[00:00:03] Speaker 00: Base number 17-5260 et al. [00:00:06] Speaker 00: State of Alaska, a balance. [00:00:08] Speaker 00: Alaska electric light and power et al. [00:00:10] Speaker 00: Versus United States Department of Agriculture et al. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Gramling for the balance. [00:00:15] Speaker 00: Mr. Smeltzer for the FLE USDA et al. [00:00:18] Speaker 00: Mr. Fine for the FLE Southeast Alaska Conservation Council et al. [00:00:24] Speaker 05: Morning, Council. [00:00:25] Speaker 05: Ms. [00:00:26] Speaker 05: Gramling, please proceed when you're ready. [00:00:29] Speaker 02: Good morning. [00:00:30] Speaker 02: May it please the court. [00:00:31] Speaker 02: My name is Mary Hunter Grambling and I'm representing the state of Alaska arguing today from Alaska's capital city, Juneau, one of the many communities negatively impacted by the prohibitions of the robust rule. [00:00:43] Speaker 02: Alaska is joined in these consolidated appeals by local governments, utility and power companies, chambers of commerce, leading industry groups for timber and mining interests, and then other Alaska business interests. [00:00:54] Speaker 02: The appellants request vacatur of the roadless rule due to violations of Alaska specific laws, the Alaska National Interest Lands Conservation Act, ANILCA, the Tongass Timber Reform Act as an amendment to ANILCA, and the National Environmental Policy Act. [00:01:11] Speaker 02: Alaska is different. [00:01:13] Speaker 02: The United States Supreme Court has repeatedly and recently recognized this fact in its recent Sturgeon v. Frost decisions. [00:01:20] Speaker 02: In the Sturgeon cases, [00:01:21] Speaker 02: Spring Court considered a restrictive national regulation that violated a provision of ANILCA. [00:01:27] Speaker 02: The court construed ANILCA according to its historical context and the purposes of the act overall. [00:01:34] Speaker 02: The court and surgeon discussed the background of protests of restrictive federal actions and executive actions that restricted development in the state and land selection rights that were under previous federal laws. [00:01:51] Speaker 04: Ms. [00:01:51] Speaker 04: Gramling, I'd like to ask you about the sort of where we are today in the case. [00:02:00] Speaker 04: As you know, there's been briefing on whether the claims are moot in light of further consideration of the applicability or not of the roadless rule to the Tongass. [00:02:14] Speaker 04: And one of the questions that's sort of nested in [00:02:19] Speaker 04: or raised by the claim of mootness is whether Alaska has standing based on impact in the Chugach. [00:02:35] Speaker 04: And when I'm thinking about that, there was a motion to dismiss based on mootness, but the underlying case was at the summary judgment stage. [00:02:45] Speaker 04: So my specific question is whether the state of Alaska can point to any evidence as opposed to merely allegations that the claims here implicate any harm flowing from the Chugach with the NEPA claim, if it were successful, [00:03:14] Speaker 04: remedy any harm to Alaska based on the Chugach, would the Alaska Lands Act claim, if you were to prevail on it, remedy any identified harm in the record to Alaska flowing from events at the Chugach? [00:03:37] Speaker 04: And if you can help us out by pointing to the record where those harms are identified. [00:03:46] Speaker 02: So as far as the Chugach is concerned, the Chugach is the second largest national forest in the national forest system. [00:03:59] Speaker 02: And so while most of the state's arguments, you know, we do have some Tongass specific arguments, the state also made statewide arguments [00:04:10] Speaker 02: And the impacts on the Tongus are just more outsized than the impacts on the Chugash in some circumstances. [00:04:20] Speaker 02: But the state's statewide claims still apply to the Chugash, so it's not a specific Tongus related claim. [00:04:27] Speaker 02: And so in the record, this is a case that's being reviewed under the EIS and the APA. [00:04:36] Speaker 02: And so the state, [00:04:39] Speaker 02: use its standing to be self-evident based on its comments and participation in the rulemaking process. [00:04:49] Speaker 02: As far as evidence in the record, I believe the joint appendix page 50 deals with the Chugach. [00:04:58] Speaker 02: And then the state's complaint that paragraphs 55 through 57 also [00:05:06] Speaker 02: are specific to the Chuyach. [00:05:10] Speaker 02: In the context of the motion to dismiss, the state also submitted an affidavit from its state forester that essentially said that he had reviewed the claims and agreed that they were still at issue as they were when we filed the complaint 10 years ago now. [00:05:31] Speaker 02: And then furthermore, in other cases, [00:05:36] Speaker 02: the courts in the Ninth Circuit specifically have found that the receipt of revenue sharing from national forests can give the state standing. [00:05:48] Speaker 02: And so while the Cake Ninth Circuit case, that was an issue there, the same would be true for the Chugach, is that the state does receive [00:06:01] Speaker 02: revenues and those revenues has the potential to receive those revenues. [00:06:06] Speaker 02: And that was detailed in the state's complaint. [00:06:10] Speaker 02: And then additionally, with the Chugachs, it is under the roadless rule prohibitions currently. [00:06:19] Speaker 02: And it, the roadless rule applies to approximately 98 to 99% of the Chugachs. [00:06:28] Speaker 02: And so while the [00:06:31] Speaker 02: Chugach does not currently have as significant of a timber program as, say, the Tongass could have, or even other forests that the roadless world. [00:06:42] Speaker 03: May I interrupt you, please? [00:06:44] Speaker 03: On the payment business, isn't it a fact that the state of Alaska would receive [00:06:53] Speaker 03: that whatever it is per year, 6 million or something dollars, regardless whether there was logging going on in the Chugash or not. [00:07:03] Speaker 03: It was set in the year 2000, 2001, and that payment will be made regardless of the roadless rule. [00:07:14] Speaker 02: So the payments by