2596 South Lewis Way
Lakewood, Colorado 80227

303-292-2021 . FAX 303-292-1980


March 27,2006


Roadless Areas Review Task Force
c/o The Keystone Center
1628 Sts. John Road
Keystone, CO 80435

Re:  Comments to the Colorado Roadless Areas Review Task Force to determine the future of roadless areas in Colorado, including what uses, if any, will be allowed in the applicable forest areas.

Dear Roadless Areas Review Task Force:

Mountain States Legal Foundation ("MSLF") respectfully submits the following comments to the Colorado Roadless Areas Review Task Force created under Senate Bill 05-243 to determine the future of roadless areas in Colorado, including what uses, if any, will be allowed in the applicable forest areas.


MSLF is a non-profit, public interest legal foundation organized under the laws of the State of Colorado. MSLF is dedicated to the defense and preservation of individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Many of MSLF's members work and recreate in Colorado.  Many of these members have visited and will continue to visit the applicable forest areas defined as United States forest lands located in Colorado that were identified as roadless in a set of inventoried roadless area maps contained in the National Forest Services' roadless area conservation Final Environmental Impact Statement, Volume 2, dated November 2000.  Many of these members depend on the continued development of the minerals, oil and

gas, and timber resources located in the applicable forest areas in the use of these areas for motorized recreation. These members will be affected by the decision of the Roadless Areas Review Task Force.


I.        Wilderness Lands, 1924-1964.

In 1924, the U.S. Forest Service established the first de facto wilderness area, the Gila Wilderness in New Mexico. H.R. Rep. No. 1538, 88th Cong., 2nd Sess. 1964, reprinted in, 1964 US.C.C.A.N. 3615,3616. By 1964, the Forest Service had created 88 de facto wilderness areas consisting of 14,598,681 acres. Id. These areas were classified administratively as wilderness (6,898,143 acres), wild (1,336,254 acres), canoe (886,673 acres), and primitive (5,477,740). Id.

In 1964, Congress legislatively dealt with all areas that the Forest Service had classified administratively as primitive, wild, canoe and wilderness in the Wilderness Act of 1964 ("Wilderness Act") by classifying these lands, totaling more than 9 million acres, as part of the National Wilderness Preservation System. 16 U.S.C. § 1131(a).  As part of the Wilderness Act of 1964, Congress retained sole authority to establish new "wilderness areas." 16 U.S.C. g 1132(b).  Thus, Congress removed any implied authority the Forest Service had to create de facto wilderness areas. 1964 U.S.C.C.A.N. 3615, 3616.  Congress also directed the Forest Service to study, by September 3, 1974, all areas classified as primitive as of the date of the act as to suitability or no suitability for designation as wilderness. 16 U.S.C. § 1132(b).  Approximately 56 million acres of roadless and undeveloped lands were identified for consideration for possible further study for inclusion in the National Wilderness Preservation System.

II.       Roadless Area Review And Evaluation I.

Pursuant to the Wilderness Act of 1964, the Forest Service completed the Roadless Area Review and Evaluation I ("RARE I") in 1973. 16 U.S.C. § 1132(b).  "The purpose of RARE I was not to recommend additions to the National Wilderness Preservation System or even propose the development of road less areas.  RARE I was only a preliminary study of roadless areas, the purpose of which was to recommend selected roadless areas as New Study Areas to be evaluated further for potential classification as wilderness."  David Stewart, Creating the New American Wilderness in America's Untrammeled Backcountry:  The Roadless Area Conservation Rule and the Ninth Circuit, 28 Okla. City U.L. Rev. 829, 834 (2003).

RARE I proposed the selection of274 New Study Areas from an inventory of 1,449 areas comprising approximately 56 million acres of undeveloped National Forest Lands.  Wyoming v. Us. Department of Agriculture, 277 F.Supp.2nd 1197, 1205 (D. Wyo. 2003), vacated on other grounds by, Wyoming v. US. Department of Agriculture, 414 F.3d 1207 (lOth Cir. 2005).  RARE I was completed in less than one year resulting in a number of problems as demonstrated by later court challenges. William D. Doron, Legislating for the Wilderness: RARE II and the California National Forests 30-37 (l986). "The Forest Service decided to abandon RARE I after the courts held that the evaluation procedure used by the agency failed to comply with NEPA's environmental assessment procedures." Robert L. Glickman, Traveling in Opposite Directions: Roadless Area Management Under the Clinton and Bush Administrations, 34 Envtl. L. 1143, 1150 (2004).  Specifically, the Tenth Circuit enjoined development of lands surveyed under RARE I pending completion of an [environmental impact statement (“EIS”)] and compliance with [the National Environmental Policy Act (“NEPA”)]. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973).

