Tongass roadless rule exemption: facts matter

The Ninth Circuit has reversed the exemption of Alaska from the Roadless Area Conservation Rule.  The case highlights some limits on the role of politics in agency decision-making.

While the dissent correctly asserts that “elections have consequences,” so do facts.  While Congress may choose to ignore them, the administrative and judicial branches may not.  The Ninth Circuit en banc review found that the Forest Service failed to explain why it ignored factual findings it had made under the previous Administration.

“Thus, contrary to the contentions of both Alaska and dissenting colleagues, this is not a case in which the Department—or a new Executive—merely decided that it valued socioeconomic concerns more highly than environmental protection. Rather, the 2003 ROD rests on the express finding that the Tongass Forest Plan poses only “minor” risks to roadless values; this is a direct, and entirely unexplained, contradiction of the Department’s finding in the 2001 ROD that continued forest management under precisely the same plan was unacceptable because it posed a high risk to the “extraordinary ecological values of the Tongass.” 66 Fed. Reg. at 3254. The Tongass Exemption thus plainly “rests upon factual findings that contradict those which underlay its prior policy.” Fox, 556 U.S. at 515. The Department was required to provide a “reasoned explanation . . . for disregarding” the “facts and circumstances” that underlay its previous decision. Id. at 516; Perez, 135 S. Ct. at 1209. It did not.

“The 2003 ROD 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. “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.” Fox, 556 U.S. at 537 (Kennedy, J., concurring).”

An agency has some explaining to do when it changes its mind, and that is going to be problematic if the underlying facts haven’t changed.  The Forest Service should think about that when it contemplates finding (under the new planning rule) that species it had classified as sensitive because of risks to their viability do not qualify as species of conservation concern because of lack of concern for their viability.

15 thoughts on “Tongass roadless rule exemption: facts matter”

  1. Much environmental legislation is worded to require subjective, rather than objective, judgement. “Minor” vs “major”, “hard look (vs “soft look”?), “reasonable” , “balanced”, “high” risk: all subjective terms whose interpretation is a matter of personal tastes of the judge. Fertile ground indeed for serial litigants who find the judges on the circuit court to be have “enlightened” personal tastes in matters environmental.

  2. The Tongass has about 8 million acres of roadless area and clearcutting old growth there has been the favored practice for decades. I think that constitutes major impact, and that is a fairly objective assessment. I will say, being quite familiar with the 2003 decision to waive roadless protections on the Tongass, that it was a highly subjective and political decision, and, as the court noted, lacked appropriate justification.

    • Ah.. but is that what would happen today (clearcutting for how many acres per year of how many acres total) if there were no roadless rule? And isn’t a roadless rule a political decision? I haven’t participated in one in which political people weren’t making the decision for political reasons…all of which are “highly subjective” if you’re not among the persons making the decision.

  3. FWIW, So I have actually written parts of and reviewed many, many,many versions of one roadless rule (with many many disagreement among writers about many many things) and several versions of two others. The “fact” of theses analyses is that how the “roadless values” are impacted depends on 1) what you expect to actually happen on the ground, 2) what you think the results of those actions will be, and 3) what roadless values you think are important and why.

    When some people say “minor” and others say “major” they can disagree about any or all of the above.
    “The 2003 ROD 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.”

    If the situation were reversed and a minor risk had grown into a major risk, would we say that the previous analysis were “factual” and the new one “disregarded previous factual findings?” I don’t think so. What I’m saying is that any of those projections or projected impacts are not likely to be “factual” in the common usage of the term “something known to have happened or to exist”..

  4. I think “facts” in this legal context means “something the FOREST SERVICE found to have happened or to exist” (however subjectively they went about it), and whether the FOREST SERVICE said it’s effects were major or minor. They are simply being held accountable for that by being prohibited from arbitrarily (APA requirement) changing their mind. The reverse situation should produce the same result. (In either case, if the FS provided evidence that the risk actually “grew” or shrank, that could justify a change in the decision.)

    • I guess I see that since this kind of document is a variety of professional opinions by professionals who may very well be different people with different backgrounds, with different experiences (that is, human beings) it would be surprising if two people agreed on anything.

      Roadless rules are a bit like planning rules (and plans) in that it is difficult to gauge their effects because you don’t know WHAT people will do (or not do) under the different alternatives. You don’t know HOW MUCH they will do. You don’t know HOW they will do it (what kind of technology).
      This might be the difference between legal terminology and common English, but in plain English the Forest Service can’t find “facts” if there are not “facts” in Physical World.

      Environmental analysis 1 is based on the best professional estimates of a bunch of human beings. Environmental analysis 2 is based on the best professional estimates of a bunch of human beings.

      Of course, being a retired FS person, my brain is wired with ” Alaska is different.” So it is very hesitantly I contribute the following two paragraphs.

      Now I don’t know much about the Tongass but I did hear that the policy about cutting trees had changed in the last (10 or so?) years, something about converting to second growth? Now if that is true it seems like “business as usual without a roadless rule” would have changed over time. Really the most fundamental (and the wildest guesswork) of a roadless rule is guessing at what “business without one” is likely to be.

      Because projects in roadless areas tend to be targets for litigation.. therefore people tend to not propose projects in roadless areas except under compelling circumstances, which can vary by Administration. For example, rerouting a campground road to get it out of a stream requires roadbuilding in a roadless area, but since everyone supports it for environmental reasons and there would be no litigation (and anyone litigating would look pretty silly), it gets a pass. This actually happened a few years ago. The project was approved for Economic Recovery bucks but then had trouble making it through the “Roadless Project” DC review process (as I recall the process occurred during the time the 2001 Roadless Rule was enjoined). It seemed ironic to me that the Roadless Project Review process instituted while the 2001 was enjoined could be more restrictive than the actual (enjoined) rule itself (confused yet? so was I). Just saying, “following the law and regs” can be much more difficult and open to interpretation than I think most people realize who haven’t been slogging through the mush of it. And most people currently slogging can’t talk about it.

