Roadless

DENVER-#354753-v1-WY_v__USDA_10th_Circuit_Opinion

Of course, some could argue that the NEPA is now stale… the circle of life..

Piece from Summit County Voice here.

The way the TWS campaign piece here is written implies that the “loopholes” are in relation to the 2001 Rule.

The draft Colorado Rule contains several major flaws that, unless corrected, mean Colorado’s forests would receive less protection than other states.

The proposed Colorado rule:

Allows 100 oil and gas leases to be developed in some of Colorado’s best backcountry areas.
Does not clearly specify where logging would be allowed for the purpose of reducing fire risk to communities.
Allows for road building (euphemistically called “linear construction zones”) for water conveyance structures, electrical power lines, telecommunication lines, and oil and gas pipelines.
Leaves out over 2 million acres of exceptional lands from receiving enhanced “upper tier” protections. Further, loopholes put “upper tier” roadless areas at risk from oil and gas development, pipelines, and transmission lines.

This proposed Colorado rule would undermine the protections these forests enjoy under the 2001 national roadless forest rule. Our wild Colorado forests deserve better than this.

Allows for road building (euphemistically called “linear construction zones”) for water conveyance structures, electrical power lines, telecommunication lines, and oil and gas pipelines.

As we know, based on case law  from the Bull Mountain case, the 2001 Rule does allow linear construction zones.

That is the key point that TWS must have missed. So therefore ANY restrictions that the Colorado Rule puts in place make the Colorado Rule more restrictive than the 2001; and therefore give Colorado’s forests greater protection that the rest of the country (of course, whether the rest of the country is under the 2001 Rule as we await the appeal in the 10th Circuit is unclear).

What the Colorado Rule does is define them and put in several kinds of restrictions on them.  For powerlines and telecommunication lines,  going around the roadless area must be show to be  more environmentally damaging.   They are not allowed for oil and gas pipelines that go from outside a roadless area to another location outside a roadless area.

Here’s the definition from the proposed Colorado rule:

Linear Construction Zone: A temporary linear area of surface disturbance over 50 inches wide that is used for motorized transport by vehicles or construction equipment to install a linear facility. It is not used as a motor vehicle route and is not engineered to road specifications.

And on the powerlines and telecommunication lines:

Authorize electrical power lines or telecommunication lines within Colorado Roadless Areas only if there is no opportunity for the project to be implemented outside of a Colorado Roadless Area without causing substantially greater environmental damage;

Leaves out over 2 million acres of exceptional lands from receiving enhanced “upper tier” protections. Further, loopholes put “upper tier” roadless areas at risk from oil and gas development, pipelines, and transmission lines.

Well, I don’t know how exceptional the 2 million acres are; we could argue about that. I do know that many folks are concerned that the upper tier as in the proposed rule does not allow for treatments for wildlife habitat that involve tree-cutting, and for fuels treatment. It’s easy to say”upper tier is good” but to get agreement about what lands should go into it and what the prescription should be (other than those previously agreed to through forest plans) is not so clear.

To assert that “loopholes put “upper tier” roadless areas at risk from oil and gas development, pipelines, and transmission lines” seems to be a restatement of previous inaccuracies. Again, roads for new oil and gas leases are not allowed, same as 2001. The only question is the legality of allowing roading in the so-called gap leases (see #1 of this series) and that can be solved in court. If the roading is allowed in preexisting leases, it doesn’t matter if the area is in upper tier or not- what governs is that the lease is valid and preexisting.

As described above the Colorado Rule is actually more restrictive than the 2001 with regard to pipelines and powerlines.

Reasonable people can disagree about many things in the proposed rule. But it doesn’t help public discourse to publish untrue and/or misleading assertions. It distracts members of the public from debating the real issues and reduces the quality of public comment and discourse, in my opinion.

I ran across this this morning in my readings, from the Buddhists:

“Right speech (explained in positive terms) means speaking in ways that are trustworthy, harmonious, comforting and worth taking to heart. When [we] make a practice of these positive forms of right speech, [our] words become a gift to others.” (Thanissaro Bhikkhu)

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.

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

The first piece I’ll look at is this one in HCN- not for any particular reason, other than I was reading HCN and ran across it. Here’s the link.

Been wondering what’s new with the Clinton-era Roadless Area Conservation Rule? Well, being the inveterate wonks we are, we’ve got an update for you on the latest with this 2001 rule that banned most logging and road building (but not off-roading or mining) on 58.5 million acres of national forest.