statute are determined by activities in those forests. [00:07:20] Speaker 03: So it doesn't matter whether the roadless rule is there or not there. [00:07:24] Speaker 03: They're going to get the same amount, the same payment every year. [00:07:29] Speaker 03: So why is that? [00:07:30] Speaker 03: Where's the injury there? [00:07:32] Speaker 02: The injury there is because right now, or at least in the recent past, the rural schools [00:07:41] Speaker 02: Act has set that amount, but that could go away and then we would be under the statutory revenue sharing provision and that is based on. [00:07:53] Speaker 02: activities in those forests. [00:07:54] Speaker 02: And so the roadless rule prohibits development and the receipt of those revenues. [00:07:59] Speaker 02: In addition to the revenue issue though. [00:08:02] Speaker 04: Are you saying that the roadless rule would prevent timber exploitation and that the amount of the payment is calibrated to the degree of timber exploitation? [00:08:14] Speaker 04: I believe it's based on the total revenues. [00:08:17] Speaker 04: The total revenues from timber or [00:08:22] Speaker 04: I'm just having a little bit trouble following at a little bit more factual level. [00:08:28] Speaker 04: What is the activity that Alaska is claiming would change within the Chugach, and what effect is that change going to have on Alaska? [00:08:46] Speaker 04: I think the closest that Alaska gets in being somewhat more particular is, as you mentioned, the declaration in response to the mootness briefing. [00:09:00] Speaker 04: But even there, it's not clear why some of the pest control and fire reduction measures are affected by [00:09:14] Speaker 04: the roadless rule. [00:09:15] Speaker 04: Are they being taken when the roadless rule doesn't apply and then they're not taken when it does? [00:09:22] Speaker 04: There's just the relationship between the challenge provisions and the harms just hasn't really been spelled out. [00:09:32] Speaker 04: And that's where I think we could use some help. [00:09:37] Speaker 02: So turning back to the land management type harms in the state is a [00:09:44] Speaker 02: neighboring land owner to, you know, areas of the Chugach National Forest. [00:09:50] Speaker 02: And so it has that, you know, it has its own land management responsibilities and then also private citizens within Alaska have those, you know, have land that borders the Chugach. [00:09:59] Speaker 02: And so the roadless rule has impacted the state's ability to conduct its own land management [00:10:07] Speaker 02: Because the robust rule to a certain extent prohibits the sort of thinning and removal of dead fall of trees that that then pests can then [00:10:23] Speaker 02: It sort of just is a problem that compounds. [00:10:25] Speaker 02: So the more dead trees you have, the more pests you have, the harder it is. [00:10:30] Speaker 03: There's an exception. [00:10:31] Speaker 03: No, the rule has an exception for just this type of situation you're talking about. [00:10:38] Speaker 03: It does not prohibit roads going in for the purpose of preventing wildfires or clearing or safety or whatever. [00:10:48] Speaker 03: There's an exception for that. [00:10:50] Speaker 03: The roadless rule doesn't affect that at all. [00:10:53] Speaker 02: So the exception for safety, I believe, has to be there is more of an imminent threat than just a more proactive measure. [00:11:02] Speaker 02: And then also the roadless rule considered in the process having more of, I guess, a lenient alternative that would have allowed for more active forest management to prevent pests and help curb wildfires. [00:11:20] Speaker 02: and instead they limited the diameter of the thinning that could happen. [00:11:26] Speaker 04: So it was only smaller trees, but more- Where in the record, what are you pointing to where the roadless rule is prohibiting the thinning that would otherwise be taking place? [00:11:43] Speaker 02: So the exceptions, [00:12:03] Speaker 02: So I apologize for not having the exact record site for me, but there was a small diameter limitation on thinning. [00:12:11] Speaker 05: And in the roadless real decision, they anticipated that even with that, that timber cutting would be- Well, there's a small diameter exception in the rule, but I guess what puzzles me a little bit is what my colleagues are getting at, which is, [00:12:30] Speaker 05: I didn't see anything in the affidavit that was submitted in the response to the motion to dismiss or elsewhere in the record that elaborated on how exactly this would continue to harm Alaska vis-a-vis Chugach. [00:12:45] Speaker 05: At this stage, there needs to be evidence to bear that out. [00:12:50] Speaker 05: And I'm not aware of anywhere on the record where there is evidence that bears out how there would still be harm. [00:12:58] Speaker 02: So in the record, the state certainly submitted its comments. [00:13:02] Speaker 02: And those comments include harms to the Chugach and the land management decisions that would flow from that. [00:13:08] Speaker 02: But generally speaking, the lack of roads has led to less active management of the forests in the Chugach. [00:13:17] Speaker 02: And then so these issues of wildfires and pests reached potentially a greater scale than they would have otherwise [00:13:28] Speaker 02: presumably if the roadless rule had not been in effect, the forest managers would have greater flexibility to account for individual forest conditions and allow timber to, more timber cutting to address those commercial timber, I believe can aid in the process of thinning and deadfall. [00:13:53] Speaker 04: Do we have any reason to think that [00:13:55] Speaker 04: You mentioned that forest managers would have greater flexibility to do more timber cutting. [00:14:02] Speaker 04: Is there any reason to believe that it would in fact do more timber cutting for that purpose? [00:14:11] Speaker 02: So historically, the Chugach forest did have a timber program and due to infestations and changes of tree types, I believe, [00:14:25] Speaker 02: the timber harvest shortly before the roadless roll was very, very low, but there's no reason to expect that in the absence