ORGANIZED VILLAGE OF KAKE; Thе 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, Alaska Forest Association, Inc., Intervenor-Defendant, and State of Alaska, Intervenor-Defendant-Appellant.
No. 11-35517.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc Dec. 16, 2014. Filed July 29, 2015.
795 F.3d 956
AFFIRMED.
Thomas S. Waldo (argued) and Eric P. Jorgensen, Earthjustice, Juneau, AK; Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for Plaintiffs-Appellees.
Julie A. Weis, Haglund Kelley Jones & Wilder LLP, Portland, OR, for Amicus Curiae Alaska Forest Association, Inc.
Opinion by Judge HURWITZ; Concurrence by Judge CHRISTEN; Dissent by Judge CALLAHAN; Dissent by Judge MILAN D. SMITH, JR.; Dissent by Judge KOZINSKI.
OPINION
HURWITZ, Circuit Judge:
In 2001, the United States Department of Agriculture promulgated the “Roadless Rule,” limiting road construction and timber harvesting in national forests. The Department expressly found that exempting the Tongass National Forest from this Rule “would risk the loss of important roadless area [ecological] values.” Just two years later, relying on the identical factual record compiled in 2001, the Deрartment reversed course, finding “[a]pplication of the roadless rule to the Tongass . . . unnecessary to maintain the roadless values.”
The issue in this case is whether the Department sufficiently explained this dramatically changed finding. Like the district court, we conclude that the Administrative Procedure Act requires a reasoned explanation for this change in course, and affirm the judgment below.
I.
A. The 2001 Roadless Rule
Approximately one-third of National Forest Service lands, some 58.5 million acres, is designated by the Department of Agriculture as inventoried roadless areas. See Special Areas; Roadless Area Conservation,
Inventoried roadless lands were historically managed through local- and forest-level plans.
Given the unique importance of the Tongass and the many competing interests in its use and management, it was not surprising that thousands of public comments concerning the proposed rule were received, or that the Department gave the Tongass special consideration.
With the recent closure of pulp mills and the ending of long-term timber sale contracts, the timber economy of Southeast Alaska is evolving to a competitive bid process. About two-thirds of the total timber harvest planned on the Tongass National Forest over the next 5 years is projected to come from inventoried roadless areas. If road construction were immediately prohibited in inventoried roadless areas, approximately 95 percent of the timber harvest within those areas would be eliminated.
* * *
Based on the analysis contained in the [Final Environmental Impact Statement], a decision to implement the rule on the Tongass National Forest is expected to cause additional adverse economic effects to some forest dependent communities ([Final Environmental Impact Statement] Vol. 1, 3-326 to 3-350). During the period of transition, an estimated 114 direct timber jobs and 182 total jobs would be affected. In the longer term, an additional 269 direct timber jobs and 431 total jobs may be lost in Southeast Alaska.
In light of these socio-economic concerns, the proposed Roadless Rule suggested the Tongass Deferred option. See Special Areas; Roadless Area Conservation,
B. The Roadless Rule Litigation
Although the Department intended the Roadless Rule to reduce litigation about forest management, see
The State of Alaska also challenged the Roadless Rule soon after its adoption. The State‘s complaint, filed in the District of Alaska in 2001, claimed that the promulgation of the Roadless Rule violated NEPA, the Administrative Procedure Act,
Four months after this court decided Kootenai, the Roadless Rule was permanently enjoined by a Wyoming district court that found the rule violated both NEPA and the Wilderness Act,
A year later, however, a California district court set aside the State Petitions Rule, finding it invalid under NEPA and the Endangered Species Act,
C. The Tongass Exemption
In return for Alaska‘s dismissal of its 2001 suit challenging the Roadless Rule, the Department agreed to publish (but not necessarily to adopt) a proposed rule, the “Tongass Exemption,” to “temporarily exempt the Tongass from the application of the roadless rule” as well as an advanced notice of proposed rulemaking to permаnently exempt the Tongass and another Alaska national forest from the Roadless Rule. See Special Areas; Roadless Area Conservation; Applicability to the Tongass National Forest, Alaska,
The 2003 ROD adopted the Tongass Exempt Alternative identified in the 2001 ROD, thus returning the Tongass to management through a local forest plan, the Tongass Forest Plan.
D. The Procedural History of This Case
In 2009, the Organized Village of Kake and others (collectively, the “Village“) filed this suit in the District of Alaska, alleging that the Tongass Exemption violated NEPA and the APA. See Organized Vill., 776 F. Supp. 2d at 967. The State of Alaska intervened as a party-defendant.
The Department declined to appeal. See Organized Vill. of Kake v. U.S. Dep‘t of Agric., 746 F.3d 970, 973 (9th Cir. 2014). Alaska, however, did appeal, and a divided three-judge panel of this court reversed the district court‘s APA ruling and remanded for consideration of the Village‘s NEPA claim.4 Id. at 973, 980. A majority of the nonrecused active judges on this court then voted to grant the Village‘s petition for rehearing en banc. See Organized Vill. of Kake v. U.S. Dep‘t of Agric., 765 F.3d 1117 (9th Cir. 2014).
II.