Several weaknesses in the RARE I process were identified through subsequent litigation. For example, some roadless areas were subdivided and considered as individual parts rather than as a whole.  Criteria for inventory were too general, resulting in boundaries that excluded actual undeveloped areas. Some roadless areas were missing altogether.  Also, RARE was designed for the West and little attention was given to lands in the East. See John Klein-Robbehaar, Judicial Review of Forest Service Timber Sales: Environmental Plaintiffs Gain New Options Under the Oregon Wilderness Act, 35 Nat. Resources J. 201, 205 (l995) (citing 42 Fed. Reg. 59,688 (l977)).

III.     Roadless Area Review And Evaluation II.

After the failure of RARE I, the Forest Service began a new roadless area review and evaluation (“RARE II”) in 1977.  “RARE II, like its predecessor, was administratively initiated for the purpose of identifying those roadless and undeveloped areas which could be designated as ‘wilderness areas’ pursuant to the Wilderness Act.”  Wyoming, 277 F. Supp.2d at 1205 (D. Wyo. 2003) (citing Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383, 387 (D. Wyo. 1980)).

“RARE II was an attempt by the Forest Service to identify and consider for wilderness designation the remaining roadless national forest lands. […] RARE II was intended to be a rational allocation of roadless areas to wilderness or nonwilderness uses.” Paul Mohai, Rational Decision Making in the Planning Process: Some Empirical Evidence From RARE II, 17 Envtl. L. 507, 529 (l987).  RARE II was designed to consider the entire National Forest System, minimizing local variations in inventory and allocation of roadless areas.  RARE II did not replace the land and resource management effort, but merely assisted that effort by resolving roadless area allocation questions. See U.S. Department of Agriculture, Final Environmental Statement, Roadless Area Review and Evaluation (RARE II) at 6 (1979).

As with RARE I, courts held that RARE II was unlawful for failure to comply with NEPA. The State of California challenged the adequacy of the EIS as the basis for decisions to manage areas in the State of California for purposes other than wilderness. The Ninth Circuit ruled that the RARE II process violated NEP A because it was not site specific and because it failed to consider an adequate range of alternatives. California v. Block, 690 F.2d 753 (9th Cir. 1982). As a result of Block, a statewide injunction on further designation or recommendation of wilderness lands was instituted and lands eligible for wilderness designation were put back into the multiple-use category.

IV.     Roadless Area Conservation Rule.

         In 2001, twenty-five years after RARE II, the Forest Service attempted to identify and protect inventoried roadless areas on National Forest System lands by creating the Roadless Area Conservation Rule. In adopting the Rule, the Forest Service relied on the twenty-five year old maps conducted for RARE II, which were, in part, based on the maps completed for RARE 1. The Forest Service identified 58.5 million acres of inventoried roadless areas for this Rule. 65 Fed. Reg. 67,568 (2000) (codified at 36 C.F.R. pts. 219 and 294).

The Roadless Area Conservation Rule was subject to nine lawsuits in federal district courts in Idaho, Utah, North Dakota, Wyoming, Alaska, and the District of Columbia.  On July 14, 2003, in litigation involving the State of Wyoming, the U.S. District Court for the District of Wyoming issued a permanent injunction and set aside the Roadless Rule. Wyoming v. Us. Department of Agriculture, 277 F.Supp.2d 1197 (D. Wyo. 2003).  That court held that the Forest Service, having failed to use RARE I and RARE II to designate more wilderness, simply passed the Roadless Area Conservation Rule to usurp Congressional authority by managing roadless areas as de facto wilderness. Id. at 1236.


V.       State Petition Rule.

         After the Forest Service failure with RARE I and II and its illegal attempt to create de facto wilderness with the 2001 Roadless Rule, the Forest Service published the State Petition Rule for Inventoried Roadless Area Management in 2005. 70 Fed. Reg. 1055 (2005) (codified at 36 C.F.R. pt. 294).  Under this rule, a governor may choose to petition the Secretary of Agriculture by November 2006, to promulgate regulations establishing management requirements for any or all inventoried roadless areas within his State.  The inventoried roadless areas are based on a set of inventoried roadless maps contained in the Final EIS for the 2001 Roadless Area Conservation Rule.

 If the Secretary of Agriculture accepts the petition, the Forest Service will coordinate with the petitioner to initiate a state-specific rulemaking that addresses the proposed changes put forth in the petition.  This rulemaking will include publishing a proposed rule for public review and comment and preparing the appropriate NEPA documentation.  The Secretary of Agriculture makes all final decisions regarding the petition with advice and recommendations from a national advisory committee.