of the roadless roll that it couldn't rebound. [00:14:38] Speaker 02: But going back to the standing issue, the state had reasons to believe that it's standing was self-evident in the district court proceedings. [00:14:48] Speaker 02: And my understanding is that this circuit, it's standing is a concern that even after argument that you could take [00:14:55] Speaker 02: supplemental briefing and the state would be happy to provide that. [00:15:05] Speaker 04: Turning back. [00:15:05] Speaker 04: That would be helpful. [00:15:06] Speaker 04: I mean, if there's, I don't know what you're thinking about in the comments, but if there are, if there are specifics regarding the Chugach in the comments that you can identify that I think that's, you know, could, could be significant, but you can hear that we're, that we're struggling with the, [00:15:24] Speaker 04: question of harm and also the question of whether it's caused by the roadless rule or by other factors and would be redressed were the state to prevail on this challenge. [00:15:38] Speaker 04: So we're really considering, I think, all those questions. [00:15:41] Speaker 04: And this is bracketing, assuming that there is a mutinous problem, which is obviously not your motion. [00:15:51] Speaker 04: But because you're up first and [00:15:54] Speaker 04: The standing question is an important one, but it was helpful to hear from you on that. [00:16:01] Speaker 02: So I'd like to turn to the mootness question. [00:16:04] Speaker 02: The state's position, of course, is that the case is not moot. [00:16:08] Speaker 02: The 2020 Tongus exemption rule that was posted during the Trump administration, it has not been given any actual effect in the subsequent administration. [00:16:23] Speaker 02: The only effect that it's really had has been for the purposes of this litigation to say that it's an effect. [00:16:28] Speaker 02: For any activities to happen in the Tongass, the forest plan would have to be amended as was required by the rule. [00:16:35] Speaker 02: And that has not happened yet. [00:16:36] Speaker 02: The Biden administration has paused activities and they've indicated that they're going to repeal and readopt the rule. [00:16:43] Speaker 02: So the state's position is that the federal government has a heavy burden to prove mootness and that it cannot do so because it has voluntarily ceased [00:16:53] Speaker 02: the activity. [00:16:55] Speaker 02: And so it had to show that the harm has been repaired, which it has not, and that it won't occur. [00:17:01] Speaker 02: And so the federal government's arguments on this fail for that reason. [00:17:05] Speaker 02: Additionally, the relief requested for the Tongus in this case is a little bit different than the exemption rule. [00:17:15] Speaker 02: The exemption rule is under the premise that the roadless rule still exists. [00:17:18] Speaker 02: And so the relief [00:17:20] Speaker 02: the state is asking for here is to vacate the rule statewide and potentially nationwide. [00:17:25] Speaker 02: And so that would moot the Tongass exemption rule and then potentially guide the federal government and other new rulemaking that it is under. [00:17:35] Speaker 02: And so the state doesn't feel that the exemption rule has the same caliber of a decision that a decision from this court would have that finds the roadless rule should be vacated. [00:17:48] Speaker 02: And with that, [00:17:49] Speaker 02: Unless there are further questions, I'll reserve my remaining time for rebuttal. [00:17:53] Speaker 03: I have one question. [00:17:54] Speaker 03: What is the status of the lawsuit in the federal district court in Alaska claiming that the 2020 rule was invalid? [00:18:05] Speaker 02: The federal government has, since I believe March, requested stays in that case. [00:18:11] Speaker 02: They have not filed an answer. [00:18:13] Speaker 02: The state has intervened in that case. [00:18:15] Speaker 02: and filed an answer fully intending to defend the rule if the federal government declines to defend it. [00:18:22] Speaker 02: We also, in that case, submitted some affidavits about more forest management particulars that I tried to recall here for you since that wasn't a focus of our briefing. [00:18:34] Speaker 02: But that is the status of the case at its state, at least November. [00:18:41] Speaker 05: Thank you, Ms. [00:18:42] Speaker 05: Gramling. [00:18:43] Speaker 05: We'll hear from the government now, Mr. Smeltzer. [00:18:49] Speaker 06: Good morning, Your Honors, and may it please the Court, John Smeltzer for the Department of Agriculture and the Forest Service. [00:18:55] Speaker 06: Your Honors, the roadless rule is not presently applicable to the Tongass, and for that reason, we believe the challenges here are mostly moot. [00:19:08] Speaker 06: And the other challenges that aren't moot have the standing problems, because [00:19:12] Speaker 06: Most of the claims here are Tongus specific and all of the concrete harms that the plaintiffs in this case have articulated relate to the Tongus. [00:19:20] Speaker 06: So it's either as a combination of mootness with respect to the Tongus specific claims or standing, we believe the claims are not presently justiciable. [00:19:29] Speaker 03: To start with the... There's another problem too that you didn't mention that is we have a rule in this circuit that goes back to [00:19:40] Speaker 03: heaven knows when, one of the leading cases is by Justice Scalia when he was on the court called Carducci versus Reagan. [00:19:47] Speaker 03: And the rule is that if you don't raise an issue and make an argument in your top side brief, then the court does not consider it. [00:19:59] Speaker 03: It's not good enough to raise it in a reply brief or even in an oral argument. [00:20:03] Speaker 03: And I don't see a single argument [00:20:07] Speaker 03: in the state's blue brief that was filed in 2018 that deals solely with the Chugash. [00:20:18] Speaker 03: It's all Tongus. [00:20:21] Speaker 06: Yeah, that's right. [00:20:23] Speaker 06: It illustrates that the focus of their claims and their injuries are the Tongus. [00:20:27] Speaker 06: I think what Ms. [00:20:28] Speaker 06: Gramling would say is that