that the rule was legal.
The commission was well aware its own recommendations are under scrutiny from the groups that are appealing the rule. Forest Service staff made the case that the boundaries between two roadless areas in eastern Idaho probably were meant to follow the ridgeline. But a closer look shows the line would be too steep in places to build a road.
Trout Unlimited’s Scott Stouder told the panel how the lawyers for Earthjustice, the group that argued the case, would see it.
“They would say this is just moving the boundary to build the road,” Stouder said.
I guess that this is an illustration of how the litigation shadow can fall across people’s thinking, and not just those within the agency.
Also, I have to point out as the resident roadless geek, that:
In one area, where a mining company plans to open a pit to mine phosphate outside a roadless area, the panel supported a map correction of a slurry pipeline through the roadless area. The pipeline special area could be used as a road under the rule, but that would be decided later.
“I think it’s more of a mapping issue than anything else,” said Alan Prouty, J.R. Simplot’s vice president for environmental and regulatory affairs and a commission member.
Everyone agreed, thumbs-up.
Pipelines and the zones used to construct them are OK under the 2001 Rule according to the Bull Mountain pipeline case.
The restoration projects were proposed on the Boise National Forest in high elevation areas. In an area near Big Creek Summit, conifers competing with whitebark pine trees will be “felled, lopped and retained on the site.” The other is a reforestation project.
No roads need to be built for either one. For Caswell the projects are a reminder that the rule is not just about locking up the roadless areas.“The rule has permissions along with prohibitions,” he said.
It sounds like both these projects would have been allowed under this exception from the 2001 Rule.
294.13 b 1 ii To maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period;
I wish those groups could tell those of us who understand the roadless issues, why they want to spend our money on this fight. Is it about what’s allowed in one or more of the themes? IF so, it seems better for governance to have an open discussion about it.
I also ran across this article on the Idaho folks going to the hearing:
The federal courtroom in Portland was packed. A dozen people made the trip from Idaho to sit in silent support of the state’s roadless rule, including former Idaho governor Jim Risch and the chair of the Kootenai tribe.
Attorney Julie Weis represents the tribe. She says the rule is a good compromise, hashed out between environmental groups and mining interests. And it hasn’t led to more roads in Idaho’s national forests.
“In the four years since the rule was actually issued, not a single road has been built,” she told the three-judge panel of the 9th Circuit Court of Appeals. “The sky is not following on Idaho inventoried roadless areas.”
We’ve often discussed how people not from the area should have equal voice.. apparently equal is not enough to some.
Buying Back “Gap” Leases, From Whose Pocket?
Ah.. perhaps the solution to the mystery, as so often, has something to do with politics..
Here’s a link to the story, and below are excerpts.
SG Interests owns drilling leases in the Thompson Divide, a roadless area near Carbondale. It got the leases during the George W. Bush administration, when the national roadless rule was in a state of confusion over conflicting court rulings and Bush’s repeal of former President Bill Clinton’s roadless rule.
Bush didn’t exactly “repeal” it.. it was enjoined and the Dept. decided to try a different approach. If they had just rescinded it and re-ruled, that would be true..
The new Colorado Roadless Rule adds protections for the Thompson Divide, but it does not completely put the area off-limits to drilling.
Actually it does, for new leases, and leaves the legal status of the others as to be determined by courts.
Conservationists and ranchers are pressing Tipton to introduce a bill to protect the area from future drilling. So far, he has not committed to backing a bill. Instead, he has said he wants to find a compromise solution.
Pace has said he wants to buy back leases from SG and other gas companies so that drilling will not occur in the Thompson Divide.
I don’t think anyone is stopping anyone from buying back the leases.. the price of gas is very low now.. so go for it! Not so sure about using scarce tax dollars, though.. if that’s what he means. I’m not sure that this is the time for greater public expenditures, when we can’t afford the basic recreation program, as discussed elsewhere.
Predicting Future Court Decisions: “Gap Leases” and the Thompson Divide
Here’s another story about “gap leases.” These are leases issued at various times when the 2001 Rule was not the “law of the land”.
Below is a brief summary from this Forest Service document.
The Roadless Area Conservation Rule (RACR) prohibits, with some exceptions, road construction and timber harvesting across 58.5 million acres of the National Forest System. The rule was published in the Federal Register on January 12, 2001 (66 FR 3244).* Ten lawsuits were filed challenging the rule. In May 2001, a preliminary injunction barring implementation of the rule was issued by a federal district court in Idaho. The Ninth Circuit Court of Appeals reversed that ruling, and the RACR became effective in April 2003. In June 2003, the State of Alaska settled its claims regarding the RACR and after further rulemaking the Tongass National Forest was exempted from the RACR (68 FR 75136). Two cases in North Dakota that involved the RACR were eventually settled in March 2007 and three others were dismissed.
