April 08–A federal appeals court overturned a lower court ruling that denied exempting the Tongass National Forest from the controversial “Roadless Rule” on March 26.
In its 2-1 opinion to uphold the Tongass exemption, a 9th Circuit Court of Appeals panel cited the U.S. Department of Agriculture’s attempt to ease the socioeconomic impact to Southeast Alaska created by the Roadless Area Conservation Rule, address regional timber demand and its wish to end litigation as acceptable justifications for the original USDA action.
The Appeals Court remanded the case to Alaska U.S. District Court to determine if a supplemental environmental impact statement is needed for the exemption.
At roughly 17 million acres — the size of West Virginia — the Tongass is the largest national forest.
Enacted at the end of the Clinton administration in January 2001, the Roadless Rule has been at the center of lawsuits in four other western states and Washington, D.C. It was meant to preserve nearly 60 million acres of national forest across the country from further development.
In 2003, the USDA issued a record of decision that determined the Tongass should be exempt from the development ban. A 2011 Alaska U.S. District Court ruling overturned the exemption and the State of Alaska sued to reinstate the exemption and overturn the entirety of the Roadless Rule.
Also in 2011, the 10th Circuit Court of Appeals rejected a State of Wyoming petition to reinstate a District Court injunction barring implementation of the rule, thus restoring Roadless management in the state.
The most recent version of the case pitted the Organized Village of Kake and 11 regional and national conservation organizations including Greenpeace and the Sierra Club as plaintiffs against the USDA — the parent department to the U.S. Forest Service — and the State of Alaska and the Alaska Forest Association as defendant and interveners.
A year and a day before the Appeals Court decision, 9th Circuit Court Judge Richard J. Leon wrote in a 2013 ruling that the state’s quest to repeal the Roadless Rule completely came too late, after the six-year statute of limitations had expired.
The members of Alaska’s congressional delegation and Gov. Sean Parnell lauded the March 26 ruling as a win for the state against federal policy that doesn’t fit the state’s situation.
“This is a huge victory for Alaskans and their families who depend on economic development in the Tongass. 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,” Parnell said in a formal statement.
In early 2011, Sens. Lisa Murkowski and Mark Begich co-sponsored stalled legislation to permanently repeal the Roadless Rule.
Sealaska Corp. spokeswoman Dixie Hutchinson wrote in an email to the Journal that the ruling will return management of the Tongass back to the Forest Service and provide the people of Southeast with a voice in how the forest is managed.
Sealaska, the Alaska Native regional corporation for Southeast Alaska, has been working the delegation for years to gain roughly 70,000 acres still owed to it by the federal government under the Alaska Native Claims Settlement Act.
Corporation leaders have stressed the primarily timer land it has requested would temporarily lift the region’s once-strong timber industry.
Timber harvest is allowed in Roadless areas, but industry officials say the helicopter logging required is slow and expensive.
Judge Carlos T. Bea cited USDA’s 2003 record of decision extensively in the majority opinion issued March 26. Bea noted the department’s acknowledgement that the Tongass is a unique situation with 29 of the 32 communities inside the national forest isolated from the highway system. Because of that, “the Roadless Rule would condemn these communities to continued isolation” and economic hardship, according to USDA.
Unemployment rates in some small Southeast communities not benefited by tourism range between 15 percent and 20 percent.
Thus, the exemption is a “reasoned explanation” based on the department’s expertise, to which the court is supposed to defer, Bea wrote.
Further, Bea referred to the historical timber harvests as a reason to reinstate the Roadless Rule exemption in the forest. From 1980-2002, the average harvest in the Tongass was 269 million board feet and prior to 2001 the harvest had never been less than 100 million board feet, according to the 2003 record of decision.
Given the historical harvest figures, a conservative market demand estimate of 124 million board feet was deemed reasonable in the record of decision. Here again Bea deferred to the department’s expertise in his ruling.
“It is certainly reasonable for the agency to determine that a higher market estimate from 22 years of data is preferable to a lower market estimate based upon demand in a short cyclical downturn, even for a ‘short term’ rule,” Bea wrote.
The fiscal year 2012 timber harvest in the Tongass with the Roadless Rule in effect was 20.8 million board feet, according to the Forest Service’s 2012 Tongass Monitoring and Evaluation Report.
Judge M. Margaret McKeown disputed the timber demand projections in her dissenting opinion because they did not account for the “dramatic post-2000 decline in timber demand,” she wrote. The record of decision projected the Roadless Rule would cause a harvest reduction of 77 million board feet per year, which didn’t hold true by 2003, according to McKeown.
The 2003 decision also noted the pending litigation at the time as a reason for exempting the Tongass from the Roadless Rule — a way to mitigate future court proceedings — according to Bea’s opinion.
Litigation has continued for more than a decade after the record of decision, a fact noted by McKeown in her dissent.
However, Bea wrote that the McKeown dissent “argues that the record of decision created more litigation than it resolved. But such an analysis second-guesses the USDA’s decision based on 20/20 hindsight. Agencies are not soothsayers, and litigation is an uncertain art.”
US Fish and Wildlife moves to list Tongass wolf
While the reinstatement of the Tongass exemption to the Roadless Rule can be seen as a win for the timber industry, a March 28 announcement from the U.S. Fish and Wildlife Service that the agency has taken the first step to list a Southeast wolf species as threatened could temper timber optimism.
Fish and Wildlife has initiated a 90-day petition to list the Alexander Archipelago wolf as threatened and to designate critical habitat under the Endangered Species Act.
The Alexander Archipelago is the island chain that makes up nearly all of Southeast Alaska and stretches roughly from Juneau south to the British Columbia coast.
According to the Fish and Wildlife Federal Register posting, the wolves inhabit all of mainland Southeast and islands south of Frederick Sound, meaning the large islands of Baranof, Admiralty and Chichagof would be exempt from any possible habitat classification while Prince of Wales Island would not.
Murkowski said in a written statement from her office that if the decision to list the wolf is made it would further “lock up” Southeast and limit economic development.
“I find it ironic and more than a mere coincidence that this administration would decide to take this step right after the 9th Circuit Court overturned the Roadless Rule in the Tongass,” she said. “This will have real and lasting ramifications on the economy of Southeast. That, to me, is unacceptable.”
As part of the 90-day petition, Fish and Wildlife is asking for comments and scientific data on the wolves of Southeast. Based on the information submitted, a 12-month finding on the petition will be issued.
In a March 28 statement responding to the Fish and Wildlife action, the Alaska Region of the Forest Service issued a written statement saying it would work with the service and the Alaska Department of Fish and Game to gather sound population data on the wolves and assist in future management of the predators.
The Federal Register comment deadline is May 30.
Elwood Brehmer can be reached at [email protected].