Tongass wildlands get big win in court
by Larry Edwards
March 10, 2011
Last week brought a big legal victory for Greenpeace and other plaintiffs, in a judgment voiding the Forest Service’s exemption of the Tongass National Forest from the Roadless Rule. The case, Organized Village of Kake v. USDA was in U.S. District Court, Anchorage.
The court order restores protection that had been ended by the Bush administration when it imposed the Tongass Exemption in December 2003. The renewed protection includes 2.3 million acres of pristine wildlands which were otherwise unprotected through measures such as Wilderness designation.
Plaintiffs besides the Organized Village of Kake and Greenpeace included tourism businesses and several regional and national environmental organizations. Our attorneys were Tom Waldo of Earth Justice and Niel Lawrence of NRDC.
The court order is sweeping and strongly worded, giving us a win on every point. Its wrap-up says:
“Because the reasons proffered by the Forest Service in support of the Tongass Exemption were implausible, contrary to the evidence in the record, and contrary to Ninth Circuit precedent, the court concludes that promulgation of the Tongass Exemption was arbitrary and capricious.”
Reaching this point took an unrelenting years-long struggle involving our members, the American public, Greenpeace staff, and our allies. It is a story worth this brief recounting.
It all began quietly enough in 2001 in the very last days of the Clinton administration with the adoption of the Roadless Rule, which applied to all national forests including the Tongass. And that should have been the end of the story. Over two million Americans had commented during the rulemaking process, a record number, with 95% of them favoring the Rule. Since then, the Roadless Rule has had to be defended against both the Bush and Obama administrations.
Newly inaugurated President Bush immediately recanted on a campaign promise to support the Roadless Rule, suspending its implementation and later beginning rulemaking to exempt all national forests from the Rule. The gambit was to instead turn the fate of national forest roadless areas over to the state governors.
Sparing you the several ins and outs of the Roadless Rule in court over the next few years regarding its nationwide application, in December 2003 the Bush administration settled with the State of Alaska on a suit the administration hadn’t really defended. It agreed to exempt the Tongass from the Rule, and did so on December 23. As the New York Times noted in an editorial later that week,
“The administration presents the new policy as a necessary tonic for southeast Alaska’s depressed economy, and as a necessary response to a state lawsuit that it says it could never have won. The reality is otherwise.” It also noted that “the announcement came wrapped in the same deceptive packaging that has characterized much of this administration’s forest policy.”
Greenpeace had tried to head off this outcome beforehand. The month before, we and several southeast Alaskans met with USDA Undersecretary Mark Rey, trying with no result to dissuade him from his intent to exempt the Tongass. A few days later, in protest, we rendered roadless the circular driveway in front of his Washington office, laying 12 tons of sod over it. Our Executive Director, John Passacantando and several Alaskans were among those arrested.
In July 2004 USDA Secretary Anne Veneman announced the Bush administration’s intent to eliminate the Roadless Rule nationwide. But Greenpeace was ready for action. That month we established a “Forest Rescue Station” in Oregon, blocking logging roads and calling public attention to the plight of our national forest wildlands under that administration.
Then in August we took our ship M/V Arctic Sunrise to the tidal straits of the Tongass National Forest to protest and publicize the already in place Tongass Exemption from the Rule. There, for three days we blockaded a logging road being constructed into a roadless area. The cost of the road to taxpayers was $680,000, and the timber it accessed eventually sold for only $70,000. Such subsidies have been typical on the Tongass.
And then that fall you our members and the general public, once again stood up for roadless areas. We helped orchestrate an outpouring of public sentiment, but was you who came through with your 500,000 comments asking the Bush administration to leave the Roadless Rule in place, and to end the Tongass Exemption.
In an editorial that seems to fit today’s economic times even better than October 2004, a Boston Globe editorial said:
“YEAR IN and year out, the politically powerful Alaska congressional delegation encourages the US Forest Service to build, at taxpayer expense, logging roads in the Tongass National Forest for the benefit of the state’s dwindling timber business… Wasteful Forest Service spending on Tongass timber operations is especially ill advised at a time when the federal government is facing a record deficit.”
In May 2005, Bush administration rulemaking officially dismantled the Roadless Rule nationwide. We sued, in party with other environmental organizations, as did several western states in a separate suit. In September 2006, U.S. District Court Magistrate Judge Elizabeth LaPorte restored the Roadless Rule; however, the separate rule exempting the Tongass prevented the decision from applying there.
As our Executive Director Passacantando said, “Regrettably, one of our most pristine areas, the Tongass National Forest in Alaska remains unprotected even with this decision.” Judge LaPorte’s decision was affirmed by the 9th Circuit Court of Appeals in August 2009, again reinstating the Roadless Rule nationwide, except in the Tongass.
Skipping ahead to the Obama years, Secretary of Agriculture Tom Vilsack reserved to himself for each Tongass timber sale the decision on whether to allow logging in a roadless area (if any was included) to go ahead. In March 2009 the Forest Service let a contract for road construction for the roadless Orion North timber sale, near Ketchikan. Immediately, along with several co-plaintiffs, we sued. The Forest Service issued a stop-work order, halting the road contractor’s mobilization while the court considered an injunction. An injunction was denied in May and road work resumed. In July Secretary Vilsack made a decision to allow logging of the Orion North roadless area timber, and the timber was promptly sold. We had appealed the injunction denial to the 9th Circuit, and there were again denied an appeal in August. But in December, back in District Court, we won the case on its merits, and the timber sale was permanently enjoined.
That month, December 2009, we took on the Tongass Exemption directly, as described at the beginning of this blog and leading to last week’s sweeping victory, restoring protection to all roadless areas on the Tongass.
In an odd coincidence, on February 25 this year, a week before the court’s ruling that voided the Tongass Exemption, the Forest Service issued its decision on the Central Kupreanof timber project, dropping all logging in roadless areas from the project. Secretary Vilsack had for many months been sitting on the Forest Service’s proferred decision which included substantial roadless area logging and road building. The project is just south of the village of Kake, whose tribal government was the named plaintiff in the Tongass Exemption lawsuit.
The end of the story? Not at all, because the fragmented, heavily logged parts of the Tongass need a defense too. Throughout its 65 year history on the Tongass, industrial logging has generally targeted the best or most economic timber – which has generally been the better wildlife habitat. Key habitat elements of the region’s major islands are highly stressed, and as one example the population of the region’s endemic wolf subspecies, the Alexander Archipelago wolf, was recently determined to be severely reduced.
The Forest Service has consistently, tacitly refused to accurately portray the impacts of its timber projects in its environmental impact statements, despite Greenpeace’s best efforts to correct that. There are significant problems with the Central Kupreanof timber project’s EIS, which we are reviewing now. Right now we have two lawsuits in the 9th Circuit concerning five timbers sales for which impacts to wolves and subsistence deer hunters were greatly underestimated. Stay tuned!
Photo: Part of the Logjam project on Prince of Wales Island, which we are litigating. As with Orion North, we were unable to get an injunction. The case in now under appeal in the 9th Circuit. Sept. 2010.