Wyoming Governor Matt Mead is leading the charge for a Tenth Circuit Court of Appeals en banc review of the Clinton-era Roadless Rule. The state filed a petition for rehearing on Monday.
In October, the Tenth Circuit ruled that a Wyoming district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the district court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims.
(Sidebar: Does anyone else hear the term "Roadless Rule" and immediately think of Doc Brown's closing line in Back to the Future? "Roads? Where we're going, we don't need roads." No? So it is just us ...)
The Forest Service adopted the Interim Roadless Rule, an 18-month moratorium on road construction in most inventoried roadless areas (IRAs) in March 1999. The interim rule, which continued through August 2000, temporarily suspended decision-making regarding road construction and reconstruction in many unroaded areas within the National Forest System (NFS).
In 2001, the Forest Service issued the final Roadless Rule, which prohibited road construction and reconstruction in IRAs, and banned the cutting, sale, or removal of timber from IRAs, subject to limited exceptions. Wyoming and the Colorado Mining Association sued to challenge the Rule.
The petition for rehearing states that the Forest Service violated the Wilderness Act when it created de facto wilderness areas across approximately 59 million acres of the nation's forests, including 3 million acres in Wyoming.
Wyoming argues that the Forest Service radically altered the scope of the Roadless Rule without preparing a Supplemental Environmental Impact Statement in violation of the National Environmental Policy Act, and circumvented the National Forest Management Act under the guise of nationwide rulemaking.
The state further claims that the Forest Services should have evaluated forest use on a forest-by-forest basis rather than by national rule.
If the Tenth Circuit Court of Appeals grants en banc review, the court will not hear the case until 2012.