Organized Village of Kake, et al v. AGRI, et al

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and CARLOS T. BEA) REVERSED AND REMANDED. Judge: MMM Dissenting, Judge: CTB Authoring. FILED AND ENTERED JUDGMENT. [9031456]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ORGANIZED VILLAGE OF KAKE; THE
BOAT COMPANY; ALASKA
WILDERNESS RECREATION AND
TOURISM ASSOCIATION; SOUTHEAST
ALASKA CONSERVATION COUNCIL;
NATURAL RESOURCES DEFENSE
COUNCIL; TONGASS CONSERVATION
SOCIETY; GREENPEACE, INC.;
WRANGELL RESOURCE COUNCIL;
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; CASCADIA WILDLANDS;
SIERRA CLUB,
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES
FOREST SERVICE; TOM VILSACK, in
his official capacity as Secretary of
Agriculture; HARRIS SHERMAN, in
his official capacity as Under
Secretary of Agriculture of Natural
Resources and Environment; TOM
TIDWELL, in his official capacity as
Chief, USDA Forest Service,
Defendants,

No. 11-35517
D.C. No.
1:09-cv-00023JWS

OPINION

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ORGANIZED VILLAGE OF KAKE V. USDA

ALASKA FOREST ASSOCIATION, INC.,
Intervenor-Defendant,
and
STATE OF ALASKA,
Intervenor-Defendant–Appellant.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
August 30, 2012—Anchorage, Alaska
Filed March 26, 2014
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Dissent by Judge McKeown

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ORGANIZED VILLAGE OF KAKE V. USDA

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SUMMARY*

National Forest Rules
The panel reversed the district court’s order, which
invalidated a 2003 United States Department of Agriculture
regulation temporarily exempting the Tongass National
Forest in Alaska from application of the 2001 Roadless Area
Conservation Rule.
The panel held that in its 2003 Record of Decision, the
Department of Agriculture articulated a number of legitimate
grounds for temporarily exempting the Tongass Forest from
the 2001 Roadless Rule. The panel concluded that these
grounds and the Department of Agriculture’s reasoning in
reaching its decision were neither arbitrary nor capricious.
The panel remanded to the district court to decide whether a
Supplemental Environmental Impact Statement is required in
the first instance.
Judge McKeown dissented, and would affirm the district
court’s decision because the administrative record does not
support the USDA’s decision in 2003 to discard its previous
position and temporarily exempt the Tongass from the
Roadless Rule.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORGANIZED VILLAGE OF KAKE V. USDA
COUNSEL

Thomas E. Lenhart, Assistant Attorney General, Office of the
Alaska Attorney General, Juneau, Alaska, for IntervenorDefendant–Appellant.
Nathaniel S.W. Lawrence, Senior Attorney, Natural
Resources Defense Council, Olympia, Washington; Thomas
S. Waldo, Earthjustice, Juneau, Alaska, for PlaintiffsAppellees.
Katherine Wade Hazard, Attorney, United States Department
of Justice, Environment & Natural Resources Division,
Washington, D.C., for Defendants.
Julie A. Weis, Haglund Kelley Jones & Wilder, LLP,
Portland, Oregon, for Intervenor-Defendant and Amicus
Curiae.

OPINION
BEA, Circuit Judge:
When a federal agency decides to change its rules to
allow roads to be built through a federal forest it had
previously ruled be preserved roadless, what reasons are
sufficient to justify that change?
The United States Department of Agriculture (“USDA”)
decided to change its rules to allow roads to be built through
an Alaskan forest the USDA had previously ruled should be
preserved roadless. We are called on to determine whether
the USDA’s stated reasons for its change to such rules were

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sufficient, and the rule change valid, or arbitrary and
capricious, and the rule change invalid.
The district court held invalid, as arbitrary and capricious,
a 2003 USDA regulation that temporarily exempts the
Tongass National Forest (“Tongass”) from application of the
2001 Roadless Area Conservation Rule (“Roadless Rule”).1,2
The State of Alaska appeals that order.
We reverse the district court’s order because, in its 2003
Record of Decision (“ROD”), the USDA articulated a number
of legitimate grounds for temporarily exempting the Tongass
from the Roadless Rule. These grounds and the USDA’s
reasoning in reaching its decision were neither arbitrary nor
capricious.
I. Background
Various environmental organizations and Alaskan
villages brought an action against the USDA and the United
States Forest Service and several government officials
1
68 Fed. Reg. 75136-1 (Dec. 30, 2003) (to be codified at 7 C.F.R. pt.
294).
2

The Roadless Rule prevents all construction in unroaded portions of
inventoried roadless areas, and “would establish national direction for
managing inventoried roadless areas, and for determining whether and to
what extent similar protections should be extended to uninventoried
roadless areas.” The final Roadless Rule included prohibitions on timber
harvest, road construction and reconstruction except for projects that
already had a notice of availability of an Environmental Impact Statement
(“EIS”) published in the Federal Register prior to the Roadless Rule’s
publication in the Federal Register. 66 Fed. Reg. 3244-01 (Jan. 12, 2001)
(to be codified at 36 C.F.R. pt. 294). There are many such exempted
projects. These exempted projects are not in dispute here.

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challenging a 2003 Forest Service rule which temporarily
exempts the Tongass from the Roadless Rule. The State of
Alaska and the Alaska Forest Association intervened as
Defendants.
Plaintiffs moved for summary judgment. Defendants
opposed Plaintiffs’ motion and filed a cross-motion for
summary judgment. The district court granted Plaintiffs’
motion and denied Defendants’ motion, entering an order
setting aside the Tongass Exemption, reinstating the 2001
Roadless Rule as to the Tongass, and vacating all previouslyapproved Tongass area timber sales that were in conflict with
the Roadless Rule. Only the State of Alaska now appeals.3
II. Standard of Review
We review de novo the district court’s grant of summary
judgment. N. Idaho Cmty. Action Network v. United States
Dep’t of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008). This
action arises under the Administrative Procedures Act
(“APA”), which provides for judicial review of final agency
action. 5 U.S.C. §§ 701–706. Under the APA, a court may
set aside agency actions only if such actions are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
Under this standard of review, an “agency must examine
the relevant data and articulate a satisfactory explanation for
its action.” Motor Vehicle Mfrs. Ass’n of United States, Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

3

The Alaska Forest Association filed an amicus brief in support of the
State of Alaska, but did not file its own notice of appeal. Neither the
USDA nor the Forest Service appealed.

