With the recent 10th Circuit decision to reject Wyoming’s rehearing request, Roadless has once again reared convoluted and drama-filled head. Also, as the current legal framework becomes clearer (at least until someone initiates another lawsuit claiming that the NEPA is now out of date, does not consider climate change mitigation and adaptation, and is not reflective of the more site-specific analysis requirements found by for a programmatic EIS,) the Colorado Roadless Rule is again in the news.
What I like about it, compared to the planning rule, is that planning rule discussions are about what the FS “might could” do; whereas the Colorado roadless rule is pretty straightforward in what is OK and what is not. Consequently, assertions about it are fairly easy to check. So it makes a good topic for checking on different news coverage. As I’ve said before, both on this and the HCN blog here and here, the topic of Colorado Roadless may be just too complicated for news stories in general. Even so, anyone could simply read the proposed regulation or the summaries on the web; here are the chief points about the rule and here about the further restrictions on “upper tier” acres. I can never forget that after working on this project, one of my colleagues said “I’ll never believe anything I read in the paper again.”
As usual, my comments are in italics.
Here’s a New York Times piece from a couple of weeks ago.
State Goes Its Own Way to Regulate Forest Roads
By KIRK JOHNSON
Published: February 5, 2012
My comments are in italics.
DENVER — A road into the piney woods can be fraught with consequences. That was the premise, more than a decade ago, behind a Clinton administration rule that restricted road building on millions of acres of national forests in the West.
Not just in the west, as some of our readers might point out. In the interests of those who would like to see more stuff about the Eastern U.S., I found this from 2004 by Jim Furnish for Heritage Forests. I don’t think is a good way to start, though. Easily checked.
The so-called roadless rule, fought over in court from the start, was validated last year by a federal appeals panel, setting off a wave of euphoria among supporters and consternation among critics.
But there is a big wrinkle here in Colorado, which was one of only two states — Idaho was the other — that at the urging of the Bush administration developed their own rules about roads in the wild.
I don’t know if they were “urged by the Bush Administration”, or “allowed to”. perhaps semantics; but the original State Task Force thought the 2001 could be updated and improved. I think the folks in Idaho consciously wanted to improve the 2001 Rule. The way this statement is phrased tends to “partisanize” the issue (which I would frame as rather one of “particular” izing).
The state restrictions are supposed to be at least as stiff as the national rule, and a decision on Colorado’s draft plan, now under review in Washington by the United States Forest Service, is expected within weeks. But conservationists say the plan is much less protective of forestland and creates the likelihood that a state many Americans identify with the very aeries and woods the national rule was designed to protect could become a kind of orphan.
Here we go again.. “conservationists say” “much less protective”. Heritage has a unique and important role in roadless see Ray Ring’s piece in High Country News here. Asking Pew/Heritage Forests about a state roadless rule is like asking .. (make up your own analogy) the Hatfields about the McCoys, the Broncos about the Raiders, the Shiites about the Sunnis, and so on.
Also, Idaho seems to be doing just fine with its state rule.. I wonder if they feel like “orphans”.. or people whose diversity within this diverse country is recognized and appreciated.
“It would give Colorado, at the end of day, fewer protections than any other state,” said Jane Danowitz, director of the public lands program at the Pew Environment Group, a nonprofit organization in Washington. “It’s a runaway train.”
You can’t just assert that it has “fewer protections”; there are many things more protective and some things “less protective”, which we can debate here. For example, linear construction zones are restricted which the 2001 Rule does not do. And how one state can become a “runaway train” is not really clear. There are not a bunch of states lined up to do this, even when there was a state-specific rulemaking allowed, most states deferred to the 2001 Rule. That’s how we ended up with Idaho and Colorado.
State environmental managers strongly disagree, saying that Colorado’s plan would be as protective over all as the national template, if not more so, but that it would just get there a different way.
They say that bipartisan support through six years of discussion under three governors, two Democrats and one Republican, created a package suited to the special needs of the state, and that tough economic times have only accentuated the need for a system that takes jobs and core industries into account. The political backdrop touches a debate raging in many other state capitals as well: local versus federal authority and the limits of the 10th Amendment’s declaration of state autonomy.
Some economic interests, both sides agree, stand to benefit from the state plan. Coal mines and ski resorts, for example, would get access to backcountry areas the national plan could bar.
What is an “environmental manager”? Doesn’t anything we do have an environmental component? Is State Highways not an environmental manager, or the State Department of Agriculture? I’ll have to do another post on “whatever happened to natural resources?” later.
