Alaskans still determined to seek relief from roadless rule

By Carl Portman

A federal judge’s recent dismissal of the State of Alaska’s challenge against the Forest Service’s roadless rule has left Alaskans frustrated and more determined to get an exemption to the federal rule.

In late March, U.S. District Judge Richard Leon in Washington D.C. dismissed the State of Alaska’s challenge against the rule on the grounds that the six-year Statute of Limitations had passed by the time the lawsuit was filed.

“The State and organizations that intervened in the lawsuit didn’t even get the chance to argue the case on its own merits,” said Owen Graham, Executive Director of the Alaska Forest Association. “One way or another, we need to get an exemption to the roadless rule.”

The decision came despite the fact that Alaska and the federal government had entered into a settlement agreement that exempted Alaska from the roadless rule in return for dropping the State’s initial lawsuit over the issue. As a result of that settlement and a resulting special exemption for the Tongass National Forest, the State did not sue during much of the six years after the roadless rule was issued.

“Considering it (Statute of Limitations) ran mostly while we had an exemption, why would anyone appeal a rule they were exempt from?” Graham said.

“Among other things, Judge Leon’s decision refused to consider equitable factors that might have tolled the six-year Statute of Limitations,” Graham said. “Other federal courts have taken into account equitable issues that toll the running of the Statute of Limitations. But because the law in the D.C. Circuit is less than crystal clear on this issue, Judge Leon refused to even entertain the State of Alaska’s arguments.”

The State and other appellants have until late May to file an appeal.

“We would be surprised if the State does not file an appeal as this outcome invites heavy-handed tactics from the federal government,” Graham said. “Under the holding of this case, the federal government could engage in conduct to keep a party like the State at bay for six years after a controversial federal action, then change course immediately after the Statute of Limitations has run out, knowing that they would be insulated from legal challenge.”

Graham said the federal government could still honor the settlement agreement by administratively exempting Alaska, but so far it has shown no willingness to do so.

“I think the people in the USDA – the political appointees – don’t care about the timber industry,” Graham added. “They want national forests managed like parks. We don’t have to cut every acre, but we can cut enough to keep the industry going while sustaining the forest, wildlife and fisheries.”

The rule prohibits new roads and most timber harvest in inventoried roadless areas of Alaska’s two national forests, including some 9.3 million acres in the Tongass and virtually all of the Chugach National Forest’s 5.4 million acres. With most of Alaska’s federal forest lands already off limits to harvest, Alaska’s congressional delegation and Governor Sean Parnell have urged the Forest Service to be more flexible in crafting a reasonably-sized timber sale program that keeps existing mills operating and revitalizes the regional economy.

The Tongass once had a thriving forest products industry anchored by two major pulp mills and large sawmills. The industry employed thousands of people and was once one of the largest economic engines in the state. However, major land withdrawals and other federal actions during the Clinton-era of the 1990s sharply curtailed logging.

In 2001, the State filed suit against the roadless rule shortly after it was put in place in the twilight hours of the Clinton administration. The State settled that case in 2003 when the Forest Service agreed to exempt the Tongass from the rule. In 2011, the State lost a legal challenge to the exemption in a lower Anchorage court and that case is now before the 9th Circuit Court of Appeals.

Following that 2011 loss, the State filed its challenge to the roadless rule in the Washington, D.C. court. But the court did not rule on the merits of the case.

Senator Mark Begich introduced a bill in Congress earlier this year to overturn the roadless rule in the Tongass.

“It’s past time to eliminate this cookie cutter federal regulation that is stifling the Southeast Alaska economy,” Begich said. “Southeast communities and small businesses need options to strengthen the region’s economy through responsible resource development like potential mining projects as well as economic timber sales.”

Begich said that instead of adding options, the roadless rule takes them away. “The residents of Southeast Alaska don’t need more rules from Washington,” Begich said. “They need more jobs and economic diversification.”

Senator Lisa Murkowski is a co-sponsor of the legislation and Congressman Don Young pledged help in repealing the rule as it applies to Alaska.

Southeast Alaska community leaders noted the rule will not only impact the forest industry, it could jeopardize needed mining and hydro projects.

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