The Colorado Mining Association and the state of Wyoming on Monday petitioned the full 10th Circuit Court of Appeals to rehear “en banc” an October decision upholding the Clinton administration’s 2001 Roadless Area Conservation Rule.
The somewhat unusual maneuver – viewed by environmentalists as a long-shot — has the effect of keeping a Wyoming district court judge from lifting his injunction against the Clinton rule until all of the judges in the 10th Circuit Court rehear a ruling in October by a three-judge panel.
That ruling overturned the Wyoming judge’s decision and reinstated the 2001 Roadless Rule as the law of the land. It also cast serious doubt on the controversial Colorado Roadless Rule, which was drafted after the Bush administration set aside the Clinton rule and allowed states to petition for their own rules governing the management of designated roadless and undeveloped federal lands.
Monday’s move was not popular with environmental attorneys who argued for the 2001 national rule.
“The  Roadless Rule is a landmark conservation measure that protects clean water, wildlife and the public lands where Americans have enjoyed hiking, horseback riding, hunting and fishing for generations,” said Earthjustice attorney Tim Preso.
“Monday’s rehearing petition … asks for an extraordinary court procedure that is rarely granted. Nothing in the 10th Circuit’s careful and methodical decision upholding the  Roadless Rule justifies the use of that extraordinary procedure in this case.”
In Colorado, there are more than 4.2 million acres of inventoried roadless federal lands, where state officials had hoped to instate a more tailored approach that would allow more road-building exemptions for industries such as coal mining, timber removal, oil and gas drilling and ski-area expansion.
Colorado officials in October said they didn’t view the 10th Circuit Court of Appeals decision as definitive and that they would proceed with seeking federal approval of the Colorado Roadless Rule. Earthjustice attorneys at the time saw that as an unnecessary and misguided approach.
In filing its petition on Monday, the Colorado Mining Association (CMA) was sharply critical of the Clinton rule:
“Roadless lands are the key to establishing and maintaining wilderness,” CMA and Wyoming lawyers wrote in the petition conclusion. “The Roadless Rule was the product of a sham process calculated to create wilderness without Congress. The Panel decision allows the Forest Service to unlawfully circumvent Congress and thwart many of the laws designed to ensure the proper management and conservation of the National Forests. The full Court should correct this result.”
The court must still accept the “en banc” petition and agree to reopen the matter.
“The 10th Circuit’s decision represented a sweeping victory for protection of our roadless national forest lands,” Earthjustice attorney Preso said. “Americans from coast to coast favor protecting our national heritage of pristine public forests. In the extraordinary event this case is reopened, Earthjustice will be there to defend these special lands.”
The CMA clearly signaled (pdf) its displeasure with the ruling in October:
“CMA is disappointed that the decision does not reflect a practical understanding of the impact that the Rule will have upon mining jobs or access to needed minerals here in Colorado and the U. S. It is important to develop high quality coal and other mineral reserves impacted by this regulation here in the United States and in Colorado, both to ensure our nation’s energy security and reduce our dependence on minerals produced in other countries.”
National environmental groups have been pushing the Obama administration to reject the Colorado Roadless Rule and implement the Clinton rule, which they view as far more protective. Colorado conservation groups recently accused the Forest Service of violating the spirit of the Clinton rule by giving a procedural nod to a coal mine expansion on the North Fork of the Gunnison area.