- Associated Press - Wednesday, July 29, 2015

JUNEAU, Alaska (AP) - A divided federal appeals court on Wednesday affirmed a lower-court decision that reinstates prohibitions on road-building and timber harvests in roadless areas of the nation’s largest national forest.

The 9th U.S. Circuit Court of Appeals, in a 6-5 decision, found the U.S. Department of Agriculture did not give a reasoned explanation for reversing course and creating a special exemption to the so-called “Roadless Rule” for the Tongass National Forest in southeast Alaska. The majority ruled the Tongass exemption invalid, handing a victory to the village of Kake and conservation groups in the long-running litigation. The U.S. Forest Service falls under the Department of Agriculture.

In a dissent, joined by four others, 9th Circuit Judge Milan Smith Jr. wrote that elections have legal consequences.

In this situation, Smith wrote, the department followed President George W. Bush’s policy instructions in amending the Clinton-era Roadless Rule in 2003. Smith argued the department was not “arbitrary and capricious” in making the decision.

But Judge Andrew Hurwitz, writing for the majority, said case law shows that even when reversing a policy after an election, an agency cannot discard prior factual findings without a reasoned explanation. “That is precisely what happened here,” he wrote.

As part of the 2003 rule-making process, the agency used the “identical factual record” compiled as part of its 2001 Roadless Rule decision but made factual findings directly contrary to the 2001 decision, the opinion states.

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,” Hurwitz wrote, noting that the absence of a “reasoned explanation for disregarding previous factual findings” violates the federal Administrative Procedure Act.

In 2009, the village of Kake and others sued over the Tongass exemption, winning a legal victory in 2011 when a federal judge reinstated the Roadless Rule on the Tongass. The Department of Agriculture did not appeal. But the state, which intervened in the case, did.

In March 2014, a divided three-judge panel of the 9th Circuit reversed the lower court ruling, but the court announced later in the year that an 11-member panel would review the decision. The 11-member panel’s ruling was released Wednesday.

State Department of Law spokeswoman Cori Mills said by email that the department is “deeply disappointed” with the ruling and will consider its options. The state also is pursuing a separate, pending legal challenge to the Roadless Rule, she said.

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 region’s economy is likely to suffer, Mills wrote.

For years, the Forest Service has not conducted timber sales in roadless areas, and this decision “makes sure that protection stays in place,” said Eric Jorgensen, an attorney with Earthjustice. Logging that has been taking place on the Tongass is occurring in developed areas with roads, he said.

The remaining wild lands - the roadless areas - are important fish and wildlife habitat and “vital” to residents of and visitors to the Tongass for hunting, fishing, tourism and recreation, he said.

Malena Marvin, executive director of the Southeast Alaska Conservation Council, one of the plaintiff groups, said the decision underscores the direction the region is already headed, and hopes that political leaders recognize that.

U.S. Rep. Don Young, R-Alaska, in a statement said he hopes the state exhausts its ability to appeal the “extremely frustrating” decision. He vowed to continue the fight to repeal the Roadless Rule as it applies to Alaska.

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