A. Jurisdiction
We begin, as we did in Kootenai, by examining “whether the intervenor[] may defend the government‘s alleged violations of the APA when the federal defendants have decided not to appeal.” 313 F.3d at 1107. Although the Village does not challenge Alaska‘s standing, that silence does not excuse us from determining whether we have appellate jurisdiction. United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966-67 (9th Cir. 2004).5
“[I]ntervenors are considered parties entitled . . . to seek review,” but “an intervenor‘s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.” Diamond v. Charles, 476 U.S. 54, 68 (1986). To establish Article III standing, a party must demonstrate “injury in fact,” causation, and redressability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). When the original defendant does not appeal, “the test is whether the intervenor‘s interests have been adversely affected by the judgment.” Didrickson v. U.S. Dep‘t of Interior, 982 F.2d 1332, 1338 (9th Cir. 1992).
Under the National Forest Receipts program, Alaska has a right to twenty-five percent of gross receipts of timber sales from national forests in the State. See
Our dissenting colleague argues that Article III standing is absent because “Congress did not intend to legislate standing” for a state under
in the APA context, that the test is not especially demanding. In that context we have often conspicuously included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff, and have said that the test forecloses suit only when a plaintiff‘s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue. That lenient approach is an appropriate means of preserving the flexibility of the APA‘s omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review. We have made clear, however, that the breadth of the zоne of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the generous review provisions of the APA may not do so for other purposes.
There can be no doubt that the Village more than amply met the forgiving “zone of interests” test when it instituted this APA action. That resolves the issue, because “[a]n intervenor‘s standing to pursue an appeal does not hinge upon whether the intervenor could have sued the party who prevailed in the district court.” Didrickson, 982 F.2d at 1338.6
Of course, Alaska must also have Article III standing. Thus, the only issue really before us is whether the judgment below threatens Alaska with an injury in fact that gives the State a “stake in defending enforcement” of the Tongass Exemp-
The 1978 Amendments require the Federal Government to turn over a fair share of the revenues of an OCS lease to the neighboring coastal State whenever the Federal Government and the State own adjoining portions of an OCS oil and gas pool. California thus has a direct financial stake in federal OCS leasing off the California coast. In alleging that the bidding systems currently used by the Secretary of the Interior are incapable of producing a fair market return, California clearly asserts the kind of distinct and palpable injury that is required for standing.
The royalties due California under the OCS are indistinguishable for Article III purposes from the fractional timber receipts due Alaska under the National Forest Receipts program. It is not disputed that reinstatement of the Roadless Rule in the Tongass will limit timbering and thereby reduce Alaska‘s statutory entitlement to fractional receipts. Alaska‘s claimed injury is thus precisely the same kind of “injury in fact” alleged by California with respect to the federal lease bidding system—loss of funds promised under federal law—and satisfies Article III‘s standing requirement.8
To be sure, Alaska and its government subdivisions have elected since 2001 to receive payments under the Secure Rural Schools and Community Self-Determination Act of 2000,
B. The APA claim
1. The APA Requirements for a Change of Agency Policy
The APA requires a court to “hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an аbuse of discretion, or otherwise not in accordance with law.”
The Supreme Court addressed the application of the APA to agency policy changes in FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). In Fox, the Court held that a policy change complies with the APA if the agency (1) displays “awareness that it is changing position,” (2) shows that “the new policy is permissible under the statute,” (3) “believes” the new policy is better, and (4) provides “good reasons” for the new policy, which, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” must include “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.”
Fox involved the FCC‘s decision to treat isolated uses of non-literal profanity in television broadcasts as indecency, a reversal of agency policy.
As a paradigm of the rule that a policy change violates the APA “if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so,” Justice Kennedy cited State Farm.
The central issue in this case is whether the 2003 ROD rests on factual findings contradicting those in the 2001 ROD, and thus must contain the “more substantial justification” or reasoned explanation mandated by Fox. Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 106 (2015). We conclude that the 2003 ROD falls short of these APA requirements.
2. The Tongass Exemption Violated the APA
After compiling a detailed factual record, the Department found in the 2001 ROD that “the long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities” from application of the Roadless Rule.
We also agree with Alaska that the 2003 ROD complies with three of the Fox requirements. First, the Department displayed “awareness that it is changing position.” Fox, 556 U.S. at 515. The 2003 ROD acknowledges that the Department rejected the Tongass Exemption in 2001 and recognizes that it is now “treating the Tongass differently.”
It is the Department‘s compliance with the fourth Fox requirement, that it give “good reasons” for adopting the new policy, upon which this case turns.
i. Socioeconomic Concerns
The 2003 ROD explains the Department‘s reversal of course as arising out of concern about “economic and social hardships that application of the [roadless] rule‘s prohibitions would cause in communities throughout Southeast Alaska.”
We do not questiоn that the Department was entitled in 2003 to give more weight to socioeconomic concerns than it had in 2001, even on precisely the same record. ”Fox makes clear that this kind of reevaluation is well within an agency‘s discretion.” Nat‘l Ass‘n of Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012). There was a change in presidential administrations just days after the Roadless Rule was promulgated in 2001. Elections have policy consequences. But, State Farm teaches that even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.
