III. Miscellaneous.

• Position: Case summaries, part 3 - 2015 Ninth Circuit Environmental Review

1. 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. Where an intervenor appeals on behalf of a government agency, "the test is whether the intervenor's interests have been adversely affected by the judgment." (259) Here, the court found this test was met because, under the National Forest Receipts Program, Alaska had a right to twenty-five percent of gross receipts of timber sales from national forests within the State. (260) Since the amount of timber harvested in the Tongass directly affected the amount of money Alaska receives, Alaska had an interest in the judgment.

   The majority also noted that an inquiry into whether Congress intended to legislate a private cause of action was not a question of Article III standing. (261) Furthermore, the court held that under the APA, the determination of whether Alaska has standing depended on whether Alaska met the "zone of interest" test. (262) In the APA context, the zone of interest test "forecloses suit only when a plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue." (263) Because the Village met this test, the court held there was standing.

   The court next held the USDA violated the APA. To comply with the APA, the agency must, among other things, provide "good reasons" for the new policy. (264) If the "new policy rests upon factual findings that contradict those which underlay its prior policy," the agency must include "a reasoned explanation ... for disregarding facts and circumstances that underlay or were engendered by the prior policy." (265) With this in mind, the court found that the 2003 ROD rested on factual findings that contradicting those in the 2001 ROD and that the 2003 ROD failed to give good reasons for adopting a new policy. (266) The 2001 ROD had found that "the long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities" caused by application of the Roadless Rule. (267) In contrast, the 2003 ROD explained that the shift in agency position rested on "(1) serious concerns about the previously disclosed economic and social hardships that application of the rule's prohibitions would cause in communities throughout Southeast Alaska, (2) comments received on the proposed rule, and (3) litigation over the last two years." (268) The court explained why these three reasons were not good reasons for the new policy.

   First, the socioeconomic concerns were not new. These same concerns led to the 2001 ROD's adoption of special mitigation measures in order to allow certain ongoing timber and road construction projects. While the USDA could give more weight to socioeconomic facts in 2003, the USDA still had to give a reasoned explanation for this shift in policy. Although not every violation of the APA invalidates an agency action, where prejudice is obvious to the court the party challenging the agency action need not make a further showing. (269) That was the case here, and therefore the socioeconomic concerns were not good reason for the new policy. Second, the public comments received were not good reason for the new policy because, as the USDA admitted, the comments received relating to the 2003 ROD raised no new issues not already explored. Third, the litigation occurring over the past two years was not a good reason for the new policy. The Roadless Rule had created a nationwide dispute and the 2003 ROD resulted in the present lawsuit. The court noted that, at most, the USDA was trading one lawsuit for another.

   Having found that the 2003 ROD violated the APA, the court sought to determine the appropriate remedy. The court noted that ordinarily a rule violating the APA is deemed invalid. However, Alaska argued that by reinstating the 2001 ROD, the district court reinstated another invalid rule because the 2001 ROD had been enjoined by the Wyoming district court both when the Tongass Exemption was promulgated and when the judgment below was entered. In response, the Ninth Circuit first noted that the Wyoming injunction conflicted with another Ninth Circuit opinion. (270) Additionally, the court noted that the Tenth Circuit had vacated both of the Wyoming District Court injunctions. (271) Accordingly, reinstatement of the 2001 ROD was the appropriate remedy.

   In sum, the Ninth Circuit held that the USDA's 2003 ROD violated the APA because the USDA relied on the same underlying facts as the 2001 ROD but did not provide a good reason for its change in policy. Accordingly, the Ninth Circuit affirmed the district court's ruling.

   Judge Callahan, in dissent, argued that the majority's standing analysis failed for several reasons. First, Congress did not intend for the National Forest Receipts Program to create a private cause of action for states to enforce their interest in shared revenue. Even if Congress did intend to create a statutory right, that right had not been infringed. Under 16 U.S.C. [section] 500, (272) Alaska was entitled to a share of revenue, but Alaska was not entitled to have revenue generated. Thus, Alaska's showing that it received less money was not a violation of any statutory right created by the relevant statute.

   Judge Callahan also asserted that the majority misconstrued the zone of interest test. (273) The zone of interest test was meant to apply only after the litigant had already shown injury in fact. Because Judge Callahan believed there was no injury in fact the zone of interest test should not have applied. According to Judge Callahan, the real issue in this case was whether there was a "case or controversy" under Article III. The majority held that to meet the case or controversy requirement, Alaska only needed to show it had a stake in defending the Tongass Exemption. Judge Callahan noted that this interpretation was contrary to Supreme Court precedent and Ninth Circuit precedent. (274)

   Further, Judge Callahan argued that the majority misunderstood the...