All three sides in the Burr Trail controversy have asked the U.S. 10th Circuit Court of Appeals in Denver to reconsider or clarify a decision it issued in June.
At that time, the appeals court announced a split decision.The three-judge panel upheld Garfield County and the federal government in saying the county doesn't need a permit to grade and widen the 66-mile dirt road, which runs from Boulder, Garfield County, to Bullfrog, Kane County. But four environmental groups won a ruling that environmental studies are needed for any roadwork that would intrude into wilderness study areas.
A dozen miles of the route borders a wilderness study area, and a 10-mile section goes along another wilderness study area on the opposite side of the road. The project involves realignments, widening, blasting, improvements to the surface and an expected large increase in traffic, according to the 10th Circuit.
In separate motions:
- Environmentalists took issue with the appeals court's requirement that the BLM write an environmental report only for the part of the project that borders wilderness study areas.
"The court overlooked the fact that a separate section of FLPMA (the Federal Land Policy and Management Act) places BLM under a mandatory duty to manage all public lands so as to prevent unnecessary or undue degradation," says the request, written by lawyers Wayne G. Petty and Lori Potter.
Therefore, the court should amend its decision by requiring the BLM to prepare an assessment of environmental consequences of the project on other land belonging to the public, besides the wilderness study areas, the environmentalists say.
- The federal government asked the court to eliminate language in the ruling that the Bureau of Land Management should have taken more action than it did.
The panel of three appeals judges decided one issue "premised upon the incorrect assumption that BLM is authorized to commence action seeking to enjoin private activities which affect (wilderness study areas)," the government's appeal says.
In other words, the government doesn't think the BLM can file suit to prevent private actions that could affect wilderness study areas.
Government lawyers contend that in a case involving a group called Save Our Ecosystems, the Supreme Court rejected the idea of injunctions in this sort of environmental suit.
The highest court rejected the presumption that there would be irreparable injury in such cases, but the 10th Circuit upheld the idea that there would be such injury, according to the government brief.
- Garfield County asked the judges to specify that their definition of "unnecessary or undue degradation" of wilderness study areas is the same definition contained in the BLM's Interim Management Policy and guidelines.
The policy governs the agency's actions toward wilderness study areas in the interim between their being designated and the time that Congress either sets them aside as wilderness or releases them to ordinary uses.