While a ruling isn't expected for some time, the three-judge panel expressed skepticism about its ability to weigh in on the agreement at this time, because no final judgment has yet been rendered at the trial-court level.

In what wound up a two-pronged, 40-minute discussion at the Byron White Federal Courthouse in downtown Denver, attorneys for the state and the U.S. Department of Justice asked for a dismissal of an appeal brought by a coalition of environmental groups, led by the Southern Utah Wilderness Alliance (SUWA) and Earthjustice.

Their argument: The 10th Circuit had no jurisdiction because U.S. District Court Judge Dee Benson was never given the chance to examine the challenges to the settlement.

But as the hearing continued, the debate expanded to take in the guts of the settlement - which froze the state's designated Wilderness Study Areas (WSAs) at 3.2 million acres and eliminated consideration of nearly 6 million acres of potential wilderness that had been identified by the Clinton administration and conservation groups. In particular, the judicial panel questioned how the settlement could be finalized with little or no public input.

The agreement was sent to the district court just before the close of business Friday, April 11. Benson signed a consent decree the following Monday, before opponents could lodge formal objections.

Utah co-counsel Constance Brooks called it a strict "two-party negotiation." But Judge Michael Murphy peppered her with questions about the process. "At any time did you reach [an understanding] and put it out in front of the public?" he said.

Brooks said the expectation, at the time, was that public would be able to weigh in when it reached the courts.

SUWA conservation director Heidi McIntosh called that explanation a clue "that there are clearly some problems with this consent decree, and how it was pushed through so quickly."

Most of the hearing focused on jurisdictional issues.

"There are many things that were never addressed and need to be sifted through in district court," said Justice Department attorney Todd Aagard, arguing that the coalition leapfrogged Benson before he could hear its objections, even after he allowed it to intervene.

Counsel for SUWA and Earthjustice countered that they were forced take their case to the appellate level because of the way the settlement was quietly submitted to Benson, then hurriedly approved.

And on that count, they got some sympathy from the court.

The coalition, said Judge Murphy, "was between a rock and a hard place."

However, the fact that Benson has yet to actually hear the coalition's complaint may leave the appeals court with little choice but to send the case back to Salt Lake City.

"I'm having a hard time understanding why we have jurisdiction here," presiding Judge Mary Beck Briscoe said. "Just signing a consent decree doesn't always equal a final judgment . . . This is a court of review."

McIntosh acknowledged that, "this could come down to jurisdiction. My sense is [the 10th Circuit] wants to see more review."

Utah Deputy Attorney General Mark Ward also claimed a partial victory.

"I'm comforted by the fact that they placed great attention on jurisdiction issues," he said. "Judge Benson should have the first opportunity to look at this. Let Judge Benson move this forward."

jbaird@sltrib.com

The wilderness accord

l What it is: A settlement between Utah and the Interior Department signed in April 2003 that ended the state's 1996 lawsuit against the feds over Clinton-era wilderness inventories.

l What it did: The agreement froze the state's designated Wilderness Study Areas (WSAs) at the 1991 level of 3.2 million acres and eliminated 2.6 million acres of BLM holdings that had been given interim wilderness status, as well as 3.3 million acres that conservation groups claimed deserved wilderness protection.

l The impact: State and federal officials say the agreement provides the BLM increased flexibility in managing its vast holdings in Utah and throughout the West. Opponents charge that the settlement eliminates the agency's ability to advise Congress in authorizing the creation of new WSAs, endangering such Utah landmarks as Desolation Canyon and Fisher Towers.