May a regulatory agency change its mind? On July 29, a splintered U.S. Court of Appeals for the Ninth Circuit, sitting en banc, addressed that issue in Organized Village of Kake v. U.S. Department of Agriculture, 746 F.3d 970 (2014). This is a particularly relevant decision as we come to the end of the Obama administration. It is, however, not timely, addressing as it does a regulatory decision made by the outgoing Clinton administration in 2001 and reversed by the incoming Bush administration in 2003, and then no longer defended by the Obama administration.
The Clinton administration sought to protect “roadless values” in the national forests by limiting or prohibiting roads and other disruptive activities in inventoried roadless areas within the forests. Prior to adoption of the national rule, each national forest would protect roadless values in inventoried roadless areas through its forest plan. The dispute here was whether the Tongass National Forest in Alaska ought to be exempted from the national roadless rule and its roadless areas managed under the Tongass Forest Plan. The Clinton administration decided not to exempt the Tongass in 2001. The Bush administration decided the other way in 2003. Both decisions used the same administrative record.
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