Organized Vill. of Kake v. U.S. Dep't of Agric.

795 F.3d 956

ORGANIZED VILLAGE OF KAKE; The Boat Company; Alaska Wilderness Recreation and Tourism Association ; Southeast Alaska Conservation Council; Natural Resources Defense Council; Tongass Conservation Society ; Greenpeace, Inc.; Wrangell Resource Council; Center for Biological Diversity ; Defenders of Wildlife; Cascadia Wildlands ; Sierra Club, Plaintiffs–Appellees

v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Tom Vilsack, in his official capacity as Secretary of Agriculture; Harris Sherman, in his official capacity as Under Secretary of Agriculture of Natural Resources and Environment; Tom Tidwell, in his official capacity as Chief, USDA Forest Service, DefendantsAlaska Forest Association, Inc., Intervenor–DefendantandState of Alaska, Intervenor–Defendant–Appellant.

No. 11–35517.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Dec. 16, 2014.

Filed July 29, 2015.

Dario Borghesan (argued), Assistant Attorney General, Anchorage, AK; Thomas E. Lenhart, Assistant Attorney General, Juneau, AK, for Intervenor–Defendant–Appellant State of Alaska.

Thomas S. Waldo (argued) and Eric P. Jorgensen, Earthjustice, Juneau, AK; Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for Plaintiffs–Appellees.

Julie A. Weis, Haglund Kelley Jones & Wilder LLP, Portland, OR, for Amicus Curiae Alaska Forest Association, Inc.

Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding. D.C. No. 1:09–cv–00023–JWS.

Before: SIDNEY R. THOMAS, Chief Judge, and HARRY PREGERSON, ALEX KOZINSKI, WILLIAM A. FLETCHER, RICHARD C. TALLMAN, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., MORGAN CHRISTEN, JACQUELINE H. NGUYEN, ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge HURWITZ

; Concurrence by Judge CHRISTEN ; Dissent by Judge CALLAHAN ; Dissent by Judge MILAN D. SMITH, JR. ; Dissent by Judge KOZINSKI.

OPINION

HURWITZ, Circuit Judge:

In 2001, the United States Department of Agriculture promulgated the “Roadless Rule,” limiting road construction and timber harvesting in national forests. The Department expressly found that exempting the Tongass National Forest from this Rule “would risk the loss of important roadless area [ecological] values.” Just two years later, relying on the identical factual record compiled in 2001, the Department reversed course, finding “[a]pplication of the roadless rule to the Tongass ... unnecessary to maintain the roadless values.”

The issue in this case is whether the Department sufficiently explained this dramatically changed finding. Like the district court, we conclude that the Administrative Procedure Act requires a reasoned explanation for this change in course, and affirm the judgment below.

I.

A. The 2001 Roadless Rule

Approximately one-third of National Forest Service lands, some 58.5 million acres, is designated by the Department of Agriculture as inventoried roadless areas. See Special Areas; Roadless Area Conservation, 66 Fed.Reg. 3244, 3245 (Jan. 12, 2001) (to be codified at 36 C.F.R. §§ 294.10 –294.14 ) (the “2001 ROD”). These “large, relatively undisturbed landscapes” have a variety of scientific, environmental, recreational, and aesthetic attributes and characteristics unique to roadless areas, which the Department refers to as “roadless values.” Id. at 3245, 3251. As the 2001 ROD explained, these include healthy watersheds critical for catching and storing water, protecting downstream communities from flooding, providing clean water for domestic and agricultural purposes, and supporting healthy fish and wildlife populations. Id. at 3245. Roadless area attributes also include habitats for threatened and endangered species, space for wilderness recreation, environments for research, traditional cultural properties and sacred sites, and defensive zones against invasive species. Id.

Inventoried roadless lands were historically managed through local- and forest-level plans. Id. at 3246–47. In 2000, citing the “costly and time-consuming appeals and litigation” that plagued this process, id. at 3244, the Department considered a national roadless lands policy that would look at “the ‘whole picture’ regarding the management of the National Forest System,” id. at 3246–48. The Department undertook to answer two questions when it started this process. The first was whether to prohibit timber harvesting and road construction (or reconstruction) within inventoried roadless areas of our national forests. Id. at 3262. The second question recognized the unique nature of the Tongass National Forest, which, at 16.8 million acres, is the nation's largest national forest.¹ Id. The issue was whether to exempt the Tongass from the proposed Roadless Rule in whole or in part. Id. at 3262–63. Thus, the Department examined four alternatives for treating the Tongass under the Roadless Rule: applying any new rule to the Tongass with no exceptions (Tongass Not Exempt), excluding the Tongass from a new rule altogether (Tongass Exempt), postponing any decision on the application of a new rule to the Tongass until 2004 (Tongass Deferred), and applying some of the prohibitions of a new rule only to certain parts of the Tongass (Tongass Selected Areas). Id. No other national forest received such special consideration in the Department's nationwide assessment of the proposed Roadless Rule.

