Notice & Comment

D.C. Circuit Review – Reviewed: A Moot Suit and a Big Announcement – In-Person Oral Arguments are Coming Back

The D.C. Circuit published only one opinion this week, resolving a long-running suit that had become moot. The Court also announced that it will reopen for in-person arguments on December 1, 2021. Court watchers can find the protocols here. Members of the general public won’t be allowed to attend in-person, but can watch arguments on the Court’s YouTube channel.

So what about that moot suit? In Alaska v. U.S. Dep’t of Agriculture, the D.C. Circuit dismissed the State of Alaska’s challenge to the Roadless Rule because litigation challenging a regulation becomes moot when the agency has rescinded the regulation. Applying this principle is “routine,” indeed, “so routine” that normally the Court would have applied it in an unpublished order. Judge Randolph wrote for the panel, which included Chief Judge Srinivasan and Judge Pillard.

The Roadless Rule has a long – and controversial – history. Promulgated in 2001, the Rule prohibits road construction (and reconstruction), as well as timber harvesting, in roadless areas in the National Forest System. Alaska has two national forests: the Tongass and the Chugach. The State has challenged the Rule twice in court, and also petitioned the Agriculture Department to exempt the Tongass National Forest from the Rule. In 2020, the Agriculture Department did just that

The Trump Administration’s decision to exempt the Tongass National Forest from the Rule was challenged by Alaska Native Tribes concerned to protect the homelands of the Tlingit, Haida, and Tsimshian peoples, as well as businesses and conservation groups. As Joel Jackson, Tribal President of the Organized Village of Kake put it, “[o]ur way of life depends on” the “protection of the Tongass National Forest.”

If Alaska got what it wanted in 2020, then why did it keep litigating? For two reasons, the State explained. First, elections have consequences, and one of the consequences of the 2020 election is that the Agriculture Department may reverse course on the Rule’s applicability. The Biden Administration, Alaska argued, is poised to reapply the Roadless Rule to the Tongass National Forest. All well and good, the D.C. Circuit reasoned, but Alaska must challenge the Biden Administration’s new regulation when and if it is promulgated. For now, the Court would not advise the Administration on how it should conduct notice-and-comment rulemaking regarding the Tongass.

Second, Alaska argued that the litigation remained live because of the Rule’s impacts upon the Chugach National Forest. Not so, the Court concluded. The State had not established any injury in fact related to the Chugach. Not even special solicitude under Massachusetts v. EPA, a subject that I’ve written about here and here, could save the case. At the summary judgment stage, “Alaska had to show actual harm – not merely allege it,” and that Alaska didn’t do.

Will this be the last word of the D.C. Circuit about the Roadless Rule? Don’t bet on it. Following the D.C. Circuit’s judgment, the Biden Administration announced that next week it will publish a proposed rule repealing the 2020 exemption. Senator Dan Sullivan of Alaska has called the Biden Administration’s decision a “continued assault on our state.” Of course, as the D.C. Circuit recognized, “[i]ntervening events, such as elections or changes in policy priorities, bearing on these processes are unpredictable.” New presidents, after all, can profoundly shape federal land management, and states stand ready to challenge those decisions.

Speaking of standing, I’ll conclude by saying that I very much enjoyed this week’s ABA Section of Administrative Law & Regulatory Practice’s 2021 Administrative Law Conference and the conversation with my fellow panelists on “The Shifting Sands of Standing Doctrine” panel. Many thanks to Linda Jellum for moderating, Kristin Hickman for convening the group, and to Jonathan Adler, Erin Murphy, and Dick Pierce, my fellow panelists. Notice & Comment bloggers were well represented on the panel and at the conference!

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