However, in July 2003, a federal district court in Wyoming upheld the State of Wyoming’s challenge to the RACR holding that promulgation of the RACR was procedurally flawed under NEPA and substantively illegal under the Wilderness Act. The court set aside the rule and permanently enjoined the rule. The decision was appealed to the Tenth Circuit Court of Appeals, but the court declared the case moot and vacated the Wyoming order after the 2005 State Petitions Rule was promulgated.
Gap leases occur in other states, but attention has been focused on Colorado, seemingly earlier as a negotiating point with groups who wanted the leases withdrawn as part of the Colorado Roadless Rule. There was even an earlier effort with the FS and the State to buy out these leases.
According to some legal sources on the government side, there were various stages during the periods when the 2001 Rule was enjoined, with various letters and interim directives, and each lease might have different facts associated with it. The easiest way to find out their legal status would be to take them all to court as individual leases.
There must be some reason folks aren’t doing that.
A key dispute within the dispute over proposed oil and gas development in the Thompson Divide area involves dozens of leases issued in national forest roadless areas there in 2003.
That was two years after President Bill Clinton, in one of his final acts as president, declared a national forest rule to protect roadless areas from development.
Peter Hart, staff attorney with the Carbondale-based Wilderness Workshop conservation group, has some questions about the legality of leases issued without restrictions on surface disturbance after Clinton’s action.
“We’re in the process of sorting all that out,” he said.
Such leases in the Thompson Divide area and elsewhere have gained the nickname of “gap” leases because they were issued at a time when the legal status of the national roadless rule was in question because of prior court rulings later being upheld.
This seems odd to me (they are still “sorting it out”) as there are only so many of these… spreadsheets of them have been circulating since 2007 or so..it’s not clear that anything about the status has changed in the last five years except that the 2001 Rule came back. However, it does not seem to me that the issue is what are the rules now, but what were the rules when the lease was let (did the FS and BLM follow legal procedures correctly when leasing?).
I would argue that the legal status was not really “in question” as the 10th circuit had enjoined it being used…it seems relatively clear.
However not Hart, who said:
We think the 2001 rule has been the rule of law since 2001,” Hart said.
So how can the FS predict the ultimate outcome of court decisions, and follow the future rules rather than the current court decision at a time? It would have been illegal to not follow Brimmer’s decision. I have never really understood this line of argument.
He said a Colorado-specific roadless rule implemented this year “explicitly preserves limitations on surface use” for leases issued in roadless areas after 2001.
My understanding is that the Colorado Rule says “if it is determined that the leases’ restrictions or lack thereof were made legally, then they stand.”
Again, it seems to me like the simplest thing to do is just take the individual leases to court and get them clarified.
Another thing I don’t quite understand is:
Leased lands with no-surface occupancy rules would have to be reached by directional drilling. Hart said he’d like to see the Forest Service go further by not leasing for oil and gas at all in roadless areas, to prevent these areas from being ringed by well pads and other facilities, isolating wildlife habitat. A White River National Forest planning alternative the Forest Service agreed to also consider in response to the concerns of the Thompson Divide Coalition would allow for no new leasing in lands under the forest’s jurisdiction in that area, including in existing lease areas if those leases expire.
But if you don’t want leases inside roadless areas, because there would be wellpads going directionally from outside, you should know you could also have wellpads outside for leases on that land outside the roadless areas, so outside wellpads are not prevented. And the solution to “ringing” the area with wellpads would be looking at the impacts of each development during NEPA. It seems unlikely that wellpads would be cheek to jowl in a ring around the roadless area.
Also this is interesting..
Antero Resources has proposed drilling up to four wells on “gap” lease acreage in the northwest portion of the Thompson Divide, but under its proposal the well pad would be placed outside the roadless area. How any initial drilling on gap leases in the Thompson Divide area occurs will be important because of the precedential impact it will have on future drilling on such leases in the area, Hart said.
Antero wants to drill outside the roadless area, and that isn’t good because of …the precedent on drilling?
Gary Osier is a former Forest Service employee who served as forest minerals specialist for the White River National Forest,
For all the focus on roadless areas, Osier said Thompson Divide also has a lot of areas with roads, and “is probably one of the most multiple-use pieces of ground on the whole (White River National) Forest.”
He said he’s “walked virtually every foot” of the area, and it has high potential for natural gas and some oil development.
“What’s interesting to me is there’s only a little teeny bit of the whole (White River) forest that has high potential, and that’s the only part that we identified originally (for leasing), this whole Thompson Divide thing. I think most of the people who are screaming and hollering about it have never been there,” he said.
My instincts follow those of Gary.. it all doesn’t really add up. There must be more to this than meets the eye. For previous posts on gap leases, see this, this, and this, and my blog post here on the Range Blog of High Country News and especially the comments on that..
Courthouse News Service on Burnt Mountain- QA/QC Needed!
