Trump and the Tongass Roadless Rule

Tongass National Forest

Tongass National Forest

The history of the Tongass Roadless Rule is a twisted, complex subject that makes explaining quantum physics easy in comparison. But the primary legal principle that emerged from 18 years (!) lof litigation is pretty good news as the Trumpster attempts to eviscerate environmental safeguards. At least it’s good news if you care about the environment.

We can all use some good news. So WC, against the advice of his betters, will undertake to explain the Roadless Rule and why it matters in these parlous times.

The Roadless Rule, in essence, says that roadless areas in national forests, national grasslands and some BLM lands won’t be developed. Roadless areas will remain roadless. That ban includes Alaska’s Tongass National Forest, the largest national forest. Announced in 1999, it was adopted by the Clinton Administration in its final days. The Bush Administration immediately set out to reverse the Roadless Rule. That provoked an immense amount of litigation. EarthJustice has a nice chronology highlighting some of the key points in the decades-long lawsuits. The federal courts flopped around on the rule like a gaffed halibut.

The Tongass Exemption was grafted on to the Roadless Rule as a “friendly settlement” of Alaska’s 2001 legal challenge to the Roadless Rule.1 The Tongass Exemption simply held the Roadless Rule didn’t apply to Tongass National Forest. There were serious difficulties with the settlement. First, the settlement didn’t include all of the parties to the lawsuit, so it wasn’t final. And, more importantly, the Clinton Administration had gone through a formal regulation-making process in adopting the original Roadless Rule. The Bush Administration, in its efforts to reverse the Roadless Rule, did so more or less by executive fiat.2 The Bush Administration didn’t go through the same rule-making process.

The Tongass exemption was hotly litigated. In the end, the U.S. District Court through the Tongass Exemption out. The State of Alaska appealed to the 9th Circuit Court of Appeals. A three judge panel of the 9th Circuit reversed the trial court. The plaintiffs petitioned the 9th Circuit to hear the appeal en banc, meaning all of the judges would hear the case, not just a panel of three. Unusually, the 9th Circuit granted the en banc petition. And the 9th Circuit judges reversed the three judge panel and reinstated the District Court decision: the Tongass Exemption was illegal. The Roadless Rule applied to Tongass National Forest. The 9th Circuit held:[^3]

[E]ven when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.

If you’ve made it this far, you can see how important this principle is as the Trump Administration tries to gut environmental and other policies. The Trump Administration can change policies, but if it does so where there has been a formal rule-making process, it cannot contradict prior factual decisions without a “reasoned explanation.” That’s the law now in both the Ninth and Tenth Circuits.

You can expect that law to be the basis for court challenges to many of the attempts by the Trump Administration to gut U.S. environmental laws. While the Gorsuch SCOTUS could always jerk the legal rug out from under the heart of the decision, that seems unlikely, and the issue might not even get to the SCOTUS while Trump is still in the White House.

We can hope, anyway.


[^3]: The State of Alaska petitioned the U.S. Supreme Court to hear an appeal, but the SCOTUS declined to hear the case.

  1. Okay, this is an oversimplification. Not the last one, either. 
  2. Another gross oversimplification. But the key point is that the Bush Administration didn’t go through a full-blown regulatory process, instead spinning the fact-finding in the earlier, Clinton Administration rule-making process.