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

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.