NWF-CWF Roadless Comments Submitted

October 29, 2008


Roadless Area Conservation—Colorado
P.O. Box 162909
Sacramento, CA 95816-2909
Via electronic mail to: COComments@FSroadless.org
To Whom It May Concern:
Please accept the following comments from the Colorado Wildlife Federation and the National Wildlife Federation regarding the Forest Service’s proposed Roadless Area Conservation Rule for Colorado (“Proposed Colorado Roadless Rule”), 73 Fed. Reg. 43644 (July 25, 2008), and its Draft Environmental Impact Statement (“DEIS”).
The Colorado Wildlife Federation (CWF) is a statewide tax exempt 501(c)(3) nonprofit, membership based, mainstream wildlife conservation organization. Formed in 1953, CWF is Colorado’s oldest wildlife conservation organization. CWF’s mission is to promote the conservation, sound management, and sustainable use of Colorado’s wildlife and wildlife habitat through education and advocacy. CWF understands that wildlife habitat is critical to conserving Colorado’s unique wildlife, hunting and fishing heritage and wildlife viewing opportunities. These wildlife-related recreation pursuits enrich the well-being of Colorado’s residents and out-of-state visitors and form a substantial segment of Colorado’s economy.
The National Wildlife Federation (NWF) is a national member-supported non-profit conservation, education, and advocacy organization. NWF is associated with conservation organizations in 47 states and territories, including CWF in Colorado. NWF is dedicated to conserving wildlife and other natural resources, and believes that hunting, fishing, and trapping are legitimate recreational pursuits and useful wildlife management practices. NWF works to promote responsible management of wildlife on public lands.
As an initial matter, we believe that the information and analysis disclosed in the DEIS clearly demonstrates that Alternative 1 – implementation of the 2001 Roadless Area Conservation Rule – is the optimal alternative for the conservation of wildlife, including threatened, endangered, and sensitive species, Forest Service Management Indicator Species terrestrial species, and aquatic species, in Colorado. See DEIS 193-196, 223-225. As the Colorado Division of Wildlife has noted based on detailed analysis of the habitat values provided by inventoried roadless areas in Colorado for a variety of game and nongame species, “Maintaining the provisions of the 2001 Roadless Conservation Rule would allow us to conserve the values and characteristics ofRoadless Areas that are critical to the Division's mission, and which provide multiple public benefits, without prohibiting such uses as grazing, mineral exploration and extraction, forest health and fire management.” Letter from Bruce McCloskey, Director, Colorado Division of Wildlife, to Russell George, Chairman, Colorado Roadless Task Force (May 18, 2006). 
There is overwhelming public support for continued strong protection of roadless areas on National Forest System lands within Colorado, including broad support from the hunting and fishing public who rely on those lands not only for direct recreational use, but also for the habitat they provide to maintain populations of a variety of important wildlife and fish species. Professional scientific data from the Colorado Division of Wildlife submitted to the Task Force provides overwhelming evidence of the importance of roadless areas for a large number of game and nongame species important to Colorado and Coloradans. The essential wildlife habitat values provided by Colorado’s approximately 4.1 million acres of Inventoried Roadless Areas are irreplaceable, and that the extensive environmental analysis supporting the 2001 Roadless Area Conservation Rule remains unrefuted indeed bolstered by the analysis in the DEIS, indicating that the general prohibition of road construction and reconstruction and timber harvest within roadless areas, with limited exceptions as provided for the Alternative 1, is the best and most reasonable method of protecting roadless area values. 
