Greens Win Big Victory in Tongass Forest

     (CN) – The federal government improperly exempted the country’s largest national forest, the 17 million acre Tongass, from Clinton-era roadless rules, the Ninth Circuit ruled.
     Sitting en banc, the divided appellate judges affirmed a ruling that the Department of Agriculture’s 2003 decision to exempt Alaska’s Tongass National Forest from the wilderness-friendly Roadless Area Conservation Rule was arbitrary and capricious. The co-defendant National Forest Service is a branch of the Department of Agriculture.
     “Today’s decision is great news for the Tongass National Forest and for all those who rely on its roadless areas,” plaintiffs’ attorney Tom Waldo, with Earthjustice, said in a statement. “The remaining wild and undeveloped parts of the Tongass are important fish and wildlife habitat and vital to residents and visitors alike for hunting, fishing, recreation, and tourism, the driving forces of the regional economy.”
     The USDA promulgated the roadless rule in 2001 to protect public wilderness areas from human intrusion by limiting road construction and timber harvesting in national forests.
     About 58.5 million acres in U.S. forests have been designated roadless areas. These relatively undisturbed areas serve as critical habitat for threatened and endangered species and are valued for their scientific, aesthetic and recreational attributes.
     The Tongass, on the Alaska Panhandle, stretches across 16.8 million acres of southeast Alaska, from the Pacific Ocean to the British Columbia border in the south and to Malaspina Glacier in the north. It is the last temperate rainforest on the planet, with wetlands, ice fields, hundreds of small islands and old-growth forests of red cedar, Sitka spruce, and western hemlock.
     Many dwindling species call the forest home, including bald eagles, several species of Pacific salmon, porpoises, and minke and killer whales. Tourists visit to fish, hunt, hike and camp beneath the towering conifers.
     The Tongass also supports timber and mining, which sustain the economies of several small rural villages, including the Organized Village of Kake, the lead plaintiff.
     Though the USDA initially embraced applying the roadless rule in the Tongass, it changed course under President George W. Bush in 2003 and declared the forest exempt from the rule on the grounds that it would harm village economies and spur litigation .
     Kake (pronounced “cake”), a Tlingit village, was joined by 11 other plaintiffs, including major environmental groups and the Alaska Wilderness Recreation and Tourism Association. Their 2009 lawsuit claimed the exemption violated the National Environmental Policy Act and the Administrative Procedures Act.
     Alaska, which gets 25 percent of gross profits from timber sales, intervened on the side of the government.
     U.S. District Judge John Sedwick sided with the plaintiffs and vacated the exemption in 2011. After Alaska appealed, a divided three-judge panel called the USDA’s about-face on the Tongass exemption “ entirely rational ,” but the full Ninth Circuit vacated that opinion last year.
     On Wednesday, the Ninth Circuit affirmed the district court’s original finding that the Tongass exemption was arbitrary.
     The court said the case revolves around whether the 2003 exemption relies on factual evidence and “reasoned explanation” that contradict the findings of the 2001 rule.
     The 2001 rule asserted that conserving the integrity of wilderness areas outweighed any socioeconomic concerns for southeast Alaska’s “timber-dependent communities.” The 2003 rule asserted the opposite conclusion.
     Though the Ninth Circuit agreed with Alaska that the shift reflected a change in policy in line with Bush administration values, it rejected arguments that the USDA had “good reasons” to change that policy.
     Claims that the policy change was made out of concern for the region’s communities fail because they unreasonably contradict the factual findings underpinning the 2001 rule, according to the July 29 ruling.
     The 2003 rule found that exempting the Tongass from the roadless rule would cause only “minor” harm, which is “a direct, and entirely unexplained, contradiction” of the findings in the 2001 rule that exemption posed serious environmental risk, the circuit ruled.
     “The absence of a reasoned explanation for disregarding previous factual findings violates the APA [Administrative Procedures Act],” Judge Andrew Hurwitz wrote for the majority.
     Arguments that the change was made because of comments made on the proposed rule fail because the 2003 rule acknowledged that those comments raised no new issues. Alaska’s claim that adopting the Tongass exemption would ease litigation on the issue also fails because the matter is already “the subject of a nationwide dispute” and several other lawsuits, the Ninth Circuit ruled.
     Since the 10th Circuit vacated a Wyoming federal judge’s injunction against the roadless rule, it “therefore remains in effect and applies to the Tongass,” Hurwitz wrote.
     Dario Borghesan, assistant attorney general, who argued the case for Alaska, did not immediately return a request for comment Thursday.
     Chief Circuit Judge Sidney R. Thomas and Judge Morgan Christen wrote concurring opinions.
     In dissent, Judge Consuelo Callahan argued that Alaska lacks standing to appeal, so the appeal should be dismissed for lack of jurisdiction.
     Also in dissent, Judge Milan Smith said the USDA properly implemented the Bush administration’s values in amending the roadless rule and that the 2003 Tongass exemption was not arbitrary or capricious. He said that he would remand the plaintiffs’ NEPA claims to the district court.
     Judges Richard Tallman, Richard Clifton and Alex Kozinski joined Smith’s dissent.
     In his own dissent, Kozinski lamented that “the glacial pace of administrative litigation” results in “judicial policymaking.”
     “This is just one of the ways we as a nation have become less a democracy and more an oligarchy governed by a cadre of black-robed mandarins,” Kozinski wrote.

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