That is precisely what happened here. The 2003 ROD did not simply rebalance old facts to arrive at the new policy. Rather, it made factual findings directly contrary to the 2001 ROD and expressly relied on those findings to justify the policy change. The 2001 ROD explicitly found that wholly exempting the Tongass from the Roadless Rule and returning it to management under the Tongass Forest Plan “would risk the loss of important roadless area values,”
There can be no doubt that the 2003 finding was a critical underpinning of the Tongass Exemption. The 2003 ROD states that “[t]he 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.”
Thus, contrary to the contentions of both Alaska and dissenting colleagues, this is not a case in which the Department—or a new Executive—merely decided that it valued socioeconomic concerns more highly than environmental protection. Rather, the 2003 ROD rests on the express finding that the Tongass Forest Plan poses only “minor” risks to roadless values; this is a direct, and entirely unexplained, contradiction of the Department‘s finding in the 2001 ROD that continued forest management under precisely the same plan was unacceptable because it posed a high risk to the “extraordinary ecological values of the Tongass.”
The same result is mandated here. The 2003 ROD does not explain why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a “minor” one. The absence of a reasoned explanation for disregarding previous factual findings violates the APA. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.” Fox, 556 U.S. at 537 (Kennedy, J., concurring).
Of course, not every violation of the APA invalidates an agency action; rather, it is the burden of the opponent of the action to demonstrate than an error is prejudicial. Jicarilla Apache Nation v. U.S. Dep‘t of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010); see also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“This Court has said that the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” (internal quotation marks omitted)). But the required demonstration of prejudice is “not . . . a particularly onerous requirement.” Shinseki, 556 U.S. at 410. “If prejudice is obvious to the court, the party challenging agency action need not demonstrate anything further.” Jicarilla, 613 F.3d at 1121. Because the Department‘s 2003 finding that the threat to the environment from the Tongass Exemption had now become “minor” is the centerpiece of its policy change, the absence of a reasoned explanation for that new factual finding is not harmless error. See Cal. Wilderness Coal. v. U.S. Dep‘t of Energy, 631 F.3d 1072, 1091-92 (9th Cir. 2011) (applying Shinseki prejudice review to rulemaking). The Tongass Exemption therefore cannot stand.
ii. The Department‘s Other Rationales
Although we conclude that the Tongass Exemption is invalid because the Department failed to provide a reasoned explanation for contradicting the findings in the 2001 ROD, we also briefly consider the two other rationales offered by the Department. These rationales do not rest on factual findings contrary to the 2001 ROD, but neither withstands even the forgiving general requirement that the proffered reason for agency action not be “implausible.” State Farm, 463 U.S. at 43.
The second of the three reasons given by the Department in the 2003 ROD for promulgating the Tongass Exemption was “comments received on the proposed rule.”
C. Remedy
“Ordinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid.” Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (quoting Idaho Farm Bureau Fed‘n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995)); see
Alaska argues, however, that because the remedy for an invalid rule is not the reinstatement of another invalid rule, see Paulsen, 413 F.3d at 1008, the district court abused its discretion reinstating the Roadless Rule because that Rule had been enjoined by the Wyoming district court both when the Tongass Exemption was promulgated and when the judgment below was entered. But, wholly aside from the obvious conflict between the first Wyoming district court judgment and our later opinion in Lockyer, 575 F.3d 999, the argument is of no avail. The Tenth Circuit vacated both Wyoming district court injunctions. See Wyoming, 661 F.3d at 1272; Wyoming, 414 F.3d at 1214. The Roadless Rule therefore remains in effect and applies to the Tongass.
III.
We AFFIRM the judgment of the district court.
CHRISTEN, Circuit Judge, with whom THOMAS, Chief Circuit Judge, joins, concurring:
As the court‘s opinion recognizes, the Tongass is vitally important to Southeast Alaska. The court is equally express in acknowledging that changes of administration can indeed have consequences. Neither of these points is in dispute.
This case is unique because no new facts were presented between the time the Department of Agriculture adopted the Roadless Rule in 2001 and the time it reversed its decision in 2003. The outcome of the case pivots on the undeniable: the 2003
The dissent suggests that the 2003 decision was likely the result of a change in administrations, and argues that the agency, “following the policy instructions of the new president,” was free to weigh the same evidence and “simply conclude[] that the facts mandated different regulations than the previous administration.” Supreme Court authority directs otherwise. Under FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009), when a new policy is contradicted by an agency‘s previous factual findings, the law does not allow the agency to simply ignore the earlier findings. Id. Instead, the law requires that the agency provide a reasoned explanation for changing course and adopting a position contradicted by its previous findings.
In this case, the agency was unable to defend its flip-flop when the case was argued in the district court, and the agency chose not to participate in the appeal. Despite the efforts of the intervenor, the record and arguments presented to the district court support its decision, which we affirm today.
