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Lakewood, Colorado 80227
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Roadless Areas Review Task Force
c/o The Keystone Center
1628 Sts. John Road
Keystone, CO 80435
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.
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.
STATEMENT OF INTEREST
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
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,
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
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
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
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
IV. Roadless Area
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
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
II. By Definition,
New Wilderness May Not be Created.
The Wilderness Act defines
“wilderness” as follows:
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
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
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
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:
MOUNTAIN STATES LEGAL FOUNDATION
D. McMahon, Esq.
Attorney for MSLF