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9/4/2019
PoV: Exempt the Tongass from the Roadless Rule

By FRANK MURKOWSKI

It’s hardly surprising that Gov. Dunleavy and Alaska’s congressional delegation asked President Trump to restore the exemption for the Tongass National Forest from the Roadless Rule.

Every Alaska governor since the Roadless Rule was promulgated in 2001 has litigated its application to the Tongass and every congressional delegation member has asked whomever was president to exempt the Tongass from the Roadless Rule. Why? Because the stated justification for the Roadless Rule simply does not apply to the Tongass, as indicated among other things by the fact that the rule was applied to the Tongass after the NEPA process was complete.

It is hardly surprising that President Trump raised the issue with Secretary of Agriculture Sonny Perdue. Why? Because total exemption of the Tongass from the 2001 Roadless Rule has been U.S. Department of Agriculture policy since 2003 and remains so today. The request is that Secretary Perdue either implement that policy or explain why he is changing it.

The history

Eight days before the inauguration of President George W. Bush, the Clinton aAdministration promulgated the 2001 Roadless Rule that designated 58 million acres of the National Forests, including 9.4 million acres of the 16.9 million acre Tongass National Forest, as roadless areas. The Tongass is an area the size of the New York City to Washington corridor with very few roads.

The Clinton administration justified the national rule on the grounds that there was a need for a national-level “whole picture” review of national forest roadless areas because “Local management planning efforts may not always recognize the significance of inventoried roadless areas.” 66 Fed Reg. at 3246.

The Clinton administration applied this midnight rule to the Tongass after the NEPA process was complete and there was no longer an opportunity for comment, even though the Tongass did not fit the purpose and need for the 2001 Roadless Rule. This is because, unlike all other national forests, the Tongass already had undergone two congressional reviews (the Alaska National Interest Lands Conservation Act of 1980 and the Tongass Timber Reform Act of 1990, and a Washington office secretarial review in 1999 that collectively set aside over 6.6 million acres of Tongass roadless areas as wilderness and other restrictive land-use categories prior to promulgation of the Roadless Rule. The Roadless Rule’s purpose and need statement did not justify or explain why a fourth review of the Tongass roadless areas was needed to achieve the “national level whole picture”  objective of the Roadless Rule.

The impact

The combined effect of ANILCA, TTRA and roadless srea designations has been to deny access to roadless areas for renewable energy projects; to make mining exploration and development difficult as a practical matter; to inhibit transportation in Southeast Alaska; and to preclude access for timber harvest.

While “reasonable” access is not prohibited for mining in roadless areas, mining companies often need road access to get heavy equipment to a project site or to otherwise proceed with economically exploring and developing a mine or a hydro facility. (e.g. equipment is too large to be slung to a site by helicopter).

Road access to renewable energy projects (including geothermal to which road access is prohibited by the Roadless Rule) should be authorized. For example, renewable energy could be available to power mining exploration and/or mine development.

Roads for access for Alaska timber harvest are not allowed. The timber industry which supported 4,200 jobs in Southeast Alaska in 1992 is now reduced to one medium-sized sawmill and 300 jobs.

The 2003 exemption

For these reasons, Democratic Gov. Tony Knowles authorized Alaska’s attorney general to challenge the rule in court in 2001 in court. My administration settled the litigation with the Bush administration in 2003. The settlement required USDA to reconsider the application of the 2001 Roadless Rule to the Tongass. In so doing, USDA identified total exemption of the Tongass as the best alternative during the 2003 Rulemaking because the department has concluded that the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits because the Tongass Forest Plan adequately provides for the ecological sustainability of the Tongass.

Every facet of Southeast Alaska’s economy is important, and the potential adverse impacts from application of the Roadless Rule are not warranted, given the abundance of roadless areas and protections already afforded in the Tongass Forest Plan.

This policy determination has not been changed by USDA or overturned by a court. In 2009, environmental groups successfully challenged the process by which USDA had promulgated its 2003 Rule. USDA and the Department of Justice defended the total exemption policy for the Tongass but lost the case on procedural grounds in the Federal District Court in 2011. The state won on appeal in a 2–1 decision in the 9th Circuit, but then lost 6–5 again on these procedural grounds before an en banc panel of the 9th Circuit.

So, from 2003 until the present USDA policy has been total exemption of the Tongass from the Roadless Rule.

Conclusion

In January 2018, then independent Gov. Bill Walker petitioned the USDA for new rulemaking to implement USDA’s total exemption policy.  That rulemaking is ongoing.

For these reasons it only makes sense for Gov. Dunleavy and the congressional delegation to ask the pesident, and for the president to request, that USDA implement its existing policy of total exemption for the Tongass from the Roadless Rule.

Frank Murkoswki is a former U.S. senator and governor of the State of Alaska.