We have talked about the Courthouse News Service before here on this blog. It is a handy place for keeping up with litigation news, but like so many outlets, you can’t believe everything you read. At least they are upfront about their bias.
Here’s a link:
Developers trying to expand a ski resort in the mountain wilderness of Colorado can move forward with their forest-clearing plans, a federal judge ruled.
Hmm. . “forest-clearing” 800 trees? I guess that’s a bit of hype.. well OK.
Of more concern is this statement:
But U.S. District Judge James Boarsberg dismissed the complaint Friday, citing a Colorado law that allows ski resorts to skirt forestry regulations.
Really, a “law” ? The rule actually is a regulation.
In a “roadless” area, “trees may not be cut, sold, or removed” without special permission from the Forest Service, according to the 20-page decision.
I think in non-roadless areas that’s also the case. Oh well.
Central to both parties’ arguments were their respective interpretations of the term “roadless,” a distinction bestowed by the Forest Service upon pristine tracts of land “where the earth and its community of life are untrammeled by man.”
That sounds like wilderness, also it seems like backcountry skiers are already “trammeling” this specific area.
While the federal Roadless Area Conservation Rule establishes criteria through which land can be designated as “roadless,” the court notes that the more-specialized Colorado Roadless Areas Rule supersedes the initial regulation and introduces a key statute.
The most recent legislation precludes “existing permitted or allocated ski areas” from receiving “roadless” designations, according to the court.
Honestly, I couldn’t read the rest of it..I wish they’d had a link to the judge’s decision because I had no clue from this article. Seems to me like legislation and rulemaking are different things. QA/QC, where are you? I know roadlessness is complicated- otherwise it wouldn’t have kept as many roadless geeks like myself gainfully employed, but still…
If you’re interested in better coverage, try this article from the Summit Daily News. Below is an excerpt. Chalk one up for local vs. national news sources.
But Boasberg ruled that the 2011 Colorado Roadless Rule eliminates roadless areas from within ski-area boundaries. The Ark Initiative needed to raise its concerns about roadless lands within ski-area boundaries when Colorado’s roadless rule was being debated, the judge said.
“The Colorado Roadless Rule was not off-the-cuff rulemaking,” Boasberg wrote in his order. “As the Forest Service explained in its letter (to the Ark Initiative), the rule ‘is the result of extensive public involvement. More than 310,000 public comments, over a six-year period, were reviewed and considered in the development of the final rule.’”
The Ark Initiative “chose not to comment on the rule and thus cannot challenge it now. If plaintiffs wanted roadless designations in ski areas, they should have participated in the rulemaking,” the order continued.
White River National Forest supervisor Scott Fitzwilliams said he hopes this latest ruling puts an end to the debate over Burnt Mountain. The Forest Service approved a Snowmass Ski Area Master Development Plan in 1994 that paved the way for expansion onto Burnt Mountain. Skico amended the plan in 2003 and applied a year later for specific approvals for the Burnt Mountain work. After three years of review, the Forest Service approved the plan. The Ark Initiative filed an administrative protest, which was denied. The Ark Initiative then filed a lawsuit in federal court that was denied and upheld by an appeals court.
“We’ve been dealing with this long enough,” Fitzwilliams said. “They’ve dragged us into court three times now.”
William Eubanks, an attorney for the Ark Initiative, couldn’t be reached for comment Monday on what, if anything, will be the next step for the environmental group.
The Forest Service is formally notifying Skico that it can move forward with the project, Fitzwilliams said.
“A good portion of the work is done,” he said.
He estimated 60 to 70 percent of the tree thinning and clean-up is finished.
In an earlier interview, Rich Burkley, Skico vice president of operations, estimated the trails crew will remove fewer than 800 living and dead trees from about 6.5 acres within the 230-acre area of Burnt Mountain. The terrain is east of Longshot, the existing inbounds trail on Burnt Mountain. The rest of Burnt Mountain is popular backcountry or sidecountry terrain.
Skico is glading areas between natural parks or breaks in the forest. There won’t be designated trails, Burkley said previously, but rather thin routes through the trees.
The expansion will boost the skiable terrain at Snowmass to 3,362 acres. That makes it the second-largest ski area in Colorado behind Vail Mountain.
The Ark Initiative’s lawsuit was filed in the District of Columbia on Sept. 11. When it was filed, the Forest Service asked Skico to voluntarily halt work while the legal fight was being settled. Skico intervened in the lawsuit on the side of the Forest Service.
The judge’s 20-page ruling said even if the Ark Initiative was correct and lands on Burnt Mountain were removed by the Forest Service by mistake from the roadless inventory, the mistake was made moot when the Colorado Roadless Rule was created.
