It takes a village to fight about a road. Or lack thereof.
Around a third of National Forest Service lands are inventoried roadless areas; i.e., deliberately don't have roads. That way they're wild. Really wild. Of course, it also means they're harder to get to. Some people like that. Some don't.
In 2001, the Department of Agriculture (which administers the NFS), after studying the issue, thought that it made sense to keep the Tongass National Forest roadless. But two years later, relying on the same factual record, it reversed course, finding that it make sense to allow roads in the place.
Judge Hurwitz authors a majority opinion for the en banc court that says that reversal itself doesn't make sense. So remands the case for a reasoned explanation for the change as required by the Administrative Procedure Act.
Judge Milan Smith dissents. He thinks it makes perfect sense why the Department of Agriculture changed positions. Because when the Department of Agriculture decided, after substantial study and public input, to keep the Tongass National Forest roadless, President Clinton was in office. But two years later, President Bush had taken over. So he was entitled to think (as I'm sure he did) that getting more timber (or making more money) from Alaska's wilderness was more important than keeping it wild and free. Which satisfies the Administrative Procedure Act.
Needless to say, the majority disagrees. The vote is 6-5.
But things don't end there. Judge Callahan also authors a separate dissent. Arguing that Alaska -- through the Organized Village of Kake -- doesn't have Article III standing. No one else joins her. But since she joins the principal dissent on the merit anyway, there's no practical consequence. The biggest impact of the dissent is that she gets a chance to quote a movie line, saying that there's no standing because "Alaska cannot show us the money." Or, in legal parlance, can't show how it's injured.
Other arguments are made as well. Judge Smith's dissent also maintains that the majority is substituting its own value judgments for law. The majority likes the environment, he essentially says, so that's why it's not happy with -- and reverses -- the decision to build roads in the Tongass National Forest. Judge Hurwitz doesn't agree, and Judge Christen authors a separate concurrence, joined by Chief Judge Thomas, that expressly says that politics aren't what motivated either the district court's view or the Ninth Circuit's. We decide legal issues, he says. Not naked policy preferences.
The majority opinion, which keeps the Tongass National Forest roadless, was joined by Judges Thomas, Pregerson, Fletcher, Christen, Nguyen, and Hurwitz. Six left-of-center judges (albeit, in particular instances, only slightly) The dissent was joined by Judges Kozinski, Tallman, Clifton, Callahan, and Smith. Five right-of-center judges (albeit, in particular instances, libertarian-leaning as well). So the dissent has a point that the lineup might in part reflect value judgments.
Though what's sauce for the goose is equally true for the gander. My sense is that the left-leaning judges who join the majority opinion are no more substituting their policy preferences for law than are the right-leaning judges who dissent.
Lest the opinions end there Judge Kozinski authors a final dissent. Noting " the absurdity that we are in the home stretch of
the Obama administration and still litigating the validity of
policy changes implemented at the start of the George W.
Bush administration" and arguing that "the glacial change of administrative litigation" is suboptimal.
Though the word "suboptimal" is mine. Judge Kozinski instead articulates hyperbolic, Scalia-like claims, including an allegation that the United States has become "more an oligarchy governed by a cadre of black-robed mandarins" and his alleged "worry about the future of the Republic" from cases like this one.
All of this in a dissent that's a single paragraph.
My view is that the overwrought claims here do a disservice to their authors and to the judiciary as well.
