FOREST SERVICE: Circuit court judges appear sympathetic to roadless rule challenge
Jeremy P. Jacobs, E&E reporter
Greenwire: Thursday, September 18, 2014
Federal judges today appeared receptive to Alaska's request to allow its challenge to a 2001 Forest Service policy aimed at conserving more than 58 million acres of national forests to go forward.
Alaska and various local mining, utility and timber interests are asking the U.S. Court of Appeals for the District of Columbia Circuit to overturn a lower court ruling that its June 2011 challenge to the Clinton-era roadless rule was filed too late.
At least two members of the D.C. Circuit's three-judge panel appeared sympathetic to Alaska's argument that extraordinary circumstances had restarted the law's six-year statute of limitations and, consequently, its claims should be allowed to go forward.
Senior Judge Stephen Williams, a Republican appointee, said Alaska had "good reason to argue" that its new right to challenge the rule began after a California district court decision reinstated the rule in 2006, adding later that "this is an unusual case."
The roadless rule has a long and complicated history. In the last days of the Clinton administration, the Forest Service adopted a rule that prohibited most road construction, logging, mineral leasing and new utility transmission lines that require roads within 58.5 million acres of national forests across the United States.
Alaska immediately challenged the regulation because it would have had a significant impact on the state's Tongass and Chugach forests, which amount to nearly 15 million acres.
In 2003, after President George W. Bush came into office, Alaska settled the lawsuit, and the Forest Service adopted a temporary rule that exempted the Tongass forest and proposed a new rule that exempted both the Tongass and the Chugach.
That rule was finalized in May 2005, officially repealing the original rule. But a California court in September 2006 threw out the new rule for not complying with environmental laws, in a ruling that was hailed by environmentalists. The court then reinstated the original roadless rule, including the Tongass exemption.
Alaska is now arguing that the 2006 California court ruling restarted the six-year clock, allowing it to challenge the original rule.
The case is further complicated by another lawsuit in the San Francisco-based 9th U.S. Circuit Court of Appeals. In March, a divided panel upheld the Tongass exemption to the original rule, but the circuit has taken the unusual step of agreeing to rehear the case with a larger panel of judges in December (Greenwire, Sept. 2).
Many of the arguments today centered on the "reopener doctrine" and whether it applied to Alaska's case. Alaska attorney Dario Borghesan contended that it did for several reasons, primarily that Alaska could not have challenged the rule until the 2006 decision because it had been officially repealed by the Forest Service or was tied up in litigation.
"They would have been viewed as moot," he said of such hypothetical challenges.
Department of Justice attorney John Smeltzer countered that there was no official agency action reinstating the roadless rule in 2006 -- just a court order.
"We don't have a final agency action in this case," he said, contending that Alaska needed such a decision in order to restart the statute of limitations.
But that didn't sit well with Judge Brett Kavanaugh, another Republican appointee. He pointed out that from 2005 to 2006, the rule was repealed as the Forest Service prepared the revised version. So, he said, "there was nothing to challenge."
He later told Smeltzer that there was "something about your position that seems unfair."
The panel's third judge, Democratic appointee Judith Rogers, was more sympathetic to the government's position. She repeatedly said the Forest Service "did nothing" after the California court decision and pressed Borghesan on whether Alaska was attempting a second try at challenging the 2001 rule.
"It's the same cause of action you had in 2001 when you entered into the settlement," she said. "You get to challenge the rule twice, even though you settled the first time?"
A decision in the case, Alaska v. United States, is expected within the next year.