Given the unique importance of the Tongass and the many competing interests in its use and management, it was not surprising that thousands of public comments concerning the proposed rule were received, or that the Department gave the Tongass special consideration. Id. at 3248. Approximately 16,000 people attended 187 public meetings, and the Department received more than 517,000 comments on the proposed rule. Id. The 2001 ROD squarely recognized that adopting the Roadless Rule risked significant and negative local economic impact for the Tongass:

With the recent closure of pulp mills and the ending of long-term timber sale contracts, the timber economy of Southeast Alaska is evolving to a competitive bid process. About two-thirds of the total timber harvest planned on the Tongass National Forest over the next 5 years is projected to come from inventoried roadless areas. If road construction were immediately prohibited in inventoried roadless areas, approximately 95 percent of the timber harvest within those areas would be eliminated.

* * *

Based on the analysis contained in the [Final Environmental Impact Statement], a decision to implement the rule on the Tongass National Forest is expected to cause additional adverse economic effects to some forest dependent communities ( [Final Environmental Impact Statement] Vol. 1, 3–326 to 3–350). During the period of transition, an estimated 114 direct timber jobs and 182 total jobs would be affected. In the longer term, an additional 269 direct timber jobs and 431 total jobs may be lost in Southeast Alaska.

Id. at 3254–55.

In light of these socio-economic concerns, the proposed Roadless Rule suggested the Tongass Deferred option. See Special Areas; Roadless Area Conservation, 65 Fed.Reg. 30,276, 30,277, 30,280 –81 (May 10, 2000) (notice of proposed rulemaking). But the 2001 ROD expressly found that such an approach “would risk the loss of important roadless area values” in the Tongass. 66 Fed.Reg. at 3254. The 2001 ROD also rejected the Tongass Selected Areas option, finding that even under that more limited approach, “[i]mportant roadless area values would be lost or diminished.” Id. at 3266. Ultimately, the Department adopted a national Roadless Rule prohibiting road construction and timber harvesting in inventoried roadless areas of the National Forest System except for specified “human and environmental protection measures.” Id. at 3263. The Department decided that the Roadless Rule would apply to the Tongass, but with several exceptions designed to mitigate the impacts of the Rule in Southeast Alaska. The exceptions allowed: (1) road construction and reconstruction in certain mineral-leasing areas, (2) timber harvest in areas where roadless characteristics had been substantially altered by road construction or timber harvest since the area was designated an inventoried roadless area but before implementation of the Roadless Rule, and (3) planned timber harvest and road construction in areas where a notice of availability of a draft environmental impact statement had been published in the Federal Register prior to publication of the Roadless Rule. Id. at 3266. The Department estimated that these exceptions would together allow enough continued timber harvest from the Tongass “to satisfy about seven years of estimated market demand.” Id.

B. The Roadless Rule Litigation

Although the Department intended the Roadless Rule to reduce litigation about forest management, see id. at 3244, 3246, that hope was promptly dashed. Litigation over the Roadless Rule began immediately after its adoption. In 2001, an Idaho district judge preliminarily enjoined implementation of the Roadless Rule, citing violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 –4347 (“NEPA”). Kootenai Tribe of Idaho v. Veneman, No. 01–10–N–EJL, 2001 WL 1141275, at *2 (D.Idaho May 10, 2001). This court reversed, finding that plaintiffs had not shown a likelihood of success on their NEPA claim. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1126 (9th Cir.2002), abrogated on other grounds by Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1178–80 (9th Cir.2011) (en banc). The Roadless Rule took effect when the Kootenai mandate issued in April 2003. See California ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1007 (9th Cir.2009) (describing history of the Roadless Rule).

The State of Alaska also challenged the Roadless Rule soon after its adoption. The State's complaint, filed in the District of Alaska in 2001, claimed that the promulgation of the Roadless Rule violated NEPA,...