As discussed in the last post, the Clinton Roadless Rule, battered by litigation and counter rulemaking by the Bush administration, is still the law of the land. It prohibits logging and roadbuilding in inventoried roadless areas.
It pays to pay close attention to the details (and definitions) of rules, laws, regulations, etc. You could read the fine print and find out that a lot of things you thought were roads were not roads.
That being said, there’s actually very little leeway when it comes to how the Clinton Rule defines roads:
Road: A motor vehicle travelway over 50 inches wide, unless designated and managed as a trail. A road may be classified, unclassified, or temporary. 66 C.F.R. 3272 (Jan. 12, 2001).
So, the Forest Service can’t build a road in a roadless area and then obliterate it. That’s a temporary road, which is still a road. They could theoretically build a road that is less than 50 inches wide. Or they could designate it as a trail. “Trail” is not defined in the Rule, but, presumably, it means a “trail,” as distinguishable from a “road.”
So, is this a road?
This is the road the Forest Service is building across the Clear Creek, East Willow, Reno Mountain and Baldy Mountain roadless areas on the Grand Mesa-Uncompahgre and Gunnison National Forests. It is not a typical national forest road in the sense that it’s designed to provide access to timber sales or hiking trailheads or the like. This road is being used to provide access for the construction of an underground natural gas pipeline from the Bull Mountain gas fields to the I-70 transmission corridor.
A number of local conservation groups sued the Forest Service, arguing that a road is a road is a road. According to the Forest Service’s EIS, this particular road is temporary—the 1,000-foot construction right-of-way will be will be rehabilitated and revegetated.
Trees, however, will not be allowed to regrow in the pipeline’s permanent 50-foot
right-of-way. In addition, “surface patrols,” including “motorized vehicles,” will be “authorized on a case-by-case basis in order to access the right-of-way for emergency repair needs”
50 foot… motorized… It sounds exactly like what the Roadless Rule prohibited, but in this case the 10th Circuit Court of Appeals agreed with the Forest Service that this road was really a “construction zone,” not a road, and threw out environmental plaintiff’s lawsuit.
I walked two miles of the road corridor with Sloan Shoemaker and Peter Hart of Carbondale, CO based Wilderness Workshop, the lead plaintiff in the lawsuit against the road. There’s already a dirt ATV track that’s been punched across streams, through false hellebore meadows, wetlands, wildflower meadows and aspen groves. (Hundreds of acres of forest is on the chopping block to build the “construction zone,” including 200+ year old spruce trees. The trees will be sold to logging companies. The Roadless Rule also prohibits commercial logging.)
“What a gorgeous place,” Peter told me. “This place has world class wilderness values. And they’re just going to despoil it.”
This story would start to sound a little hyperbolic if I told you that we ran into a grizzled elk guide decked out in grimy jeans, jean shirt, cowboy hat, complete with sidearm… a guy with a bright, clear eyes, and a gravelly voice that breaks when he talks about the pipeline scattering the game… So I won’t get into too much detail about that chance encounter, but, yeah, it actually did happen.
“We’re getting our asses handed to us on energy development,” Sloan admitted to me when we were back in his truck, heading back to civilization. I thought about this for a while. I suggested in the previous post that energy development is to the Rockies what “get the cut out” used to be in the Pacific Northwest. An inexorable tide of development for which there was no recourse.
Timber companies logged off 90% of the classic western hemlock and Douglas fir old growth in Oregon and Washington until court injunctions pulled the rug out from under the timber program. Don’t let anyone fool you into thinking there’s any such thing as a strictly objective judiciary. Judges’ decisions track fairly closely with mainstream conventions. The bottom line when it comes to old growth logging in the Pacific Northwest is that judicial decisions reflected a widespread conviction that we didn’t really need to log 400-year old trees to maintain a high quality of life in the region.
We’re definitely not there yet when it comes to energy development. Your average person thinks we need cheap energy to maintain their quality of life. And given what’s happening with the economy as fuel prices have soared, they may be right.
A final thought: Natural gas like they’re pumping across Colorado roadless areas is a relatively clean burning fuel… and it doesn’t come from the Middle East or Africa. Do a Google Image search for “oil Nigeria.” It’s a travesty what’s happening to roadless areas in Colorado, but it’s nothing compared to what’s happening to the people and ecosystems of other countries.
The U.S. courts won’t find obviously illegal road building for energy development to be illegal until they think our society can do without fossil fuels like they know we can do without old growth timber. The courts will apply the Roadless Rule to stop “construction zones” for gas pipelines in roadless areas when motorized vehicles run on hydrogen.
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