The ski area thing is a bit odd as those areas are adjacent to existing ski areas and already allocated to skiing. How can that be really “backcountry?” Underground coal mines access via roads would be restricted access and restored after 3 years of so. Notice that actual acreages are not mentioned here..I don’t know them off the top of my head but I think it’s about 1700 for ski areas and 15K acres for temporary coal roads (the estimate used below may not take into account allowances grandfathered in under 2001 and its current reinstitution) and methane drainage wells out of 4.2 million acres total.
More logging, for fire prevention and possibly commercial sale, could be allowed as well. And natural gas drilling could expand into areas that the national rule would hold off limits.
It’s not fire prevention, it’s protection of communities, and you either sell the products or take them offsite and burn them, or burn them in place.
Most people would think a use that sequestered carbon and saved the USG some bucks would be a good thing. This is carefully phrased (or not) to imply that fire prevention and commercial sale are two different things, not the question of “one we remove trees for fire prevention, should we sell them or just burn them?” As previous posts on this blog, from Colorado and Arizona at least, have shown, most folks would like to do something other than burn the piles, especially if it provided reduced carbon emissions and jobs.
If I were writing this piece, I would say “tree-thinning and removal of dead trees would be allowed for reasons of community defensible space, in addition to that allowed by the 2001 rule for ecosystem maintenance and restoration and for improving wildlife habitat and TES species.”
The natural gas drilling part is not true, as we have discussed here before and also on the High Country News blog. There are a variety of leases issued when the 2001 rule was not in effect whose legal status depends on the situations when they were issued, not related to what rule is in effect now. The Colorado Rule does not allow roads, same as 2001.
But while environmental groups argue that special interests are trumping the public good, and that the state is underestimating the long-term economic value of undisturbed land, some state and federal officials say a special case for Colorado makes sense.
Two things about this statement. What environmental groups? There is only once cited so far. I’m not saying that there aren’t more who think this way, but it would be good to know who and how many.
First, the two major “disturbances” compared to 2001 are 1. thinning trees within 1/2 mile of communities (undisturbed land?) and 3 -5 year roads for methane drainage wells above underground coal mines (if it’s the “long-term” value, then they will still have the value after 3-5 years and maybe 5 more for grass to grow back).
Are people trying to protect their communities “special interests”? And aren’t lives and property saved the “public good?” Note that it’s “some” state and federal officials here, but not “some” conservationists above. Just sayin’
“It’s not one prescription fits all,” said Mike King, the executive director of the Colorado Department of Natural Resources. “We are moving forward with the Colorado rule because we believe it’s better for Colorado — that we are able to address our unique environmental circumstances, and our unique economic circumstances, in a way that the 2001 rule simply couldn’t and didn’t.”
Environmental protection is still in there, Mr. King said, but so is economic protection, with exemptions — temporary roads that would be restored or allowed to return to nature after years of use — for industries that the state considers vital. Operators of three underground coal mines in western Colorado that have said they could face a shutdown or constriction as early as this summer without access to nearby land could get the use of 20,000 adjoining acres to build gas vents. The ski industry, which mostly operates on or next to Forest Service land in Colorado, would have access to 8,000 acres.
Again, this implies 8000 more than the 2001 Rule, but it’s actually 1700 or so more, 8000 total ..
The idea of cordoning off some forestland as roadless — about 30 percent of the 193-million-acre national forest system was designated, with sharper lines of defense against developers, all-terrain vehicles and loggers — was a political firecracker from the moment it was proposed in late 1999.
What kind of “developers”? the 2001 rule was about roads and tree-cutting and allows ATV’s, it should also be pointed out that ski towers and other kinds of structures, have been built in roadless areas without roads, and that is OK with the 2001 Rule. It’s a “roadless” rule not a “structureless” rule.
Critics denounced it as an end run around Congress, creating wilderness protection by presidential fiat. President George W. Bush, taking office just as the rule was supposed to take effect, invited states to blaze their own way.
I think it was Mark Rey’s idea, as articulated in an interview with Martin Nie, in a link posted somewhere on this blog. See for yourself here.
Wyoming fought for years in federal court, a challenge that was overcome only last fall when the United States Court of Appeals for the 10th Circuit in Denver said the Forest Service had discretion over the land it administered. Idaho also broke from the pack with a state-specific roadless plan, but unlike Colorado’s it has drawn mostly praise from conservation and recreation groups.
Aside: I think this is probably true for a variety of reasons, including the existence of the RACNAC and not so much the technical specs of each rule. It will be very interesting for future students to compare the two processes.
The push-pull of politics has caught some groups that advocate for the public lands, or depend on them economically, squarely in the middle.
“We’re not full-on opposing it,” said I Ling Thompson, a spokeswoman for the Outdoor Industry Association, a national trade group for recreation companies, which has its headquarters in Colorado. “We’ve been supportive of development of the Colorado rule, but we do feel that right now there are some things under the current draft that are not strong enough.”