Given the legal uncertainty arising from the pending appeals from California ex rel. Lockyer v. U.S. Dept. of Agriculture, 468 F. Supp.2d 1140 (N.D. Cal. 2006) and Wyoming v. U.S. Dept. of Agriculture, No. 07-CV-017-B (D. Wyo. August 12, 2008), the best method for the Forest Service to maintain and improve wildlife habitat values in Colorado’s roadless National Forest System lands is adoption of the provisions of the 2001 Rule (Alternative 1). Nevertheless, we recognize that, despite the fact that the 2005 “State Petition” rule has been enjoined as violating both the National Environmental Policy Act and the ESA, Lockyer, 468 F. Supp. 2d 1140, the State of Colorado has petitioned the Department of Agriculture for consideration of a state-specific rule governing the management of roadless areas in Colorado. Unfortunately, the proposed rule found at 73 C.F.R. 43544 and analyzed as Alternative 2 in the DEIS is deficient in several respects, both in departing from the terms and goals of the Colorado Petition and in its use of unsupported and ill-defined exceptions that undermine the stated goal of conserving roadless area values. These comments are intended to address several specific issues in proposed 36 CFR Part 294, and its analysis as Alternative 2 in the DEIS, and to propose alternative rules that we believe would better fulfill the DEIS’s stated purpose to “provide greater management flexibility under certain circumstances to address unique and local land management challenges, while continuing to conserve roadless values and characteristics.” DEIS 26.
Road Construction on New Oil and Gas Leases
The most clearly deleterious effect of the proposed rule for wildlife habitat and roadless areas would be the construction of an additional 422 oil and gas wells and associated new roads on approximately 70,000 acres of National Forest System lands leased for oil and gas development subsequent to the 2001 Roadless Area Conservation Rule. 73 Fed. Reg. 43,553, DEIS 117. Proposed section 294.33(c)(5) would allow new road construction “in conjunction with an oil a gas lease, including the construction of infrastructure necessary to transport the product, on lands that are under lease by the Secretary of the Interior as of the effective date of this rule.” This provision, contrary to the Forest Service’s prior commitments to the State of Colorado would allow new road construction for post-2001 oil and gas leases where such road construction in contravention of the Lockyer injunction. This very significant incursion on roadless areas would be contrary to the State of Colorado’s stated intention to maintain the protections of the 2001 Roadless Rule pending resolution of its petition and this rulemaking, as well as the Forest Service’s commitments to maintain those protections in the interim. Letter from Undersecretary Mark Rey to Governor Bill Ritter (April 27, 2007) (noting that, as of that date, the Forest Service was committed to comply with the Lockyer injunction reinstating the 2001 rule, and promising that should the 2001 Rule be modified pending the rulemaking, “no activity inconsistent with the 2001 Rule will be authorized without the state’s endorsement during the time necessary to promulgate the Colorado rule.”) A retroactive breach of this commitment, by allowing road building for new leases post-dating the 2001 Rule but pre-dating a Colorado Rule, is nevertheless a breach of this commitment to interim protection. Any leases issued since the effective date of the 2001 Rule are subject to its terms, notwithstanding the Idaho and Wyoming injunctions against that rule – injunctions which were reversed, Kootenai Tribe of Idaho v. Veneman, 313 F.3d1094, 1126 (9th Cir. 1992), and vacated, Wyoming v. United States Dept. of Agriculture, 414 F.3d 1207, 1213 (10th Cir. 2005), respectively. The Forest Service can and should honor its commitments to the State to provide interim protection, and enforce the terms under which those leases were issued, by including non-waivable stipulations (see proposed 36 C.F.R. 294.33(c)(5) or conditions of approval prohibiting new road construction on all oil and gas leases issued subsequent to the 2001 Rule.
North Fork Coal Mines
Proposed 36 CFR 294.33(c)(6), allowing road construction within CRAs “in the North Fork coal mining area,” is overly broad. To the extent that there exists a need for road construction to support certain existing coal mining and methane capture activities in the North Fork Valley, such a need should be explained and an exception, if needed, defined in narrow terms corresponding to the scope of the identified need. The proposed paragraph (c)(6), however, appears to remove approximately 30,000 acres, DEIS 118, from the otherwise-applicable prohibition on road construction and reconstruction. While we appreciate the safeguards in proposed paragraph (c)(6) limiting methane capture to existing rights-of-way and surface disturbance, the proposed rule remains overly broad to meet its ostensible purpose of ensuring safety for existing operations. A more narrowly tailored approach could read, “A temporary road is needed to facilitate underground coal mining operations that are extensions of existing underground coal mining operations.”   Such an approach would allow North Fork coal mines to meet necessary operational and safety needs for continued operation, without sacrificing high-quality roadless areas (and wildlife habitat) such as the (currently unleased) Sunset and Flatirons roadless areas.