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An agency’s action is arbitrary and capricious if the agency
fails to consider an important aspect of a problem, if the
agency offers an explanation for the decision that is contrary
to the evidence, if the agency’s decision is so implausible that
it could not be ascribed to a difference in view or be the
product of agency expertise, or if the agency’s decision is
contrary to the governing law. Id.
An “initial agency interpretation,” however, “is not
instantly carved in stone”; the agency “must consider varying
interpretations and the wisdom of its policy on a continuing
basis[.]” Nat’l Cable & Telecommunications Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 981 (2005) (quoting
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 863–64 (1984)). To prevent a claim it
was acting in an arbitrary or capricious manner, where an
agency changes its policy, the agency must show awareness
that it is changing a policy and give a reasoned explanation
for the adoption of the new policy. FCC v. Fox Television
Stations, 556 U.S. 502, 515–16 (2009). The agency does not
always have to “provide a more detailed justification than
what would suffice for a new policy.” Id. at 515. But the
Supreme Court cautioned judges not to determine whether
“the reasons for the new policy are better than the reasons for
the old one,” just whether the policy is permissible under the
statute and “the agency believes it to be better.” Id. The
Court emphasized: “the fact that an agency had a prior stance
does not alone prevent it from changing its view or create a
higher hurdle for doing so.” Id. at 519. “[A] court is not to
substitute its judgment for that of the agency and should
uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” Id. at 513–14 (internal
citations and quotation marks omitted).

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Contrary to the district court’s finding that the USDA
acted arbitrarily and capriciously, we find that the USDA
clearly acknowledged the 2003 ROD is inconsistent with its
previous Roadless Rule and gave a reasoned explanation for
the change.
III. Discussion
The USDA clearly acknowledged that the 2003 ROD,
which excluded the Tongass from the Roadless Rule, is
inconsistent with its previous Roadless Rule, which included
the Tongass. The USDA’s ROD stated that,
In State of Alaska v. USDA, [ 3:01-CV-00039JSK] the State of Alaska and other plaintiffs
alleged that the roadless rule violated a
number of Federal statutes, including the
Alaska National Interest Lands Conservation
Act of 1980 (ANILCA)
....
The Alaska Lawsuit alleged that USDA
violated ANILCA by applying the
requirements of the roadless rule to Alaska’s
national forests [including the Tongass].
USDA settled the lawsuit by agreeing to
publish a proposed rule which, if adopted,
would temporarily exempt the Tongass from
the application of the roadless rule (July 15,
2003, 68 FR 41865), and to publish a separate
advance notice of proposed rulemaking (July
15, 2003, 68 FR 41864) requesting comment
on whether to permanently exempt the

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Tongass . . . from the application of the
roadless rule.
68 Fed. Reg. 75136.
Furthermore, the USDA gave a reasoned explanation for
the change which may “reasonably be discerned.” Fox
Television, 556 U.S. at 513–14. The USDA’s ROD explained
that it created the Roadless Rule exemption to cease
litigation,4 meet timber demand, and decrease socioeconomic
hardships on isolated Alaskan communities.
A. Ending the Alaska Litigation
The ROD’s preamble highlighted that the “roadless rule
has been the subject of a number of lawsuits in Federal
district courts in Idaho, Utah, North Dakota, Wyoming,
Alaska, and the District of Columbia.” 68 Fed. Reg. 75136.
The ROD explained that the district court of Wyoming had
even permanently enjoined implementation of the rule, telling
the USDA that it “must start over” with its roadless
rulemaking.

4

The dissent claims that we have “side-stepped the primary justification
that Alaska claims as the basis for the rule change: complying with the
operative statutes” including ANILCA and the Tongass Timber Reform
Act of 1990 (“TTRA”). We examine the agency’s reasons for
promulgating the ROD—not an intervener’s assertion made in litigation.
As the dissent points out, the ROD does not say that the USDA
promulgated the rule to comply with ANILCA or the TTRA. However,
what is determinative to establish the USDA’s reasons for the rule change
are the USDA’s statements in the ROD that it promulgated the rule to
remove the threat of litigation that sought to establish the roadless rule
violated ANILCA or the TTRA.

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The ROD detailed this ongoing litigation because, when
it started roadless rulemaking, it had decided it would take
numerous factors into consideration, including litigation. The
ROD then drew on these facts and gave a detailed explanation
of the reason for change in the rule:
Why is USDA Going Forward With This
Rulemaking?
...
(3) litigation over the last two years. Given
t he great uncert ai n t y ab out t he
implementation of the roadless rule due to the
various lawsuits, the Department has decided
to adopt this final rule, initiated pursuant to
the settlement agreement with the State of
Alaska.
Id. at 75137–38. The USDA also explained that, “Given the
pending litigation, the [USDA] believes it is prudent to
proceed with a decision on temporarily exempting the
Tongass from prohibitions in the [R]oadless [R]ule.” Id. at
75142. Finally, the ROD concluded, “[f]or the reasons
identified in this preamble” the USDA decided to exempt the
Tongass from the Roadless Rule. Id. at 75144. These stated
reasons in the ROD’s preamble clearly and repeatedly
identify a reasoned explanation for the changed policy: a
strategy to attempt to end the constant and continuous
litigation stemming from the 2001 Roadless Rule.
Simply promulgating a rule pursuant to a settlement is not
necessarily “arbitrary or capricious.” We can “reasonably
discern” that the USDA became worried about the amount of