 The Colorado legislature passed Senate Bill 05-246 to create a task force to recommend to the governor of Colorado how inventoried roadless areas should be managed. For purposes of the task force, Colo. Rev. Stat. § 36-7-301 (2004) defines “Applicable Forest Areas” as the approximately 4,400,000 acres of U.S. Forest Service lands in Colorado identified as roadless in the Final EIS conducted for the 2001 Roadless Area Conservation Rule.  Additionally, Colo. Rev. Stat. § 36-7-302 (2004) provides that the task force “shall consider and give weight to […] written comments from affected counties, cities, city and counties, special districts, forest stakeholder groups, and any other Colorado citizens.”


I.        Congress Intended to Simplify Administratively Designated Terms For Wilderness by Passing the Wilderness Act of 1964.

 Prior to the passage of the Wilderness Act in 1964, no uniform federal system existed for the preservation of federal lands having “wilderness” characteristics.  Instead, lands possessing “wilderness” characteristics were classified administratively as wilderness, wild, canoe and primitive. 1964 U.S.C.C.A.N. 3615.  Additionally, only one of these areas was granted statutory recognition thereby leaving the remaining areas to be declassified or abolished by administrative action. Id. at 3616.  This management scheme was not uniform and offered no long-term certainty for the federal lands at issue.

These various administrative classifications and any uncertainty about the existence and future management of federal lands possessing “wilderness” characteristics were settled with the passage of the Wilderness Act in 1964.  The Wilderness Act created one classification for wilderness; therefore, federal lands could either be wilderness or non-wilderness for purposes of the Wilderness Act.  The Wilderness Act, in effect, converted to wilderness the lands previously classified as wilderness, wild, and canoe.  Furthermore, the Wilderness Act provided federal statutory protection for wilderness lands resulting in long-term certainty.  In passing the Wilderness Act, Congress recognized that “[a] statutory framework for the preservation of wilderness would permit long-range planning and assure that no future administrator could arbitrarily or capriciously either abolish wilderness areas that should be retained or make wholesale designations of additional areas in which use would be limited.” Id.  In its simplification of terminology, the Wilderness Act provided stability for the management of Congressionally designated wilderness lands.

Given this statutory background, any effort, including the State Petition Rule for Inventoried Roadless Area Management and this resulting Colorado Roadless Areas Review Task Force, is in direct contravention to congressional intent in passing the Wilderness Act.  Congress did not intend for administrative agencies to create additional administrative terms for wilderness areas. Under the Wilderness Act there can only be “wilderness” or non-wilderness and the creation of new wilderness areas is dependent upon Congressional legislation.  Therefore, the continued management of Inventoried Roadless Areas as wilderness is in direct contravention to Congressional intent in passing the Wilderness Act.  These areas, having failed to meet the wilderness criteria required for Congress to legislatively designate them “wilderness,” must be designated non- wilderness and managed as non-wilderness.

II.       By Definition, New Wilderness May Not be Created.

The Wilderness Act defines “wilderness” as follows:

 A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.  An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

16 D.S.C. § 1131(c). Since 1964, Congress has designated 105,695,176 acres of wilderness as part of the National Wilderness Preservation System. http://nationalatlas.gov/articleslboundaries/a_nwps.html.  The RARE efforts and the 2001 Roadless Rule failed to provide a legal mechanism by which more wilderness could be Congressionally designated. Similarly, this effort will fail to produce more wilderness areas because, by definition, no new wilderness areas exist.  It is undisputed that these Inventoried Roadless Areas contain foot paths and Off Highway Vehicle trails.  Other Inventoried Roadless Areas contain roads for purposes of fire control and mineral extraction.  These areas have the “imprint of man’s work substantially” noticeable, not unnoticeable.  Clearly, these areas are not “untrammeled by man” as required by the Wilderness Act. Therefore, since these areas may not be classified as wilderness under the Wilderness Act the only remaining classification remaining is non-wilderness.

The policy of the Wilderness Act and the intent of Congress in passing the Wilderness Act has been fulfilled:  a long-term management scheme for the protection of existing wilderness was created and 105 million acres of wilderness exist.  If efforts such as this continue to lock up more Forest Service lands, more people are forced to use non- wilderness areas.  This results in more people in a smaller area with the destruction of solitude for all but a select few capable of accessing the wilderness.  One policy of the Wilderness Act was to “spread the pressures upon our recreational resources which will become increasingly overburdened as the years go by.” 1964 D.S.C.C.A.N. 3615, 3622.  At this point, locking up more areas as wilderness will work directly against this policy objective.  Only a select few, physically capable people are able to enjoy the 105 million acres of wilderness already in existence.  Creating more wilderness areas results in less access to federal public lands and will place an undue burden on already overburdened federal public lands.

III.     The Roadless Areas Review Task Force Should Not Act in a Way That Will Contravene Congressional Authority Under the Wilderness Act of 1964.