the other claims are generally applicable to the roadless rule. [00:20:33] Speaker 06: And because the roadless rule applies to the [00:20:36] Speaker 06: the Chugach, there's a violation that pertains to the Chugach. [00:20:44] Speaker 06: But to raise, there's a distinction, of course, between a violation of the law, right, and whether there's a concrete and particular injury. [00:20:52] Speaker 06: And it's the absence of the injury with respect to the Chugach that matters. [00:20:58] Speaker 06: And so while we're talking about the Chugach, let me talk about the two concrete [00:21:02] Speaker 06: areas that Ms. [00:21:04] Speaker 06: Gramling raised to suggest standing. [00:21:08] Speaker 06: And the one is the question of receipts on forest service land. [00:21:12] Speaker 06: And to clarify the law, there is a permanent statute at 16 USC section 500, which says the United States will share receipts from a national forest with a state at a certain percentage. [00:21:25] Speaker 06: It's all receipts. [00:21:26] Speaker 06: It's not just timber receipts, but it's a receipt sharing statute. [00:21:29] Speaker 06: And then there is a public law that Congress has repeatedly reenacted that allows an alternative formula for states to receive an alternative payment in lieu of that receipts in recognition of the fact that timber receipts were dropping on lots of forests. [00:21:48] Speaker 06: So it's that in lieu of that allows states to receive a, you know, a permanent payment that's not based on the actual receipts. [00:21:55] Speaker 06: And as Ms. [00:21:56] Speaker 06: Gramlich said, there's a possibility, of course, that Congress doesn't, you know, re-enact that. [00:22:01] Speaker 06: But that has been re-enacted and that's been a part of the program. [00:22:05] Speaker 06: In Alaska's complaint, they say they received receipts in 2009 on the Chew Gatch. [00:22:12] Speaker 06: But in 2009, of course, the Chew Gatch was subject to the rodents rule. [00:22:16] Speaker 06: And the complaint doesn't say whether those receipts were under this alternative program. [00:22:21] Speaker 06: what the receipts were from or how the receipts would be impacted by the roadless rule. [00:22:25] Speaker 06: And as Judge Pillard said, mentioned, I mean, the allegation that you receive receipts is not the same thing as the allegation that, you know, application of the roadless rule is gonna diminish those receipts. [00:22:37] Speaker 06: Again, those receipts that are named in the complaint were receipts when the roadless rule was applicable to the two gatch. [00:22:43] Speaker 06: And there's no argument that the application of the roadless rule is gonna change [00:22:47] Speaker 06: state's receipts. [00:22:48] Speaker 06: That is different than the circumstance that the state refers to in the Village of Cake on Monk Decision, where the Ninth Circuit found standing with respect to receipts on the Tongass. [00:22:58] Speaker 06: There the Ninth Circuit specifically found that application of the roadless rule to the Tongass would affect the receipts that the state received. [00:23:07] Speaker 06: There is no allegation of the impact with respect to receipts in this case. [00:23:12] Speaker 04: The other- Is an allegation enough? [00:23:15] Speaker 04: This is a variant of the question that I asked Ms. [00:23:17] Speaker 04: Gramling. [00:23:18] Speaker 04: It would seem since the underlying litigation is at the summary judgment stage, not the pleading stage, that what's needed is pointed to some kind of evidence. [00:23:30] Speaker 06: Yes, Your Honor. [00:23:31] Speaker 06: And I think at this stage, an allegation would not be sufficient. [00:23:35] Speaker 06: But to the extent that the allegation is, it's not sufficient either, right? [00:23:40] Speaker 06: even if they could prove the facts as alleged, we received receipts in 2009, it doesn't say anything about whether they're injured by the robust rule. [00:23:49] Speaker 06: And so the second area that Ms. [00:23:52] Speaker 06: Gramling spoke to was the question of the neighboring state lands and the question of whether management on forest service lands impacted management on state lands. [00:24:04] Speaker 06: And the suggestion in the complaint [00:24:07] Speaker 06: is that the lack of flexibility in the roadless rule prevents the forest service from doing fuels treatment and vegetation treatments that would minimize effects of wildfire. [00:24:20] Speaker 06: As Judge Randolph noted, there are exceptions that allow those kinds of activities to go forward. [00:24:27] Speaker 06: There is generally, those exceptions are related to generally small diameter trees, [00:24:34] Speaker 06: But there's no, again, allegation or evidence that the type of fuels treatment that would be needed in the two gauge would be prohibited by, you know, the harvest treatments pursuant to the exception. [00:24:49] Speaker 06: I do want to know one thing though with respect to the exceptions. [00:24:54] Speaker 06: It is an exception on the treatments themselves, not an exception on road building. [00:25:01] Speaker 06: So the exception on road building, to be fair to the state, applies only to where there's an imminent risk of fire and not to just the general advanced treatment. [00:25:17] Speaker 06: But what I want to emphasize for the court is there is a lack of any specificity in the allegations by the state that the absence of [00:25:28] Speaker 06: the ability to build roads with respect to treatments is impacting what the forest would do or impacting state management. [00:25:36] Speaker 06: And the state points to the forest plan for the Chugach in some of its briefing on the mootness issues. [00:25:49] Speaker 06: In the forest plan, the recently completed forest plan for the Chugach, [00:25:53] Speaker 06: There's also a whole section on fire conditions of the forest and fuel stream and light. [00:26:03] Speaker 06: And that data, which the state didn't refer to, represents that natural fire is not a significant concern on the two gauge. [00:26:14] Speaker 06: The much greater concern is human induced fires in the wildland urban interface, where there are roads, [00:26:22] Speaker 06: and the ability to