Road Construction and Reconstruction
            Utilities/water conveyance
The exception for utility and water conveyance structure maintenance, proposed 36 C.F.R. 294.33(b)(7), should be limited to existing, not future, structures. To extend this exception to future utility and water conveyance structures increases the risk that roadless values will be impaired by the siting of new such structures within roadless areas. Such an outcome contradicts the proposed rule’s laudable improvement on the 2001 Rule in section 294.35, providing that oil and gas pipelines are prohibited from crossing CRAs to transport oil or gas from sources located outside the CRA. If the Forest Service can identify a compelling need for roads to maintain future utility or water conveyances, which it does not appear to have done in the DEIS, the exception should, at a minimum, be limited by a provision analogous to the oil and gas pipeline rule – that new conveyances should not be permitted to cross CRAs to transport water or utilities from a source or sources outside the CRA.
            Livestock Grazing
The most plainly arbitrary feature of proposed 36 CFR Part 294 is proposed 294.33(b()7), allowing new roads (including permanent roads) where “a road is needed for the management of livestock grazing.” The chief difficulty with this exception is that it is a solution in search of a problem: the proposed rule and DEIS have apparently failed to identify any instance where a road, much less a permanent road, would in practice be required for this purpose. 73 Fed. Reg. 43,554 (finding no difference in effects on livestock management operations under any of the alternatives). Given that the Forest Service’s own analysis finds no difference in effects on livestock management whether road construction in roadless areas is prohibited (Alternative 1) or allowed (Alternative 2), there would appear to be no foreseeable circumstance where “ a road is needed for the management of livestock grazing.” Nevertheless, adoption of the proposed “roads for cows” exception could open up substantial potential for abuse, whereby road construction for other purposes (including commercial and recreational uses unrelated to any of the sanctioned exceptions of the 2001 Rule or proposed Colorado Rule) could seek an exemption based on alleged benefits to livestock management. If there is no identifiable need for the exception, there is no good reason to even entertain such potential for its abuse.
            Ski Areas
We disagree with the proposed rule’s modification, to accommodate potential ski area development expansion, the boundaries of an inventory that was conducted using objective criteria by the Forest Service. We are not aware of any evidence that roadless areas within ski area permit boundaries or potentially prescribed for ski area expansion have lost the characteristics that make them valuable for their roadless area characteristics. It may be appropriate for to consider boundary adjustments if evidence indicates that the Forest Service incorrectly applied its criteria and therefore arrived at a faulty inventory boundary. However, it is not appropriate to arbitrarily shift a boundary to accommodate one speculative commercial interest. To the extent that the Forest Service elects to endorse a policy decision (one with which we would disagree) that the public interest in additional roads for ski area expansion outweighs the public interest in preserving the roadless characteristics of our remaining roadless areas, a more appropriate approach to addressing ski areas that overlap roadless areas would be to develop a specific provision for ski-area road construction no more expansive than necessary to meet an identified need. 
Tree Cutting
            Wildlife Habitat
Proposed 36 CFR 294.34(b)(1)(i) would create an exemption allowing tree cutting “[f]or management and improvement of wildlife and plant species (including threatened, endangered, proposed, or sensitive species) in coordination with the Colorado Department of Natural Resources, including the Colorado Division of Wildlife. Such activities should be designed to maintain or improve roadless characteristics as defined by this rule.” This rule as formulated is unclear and substantially over-broad. The Task Force received extensive input from the Colorado Division of Wildlife regarding the importance of Colorado’s roadless areas as habitat for a variety of species. Yet the Division of Wildlife’s findings do not identify a broad need for timber cutting in roadless areas in order to manage wildlife. While an exception for particular projects aimed at an identified threatened or endangered species may be warranted, the exception in the proposed rule is much broader than that. Indeed, the DEIS acknowledges that there are individual species that may benefit, under certain circumstances, from certain types of tree-cutting. DEIS 191-92. However, the fact that one species, such as goshawks, might benefit from tree-cutting under certain limited conditions should not justify a cut in roadless areas with significantly greater negative impacts to the comparatively scarce resource roadless areas provide, i.e., substantial areas of forested habitat undisturbed by roads, cuts, fragmentation, edge effects, and invasive plants. DEIS 186-191. We are concerned that this provision should not be used to authorize, for example, timber cutting projects with a primary non-wildlife purpose, incidental temporary benefits to one species, but net long-term detriment to multiple species through the loss of an area’s roadless character. We do not believe that this was the Task Force’s or the Petition’s intent. 
