Justices will not hear dispute over Tongass exemption to national forest roadless area protection

View from Deer Mountain Trail
This photo shows a portion of the Tongass National Forest. Image courtesy USDA Forest Service.

The U.S. Supreme Court will not take up a long-running dispute over preserving large areas of Alaska’s Tongass National Forest from logging.

The justices declined Monday to grant a petition for certiorari in the case, which involves an exemption from the landmark 2001 Roadless Area Conservation Rule, and allowed a lower court decision that bans regulatory changes based solely on political considerations to stand.

“Today’s court order is great news for southeast Alaska and for all those who visit this spectacular place,” Tom Waldo, an attorney at Earthjustice who represented environmental groups in the case, said.

Encompassing nearly 17 million acres, the Tongass is the world’s largest intact temperate rainforest. It extends along the coast of southeast Alaska for about 500 miles, with a variety of bays, coves, fjords, and glaciers within the national forest boundaries, and constitutes about seven percent of Alaska’s land. Wildlife found in the forest include salmon, wolves, brown and black bears, bald eagles, and the Arctic tern.

RACR was adopted by the administration of President William J. Clinton in January 2001, just days before the inauguration of a new President.  It did not initially exempt the Tongass. The U.S. Department of Agriculture Forest Service decided, during the process leading to RACR’s establishment, that the “long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities.”

In 2003 the agency reversed itself. The agency, which had come under the leadership of President George W. Bush’s appointees, reached a conclusion exactly opposite to the one it had in 2001. This time, USDA Forest Service decided that “the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits” of RACR.

The Bush administration granted the RACR exemption to the Tongass as part of a settlement of a legal challenge to RACR filed by Alaska.

Environmental groups, an Alaskan native village, and a non-profit boat touring company challenged the exemption under the federal law that governs agency rulemaking. A divided panel of 11 judges on the U.S. Court of Appeals for the Ninth Circuit ruled in July 2015 that the agency had not adequately explained its change of mind.

Alaska asked the justices to review that decision on grounds that the San Francisco-based appeals court had read a 2009 opinion of the Supreme Court too broadly by assuming that it forbids changes in policy that are dictated by ideology.

That 2009 decision held that agencies must demonstrate “good reasons” for a change in policy direction indicated by a final regulation and that an explanation of that change has to include a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or were engendered by the prior policy.”

USDA Forest Service is considering changes to the existing management plan for the Tongass that would permit continued old-growth logging for another 15 years. The agency released its proposed amendment to the Tongass National Forest Management Plan in Nov. 2015; it is likely to be adopted late this year.

President Barack Obama’s secretary of agriculture,  Tom Vilsack, directed the Forest Service in 2013 to shift timber production on the Tongass away from old-growth stands and toward young trees.

The case in which the Supreme Court declined to grant review is Alaska v. Organized Village of Kake, No. 15-467.

Ninth Circuit rejects Tongass National Forest exemption to Roadless Rule

A federal appeals court has turned aside an attempt to exempt Alaska’s Tongass National Forest from a nationwide regulation protecting roadless areas.

Judge Andrew Hurwitz, writing for a majority of eleven judges sitting as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, concluded that the effort to prevent the Roadless Area Conservation Rule from applying to the country’s largest national forest violated the main federal law that governs agency rulemaking.

The majority held July 29 that the U.S. Department of Agriculture, the parent agency of the Forest Service, had reversed a finding made during the process of enacting RACR that exempting the Tongass “would risk the loss of important roadless area values” without any explanation.

“Elections have policy consequences,” Hurwitz wrote. “But . . . even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”

The 69,000 square kilometer-large Tongass National Forest is the largest remaining temperate rainforest on the planet. Among the wildlife that depend on it are five stocks of Pacific salmon, grizzly and black bears, bald eagles, arctic terns, and the imperiled Alexander Archipelago wolf.

RACR, which was finalized shortly before President William J. Clinton left office in Jan. 2001, was the subject of a barrage of lawsuits. The rule did not go into effect until a federal appeals court in Denver rejected the last remaining legal attack on it in 2011.

Three judges dissented from the ruling, which might end a fight that began shortly after the administration of President George W. Bush wrote the Tongass exemption into the Code of Federal Regulations in Dec. 2003.

The state of Alaska and the Alaska Forest Association, Inc., which defended the Tongass exemption, could seek review of the Ninth Circuit’s decision.

The case is Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517.

Environmental groups, scientists urge opposition to bills that would expand National Forest logging

Opposition to efforts by some members of Congress to mandate more logging on federal forests is on the rise, with environmental organizations and scientists recently circulating strong statements.

The letters relate to two forestry bills pending in Washington: H.R. 1526 and S. 1479.

The scientists’ communique, which is signed by 250 individuals, urges Congress to avoid any requirement to increase logging in forest stands that have been damaged by fire.

“Both bills ignore the current state of scientific knowledge, which indicates that such activity would seriously undermine the ecological integrity of forest ecosystems on federal lands,” the scientists’ letter argues.