I write separately to voice my view that there is no indication the conscientious district court judge who first ruled in this case decided it based on his own views, and our court does not do so either. Judges do not have the expertise to manage national forests, but we are often called upon to decide whether a federal agency followed correct procedures. Whether or not they are reflected in the headlines, our rulings in environmental cases sometimes have the result of permitting resources to be extracted, e.g., Jones v. Nat‘l Marine Fisheries Serv., 741 F.3d 989 (9th Cir. 2013), roads to be constructed, e.g., Sierra Club v. BLM, 786 F.3d 1219 (9th Cir. 2015), forests to be logged, e.g., Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010), or forests to be thinned to manage the risk of fire, e.g., Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014). Other times, they do not. See, e.g., League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 767 (9th Cir. 2014) (enjoining logging project while Forest Service completed supplemental environmental impact statement). Regardless of the outcome, the court‘s aim is to fairly and impartially apply the law when we entertain such procedural challenges. Because in this case the Department of Agriculture did not follow the rule articulated by the Supreme Court in Fox, I join the majority in affirming the district court‘s decision.
CALLAHAN, Circuit Judge, dissenting:
The State of Alaska appeals the District Court for the District of Alaska‘s decision setting aside the Department of Agriculture‘s exemption of the Tongass National Forest from the Roadless Rule. The majority holds that Alaska has standing to appeal based on a statutory entitlement—
I.
This Court‘s jurisdiction is limited by Article III of the Constitution to “cases” and “controversies.” U.S. Const., Art. III, § 2. One element of the Constitution‘s case-or-controversy requirement is that a litigant must demonstrate standing to sue. Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 408 (2013). The standing requirement is built on separation-of-powers principles; it “serves to prevent the judicial process from being used to usurp the powers of the political branches.”
States generally may seek to bring suit in three capacities: (1) “proprietary suits,” in which states sue like private parties to remedy a concrete, particularized injury; (2) “sovereignty suits,” in which states, for example, seek adjudication of boundary or water rights; and (3) “parens patriae suits,” in which states sue on behalf of their citizens.1 Alfred L. Snapp & Son v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 600 (1982). To establish standing to sue in a proprietary capacity a State, like other litigants, must meet the following, familiar requirements:
First, the plaintiff must have suffered an “injury in fact“—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural or hypothetical.‘” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (footnote and citations omitted). Alaska‘s standing fails at the first step. Alaska has not demonstrated that reinstatement of the Roadless Rule‘s application to the Tongass has caused, or imminently will cause, the State an injury in fact. This is the “first and foremost” requirement of standing, Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997),
II.
Alaska advances three interests for purposes of demonstrating injury in fact: (1) a statutory interest in “the flow of monies to the State via the National Forest Receipts Program“; (2) a procedural interest based on the fact that the Department of Agriculture “initiated the rulemaking [that led to the Tongass exemption] pursuant to a settlement agreement with the State“; and (3) a parens patriae interest in Alaskan jobs that are “tied to timber.” None of these asserted harms satisfies Article III‘s injury-in-fact requirement.
A.
The majority finds that Alaska has standing because of “the effect of the Roadless Rule on Alaska‘s statutory entitlement” under the National Forest Receipts Program to twenty-five percent of gross receipts of timber sales from national forests in the State. Without the Tongass exemption, the majority explains, less timber will be harvested from the Tongass National Forest, thus potentially decreasing the amount of revenue that Alaska may receive under the National Forest Receipts Program. This statutory entitlement argument fails for at least two reasons.
1.
First, by creating a “statutory entitlement” to a share of federal timber revenue, Congress did not legislate the Article III standing of state and local governments to challenge federal natural resource management. The Supreme Court has strongly suggested that Congress cannot create injury in fact by legislative fiat—rather, a litigant must have suffered not only a violation of a legal right, but also a factual harm. See, e.g., Summers, 555 U.S. at 497; Lujan, 504 U.S. at 578. But it still may be that “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973). We, for example, have held that a statutory provision may provide a litigant with Article III standing where (1) Congress indicated that it intended for the provision to create a statutory right by creating a “private cause of action to enforce” the provision, (2) the litigant‘s statutory right has been infringed, and (3) the litigant has also suffered a concrete, “de facto injury,” albeit one that was previously inadequate at law. Robins v. Spokeo, Inc., 742 F.3d 409, 412-13 (9th Cir. 2014), cert. granted, 574 U.S. 1190 (2015).
Even if Congress may legislate standing in some circumstances, however, it has not done so here. There is no indication in
Moreover, even if Congress intended for § 500 to confer a statutory right to revenue, the invasion of which constitutes injury in fact, the right does not entitle Alaska to standing here because it has not been infringed. See Linda R.S., 410 U.S. at 617 n. 3 (“Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” (emphasis added)).3 Section 500 entitles Alaska to a share of revenue generated, not a right to have revenue generated. Alpine Cnty., Cal. v. United States, 417 F.3d 1366, 1368 (Fed. Cir. 2005) (there is “no duty to generate revenue” under the National Forest Receipts Program). Thus, Alaska‘s entitlement to a share of federal timber revenue has not been “invaded” by reinstatement of the Roadless Rule, even assuming that Alaska could show that the Roadless Rule will cause Alaska to receive less money from the federal government.
The majority conflates the injury-in-fact requirement with the zone-of-interest test in discussing Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). The zone-of-interest test asks whether an injury to a litigant that meets Article III‘s injury-in-fact requirement falls within the zone of interests protected by the substantive statute under which that litigant sues.