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resources it was expending to defend the Roadless Rule and
that the Roadless Rule might5 violate ANILCA. Thus, the
USDA promulgated the Roadless Rule exemption to conserve
resources and avoid a potential negative litigation outcome
(i.e., a final binding decision from a circuit court permanently
enjoining the application of the Roadless Rule). By
promulgating the Roadless Rule exemption, the USDA
stopped litigation that may have resulted in a court-ordered
permanent injunction against the application of the Roadless
Rule in several states. The USDA’s ROD, on the other hand,
is a solution that does not “foreclose options regarding future
rulemaking” and allows the Roadless Rule to continue to
exist in many other areas of Alaska and the country.
The district court held that the USDA’s rationale of
providing “legal certainty” was “implausible” because all the
temporary rule did was generate more litigation later and thus
prolong the uncertainty. But this is merely post hoc ergo
propter hoc analysis. Further, nowhere does the ROD state
that the purpose of the Roadless Rule exemption is to create
“legal certainty.” Of course, no settlement provides a “legal
certainty” of no future litigation, even as between the parties,

5

The settlement between the USDA and Alaska has boilerplate language
stating that by entering into the settlement agreement the USDA did not
agree with Alaska’s interpretation of ANILCA. This boilerplate is akin
to recitations in standard settlement agreements that payor does not
acknowledge liability simply by paying money to payee. But that
language is not very relevant to determining the agency’s reason for the
rule change; the settlement exists to end the litigation. As the ROD states,
the USDA promulgated the Roadless Rule exception to end litigation.
Actions speak louder than words.

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much less as to nonparties.6 The ROD states the purpose of
the exemption was to cease current on-going litigation that
was draining the USDA’s limited resources and which may
have resulted in a negative outcome, similar to the negative
outcome the USDA had experienced in Wyoming. The
settlement agreement agreed to by the USDA did end the
2001 litigation by the State of Alaska.
The dissent claims that promulgating the roadless rule to
end the Alaska and Tongass litigation is arbitrary and
capricious because the USDA had promulgated the 2001
Roadless Rule to reduce nation-wide litigation costs. Dissent
at 26–27. As is plain, it had not quite ended litigation, at least
in Idaho, North Dakota, Wyoming, Alaska, and the District of
Columbia. All of these lawsuits were prompted by the 2001
Roadless Rule; each action sought to invalidate it. So, as the
Supreme Court has instructed, an agency can change its
policy. Fox Television, 556 U.S. at 515–19. The ROD states,
“The Wyoming District Court’s setting aside of the roadless
rule with the admonition that the Department ‘must start
over’ represents” a changed circumstance warranting the
ROD.7 68 Fed. Reg. at 75144. In the face of such instruction
by a federal court it is reasonable for an agency to re-think its

6

Just ask a circuit judge whether he or she ever sees an appeal of a
sentence arrived at in a plea agreement.
7

Beyond litigation, the USDA also gave another detailed explanation of
why it abandoned its 2001 decision that nation-wide regulation was
preferable. The USDA decided that “given factors unique to Southeast
Alaska, “the socioeconomic costs to local communities of applying the
roadless rule’s prohibitions to the Tongass . . . warrant[s] treating the
Tongass differently from the national forests outside Alaska.”.” 68 Fed.
Reg. at 75139.

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rule and, as the dissent characterizes it, “bow[] to pressure.”8
Dissent at 27.
Further, our district court examined the USDA’s decision,
and this litigation, retrospectively. The dissent makes this
mistake as well.9 The dissent seems to imply that the USDA
did not need to end litigation because it turned out well for
the USDA in Wyoming, eight years after the Alaskan
settlement was made. Dissent at 20 (citing Wyoming v.
USDA, 661 F.3d 1209, 1272 (10th Cir. 2011) for the
proposition that the Tenth Circuit had upheld the 2001
Roadless Rule). The dissent later argues that the ROD
created more litigation than it resolved. Dissent at 25–26
(citing a 2005 regulation and a 2006 case). But such an
analysis second guesses the USDA’s decision based on 20/20
hindsight. Agencies are not soothsayers, and litigation is an
uncertain art. These post-settlement results on appeal and
new cases occurred two-to-eight years after the USDA
promulgated the ROD. Absent any showing of corruption,
we must presume the government was acting in good faith to
avoid further negative outcomes such as the unreversed
Wyoming district court judgment telling the USDA to start
over.
With the help of that 20/20 hindsight it is debatable
whether the USDA was correct in choosing to settle the

8

Surely the dissent does not mean to suggest that promulgating a rule in
light of a federal district court’s order is an arbitrary and capricious act
of “bowing to pressure.”
9

Ironically, the dissent criticizes the USDA’s reason of promulgating
the ROD to settle litigation based on hindsight and its reason of meeting
timber demand (discussed infra part § III.B) based on too much foresight.

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Alaska lawsuit in the way it did and to think that such a
settlement would remove legal uncertainty may be debatable.
But whether the USDA was correct in its prediction of what
the future might bring is not the correct question; it is
important to apply the correct standard of review to the ROD.
This court’s duty is not to determine whether the exemption
was the best or correct way to avoid litigation, or even
whether the litigation should be ended, but merely to decide
whether such litigation-ending policy is permissible and “the
agency believe[d] it to be better.” Fox Television, 556 U.S.
at 515. In 2003, the USDA was faced with Alaska’s lawsuit
and the District Court of Wyoming’s ruling and could not
predict what future litigation would bring. The USDA’s
actions in settling the lawsuit and its reasoned explanation in
the ROD supports the finding that the USDA believed that
promulgating the Tongass exception would decrease litigation
over the Roadless Rule. Under Fox Television’s deferential
standard, the USDA’s ROD is not “arbitrary and capricious.”
B. Timber Demand
The USDA also explained that the Roadless Rule
exception was being promulgated to increase timber
production to meet predicted future demand. The agency
decided that while 2001 timber demand could be satisfied
with the Roadless Rule in effect, the Roadless Rule, if
continued, would result in unacceptable consequences. The
ROD states that,
The last three years represent a significant
aberration from historical harvest levels. The
1980–2002 average harvest was 269 MMBF,
and in no year prior to 2001 did the harvest
level fall below 100 MMBF. . . . In light of

