Fork in the roadless: Will Colorado use federal or state-specific rules?
By Matthew Berger
The Daily Sentinal
Saturday, March 24, 2012
Grand Junction, Colorado – About 12 miles east of Paonia, Minnesota Creek Road ends at Beaver Reservoir in the Grand Mesa, Uncompahgre and Gunnison National Forest. A mile farther is the edge of the Sunset Roadless Area, one of many battlegrounds throughout western Colorado where a legal war over road building on public lands has raged for the past decade.
The war appears to finally be nearing its conclusion. But not quite yet.
After 11 years and several drawn-out court challenges, the Roadless Area Conservation Rule, which was adopted by U.S. Department of Agriculture, still stands. Its defenders say the rule should now be immune from further challenges and can and should be enforced by the Obama Administration. Defenders and challengers expect the rule to have significant impacts on communities, businesses and wild places in western Colorado.
But for Coloradans, one last coda remains before the full scope of those impacts can be fully assessed.
The Agriculture Department is expected to decide within the next month on a draft proposal for a state-specific rule that would govern roadless areas in Colorado’s national forests and supersede the federal rule in the state.
While the rules share many similarities, there are key differences in which areas they set aside as roadless and the degree to which they prevent development there. Those differences have divided people in support of the federal rule, the draft Colorado rule or no rule at all.
The Sunset Roadless Area, and the North Fork region as a whole, is one of the ground zeros in this conflict.
Arch Coal’s West Elk mine, a mile east of Somerset, holds leases to the coal underlying much of the land northwest of the Sunset area. The company is trying to expand farther south into that roadless area, but the federal roadless rule would ban building roads there, making that expansion essentially infeasible.
The draft Colorado rule, on the other hand, includes an exemption from road-building restrictions for coal-related activities within what it designates as the North Fork Coal Mining Area, which includes the Sunset area and parts of two other areas designated as roadless under the 2001 federal rule.
Under the federal rule, “production in these mines would be impaired substantially,” said Stuart Sanderson, executive director of the Colorado Mining Association, which along with the state of Wyoming unsuccessfully challenged the rule in court last year. A request for the Denver-based 10th Circuit Court to rehear the case was denied last month.
“We’re really talking about ongoing operations because you just move from one resource to the next,” he said, citing the importance to local communities of royalties from coal mining as well as the well-paying, “recession-proof” jobs. “If we’re talking about jobs, then something needs to be done to protect these mines,” he said.
But conservation groups point to the pristine and increasingly rare habitat for elk, lynx, beaver and black bear that roadless areas in the region preserve, as well as their values as watershed and outdoor recreation sites.
The long road to roadless
The proposed Colorado roadless rule was developed when the fate of the federal rule, mired in lawsuits, appeared in jeopardy. With the legal footing of the federal rule now more stable, conservationists and others say the proposed Colorado rule should be scrapped in favor of what they see as the stronger federal one.
But others, particularly business leaders, say the Colorado rule is far more accurate at identifying areas that are “truly roadless” and at taking into account the particular situations of Colorado’s forests.
Agriculture Department Secretary Tom Vilsack confirmed the Forest Service continues to work with Colorado officials to craft a state-specific roadless rule.
“We will continue to work with Colorado on its own roadless rule,” Vilsack said in a phone interview Thursday with The Daily Sentinel. He said the effort is an indication of their desire for “more protected areas without necessarily limiting the capacity of industry or outdoor recreation.
Whatever the outcome, the controversy over increasing or limiting access to public land and the resources found there — and the battle over road building, in particular — is likely as old as the establishment of public land in the first place. In some ways, in the birthplace of both the automobile and the preservationist movement, it is a particularly American conflict.
Edward Abbey, for instance, felt first-hand the conflict between what he termed “the Developers” and “the Preservers” in 1956. When two road surveyors drove their jeep down the as-yet-unpaved road in Arches National Park, which was a national monument at the time, and stopped at Abbey’s trailer for a sip of water, the writer foresaw the future of that and many other public lands: “My thoughts were on the road and the crowd that would pour upon it as inevitably as water under pressure follows every channel which is opened to it,” he wrote in “Desert Solitaire.”
Abbey is far from the only advocate for maintaining wildernesses untrammeled by the convenient access that roads provide. In 2001, their dreams were partly fulfilled by the Roadless Area Conservation Rule, which the U.S. Forest Service adopted in the last few weeks of President Bill Clinton’s administration.
