Environmental attorneys were encouraged by the tone of a final 10th U.S. Circuit Court of Appeals hearing on the controversial 2001 Clinton Roadless Rule in Denver Wednesday. Representing a coalition of conservation and wildlife groups, lawyers for the firm Earthjustice are arguing for the court to reinstate rules put in place by Pres. Clinton to protect more than 58 million acres of largely roadless public lands nationwide, including more than 4 million acres in Colorado.
Arguing against the Clinton rules is the state of Wyoming and several logging and mining industry representatives. They are defending a case they won in 2008 against the U.S. Department of Agriculture, where Judge Clarence Brimmer of the U.S. District Court for Wyoming enjoined the Clinton rules.
“The court showed pretty strong skepticism for Wyoming’s claims, and every member of the court seemed to appreciate that there were significant differences between wilderness area management and management under the roadless rule,” Earthjustice attorney Jim Angell said.
“That undercuts Wyoming’s claim that this was a de facto wilderness designation, and the NEPA [National Environmental Policy Act] claims didn’t seem to capture the court’s attention either.”
The NEPA process provides for project-by-project public input during a federal review of logging, mining and other industrial uses on public lands. Wyoming officials claim that process is adequate to protect roadless areas from undue industrialization.
Soon after the Clinton rule went into effect in 2001, the Bush administration set it aside and later allowed for a state-by-state petition process, which only Idaho and Colorado engaged in.
Conservationists claim the Colorado rule, which is still being revised by Gov. Bill Ritter’s administration, allows far too many exceptions for logging, coal mining and ski-area expansion. They want the Obama administration to institute a comprehensive national rule like the Clinton rule that would override the pending Colorado rule.
Colorado officials want more say in how deeply into the national forest roads can be built for fuel-mitigation projects around mountain communities. The Colorado rule would allow such activity up to 1.5 miles into the forest to clear defensible space to fight wildfires in the wake of the ongoing mountain pine bark beetle epidemic.
“One of the judges had questions about the ability to which the Forest Service could fight beetle infestation under the rule, but there is an exception for that [already in the Clinton rule],” Angell said.
“Even to the extent that [the judges] have misgivings about the substance of the [Clinton] rule, it also seemed like they were appreciating that those are really largely the policy prerogatives of the administration and that that’s what we have elections for, and it’s not up to judge’s to throw out rules with which they might disagree.”
Earthjustice is representing the Wyoming Outdoor Council, The Wilderness Society, Sierra Club, Biodiversity Conservation Alliance, Pacific Rivers Council, Natural Resources Defense Council, National Audubon Society and Defenders of Wildlife.
The judges took all of Wednesday’s testimony under advisement and will issue a final decision sometime in the coming months. Earthjustice has promised to take the case to the U.S. Supreme Court if Brimmer’s decision is not overturned by the appeals court.