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State loses challenge to national forest roadless policy

Richard Mauer
U.S. Forest Service photo

JUNEAU -- A federal judge ruled Monday that the Parnell administration was more than four years too late in filing its 2011 lawsuit challenging the Forest Service's roadless policy.

"The plaintiffs' case must be dismissed as untimely," said U.S. District Judge Richard Leon, in Washington, D.C., in tossing Alaska's claims.

The roadless rule challenged in the lawsuit was put into effect just before President Clinton left office in 2001. Under it, some 9.3 million acres of the Tongass National Forest in Southeast was set aside, along with nearly all of Chugach National Forest's 5.4 million acres, Anchorage's backyard wilderness.

Leon noted that the rule prevents Forest Service road building and timber cutting on 58.5 million acres nationwide, including the 14.7 million acres in Alaska. The Alaska acreage represents more than the area of Vermont and New Hampshire combined.

"It's a complete victory for the roadless rule," said Tom Waldo, an attorney in Juneau with the environmental organization Earthjustice, which backed the Forest Service in the litigation. "The court's decision means that it's not only too late for the state of Alaska to file a lawsuit against the roadless rule, it's too late for anyone."

Waldo cheered the decision in an interview Monday. "The Forest Service adopted the roadless rule with overwhelming public support. These are places that are important to people in Alaska for hunting and fishing, for subsistence, for clean water, and all kinds of recreation that people in Alaska cherish."

Tom Lenhart with the Alaska Department of Law said he had just received a copy of Leon's decision and didn't want to comment.

"We're looking carefully at our options," Lenhart said. One possibility is an appeal, he said.

A group of Alaska utilities and resource development interests had intervened on same side as the state in the lawsuit, while environmental groups joined the case on the side of the U.S. Forest Service.

Only last week, Parnell defended his administration's frequent use of the courts to challenge federal decisions, whether on endangered species, environmental protection or health care.

"These are legitimate claims that the state has to manage our own destiny and that's something we'll continue to do," he told the Juneau Chamber of Commerce on Thursday. "We have been getting quite a reputation that we are standing up. The only ones that I've heard really complaining about it are the ones who want to do us damage."

"We've have some good news in recent times," Parnell added. "We've won three out of the last four decisions that I was able to think of right off the top of my head last night."

But only two of those four cases directly affected Alaska: the state's win in January in U.S. District Court in Anchorage that the Fish & Wildlife Service's designation of 187,000 square miles polar bear habitat, including prime oil-drilling areas, was done improperly; and an appellate loss March 1 in another state lawsuit that claimed polar bears were improperly classified as threatened.

Alaska played tiny roles in the other two wins. One was in a Priest Lake, Idaho, case in which Michael and Chantell Sackett challenged an EPA decision that stopped them from filling in wetlands where they hoped to build a house. The Sacketts filed their lawsuit in 2008. Alaska was one of 10 states to join a friend of the court brief on their side in 2011 when the case reached the U.S. Supreme Court. The Supreme Court ruled in favor of the Sacketts a year ago, saying the EPA should have granted them a hearing.

The other involved a case in which half the states in the union, Alaska included, backed the EPA when it said that runoff during logging operations doesn't require a federal water discharge permit. An environmental organization sued to force EPA to require a permit, but last week the Supreme Court said no.

The 17-million-acre Tongass, the largest national forest in the country, has been fought over for decades. It once had a thriving sawmill and pulp industry, but timber went into decline and the Ketchikan pulp mills closed in the 1990s, as much for economic reasons as environmental challenges.

Alaska sued against the roadless rule shortly after it was signed in 2001. But the state settled that case in 2003 when the Forest Service agreed to temporarily withdraw the roadless rule for the Tongass. In 2011, the village of Kake and several environmental groups challenged the "Tongass exemption" in U.S. District Court in Anchorage. The state defended the exemption, but lost on March 4, 2011, in the lower court. That case is now before the 9th U.S. Circuit Court of Appeals.

Shortly after that 2011 loss in Anchorage, the state filed its challenge to the roadless rule in Washington, D.C. The Forest Service and its parent agency, the Department of Agriculture, tried to move the case to Alaska, but the state opposed the venue change.

Waldo, the Earthjustice attorney, said he thought the state was thinking ahead to a possible appeal and trying to avoid the 9th Circuit, which had already ruled in favor of the roadless rule in other cases.

But Leon didn't decide the merits of the roadless rule -- he said the state's case was filed years too late.

Alaska Sens. Mark Begich and Lisa Murkowski have been trying to overturn the roadless rule for the Tongass through congressional legislation. But their 2011 bill went nowhere, and they're trying again with a new bill introduced last month.

Waldo said the roadless rule doesn't establish true wilderness areas. A roadless area, which must be a unit of at least 5,000 acres, can be traversed by motorized vehicles, unlike wilderness areas, and can be developed for mining, tourism and other economic activities, he said.

"The main effect of the roadless rule is to stop the proliferation of logging roads and clearcuts into the remaining intact areas of the national forests," Waldo wrote in an email.

Reach Richard Mauer at rmauer@adn.com or in Juneau at (907) 500-7388.

 

 


By RICHARD MAUER
rmauer@adn.com
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