The proposed Colorado Rule provision does conclude with the clause, “while maintaining or improving roadless characteristics as defined in this Rule.” The intent and operation of this clause, however, remains unclear, and this exception could be in danger of swallowing the rule. If a benefit, even limited or short-term, to one species, whether or not of special concern, can justify timber cuts with adverse impacts to scarce roadless habitat for other species, the exception has the potential to defeat its intended purpose. The Forest Service should amend clarify this provision to: (a) limit the exception to threatened, endangered, candidate, or sensitive species; (b) require an express determination by the Secretary of Agriculture, with the concurrence of the Director of the Colorado Division of Wildlife, that there is no reasonable alternative means to achieve the desired habitat improvement without timber cutting within an Inventoried Roadless Area.
            Fuel/Insect Management
Proposed 36 CFR 294.34(b)(1)(ii), an exception to the general prohibition for timber cutting “to reduce the hazard of wildfire effects or large-scale insect and disease outbreaks, in areas covered by and as provided in a community wildfire protection plan or, if a community wildfire protection plan is not present, within areas of the wildland-urban interface,” is overly broad. We recognize that the Colorado Task Force received considerable public input regarding a perceived need for timber cutting to ensure the safety of communities from wildfire – but we are concerned that the specific proposed language could authorize timber cutting in the backcountry of roadless areas where it would, by its nature, diminish the natural character of the area. Some community wildfire protection plans cover a whole county (e. g., Summit County), thus allowing cutting in areas covered by a CWPP could mean that logging deep in the backcountry could be authorized under the proposed recommendation here. Backcountry logging and road-building could, contrary to the Task Force’s and Petition’s intent, actually increase wildfire ignition threats. We appreciate the proposed rule’s inclusion of a requirement that “[c]onsistent with the purposes of this paragraph, the responsible official shall implement projects to reduce the wildfire hazard to communities after careful consideration to roadless area characteristics as defined by this rule,” proposed 36 CFR 294.34(b)(1)(ii), but continue to have serious concerns that this provision does not sufficiently narrow the scope of the exception. Instead of allowing timber cutting in all areas identified in a community wildfire protection plan, we recommend that these provisions should instead allow timber cutting in those specific project areas identified in a community wildfire protection plan as high priority for reducing risk to communities, i.e., areas closest to these communities or posing a particular risk by virtue of topography and vegetation. Second, and more important, tree cutting (and road construction) outside the wildland-urban interface should be permitted only following environmental analysis and a specific finding that no reasonable alternative (e.g., creation of defensible space around communities and structures) exists that would not have adverse effects on roadless values.
Modification of Roadless Area Boundaries
NWF and CWF are quite concerned that the U.S. Forest Service proposes to remove from roadless inventory significant acreage, based upon an assertion of changed landscapes: road incursions and industrialization of the areas.   Our review of a sample of roadless areas demonstrates that assertion of these factors cannot be accepted at face value but requires scrutiny roadless area by roadless area.  
To illustrate our concern, we are attaching two maps illustrating examples from within the Grand Mesa-Uncompaghre-Gunnison (“GMUG”) National Forests. These maps are are extracted from the U.S. Forest Service roadless GIS shape files, coupled with mule deer and elk habitat overlays from the Colorado Division of Wildlife Natural Diversity Information System (“NDIS”) data.   Example 1 depicts the Mt. Lamborn roadless area (referred to as West Elk roadless area under the 2001 rule).   According the the Forest Service data, no roads are present in the roadless area that was covered under the 2001 rule and excluded from significantly smaller area boundaries proposed for the Colorado roadless rule. As the map illustrates, the area eliminated would significantly affect identified mule deer and elk winter range.   Example 2 illustrates the equivalent shape file for the Unaweep roadless area.   It, too, illustrates proposed elimination of a significant area of mule deer and elk severe winter range from the 2001 roadless area inventory. We are concerned that the DEIS does not provide sufficient information either to justify the elimination of approximately 500,000 acres of roadless lands based on allegedly changed circumstances, nor does it contain detailed analysis of what this would mean for terrestrial and aquatic wildlife, save for the general concession that “[m]any of the IRA acres not included in CRAs provide high wildlife value, as shown on the map in the map packet and in appendix F.” DEIS 196.
