State Wins Tongass Roadless Rule Exemption Case
By MARY KAUFFMAN
March 27, 2014
In a 2-1 decision yesterday, the 9th Circuit reversed the decision of the district court, which had reinstated restrictions imposed in 2001 on unroaded areas of the 17 million acre national forest. In 2003, then Gov. Frank Murkowski’s administration negotiated an exemption to the roadless rule for the Tongass to settle an Alaska lawsuit challenging the nationwide rule.
The 9th Circuit Court's opinion reversed the District Court’s 2011 decision that invalidated the Tongass exemption from the Roadless Rule. A Court in 2003 found the U.S. Department of Agriculture had articulated "a number of legitimate grounds" to temporarily exempt the Tongass, including the changes in economic predictions and the high socioeconomic costs in Alaska.
Coincidentally, a few hours after the 9th Circuit Court of Appeals ruled to uphold the exemption of the Tongass National Forest from the 2001 Roadless Rule, the Alaska Senate unanimously passed Senate Concurrent Resolution 2 (SCR 2), sponsored by Senator Bert Stedman (R-Sitka) which urges the U.S. Congress to act on a request by the Alaska governor to acquire additional state land in the Tongass National Forest. The resolution asks the governor to acquire land in the Tongass by purchase or negotiation or by seeking amendment to the Alaska Statehood Act. Approximately 5,500,000 acres of statehood entitlement land granted to Alaska by the federal government have not yet been conveyed.
In response to the news, Senator Stedman said, ““I’m extremely pleased to see the 9th Circuit Court of Appeals finally recognizes the seriousness of the impact the roadless rule has on local communities in the Tongass National Forest. There are 32 communities in the region and the roadless rule would have condemned these communities to continued isolation and the inability to access resources for economic development.”
In his speech on the Alaska Senate floor yesterday, Senator Stedman said, “the people in Southeast Alaska should have the ability to expand their communities and be self-sustaining. The lack of access to a commercially viable timber supply and the closure of the pulp mills resulted in the loss of roughly 30 percent of the economic base in my district.” SCR 2 now goes to the House of Representatives for consideration.
Regarding the 9th Circuit Court's ruling yesterday Governor Sean Parnell said, “This is a huge victory for Alaskans and their families who depend on economic development in the Tongass.” He said, “Although this rule has already done irreparable harm to the timber industry and small communities in Southeast Alaska, this win will allow Alaskans to start building the industry back up. I will continue to aggressively stand up when federal agencies tread on Alaskans’ rights and Congress does not act.”
Alaska’s senior senator and the ranking Republican on the Senate Energy and Natural Resources Committee, U.S. Sen. Lisa Murkowski (R-Alaska) in a prepared statement said, “Striking down the Tongass’ exemption to the roadless rule was a terrible decision when it was made more than two years ago,” Murkowski said. “The people of Southeast Alaska knew it, and so did the state, which is why they acted so quickly to file an appeal to that decision. I applaud the Ninth Circuit for righting that wrong today.”
“The 2011 ruling by the district court has already done its damage to the people in Southeast Alaska, who rely on the Tongass to help them put food on their tables,” Murkowski said. “The economy in those communities has suffered greatly since that ruling, so today’s decision by the Ninth Circuit is a welcome one. It’s just too bad it had to get to this point in the first place.”
U.S. District Court Judge John W, Sedwick in early 2011 ruled that the Bush administration had violated the Administrative Procedure Act, but he did not have to rule on plaintiffs' NEPA claim. The reasons given by the Forest Service for exempting the Tongass from the roadless rule were "implausible, contrary to evidence in the record" and at odds with previous rulings by the 9th U.S. Circuit Court of Appeals, Sedwick wrote in 2011.
U.S. Senator Mark Begich (D-AK) issued the following statement Wednesday, “I welcome this decision overturning the roadless rule, a cookie cutter regulation from Washington that doesn't work for Alaska. Litigation has stretched on for 13 years now, and I expect we're not done yet. That's why I have sponsored legislation to permanently stop this policy that just doesn't work.”
Alaskan Congressman Don Young (R-AK) shared his thoughts on the decision by the Ninth Circuit Court of Appeals to reverse a 2011 District Court ruling and once again recognize the exemption for the Tongass National Forest from the Roadless Area Conservation Rule.
“Today’s 9th Circuit Court of Appeals ruling is a victory for Alaska and the responsible development of our land,” said Congressman Young. “Our state’s geography holds unique circumstances for many of our industries, especially those engaged in timber, mineral or hydropower development, and the 2011 District Court ruling was a blow to both the economy and way of life of Southeast Alaska.
Young said, “The Roadless Rule applies a one-sized-fits all policy to areas where those polices rarely work, especially the federally land locked areas of Alaska. Southeast Alaska requires special consideration and the government should be willing to provide the flexibility for responsibly developing its infrastructure and resources.”
E&E Publishing reported that Niel Lawrence, forestry project director for the Natural Resources Defense Council, a plaintiff in the case, said he was "surprised and sorry that the [9th Circuit] majority didn't see that the agency had only made-up reasons for what it billed as a hurry-up short term measure."
NRDC was joined in the lawsuit by Organized Villege of Kake; tourism operators; and the Sierra Club, Defenders of Wildlife, Center for Biological Diversity, Cascadia Wildlands, Greenpeace, Tongass Conservation Society and Wrangell Resource Council.
According to E&E Publishing, the groups are considering whether to ask the 9th Circuit for a full panel review, but in the meantime, they are confident their claims that the Forest Service violated NEPA would be upheld by the district court, Lawrence said. "We will pursue it vigorously, and we're confident it will preserve the application of the roadless rule," he said.
Members of the Senate Majority say they are optimistic about the decision from the 9th U.S. Circuit Court of Appeals to uphold the exemption of the Tongass National Forest from the 2001 Roadless Rule.
“The Ninth Circuit has, historically, not been kind to Alaska when it comes to natural resource development,” said Senate President Charlie Huggins (R-Wasilla). “[Wednesday’s] ruling at least provides hope. Hope for people that want jobs. Hope for people that want a strong, diverse economy in Southeast Alaska.”
“I’m pleased. The court found that the USDA’s 2003 Record of Decision articulated legitimate grounds for exempting Tongass from the Roadless Rule,” said Alaska Senate Majority John Coghill (R-North Pole). “The Record of Decision was neither arbitrary nor capricious, as some have claimed. Although there is work to be done, this is a positive step for people that want jobs in Alaska.”
“I’m extremely pleased to see the 9th Circuit Court of Appeals finally recognizes the seriousness of the impact the roadless rule has on local communities in the Tongass National Forest,” said Senator Bert Stedman (R-Sitka). “There are 32 communities in the region and the roadless rule would have condemned these communities to continued isolation and the inability to access resources for economic development.”
“Getting the Tongass out from under a one-size-fits-all rule gives Alaskans the chance to do development right: supporting jobs while we protect our fish and tourism,” said Senator Dennis Egan, (D-Juneau). “I’ll keep an eye on the next court ruling – this issue won’t be over for a while, but it’s a step in the right direction.”
“This is an outstanding victory for Southeast Alaskan families,” said Senator Lesil McGuire (R-Anchorage). “The ability to access and help direct development of natural resources in their region impacts the survival of the hardworking men and women who make this beautiful region their home. Access to energy projects is a particular concern I’ve had. This will open up more opportunities for more affordable, reliable sources of energy for Southeastern families.”
The 9th Circuit did remand the case to the United States District Court for further consideration to determine whether a Supplemental Environmental Impact Statement under the National Environmental Policy Act is required.