State loses another court fight over Roadless Rule

The courts have not been kind to the State of Alaska when it comes to the Roadless Rule.

Federal District Court Judge for the District of Columbia Richard Leon threw out the state’s lawsuit against the U.S. Department of Agriculture Sept. 20, ruling the conservation regulation enacted more than 15 years ago was properly promulgated.

Multiple state administrations and Alaska’s congressional delegation have fought against implementation of the Roadless Rule in Alaska, contending the Clinton-era regulation has severely damaged Southeast Alaska’s once robust timber industry.

However, in July 2015 the 9th Circuit Court of Appeals overturned an exemption to the rule for the Tongass National Forest instituted by the USDA under President George W. Bush. The U.S. Supreme Court declined to hear the state’s subsequent appeal in that case.

Simply, the Roadless Rule prohibits new road construction in most areas of national forests.

And in the most recent ruling, Leon dismissed the state’s case with prejudice, meaning he ruled on the merits of the arguments in the suit and not on procedural grounds.

In its lawsuit filed in June 2011, the State of Alaska argued the USDA ignored the economic impacts the Roadless Rule would have on the state when it was approved in 2001.

The Alaska Forest Association, the Southeast Conference, the Juneau Chamber of Commerce and the City of Ketchikan, among other development groups, joined the state as plaintiffs in the suit.

The Southeast Alaska Conservation Council, the Alaska Center for the Environment and several national conservation groups also joined the suit in defense of the rule.

Southeast Alaska Conservation Council Executive Director Meredith Trainor wrote in a Sept. 22 post on the group’s website that the decision is a “resounding win for the Tongass and national forests throughout the United States.”

“This decision provides a critical affirmation of the importance of the Roadless Rule in protecting our nation’s and the state of Alaska’s most essential intact habitat and forested lands,” Trainor wrote. “The precedent-setting decision should remind all Americans of the importance of protecting our public lands from attacks by industry groups seeking to undermine our most fundamental and cherished environmental protections.”

Sen. Lisa Murkowski, who chairs the Senate Energy and Natural Resources Committee, said in a statement from her office that she is frustrated with Leon’s ruling.

“A judge can dismiss a case, but Alaskans cannot dismiss the negative impacts the Roadless Rule is having on our communities. The rule has decimated our timber industry and serves mainly to prevent the access needed to construct everything from roads and power lines to energy and mining projects,” Murkowski said. “I recognize the damage this rule is causing, particularly in Southeast, and will pursue every possible legislative and administrative option to exempt us from it.”

Alaska U.S. Rep. Don Young said the fight against the Roadless Rule will continue.

“When the court fails Alaska, I believe it is Congress’ responsibility to act,” he said.

Forest Service officials have said Southeast’s timber industry has declined primarily due to economics: the high cost of harvesting timber from the Tongass and its remote location make it hard for Alaska mills to compete with Lower 48 timber.

State industry leaders contend a lack of access to timber due to the Roadless Rule has caused the downfall.

While the Roadless Rule also applies to the Chugach National Forest in Southcentral, relatively little logging activity has occurred there.

State Department of Law spokeswoman Cori Mills said Gov. Bill Walker’s administration is reviewing its appeal options but no decision has been made on how it will proceed at this point.

Leon noted in his 45-page memorandum that documents posted in the Federal Register at the time the Roadless Rule was being considered projected Alaska could lose nearly 900 jobs and more than $38 million in personal income as a result of its implementation.

Yet, he concluded that the USDA followed the National Environmental Policy Act because it obtained all the relevant information about the rule’s potential economic impacts, even if it did not make its decision solely based on them.

“Put simply, NEPA ensures ‘a fully informed and well-considered decision, not necessarily the best decision,’” Leon wrote.

He also called the fact that the USDA issued a rule that impacts 2 percent of all land in the country in less than 15 months “alarming,” but found the agency followed NEPA in its decision-making process.

The state also asserted the rule violated the Alaska National Interest Lands Conservation Act, which prevents agencies from withdrawing more than 5,000 acres of lands in the state from potential use without congressional approval.

Leon determined that while the rule ostensibly prohibits development in roadless areas, it does not technically.

“Critically, the Roadless Rule does not exempt (inventoried roadless areas) from the operation of the mineral leasing laws. Instead, the rule restricts the terms of surface occupancy of the land, which is within the USDA’s authority under the mineral leasing laws,” he wrote.

“Indeed, the rule explicitly allows for new mineral leases in the (inventoried roadless areas), provided that there are no new roads constructed in conjunction with those new leases.”

Joint timber sale

A day after Leon’s ruling, the state Department of Natural Resources announced a joint young-growth timber sale on state and federal lands near Edna Bay on Kosciusko Island just off of Prince of Wales Island in Southeast.

DNR Commissioner Andy Mack said the $2.6 million sale to Alcan Timber Inc. of Ketchikan is the largest sale in Southeast this year.

The state-federal sale was put together under the Good Neighbor Authority agreement the state Division of Forestry and the Forest Service signed last November to allow for such a sale.

“We are excited that this new partnership with the Forest Service is providing more wood to Alaska’s forest products industry while maintaining a healthy forest. We will continue to press for more timber to be made from Alaska’s forests,” Mack said.

The sale is for about 1,500 acres of young-growth timber totaling 29 million board feet, according to a DNR release.

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Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.

Updated: 
09/29/2017 - 12:15pm

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