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this historical performance, the 124 MMFB
low market estimate is not an unreasonable
expectation for the coming decade,
particularly if the current slump is merely a
cyclical downturn.
68 Fed. Reg. at 75141. Thus, the USDA examined historical
averages spanning twenty-two years, looked at the last three
years of low demand data as a significant aberration, and
determined that a “low market” historical estimate was a
valid prediction of the future. The USDA has recognized
expertise and discretion in predicting timber demand. See
Friends of the Bow v. Thompson, 124 F.3d 1210, 1219 (10th
Cir. 1997) (Forest Service could discount study with technical
defects based on its “substantial expertise” on the “relevant
issues” of timber demand); Se. Conference v. Vilsack,
684 F. Supp. 2d 135, 146 (D.D.C. 2010) (“The Forest Service
has discretion to make predictions of market demand” for
timber.). It is certainly reasonable for the agency to
determine that a higher market estimate from twenty-two
years of data is preferable to a lower market estimate based
upon demand in a short cyclical downturn, even for a “shortterm”10 rule. The economy could return to pre-downturn
figures even in a short time span.11 As the Supreme Court has
instructed, we defer to agency expertise and should not
10

The 2003 Roadless Rule exemption does not have an “expiration
date.” The ROD states the exemption will last until a final rule is
promulgated, however long that may take. As yet, no final rule has been
promulgated. Thus this “short-term” rule has lasted over a decade.
11

In fact, as soon as 2002 the State of Alaska was selling timber in
quantities above its projected harvest—and at what the State of Alaska
claims is an unsustainable level—to help bridge the gap between national
forest harvest and local industry needs.

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“substitute [our] judgment for that of the agency.” Fox
Television, 556 U.S. at 513. Further, we do not have to
determine whether the USDA chose the best method for
predicting demand so long as the method is neither arbitrary
nor capricious. Id. at 515; 5 U.S.C. § 706(2)(A).
The plaintiffs argue that using the low market scenario of
124 MMBF appears far too optimistic in light of the
depressed demand from 2001 to 2003, and the dissent attacks
the USDA’s decision as “speculation.” Dissent at 30. But we
do not require agencies to be constant pessimists that may not
promulgate a future rule—even a “short-term” future
rule—based upon the opinion that the economy will improve
and demand for timber will rise. Further, it is reasonable for
the USDA to decide that even a potentially “short-term” rule
could last long enough for the economy to make a marked
improvement, which would result in rapidly changing nearterm demand. Promulgating a rule that is meant to last at
least several years on the basis of extensive historical
averages and increased economic experience from the years
2001–2003 is not “arbitrary and capricious.”
C. Socioeconomic Hardships
Another reason for the USDA’s promulgation of the ROD
was because of its appreciation of the socioeconomic
hardships created by the Roadless Rule.12
12

The dissent states that one of the reasons the USDA went forward
with the rule was “roadless values” and such a reason is also arbitrary and
capricious. Dissent at 24–25. With respect, that is a misreading of the
ROD. The USDA weighted roadless values in the ROD. But in its
explicit statement “Why is the USDA Going Forward With This
Rulemaking?”, the USDA never stated it was promulgating the rule
because of roadless values. Instead, the ROD weighed roadless values as

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The USDA’s ROD explains that “impacts of the roadless
rule on local communities in the Tongass are particularly
serious. Of the 32 communities in the region, 29 are
unconnected to the nation’s highway system. Most are
surrounded by marine waters and undeveloped National
Forest System land.” 68 Fed. Reg. at 75139. The Roadless
Rule would condemn these communities to continued
isolation. Recognizing these unique circumstances, “the
abundance of [other Tongass] roadless values,” and “the
socioeconomic costs to local communities of applying the
roadless rule’s prohibitions to the Tongass, all warrant
treating the Tongass differently from the national forests
outside of Alaska.” Id. The ROD states that this conclusion
is consistent with the extensive 1997 Tongass Forest Plan.
This is a reasoned explanation based on observable conditions
and the USDA’s expertise. It may not be the decision the
dissent would make, but it is not arbitrary and capricious.
The dissent argues that the ROD is arbitrary and
capricious because the ROD was a temporary rule based on
long-term predictions and did not identify any new facts to
justify a change in policy. Dissent at 20–21. But as
discussed above, it was not arbitrary and capricious for the
USDA to use long-term, rather than short-term, data to
promulgate a ROD, the expiration date of which was, and is,
unknown. Further, as also discussed above, there was a
change that forced the USDA to re-examine prior information

a reason for not exempting the Tongass from the 2001 Roadless Rule
against reasons for doing so, and found the roadless values in the Tongass
so abundant as not to require further protection. However, if “roadless
values” is an independent reason for promulgating the ROD, then it is well
within the discretion and expertise of the USDA to determine whether
roadless values are abundant or not, even without the 2001 Roadless Rule.

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and request new comments—changed legal circumstances
caused by pending litigation and a different economic
outlook. The USDA reexamined its prior policy and used its
expertise to decide the socioeconomic hardships the 2001
Roadless Rule put on the unique and isolated communities of
Southeast Alaska were no longer acceptable. This evaluation
was not arbitrary and capricious, and the dissent cannot use
the fact that the USDA had a prior policy as a reason to make
it so. See Fox Television, 556 U.S. at 519 (“the fact that an
agency had a prior stance does not alone prevent it from
changing its view or create a higher hurdle for doing so”).
IV. Conclusion
The USDA’s reasons for promulgating the 2003 ROD are
neither arbitrary nor capricious. The agency acknowledges
that it has changed its previous policy of not exempting the
Tongass from the Roadless Rule, and it has given reasoned
explanations for the change based on litigation, changes in
economic predictions, and previously found socioeconomic
costs.
We hold that all of the USDA’s reasons are acceptable
under the APA. However, even had we found that some of
the USDA’s reasons were arbitrary and capricious, our scope
of review requires affirmance if any of the reasons given are
not arbitrary and capricious. See Bowman Transp., Inc. v.
Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974)
(reversing the district court’s holding that an agency decision
was arbitrary and capricious while agreeing with the district

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court’s analysis as to one of the agency’s reasons as being, in
fact, arbitrary and capricious).13
The USDA’s reasons for the exemption are entirely
rational, and the ROD should be upheld. Because the district
court decided the USDA’s reasons for exempting the Tongass
from the Roadless Rule were arbitrary and capricious, it did
not reach the question whether the USDA should have
performed a Supplemental Environmental Impact Statement.

