An Alaska Roadless Story: To Be Confirmed or Corrected

I’ve tried to put together this story from a variety of off-the-record sources. Unfortunately, I don’t have the connections to get the story corroborated by someone on the record. And I’ve spoken to some journalists who need corroboration to write the story. So I am telling this story with the intention that perhaps someone in the TSW community could verify or knows someone who might. You can always email me if you have this information.

Now, here is the story the way I heard it. It is similar to the WaPo story here from last summer with regard to the effect of Trump but I’d like to highlight the part (which the Post mentions) that the exemption decision was that of the President. (note the WaPo story says that the 2001 Rule “does not allow roads except when the Forest Service approves specific projects. It bars commercial logging.”

As the Alaska Roadless Rule was in development, the FS and State held meetings, analyzed public comment, and all that, and were ready to go with an “in the middle” Rule, as we have discussed previously here. I never heard which one, or whether it was a combination of different ones.

Secretary of Agriculture Perdue and the Forest Service supported this one, and the story goes it went so far as the Secretary told folks at the National Wildlife Federation that he was good to go with one in the middle. Their preferred rule was written and sent to OMB for clearance.

The way this story goes is that President Trump stopped over on an air trip and spoke with the Governor of Alaska, who convinced him to change the preferred to granting an exemption from the Rule (one of the alternatives in the DEIS). And so that is what is currently being cleared over at OMB.

Why I think this is important: if it is true, the FS and the Department negotiated in good faith, but were Trumped by a higher political authority. In a recent thread here, Jim Furnish mentioned that he thought FS leaders should speak out if they make changes themselves, or they come from higher up. My view is that it is not their role to tell us directly, but rather our own work as observers to read between the lines and figure it out, if it is that important. Which I think this one is.

At the end of the day, I think any State Roadless Rulemaking will get litigated (based on a sample size of two) and it’s frustrating for the Forest Service people to do things that make the Rule less defensible, as well as possibly blowing current and future collaborative efforts, and sowing much (unnecessary) bad feeling. That is why I’ve posted the story, even though it hasn’t been corroborated by anyone yet on the record. I would appreciate any info related to this.

7 thoughts on “An Alaska Roadless Story: To Be Confirmed or Corrected”

  1. “My view is that it is not their role to tell us directly, but rather our own work as observers to read between the lines and figure it out, if it is that important.”

    Something definitely smells rotten here. Under the APA, an agency decision can’t be arbitrary or capricious, and the Forest Service will have to come up with an explanation of how the facts support their decision. Maybe they can, but evidence that they were told to make the decision (by someone not familiar with all the facts) seems like it would make it harder for them. I think there must be an inherent obligation to identify the actual decision-maker so that it is possible to tell if they were informed in accordance with the law.

    Then there’s the fact that the Supreme Court has held that the APA doesn’t apply to the president (see Keystone Pipeline). If he wants to overrule his agencies, the expectation (if not the law) would be that he does that in a way that is clearly visible to the public.

  2. Here’s a little court language that might be relevant:
    “where a regional agency receives instruction from Washington to justify a decision that has already been made on policy grounds before a meaningful review of a proposed action has taken place, such evidence of such correspondence is equivalent to a “smoking gun” because it indicates that a decision was improper.” CBD v. Bernhardt, D. Mont., 2020 (citations omitted).

      • That question required 4 months of thought. The NEPA process is designed to solicit viewpoints of interest groups, and if the decision can be tied back to public comments, that’s a good thing (regardless of how they might have also lobbied in person). Also, FACA is leary of the influence of “special” groups on agency decision-making, and agencies have to be careful not to make any commitment to adopt a “collaborative” solution. It also sounds like those politicos involved with sage-grouse were informed and aware of the issues and tradeoffs of that decision. So, some differences, but the transparency aspect should be the same.

  3. And some more:
    “In Portland Audubon Society v. Endangered Species Committee, the (9th Circuit) court held that a committee’s ex parte communications with the White House should be included in the record,”
    Ksanka Kupaqa Xa’lcin v. USFWS, D. Mont. 2020

    • Jon, if I try to put this all together, I get that politicals get to decide, but based on the analysis the agencies conduct, and not in advance.
      The communications leading to the decision should be in the record.

      In the Alaska case, the exception has definitely been analyzed, and the record would be produced in litigation. But what you’ve pointed out is an interesting question, how much should the politically powerful individual have read or been staffed about the decision to prove that other alternatives were considered? We might expect a Forest Supe to read an EIS herself/himself (maybe) but how much is enough?

  4. I think you put it together right. I think being “staffed” is normally sufficient. In most cases, I think this is not something a court is going to pry too far into unless something like a smoking gun is put in front of them by plaintiffs, and agencies are generally pretty good at not leaving smoking guns lying around. The FOIA case before the Supreme Court could make it harder or easier for agencies to hide them.


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