On October 21st, the U.S. Forest Service and environmental advocates successfully defended the Clinton administration's Roadless Area Conservation Rule ("Roadless Rule"), winning a decision by the U.S. Court of Appeals for the 10th Circuit requiring a district court to vacate its nationwide injunction against the rule. See Wyoming v. U.S. Dep't of Agriculture (USDA), No. 09-8075 (10th Cir. Oct. 21, 2011).
The state of Wyoming, with support from the Colorado Mining Association, had won a decision in the U.S. District Court for the District of Wyoming on claims that the Roadless Rule violated the Wilderness Act and the National Environmental Policy Act ("NEPA") by creating de facto wilderness areas and by doing so without following NEPA procedural requirements. The Roadless Rule eliminated prospects for almost any road construction on about 58.5 million acres of federal land.
The USDA, including the Forest Service, appealed to the 10th Circuit with support from environmental groups. The department argued that federal laws gave the Forest Service adequate discretion to bar road construction in national forests, and that the rule had been developed in conformity with NEPA requirements.
A three-judge panel of the appeals court ruled in favor of the Forest Service on all points. The appeals court said the Roadless Rule allowed the possibility of at least some road construction and some grazing and mining, which meant that it did not amount to a de facto creation of wilderness. The decision brings the 10th Circuit into agreement with the Ninth Circuit, which had rejected challenges to the Clinton administration's 2001 Roadless Rule. See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002). This decision will, for the time being, continue to limit access to federal wilderness lands for mining, drilling, timbering, and related uses.
Compare Minard Run Oil Co. v. USFS, Nos. 10-1265 and 10-2332, (3rd Cir. Sept. 20, 2011), in which the 3rd Circuit affirmed a preliminary injunction entered by the District Court prohibiting the U.S. Forest Service from making the completion of a multi-year, forest-wide Environmental Impact Study a condition for issuing Notices to Proceed to mineral owners seeking to drill for oil or gas. See also PAPCO, Inc. v. USFS, No. 08-253 (W.D. Penn. Aug. 30, 2011), in which the District Court for the Western District of Pennsylvania recently granted summary judgment in favor of PAPCO, holding that PAPCO is permitted the reasonable use of an easement to obtain its oil, gas and mineral rights in the Allegheny National Forest.©2013 Greenberg Traurig, LLP. All rights reserved.