It’s not over until it’s over. The State of Alaska was recently given another opportunity to challenge the U.S. Forest Service’s 2001 “Roadless Rule,” a rule that prohibits the construction and repairs of roads and timber harvesting on millions of acres in the national forests. The case is State of Alaska v. U.S. Department of Agriculture, et al. On November 7, 2014, the D.C. Circuit Court of Appeals reversed the District Court’s dismissal of the State of Alaska’s challenge to the Forest Service’s January 2001 “Roadless Rule,” a rule repealed by the Forest Service in 2005 and reinstated by the District Court for the Northern District of California in a decision issued in 2006, California ex rel. Lockyer v. U.S. Department of Agriculture, 459 F. Supp. 2d 874, 916 (N.D. Cal. 2006) (court reasoned that the elimination of a major nationwide land management program would be sufficient to trigger environmental analysis, rejecting the Department of Agriculture’s argument that replacing the Roadless Rule was a paper exercise).
In 2011, the State of Alaska filed a challenge to the reinstated 2001 “Roadless Rule.” The District Court for the District of Columbia dismissed the action as being untimely filed under 28 U.S.C. § 2401. The Forest Service argued that the State of Alaska’s challenge was out of time because, according to the Forest Service, Alaska’s right of action accrued in 2001 when the 2001 Roadless Rule was issued. On appeal, the Court of Appeals held that “[t]he fundamental problem with the Forest Service’s argument is that the Forest Service repealed the Roadless Rule in 2005. The Forest Service’s 2005 repeal of the Roadless Rule extinguished the right of action that had accrued in 2001.” It further held that the 2006 action of the California District Court effectively resulted in the issuance of “a new rule identical to an old repealed rule” being issued, and created a new right of action “accrued”; “[t]he Forest Service concedes that a new right of action would have accrued in 2006 if the agency acting on its own had issued the new rule.” Accordingly, the Court of Appeals held that the ability of the State of Alaska to file this lawsuit was revived, and its lawsuit is timely. It cited to the “reopener” doctrine, a doctrine “giving rise to a ‘new right of action’ even though the regulation challenged is no different,” citing Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997). The case was remanded to the District Court for consideration of the State of Alaska’s challenges to the reinstated rule.