Academic journal article Environmental Law

III. Miscellaneous

Academic journal article Environmental Law

III. Miscellaneous

Article excerpt

A. Administrative Procedure Act

Organized Village of Kake v. U.S. Department of Agriculture., 795 F.3d 956 (9th Cir. 2015) (en banc).

In this case, the Organized Village of Kake and others (collectively, the Village) (241) sued the Department of Agriculture (USDA) in the United States District Court of Alaska. The Village alleged that the USDA's adoption of the Tongass Exemption violated the Administrative Procedure Act (APA) (242) and the National Environmental Policy Act (NEPA). (243) The district court held that the USDA violated the APA, and did not address the Village's NEPA claim. The Ninth Circuit, sitting en banc, affirmed the district court's holding.

This case centered on two rules of decision (ROD) regarding the Roadless Rule (244) reached by the USDA in 2001 and 2003. The USDA has designated about one-third of National Forest Service lands as inventoried roadless areas. These roadless areas have unique scientific, environmental, recreational, and aesthetic qualities, referred to as "roadless values." (245) In 2000, the costs associated with local-level and forest-level management plans prompted the USDA to consider adopting a national roadless land rule. The USDA considered, among other things, whether to exempt the Tongass National Forest (the Tongass), the nation's largest national forest, from the proposed rule. Ultimately, in its 2001 ROD, the USDA adopted an approach that applied the Roadless Rule to the Tongass, but codified several exceptions designed to mitigate the socioeconomic impacts of the Roadless Rule in Southeast Alaska. (246)

After the USDA promulgated the 2001 ROD, several lawsuits followed. The State of Alaska brought one such lawsuit in 2001 in the United States District Court of Alaska. (247) In that suit, the State of Alaska claimed that the Roadless Rule violated the Alaska National Interest Lands Conservation Act (ANILCA), (248) the APA, NEPA, the Tongass Timber Reforms Act (TTRA), (249) and other federal statutes. (250) Ultimately, the case settled and the complaint was dismissed.

As part of the settlement, the USDA agreed to publish, but not necessarily adopt, a proposed rule to "temporarily exempt the Tongass from the application of the roadless rule," and require advanced notice of any proposed rulemaking to permanently exempt the Tongass, as well as another Alaskan forest, from application of the Roadless Rule. (251) Pursuant to these changes, the USDA issued its 2003 ROD promulgating the Tongass Exemption. (252) The 2003 ROD found that little of relevance had changed from when the 2001 ROD was released and that the public comments offered did not raise any new issues not already explored in 2001. (253) Accordingly, the USDA relied on the Final Environmental Impact Statement (FEIS) from 2001 rather than preparing a new EIS.

In response to the 2003 ROD, the Village sued the USDA, alleging that the USDA's promulgation of a new rule violated the APA and NEPA. Alaska intervened as a party-defendant. (254) The district court granted summary judgment to the Village because "the Forest Service provided no reasoned explanation as to why the Tongass Forest Plan protections it found deficient in [2001], were deemed sufficient in [2003]." (255) The USDA declined to appeal, but Alaska did appeal. On appeal a divided three-judge panel reversed the district court's APA ruling and remanded for consideration of the Village's NEPA claim. (256) The Village petitioned for a rehearing en banc, and a majority of the Ninth Circuit granted the Village's petition. (257) On rehearing, the Ninth Circuit reviewed the district court's decision de novo and the USDA's actions under the arbitrary and capricious standard.

The Ninth Circuit first held that Alaska had standing to appeal on behalf of the USDA. Although the Village did not challenge standing on appeal, the court noted that Alaska must still satisfy Article III (258) standing for the court to have jurisdiction. …

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