The Colorado Roadless Rule - January 29, 2013 Lisa Reynolds Kaplan Kirsch & Rockwell LLP January 29, 2013

The Colorado Roadless Rule - January 29, Roadless 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

The Colorado Roadless Rule - January 29, Roadless Area Protection Watershed protection Biological diversity Outdoor recreation High quality scenery

The Colorado Roadless Rule - January 29, History of Roadless Area Management –Pre-2001: Forest plans –2001 Nationwide Roadless Area Conservation Rule –66 Fed. Reg (Jan. 12, 2001) –Superseded Forest plans Litigation –Preliminary injunction issued by District of Idaho (May) –Vacated by Ninth Circuit (October) ……continued

The Colorado Roadless Rule - January 29, History, cont’d cont’d –2003 Federal judge in Wyoming enjoined the 2001 Rule –2005 Bush administration repealed 2001 Rule and adopted “State Petitions Rule” Challenge filed in California district court 10 th Circuit dismissed appeal of Wyoming injunction of 2001 Rule as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

The Colorado Roadless Rule - January 29, History, 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 –9 th Circuit affirmed reinstatement of 2001 Rule –Obama administration appealed the Wyoming court injunction of the 2001 Rule

The Colorado Roadless Rule - January 29, History, cont’d 2010 –Colorado submitted revised petition 2011 –USFS published Revised DEIS on Colorado Rule –10 th Circuit vacated Wyoming injunction, upholds 2001 Rule 2012 –Final approval and adoption of the Colorado Rule

The Colorado Roadless Rule - January 29, Administrative Procedures Act Section 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.

The Colorado Roadless Rule - January 29, State Specific Rules –2008: Idaho Roadless Area Management 36 C.F.R. §§ –2012: Colorado Roadless Area Management 36 C.F.R. §§

The Colorado Roadless Rule - January 29, 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

The Colorado Roadless Rule - January 29, Colorado’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

The Colorado Roadless Rule - January 29, Colorado’s Roadless Areas U.S. Department of Agriculture

The Colorado Roadless Rule - January 29, The 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

The Colorado Roadless Rule - January 29, Colorado Roadless Areas Upper Tier Acres U.S. Department of Agriculture

The Colorado Roadless Rule - January 29, Expanded Exceptions under the Colorado Rule Energy development –Oil and gas –Coal Water projects Wildfire prevention/hazardous fuels management Ski areas

The Colorado Roadless Rule - January 29, Oil and Gas Development in Roadless 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

The Colorado Roadless Rule - January 29, Gap leases Map Courtesy of Pew Environment Group

The Colorado Roadless Rule - January 29, Coal Resource Development Exception for North Fork area –19,000 acres –Permits temporary roads for exploration and development Includes methane venting

The Colorado Roadless Rule - January 29, Water Resource Systems in Colorado Roadless 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

The Colorado Roadless Rule - January 29, Wildfire/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

The Colorado Roadless Rule - January 29, Linear Construction Zones –In 10 th Circuit: LCZs are not roads, so not prohibited by 2001 Rule Wilderness Workshop v. U.S. Bureau of Land Management, 531 F.3d 1220 (10 th Cir. 2008) –Colorado Rule generally prohibits linear construction zones in Roadless Areas with major exceptions

The Colorado Roadless Rule - January 29, 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

The Colorado Roadless Rule - January 29, Safeguards Responsible Official or Regional Forester approval Watershed conservation practices Maintenance or improvement of roadless area characteristics Limited road use NEPA requirements

The Colorado Roadless Rule - January 29, Resources USFS Roadless Area Conservation website: –fs.usda.gov/roadless/ –Includes Colorado Roadless Rule website with NEPA documents Earthjustice Timeline – e-of-the-roadless-rule

The Colorado Roadless Rule - January 29, Major Roadless Rule Court Opinions Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9 th Cir. 2002) (denying request for preliminary injunction against 2001 Rule) Wilderness Workshop v. U.S. Bureau of Land Management, 531 F.3d 1220 (10 th 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 (9 th Cir. 2009) (rejecting 2005 State Petitions Rule and reinstating 2001 Rule) Wyoming v. United States Dep’t of Agriculture, 661 F.3d 1209 (10 th Cir. 2011) (upholding and reinstating the 2001 Rule)

The Colorado Roadless Rule - January 29, Questions