come in and do treatments. [00:26:26] Speaker 06: This information, I have to say, obviously it's not in the record, not before the court, so I don't wanna be unfair to Ms. [00:26:33] Speaker 06: Gramling. [00:26:34] Speaker 06: But what I wanna illustrate is that the specifics as to the need for fuels treatment in the two-gatch are not before the court in the allegations that are made and are relevant to this question of, you know, would this [00:26:52] Speaker 06: the application of the roadless rule really change what the forest intends to do with respect to a fuel of treatment or what they can do. [00:26:59] Speaker 06: And I would submit there is no evidence that there would be any difference with respect to what the forest can and would do to protect the at-risk communities in and around the two batch. [00:27:15] Speaker 06: With respect to the Tongus specific claims, [00:27:21] Speaker 06: submit that those claims are moved because of the nature of the claims. [00:27:28] Speaker 06: The NEPA procedural claims have in effect already been any relief that could have been granted and has already been granted. [00:27:36] Speaker 06: The agency has already gone back and done a complete new NEPA review of the impacts of applying the roadless rule to the Tongass in the course of the 2020 Tongass exemption. [00:27:47] Speaker 04: I have a question about that, really more, and maybe this is just all premature, but just conceptually, if the 2021 proposed de-exemption of the Tongass were to, in effect, revive the impact of the 2001 roadless rule, then it would seem that the procedural soundness or not of [00:28:17] Speaker 04: the 2001 rule under NEPA could be a live issue. [00:28:20] Speaker 04: And I'm just not sure how to think about, and again, as I said, maybe this is premature, but how to think about what the proposal is. [00:28:31] Speaker 04: For example, if it is a proposal to just take away what was granted in the 2020 rule, then it would seem that the NEPA claim, as dated as it might feel, [00:28:46] Speaker 04: is a live claim as a formal matter. [00:28:49] Speaker 06: Your honor, I submit it wouldn't be because even if that's what the Forest Service does, it just says no more exemption, roadless rule applies again. [00:28:58] Speaker 06: It's done as part of a rulemaking. [00:29:00] Speaker 06: And as part of that rulemaking, the Forest Service has to consider everything they had to consider back in 2001. [00:29:08] Speaker 06: But they've already created a whole new record on that. [00:29:11] Speaker 06: And part of Alaska's claims are, well, you didn't look closely enough at [00:29:15] Speaker 06: that are concerns about the Tongus. [00:29:17] Speaker 06: Well, Alaska raised all of its concerns about application of the roadless rule to the Tongus in the most recent, you know, rulemaking on the 2020 exemption and in the NEPA review of that. [00:29:28] Speaker 06: And so they had a whole new chance to consider all of those things. [00:29:31] Speaker 06: Alaska says, well, you didn't take enough time in 2001. [00:29:35] Speaker 06: Well, you know, now we've taken a whole lot more time, right? [00:29:38] Speaker 06: And there was a whole new procedure. [00:29:40] Speaker 06: And so ultimately the NEPA analysis is going to depend on [00:29:45] Speaker 06: on how Alaska renewed its concerns about the application of the roadless rule to the Tongass and how the Forest Service evaluated those claims in the context of the recent rulemaking in addition to the old rule. [00:29:58] Speaker 06: The old rulemaking is still relevant, of course, but obviously there's been an entirely new record that's been generated and the Forest Service will have to look again at additional concerns and whether there needs to be any update to the NEPA analysis. [00:30:12] Speaker 06: to review the, you know, the 20,001 concerns about, you know, the timeline, you know, did they spend enough time? [00:30:20] Speaker 06: Did they consider, you know, when we brought up this particular issue just doesn't, you know, resonate with respect to the fact that there's a brand new opportunity, a brand new record on that. [00:30:30] Speaker 06: With respect to the Tongass Act itself, there are similar concerns. [00:30:34] Speaker 06: It's a substantive claim as opposed to a procedural claim. [00:30:37] Speaker 06: But if you look at the claim, the way Alaska is raising it in their brief, [00:30:42] Speaker 06: It's a very record-specific claim. [00:30:46] Speaker 06: They're not saying that you can set the roadless rule next to the Tongass Act, and a statement in the roadless rule conflicts with the Tongass Act. [00:30:58] Speaker 06: In order to find the conflict that they claim, you have to look at what are the impacts of this rule on the Tongass, and most specifically, what is the status of market demand and whether [00:31:08] Speaker 06: the forest can meet or seek to meet market demand on the Tongass from areas outside of inventory growless areas. [00:31:18] Speaker 06: And again, there has been a complete new evaluation of market demand circumstances in relation to the exemption and in relation to the forest planning rule or the forest plan that came out in 2016. [00:31:37] Speaker 06: And so the market demand calculations have all been updated and the most recent market demand calculations suggest that the national forest can actually meet, and of course the issue is seek to meet, but can actually meet market demand from outside inventory grow this areas. [00:31:56] Speaker 06: Now I know Alaska is going to dispute whether those demand calculations were done correctly, right? [00:32:02] Speaker 06: But again, whole new record that has not been [00:32:06] Speaker 06: looked at by any district court. [00:32:08] Speaker 06: And we submit that the proper course would be, to the extent the Alaska still has the claims that it raised in 2001, they should be raised on the current state of affairs with respect to. [00:32:20] Speaker 05: I mean, that's not even though you labeled it a substantive instead of procedural, that's sounding like, in your view, the reason the claims are moved as to that Tonga specific act are [00:32:34] Speaker 05: parallel to the reasons it's moved