A view south from the Elk Park footbridge in the Weminuche Wilderness. Colorado recently released its long-awaited roadless rule, much to the disappointment of some conservationssts. The new rule would only give top protections to a quarter of the state’s 4.2 million acres of roadless lands./Photo by Stephen Eginoire

Rules of the road

State-specific roadless rule receives mixed reviews
by Tracy Chamberlin

Although the release of the Colorado Roadless Rule marks the end of a seven-year process, relief isn’t on everyone’s mind.
Since publication of the Final Environmental Impact Statement on May 2, reactions have been mixed.

Colorado Gov. John Hickenlooper applauded the new rule for its environmental protections and flexibility. Sen. Mark Udall, D-Colo., praised the process, which he called “very thorough.” But for many conservationists, the new state-specific rule takes away too many protections afforded under the old federal one.

The main difference between the Federal Roadless Rule, enacted in 2001, and the Colorado Roadless Rule, likely to go into effect in June, is the state’s two-tiered system of designation. While the federal rule gives all roadless areas the same protections, the Colorado one divides areas into upper and non-upper tiers.

Lands designated as upper tier are afforded a higher level of protection than even the 2001 federal rule. However, only 1.2 million of the 4.2 million protected acres in Colorado are considered upper-tier lands under the state’s plan. The remaining parcels in the non-upper tier receive less protection than the federal rule and are open to certain types of activities, like mining, ski area expansion and tree cutting.

“The big difference is the ‘Why?’” said Jimbo Buickerood, Public Lands Coordinator for the San Juan Citizens Alliance. “Why does the lower tier get less protection than is what currently available?”

The EIS, released May 2, lists four alternatives for managing lands deemed roadless.

Alternative 1 keeps the 2001 federal rule in place. Alternative 2, the “preferred alternative,” would be enacted as the Colorado rule. Alternative 3 leaves management of roadless areas in the hands of the U.S. Forest Service.

Alternative 4 is similar to the second option, but includes 2.6 million acres, nearly double, in the upper tier. This was the preferred alternative for many conservationists. In Southwest Colorado, Alternative 4 protects more than 80 percent of lands with upper-tier status, but Alternative 2 includes less than 30 percent.

Lands that ended up being included in the upper tier under Alternative 2 don’t appear to form a specific pattern on the map, according to Buickerood.

For example, the Hermosa Creek Roadless Area is 4 practically split in half, with one section upper tier and the other non-upper. It was suggested as a prime candidate for upper-tier protection because it’s a key watershed. “You’d think that would have been worthy of more protection,” Buickerood said.

He doesn’t believe the discrepancy is due to possible future development or mining plans. “To me, it’s totally random,” he added.
One thing the federal and state-specific rules could have in common is legal challenges. The 2001 rule offered protections for almost 50 million acres of national forests across the country, but less than a year after its publication, it found its way into a courtroom where a U.S. District Judge in Idaho barred it from implementation.

This litigation clouded the rule in uncertainty for years, leaving land managers without direction.

After several legal challenges, the State Petitions Rule was announced in 2005. This gave governors an opportunity to propose state-specific roadless rules and a chance to move forward.

Then-Gov. Bill Owens, unsure about the future of the 2001 rule, took that opportunity and initiated the state’s own process in 2005.

While Colorado toiled away at the language and mapping, the 2001 rule worked its way through the courts. The most recent decision in October 2011 was a stamp of approval by the 10th Circuit, which determined the 2001 rule could be implemented and considered the law of the land. But the Colorado plan was already under way.

Seven years, five public meetings and two governors later, the state could be only weeks away from implementing its roadless rule. But that doesn’t mean it’s the end of the road. The Colorado rule is likely to face several tests in the future.

“We’re wondering how strong it’s going to be,” said Paul Joyce, Field Program Director for Rocky Mountain Wild.

One of those tests could come from the Wolf Creek Ski Area. At the start of 2012, the owners of Wolf Creek revealed long-term plans for expansion into national forest lands.

Joyce said the ski area is not interested in bringing in more people, more customers and more money. “It’s about a ski experience,” he said. “It’s good ski terrain … It makes a lot of sense.”

Under the new rule, some of the proposed expansion area would be considered non-upper tier, allowing for ski area expansion.

When the 2001 rule was enacted, ski areas that suddenly found roadless lands within the boundaries of their existing permits were allowed to utilize those lands. But if Wolf Creek was granted access to roadless areas not within its current permit boundary, it would mark the first time a Colorado ski area was allowed to do so. The concern is the precedent this would set, with other ski resorts also requesting to expand into roadless areas.

“This is going to be one of the first tests of the Colorado rule,” Joyce said.

Durango Mountain Resort is not looking at the same challenges. Proposed expansions by DMR are within its permitted boundary.

Other tests for the Colorado rule will likely come in the courtroom. One of the candidates for litigation focuses on gap leases for lands on the Thompson Divide near Carbondale.

Several parcels were leased for oil and gas, even though they were considered roadless areas. Not only is the reasoning and legality of the leases in question, but a lower tier designation could allow those lands to be mined. Since these issues were not addressed during the creation of the Colorado Roadless Rule, the situation is ripe for litigation.

“They have not cleaned up that issue,” Buickerood said.

Another potential matter for the courts concerns the North Fork area, also near Carbondale. Under the state’s rule, more than 19,000 acres fall into an exclusion zone that allows companies to build temporary access roads for activities associated with future and existing coal mining, like methane venting. This was a hot-button issue during the development of the Colorado rule, and is likely to remain so after its implementation.

While Hickenlooper and others have praised the rule as a symbol of compromise between the environment and resource extraction, others believe the 2001 federal rule provides greater protections and enough flexibility to allow for future access needs.

“We still feel the 2001 rule has stronger protections,” Joyce said.