Tongass exemption to Roadless Rule overturned

  • By CHARLES L. WESTMORELAND
  • Wednesday, July 29, 2015 10:43pm
  • News

The Tongass will be roadless once more.

The U.S. 9th Circuit Court today upheld a lower court ruling 6-5 that overturned the Tongass National Forest’s exemption to the President George W. Bush-era rule prohibiting road construction and timber harvests on 58.5 million acres of Nation Forest System Land. In 2003, the Tongass was granted an exemption, which was successfully appealed in 2011. The issue has been in and out of courts ever since. In March 2014, the 9th Circuit Court of Appeals reinstated the exemption but decided to rehear arguments.

The en banc court, which means all 9th Circuit judges heard the case, found that the 2003 exemption was invalid because the U.S. Department of Agriculture “failed to provide a reasoned explanation for contradicting the findings of the 2001 Record of Decision” while also not meeting requirements under the Administrative Procedure Act.

Without an exemption, Alaska can’t build new roads in the Tongass, where they are crucial for logging interior sections of the archipelago that makes up Southeast Alaska. Opponents of the rule have argued it blocks the state from millions of dollars of economic development in the nation’s largest national forest. Proponents say the rule is needed to protect wildlife and natural habitat.

In actuality, the decision isn’t likely to have a major impact since no road projects are underway or planned at this time, said Earthjustice attorney Eric Jorgensen.

“This is mostly about ensuring roadless protection continues into the future,” he said.

Environmentalists are hailing the ruling as a victory all the same.

“Today’s decision is great news for the Tongass National Forest and for all those who rely on its roadless areas,” Eathjustice attorney Tom Waldo said in a statement. “The remaining wild and undeveloped parts of the Tongass are important fish and wildlife habitat and vital to residents and visitors alike for hunting, fishing, recreation, and tourism, the driving forces of the regional economy.”

Earthjustice, a nonprofit law firm, was one of 12 plaintiffs in the case. The 2003 exemption of the Tongass was first challenged in a lawsuit filed by the Organized Village of Kake, Earthjustice, the Southeast Alaska Conservation Council and other environmental and tourism organizations.

“This is great news for fishing families like mine, tourism businesses, and all who are working to create diverse, stable economies in Southeast Alaskan communities,” SEACC Executive Director Malena Marvin said in a statement. “Our leaders should join those of us on the ground in building economic prosperity for local communities by saving the Tongass’s wild salmon strongholds and making sure the Forest Service invests in our booming tourism and fishing industries.” 

The Department of Agriculture was named as a defendant of the suit, but it declined to appeal the district court’s ruling against exempting the Tongass. The state of Alaska then stepped in as an intervenor-defendant in the most recent lawsuit, as did the Alaska Forest Association.

Sen. Lisa Murkowski, R-Alaska, has long advocated for the Tongass to be exempt and in March introduced legislation that would exempt Alaska.

Robert Dillon, Murkowski’s energy expert, said the issue isn’t just about logging but developing infrastructure.

“There have been multiple promises that (U.S. Forest Service Chief Tom Tidwell) would be flexible in how they applied it in Alaska because there are no roads, … they already exist in the Lower 48. That doesn’t exist in the Tongass. … (The ruling) really makes building roads to renewable energy projects, … transmission lines to lower energy costs, roads to critical mineral mines … very difficult now. It’s frustrating, I’m sure, to the residents of Southeast just as it is to our office.”

Gov. Bill Walker’s office referred comment to the Alaska Department of Law.

“We are deeply disappointed by the Ninth Circuit’s ruling striking down the Roadless Rule exemption for Alaska,” Assistant Attorney General Cori Mills wrote in an email. “The exemption had been the result of a settlement between Alaska and the federal government, and its unfortunate that we have to go back to square one. In Southeast Alaska, the Roadless Rule sets aside so much land from timber harvest and road construction in support of mineral development, power projects, and geothermal development that the economy of Southeast is likely to suffer. The State will consider its options in this case, and we are still hopeful that our additional challenge to the Roadless Rule that is now before the D.C. District Court will be successful.”

Judge Alex Kozinski wrote in his dissenting opinion: “… We are in the home stretch of the Obama administration and still litigating the validity of policy changes implemented at the start of the George W. Bush administration. How can a President with a mere four or eight years in office hope to accomplish any meaningful policy change — as the voters have a right to expect when they elect a new President — if he enters the White House tethered by thousands of Lilliputian ropes of administrative procedure? The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites … judicial policymaking.”

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