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.

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.

Tenth Circuit hears arguments in key Roadless Rule case

Nearly a decade after becoming law at the end of former President Bill Clinton’s administration, a federal appeals court heard the last, and probably most important, case involving the validity of a federal regulation that blocked road construction or renovation on millions of acres of roadless National Forest land.

The Obama administration defended the rule in the U.S. Court of Appeals for the Tenth Circuit Wednesday as lawyers for the mining industry and the state of Wyoming argued that it unlawfully designates de-facto wilderness.

The case was heard by circuit judges Stephen H. Anderson, Jerome A. Holmes and Michael R. Murphy.

Anderson was appointed to the court by former President Ronald Reagan. Holmes was appointed by George W. Bush and Murphy by Clinton.

Another appeals court, the U.S. Court of Appeals for the Ninth Circuit, has already upheld the rule.

But in 2008 a federal trial judge in Wyoming blocked it from going into effect anywhere in the country, agreeing with industry arguments that former President Bill Clinton cut short procedures and assumed authority only Congress has.

The Tenth Circuit is the only federal appeals court that now has the authority to consider the merits of that decision.

The Roadless Area Conservation Rule affects about 58 million acres of public land. It was finalized shortly before former President George W. Bush was inaugurated in 2001. Bush opposed the rule and his administration suspended it within days of taking office.

Lawyers from the U.S. Department of Justice, which are defending the rule more aggressively than they did during the Bush administration, told three appellate judges in Denver that federal statutes governing the Forest Service give the agency the authority to control development even in areas not formally protected by the Wilderness Act.

The Clinton administration sought public input on the Roadless Area Conservation Rule before finalizing it. More than 1.5 million comments, most favoring the rule, were received.

In 2005 the Bush administration repealed the rule. Instead, it mandated that states petition the Forest Service for protection of roadless federal lands within their borders, with the Forest Service retaining the authority to deny the petitions.

However, the Ninth Circuit, in an Aug. 2009 decision, ruled that the Forest Service had not complied with the National Environmental Policy Act when it imposed this new regulation. It upheld a California trial judge’s order requiring the Forest Service to reinstate the Roadless Area Conservation Rule.

However, the geographic scope of the San Francisco-based appeals court’s decision was limited to Alaska, Washington, Oregon, Idaho, Montana, California, Nevada, Hawaii and New Mexico.

Bush’s Justice Department did not appeal an earlier, similar ruling by U.S. District Judge Clarence Brimmer preventing the rule from going into effect anywhere in the nation. That decision, issued in 2003, was later overturned by the Tenth Circuit on technical grounds.

In May 2009 President Obama reversed Bush’s administrative suspension of the rule and gave secretary of agriculture Tom Vilsack exclusive and sole power to decide what logging and road-building activities can occur in areas that would be subject to the rule. The delegation was for one year but can be renewed annually.

National Forests in Idaho, as well as Alaska’s huge Tongass National Forest, are exempt from the Roadless Area Conservation Rule.

Idaho was given a purported exemption by a regulation granting its petition filed under the Bush administration’s 2005 rule, while the Bush administration issued in 2003 a regulation exempting the Tongass until a replacement Roadless Area Conservation Rule was adopted.

No court has definitively ruled on the question whether either exemption is valid.

Should the Tenth Circuit affirm Brimmer’s decision, the dispute over the Roadless Area Conservation Rule may head for the U.S. Supreme Court.