with respect to NEPA. [00:32:36] Speaker 05: So it sort of sounds like it's procedural. [00:32:40] Speaker 05: Well, whole new record for both, right? [00:32:42] Speaker 06: Whole new record, whole new decision on both. [00:32:44] Speaker 05: So from your perspective, the reason that they're moved, even though you're labeling one substantive one procedural, the reason their mood is the same is that there's a new record that will determine whether the claim is valid. [00:32:55] Speaker 05: Yes. [00:32:57] Speaker 05: Can I ask you about the Anilka claim vis-a-vis? [00:33:00] Speaker 05: I'm sorry? [00:33:01] Speaker 05: Yes. [00:33:02] Speaker 05: Yeah, vis-a-vis Tongus. [00:33:03] Speaker 05: So the Anilka claim is a substantive one because the argument is that there's been a withdrawal, that the roadless rule affected a withdrawal. [00:33:12] Speaker 05: And let's just talk about it vis-a-vis Tongus for a moment. [00:33:15] Speaker 05: And so that claim, if the current state of affairs continues and the roadless rule goes back into effect vis-a-vis Tongus, then at least as to that claim, substantively it's the same. [00:33:31] Speaker 06: Uh, I think that's right. [00:33:32] Speaker 06: Yeah. [00:33:32] Speaker 06: It's, it's essentially, um, I think Alaska is saying with that is the one claim that, um, we're, we're Alaska is essentially saying on the face of the, the restrictions and grow this rule that it's incompatible with provisions. [00:33:50] Speaker 03: May I interject the question here? [00:33:52] Speaker 03: I mean, uh, on the face of it, my understanding, uh, has always been that a withdrawal [00:33:59] Speaker 03: means in public land law, it means it's withdrawn from the public domain and therefore is exempt from statutes like the Homestead Act and the Desert Lands Act and several others that allow individual citizens to come in and claim particular property. [00:34:16] Speaker 03: Is that right? [00:34:17] Speaker 06: That's the way we understand it, Your Honor. [00:34:20] Speaker 06: And one of the ones that are relevant now to the National Forest is the general mining law. [00:34:24] Speaker 06: Right. [00:34:25] Speaker 03: Well, it's a multiple use withdrawal. [00:34:28] Speaker 03: But the fact is that all of the land in a national forest has been withdrawn. [00:34:34] Speaker 06: It's been withdrawn for forest purposes. [00:34:36] Speaker 06: That's right. [00:34:37] Speaker 03: So I've never heard such of a thing that a withdrawal of a withdrawal. [00:34:42] Speaker 03: I mean, that's what the way I read Alaska's claim. [00:34:46] Speaker 06: And I share your confusion, because it is a little bit confusing, because there are existing authorities now under the Federal Land Policy Management Act to withdraw [00:34:58] Speaker 06: public lands from the public domain. [00:35:01] Speaker 05: That's a substantive answer to the claim. [00:35:03] Speaker 05: I was just asking about moodness. [00:35:06] Speaker 05: Understood. [00:35:07] Speaker 06: I was trying to answer Judge Randolph's question. [00:35:09] Speaker 05: Yeah, no, of course. [00:35:10] Speaker 05: And you should. [00:35:11] Speaker 05: And I have the same question. [00:35:12] Speaker 05: But just to be clear on where we are in the architecture of the case, that would mean that you get past moodness. [00:35:17] Speaker 05: And that would be the answer on the substance of the claim. [00:35:19] Speaker 05: But you're not arguing that the Anilka claim vis-a-vis the Tongass is moot. [00:35:24] Speaker 06: Well, I guess what we're saying is, you know, the Anilka claims short, if that were the only claim in the case, maybe we'd have a different view. [00:35:31] Speaker 06: But again, the rule doesn't apply, right? [00:35:35] Speaker 06: So there's a chance that the rule comes back. [00:35:38] Speaker 06: And the one and the only thing that I can tell that they're concerned with with respect to Anilka withdrawal is the lack of an exception for mineral leasing. [00:35:49] Speaker 06: Right. [00:35:51] Speaker 06: And whether mineral leasing actually even falls under the sort of the withdrawal idea is a separate question. [00:35:56] Speaker 06: But the Forest Service considered in 2001 an exception for road building for mineral leasing and decided not to. [00:36:04] Speaker 06: But they didn't close off the inventory roadless areas to leasing. [00:36:09] Speaker 06: They just said you can lease but without new roads. [00:36:13] Speaker 03: I thought you could build roads to do mineral exploration. [00:36:19] Speaker 06: Yes, you can. [00:36:20] Speaker 06: And that's what I was trying to say under the general mining law, which is a different issue that's locatable minerals and that's, you know, precious minerals, metals. [00:36:28] Speaker 06: You can do mineral location. [00:36:31] Speaker 06: You can cut trees as necessary to do it for a surface plan. [00:36:34] Speaker 06: You can build a road as necessary to provide reasonable access for prospecting and development of locatable minerals. [00:36:40] Speaker 06: The roadless rule doesn't affect that at all, which is why on the merits, the Anilka claim, you know, has no basis, but with respect to [00:36:48] Speaker 06: standing again, if all the injuries are on the Tongus, roadless rule doesn't apply to the Tongus. [00:36:56] Speaker 06: If it's gonna come back, there has to be a new rulemaking that the courts are gonna have to consider. [00:37:01] Speaker 06: And, you know, prudentially, because it's kind of mirrored and tied to all these other claims, you know, it might make sense for the court to hold up on all the claims, right? [00:37:12] Speaker 06: But the court wants to decide the Enelco claim, you know, [00:37:17] Speaker 06: On the view that there is standing there, we submit there's no merit to the claim for reasons that I've addressed. [00:37:27] Speaker 04: I thought that the discussion of the merits is useful, even though the chief pointed out that we were sort of backed into it via discussion of mootness. [00:37:35] Speaker 04: But I think as the discussion of each of the claims illustrates, the mootness argument does depend a little bit on [00:37:45] Speaker 04: whether, I mean, you know, a purely