This appeal presents a different, critical, and jurisdictional question that is rooted in Article III‘s case-or-controversy requirement: whether a statutory provision that has not been invaded and does not include a cause of action endows a litigant who hаs
The prospective effects of the majority‘s decision are alarming. After today, states and many local governments presumably have standing, at least in the Ninth Circuit, to challenge federal actions and inactions that may result in, among other things, fewer trees being felled in federal forests, less oil, gas, and coal being extracted from federal mineral estates, fewer cattle being turned out on public lands, or even the devaluation of federal land. States and local communities get a share of revenue generated from these and many other federal resources.5 Surely by creating a revenue-sharing program tied to the development of natural resources Congress did not legislate state and municipal standing to challenge the pace and manner of the federal government‘s management of the nation‘s natural resources.
This case is not like Watt v. Energy Action Educational Foundation, 454 U.S. 151 (1981), the case on which the majority relies. In Watt, California had standing based on its interest in “assur[ing] a fair return for its resources,” specifically state-owned оil and gas reserves drained by drilling on adjoining federal leases.6
To be clear, the Supreme Court did not hold in Watt, as suggested by the majority, that the revenue sharing required by section 8(g) of the Outer Continental Shelf Lands Act,
2.
Second, when Alaska appealed in June of 2011, Alaska had not lost any National Forest Receipts Program money and did not even allege that it would receive less money from the federal government as a result of the district court‘s decision setting aside the Tongass exemption. This was no oversight. Rather, as Alaska acknowledged in its declаration in support of its motion to intervene, it has for many years elected to forego its share of federal timber revenue in order to receive much larger federal funding under the Secure Rural Schools Program. See Secure Rural Schools and Community Self-Determination Act of 2000,
Stated simply, Alaska cannot show us the money. Alaska has neither suffered a financial loss traceable to the district court‘s decision nor shown that such injury is “certainly impending.” Clapper, 133 S.Ct. at 1147. That Alaska might elect to receive payments under the National Forest Receipts Program at some unknown future date in the currently unforeseeable event that the Secure Rural Schools Program is discontinued is too “conjectural or hypothetical” and insufficiently “actual or imminent” of an injury to support Alaska‘s standing. Lujan, 504 U.S. at 560, 112 S.Ct. 2130; see also, e.g., Sturgeon, 768 F.3d at 1075 (“Alaska‘s claims regarding its sovereign and proprietary interests lack grounding in a demonstrated injury.... Any injury to Alaska‘s sovereign and proprietary interest is pure conjecture and thus insufficient to establish standing.“).11
Alaska‘s entitlement under
B.
Alaska also alleges injury to what it characterizes as a procedural interest in the Tongass exemption. Alaska states that the Department of Agriculture “initiated the rulemaking [that resulted in the Tongass exemption] pursuant to a settlement agreement with the State.” This interest is not an injury in fact. First, Alaska has not alleged that its rights under the settlement agreement have been violated. As the settlement agreement required, the Department of Agriculture initiated the rulemaking and published the resulting rule. Second, even assuming that Alaska has alleged a violation of a relevant procedural right, Alaska cannot establish its standing to appeal based on a procedural interest alone. It is well established that “deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo is insufficient....” Summers, 555 U.S. at 496, 129 S.Ct. 1142; see also Sturgeon, 768 F.3d at 1075. Thus, Alaska‘s asserted legal interests do not demonstrate an injury in fact.
C.
Without an injury of its own, Alaska attempts to invoke someone else‘s injury. Alaska asserts that it has standing because “Alaska jobs are tied to timber.” This general interest in the employment of its citizens is a parens patriae interest.12
Alaska lacks parens patriae standing in this case for another reason. Alaska has not shown, as it must, that directly interested private parties—Alaskans and companies interested in jobs tied to Tongass timber—could not represent themselves. See, e.g., Snapp, 458 U.S. at 607, 102 S.Ct. 3260 (“In order to maintain such an action, the State must articulate an interest apart from the interests of particular private parties....“); Sturgeon, 768 F.3d at 1075 n. 4; Oregon v. Legal Servs. Corp., 552 F.3d 965, 970-71 (9th Cir.2009). These groups are entirely capable of representing themselves. Indeed, the Alaska Forest Association, a trade association for the timber industry in Alaska, intervened in the district court but decided not to appeal. Alaska‘s interest in protecting the jobs of Alaskans and the bottom line of the timber industry is an insufficient parens patriae interest to support its standing to appeal.
Alaska has not satisfied the injury-in-fact requirement. Its alleged injuries fail to ensure that the decision to appeal has not been “placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests’ ” or party politics, rather than to remedy actual or imminent harm. Hollingsworth, 133 S.Ct. at 2663 (citing Diamond, 476 U.S. at 62, 106 S.Ct. 1697). This appeal should be dismissed for lack of jurisdiction.
III.
As the majority finds that this Court has jurisdiction and thus decides this appeal on the merits, I must reach the merits too. The same concern with the judiciary‘s limited role compels me to join Judge M. Smith‘s dissent on the merits. Congress in the Administrative Procedure Act did not authorize a judge, or even an en banc panel of judges, to set aside an agency decision because the reasons the agency proffered for the decision were not, from the viewpoint of the bench, “good” enough. Rather, an agency‘s decision must stand if it is not “arbitrary or capricious.”
