36 C.F.R. § 294.42

Prohibition on tree cutting, sale, or removal

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(a) General. Trees may not be cut, sold, or removed in Colorado Roadless Areas, except as provided in paragraph (b) and (c) of this section.

(b) Upper Tier Acres. Notwithstanding the prohibition in paragraph (a) of this section, trees may be cut, sold, or removed in Colorado Roadless Areas upper tier acres if the responsible official determines the activity is consistent with the applicable land management plan, and:

(1) Tree cutting, sale, or removal is incidental to the implementation of a management activity not otherwise prohibited by this subpart; or

(2) Tree cutting, sale, or removal is needed and appropriate for personal or administrative use, as provided for in 36 CFR part 223, subpart A.

(c) Non-Upper Tier Acres. Notwithstanding the prohibition in paragraph (a) of this section, trees may be cut, sold, or removed in Colorado Roadless Areas outside upper tier acres if the responsible official, unless otherwise noted, determines the activity is consistent with the applicable land management plan, one or more of the roadless area characteristics will be maintained or improved over the long-term with the exception of paragraph (5) and (6) of this section, and one of the following circumstances exists:

(1) The Regional Forester determines tree cutting, sale, or removal is needed to reduce hazardous fuels to an at-risk community or municipal water supply system that is:

(i) Within the first one-half mile of the community protection zone, or

(ii) Within the next one-mile of the community protection zone, and is within an area identified in a Community Wildfire Protection Plan.

(iii) Projects undertaken pursuant to paragraphs (c)(1)(i) and (ii) of this section will focus on cutting and removing generally small diameter trees to create fuel conditions that modify fire behavior while retaining large trees to the maximum extent practical as appropriate to the forest type.

(2) The Regional Forester determines tree cutting, sale, or removal is needed outside the community protection zone where there is a significant risk that a wildland fire disturbance event could adversely affect a municipal water supply system or the maintenance of that system. A significant risk exists where the history of fire occurrence, and fire hazard and risk indicate a serious likelihood that a wildland fire disturbance event would present a high risk of threat to a municipal water supply system.

(i) Projects will focus on cutting and removing generally small diameter trees to create fuel conditions that modify fire behavior while retaining large trees to the maximum extent practical as appropriate to the forest type.

(ii) Projects are expected to be infrequent.

(3) Tree cutting, sale, or removal is needed to maintain or restore the characteristics of ecosystem composition, structure and processes. These projects are expected to be infrequent.

(4) Tree cutting, sale, or removal is needed to improve habitat for federally threatened, endangered, proposed, or Agency designated sensitive species; in coordination with the Colorado Department of Natural Resources, including the Colorado Division of Parks and Wildlife.

(5) Tree cutting, sale, or removal is incidental to the implementation of a management activity not otherwise prohibited by this subpart.

(6) Tree cutting, sale, or removal is needed and appropriate for personal or administrative use, as provided for in 36 CFR part 223, subpart A.

Notes of Decisions

Cited in 3 cases, 2012–2016 · leading case: Ark Initiative v. Thomas Tidwell, 816 F.3d 119 (D.C. Cir. 2016).

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Ark Initiative v. Thomas Tidwell, 816 F.3d 119 (D.C. Cir. 2016). · cites it 2× “at 39,577, and designates more than a million acres of inventoried roadless areas as “upper-tier” roadless lands subject to more stringent restrictions on roadbuild- *125 ing, tree cutting, and linear construction (such as power and telecommunication lines) than the national…”

Ark Initiative v. Tidwell, 895 F. Supp. 2d 230 (D.D.C. 2012). · cites it 6× “” See 36 C.F.R. §§ 294.42 -.44. Those roadless areas may later gain statutory protection by congressional designation as “wilderness areas” — defined by a contemplative Congress as “an area where the earth and its community of life are untrammeled by man, where man himself is a…”

Ark Initiative v. Thomas Tidwell, 749 F.3d 1071 (D.C. Cir. 2014). · cites it 2× “36 C.F.R. § 294.42 (a), 294.42(c); Reply Br.”

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