But first, a bit of history: In 2004, Bush repealed the rule, but allowed states to develop their own forest-protection plans. Which meant that states had to petition the federal government to protect roadless areas within their boundaries, that residents of other states had no say in those petitions, and that each state could thus have a different set of rules. Idaho and Colorado quickly drafted proposals. Idaho’s regulations, approved in 2008, protect about 9 million acres and open 400,000 to road-building, logging and mining.

This February, a federal judge upheld Idaho’s rule after environmentalists charged that it would harm endangered caribou and grizzly bears. And last week, Colorado released a new draft of its proposal, which would protect most of its 4 million roadless acres but allow new transmission lines, logging to control pine beetles, temporary drilling and coal-mining roads, and energy development on roughly 100,000 acres. The plan is open for public comment until July 14.

As for Clinton’s original roadless rule, it was reinstated in 2006, but its legal status won’t be resolved until appeals of a 2008 injunction are decided, probably early this year.

Let’s take

1.

that residents of other states had no say in those petitions

This is not entirely true, as public comment was open in Colorado and Idaho to everyone across the country, and national interest groups played a role. In addition, there was a national advisory committee (RACNAC) that the designer of this process, Mark Rey, intended to provide a balance, and national perspective to the state petitions. I know the RACNAC folks and I don’t know any who are shrinking violets when it comes to stating his or her opinion.

” Idaho and Colorado quickly drafted proposals.”

“Quick” is not an adjective that I would use about anything that involves federal rulemaking, and particularly not Colorado….having spent time with the Task Force that developed the petition, I would argue that a better adverb might be “laboriously.”

Idaho’s regulations, approved in 2008, protect about 9 million acres and open 400,000 to road-building, logging and mining.

I am only slowly learning about the Idaho rule, but what is interesting to me is that it appears that temporary roads can be built for fuels treatments in the Backcountry Restoration Theme (more than 400K acres), but it looks like roads are allowed for everything else but mining on the 400K. If this is not the case, I would appreciate some enlightening by those more familiar with Idaho.

which would protect most of its 4 million roadless acres but allow new transmission lines, logging to control pine beetles, temporary drilling and coal-mining roads, and energy development on roughly 100,000 acres.

New power transmission lines are also allowed in the 2001 Rule as long as you don’t build roads. The 2001 Rule is therefore the same as the proposed Colorado Rule with regard to powerlines.

The tree cutting allowed is for fuels treatment around communities and to protect municipal water supply systems from fire, Controlling pine beetles is not really possible in this part of the country.

Temporary drilling and coal-mining roads on roughly 100 K acres.

There are 20K acres in the North Fork Coal area, and there is no other energy development. Unless the author is thinking of the so-called gap leases, (this requires another post) which are not 80K so I don’t know where 100K comes from.

Next edition: the wonderful world of “gap” leases.

Here’s the Greenwire story.. and a link to the Congressional Research Service pub.

FORESTS: Report suggests Congress resolve roadless rule before case reaches Supreme Court (04/21/2011)
Phil Taylor, E&E reporter
A decade-long, litigious battle over how to manage the nation’s remaining roadless forests may have to be decided by Congress, according to a report issued this week by the nonpartisan Congressional Research Service.

The 19-page report suggests the ongoing legal battle over the Clinton administration’s controversial 2001 roadless rule could also be solved if the Obama administration promulgates its own rule for managing the nation’s remaining unspoiled forests.

The Obama administration could also follow the lead of the George W. Bush administration, which allowed states to petition for their own roadless plans rather than follow the national model, the report suggests. The Bush plan was panned by conservation groups and found to be unlawful by the 9th U.S. Circuit Court.

At issue is the fate of 58 million acres of relatively pristine forests — roughly a third of the national forest system — where the Clinton administration banned most road construction and timber harvesting.

The rule could face conflicting legal opinions from the 9th and 10th circuit courts, setting the stage for a possible Supreme Court case, the report warns.

“The ultimate decision of which roadless rule applies may not be in the courts, unless it is brought before the Supreme Court, but by Congress,” the report said. “The contradictory court decisions may indicate a statutory fix is needed.”

The report notes that the Clinton rule was upheld in 2009 by the 9th Circuit but that the 10th U.S. Circuit Court of Appeals is still considering a Wyoming court’s decision overturning the rule on the grounds that it violated the National Environmental Policy Act and created de facto wilderness, which only Congress can declare.