Here, the Department of Agriculture met Fox‘s requirement by acknowledging that it was changing its mind. The Department also met the APA‘s requirements by explaining that the exemption would allow for a better balance between environmental preservation, road access, and timber availability. The balance the De
“Litigation over the last two years” was not, as the majority suggests, an extra-statutory weight that entered into the Department‘s “enormously complicated task of striking a balance among the many competing uses to which land can be put.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (addressing the Bureau of Land Management‘s similar statutory charge). Rather, litigation was part of what prompted the Department to consider striking a different balance.
The significance of the Tongass exemption‘s foreseeable environmental and socioeconomic impacts did enter into that balance, and were detailed by the Department in its Environmental Impact Statement (EIS) and discussed in its Record of Decision. The majority latches onto one word in setting aside the Department‘s decision. It faults the Department for calling the risk to roadless values—one of the many natural resources provided by the Tongass—“minor.” See 68 Fed.Reg. 75,136, 75,144 (Dec. 30, 2003). It is clear, however, that the Department was not tossing aside its analysis of the significance of environmental impacts set forth in the EIS. Instead, after further consideration, the Department found that the loss of some roadless values did not outweigh “the socioeconomic costs of applying the roadless rule‘s prohibitions to the Tongass.” Id. The Department‘s explanation of its balance was not arbitrary or capricious.
IV.
I would dismiss this case for lack of appellate jurisdiction. Stuck with the majority‘s finding that this Court has jurisdiction, I would reverse and remand.
M. SMITH, Circuit Judge, with whom KOZINSKI, TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges, join, dissenting:
Elections have legal consequences. When a political leader from one party becomes president of the United States after a president from another party has оccupied the White House for the previous term, the policies of the new president will occasionally clash with, and supplant, those of the previous president, often leading to changes in rules promulgated pursuant to the Administrative Procedure Act (APA),
This phenomenon is particularly common in the period between the last few months of an outgoing administration and the first few months of an incoming administration, as was the case here. Recent legal scholarship has shed light on the concept of “midnight regulations,” whereby, during their final period in office, outgoing administrations accelerate rulemaking and agency actions, which incoming administrations then attempt to stay and reverse. See Jack M. Beermann, Midnight Rules: A Reform Agenda, 2 Mich. J. Envtl. & Admin. L. 285 (2013); Jacob E. Gersen & Anne Joseph O‘Connell, Hiding in Plain Sight? Timing and Transparency in the Administrative State, 76 U. Chi. L.Rev. 1157, 1196 (2009); Anne Joseph O‘Connell, Agency Rulemaking and Political Transitions, 105 Nw. U.L.Rev. 471 (2011). For example, on President Obama‘s first day in office, Chief of Staff Rahm Emanuel issued a memo to the heads of federal agencies mandating that they stop the publication of regulations unless they obtained approval of the new administratiоn. See Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, the White House, to Heads of Executive Departments and Agencies (Jan. 20, 2009), in 74 Fed.Reg. 4435 (Jan. 26, 2009). On the first day of President George W. Bush‘s presidency, Chief of Staff Andrew Card similarly directed agencies to stop all regulatory notices. See Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, the White House, to Heads and Acting Heads of Executive Departments and Agencies (Jan. 20, 2001), in 66 Fed.Reg. 7702 (Jan. 24, 2001).
Inevitably, when the political pendulum swings and a different party takes control of the executive branch, the cycle begins anew. There is nothing improper about the political branches of the government carrying out such changes in policy. To the contrary, such policy changes are often how successful presidential candidates implement the very campaign promises that helped secure their election. That is simply the way the modern political process works.
On the other hand, when party policy positions clash, it is improper and unwise for members of the judiciary to decide which policy view is the better one, for such action inevitably throws the judiciary into the political maelstrom, diminishes its moral authority, and conflicts with the judicial role envisioned by the Founders. As the Supreme Court has cautioned, “[i]t is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.” Colegrove v. Green, 328 U.S. 549, 553-54, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), overruled on other grounds by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
This case involves a clash between the policies of the outgoing Clinton administration and those of the incoming George W. Bush administration. The two presidents viewed how certain aspects of the laws governing national forests should be implemented very differently. On October 13, 1999, President Clinton issued a memo to the Secretary of Agriculture, instructing him “to develop, and propose for public comment, regulations to provide appropriate long-term protection for most or all of [the] currently inventoried ‘roadless’ areas.” The United States Department of Agriculture (USDA) followed those instructions in promulgating the Roadless Area Conservation Rule, 66 Fed.Reg. 3244 (Jan. 12, 2001) (the Roadless Rule). In keeping with President Clinton‘s policies,
In November 2001, after President Bush took office and sought to implement his own policy preferences respecting national forests, the USDA began a process of “reevaluating its Roadless Area Conservation Rule.” The USDA believed that “the abundance of roadless values on the Tongass, the protection of roadless values included in the Tongass Forest Plan, 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.” Roadless Area Conservation; Applicability to the Tongass National Forest, Alaska, 68 Fed. Reg. 75,136, 75,139 (Dec. 30, 2003) (Tongass Exemption herein). It also found that “[t]he repercussions of delaying the project planning process regarding road building and timber harvest [in the Tongass], even for a relatively shоrt period, can have a significant effect on the amount of timber available for sale in the next year.” Slide Ridge Timber Sale Environmental Impact Statement, 66 Fed.Reg. 58710-01 (Nov. 23, 2001). The USDA ultimately modified the Clinton-era Roadless Rule due to, among other reasons, “(1) serious concerns about the previously disclosed economic and social hardships that application of the rule‘s prohibitions would cause in communities throughout Southeast Alaska, (2) comments received on the proposed rule, and (3) litigation over the last two years.” Tongass Exemption, 68 Fed. Reg. at 75,137.