13
In Bowman, motor carriers filed applications with the Interstate
Commerce Commission (“Commission”) to conduct general commodities
operations between points in the United States. Bowman, 419 U.S. at 283.
The applicants submitted evidence that the applicants’ service was
required for public convenience, and the existing carriers submitted
evidence that the existing carriers’ service was satisfactory and no new
carriers were needed. Id. at 285. The Commission granted three of the
applications. Id. at 283. The Commission found that the existing carriers’
evidence did not rebut the applicants’ evidence that more carriers were
needed because the existing carriers’ evidence (1) related to short periods
of time or specific shippers and (2) the studies represented service
provided by the existing carriers after the Commission had noticed the
hearing. Id. at 287. The existing carriers brought an action in the district
court to suspend, enjoin, and annul the order as arbitrary and capricious.
Id. at 283. A three-judge district court invalidated the order as arbitrary
and capricious. Id. The district court held that the Commission had
applied inconsistent standards because the evidence was based on the
same study periods. Id. at 287. On direct appeal, the Supreme Court
reversed and remanded. Id. at 284. The Supreme Court agreed with the
district court’s conclusion of arbitrary and capriciousness as to the
Commission’s first reason and found there was no basis for the
Commission to distinguish the evidence based on the short time period
because all the evidence was based on short periods of time and particular
shippers. Id. at 288. Then the Supreme Court found that the
Commission’s second reason regarding the studies was a rational basis on
which to distinguish the evidence. Id. Therefore, the Supreme Court
upheld the Commission’s finding that the existing carriers did not rebut
the applicant’s evidence of fitness and public need for new carriers.

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Because we reverse the district court’s findings, we remand
the case to the district court to decide whether a Supplemental
Environmental Impact Statement is required in the first
instance.
REVERSED and REMANDED.

McKEOWN, Circuit Judge, dissenting:
I respectfully dissent. After extensive public comment, in
2001 the United States Department of Agriculture (“USDA”),
acting through the United States Forest Service, adopted the
Roadless Area Conservation Rule. Special Areas; Roadless
Area Conservation (“Roadless Rule” or “Rule”), 66 Fed. Reg.
3244, 3253 (Jan. 12, 2001) (to be codified at 36 C.F.R. pt.
294). The Rule specifically applied to Alaska’s Tongass
National Forest (the “Tongass”), which is by far the nation’s
largest forest. The Ninth Circuit reversed a preliminary
injunction enjoining the USDA from implementing the
Roadless Rule nationally, and the Tenth Circuit upheld the
Rule. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094,
1126 (9th Cir. 2002), partially abrogated on other grounds by
Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th
Cir. 2011); Wyoming v. USDA, 661 F.3d 1209, 1272 (10th
Cir. 2011).
In an about-face, the USDA decided in 2003 to
temporarily exempt the Tongass from the Roadless Rule,
pending the USDA’s adoption of a final, permanent rule,
which the agency never actually promulgated. Special Areas;
Roadless Area Conservation; Applicability to the Tongass
National Forest, Alaska (“Tongass Exemption”), 68 Fed. Reg.

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75,136 (Dec. 30, 2003) (to be codified at 36 C.F.R. pt. 294).
That monumental decision deserves greater scrutiny than the
majority gives it. Our precedent demands a “thorough,
probing, in-depth review” of the USDA’s decision, not a
cursory quick look. See Nat’l Ass’n of Home Builders v.
Norton, 340 F.3d 835, 841 (9th Cir. 2003). In an extensive,
well-reasoned decision, the district court held that the
Tongass Exemption is arbitrary and capricious. I agree.
Tellingly, the USDA did not appeal this decision, leaving
only the State of Alaska before us now.
The majority fails to adequately probe the record for a
reasoned justification for the USDA discarding its previous
position—adopted only two years earlier—to apply the
Roadless Rule to the Tongass. Of course agencies may
change their positions over time, and over administrations,
but they cannot completely reverse course lightly. Rather, the
USDA must have “good reasons” for the policy and it must
“believe[] it to be better.” FCC v. Fox Television Stations,
556 U.S. 502, 515 (2009); see id. at 515–16 (“[I]t is not that
further justification is demanded by the mere fact of policy
change; but that a reasoned explanation is needed for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.”). Contrary to the majority’s
contention, Maj. Op. at 7, where, as here, a “new policy rests
upon factual findings that contradict those which underlay its
prior policy,” the agency must “provide a more detailed
justification than what would suffice for a new policy created
on a blank slate.” Fox Television, 556 U.S. at 515. That
justification is missing here.
In assessing the USDA’s proffered reasons, the majority
entirely side-steps the main rationale that Alaska provides
for the rule change: complying with the operative statutes,

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the Alaska National Interest Lands Conservation Act of
1980 (“ANILCA”), 16 U.S.C. § 3101 et seq., and the
Tongass Timber Reform Act of 1990 (“TTRA”), 16 U.S.C.
§ 539d, which amended ANILCA. The reasons the majority
does provide—legal uncertainty, timber demand, and
socioeconomic hardships—are unsupported by the record and
thus are insufficient to uphold the USDA’s decision.
I would affirm the district court’s decision because the
administrative record does not support the reasons for the rule
change that the USDA gave in its Tongass Exemption Record
of Decision (“ROD”). See Tongass Exemption, 68 Fed. Reg.
75136; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“It is
well-established that an agency’s action must be upheld, if at
all, on the basis articulated by the agency itself.”).
I. THE USDA DID NOT REST ITS RULE CHANGE ON
COMPLIANCE WITH ANILCA AND TTRA
Alaska principally argues that, in viewing the ROD as a
whole, the “USDA’s primary legal concern in pursuing this
rulemaking was to comply” with ANILCA and TTRA. The
majority’s analysis omits this issue entirely, stating without
further discussion that applying the Roadless Rule to the
Tongass “might violate ANILCA.”1 Maj. Op. at 10–11.

