lisa reynolds kaplan kirsch & rockwell llp january 29, 2013

The Colorado Roadless Rule - January 29, 2013

Lisa ReynoldsKaplan Kirsch & Rockwell LLP

January 29, 2013

The Colorado Roadless Rule - January 29, 2013 2

Roadless AreasRoadless Areas• Approximately 30% of national forest

lands– Excludes wilderness areas, national parks

• Generally undeveloped, 5,000 acres or greater

• Important characteristics:– High quality or undisturbed soil, water and air– Sources of public drinking water– Diversity of plant and animal communities


Roadless Area ProtectionRoadless Area Protection

• Watershed protection

• Biological diversity

• Outdoor recreation

• High quality scenery


History of Roadless Area Management History of Roadless Area Management

– Pre-2001: Forest plans– 2001 • Nationwide Roadless Area Conservation Rule

– 66 Fed. Reg. 3244 (Jan. 12, 2001)– Superseded Forest plans

• Litigation– Preliminary injunction issued by District of Idaho

(May)– Vacated by Ninth Circuit (October)

……continued


History, cont’dHistory, cont’d• cont’d– 2003

• Federal judge in Wyoming enjoined the 2001 Rule– 2005

• Bush administration repealed 2001 Rule and adopted “State Petitions Rule”

• Challenge filed in California district court• 10th Circuit dismissed appeal of Wyoming injunction of

2001 Rule as moot– 2006

• California district court vacated State Petitions Rule and reinstated 2001 Rule

• Forest Service announced it would accept state petitions under the APA, section 553(e)

• Gov. Owens submitted petition for Colorado Rule


History, cont’dHistory, cont’d• 2007– Wyoming challenged the 2001 Rule

• 2008– Wyoming federal district court invalidated and

enjoined the 2001 Rule, creating conflict with California district court decision to reinstate 2001 Rule

– USFS published DEIS on Colorado Rule • 2009– 9th Circuit affirmed reinstatement of 2001 Rule– Obama administration appealed the Wyoming

court injunction of the 2001 Rule


History, cont’dHistory, cont’d• 2010– Colorado submitted revised petition

• 2011– USFS published Revised DEIS on Colorado

Rule– 10th Circuit vacated Wyoming injunction,

upholds 2001 Rule

• 2012– Final approval and adoption of the

Colorado Rule


Administrative Procedures Act Section Administrative Procedures Act Section 553(e)553(e)

• Section 553: Rulemaking– (e) Each agency shall give an interested

person the right to petition for the issuance, amendment, or repeal of a rule.


State Specific RulesState Specific Rules

– 2008: Idaho Roadless Area Management• 36 C.F.R. §§ 294.20-29

– 2012: Colorado Roadless Area Management• 36 C.F.R. §§ 294.40-49


2001 Rule2001 Rule

– No new or reconstructed roads– No logging or other tree-cutting– No new mineral leases allowing for road

construction– Limited exceptions– Allows motorized uses, grazing, oil and

gas development that do not require road construction


Colorado’s Roadless RuleColorado’s Roadless Rule• Updates inventory of roadless acreage– 4,186,000 acres in roadless areas

• Retains the general approach of 2001– No tree-cutting– No road-building

• Adds “Upper Tier” protections• Expands exceptions to general

prohibitions• Restricts linear construction zones


Colorado’s Roadless Areas

U.S. Department of Agriculture


The Upper TierThe Upper Tier

• Upper Tier Areas– 1,219,000 acres (approx. ¼) – Road construction permitted only• If necessary for reserved or outstanding rights• To protect public safety (fire, flood, other

imminent catastrophic event)

– Tree-cutting permitted if• Incidental to implementation of a management

activity• Personal or administrative use


Colorado Roadless Areas Upper Tier AcresColorado Roadless Areas Upper Tier Acres

U.S. Department of Agriculture


Expanded Exceptions under the Expanded Exceptions under the Colorado Rule Colorado Rule

• Energy development– Oil and gas– Coal

• Water projects

• Wildfire prevention/hazardous fuels management

• Ski areas


Oil and Gas Development in Oil and Gas Development in Roadless AreasRoadless Areas

• Pre-2012 leases: – Rights under existing leases are

unaffected– “Gap leases”

• Post-2012 leases: – Upper Tier: NSO stipulations required– Non-Upper Tier: road construction

prohibited


Gap Gap leasesleases

Map Courtesy of Pew Environment Group


Coal Resource Development Coal Resource Development

• Exception for North Fork area– 19,000 acres– Permits temporary roads for exploration

and development• Includes methane venting


Water Resource Systems in Colorado Water Resource Systems in Colorado Roadless AreasRoadless Areas

• Upper Tier: linear construction zones

• Non-Upper Tier: road construction

• Water conveyance structure must be – Operated pursuant to “pre-existing water

court decree”– Includes absolute and conditional rights

applied for on or before July 3, 2012


Wildfire/Hazardous FuelsWildfire/Hazardous Fuels• Community Protection Zones (CPZs)

• Within ½ mile of at-risk community• Within 1.5 miles of if identified in Wildfire

Protection Plan or has certain geographic features

• Tree-cutting permitted in non-Upper Tier• In CPZ, to protect at-risk community or

municipal water supply (non-Upper Tier only)• Anywhere in or out of CPZ if “significant risk”

to municipal water supply system

• Temporary road permitted within first ½ mile of CPZ


Linear Construction ZonesLinear Construction Zones– In 10th Circuit: LCZs are not roads, so not

prohibited by 2001 Rule• Wilderness Workshop v. U.S. Bureau of

Land Management, 531 F.3d 1220 (10th Cir. 2008)

– Colorado Rule generally prohibits linear construction zones in Roadless Areas with major exceptions


Linear Construction Zones Permitted Linear Construction Zones Permitted

• Upper tier–Water conveyance structures (ditches,

canals, and dams)– For reserved and outstanding rights

• Non-upper tier–Water conveyance structures – Transmission lines– Oil and gas pipelines (no pass-throughs)– Telecommunications lines

• Regional Forester approval required


SafeguardsSafeguards

• Responsible Official or Regional Forester approval

• Watershed conservation practices

• Maintenance or improvement of roadless area characteristics

• Limited road use

• NEPA requirements


ResourcesResources

• USFS Roadless Area Conservation website: – fs.usda.gov/roadless/– Includes Colorado Roadless Rule website

with NEPA documents

• Earthjustice Timeline– http://earthjustice.org/print/features/

timeline-of-the-roadless-rule


Major Roadless Rule Court OpinionsMajor Roadless Rule Court Opinions• Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002)

(denying request for preliminary injunction against 2001 Rule)

• Wilderness Workshop v. U.S. Bureau of Land Management, 531 F.3d 1220 (10th Cir. 2008) (Bull Mountain Pipeline case)

• Wyoming v. United States Dep’t of Agriculture, 570 F. Supp.2d 1309 (D. Wyo. 2008) (vacating 2001 Rule)

• State of California ex rel. Lockyer v. United States Dep’t of Agriculture, 575 F.3d 999 (9th Cir. 2009) (rejecting 2005 State Petitions Rule and reinstating 2001 Rule)

• Wyoming v. United States Dep’t of Agriculture, 661 F.3d 1209 (10th Cir. 2011) (upholding and reinstating the 2001 Rule)


QuestionsQuestions

lisa reynolds kaplan kirsch & rockwell llp january 29, 2013

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