Doh! Captain Zero Loses, Yet Again

Aerial view, Tongass National Forest, Alaska - Photo credit

Aerial view, Tongass National Forest, Alaska – Photo credit

Is there an echo in here? Captain Zero has lost another lawsuit.

He didn’t start it, but it seems to have been his idea – or perhaps the Cartpetbagger’s – to ask the Ninth Circuit Court of Appeals to review a U.S. District Court decision involving the U.S. Department of Agriculture’s decision on whether the Roadless Area Rule would apply to Tongass National Forest.

There are a lot of things in that last sentence that require explanation. Believe it or not, this will be the simplified version.

The first is why Alaska cares: it’s largely because 25% of revenue from Tongass National Forest goes to the State of Alaska. Sure, the Parnell Administration prattled on about jobs and the economy, but it’s mostly about that 25% of federal revenue. Another fight about money.

The next is about the Roadless Area Rule. Basically, the Forest Service, part of the U.S. Department of Agriculture, decided to manage its National Forests as a group, in a futile attempt to avoid forest-by-forest litigation. As a part of that nationwide management plan, no new roads to allow access to cutting new trees would be permitted. Roadless areas would remain roadless. And in an immediate violation of that proposed rule, the Forest Service considered whether to treat the Tongass National Forest differently. The Forest Service flopped around on whether to exempt Tongass from the Roadless Rule. First it denied an exemption, under the Clinton Administration, and then, under the Bush Administration, decided Tongass should be exempt. Nothing had changed but the guys in charge.

The Village of Kake, located in the Tongass, and two handfuls of environmental organizations, challenged the Forest Service’s change of position. And won. The U.S. District Court held that because “the Forest Service provided no reasoned explanation as to why the Tongass Forest Plan protections it found deficient in [2001], were deemed sufficient in [2003],” the Tongass exemption from the Roadless Rule should be vacated. No new roads in Tongass. By this time, the Obama Administration was in charge. It didn’t appeal. But the State of Alaska did. Still with WC on this?

A three judge panel of the Ninth Circuit reversed the decision of the U.S. District Court. The Village of Kake and other plaintiffs petitioned the Ninth Circuit to have the appeal heard by the entire Ninth Circuit, not just the three judge panel. And, in a split – well, fragmented – decision, the full Ninth Circuit reversed the three judge panel and reinstated the U.S. District Court decision.

The 2003 ROD [Record of 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. The absence of a reasoned explanation for disregarding previous factual findings violates the APA [Administrative Procedure Act]. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”

Bottom line: the Roadless Rule applies to Tongass National Forest. Basically, no new roads in the Tongass.

Technically, the Forest Service can re-open the administrative case and try and develop new information that might justify its change of position. That’s not likely in the current administration. This is probably the end of the fight for a while. Very few environmental fights are ever truly over. Think of how long the fight over the Arctic National Wildlife Refuge has been going on. But it does put another loss on Captain Zero’s record. WC’s back-of-the-envelope calculation makes this court loss number 14.

In a way, it’s hard on Southeastern Alaska, most of which is the Tongass National Forest. But the industrial-scale logging, pulp mills and gigantic rafts of logs floated to Japan are long gone, anyway. In another way, the crash simply came sooner than it would have anyway: the forest was being cut at a grossly unsustainable rate, and grave damage was being done to other renewable resources like fish.

Move along folks. Nothing to see here. Move along.


One thought on “Doh! Captain Zero Loses, Yet Again

  1. This case actually had ramifications for the Chugach National Forest, in Prince William Sound. If Tongass has been allowed to avoid the rule, the next stop for the timber harvesters would have been the Chugach.

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