Tenth Circuit hears arguments in key Roadless Rule case

Nearly a decade after becoming law at the end of former President Bill Clinton's administration, a federal appeals court heard the last, and probably most important, case involving the validity of a federal regulation that blocked road construction or renovation on millions of acres of roadless National Forest land.

The Obama administration defended the rule in the U.S. Court of Appeals for the Tenth Circuit Wednesday as lawyers for the mining industry and the state of Wyoming argued that it unlawfully designates de-facto wilderness.

The case was heard by circuit judges Stephen H. Anderson, Jerome A. Holmes and Michael R. Murphy.

Anderson was appointed to the court by former President Ronald Reagan. Holmes was appointed by George W. Bush and Murphy by Clinton.

Another appeals court, the U.S. Court of Appeals for the Ninth Circuit, has already upheld the rule.

But in 2008 a federal trial judge in Wyoming blocked it from going into effect anywhere in the country, agreeing with industry arguments that former President Bill Clinton cut short procedures and assumed authority only Congress has.

The Tenth Circuit is the only federal appeals court that now has the authority to consider the merits of that decision.

The Roadless Area Conservation Rule affects about 58 million acres of public land. It was finalized shortly before former President George W. Bush was inaugurated in 2001. Bush opposed the rule and his administration suspended it within days of taking office.

Lawyers from the U.S. Department of Justice, which are defending the rule more aggressively than they did during the Bush administration, told three appellate judges in Denver that federal statutes governing the Forest Service give the agency the authority to control development even in areas not formally protected by the Wilderness Act.

The Clinton administration sought public input on the Roadless Area Conservation Rule before finalizing it. More than 1.5 million comments, most favoring the rule, were received.

In 2005 the Bush administration repealed the rule. Instead, it mandated that states petition the Forest Service for protection of roadless federal lands within their borders, with the Forest Service retaining the authority to deny the petitions.

However, the Ninth Circuit, in an Aug. 2009 decision, ruled that the Forest Service had not complied with the National Environmental Policy Act when it imposed this new regulation. It upheld a California trial judge's order requiring the Forest Service to reinstate the Roadless Area Conservation Rule.

However, the geographic scope of the San Francisco-based appeals court's decision was limited to Alaska, Washington, Oregon, Idaho, Montana, California, Nevada, Hawaii and New Mexico.

Bush's Justice Department did not appeal an earlier, similar ruling by U.S. District Judge Clarence Brimmer preventing the rule from going into effect anywhere in the nation. That decision, issued in 2003, was later overturned by the Tenth Circuit on technical grounds.

In May 2009 President Obama reversed Bush's administrative suspension of the rule and gave secretary of agriculture Tom Vilsack exclusive and sole power to decide what logging and road-building activities can occur in areas that would be subject to the rule. The delegation was for one year but can be renewed annually.

National Forests in Idaho, as well as Alaska's huge Tongass National Forest, are exempt from the Roadless Area Conservation Rule.

Idaho was given a purported exemption by a regulation granting its petition filed under the Bush administration's 2005 rule, while the Bush administration issued in 2003 a regulation exempting the Tongass until a replacement Roadless Area Conservation Rule was adopted.

No court has definitively ruled on the question whether either exemption is valid.

Should the Tenth Circuit affirm Brimmer's decision, the dispute over the Roadless Area Conservation Rule may head for the U.S. Supreme Court.