Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law
The United States District Court for the District of Columbia issued its opinion on September 20, 2017, on a civil action brought by the State of Alaska against the United States Department of Agriculture (USDA) regarding the so-called “Roadless Rule” and its application to Alaska’s Tongass National Forest. Alaska argued that the rule violated the National Environmental Policy Act, the Administrative Procedure Act, and six other federal statutes. The Court found that the USDA had not violated any federal statute in promulgating the Roadless Rule and granted summary judgement for the USDA. You can read the decision in its entirety here.
Background of the Roadless Rule
The National Forest System contains about 192 million acres of land, the largest of which is the Tongass National Forest in Southeast Alaska covering 16.8 milion acres. The Forest Service is responsible for managing these lands under the Organic Administration Act, the Multiple-Use Sustained-Yield Act (MUSYA), and the National Forest Management Act (NFMA). The Forest Service must also comply with the Wilderness Act of 1964 and the National Environmental Policy Act (NEPA). Under NEPA, a federal agency proposing government action that qualifies as a “major Federal Action significantly affecting the quality of the human environment” must prepare an Environmental Impact Statement (EIS) which presents the impacts of the action and possible alternatives.
In 1972, the Forest Service initiated a project to identify roadless area on National Forest Service lands and determine these area’s suitability for designation as wilderness. This project was known as the Roadless Area Review and Evaluation Project (RARE I). RARE I was successfully challenged under NEPA a year later and abandoned. Four years later, the Forest Service began a more extensive review which was referred to as RARE II, under which the Forest Service designated roughly 35 million acres as wilderness areas. Roadless areas (referred to as inventoried roadless areas or IRAs) not designated as wilderness continued to be managed according to each individual forest plan. RARE II was successfully challenged under NEPA and Forest Service plans to identify and manage IRAs halted.
The Forest Service published a final Interim Roadless Rule in 1999 which established an 18-month halt to road construction in IRAs while it developed analytical tools to evaluate the impact of constructing roads in these areas. Under pressure from the Clinton Administration, the USDA initiated rulemaking proceedings and released a proposed rule and EIS in 2000. This EIS specifically considered the Tongass National Forest and designated for its applicability to be considered under the final rule. The final Roadless Rule and Record of Decision were released on January 12, 2001 – the final rule was applicable to 58.5 million acres of IRAs and prohibited construction in these areas. A few limited exceptions were provided, however, the Tongass was not exempted.
Roadless Rule Litigation
Soon after promulgation, the rule was enjoined by several District Courts, whose decisions were overturned by the Ninth and Tenth Circuit Courts of Appeals. The State of Alaska also challenged the rule soon after its publication, alleging the rule violated NEPA, the APA, the Tongass Timber Reform Act (TTRA), and the Alaska National Interest Lands Conservation Act (ANILCA). In exchange for Alaska’s voluntary dismissal of the case, the USDA agreed to publish a proposed rule that would provide a temporary exemption from the rule for the Tongass, and would publish an advanced notice of proposed rulemaking to permanently exempt the Tongass.
Five months later, the USDA issued a Record of Determination to promulgate the final rule exempting the Tongass. In 2009, the Tongass exemption was challenged on the grounds that it violated NEPA and the APA in Organized Vill. Of Kake v. USDA, 776 F.Supp.2d 960 (D. Ala. 2011). The District Court found that the exemption violated the APA because the Forest Service failed to offer explanation as to why the Tongass exemption was found deficient in 2001 but found sufficient in 2003, as no new EIS had been prepared. The Court vacated the exemption, and the Ninth Circuit reversed, but after a rehearing en banc, it affirmed the decision of the District Court, vacating the 2003 Tongass exemption.
After the Ninth Circuit’s decision, this Court ordered parties to submit supplemental briefing as to whether the state of Alaska’s claim was precluded by the simultaneous litigation. While Alaska and the USDA were both parties in Organized Village of Kake, which resulted in a final, valid judgment by a federal court, this Court decided this case did not involve the same claims or causes of action such that Alaska could have raised the challenge to the Roadless Rule in Organized Village of Kake. That decision did not actually address whether the Roadless Rule was valid as applied to the Tongass, but instead focused on whether the agency’s Record of Determination was sufficient to justify the exemption. Therefore this suit was allowed to move forward.
Alaska claims that USDA violated NEPA, the APA, the Wilderness Act, MUSYA, the Organic Administration Act, NFMA, the Tongass Timber Reform Act (TTRA), and ANILCA.
Alaska first challenged the Roadless Rule under NEPA, which requires a “full informed and well-considered decision” by the agency regarding potential environmental impacts of proposed action. Alaska first claimed that the agency’s Purpose and Need Statement was an inadequate reflection of the rule, which the Court determined was sufficient. Alaska next claimed that USDA failed to disclose the cumulative effects of other roads policies under the rule, and failed to gain inform consent of cooperating individuals while denying participation of others. The State also claimed that USDA erred in declining to extend periods for public comment and failed to disclose certain maps to the public. Finally, the State challenged the Rule under NEPA on the grounds that the Final EIS substantially differed from the Draft EIS so significantly that additional public comment was required. The Court found that the agency did not act arbitrarily or capriciously with regards to its obligations pursuant to NEPA.
The State further challenged the rule under the TTRA, claiming there would be no possibility of meeting timber demand if applied to the Tongass. The TTRA requires the Forest Service to seek to meet market demand for timber on the Tongass National Forest. The Court found that the Forest Service had satisfied this obligation and was balancing other competing interests. It also challenged the rule under the ANILCA, claiming that the action constitutes an unlawful withdrawal of public land. The Court found this argument without merit.
The District Court for the District of Columbia granted the USDA’s motion for summary judgment, leaving the Roadless Rule in effect – but without the exemption for the Tongass National Forest.