ORGANIZED VILLAGE OF KAKE; THE 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,
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
Argued and Submitted, Anchorage, Alaska August 30, 2012.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Alaska. D.C. No. 1:09-cv-00023-JWS. John W. Sedwick, District Judge, Presiding.
Thomas E. Lenhart, Assistant Attorney General, Office of the Alaska Attorney General, Juneau, Alaska, for Intervenor-Defendant--Appellant.
Nathaniel S.W. Lawrence, Senior Attorney, Natural Resources Defense Council, Olympia, Washington; Thomas S. Waldo, Earthjustice, Juneau, Alaska, for Plaintiffs-Appellees.
Katherine Wade Hazard, Attorney, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants.
Julie A. Weis, Haglund Kelley Jones & Wilder, LLP, Portland, Oregon, for Intervenor-Defendant and Amicus Curiae.
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Carlos T. Bea, Circuit Judges.
BEA, Circuit Judge:
When a federal agency decides to change its rules to allow roads to be built through a federal forest it had previously ruled be preserved roadless, what reasons are sufficient to justify that change?
The United States Department of Agriculture (" USDA" ) decided to change its rules to allow roads to be built through an Alaskan forest the USDA had previously ruled should be preserved roadless. We are called on to determine whether the USDA's stated reasons for its change to such rules were sufficient, and the rule change valid, or arbitrary and capricious, and the rule change invalid.
The district court held invalid, as arbitrary and capricious, a 2003 USDA regulation that temporarily exempts the Tongass National Forest (" Tongass" ) from application of the 2001 Roadless Area Conservation Rule (" Roadless Rule" ). The State of Alaska appeals that order.
We reverse the district court's order because, in its 2003 Record of Decision (" ROD" ), the USDA articulated a number of legitimate grounds for temporarily exempting the Tongass from the Roadless Rule. These grounds and the USDA's reasoning in reaching its decision were neither arbitrary nor capricious.
Various environmental organizations and Alaskan villages brought an action against the USDA and the United States Forest Service and several government officials challenging a 2003 Forest Service rule which temporarily exempts the Tongass from the Roadless Rule. The State of Alaska and the Alaska Forest Association intervened as Defendants.
Plaintiffs moved for summary judgment. Defendants opposed Plaintiffs' motion and filed a cross-motion for summary judgment. The district court granted Plaintiffs' motion and denied Defendants' motion, entering an order setting aside the Tongass Exemption, reinstating the 2001 Roadless Rule as to the Tongass, and vacating all previously-approved Tongass area timber sales that were in conflict with the Roadless Rule. Only the State of Alaska now appeals.
II. Standard of Review
We review de novo the district court's grant of summary judgment. N. Idaho Cmty. Action Network v. United States Dep't of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008). This action arises under the Administrative Procedures Act (" APA" ), which provides for judicial review of final agency action. 5 U.S.C. § § 701-706. Under the APA, a court may set aside agency actions only if such actions are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Under this standard of review, an " agency must examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law. Id.
An " initial agency interpretation," however, " is not instantly carved in stone" ; the agency " must consider varying interpretations and the wisdom of its policy on a continuing basis[.]" Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). To prevent a claim it was acting in an arbitrary or capricious manner, where an agency changes its policy, the agency must show awareness that it is changing a policy and give a reasoned explanation for the adoption of the new policy. FCC v. Fox Television Stations, 556 U.S. 502, 515-16, 129 S.Ct. 1800, 173
L.Ed.2d 738 (2009).
The agency does not always have to " provide a more detailed justification than what would suffice for a new policy." Id. at 515. But the Supreme Court cautioned judges not to determine whether " the reasons for the new policy are better than the reasons for the old one," just whether the policy is permissible under the statute and " the agency believes it to be better." Id. The Court emphasized: " the fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so." Id. at 519. " [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." Id. at 513-14 (internal citations and quotation marks omitted).
Contrary to the district court's finding that the USDA acted arbitrarily and capriciously, we find that the USDA clearly acknowledged the 2003 ROD is inconsistent with its previous Roadless Rule and gave a reasoned explanation for the change.
The USDA clearly acknowledged that the 2003 ROD, which excluded the Tongass from the Roadless Rule, is inconsistent with its previous Roadless Rule, which included the Tongass. The USDA's ROD stated that,
In State of Alaska v. USDA, [ 3:01-CV-00039-JSK] the State of Alaska and other plaintiffs alleged that the roadless rule violated a number of Federal statutes, including the Alaska National Interest Lands Conservation Act of 1980 (ANILCA)
. . . .
The Alaska Lawsuit alleged that USDA violated ANILCA by applying the requirements of the roadless rule to Alaska's national forests [including the Tongass]. USDA settled the lawsuit by agreeing to publish a proposed rule which, if adopted, would temporarily exempt the Tongass from the application of the roadless rule (July 15, 2003, 68 FR 41865), and to publish a separate advance notice of proposed rulemaking (July 15, 2003, 68 FR 41864) requesting comment on whether to permanently exempt the Tongass . . . from the application of the roadless rule.
68 Fed. Reg. 75136.
Furthermore, the USDA gave a reasoned explanation for the change which may " reasonably be discerned." Fox Television, 556 U.S. at 513-14. The USDA's ROD explained that it created the Roadless Rule exemption to cease litigation, meet timber demand, and ...