- Associated Press - Wednesday, March 26, 2014

JUNEAU, Alaska (AP) - A divided federal appeals court panel on Wednesday sided with the state of Alaska in reversing a decision that reinstated prohibitions on road-building and the harvesting of timber in the nation’s largest national forest.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, in a 2-1 decision, found that the U.S. Department of Agriculture had articulated “a number of legitimate grounds” in a 2003 decision to temporarily exempt the Tongass National Forest in southeast Alaska from the Roadless Rule, which contains the prohibitions.

A lower court judge, in 2011, had found the decision to be arbitrary and capricious.

The appeals court panel sent the matter back to the district court to determine whether additional environmental review is required. Ninth Circuit Court Judge M. Margaret McKeown dissented, saying the justification for the overturning the lower court’s decision was missing.

The dispute goes back more than 10 years. The U.S. Forest Service, which falls under USDA, in 2001 released a record of decision for the Roadless Rule. While various alternatives had been proposed surrounding the Tongass, the rule as implemented applied timber-harvest and road-building bans to the Tongass, according to the 2011 court decision. Litigation followed, which led to a settlement agreement under which the federal government ultimately decided to temporarily exempt the Tongass from those prohibitions in inventoried roadless areas.

A lawsuit challenging the exemption was filed in 2009 by the organized village of Kake, environmental groups and others, leading to the 2011 decision. The state was the only party to appeal - neither USDA nor the Forest Service, which were defendants in the case, appealed. The state had intervened on their behalf.

The majority opinion Wednesday, written by 9th Circuit Judge Carlos Bea, said the USDA “clearly acknowledged” that the 2003 decision excluding the Tongass from the Roadless Rule was inconsistent with its previous Roadless Rule. The opinion also said the decision stated the purpose of the exemption was to end litigation that was draining USDA’s resources.

“The court’s duty is not to determine whether the exemption was the best or correct way to avoid litigation, or even whether the litigation should be ended, but merely to decide whether such litigation-ending policy is permissible” and the agency believed it to be better, Bea wrote. The USDA’s actions in settling the case and its “reasoned explanation” in the record of decision supports the finding that USDA believed promulgating the Tongass exception would decrease litigation over the Roadless Rule, the opinion states.

Bea also said the USDA gave an explanation for the change based on revisions to economic predictions and previously calculated socioeconomic costs.

U.S. District Judge John W. Sedwick, in the 2011 decision, decided on the argument over whether the decision was arbitrary and capricious, but he did not decide another claim on whether further environmental review was needed for an exemption.

Tom Waldo, staff attorney with Earthjustice and co-counsel for the plaintiffs, said the plaintiffs would study the decision and decide whether to seek a rehearing before the full court.

“The fate of the Roadless Rule on the Tongass is by no means certain at this point,” Waldo said, but he added that he believes the era of “widespread” logging in roadless areas is over.

He said the effects of the Roadless Rule have long been exaggerated by opponents. While the main effect of the rule was to end timber sales in roadless areas, he said it hasn’t stopped any mining or hydro-electric projects.

Gov. Sean Parnell, in a statement, called the decision a “huge victory for Alaskans and their families who depend on economic development in the Tongass.” Parnell said it would allow for Alaskans to restart rebuilding the timber industry.


9th U.S. Circuit Court of Appeals opinions: https://www.ca9.uscourts.gov/opinions/

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