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Organized Village of Kake, et al v. United States Department of

March 4, 2011

ORGANIZED VILLAGE OF KAKE, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS, AND STATE OF ALASKA AND ALASKA FOREST ASSOCIATION, INTERVENOR-DEFENDANTS.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION [Re: Motions at Dockets 42 and 54]

I. MOTIONS PRESENTED

At docket 42, plaintiffs Organized Village of Kake, et al., move for summary judgment setting aside the Tongass Exemption, reinstating the Roadless Rule, and vacating approved timber sales in conflict with the Roadless Rule. At dockets 53 and 56, intervenor-defendants State of Alaska and Alaska Forest Association oppose the motion, respectively. At docket 54, the United States Department of Agriculture ("USDA") and United States Forest Service ("Forest Service") (jointly "federal defendants or "the Forest Service") oppose the motion and cross-move for summary judgment dismissing plaintiffs' claims. Plaintiffs reply at docket 66. Oral argument was not requested, and it would not assist the court.

II. FACTUAL AND PROCEDURAL BACKGROUND

This action challenges a Forest Service rule*fn1 exempting the Tongass National Forest ("the Tongass") from the Roadless Area Conservation Rule*fn2 ("the Roadless Rule"). The National Forest System consists of approximately 192 million acres of national forests, national grasslands, and related areas. The Tongass in southeast Alaska includes 16.8 million acres and is the largest national forest. The Forest Service manages the National Forest System under several federal statutes, including the National Forest Management Act ("NFMA"),*fn3 which requires the Forest Service to develop and periodically revise a land and resource management plan, commonly known as a "forest plan," for each unit of the National Forest System. Each forest plan must "provide for multiple use and sustained yield of the products and services obtained" from the forest unit pursuant to the Multiple Use Sustained Yield Act of 1960,*fn4 and coordinate "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness."*fn5

In the 1970s, the Forest Service developed an inventory of roadless areas generally larger than five thousand acres in national forests. From the 1970s through the late 1990s, inventoried roadless areas were governed primarily by individual forest plans developed under the NFMA. In the late 1990s, the Forest Service began reevaluating its approach to roadless area management. On October 13, 1999, President Clinton directed the Forest Service to initiate a nationwide plan to protect the approximately 58.5 million acres of inventoried roadless areas in national forests.

In the notice of intent to prepare an EIS, the Forest Service proposed promulgation of a rule that would initiate a two-part process to protect roadless areas. Part one would immediately restrict certain activities, such as road construction in unroaded portions of inventoried roadless areas, and part two "would establish national direction for managing inventoried roadless areas, and for determining whether and to what extent similar protections should be extended to uninventoried roadless areas."*fn6

The notice also solicited comments on whether or not the proposed rule should apply to the Tongass and, if so, whether inventoried Tongass roadless areas should be covered under part one of the rule or only under part two.*fn7

The accompanying notice of proposed rulemaking stated that the Forest Service "is proposing to delay consideration of protecting inventoried roadless areas for the [Tongass] until April 2004, in light of recent Forest Plan decisions that conserve roadless areas and a Southeast Alaska economy that is in transition."*fn8 The notice stated that 1999 revisions to the Tongass Land and Resource Management Plan ("TLMP") protected additional lands from road construction, the timber economy in Southeast Alaska is transitioning to a competitive bid process, and "about two-thirds of the total timber harvest planned on the [Tongass] over the next 5 years is projected to come from inventoried roadless areas."*fn9 The notice acknowledged that use of inventoried roadless areas has helped the Forest Service meet market demand for timber in the Tongass, but that with the continuing transition of the southeast Alaska timber market to an independent bid market, coupled with the long-term projected decline in timber demand for southeast Alaska timber, it is also possible that, by 2004 (when a review of the revised Tongass Land Management Plan is required), the long term demand for timber may be substantially reduced and market demand could be met consistent with protecting existing inventoried roadless areas."*fn10

In May 2000, the Forest Service published a Draft Environmental Impact Statement ("EIS") for the Roadless Rule. The May 2000 DEIS "proposed not to apply prohibitions on the Tongass, but to determine whether road construction should be prohibited in unroaded portions of inventoried roadless areas as part of the 5-year review of the Tongass Forest Plan."*fn11