1
The majority dismisses the need to explore this argument further
because it was presented by Alaska, not the agency that promulgated the
decision on review. Maj. Op. at 9, n.4. Yet the USDA is not before us
now, and this is the key argument made on appeal by Alaska, which is
defending the Tongass Exemption.

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The ROD provides no support for Alaska’s proposition
or the majority’s conjecture. In initially adopting the
Roadless Rule, the USDA took the position that such a rule
would not violate ANILCA and TTRA. As Alaska
acknowledges, in the ROD the “USDA did not explicitly
reverse its legal conclusion about whether applying the
Roadless Rule to the Tongass violates ANILCA or TTRA.”
In fact, the USDA neither explicitly nor implicitly
changed its position on complying with these statutes. The
ROD makes no reference to ANILCA and TTRA as a basis
for the USDA’s decision. Rather, the ROD merely recounts
the factual history of the USDA’s settlement in Alaska’s
earlier legal dispute, stating: “The Alaska lawsuit alleged that
USDA violated ANILCA by applying the requirements of the
roadless rule to Alaska’s national forests. USDA settled the
lawsuit by agreeing to publish a proposed rule which, if
adopted, would temporarily exempt the Tongass from the
application of the roadless rule . . . .” Tongass Exemption,
68 Fed. Reg. at, 75,136 (emphasis added). Even the
settlement agreement explicitly provided that it “shall not be
evidence of any agreement by any party to any allegations
raised by any other party in the case . . . .”
In responding to public comments on the import of
ANILCA, the ROD explained that the statute, as amended by
TTRA, should allow for considerations other than timber
demand. Tongass Exemption, 68 Fed. Reg. at 75,142. It
directed the Secretary of Agriculture to seek to provide a
supply of timber meeting market demand “consistent with
providing for the multiple use and sustained yield of all
renewable forest resources, and subject to appropriations,
other applicable laws, and the requirements of the National
Forest Management Act.” Id. The ROD stated that the

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USDA “considered carefully” the statutes and that the
Exemption was “consistent” with ANILCA. Id. But
significantly, the USDA did not state that the statute
mandated an exemption. Id.
Alaska has no basis to bootstrap its allegations from a
prior suit to impose a theory or obligation on the USDA that
the agency did not adopt or articulate. Yet this unsupported
statutory theory permeates Alaska’s entire argument on
appeal. Consequently, the district court correctly determined
that the ROD did not include compliance with ANILCA and
TTRA as an express rationale for the Tongass Exemption.
II. THE USDA’S JUSTIFICATIONS FOR THE RULE CHANGE
FALL SHORT
Beyond statutory compliance, Alaska argues that the
USDA provided four main reasons for the Tongass
Exemption: (i) legal uncertainty, (ii) timber demand,
(iii) socioeconomic costs, and (iv) roadless values.2 To
properly assess the ROD, we must ask whether—in light of
all the proffered justifications—the record supports the
USDA’s rationale for excluding the Tongass from the
Roadless Rule’s reach.
According to the ROD, the USDA in part adopted the
Tongass Exemption because it “best implement[ed] the letter

2

Apart from the four main justifications listed in the ROD, Alaska offers
a number of other reasons to justify the USDA’s position reversal,
including that the USDA never gave a full explanation for why it initially
applied the Roadless Rule to Alaska. Alaska’s effort falls flat, however,
because the USDA did not proffer these explanations and the record does
not support them.

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and spirit of congressional direction along with public values,
in light of the abundance of roadless values on the Tongass,
the protection of roadless values already included in the
Tongass Forest Plan, and the socioeconomic costs to local
communities of applying the roadless rule’s prohibitions.”
Tongass Exemption, 68 Fed. Reg. at 75,142. The record
contradicts the USDA’s rationale for finding an exemption
necessary or believing it to be the “best” option in light of
legal uncertainty, timber demand, socioeconomic costs, and
roadless values.
A. LEGAL UNCERTAINTY
The ROD stated that the Tongass Exemption would
reduce the “great uncertainty about the implementation of the
roadless rule due to the various lawsuits.” Tongass
Exemption, 68 Fed. Reg. at 75,138. The USDA’s stated aim
was not to “end[] the Alaska litigation,” as the majority
asserts, see Maj. Op. at 9, but to mitigate legal uncertainty.
The district court’s conclusion captures the disingenuity of
the USDA’s explanation and the majority’s uncritical
acceptance of its rationale: “In light of the fact that the
Tongass Exemption was promulgated as a temporary
exemption and the Forest Service agreed to engage in further
rulemaking addressing the Tongass and Chugach in a ‘timely
manner,’ the USDA’s rationale that adoption of the
temporary Tongass exemption would provide legal certainty
is implausible.”
Unsurprisingly, the temporary rule and the attempted
repeal of the Roadless Rule generated more litigation and
prolonged the legal uncertainty—a foreseeable consequence
of promulgating a permanent rule, granting a temporary
exemption, and then attempting to repeal the permanent rule.

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See Special Areas; State Petitions for Inventoried Roadless
Management, 70 Fed. Reg. 25,654 (May 13, 2005) (to be
codified at 36 C.F.R. pt. 294) (repealing the Roadless Rule
nationwide in favor of a “State petitions” process); California
ex rel. Lockyer v. USDA, 459 F. Supp. 2d 874, 909, 912 (N.D.
Cal. 2006) (striking down the repeal for violating the National
Environmental Policy Act and the Endangered Species Act).
Critical here is not that additional litigation ultimately ensued,
but that a temporary change was unlikely to address the legal
uncertainty surrounding the Roadless Rule’s implementation
when the USDA reversed course. That the rule change was
“initiated pursuant to the settlement agreement with the State
of Alaska,” as the majority emphasizes, does nothing to
support a claim that the temporary change would reduce this
uncertainty. See Maj. Op. at 10. In the ROD, the USDA
even acknowledged that the temporary rule would not
“foreclose options regarding the future rulemaking” for the
permanent statewide rule, Tongass Exemption, 68 Fed. Reg.
at 75138, making clear that it viewed the temporary rule as
just that.
Before changing its position, the USDA determined that
maintaining the Roadless Rule in the Tongass would lower
lawsuit-related costs. The USDA’s 2000 final environmental
impact statement (“FEIS”) stated that the Roadless Rule was
“needed” in part because of “[n]ational concern over roadless
area management continu[ing] to generate controversy,
including costly and time-consuming appeals and litigation”
from proposals to develop the roadless areas. The FEIS
concluded that the selected “Tongass Not Exempt” alternative
would result in the “[g]reatest savings in appeals and
litigation costs.” Similarly, in 2001 the USDA “decided that
the best means to reduce this conflict [wa]s through a national