“In other words, it does not matter whether the Burnt Mountain parcel has the characteristics of a roadless area; the parcel is inside Snowmass Ski Area, so the Colorado Roadless Rule precludes designating it roadless,” the ruling said. “Effectively, the Forest Service is saying that any error in earlier inventories is harmless because the Burnt Mountain parcel cannot qualify as roadless now anyway.”
But the point that seems to be missed here (I think Sloan Shoemaker pointed it out in a previous article) is that it would be OK- even under the 2001 Rule, to do this work in a roadless area, as the action is “incidental to activities not otherwise prohibited.”
E&E News on Colorado Roadless
Here’s a link.
Below is an excerpt.
Mixed reaction
But the final rule retains exemptions for roads for methane wells needed to allow an expansion of underground coal mining in the North Fork area and allows more flexibility for existing ski areas. And critics say the plan could also allow oil and natural gas drilling in roadless areas in the Grand Mesa, Uncompahgre and Gunnison national forests and White River National Forest.
Mike Freeman, an Earthjustice staff attorney in Denver, said the group is reviewing the ROD, but he added that it appears the Colorado rule still falls short of the Clinton administration’s rule.
Freeman also said the state plan is unnecessary after the national roadless plan was upheld last year by the 10th U.S. Circuit Court of Appeals. The court’s decision reversed a Wyoming district court finding that the national rule had created de facto wilderness and violated the National Environmental Policy Act.
“We now have a consistent national approach to managing the 4.2 million acres in Colorado. It’s the law of the land. There’s no reason why Colorado forests should get second-class status and be managed to a less protective standard than the roadless areas in other states,” he said. “The state plan provides less protections for about 75 percent of the roadless areas in this state.”
Mike Anderson, a senior resource analyst with the Wilderness Society, said he’s also concerned about possible drilling in some roadless areas but added that the overall plan is a good one, particularly the 1.2 million acres of upper-tier protections that “highlight some of the more superlative areas of the state for wildlife and recreation, and that is a really good feature.”
Anderson said the Wilderness Society’s focus now will be to work with the Forest Service and state to ensure the new rule is properly implemented.
“There’s definitely pluses and minuses with this rule,” he said.
The issue remains a contentious one. The ROD comes at a time when Western state governments and the mining and oil and gas industries, among others, have asked the U.S. Supreme Court to throw out the federal roadless rule and let states like Colorado determine how best to manage these pristine forestlands.
Colorado and Idaho are the only two states to pass state roadless rules under a George W. Bush administration petition plan that was later ruled unlawful.
The Forest Service said in a news release announcing the ROD that “future forest plans and revisions will be consistent with the provisions of the Colorado Roadless Rule.”
Colorado Gov. John Hickenlooper (D) said his state’s roadless rule “reflects the diverse, creative and passionate suggestions contributed by thousands of Coloradans” and should serve as the law of the land for managing roadless areas in the state.
“The rule adds new protections to millions of acres of our state’s cherished national forests,” Hickenlooper said in a statement, “while providing sufficient, targeted flexibility crucial to local economies and communities.”
It’s interesting that this reporter simply says “critics say” And critics say the plan could also allow oil and natural gas drilling in roadless areas in the Grand Mesa, Uncompahgre and Gunnison national forests and White River National Forest.
However, the actual rule language says section 294.46 b..
Oil and Gas Leases. Oil and gas leases issued within a Colorado Roadless Area after July 3, 2012 will prohibit road construction/reconstruction. The Forest Service shall not authorize the Bureau of Land Management to grant any request for a waiver, exception, or modification to any oil or gas lease if doing so would result in any road construction within a Colorado Roadless Area. For oil and gas leases issued in a Colorado Roadless Area prior to July 3, 2012, the rule preserves any existing leases and surface development rights. The rule also preserves any existing limitations on surface development rights arising from lease terms, lease stipulations, conditions of approval, 36 CFR 228.100, and Onshore Oil and Gas Orders.Show citation box
(c) Oil and Gas Leases on Upper Tier Acres. Oil and gas leases issued within upper tier acres after July 3, 2012 will require a no surface occupancy stipulation. The Forest Service shall not authorize the Bureau of Land Management to grant any request for a waiver, exception, or modification to any oil or gas lease if doing so would result in surface occupancy within an upper tier area.
Which pretty much is the legal status quo for preexisting leases under the 2001 Rule.
For new leases, in upper tier, the Colorado Rule adds protection to 2001 by saying no surface occupancy in addition to no roads. I guess you could argue that that’s not an important additional restriction. But someone must have thought it was or it wouldn’t have been added.
Also the article is unclear when it says “Colorado and Idaho are the only two states to pass state roadless rules under a George W. Bush administration petition plan that was later ruled unlawful.” In addition to them “passing” state roadless rules (it is a federal action), of course, they initiated their efforts under the state petitions rule, but Colorado finalized it under the authority that states have to petition the department. Otherwise it sounds like they are currently working under a rule that had been overturned.