We have therefore also compared the wildlife habitat gained or lost for five species of particular importance if the proposed change in inventory boundaries were to proceed.    Significant acreage of mule deer winter and summer range, elk winter and summer range, bighorn sheep range, and Gunnison Sage Grouse winter range and production areas would be removed from designation as roadless areas.   Although overall range for black bear would decrease, summer and fall concentration areas would increase. The DEIS acknowledges that “[t]his reduction in roadless area acreage where road building is prohibited to restricted would diminish the habitat quality for a number of terrestrial species, compared to alternative 1,” DEIS 196, but fails to provide even a general quantification of which species would be affected and how severely.
Of even greater concern, however, is proposed 36 CFR 294.37(b), which proposes that “The Chief [of the Forest Service] may add to, remove from, or modify [Colorado Roadless Area] designations . . . based on changed circumstances or public need.” Neither the terms “changed circumstances” nor “public need” are defined. It would appear that this exception has the potential to quite literally swallow the entire proposed roadless rule, by granting the Chief very ill-defined discretion to modify roadless area boundaries based on an amorphous “public need” standard. Would, for example, increasing ease of access to oil and gas to meet energy demand from Forest Service lands qualify as a “public need”? If such a policy decision is to be made, it would amount to a wholesale revision of the substantive standards of the proposed Colorado Rule, and must not be done solely at the Chief’s discretion. Moreover, this modification standard is clearly contrary to the express intent of the State’s petition, which sought that “inventory adjustments shall be made based upon objective standards as established in existing Forest Service policy as of the date of establishment of this Rule. Such inventory adjustments shall be used only for the purposes of determining whether applicable lands meet the specifications of a roadless area . . . “ Colorado Petition 9 (Nov. 13, 2006).
Environmental Analysis and Federal-State Collaboration
We appreciate the proposed rule’s recognition, 294.33(e), that road construction within roadless areas is a significant environmental effect requiring preparation of an environmental impact statement, and that the Forest Service should offer cooperating agency status to the State, 294.36(e). However, we have two significant concerns. First, the text of the proposed rule undermines the intent of 294.33(e) by providing that an (unspecified) “environmental analysis” shall be prepared for “projects proposing temporary roads within a CRA.” Yet the definition of “temporary road,” would appear, under the definitions at 73 Fed. Reg. 43,561, to include within it the novel (and perhaps paradoxical) concept of “long-term temporary roads” for oil and gas operations – operations which can last two decades or more. It defies the purpose of 294.33(e), and common sense, to suggest that the creation of a road designed to last 15-25 years within a previously unroaded roadless area could conceivably be found to have no significant impact under NEPA and its implementing regulations. Similarly, in order to foster the Colorado Petition’s complementary goals of encouraging state involvement and discouraging destruction of roadless areas where other alternatives exist, the Forest Service should consider adoption of an equivalent to proposed Section 294.33(e) for the rules governing tree cutting. We would recommend specifying that an EIS, and cooperating agency status for the State in its preparation, should at least presumptively be
required for all projects effecting, individually or cumulatively, 640 acres or more of roadless forests.
Thank you for your consideration of these comments.
Respectfully submitted on this 23rd day of October, 2008.
On Behalf of the Colorado Wildlife Federation and National Wildlife Federation.
Suzanne O’Neill
Executive Director
On behalf of: Colorado Wildlife Federation
1410 Grant Street, Suite C-313
Denver, Colorado 80203
(303) 987-0400 (telephone)
(303) 987-0200 (fax)
Michael A. Saul
Associate Counsel
On behalf of: National Wildlife Federation
2260 Baseline Road, Suite 100
Boulder, CO 80302
(303) 441-5166 (telephone)
(303) 786-8911
Site by Chico Web Design