         Assuming, arguendo, that the administrative classification for Inventoried Roadless Areas continues to exist, this task force should not recommend an alteration of management plans to create de facto wilderness in contravention of Congressional authority.  The United States owns 655 million acres of fee land, 29 percent ofthe total land base of the Untied States. Congressional Research Service, Federal Land Management Agencies:  Background on Land and Resources Management, 1 (2001).  These 655 million acres are managed almost exclusively by four federal agencies:  Bureau of Land Management (264 million acres); U.S. Forest Service (l92) million acres); U.S. Fish and Wildlife Service (94 million acres); and National Park Service (78 million acres). Id.

To preserve portions of the 655 million acres of land, Congress established the National Wilderness Preservation System. 16 U.S.C. g 1131(a). Wilderness may be added to the National Wilderness Preservation System only through an act of Congress. See Wyoming v. United States Department of Agriculture, 277 F.Supp.2d 1197, 1233 (D. Wyo. 2003), holding (“Congress has the sole power to create and set aside federally designated areas pursuant to the Wilderness Act of 1964”.); 16 U.S.C. § 1132(b).  “[This] exclusive power derives from the provision of the Wilderness Act prohibiting the designation of any federal lands as wilderness ‘except as provided for’ in the Wilderness Act.” Glickman, 34 Envtl. L. 1143 at 1192.  “The Wilderness Act removed the discretion of the Secretary of Agriculture and the Forest Service to establish de facto administrative wilderness areas.” Wyoming, 277 F.Supp.2d at 1233; 1964 U.S.C.C.A.N. 3615, 3616.  “The Wilderness Act functions as a ‘proceed slowly order’ until Congress-through the democratic process rather than by administrative fiat-can strike the proper balance between multiple uses and preservation.” Wyoming, 277 F.Supp.2d at 1233 (citing Parker v. United States, 309 F.Supp. 593, 795 (D. Colo.1970)).

Given this statutory framework for the designation of wilderness, managing roadless areas in a manner in which no new roads may be created constitutes the creation of de facto wilderness in violation of the Wilderness Act.  In setting aside and permanently enjoining the 2001 Roadless Rule, the Wyoming District Court declared that “[t]he ultimate test for whether an area is ‘wilderness’ is the absence of human disturbance or activity. […]  In short, it is ‘reasonable and supportable to equate roadless areas with the concept of wilderness.” Wyoming, 277 F.Supp.2d at 1233 (citing Michael Mortimer, The Delegation of Law-Making Authority to the United States Forest Service: Implications in the Struggle for National Forest Management, 54 Admin. L. Rev. 907, 958 (2002)).

 Simply labeling these areas as “roadless,” instead of “wilderness,” is not sufficient to escape the requirements of the Wilderness Act when these roadless areas are managed in a way similar to the management of wilderness areas.  “A roadless forest is synonymous with the Wilderness Act’s definition of ‘wilderness.’  The reason is that roads facilitate human disturbance and activity in degradation of wilderness characteristics.” Id. at 1236. Similarly, if the uses permitted in wilderness areas and the uses permitted in roadless areas are virtually identical, then the Secretary and the Forest Service are fooling themselves to assume the public will not consider the roadless area as wilderness. Id.  For example, these are some of the uses allowed in wilderness areas:

[A ]ircraft or motorboat use where those uses have been established; prospecting for mineral or other resources if such activity is carried on in a manner compatible with the preservation of the wilderness environment; prospecting for water resources, the establishment and maintenance of reservoirs, power projects, transmission lines, and other facilities needed in the public interest including the road construction and maintenance essential to development and use thereof; commercial services may be performed within the wilderness areas to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the area.

16 U.S.C. g 1133. Unless the uses within Inventoried Roadless Areas are far greater and less restrictive than uses allowed within wilderness areas, then these areas are de facto wilderness and therefore in violation of the Wilderness Act.

Furthermore, basing roadless recommendations on the RARE II inventories is unlawful.  “[T]he fact that most, if not all, of the inventoried roadless areas [area] based on the RARE II inventories, which were designed to recommend wilderness areas to Congress, further evidences that the Forest Service [is usurping Congressional Authority].” Wyoming, 277 F.Supp.2d at 1236.  “One stated purpose of the Wilderness Act was to assure that no future administrator could make wholesale designations of additional wilderness areas in which use could be limited.” Id.  Although that case was dealing directly with the 2001 Roadless Rule, this Task Force was directed to begin with the 2001 Roadless Rule and the maps created for the Final EIS used as part of the 2001 Roadless Rule.  This was found to contravene Congressional authority under the Wilderness Act in 2003 and is just as unlawful today.


For the foregoing reasons, the Colorado Roadless Areas Review Task Force should not suggest a management scheme that would be in contravention of Congressional authority under the Wilderness Act.

Respectfully Submitted By:


Joshua D. McMahon, Esq.

Attorney for MSLF