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level rule,” i.e. the Roadless Rule. Roadless Rule, 66 Fed.
Reg. at 3,253.
The agency then completely reversed its position in 2003,
stating without explanation that the Tongass Exemption
would reduce legal uncertainty. The USDA did not address
the predicted increase in litigation costs, nor did it
acknowledge that carving out the Tongass from the Roadless
Rule’s reach likely would set off another litigation firestorm.
The USDA failed to provide a “more detailed justification”
for this blatant internal inconsistency and reversal of position,
and no rationale that the USDA articulated suggests that it
had a basis to believe at the time that a temporary exemption
would create greater legal certainty. See Fox Television,
556 U.S. at 515, 516. After advocating for a national rule to
bring uniform application, the USDA bowed to pressure to
exempt the Tongass and upended uniformity. The district
court rightly rejected the USDA’s legal uncertainty rationale
as “implausible.” The majority erroneously contends that this
determination constituted post hoc analysis, Maj. Op. at 11,
despite the district court’s clear examination of whether the
reasons the USDA provided when it implemented the rule
change logically supported the position reversal at that time.
B. TIMBER DEMAND AND TTRA
The second proffered rationale—that the USDA
promulgated the Tongass Exemption to meet predicted future
timber demand—also lacks support in the record. We have
recognized that “TTRA was written to amend ANILCA by
eliminating its timber supply mandate” and to make the goal
of meeting timber demand contingent on other additional
criteria. Alaska Wilderness Recreation & Tourism Ass’n v.
Morrison, 67 F.3d 723, 730–31 (9th Cir. 1995); see also

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16 U.S.C. § 539d(a) (subordinating the aim of meeting timber
demand to “appropriations, other applicable law, and the
requirements of the National Forest Management Act of
1976,” and “to the extent consistent with providing for the
multiple use and sustained yield of all renewable forest
resources”). Importantly, “TTRA envisions not an inflexible
harvest level, but a balancing of the market, the law, and
other uses, including preservation.” Alaska Wilderness
Recreation, 67 F.3d at 731.
Without mentioning TTRA or acknowledging that
Congress specifically crafted the statute to accommodate
competing goals, the majority states that the Tongass
Exemption “was being promulgated to increase timber
production to meet predicted future demand.” Maj. Op. at 14.
The ROD concluded that “the roadless rule prohibitions
operate as an unnecessary and complicating factor limiting
where timber harvesting may occur,” Tongass Exemption,
68 Fed. Reg. at 75141, but it did not explain why its cited
facts regarding the potential long-term variability of the
timber market supported a temporary exemption. The ROD
recognized that, according to FEIS projections, “50 million
board feet [(“MMBF”) of timber] could be harvested annually
in the developed areas along the existing road system in the
Tongass.” Id. at 75,140. The FEIS for the Roadless Rule
estimated in 2000 that this harvest would not support all of
the timber processing facilities in the region. Id. However,
as the ROD pointed out, the FEIS based these projections on
a long-term market demand estimate of 124 million board
feet that had proven several times greater than the actual
market demand of subsequent years: “[T]he low market
scenario [of 124 MMBF] appears optimistic in light of the 48
MMBF of Tongass National Forest timber harvested in 2001,
the 34 MMBF harvested in 2002, and the 51 MMBF

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harvested in 2003 . . . .” Id. at 75,141.3 In short, the facts in
the administrative record unequivocally showed a depressed
timber demand. The Roadless Rule decision concluded that
the available timber under contract provided “enough timber
volume to satisfy about 7 years of estimated market demand.”
Roadless Rule, 66 Fed. Reg. at 3,255. Based on the record,
the timber demand did not support the Tongass Exemption.
The agency failed to give adequate reasons for adopting
the temporary exemption, particularly given the USDA’s
acknowledgment that the intervening years had shown timber
demand was even lower than had been expected. It simply
stated that timber demand in recent years was below longterm historical averages and speculated that this level could
have been due to a mere cyclical downturn. This rationale
failed to take account of the FEIS’s explicit conclusion that
available timber was sufficient to meet near-term demand.4
Although the rationale that the majority proposes, that it
would be reasonable for the agency to employ long-range
data over short-term trends, may be plausible, see Maj. Op. at
15, the agency itself never proffered such a rationale or
otherwise provided an explanation for its evasive treatment of
the low timber demand. To reiterate, its use of timber
demand data need not be proven prescient with the benefit of
time. Where it fails is in providing logical support for the
3

Market forces, not the Roadless Rule, explain these levels, given that
the Roadless Rule did not go into effect in the Tongass due to various
injunctions, see Lockyer, 575 F.3d at 1006–07 (recounting history of legal
challenges to the Roadless Rule), and due to the Tongass Exemption.
4

During the 2003 rulemaking on the Tongass Exemption, the Forest
Service found that no significant factual developments arose since the
Roadless Rule that justified another EIS and accordingly relied on the
FEIS prepared for the Roadless Rule. 68 Fed. Reg. at 75141.