In November 2000, the Forest Service published the Final EIS ("FEIS") for the Roadless Rule.*fn12 The Roadless Rule FEIS considered two sets of alternatives concerning prohibitions on road construction, reconstruction, and timber harvesting in national forests. The first set included four prohibition alternatives that applied to inventoried roadless areas nationwide. The second set included four alternatives for applying any selected prohibition to the Tongass: 1) the "Tongass Not Exempt" alternative which applied the same prohibition alternative to the Tongass that applied to the rest of National Forest System; 2) the "Tongass Exempt" alternative which did not apply a national prohibition to the Tongass; 3) the "Tongass Deferred" alternative which postponed a decision on whether to apply prohibitions to the Tongass until April 2004; and 4) the "Tongass Selected Areas" alternative which applied prohibitions on inventoried roadless areas located in certain land use designations identified in the TLMP.*fn13

On January 12, 2001, the Forest Service published the final rule and record of decision ("ROD") for the Roadless Rule.*fn14 The ROD stated that the purpose of the Roadless Rule "is to provide lasting protection for inventoried roadless areas within the

National Forest System in the context of multiple-use management,"*fn15 and that the Roadless Rule was needed because 1) road construction, reconstruction, and timber harvest in inventoried roadless areas "have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics"; 2) budget constraints prevent the Forest Service from adequately maintaining the existing road system; and 3) national concern over roadless area management continues to generate costly and time-consuming appeals and litigation.*fn16

The ROD indicated that a national rule was necessary because the Forest Service has "the responsibility to consider the 'whole picture' regarding the management of the National Forest System, including inventoried roadless areas" and "[l]ocal land management planning efforts may not always recognize the national significance of inventoried roadless areas and the values they represent in an increasingly developed landscape."*fn17

As promulgated, the Roadless Rule directed immediate applicability of the nationwide prohibitions on timber harvest, road construction and reconstruction on the Tongass, except for projects that already had a notice of availability of a [DEIS] published in the Federal Register prior to the Roadless Rule's publication in the Federal Register.*fn18 The ROD recognized that implementation of the Roadless Rule on the Tongass would cause some adverse economic effects to some forest-dependent communities, but concluded that "the long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to those local communities and that a period of transition for affected communities would still provide certain and long term protection of these lands."*fn19

Since its promulgation, the Roadless Rule has been the subject of numerous lawsuits in federal district courts in Idaho, Utah, North Dakota, Wyoming, Alaska, and the District of Columbia. In May 2001, the U.S. District Court for the District of Idaho issued a preliminary injunction enjoining the Forest Service from implementing the Roadless Rule nationwide.*fn20 On appeal, the Ninth Circuit reversed the preliminary injunction, concluding that plaintiffs had not shown a substantial likelihood of success on the merits of their claim that the Roadless Rule violated the National Environmental Policy Act ("NEPA"), and that the balance of hardships weighed against enjoining the Roadless Rule.*fn21 The Ninth Circuit's mandate "issued in April 2003, and the Roadless Rule went into effect nationwide."*fn22

In State of Alaska v. USDA,*fn23 the State of Alaska and six other parties filed suit against the USDA, alleging that the Roadless Rule violated the APA, NFMA, NEPA, Alaska National Interest Lands Conservation Act ("ANILCA"), the Tongass Timber Reform Act of 1990 ("TTRA"), and other laws. On June 10, 2003, the parties entered a settlement agreement to resolve and dismiss the litigation. The settlement agreement provided in pertinent part that the federal defendants would publish in the Federal Register within 60 days,A. A proposed temporary regulation that would exempt the Tongass National Forest from the application of the Roadless Rule until completion of the rulemaking process for any permanent amendments to the Roadless Rule.

