(CN) – Timber demand and freedom from lawsuits are good-enough reasons for excusing Alaska’s Tongass National Forest from Clinton-era roadless rules, the 9th Circuit ruled Wednesday.
Native villages and environmental groups sued the Forest Service over a 2003 decision that exempted the 17 million-acre Tongass National Forest, the nation’s largest, from the wilderness-friendly Roadless Area Conservation Rule. Alaska intervened on the government’s side, and was the only party to appeal after U.S. District Judge John Sedwick vacated the exemption in 2011.
Sedwick had found the agency’s reasons for applying the exemption to be arbitrary and capricious, but a divided three-judge appeals panel called them “entirely rational” in a Wednesday reversal.
In its record of decision (ROD), the Forest Service said the exemption would help settle a resource-consuming lawsuit over the roadless rule, as well as slake future demand for timber by allowing more commercial logging than would be possible under the rule. The agency also reasoned that the rule would expose some 30 small communities around the forest to economic isolation.
Since the Forest Service “clearly acknowledged the 2003 ROD is inconsistent with its previous Roadless Rule and gave a reasoned explanation for the change,” its decision was neither arbitrary nor capricious, the majority found.
Writing in dissent, Judge M. Margaret McKeown said the majority had failed to “adequately probe the record for a reasoned justification for the USDA discarding its previous position – adopted only two years earlier – to apply the Roadless Rule to the Tongass.”
“Of course agencies may change their positions over time, and over administrations, but they cannot completely reverse course lightly,” McKeown wrote.
The ruling sends the case back to Alaska and directs Judge Sedwick to consider, for the first time, whether the agency should have completed a supplemental environmental impact statement before applying the exemption.
Thomas Waldo of EarthJustice and Nathaniel Lawrence of the Natural Resources Defense Council represent the plaintiffs in the case, which include the Organized Village of Kake, the Southeast Alaska Conservation Council and Defenders of Wildlife.
Lawrence said Tuesday that they are “currently evaluating the decision to determine whether to seek en banc rehearing.”
He added that, contrary to the court’s mention of a supplemental environmental impact statement, the Forest Service failed to complete an initial environmental impact statement (EIS) before approving the exemption.
“That is an issue the District Court never reached,” Lawrence said in an email. “And that claim could be fully dispositive, providing independent grounds to void the exemption. Thus, the case is not over, regardless of whether reconsideration is sought.
A decision on the EIS issue could be reached relatively soon, Lawrence said, as it has already been fully briefed to the District Court.
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