While the APA requires a reasoned explanation for a change in policy, “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.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-15, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (internal citation and quotation marks omitted). The USDA followed President Bush‘s policy instructions when it amended the Roadless Rule in 2003, 68 Fed.Reg. 75,136 (Dec. 30, 2003), and the agency‘s explanation for its decision easily meets the requirements of Fox. Unfortunately, it appears that, contrary to the requirements of Fox, the majority has selected what it believes to be the better policy, and substituted its judgment for that of the agency, which was simply following the political judgments of the new administration. Accordingly, I respectfully dissent.
I. The USDA‘s 2003 Change in Policy
Without acknowledging that the factual findings in the 2003 Record of Decision (ROD) rest on different policy views than those in the 2001 ROD, the majority argues that “[t]he Tongass Exemption thus plainly ‘rests upon factual findings that contradict those which underlay [the agency‘s] prior policy.’ ” This conclusion is simply incorrect. The agency, following the policy instructions of the new president, weighed some of the facts in the existing record diffеrently than had the previous administration, and emphasized other facts in the record that the previous administration had not. Stated differently, the two administrations looked at some of the same facts, and reached different conclusions about the meaning of what they saw. The second administration simply concluded that the facts called for different regulations than those proposed by the previous administration.
Nor had the facts underlying the USDA‘s assessment of the socioeconomic impact of the Tongass Exemption changed meaningfully by 2003; the USDA simply prioritized different aspects of the same socioeconomic data that it had considered in 2000. In the original Roadless Rule, the USDA had found that “[c]ommunities with significant economic activities in these sectors could be adversely impacted. However, the effects on national social and economic systems are minor.... Nonе of the alternatives are likely to have measurable impacts compared to the broader social and economic conditions and trends observable at these scales, however the effects of the alternatives are not distributed evenly across the United States.” 66 Fed. Reg. at 3261. In the 2003 ROD, on the other hand, the USDA assigned greater importance to the adverse socioeconomic impact of the Roadless Rule: “This decision reflects the facts, as displayed in the FEIS for the roadless rule and the FEIS for the 1997 Tongass Forest Plan that roadless values are plentiful in the Tongass and are well protected by the Tongass Forest Plan. The minor risk of the loss of such values is outweighed by the more certain socioeconomic costs of applying the roadless rule‘s prohibitions to the Tongass. Imposing those costs on the local communities of Southeast Alaska is unwarranted.” 68 Fed.Reg. at 75,144. In 2003, then, the USDA concluded that it was important to give greater weight to some adverse socioeconomic effects than was done when the original Roadless Rule was promulgated.
Given the substantial similarity between the facts the USDA weighed in the 2003 ROD and those it weighed in the 2001 ROD, it is abundantly clear that the differences between the two are the result of a shift in policy. After analyzing essentially the same facts, the USDA changed policy course at the direction of the new president, prioritizing some outcomes over others. Fox fully envisions such policy changes. It directs courts to uphold regulations that result from such changes, even if the agency gives an explanation that is of “less than ideal clarity,” as long as “the agency‘s path may reasonably be discerned.” Fox, 556 U.S. at 513-14, 129 S.Ct. 1800 (internal quotation marks and citаtion omitted). That requirement is clearly met here.
II. The USDA Was Not Arbitrary and Capricious
The APA requires that we set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Accordingly, although the USDA only needed one good reason to change its policy, it had four independent ones, all of which are supported by the 2003 ROD: (1) resolving litigation by complying with federal statutes governing the Tongass, (2) satisfying demand for timber, (3) mitigating socioeconomic hardships caused by the Roadless Rule, and (4) promoting road and utility connections in the Tongass.
