Colorado Roadless Clarification: Response to the TWS Campaign – #1

For awhile I had been saying it was time to do Colorado Roadless Fact Check. Most of the stories that crossed my desk seemed fairly innocuous, though, or at least not worth the effort of writing clarifications.

Recently, I ran across this, which seemed deserving of further discussion. This is from the Wilderness Society, and found here. Their assertions are in italics and my responses in regular text.

The proposed Colorado rule:
• Allows 100 oil and gas leases to be developed in some of Colorado’s best backcountry areas.

I think they must be talking about the so-called “gap leases.” During the periods that the 2001 Rule was not in place, most notably due to being enjoined by Judge Brimmer, the Forest Service behaved as if it were not in place. I hope no one finds this surprising. Otherwise it would be very difficult to tell what the agency should do until the specific regulation makes its way through 6-10 years of court decisions, appeals, etc.

The example I use is the 2005 planning rule. When it was enjoined, we stopped using it. Just like that. I remember I had a phone call scheduled with some objectors to the Cimarron-Comanche plan when I got the email that the rule had been struck down.

It seems odd to imply that when the 2001 Rule was struck down, the FS should have behaved as if it hadn’t (??). How should the FS pick which court decisions to pay attention to and which to ignore?

The fact is that a lot of permits and leases of various kinds (ski, coal, oil and gas …) were issued during these periods, and not just in Colorado. Because of the different reasons for the 2001 Rule not being in effect, the facts for each specific case might well be different.

One way to deal with them is simply to let the 10th Circuit decide the legality of the 2001 Rule, which they plan to do (anytime now), and then litigate the building of roads on those leases case by case. Unless the 10th Circuit decides to make the 2001 Rule retroactive (as Judge LaPorte did twice). Which is also fairly odd to the non-legal minded. How is the FS to know which rules will come back following being enjoined?

The point is that the leases either should have had “no roads” stipulations or not; that is a legal question about the issuance of the leases and NOT AFFECTED BY THE COLORADO RULE.

The Colorado Rule simply says, if oil and gas leases are found by the courts to have been issued legally, allowing road construction, before the promulgation of the Colorado Rule, they are grandfathered in. If the courts decree that the leases should not have allowed roads, then roads are not allowed. The legality is determined by conditions at the time of the lease, not now.

A relatively trivial problem with the above assertion is that the number may be 50-60 rather than 100, and actually less than that since some leases have expired since the last roundup of data.

Correct answer: 2001 Rule and Colorado are identical- even if 10th Circuit decides on legality of stipulations retroactively.

• Does not clearly specify where logging would be allowed for the purpose of reducing fire risk to communities.

What would be a clear specification? The proposed rule says up to 1 ½ miles with HFRA conditions and a Community Wildfire Protection Plan? And only up to ½ mile for temporary roads. What would be clearer than that?

Interestingly, in the past other staff members of TWS have stated to me that the 2001 allows fuel treatments due to my personal favorite exception (“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.”)

The argument has gone something like this: if a community is surrounded by ponderosa pine trees and they want hazardous fuel treatments under the 2001 they can do it anywhere with no restrictions, since thinning ponderosa pine restores the “characteristics.. within the range of variability”. This argument was made by folks from Colorado and Idaho to the Roadless Area Conservation National Advisory Committee (RACNAC).

Now many of you may be thinking “this clause is confusing, how could we tell what might be “natural” under the “current climatic period” which we know to be, in and of itself, unnatural?”. Not only that, but we would need to know the “range of variability” for this current unnatural climatic period. Warning: thinking too hard about this exception may make your head hurt.

But the unfortunate community who lives surrounded by dead lodgepole, may not be able to do fuel treatments because, after all, acres of dead lodgepole are within the range of natural variability (at least of the last climatic period). This was discussed by folks from Colorado and Idaho at meetings of the Roadless Area Conservation National Advisory Committee (RACNAC).

So it seems like the 2001 Rule is really less restrictive than the proposed Colorado because you can do “logging” that would reduce fuels anywhere, given the unclear language of the exception.

In contrast, the proposed Colorado rule limits fuels treatments to certain areas around communities and under certain conditions.

************************

That’s probably more than enough roadless arcana for now.. more in #2 of this series.