statutory interpretation facial claim with no record shift, it would seem it's less likely to be moot than a claim that depends on, for example, whether one has fulfilled procedural obligations under NEPA. [00:38:02] Speaker 06: So. [00:38:03] Speaker 06: That's correct, Your Honor. [00:38:04] Speaker 06: And we think that the principal claims here, the Tonga specific claims are clearly record specific types of claims. [00:38:13] Speaker 05: Okay, thank you. [00:38:14] Speaker 04: I just wanted to ask that. [00:38:16] Speaker 04: I mean, I guess the sort of predicate question about mootness under our American bankers case, it's the burden of the movement to establish mootness. [00:38:29] Speaker 04: It's a heavy burden. [00:38:30] Speaker 04: When you file the papers regarding mootness, there was nothing on the horizon about a potential new rule [00:38:42] Speaker 04: rolling back on the 2020 rule, but now there are very definite signs on the horizon about that. [00:38:49] Speaker 04: And I guess your answer to that is that's all fine and good, but that creates new claims. [00:38:56] Speaker 04: It doesn't revive the old claims. [00:38:58] Speaker 04: And that's sort of the message of all this stuff about how record specific the old claims are. [00:39:03] Speaker 06: That's essentially correct, Your Honor. [00:39:06] Speaker 06: And with respect to like the NEPA procedural claims in particular, [00:39:10] Speaker 06: Those clearly are new claims. [00:39:14] Speaker 06: Any relief that could have been provided with respect to any violation in 2001 has already been provided. [00:39:22] Speaker 06: Ordinarily, you just set it aside and send it back to the agency to do it again. [00:39:26] Speaker 06: The agency's already done it again in one context and will do it again in the upcoming proposed rulemaking. [00:39:38] Speaker ?: Okay. [00:39:39] Speaker 05: If my colleagues don't have any additional questions for you, Mr. Smeltzer, we'll hear from Mr. Fine. [00:39:45] Speaker 05: Thank you. [00:39:46] Speaker 05: Thank you. [00:39:48] Speaker 01: Thank you, Your Honors. [00:39:49] Speaker 01: Ian Fine on behalf of Conservation Interveners. [00:39:52] Speaker 01: We agree with everything Mr. Smeltzer's just said. [00:39:55] Speaker 01: Just a couple points I wanted to add. [00:39:58] Speaker 01: I think Judge Pillard's questioning about this being an appeal from summary judgment is exactly right in terms of [00:40:05] Speaker 01: the burden of establishing standing by evidence and not just allegations. [00:40:11] Speaker 01: And I think in terms of the suggestion of supplemental briefing or even this affidavit that Alaska submitted, I would direct your honors to this court's opinion in Swanson Group Manufacturing, which was also an appeal of summary judgment where the court said that it's actually not appropriate to be considering new evidence of standing on appeal from a summary judgment order that was submitted after the judgment was entered. [00:40:35] Speaker 01: You know, it may be that there would be a case where, for equitable reasons, that was justified. [00:40:41] Speaker 01: I don't believe that's the case here, where standing was directly challenged below. [00:40:46] Speaker 01: Alaska had an opportunity to put in evidence of standing based on the Chugach. [00:40:50] Speaker 01: It did not. [00:40:52] Speaker 01: Further, when the mooting event as to the Tongass was something that the state of Alaska initiated with its petition for rulemaking. [00:40:59] Speaker 01: So I don't, you know, if there were some exception to that rule, I don't think it's been met here. [00:41:04] Speaker 01: In terms of the questioning about the nature of the Anilka claim and whether that is something that should survive, I guess I would point out that there is a flavor of a sort of record-based aspect of this claim as well in that they are not arguing that these inventoried roadless areas have actually been [00:41:28] Speaker 01: expressly withdrawn. [00:41:29] Speaker 01: Their argument is more that it's sort of a de facto withdrawal. [00:41:34] Speaker 01: Of what? [00:41:34] Speaker 04: I'm sorry, you just were speaking quickly. [00:41:35] Speaker 04: This inventory. [00:41:37] Speaker 01: Sorry, yes. [00:41:38] Speaker 01: The roadless rule applies to inventoried roadless areas in the national forest. [00:41:42] Speaker 01: And I don't understand the plaintiffs to be making an argument that these are expressly withdrawn. [00:41:47] Speaker 01: They're not. [00:41:49] Speaker 01: I think it's more of a claim that there's a sort of a de facto withdrawal. [00:41:54] Speaker 01: It's not withdrawn. [00:41:57] Speaker 01: Judge Randolph asked some questions about that too, but also the rule expressly allows for continued mineral leasing in the national forest. [00:42:05] Speaker 01: So I understand their argument to be a little bit of that this is a de facto withdrawal and facts I think may be relevant to that. [00:42:11] Speaker 01: For instance, a geothermal lease, a mineral lease in fact has been granted in the Tongass on Bell Island under the roadless rule that's [00:42:23] Speaker 01: before the court in Exhibit C to our motion for abeyance that was filed in September 2018. [00:42:29] Speaker 01: It notes that a geothermal lease was granted. [00:42:33] Speaker 01: And that affects the nature of the claim that's being made? [00:42:37] Speaker 01: Well, I think it may, Your Honor. [00:42:39] Speaker 01: I mean, their argument is that this has been withdrawn from mineral leasing. [00:42:43] Speaker 01: The roadless rule withdrew these lands from mineral leasing, and the record would show in a new case that, in fact, mineral leases are [00:42:50] Speaker 01: continuing to be granted in these areas under the roadless rule. [00:42:55] Speaker 01: So we agree with Mr. Smeltzer that the court luxury restriction, I'm prepared with the remaining time to discuss the merits if the panel would like that, but if not, then we would submit. [00:43:11] Speaker 04: Just circling back on a question that Judge Randolph had asked and that USDA had responded to. [00:43:21] Speaker 04: So is the ultimate position that there's no withdrawal or just that there's no withdrawal