The state of Alaska has the only remaining legal challenge pending against a nationwide ban on logging and road building on roadless forest lands. That’s after the U.S. Supreme Court decided this week not to hear an appeal on a lawsuit brought by the state of Wyoming and a mining industry group from Colorado.
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The 2001 federal rule prohibits new road construction, reconstruction or logging on large undeveloped areas of national forest land across the U.S. That includes parts of the Tongass and Chugach national forests in Alaska. The U.S. Supreme this month decided not to hear an appeal of a tenth circuit court decision upholding the rule.
Duncan Canal and the South Kupreanof Roadless area as seen from Portage Mountain west of Petersburg
Tom Lenhart, an assistant attorney general with the state of Alaska, said the decision doesn’t have a big impact on Alaska’s challenge. “First it’s important to recognize that all they did was decide not to hear the case,” Lenhart said. “So they didn’t look at the merits at all. There’s no precedent in terms of the merits of the case. What it does is it lets the decision stand by the 10th circuit court of appeals. Certainly it’s a decision we’re disappointed in. However in terms of the state of Alaska’s case, which is in the district of Columbia, it really doesn’t have very much of an impact.”
The state of Wyoming and Colorado Mining Association argued that the rule creates wilderness areas in national forests, an authority reserved for Congress. The State of Alaska’s case is filed in U.S. District court for the District of Columbia and challenges the roadless rule for other reasons, according to Lenhart. “We have raised a number of important legal issues that are completely different from the Wyoming case. Some of them are unique to Alaska, such as that we believe that the roadless rule violates two federal statutes, ANILCA and the Tongass Timber Reform Act. Both of which are specific to Alaska,” he said. TTRA and the Alaska National Interest Lands Conservation Act define and govern use of federal lands in Southeast Alaska.
The federal government has filed a motion to dismiss Alaska’s case and the parties in that lawsuit are awaiting a decision on dismissal. A number of organizations have joined the suit on behalf of the state, including the Alaska Forest Association. Owen Graham is the timber industry group’s executive director. “You know I was hoping Wyoming would be successful so we wouldn’t have to go forward with ours, but it looks like now we’ll have to go forward. You know it’s disappointing but we’ve gotta get rid of the rule,” Graham said. Graham thinks Alaska’s forests should be exempt from the nationwide rule and says the level of logging allowed on the roaded parts of the forest is not enough for industry to survive.
The supreme court’s decision is welcome news for environmental groups that have fought to uphold the Clinton-era law. Tom Waldo is an attorney with EarthJustice, a nationwide environmental law firm. “For more than 11 years, various parties like the state of Wyoming have been filing lawsuits trying to get the roadless rule thrown out. And with the supreme court’s decision this week, they’ve been completely unsuccessful,” Waldo said. “The reason for that is that the roadless rule is a balanced rule that was adopted after a thorough and open public process that complied with all the applicable laws.”
EarthJustice has filed a motion to dismiss the Alaska case arguing the state has missed the statute of limitations for challenging a federal rule. Waldo says the organization is confident and optimistic the district court in Washington D.C. will uphold the roadless rule for the same reasons appeal judges with the ninth circuit and ten circuit courts have.
Meanwhile, the ninth circuit court of appeals could also rule soon on whether the Tongass should be exempted from the roadless rule. Plaintiffs and defendants in a separate case made oral arguments before the appeals court in August.
