E&E by Phil Taylor
Thursday, July 30, 2015
By the thinnest of margins, the 9th U.S. Circuit Court of Appeals yesterday ruled to reinstate roadless protections on the Tongass National Forest in Alaska, marking a major victory for conservationists and tourism companies fighting to protect the temperate rainforest from new logging and a defeat for the state's declining timber industry.
The decision, backed by six of the panel's 11 judges, found that the George W. Bush administration failed to provide a "reasoned" explanation for exempting the lands from President Clinton's sweeping national roadless rule.
Clinton's 2001 rule banned most road building and logging across 58 million acres of the nation's forests, including roughly 9 million acres, or just over half, of the Tongass.
Conservationists said the ruling would protect some of the last remaining stands of old-growth temperate rainforest in the world while allowing limited economic development including hydropower, transmission lines, mining and tourism projects.
"The Tongass' roadless rainforests are a national treasure, and the last, best intact wildlands in our bioregion," said Gabriel Scott, Alaska legal director for Cascadia Wildlands, one of a dozen environmental litigants in the case.
The others were the Organized Village of Kake, the Boat Co., the Alaska Wilderness Recreation and Tourism Association, the Southeast Alaska Conservation Council, the Natural Resources Defense Council, the Tongass Conservation Society, Greenpeace, the Wrangell Resource Council, the Center for Biological Diversity, Defenders of Wildlife and the Sierra Club.
But Sen. Lisa Murkowski (R-Alaska) argued the ruling would restrict access across forestlands the size of New Jersey. She plans to advance S. 631, a bill to permanently exempt the Tongass from the Clinton plan.
While southeast Alaska once boasted two massive pulp mills, it now contains just one significant mill, Viking Lumber on Prince of Wales Island. Timber harvests have fallen by 70 percent, causing jobs in the industry to fall from around 2,100 in 2000 to an average of about 100 last winter, Murkowski said, citing state data.
"The roadless rule may make sense in the Lower 48, where there are existing roads and utility lines on national forest lands, but in Alaska, where little, if any, infrastructure exists, it is truly counterproductive," she said.
Yesterday's ruling reverses a 2-1 decision in March 2014 by a smaller 9th Circuit panel that found the Bush administration's temporary rule in 2003 exempting the Tongass from roadless protections was "entirely rational" (Greenwire, March 27, 2014).
That ruling, which was cheered by former Alaska Gov. Sean Parnell (R) and the state's congressional delegation, had reversed a 2011 decision by a district court judge in favor of the Clinton rule.
But the full 9th Circuit found the three-member panel had gotten it wrong.
Namely, it said the Bush administration, in exempting the Tongass, had failed to reconcile two conflicting statements.
When the Clinton administration finalized its roadless rule in 2001, it included the Tongass on the grounds that current forest management in Alaska posed a high risk to the "extraordinary ecological values of the Tongass." The Bush administration, under legal pressure from Alaska, reversed course in 2003, finding "roadless values are plentiful on the Tongass and are well protected by the Tongass Forest Plan. The minor risk of the loss of such values is outweighed by the more certain socioeconomic costs of applying the roadless rule's prohibitions."
The Bush administration found that the roadless rule could eventually cost southeast Alaska 900 jobs.
But "the 2003 [decision] does not explain why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a ‘minor’ one,” the 9th Circuit ruled in an opinion penned by Judge Andrew Hurwitz, a President Obama appointee. “The absence of a reasoned explanation for disregarding previous factual findings violates the [Administrative Procedure Act]."
As a result, the court added, the Clinton rule "remains in effect and applies to the Tongass."
While the court acknowledged that elections "have policy consequences," the Forest Service "may not simply discard prior factual findings
without a reasoned explanation."
But five of the panel's judges disagreed, writing in a dissent that "the policies of the new president will occasionally clash with, and supplant, those of the previous president."
"The majority has selected what it believes to be the better policy, and substituted its judgment for that of the agency, which was simply following the political judgments of the new administration," wrote Judge Milan Smith, a Bush appointee.
Alaska's attorneys in the case have argued that most of the Tongass roadless areas were already closed to logging in 2001, and that the exemption would only affect roughly 300,000 acres.
They argued that the Forest Service's change of course in 2003 was "well reasoned" and rested on the conclusion that Congress had found the Tongass was sufficiently protected by previous laws, namely the Alaska National Interest Lands Conservation Act of 1980.
The agency "reweighed the balance of social and economic impacts" and decided the exemption would "best implement the spirit and letter of the law," the state said.
Judge Alex Kozinski, a Reagan administration appointee, joined Smith's dissent but wrote his own separate dissent noting the "absurdity" of the court still reviewing at the end of the Obama administration a policy issued at the beginning of the Bush administration.
"The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites the type of judicial policymaking that Judge Smith points out," Kozinski wrote. "This is just one of the ways we as a nation have become less a democracy and more an oligarchy governed by a cadre of black-robed mandarins."
(photo by David Beebe of the Tongass National Forest)