Wyoming v. U.S. Department of Agriculture: Good News for Conservationists, But the Roadless Rule Is Not Out of the Woods Just Yet

On October 1, 2012, the Supreme Court denied two petitions for writ of certiorari seeking to strike down the Roadless Area Conservation Rule.[i]  The Court’s order leaves intact the decision of the Tenth Circuit, which upheld the Roadless Rule in 2011.[ii]  The Roadless Rule was promulgated by the Department of Agriculture’s Forest Service on January 12, 2001, in the final days of the Clinton Administration.[iii]  The Rule prohibits “road construction, road reconstruction, and timber harvesting in inventoried roadless areas [IRAs] on National Forest System lands” subject to certain exceptions.[iv]  Its object is to conserve these IRAs, which are vital to maintaining environmental and human health.[v]  Specifically, the Forest Service identified IRAs as a source of clean drinking water and as “biological strongholds for populations of threatened and endangered species.”[vi]  The IRAs subject to the Roadless Rule total 58.5 million acres, one third of the National Forest System lands, and are located within over a quarter of the major watersheds in the U.S.[vii]

The Rule quickly became the subject of litigation as states as well as mining and timber companies pushed back against this perceived obstacle to economic growth and prosperity.[viii]  The Rule’s restrictions apply to over one third of Wyoming’s 9,238,000 acres of national forest land.[ix]  In 2007, the state of Wyoming, and the Colorado Mining Association (CMA) as plaintiff-intervenor, brought suit against the Department of Agriculture to enjoin enforcement of the Rule.[x]  The case came before the same judge who, in 2003, had granted a permanent injunction in a nearly identical suit brought by Wyoming shortly after the Rule came into effect, and again the judge permanently enjoined enforcement of the Rule.[xi]

On appeal to the Tenth Circuit, Wyoming and the CMA asked the court to affirm on the NEPA and Wilderness Act grounds cited by the district court or, in the alternative, on the grounds that the Rule violated the National Forest Management Act (NFMA) and the Multiple-Use and Sustained-Yield Act (MUSYA).[xii]  The circuit court, however, reversed the order of the district court and ordered that the permanent injunction be vacated.[xiii]  The court rejected claims of extensive NEPA violations, citing the great deference afforded to agency conduct and identifying error in some of the district court’s findings.[xiv]  It also held that the Forest Service did not usurp the power of Congress under the Wilderness Act to designate land as wilderness (by creating use restrictions that rendered IRAs effectively “wilderness”) because the limitations the Rule placed on human activity in the IRAs were far less restrictive than those required by the Act in wilderness areas.[xv]  The court also held that the Forest Service had the power to pass this regulation pursuant to the MUSYA because that statute recognized that the Forest Service could set aside some lands for mixed uses that did not include commercial activities such as timber harvesting.[xvi]  Finally, the court stated that the Rule did not violate the NFMA, which provides for individualized, forest-specific planning, because that statute expressly indicated that it was not meant to prevent the Forest Service from making nationally-applicable rules pursuant to MUSYA and the Organic Administration Act.[xvii] 

The Tenth Circuit decision marked a victory for conservation groups.  This month, the denial of cert in the case sealed that victory and brought to a close a decade of uncertainty surrounding the embattled Roadless Rule.  However, it will not be applied uniformly to all the states.  While the validity of the Roadless Rule was still in question, Colorado and Idaho petitioned the Forest Service to create state-specific Roadless Rules that superseded the national Rule and are therefore unaffected by the Tenth Circuit ruling.[xviii]  According to environmental groups, both rules offer less protection than the national Roadless Rule by, among other things, allowing for greater commercial activity, including mining, in IRAs.[xix] 

Now that the national Roadless Rule has survived its latest challenge, conservationists are concerned that states unhappy with its limits on commercial activity in IRAs may seek to carve out individual exceptions that could undermine the uniform approach and extensive protections of the Rule.[xx]  The Rule also faces the risk of outright repeal, as Congress is currently considering legislation that would strip all but approximately 3 million of the 58.5 million acres of IRAs of their protections under the Roadless Rule.[xxi]  Although the Supreme Court’s order brought an end to the most recent round of Roadless Rule litigation, it appears that the Rule is not out of the woods just yet.

 

— Julie George, Associate 


[i] Wyoming v. U.S. Dep’t of Agric., No. 11-1378, 2012 U.S. LEXIS 7786 (U.S. Oct. 1, 2012); Colorado Mining Ass’n v. U.S. Dep’t of Agric., No. 11-1384, 2012 U.S. LEXIS 7636 (U.S. Oct. 1, 2012).

[ii] See Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1220 (10th Cir. 2011).

[iii] Roadless Area Conservation Rule, 66 Fed. Reg. 3244 (Jan. 12, 2001) (to be codified at 36 C.F.R. pt. 294).

[iv] Id. at 3244. 

[v] Id. at 3245. 

[vi] Id. at 3245. 

[vii] Id. at 3245.

[viii] See, e.g., Wyoming v. U.S. Dep’t of Agric., 277 F.Supp.2d 1197, 1239 (D. Wyo. 2003) (resulting in a permanent injunction against enforcement of the Rule), vacated, 414 F.3d 1207, 1210 (10th Cir. 2005).

[ix] U.S. Supreme Court Leaves Roadless Rule Standing, Env’t News Serv. (Oct. 2, 2012), http://ens-newswire.com/2012/10/02/u-s-supreme-court-leaves-roadless-rule-standing/.

[x] Wyoming v. U.S. Dep’t of Agric., 570 F.Supp.2d 1309, 1318 (D. Wyo. 2008). 

[xi] Id. at 1318, 1355. 

[xii] Wyoming v. U.S. Dep’t of Agric., 661 F.3d at 1220. 

[xiii] Id. 

[xiv] Id. at 1236-1266. 

[xv] Id. at 1227-235. 

[xvi] Id. at 1266-269. 

[xvii] Id. at 1269-273.

[xviii] Idaho Roadless Area Management, 36 C.F.R. § 294.20 (2008); Colorado Roadless Area Management, 36 C.F.R. § 294.40 (2012); see 36 C.F.R. § 294.48(g) (“After July 3, 2012, [the 2001 Roadless Rule] shall have no effect within the State of Colorado.”).

[xix] Roadless Rule Becomes Law of the Land, The Wilderness Society, http://wilderness.org/update/roadless-rule-becomes-law-land (last visited Oct. 15, 2012); Kirk Johnson, State Goes Its Own Way to Regulate Forest Roads, N.Y. Times (Feb. 5, 2012), http://www.nytimes.com/2012/02/06/us/colorado-seeks-own-roadless-rule-for-national-forests.html?pagewanted=all&_r=0.

[xx] Johnson, supra note 19.

[xxi] America’s Great Outdoors – Don’t Give It Away!, The Pew Envtl. Grp. (July 2011), http://www.pewenvironment.org/uploadedFiles/PEG/Publications/Fact_Sheet/McCathy%20Barasso%20fact%20sheet.pdf.

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