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Court sends fight over 'roadless rule' in Tongass to larger judicial panel

Pat Forgey

JUNEAU -- A federal court Friday took away a big victory it had earlier handed to Southeast Alaska's logging and other industries active in Tongass National Forest.

The battle is over the "roadless rule" barring new roads into the remaining big chunks of the Tongass that don't already have roads.

"It's great news for residents of Southeast Alaska," said Tom Waldo of the environmental law firm Earthjustice. "This case is about the wild, undeveloped parts of the Tongass, which are really important for hunting, fishing, tourism, recreation -- those are the driving forces in our local economy."

Earthjustice sued to overturn an exemption to the rule, representing numerous other. mostly environmental, groups.

But the state of Alaska said the effects of the rule could go well beyond logging and have long-lasting negative impacts.

"There's a tremendous impact," said Assistant Attorney General Tom Lenhart. "It's not just timber you can't cut. You can't build roads, and it's hard to build mines and power lines if you can't build roads," he said.

The rule has been in  place since 2001 nationally, but in 2003, the U.S. Forest Service gave an exemption to the rule to its largest national forest, the Tongass, which is the size of West Virginia and covers most of Southeast Alaska.

That exemption was challenged by Earthjustice and was overturned by U.S. District Court Judge John Sedwick.

The Forest Service created the Tongass exemption under President George Bush, but the Forest Service under the Obama administration decided not to appeal Sedwick's decision.

The state of Alaska stepped in, supported by the Alaska Forest Association, and Lenhart appealed Sedwick's decision to the 9th Circuit Court of Appeals.

"The state of Alaska has a huge stake in what happens in the Tongass," Lenhart said.

The appeals court appointed a three-judge panel to review Sedwick's decision. Earlier this year, it ruled 2-1 that Sedwick had gotten it wrong and reinstated the exemption to the rule.

Lenhart praised that decision, which found that the Forest Service had provided a "reasonable and rational explanation" of why the Tongass was exempted from the rule.

But that ruling didn't take effect immediately, because Earthjustice sought a fuller review from a panel of 11 judges on the court..

Friday, the federal appeals court agreed to do that full review. That meant the state's 2-1 victory was no more.

"Having granted the hearing it effectively vacates the decision of the three-judge panel, as if it never happened," Lenhart said.

The new 11-judge panel will hear the state's appeal of Sedwick's decision all over again Dec. 15, in Pasadena, California.

Waldo said that while the rule is an important environmental protection, it doesn't do as much as is sometimes claimed.

"It prohibits most road building and most logging in roadless areas. It doesn't prohibit any other kinds of development, and there are exemptions to even both of those prohibitions, he said.

"It allows hydropower plants and power lines, mining projects -- those things can still go in roadless areas," Waldo said.

Still, in other venues, mining, power and other companies are challenging the entire "roadless rule" concept.

"I think a lot of that is based on misinformation and misunderstanding. There is a perception out there that the rule has a greater impact than it really has. It provides very important conservation impacts, but it is mostly related to logging," Waldo said.

One area where it won't have an impact, Lenhart and Waldo agree, is the Big Thorne timber sale on Prince of Wales Island. That Forest Service sale was drafted to be in compliance with the rule, even though the exemption was being challenged at the time.

The controversial timber sale will involve building dozens of miles of new logging roads, but all in fragmented forest areas that aren't covered by the rule, they said.