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rule change when it was made. Thus, the USDA’s long-range
speculation justifying a near-term solution is at odds with the
facts in the record.
C. SOCIOECONOMIC COSTS
The ROD’s discussion of the Exemption’s socioeconomic
impact on local communities in the Tongass, particularly with
respect to job losses and road and utility needs, is similarly
flawed. The ROD relied on the FEIS, which “estimated that
a total of approximately 900 jobs could be lost in the long run
in Southeast Alaska due to the application of the roadless
rule.” Tongass Exemption, 68 Fed. Reg. at 75137 (emphasis
added). The ROD’s use of this estimate was arbitrary and
capricious for two reasons. First, the estimate applied to
long-term job losses, and the ROD failed to relate it to the
short-term duration of the explicitly temporary Tongass
Exemption. Second, the ROD did not consider the dramatic
post-2000 decline in timber demand. The USDA based its
FEIS job loss estimate on the assumption that the Roadless
Rule would cause a reduction of 77 MMBF per year in timber
harvesting that no longer held true in 2003. Yet, as explained
above, between 2000 and 2003 timber harvests dropped
dramatically due only to market demand. The USDA failed
to account for these factual omissions, which the majority
may not backfill for the USDA now. See Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285
(1974) (“The court is not empowered to substitute its
judgment for that of the agency.” (internal quotation marks
omitted)); see Maj. Op. at 17–20. While the majority
emphasizes the socioeconomic costs imposed by the isolation
of local communities in the Tongass, see Maj. Op. at 16, the
USDA provides no explanation for how a temporary rule
change would alter the economic outlook for these

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communities. Because the record does not support the job
loss rationale provided in the ROD and because the USDA
did not take into account reduced timber demand and the
short-term nature of the rule change when it was adopted, the
district court correctly found the socioeconomic cost
justification arbitrary and capricious.
The record also belies the USDA’s position in the ROD
that the Roadless Rule would have significant negative
impacts on meeting road and utility needs in the Tongass.
The Roadless Rule maintained the Secretary of Agriculture’s
discretion to approve Federal Aid Highways, if the project
was “in the public interest,” or if it maintained the purpose of
the land and “no other reasonable and prudent alternative
exist[ed].”5 Roadless Rule, 66 Fed. Reg. at 3256. Regarding
state roads, the FEIS concluded in 2000 that “in the
reasonably foreseeable future, construction of State highways
through inventoried roadless areas in Alaska may not be an
issue,” because “none of the [proposed State] transportation
corridors identified in [the Tongass Land and Resource
Management Plan] have received serious local or State
support, and none are on any approved project lists.” The
ROD did not identify any new road proposals that suggested
a need for the Exemption.6 The USDA failed to explain why
road considerations warranted a temporary exemption given
the lack of any potential road construction on the horizon.
5

Even without the Roadless Rule, the Secretary’s decision to approve
such highways is discretionary. See 23 U.S.C. § 317(b).
6
The agency’s Supplemental Information Report (“SIR”) for the
Tongass Exemption specifically stated that “no new information has come
to light that would alter the expectations of major roads or transportation
corridors or associated economic impacts estimate[d] in the Roadless
[Rule] FEIS . . . .”

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Nor did the ROD explain the basis for the USDA’s new
position that the Roadless Rule would impact utility corridors
in southeastern Alaska. The Roadless Rule specifically
permits construction of utility lines, along with the necessary
vehicles and heavy motorized equipment. See Roadless Rule,
66 Fed. Reg. at 3,258, 3,272. The FEIS concluded that the
nationwide utility corridor impacts “would be minimal” and
it did not identify any impacts in southeastern Alaska. The
ROD’s reliance on utility needs is at odds with the evidence.
Moreover, as with its conclusion regarding road construction,
the USDA failed to explain in the ROD why a temporary
exemption was necessary when the agency could not point to
any utility projects that it might affect.
D. ROADLESS VALUES7
In the ROD, the USDA stated that it had “determined that,
at least in the short term, the roadless values on the Tongass
are sufficiently protected under the Tongass Forest Plan and
that the additional restrictions associated with the roadless
rule are not required.”8 Tongass Exemption, 68 Fed. Reg. at
75,138. This posture, a reversal of the position the USDA

7

Roadless values include high quality or undisturbed soil, water, and air;
sources of public drinking water; diversity of plant and animal
communities; habitat for threatened, endangered, and sensitive species;
varieties of dispersed recreation; reference landscapes; and traditional
cultural properties and sacred sites. Roadless Rule, 66 Fed. Reg. at 3,245.
8
The majority asserts that the USDA did not express roadless values as
a reason for the rule change. Maj. Op. at 16, n.12. However, as the
quoted ROD text reveals, the USDA did expressly factor into its rationale
its view that the roadless values were sufficiently protected. See also
Tongass Exemption, 68 Fed. Reg. at 75,142.

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adopted in the Roadless Rule,9 also is the kind of policy
judgment—on what is “enough” protection—that cannot be
readily deemed right or wrong. The agency’s ultimate policy
decision on whether sufficient roadless value protection
existed is necessarily linked to its reasoning on timber
demand, community impact, and other factors, which are
unsupported by the record. At bottom, the USDA failed to
provide a logical explanation for its complete position
reversal.
III.

THE USDA’S ERROR WAS NOT HARMLESS

In the rulemaking context, an error is “harmless only
where the agency’s mistake clearly had no bearing on the
procedure used or the substance of decision reached.”
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th
Cir. 1992). Several of the USDA’s key rationales underlying
the ROD “run[] counter to the evidence before the agency, or
. . . [are] so implausible that [they] could not be ascribed to a
difference in view or the product of agency expertise.”
Montana Wilderness Ass’n v. McAllister, 666 F.3d 549, 555
(9th Cir. 2011) (internal quotation marks omitted). The
USDA failed to account for relevant facts in the FEIS and the
SIR that plainly contradicted the substance of the ROD’s
conclusions. Therefore, the ROD cannot overcome the
harmless error hurdle.
I respectfully dissent.

9
The USDA’s position also expressly contradicts Ninth Circuit
precedent determining that “the Roadless Rule provide[s] greater
substantive protections to roadless areas than the individual forest plans
it superseded.” Lockyer, 575 F.3d at 1014 (citing Kootenai Tribe,
313 F.3d at 1110, 1124–25).