Alternative Reasoning: Why the Ninth Circuit Should Have Used NEPA in Setting Aside the Tongass Exemption

Abstract

After over a decade of controversy and litigation, the Ninth Circuit finally shielded the Tongass National Forest from road construction and timber harvest. In Organized Village of Kake v. U.S. Department of Agriculture, the court’s en banc panel struck down the Forest Service’s decision to exempt the Tongass from the extensive protections granted to all other national forests via the Roadless Rule. Though many welcomed the decision as an environmental victory, the heart of the Ninth Circuit’s analysis focused on the court’s interpretation of a procedural issue; the opinion sidestepped any discussion of substantive environmental law, despite the fact that the case would decide the fate of the nation’s largest, largely undeveloped, forest. This Note examines the court’s analysis, rooting the opinion in the history of the Forest Service as an agency with extensive discretion, and the relationship that agency has had with the Tongass and its timber. Given this history, this Note argues that the Ninth Circuit should have decided the case based on environmental law and not administrative procedure, ideally resulting in a clearer, more environmentally protective holding.