Divided En Banc Panel of the Ninth Circuit Reinstates 2001 “Roadless Rule”

In Organized Village of Kake, et al. v. U.S. Department of Agriculture, et al., decided July 29, 2015, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the Department of Agriculture’s  (Department) 2001 “Roadless Rule”, which limits timber harvesting in the natural forests under the control and supervision of the Department.  This rule has particular importance for the Tongass National Forest in Southeast Alaska.  Indeed, after the Department decided not to appeal the latest adverse decision of the U.S. District Court of Alaska, the State of Alaska intervened and participated in this appeal.  The tangled history of the Roadless Rule implicates three Presidential administrations, several decisions of the federal district courts and three U.S. Courts of Appeals, and it would be surprising if this latest decision will be the last.

The first Roadless Rule was promulgated in 2001 by the Department under the leadership of the Clinton administration, and it was replaced by the Bush administration’s Agriculture Department’s 2003 Roadless Rule, which was more amenable to Alaska.  The controversy now involves the Department under the leadership of the Obama administration.

The en banc panel majority held, in a 6 to 5 ruling, that the Department’s 2003 Record of Decision (ROD) supporting the change in policy violated the Administrative Procedure Act in that it failed to comply with the U.S. Supreme Court’s admonitions that changes in policy coinciding with a change in Presidential administrations must be accompanied by a “reasoned explanation”, and  the 2003 ROD did not supply that reasoning.  The most recent Supreme Court guidance on this issue was provided in the 2009 ruling in the case of FCC v. Fox Television Stations, Inc., et al., 556 U.S. 502 (2012). The dissenting judges argued that the majority simply misread the law and was, in effect, substituting its policy choices for those of the administrative agencies.

Judge Kozinski, in a terse dissent, made these observations:

“I write only to note the absurdity that we are in the home stretch of the Obama administration and still litigating the validity of policy changes implemented at the start of the George W. Bush administration.  How can a President with a mere four or eight years in office hope to accomplish any meaningful policy change—as the voters have a right to expect when they elect a new President—if he enters the White House tethered by thousands of Lilliputian ropes of administrative procedure.  The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites the type of judicial policymaking that Judge Smith points out.”