Interestingly, in November, there was an advertisement in the Denver paper by mostly local environmental groups as we discussed here. Just the other day there was a similar ad see press release here by OIA (an industry group) and TRCP (a non-local environmental group) paid for by TRCP. I just think it’s interesting who chosen to be interviewed in this NY Times article. Also, previously OIA and OA teamed up to give comments, many of which were addressed as described here. So if we tracked it, it would be interesting to see how their positions shifted through the different versions. It would also be interesting to know which concerns are important to them today, though not described in this article.
Several independent forestry experts said that on paper, at least, Colorado’s plan was clearly less stringent than what the Clinton administration proposed.
This fellow is not “several”; he doesn’t seem to be associated with forests in the West, and it sounds like he hasn’t read the rule. I don’t know what it means to be “independent”; that’s what we try to achieve on this blog by hearing both sides.
“No question that in some respects it’s less protective,” said William S. Keeton, a professor of forestry and forest ecology at the University of Vermont. But whether the net effects would truly leave forests in Colorado less protected is not as clear, he said.
The plan, for example, would allow more latitude for temporary roads needed for power-line construction, which could be harmful to delicate areas, Dr. Keeton said.
I think it’s interesting that they picked this person to interview, who seems to be operating from knowledge of a previous proposal. Actually, the current proposal restricts construction zones for power lines more than the 2001 Rule, because the 2001 doesn’t have any restrictions on linear construction zones, based on the 10th Circuit in the Bull Mountain case, see previous discussion.
But it also would allow more fire-restoration work like the thinning of trees and prescribed burning, which he said could have ecological benefits if planned carefully. “The devil is in the details,” he said.
It sounds like he doesn’t really know, and hasn’t read the current proposal, so why interview him? Prescribed burning and thinning of trees are also allowed under the 2001 Rule, but thinning is restricted unless it’s for ecological reasons.
A forest supervisor for the Forest Service in Colorado, Glenn P. Casamassa, said the directive from Secretary Tom Vilsack of the federal Agriculture Department, the Forest Service’s parent agency, is that any exception to the national plan must be as strong as or stronger than the national rule. Colorado’s meets that standard, Mr. Casamassa said.
But he said the West, and maybe Colorado in particular, has also changed significantly in the intervening years. More people are living near national forests. An outbreak of pine-killing bark beetles that has its epicenter in Colorado and several major fires over those years that roared out to touch the edge of urban life have also changed thinking about intervention in the wild, Mr. Casamassa said.
“Not only has the landscape changed, but also the view of what is appropriate to do in these areas,” he said.
Ms. Danowitz at the Pew group said part of her concern about Colorado was that other states might follow its example. A patchwork system of rules and special interests that can speak loudly in state capitals was part of what the national rule was intended to fix, she said.
One person’s “patchwork of rules and special interests” is another person’s “one size does not fit all.”
But Mr. King at the state natural resources agency said he thought the critics overstated Colorado’s differences, partly out of that broader concern about what other states might do. Economic life in the woods, he said, can be balanced with protection.
“It’s one less hoop to jump through, but not a jailbreak,” he said.
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I think it’s worth hearing the reason for the state petitions rule in Mark Rey’s own words from the Nie interview (link above).
So when we came in, we looked at that history and we concluded that the crux of the problem with this issue is that it’s—on the one hand—an intensely political debate because it’s a basic resource allocation question over resources that people feel very strongly about. On the other hand, it’s a very technical debate because you’re trying to decide the fate of individual areas, putting boundaries around them that are based upon site specific data and so therefore you have to be able to amass and work with a substantial database to make good decisions.
In the case of trying to do a nationwide rule, you know you can get all the political closure you want to finally end the debate. You can have the president of the United States stand on the side of a ridge in southern Virginia and announce the outcome, but as the courts have told us, it’s hard to do justice to all the technical detail that is required to make the decision sound from the standpoint of a reviewing judge.
On the other hand, if you deal with this on a forest-by-forest basis, you can—by virtue of the fact that you have a lot less data to deal with—deal with it more intelligently.
The problem is that you can’t really get political closure to the decision because the decision is going to be made by a GS-14 or a GS-15 career civil servant and everybody knows that you can take the debate on up the food chain to see if you can get a better result. So you don’t get any real closure to the issue, both because of where it’s made and also because you don’t engage national interests to the same degree that you do in a national debate.
So we thought if we tried to find a middle road or a third path by working on a state-by-state basis, we could, on the one hand, reduce the size of the decision down to a manageable level, and on the other hand engage for the purposes of bringing better political closure to this, the one person who’s arguably elected to represent all the citizens of the state and that’s the governor, and that in a partnership with the governor we could get the right balance.