B. An [advance notice of proposed rulemaking] to exempt both the Tongass and Chugach National Forests from application of the Roadless Rule.*fn24

The settlement agreement further provided:

Federal defendants make no representation regarding the content or substance of any final rule, but will move toward final decisions on the proposed temporary regulation exempting the [Tongass] from the application of the Roadless Rule and on permanent amendments to the Roadless Rule, including consideration of exempting both the Chugach National Forest and the Tongass National Forest from the Roadless Rule, in a timely manner.*fn25

On July 15, 2003, the Forest Service published an advance notice of proposed rulemaking ("ANPR") in the Federal Register, stating that it was considering a permanent exemption for the Tongass and Chugach National Forests from the applicability of the Roadless Rule.*fn26 The Forest Service also published a notice of proposed rulemaking,*fn27 stating its intention to amend regulations to exempt the Tongass from the Roadless Rule's "prohibitions against timber harvest, road construction, and reconstruction in inventoried roadless areas until a final rule is promulgated as announced by the Forest Service" in its July 2003 ANPR.*fn28 The Forest Service stated that it was publishing the proposed rule and ANPR to fulfill "part of the Department's obligations under the June 10, 2003 settlement agreement for State of Alaska v. USDA, while also maintaining the ecological values of inventoried roadless areas in the Tongass and Chugach National Forests."*fn29 The proposed rule was initially published for a 30-day public comment period, which was extended by 19 days for a total of 49 days.

On October 30, 2003, the Forest Service published a supplemental information report ("SIR") concluding that "no significant new information or changed circumstances exist that require the preparation of a supplemental [EIS] before making the decision to adopt the proposed rule to exempt the [Tongass] from the prohibitions of the roadless rule or select another alternative from the roadless rule's environmental impact statement."*fn30 The SIR specifically considered three new circumstances: 1) the Tongass was being managed under the 1997 Tongass Forest Plan ROD instead of the 1999 ROD, as contemplated by the Roadless Rule FEIS; 2) the continuing decline in timber harvest levels and associated employment since the Roadless Rule FEIS was published; and 3) a proposed land exchange with Sealaska Corporation. After considering the above circumstances, the SIR concluded that "the decision-making picture" was not substantially different than it was at the time the Roadless Rule was adopted in January 2001, and that no additional environmental analysis was required.*fn31

In July 2003, the District Court for the District of Wyoming issued a permanent injunction against the Roadless Rule nationwide.*fn32 The Wyoming district court acknowledged the Ninth Circuit's decision in Kootenai Tribe, but declined to follow it.*fn33

On December 30, 2003, the Forest Service published a final rule and ROD amending regulations concerning the Roadless Rule to temporarily exempt the Tongass from the Roadless Rule's prohibitions against timber harvest, road construction, and reconstruction in inventoried roadless areas ("the Tongass Exemption"). The Tongass Exemption ROD stated that "[t]his temporary exemption of the Tongass will be in effect until the Department promulgates a subsequent final rule concerning the application of the roadless rule within the State of Alaska, as announced in the agency's second [ANPR] published on July 15, 2003."*fn34 The ROD further stated that when the Roadless Rule was adopted in January 2001, the Forest Service concluded that ensuring lasting protection of roadless values on the Tongass outweighed the socioeconomic costs to local communities, but the Forest Service "now believe[d] that, considered together, the abundance of roadless values on the Tongass, the protection of roadless values included in the Tongass Forest Plan, and the socioeconomic costs to local communities of applying the Roadless Rule's prohibitions to the Tongass, all warrant treating the Tongass differently from the national forests outside of Alaska."*fn35 The effective date of the Tongass Exemption was January 29, 2004.

In July 2004, the Forest Service issued a notice of proposed rulemaking, proposing that "a State petitioning process that will allow State-specific consideration of the needs of [roadless] areas [was] an appropriate solution to address the challenges of roadless area management."*fn36 In May 2005, the Forest Service published a final rule adopting the "State Petitions Rule," which revised 36 C.F.R. § 294 "to remove the text of the Roadless Rule and insert in its place provisions establishing an eighteen-month window during which states could petition for state-specific roadless area protections."*fn37

The final rule stated that under the State Petitions Rule, "management of inventoried roadless areas on the Tongass will continue to be governed by the existing forest plan," thus, the State Petitions Rule negates the need for further ...


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