A. Litigation and Statutory Compliance
The USDA promulgated the exemption to the Roadless Rule in part to comply with statutes governing the Tongass and in response to lawsuits challenging the Roadless Rule. The Supreme Court has suggested that it is appropriate for an agency to engage in new rulemaking when litigation reveals new information. See Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (“Nor does it matter that the regulation was prompted by litigation, including this vеry suit.“). This is precisely what occurred here: A number of lawsuits filed against the USDA brought to light issues concerning potential conflicts between the Roadless Rule, the Alaska National Interest Lands Conservation Act (ANILCA),
We have previously concluded that ANILCA and TTRA require that the USDA balance multiple goals in the Tongass: “recreation, environmental protection, and timber harvest.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 808 & n. 22 (9th Cir.2005). The USDA‘s 2003 ROD clearly finds that the Tongass Exemption was meant to bring the Roadless Rule in line with the purposes of ANILCA and TTRA. The USDA noted that, under ANILCA, Congress placed 5.5 million acres of Tongass in permanent wilderness status and the designation of disposition of lands in the act “represent[s] a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition.” 68 Fed.Reg. at 75,142. The USDA also stated that TTRA requires it to ensure that enough timber is available to “meet[] the annual market demand for timber” and “meet[] the market demand from the forest for each planning cycle....” 68 Fed. Reg. at 75,140.
I do not suggest that ANILCA and TTRA explicitly forbid the USDA from applying the Roadless Rule to the Tongass. TTRA, for example, is “[s]ubject to appropriations, other applicable law, and the requirements of the National Forest Management Act....”
B. Timber Demand
Likewise, the USDA‘s determination that applying the Roadless Rule to the Tongass would have led to a timber shortage was not arbitrary and capricious. The majority fails to even acknowledge the agency‘s effort to promote timber production, a factor which, by itself, suffices to uphold the agency‘s 2003 rulemaking.
“A court generally must be ‘at its most deferential’ when reviewing scientific judgments and technical analyses within the agency‘s expertise.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir.2011) (citation omitted). The USDA calculated that the average annual timber harvest in the Tongass between 1980 and 2002 was 269 million board feet (MMBF), which was higher than usual. The USDA estimated that in the years following the Roadless Rule, demand for timber would fall, but that demand would still be at least 124 MMBF. The USDA found that if the Roadless Rule were applied to the Tongass, the maximum timber harvest would be 50 MMBF, which would create a shortage of around 75 MMBF. The agency concluded that exempting the Tongass from the Roadless Rule would allow infrastructure to be built and boost timber production to meet national demand. 68 Fed.Reg. at 75,141-42.
C. Socioeconomic Hardships
The USDA also revised the Roadless Rule because it reconsidered socioeconomic hardships caused by applying the rule to the Tongass. The majority fails to address this justification for the Tongass Exemption, which is yet another independent basis on which to uphold the agency‘s 2003 rulemaking.
D. Road and Utility Connections
Finally, the USDA promulgated the Tongass Exemption to encourage road and utility construction in the Tongass, another independent factor ignored by the majority that justifies the agency‘s action. Such infrastructure helps the timber industry and supports isolated communities in the national forest. The USDA found, for example, that “[t]he 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 75,139.
E. Notice and Comment
Several of the arguments raised by Organized Village of Kake (the Village), and now affirmed by the majority, are policy-based. By overturning the Tongass Exemption, the majority conflates the process of judicial review with the agency‘s review of factual and policy questions. See
The Village questiоns the merits of the USDA‘s decision to exempt the Tongass by raising what are primarily policy issues that were addressed by the notice and comment process. The USDA carefully considered comments it received before promulgating the 2003 exemption. E.g., 68 Fed.Reg. at 75,138 (“The agency received comments regarding the effects the proposed exemption from the roadless rule would have on the natural resources of the Tongass. Some respondents expressed their view that 70 percent of the highest volume timber stands in Southeast Alaska have been harvested, and exempting the Tongass from the roadless rule would lead to the harvest of most or all of the remainder of such stands.“); 68 Fed.Reg. 41,864, 41,865 (July 15, 2003) (“All interested parties are encouraged to express their views in response to this request for public comment on the following question: Should any exemption from the applicability of the roadless rule to the Tongass National Forest be made permanent and also apply to the Chugach National Forest?“). As long as the agency‘s decision has clear factual support in the record, as is the case here, it is not our place to substitute our policy preferences for those of the agency. See Fox, 556 U.S. at 513-14, 129 S.Ct. 1800.
III. National Environmental Policy Act (NEPA) Claims
The Village claims that the USDA violated NEPA by neglecting to prepare a new environmental impact statement and by failing to consider alternatives to exempting the Tongass. The district court
I respectfully dissent.
KOZINSKI, Circuit Judge, dissenting:
I join Judge M. Smith‘s masterful dissent in full. I write only to note the absurdity that we are in the home stretch of the Obama administration аnd still litigating the validity of policy changes implemented at the start of the George W. Bush administration. How can a President with a mere four or eight years in office hope to accomplish any meaningful policy change—as the voters have a right to expect when they elect a new President—if he enters the White House tethered by thousands of Lilliputian ropes of administrative procedure? The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites the type of judicial policymaking that Judge Smith points out. This is just one of the ways we as a nation have become less a democracy and more an oligarchy governed by a cadre of black-robed mandarins. I seriously doubt this is what the Founding Fathers had in mind and worry about the future of the Republic if the political branches fail to take back the power the Constitution properly assigns to them.
v.
Sid Edward WILLIS, Jr., Defendant-Appellant.
Nos. 13-30376, 13-30377.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 4, 2015.
Filed July 29, 2015.
United States of America, Plaintiff-Appellee,
v.
Sid Edward Willis, Jr., Defendant-Appellant.