But that January day provided a setback to the dreams of many others. Its opponents saw the setting aside of swaths of land as illegally restricting their rights to develop the resources contained therein, kicking up the cloud of litigation that has engulfed the term “roadless” since that time.
The rule originally set aside 58.5 million acres of national forest land it identified as roadless and sought to keep that way. The George W. Bush administration rescinded the rule in 2005, and after years of legal wrangling the rule was reinstated by the San Francisco-based 9th Circuit in 2009. Its opponents then challenged it again, but in October the 10th Circuit again upheld the rule in the case brought by Wyoming and the Colorado Mining Association.
The rule now covers only 40 million of the original 58.5 million acres because Idaho — which has its own state-specific rule — and the Tongass National Forest in Alaska are no longer included.
Late last month, Wyoming announced it will try to appeal to the Supreme Court, but the federal rule’s supporters say it is highly unlikely the court will hear a case on which two separate lower courts reached the same conclusion.
“The state of Wyoming’s options to get this rule overturned are now approaching zero,” said Ted Zukoski, an attorney at Earthjustice, which has been defending the rule since its inception.
One critique opponents of the federal rule have raised is it relied on outdated maps and designated some areas as roadless that actually were not. This was a key justification for some of the Colorado proposal’s departures from the federal rule.
Zukoski points to the fact circuit courts twice ruled this argument does not hold enough water.
“And why does that mean we should have less protection for water and wildlife?” he asked.
In the case of the North Fork region, he said, when maps of the Grand Mesa, Uncompahgre and Gunnison National Forest were updated they actually found more roadless areas than the 2001 rule included.
As far as implementing the 2001 rule goes, western Colorado’s national forests are in a holding pattern as they await word from Washington.
“Any project we do right now, either in a 2001 roadless area or a Colorado roadless area, has to go to the secretary of agriculture for approval. We’re basically looking at both rules and have to run everything by the secretary,” said Charlie Richmond, supervisor of the Grand Mesa, Uncompahgre and Gunnison National Forest National Forest, in an interview late last month.
Some of the largest areas potentially impacted by the upcoming decision on the Colorado plan include the Thompson Divide area along where Mesa, Garfield, Pitkin and Gunnison counties meet as well as the Cochetope Hills area south of Gunnison.
The full potential impacts of the federal rule and, especially, the draft Colorado rule are hard to gauge. The Colorado rule could change significantly as the U.S. Department of Agriculture reviews it and makes a decision, said Bob Randall, deputy director of the state Department of Natural Resources.
One major difference is the Colorado rule would set aside some areas as “upper tier,” granting them greater protections than the rest of the roadless areas. The federal rule gives all areas the same protections. This tool gives the state greater flexibility, but it has been criticized for leading to some areas getting less protection than they would under the federal rule.
“We really feel like the Colorado rule is still important. It’s a better rule and better for Colorado” because of those flexibilities to deal with issues such as bark beetles and potential wildfire threats and because of exceptions for the expansion of some ski areas and coal mines, said Randall.
He said the current map of upper-tier areas is expected to change as his agency works with the Forest Service on reviewing the proposed rule. Some people wanted no upper-tier areas, and some wanted 2.5 million acres, he said.
“The final number will be somewhere between the two,” Randall said.
Impacts on local industries from either of the roadless rules vary, from business to business and site to site, as do the impacts on individuals.
For Jeff Mead, the power of roads to permanently change a landscape was witnessed first-hand. In 2005, his outfitting business faced a crisis. After two decades of taking hunters through the 39-square-mile roadless expanse around Mamm Peaks, in the portion of White River National Forest below Rifle, Encana’s plans for two exploratory wells in the East Mamm Creek drainage threatened to bring traffic, noise and pollution to prime elk and bear habitat. He figured his business effectively would be shut down.
Encana decided to abandon the plan the following year, but it already had built a 1.5-mile road into the area. The national forest required that it remove the road and rehabilitate the cleared area, which the company promptly did, reseeding it with native plants and taking measures to prevent erosion. Encana spokesman Doug Hock said earlier this month that the company has no further plans at this time for roads in the Mamm Peaks area.
The Department of Natural Resources has said some of the roads allowed for activities such as logging or mine expansion under the Colorado proposal would be temporary and be allowed to grow over again.
But Mead said the reclaimed 2005 road is still plainly visible and has allowed increased use of the area by all-terrain vehicles. A Forest Service ranger based in Rifle said ATVs are allowed in the area, but for Mead the episode shows that even temporary roads have permanent impacts.
“Once a road is built, it’s over,” he said. “Once you bust all those trees down and build that road, it’s not going to go back to the way it was.”
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