Forest’s Rule Exemption Debated in 9th Circuit

(CN) - In exempting the largest national forest from Clinton-era roadless rules, regulators simply demonstrated "why we have elections," Alaska's top attorney told the full 9th Circuit.

Tuesday's en banc hearing in Pasadena, Calif., considered a 2003 decision that excused Alaska's 17 million-acre Tongass National Forest from the wilderness-friendly Roadless Area Conservation Rule.

Though the U.S. Forest Service had embraced the roadless rule for the Tongass in a 2001 decision, it deemed the rule too burdensome to the remote area's economy, and a likely contributor to litigation, two years later.

When the Organized Village of Kake and a host of environmental groups filed suit, Alaska intervened on the government's side, and was the only party to appeal after U.S. District Judge John Sedwick vacated the exemption as arbitrary in 2011.

Reviving the exemption in March, a divided three-judge appeals panel called the agency's decision "entirely rational."

The 9th Circuit later vacated that opinion in favor of Tuesday's en banc rehearing.

Much of the latest hearing focused on whether the Department of Agriculture, under which the Forest Service operates, had properly justified the about-face.

Alaska Assistant Attorney General Dario Borghesan told the court that the pivot was merely a policy change brought on by the "values" introduced by the Bush administration.

Though FCC v. Fox Television Stations says in part that an "agency may not ... depart from a prior policy sub silentio," Borghesan said this context meant that the Forest Service need not provide such justification.

In its 2003 record of decision (ROD), the Forest Service had concluded that the exemption would help the Tongass meet future demand for timber by allowing more commercial logging than would be possible under the rule. The agency also found that the rule would exacerbate the economic isolation of about 30 small, remote communities around the forest.

"The prior administration valued the incremental environmental protections of the roadless rule over the socioeconomic costs," Borghesan said. "The new administration took another look."

"So, kind of like judges," Judge Consuelo Callahan said.

"Like judges," Borghesan agreed, "two administrations can see things differently.

Judge Morgan Christen asked why the agency's new perspective hadn't required a "more searching, more detailed outlook."

"Because the agency is looking at the same facts, and its simply valuing the balance differently," Borghesan replied. "It's not contradicting the factual findings that underlay the original decision; it's simply saying, we value the socioeconomic health of these communities more than the incremental environmental benefits that the roadless rule would create in a forest that's already abundantly protected."

Judge Milan Smith noted that the core issue in the case was that "elections have consequences."

"So on the one hand you have some data about socioeconomic consequences. And the agriculture department under President Clinton, under his executive order, has one perspective. Then when President Bush came in he issued a different executive order - the same data produced a different result because of a different perspective," Smith said.

"That's exactly what this case illustrates," Borghesan said. "This is why we have elections."

Appearing for the native village and the environmental groups, attorney Thomas Waldo argued that the agency should be required to further explain its decision to exempt the Tongass because many of its 2003 findings were "contrary to the evidence before the agency."

"When it goes from saying it won't affect community road connections to saying that it will affect community road connections, that is a change in position and Fox requires the agency to display the awareness that it's changing that position," Waldo said.

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