  5. The roadless rule was a political hack job from the start — the intent was to wildernize everything administratively, and that was done for POLITICAL reasons.
    Good old Ninth. Bet none of them could tell a p1$$ fir from a Sitka.

  6. As I see it the Roadless Rule was political, yes, but supported by a reasoned rationale. The change made in Alaska was political also and arbitrary to boot.

    • Jim, in my experience a rulemaking is a patchwork of micro mine and major judgment calls both as to the regulation itself and the EIS. Yes there is some kind of reasoning, and on a good day it’s not inconsistent across the reg and the EIS (thanks to an under-appreciated army of reviewers) but there are equally valid other reasoning that could have been used.

      This is the free legal dictionary definition of “arbirtrary”
      ” The term arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards.

      An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence.

      In many instances, the term implies an element of bad faith, and it may be used synonymously with tyrannical or despotic.”

      It seems like it’s a legal term for casting someone’s decision in a bad light. I like to think we can disagree with other people’s decisions and try to understand what they’re thinking because even if others disagree, I have never seen a Forest Service decision that didn’t have a regard for facts and circumstances.. just a different regard than some might prefer.

      So one explanation could be that the the default non-roadless policy has shifted between 2001 and 2015 (there were two administration changes, so this makes sense). So therefore the difference between “roadless” and “nonroadless” management would be smaller.
      Forest Service Shifts Away from Old-Growth Logging

      “This year brought good news in the Tongass: After decades of promoting industrial-scale logging in this irreplaceable old-growth forest, the Forest Service is moving in a new, more sustainable direction.

      In May, the agency announced it will transition away from logging old-growth in roadless areas of the Tongass. Instead, the Forest Service wants to supply future timber needs from smaller, second-growth trees, while ramping up efforts to restore past damage inflicted by logging.

      The shift is part of the agency’s comprehensive, sustainable economic development strategy for the Tongass. The region’s tourism and recreation industries, along with commercial and sport fishing, all depend on a healthy, intact forest. Rehabilitating areas damaged by past logging helps those industries while creating a new source of jobs for local residents.

      To supply the timber industry with wood during this transition, the Forest Service wants to begin systematically thinning out dense stands of second growth trees. Cutting some of those smaller trees now will let the forest produce bigger, more valuable trees for the timber industry in the future. The agency will also look for opportunities to support alternative energy projects.”

  7. “An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence.” The court said that shoe fits here.

    While different people in the Forest Service have different opinions, the FOREST SERVICE is a single entity and (unlike an individual), the APA says a government agency can’t arbitrarily change its collective mind. Which is what it did when it said “major” one day and “minor” the next, without explaining why (though I think these terms are the court’s characterizations, and what the different NEPA documents actually said was that there were different kinds of effects; the problem being that the effects changed with no explanation).

    Things may have changed on the Tongass from 2001 to today, but this case was about changes from 2001 to 2003. Probably not much change in circumstances then that would warrant the effects changing.

  8. What I recall is the FS going through a rigorous (though contentious ) rulemaking to establish a regulatory framework. Shortly after, Mark Rey cooked up a back-door deal with new AK Governor Frank Murkowski, his former boss in the Senate that basically said the Roadless Rule no longer applied on the Tongass. Sounds pretty arbitrary to me. I think the court agreed.

    PS — Courts can also be quite political, yes? As in this case, at both local and appellate levels. So it goes.

    • Well, I remember when I was Queen of the 1995 RPA program issues, we discussed Roadless (the Policy Lead for the issue was none other than Lyle Laverty, then Director of Recreation) at a Chief and Staff meeting. The Chief was Jack Ward Thomas. Immediately the feeling of Chief and Staff was “it won’t work for Alaska.” As a wonk in training at the time, I often wondered what if one of Chief and Staff had said “so what? Let’s try it for everyone else!” and not just dropped it at that point.

      I say this because Mark Rey was not involved at all.. Jim Lyons was the head political honcho at the time. The philosophy that things that apply in the lower 48 don’t apply in Alaska has a much broader and deeper history than Mark and Frank (not that you said it didn’t, more for others who haven’t followed this).

      I’m sure that there are enough “back-door deals” in any rulemaking of buddies of various kinds to satisfy anyone. I have observed plenty in both kinds of Administrations. As you said, what is “carefully reasoned” to person A can be “political” to person B. Simply because someone powerful has careful reasoning.

  9. The legal issue here is not WHY the exemption was adopted (‘political’ reasons, depending on how that is defined, are probably the norm in rulemaking) but HOW the exemption was adopted (in an apparently arbitrary manner that appeared to ignore the underlying information about the effects of the decision).

    That’s according to a 6-5 majority of the court, so it might not take much difference in the underlying facts to get a different result. As to the court’s politics, here’s the scorecard:
    Elections do have consequences.

    • They wrote an EIS and made a decision that did not cohere with the EIS they promulgated? Because it sounded like the court was saying it did not match a previous EIS for a previous decision.

      I have sat in on many many meetings with OGC and DOJ and have always been warned of iffy things and given helpful ideas of how to make them not legally iffy. I wonder if the FS’s argument for why they don’t think it’s arbitrary is buried in the legal record somewhere and could be extracted for our mutual learning?

      • I don’t believe the Bush administration wrote a new EIS for its Tongass exemption decision. It relied upon the EIS written previously for the roadless rule.


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