affected by the roadless rule? [00:43:29] Speaker 04: Because as Judge Randolph pointed out, a national forest is categorically withdrawn or not? [00:43:38] Speaker 01: Your honor, those are threshold. [00:43:41] Speaker 01: The claim fails for, I think, an even easier reason, which is the one I was discussing, which is even if one could have a withdrawal from a national forest, a withdrawal means to exempt from the operation of the public land laws. [00:43:54] Speaker 01: And the roadless rule does not exempt any lands from the mineral leasing laws. [00:43:57] Speaker 01: And mineral leasing laws still apply with this example of this geothermal lease that was granted in Belle Island. [00:44:04] Speaker 01: So I think the claim fails for [00:44:06] Speaker 01: an even more fundamental reason than that. [00:44:11] Speaker 04: It's essentially- For a narrower reason, I guess. [00:44:13] Speaker 04: It's just saying more specifically, withdrawn or not, the roadless rule doesn't withdraw these lands from the only type of use that they've identified. [00:44:33] Speaker 01: That's correct, Your Honor. [00:44:34] Speaker 01: Yeah. [00:44:35] Speaker 01: I mean, as Mr. Smeltzer discussed, the general mining law still applies. [00:44:39] Speaker 01: Access for mining is still allowed. [00:44:43] Speaker 01: And the roadless rule also does not withdraw from mineral leasing, which is, yes, Your Honor, as you suggested, the one type of use that plaintiffs have pointed to in support of their no-call argument. [00:44:57] Speaker 01: So unless there are no further questions, Your Honor, we agree that [00:45:02] Speaker 01: that either the court should dismiss for lack of jurisdiction or to the extent as jurisdiction, it should affirm the judgment below. [00:45:10] Speaker 05: Thank you, Mr. Fine. [00:45:11] Speaker 05: Ms. [00:45:12] Speaker 05: Gramling, we'll give you back your three minutes for rebuttal. [00:45:19] Speaker 02: Thank you, Your Honor. [00:45:21] Speaker 02: So to address the receipts issue, the [00:45:26] Speaker 02: The state's position is that as far as timber seeds from that, well, they're not limited to timber seeds. [00:45:31] Speaker 02: The state receives various types of mineral sharing and revenue sharing from national forests. [00:45:37] Speaker 02: Timber is just one aspect of that. [00:45:38] Speaker 02: And the roadless rule generally prohibits road construction and timber harvest, and there are serious developmental consequences to that. [00:45:46] Speaker 02: And so the roadless rule limits activities into cash, and that has [00:45:53] Speaker 02: a negative impact on the receipts that Alaska could receive. [00:45:57] Speaker 02: Secondly, Alaska, we believed that our standing is self-evident based on the allegations in our complaint and our comments in the record. [00:46:08] Speaker 02: And we would certainly be happy to provide new information, but we could also do supplemental briefing on the documents that are already in the record as well. [00:46:21] Speaker 04: What in your comments to the record are you referring to? [00:46:24] Speaker 04: Because I do think that there's a hurdle, as Mr. Fine pointed out, to when the summary judgment record was ruled on below on appeal inviting new information. [00:46:38] Speaker 04: But I think it's quite a different question whether the information is there but just hasn't been really identified, given that it wasn't as much of a sort of pointed focus [00:46:49] Speaker 04: at an earlier stage. [00:46:50] Speaker 04: So you keep mentioning the comments of Alaska as containing information that would establish the harm that the roadless rule causes to the state in the Chugach. [00:47:02] Speaker 04: And is there any citation you'd want to give us on that? [00:47:06] Speaker 02: So the comments in the record that I'm referring to are the state's comments as part of the roadless rule process. [00:47:12] Speaker 02: And so the state in the rulemaking made comments at various stages. [00:47:19] Speaker 04: specific in that you'd want us to look at? [00:47:21] Speaker 02: I don't have anything specific off the top of my head for you, but the state did make substantial comments. [00:47:27] Speaker 02: And a large portion of those comments were state-wide claims, not just Tongus-specific claims. [00:47:31] Speaker 02: The injuries are more acute in the Tongus, certainly, but that doesn't mean that they're non-existent in the Chugach, particularly when the Chugach, the roadless rule applies to nearly 99% of the Chugach. [00:47:41] Speaker 02: So the Chugach is extremely restricted, and it is a very large forest in Alaska. [00:47:48] Speaker 02: And then also turning to the substance of the ANOCA claims real quickly. [00:47:52] Speaker 02: The state's position is that while withdrawal in other statutes does have the definitions suggested by the government. [00:48:04] Speaker 02: This brings us back to sturgeon and that Alaska is different and [00:48:07] Speaker 02: the withdrawal provision in Anilka needs to be construed in accordance with the broader balance of purpose in Anilka and then other sections of that same statute. [00:48:17] Speaker 02: And so what was Congress concerned about? [00:48:19] Speaker 02: Well, Congress was concerned about quasi wilderness and conservation units being established by the federal government because that was what Alaska was protesting. [00:48:31] Speaker 02: And the Mountain Legal States case [00:48:37] Speaker 02: is shows that mineral leasing, you know, could be a withdrawal. [00:48:42] Speaker 02: And that case is very poignant from an ANILCA standpoint, because it was at the same time and with the same secretaries that were at issue during the Carter administration right before ANILCA was enacted. [00:48:55] Speaker 02: And so those were the sorts of withdrawals that were pre-served. [00:48:59] Speaker 02: And so my time is up. [00:49:00] Speaker 02: So there's not any additional questions. [00:49:02] Speaker 02: The state requests that the road list will be vacated. [00:49:07] Speaker 02: Thank you. [00:49:08] Speaker 05: Thank you, counsel. [00:49:09] Speaker 05: Thank you to all counsel. [00:49:10] Speaker 05: We'll take this case under submission.