“This could lead to a conflict between the two circuits with one saying the nationwide rule is valid nationwide, and another saying the contrary,” the report says.

However, the report cites language in both the Multiple Use Sustained Yield Act and National Forest Management Act that gives the Forest Service authority to manage areas as wilderness and assure the protection of watersheds, wildlife and recreational opportunities. The report did not say whether the Clinton rule restrictions violate a separate mandate to maintain productive forests.

Rep. Jay Inslee (D-Wash.) and Sen. Maria Cantwell (D-Wash.) last Congress introduced a pair of bills to make the Clinton rule protections permanent and resolve the ongoing legal battle (E&ENews PM, Oct. 1, 2009).

The bills would allow for continued forest management to promote forest health, preserve public access to existing roaded areas and ensure continued opportunities for hunting, fishing, hiking and other forms of outdoor recreation, according to the lawmakers.

“Numerous lawsuits have tracked the roadless rule’s course, both in favor and opposed,” Inslee said on the House floor at the time. “This legislation will permanently protect our nation’s roadless areas and remove all ambiguity concerning their conservation and protection.”

Staff for both Inslee and Cantwell this morning did not immediately say whether the lawmakers planned to reintroduce the proposals in this Congress.

While Inslee’s bill carried several Republican co-sponsors, such a measure would likely face heavy resistance in the current Republican-led House, where some members have pledged to roll back Obama administration policies they say have locked up federal lands.

Greenwire obtained the CRS report from the office of Rep. Kevin McCarthy (R-Calif.), who last week introduced a bill to release the majority of inventoried roadless lands into multiple-use management, which could include timber, oil and gas development or other road-dependent uses ( E&ENews PM, April 15).

McCarthy’s bill, H.R. 1581, calls for the reversal of the 2001 roadless rule and would open up roughly 49 million acres to logging, road building and extractive uses, according to critics.

The bill has 22 Republican co-sponsors including National Parks, Forests and Public Lands Subcommittee Chairman Rob Bishop (R-Utah), and Western Caucus Chairman Steve Pearce (R-N.M.).

Conservation groups have slammed the proposal, calling it a threat to the “last refuge” of many of the nation’s wildlife species.

“This bill threatens to kill off wide-ranging species that just cannot survive in the developed landscape,” said Earthjustice attorney Tim Preso, in a statement. “We are talking about grizzly bears, wolves, elk, and bighorn sheep. The bill would also remove protections for some of our last, best fisheries, including blue-ribbon trout streams and some of the last available spawning habitat for imperiled wild salmon.”

In the meantime, Agriculture Secretary Tom Vilsack said he will decide which timber or road building proposals are allowed to go forward in roadless areas on a case-by-case basis.

Last May, he authorized 14 road construction projects to honor pre-existing mining claims and to allow the construction of methane vents in Colorado coal mines located underneath roadless areas (Greenwire, May 13, 2010).

Conveniently for the NCFP reader, we have our own resident roadless geek (me!). A new act in Roadless Rule Theater opened last week with the beginning of a comment period on the proposed 2011 Colorado Roadless Rule. In my view, the first step of reaching mutual understanding is to jointly examine underlying facts. In this spirit, I will introduce two new features:

1) Roadless Fact Check- where I will examine claims made by various individuals and press stories.

2) A q&a opportunity called “Ask a Roadless Geek” where I will do my best to answer your questions. Send them to [email protected]. If you don’t feel comfortable using your name, you can use any pseudonym you’d like, e.g. “Perplexed by Obscure Policy” or “Somnolescent Due to Apparently Endless Wrangling”.

These two efforts are supplanting the previous “Roadless Media Watch” that showed up on the right hand column.

Stay tuned for the first edition of Roadless Fact Check…

For those of you who follow roadless, here’s a link.

This was an interesting quote:

The Sierra Club’s Mark Rorick says that’s not the case.

“The roadless rule does not stop personal use wood permits, and it does not stop access or road-building to mines. It allows utility corridors through the roadless areas. It allows corridors for hydro. All these things that people are saying the roadless rule would stop are just not true.”

Not too long ago, in a courtroom not far away, we were in litigation about a pipeline where the plaintiffs argued that building a linear facility required the equivalent of a “road” which was not OK by the 2001 Rule. We argued the same as Rorick and won. It’s nice when we can all agree.