STILL ROADLESS AFTER ALL THESE YEARS

Posted on May 22, 2012 by Todd D. True

In the waning days of the Clinton administration, the U.S. Forest Service adopted a regulation to protect more than 50 million acres of national forest roadless lands, i.e., public lands still undeveloped and largely untouched. Called the Roadless Area Conservation Rule [36 C.F.R. § 294] or Roadless Rule (and sometimes called the RACR), it was soon off to the races with no fewer than nine lawsuits by development interests and western states seeking to invalidate it.

First, at the request of the State of Idaho and others, a district court in Idaho issued a preliminary injunction against the Roadless Rule  – without opposition from the Forest Service, by then under different management. Conservation interests appealed and the Ninth Circuit reversed and vacated the injunction, allowing the Roadless Rule to take effect.

A district judge in Wyoming then invalidated the Roadless Rule and enjoined its implementation nationwide in a case filed by the State of Wyoming. An appeal by conservation interests to the Tenth Circuit, again with the Forest Service firmly on the sidelines, ensued. In 2005, before the appeal was resolved, the Forest Service itself repealed the Roadless Rule and replaced it with a state petition process, leading the Tenth Circuit to vacate the district court decision and dismiss the pending appeal as moot.

Conservation groups and the states of California, Oregon, Washington and New Mexico challenged the repeal.  In 2006, a district court in California overturned the repeal and reinstated the Roadless Rule.  The Ninth Circuit subsequently affirmed.

Back to Wyoming, where the State of Wyoming renewed its complaint and in 2008 the district court duly re-issued its earlier decision enjoining the Roadless Rule. Conservation groups again appealed to the Tenth Circuit, and in 2011 the Circuit reversed the district court’s decision and vacated the injunction. The RACR ruled again.

Last week, after the Tenth Circuit denied rehearing en banc, Wyoming petitioned the Supreme Court to review the Tenth Circuit’s decision.  The decision is a unanimous, one hundred-plus page review of Wyoming’s claims under NEPA, the National Forest Management Act, and the Wilderness Act -- worth a read just as a primer on the current state of these laws.  In the meantime, the Forest Service is now off the sideline and, along with conservation interests, expected to oppose Wyoming’s cert. petition.  The Supreme Court should act on the petition by next Fall.

Unless you live in Hawaii, you’re probably no more than a few hours’ drive from the nearest national forest roadless area (yes, there are roadless areas in the White Mountains, Appalachians and Ozarks as well as the western states).  Visit one and see what the controversy is all about.  Or maybe you already know because you live in one of the hundreds of communities around the country that gets its drinking water from a nearby roadless area – so you enjoy these lands every time you turn on your tap.  Any way you use and enjoy them, the more than 50 million acres of federal public land the Roadless Rule protects are still roadless after all these years. 

(Full disclosure – Earthjustice represented the conservation interests in the cases discussed above.)



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