A divided federal appeals court held Wednesday that federal forestry regulators failed to explain sufficiently why they reversed course in 2003 and exempted 17 million acres of Alaska’s Tongass National Forest from road building protections.
The 9th U.S. Circuit Court of Appeals split 6-5, to uphold more stringent national roadless rules originally issued in 2001.
The12-year battle over roadless area rules that exempted the Tongass National Forest ended in the split appeals court ruling.
The roadless rule, limiting timber harvesting, oil and gas drilling and other commercial uses on these designated national forest lands, was enacted during the final days of the Clinton Administration and then revised and weakened in the new Bush Administration.
The 9th Circuit held Wednesday that a policy changes violates the Administrative Procedures Act if the agency “ignores or countermands its earlier factual findings without reasoned explanation.”
Elections have policy consequences, Judge Andrew Hurwitz noted, adding, “even when reversing a policy after an election, an agency nay not simply discard prior factual findings without a reasoned explanation. That is precisely what happened here.”
The majority said the original 2001 roadless rules, issued during the Clinton Administration will remain in force.
In dissent, Judge Milan Smith wrote “elections have legal consequences,” saying the policies of a new administration may supplant the prior one. He was joined by Judges Alex Kozinski, Richard Tallman, Richard Clifton and Connie Callahan
In 2001, the Department of Agriculture designated one-third of the 58 million acres of national forest lands to be roadless areas to protect as undisturbed landscapes for environmental, recreational and scientific uses to protect wildlife, water supplies and the forests. The 2001 rule garnered wide public support in nearly 600 public hearings nationally.
The new Bush Administration moved to postpone implementation following opposition filed by Idaho’s Boise Cascade Company. U.S. District Judge Edward Lodge issued a preliminary injunction in May 2001, barring the roadless rules from taking effect.
Then in December 2002, the 9th Circuit reinstates the roadless rule and lifting the Lodge injunction.
A year later, the federal government announces a settlement of a lawsuit brought by the state of Alaska by agreeing to exempt from the roadless rule the Tongass National Forces, know named the Chugach National Forest.
Between 1970 and 2001, Alaska received more than $93 million from timber harvesting and other commercial activities in the Tongass. The economic benefits of timber harvesting in Tongass “is directly affected by the Tongass Exemption,” the 9th Circuit noted.
The Bush administration later issues its own revised roadless rules that weaken the original designation. A flurry of litigation by environmentalists followed in federal courts around the West.
In 2006, Magistrate Judge Elizabeth Laporte in San Francisco orders reinstatement of the Clinten-era Roadless rule and later clarifies to say the injunction extends to oil and gas drilling permits and leases issued since 2005.
Her decision is appealed to the 9th Circuit by the U.S. Forest Service and timber industry.
Hurwitz was joined in the majority by Chief Judge Sidney Thomas, Judges Harry Pregerson, William Fletcher, Morgan Christen and Jacqueline Nguyen.
Kozinski wrote separately to decry the glacial pace of the litigation that has spanned three administrations.
Case: Village of Kake v. US Department of Agriculture, No. 11-35517