The scientists explained that snags, which are the standing remains of incinerated trees, are important habitat for a variety of bird species and that the wild flowers that grow in burned areas encourage re-population of the area by pollinators. They also point out a variety of other ecosystem benefits of burned forest stand areas that the legislation would compromise:

Numerous studies also document the cumulative impacts of post-fire logging on natural ecosystems, including the elimination of bird species that are most dependent on such conditions, compaction of soils, elimination of biological legacies (snags and downed logs) that are essential in supporting new forest growth, spread of invasive species, accumulation of logging slash that can add to future fire risks, increased mortality of conifer seedlings and other important re-establishing vegetation (from logs dragged uphill in logging operations), and increased chronic sedimentation in streams due to the extensive road network and runoff from logging operations.

The environmentalists’ letter, which is signed by 20, mostly West coast, advocacy organizations and is addressed to U.S. secretary of agriculture Tom Vilsack and U.S. secretary of interior Sally Jewell, highlights the likelihood that increased logging in disturbed areas of federal forests would contradict a recovery plan for the endangered northern spotted owl.

“Plans to boost post-fire logging in spotted owl habitat ignore the best available science and would cause harm to old-growth forests,” Steve Holmer, a senior policy advisor at American Bird Conservancy, said. “Government scientists have concluded that in order to recover the rapidly declining northern spotted owl population, protection is needed for forest structures created by fires such as large standing dead trees that are used by the owls to nest in.”

The impact of the bills on forest landscapes impacted by wildfire is not the only criticism aimed at them.

Several environmental groups have loudly objected to the House bill’s waivers of laws that currently apply to logging operations.

“H.R. 1526 would carve gaping loopholes in the Endangered Species Act, the National Environmental Policy Act and other bedrock environmental laws,” The Wilderness Society president Jamie Williams said in a statement. “This would lead to dirty water and air, and destroy recreational opportunities.”

The House bill would set a statutory floor on the amount of logging undertaken in federal forests, doubling the amount that now occurs.

It would also prevent judicial review of most decisions to cut trees within designated “forest reserve revenue areas” that, for the first time, would require Washington to comply with a “fiduciary” obligation to provide revenues from logging to counties in which federal forests are located.

H.R. 1526, the proposed Restoring Healthy Forests for Healthy Communities Act, cleared the U.S. House of Representatives on Sept. 20. It is now pending in the Senate Energy and Natural Resources Committee along with a similar bill, S. 1479.

President Obama warned on Sept. 18 that he would veto H.R. 1526, or similar legislation, if it reaches his desk.

Roadless rule fight ends



The long fight over a far-reaching federal regulation aimed at preserving roadless areas of the national forests ended Monday when the U.S. Supreme Court decided it would not review an appeals court decision upholding it.

The court’s decision means that the rule can go into effect more than ten years after it was finalized by the Clinton administration.

“The Roadless Rule is now indisputably the law of the land,” Jamie Williams, the president of the Wilderness Society, said in a statement.

Getting to that point required battles in two federal courts of appeal and the hostility of the George W. Bush administration, which declined to defend it in one appeals court, tried to replace it with a rule that would establish protections on the basis of state preferences, and exempted the nation’s largest temperate forest – Alaska’s Tongass National Forest – entirely from the rule.

The Bush administration also managed to secure exemptions from the rule for Idaho and Colorado.

Roadless areas are considered to be biologically important because they allow for the preservation of cold-water fish habitat and the sustained connection between a variety of habitats for native wildlife populations.

Areas of forest not sliced up by roads are also more resistant to wildfire and provide refuge for species impacted by human activities elsewhere and by global climate change.

The Forest Service first initiated efforts to protect them during the 1920s, when it set aside “primitive areas”, and by the 1960s federal law recognized their ecological significance when Congress enacted the Wilderness Act.

That landmark law required the Forest Service to protect roadless areas pending Congressional decisions about which of the areas to designate as wilderness, and in the 1970s the agency completed an evaluation of its acreage that qualified.

The Clinton administration imposed a moratorium on additional road-building in the national forest roadless areas in 1999 and then, just before leaving office in Jan. 2011 and after a lengthy process that involved the most extensive public involvement process in U.S. history, finalized the regulation to protect them.

Two federal appeals courts later upheld the validity of the Roadless Rule against attacks from motorized recreation advocates, grazing, mining, and timber interests, and a small number of municipalities, counties, and states.

Critics argued that the regulation intruded on Congress’ exclusive authority to designate wilderness areas.

The Roadless Rule affects 58.5 million acres of the 193 million-acre national forest system.
There are more than 380,000 miles of roads, mostly built to support timber extraction activities, in the national forests.

The regulation does not require closure of existing roads, does not prevent off-road vehicle use in the national forests, and does not affect opportunities to conduct mining operations in the national forests. It also does not prevent holders of grazing permits from allowing their livestock to roam on federal government-owned forests.

The Supreme Court’s orders denying review came in Colorado Mining Association v. U.S. 
 Department of Agriculture, No. 11-1384 and Wyoming v. U.S. Department of Agriculture, No. 11-1378.