Agri

Opinion by Judge HURWITZ; Concurrence by Judge CHRISTEN; Dissent by Judge CALLAHAN; Dissent by Judge MILAN D. SMITH, JR.; Dissent by Judge KOZINSKI.

OPINION

In 2001, the United States Department of Agriculture promulgated the “Roadless Rule,” limiting road construction and timber harvesting in national forests. The Department expressly found that exempting the Tongass National Forest from this Rule “would risk the loss of important roadless area [ecological] values.” Just two years later, relying on the identical factual record compiled in 2001, the Department reversed course, finding “[application of the roadless rule to the Tongass ... unnecessary to maintain the roadless values.”

The issue in this case is whether the Department sufficiently explained this dramatically changed finding. Like the district court, we conclude that the Administrative Procedure Act requires a reasoned explanation for this change in course, and affirm the judgment below.

I.

A. The 2001 Roadless Rule

Approximately one-third of National Forest Service lands, some 58.5 million acres, is designated by the Department of Agriculture as inventoried roadless areas. See Special Areas; Roadless Area…

concurring:

As the court’s opinion recognizes, the Tongass is vitally important to Southeast Alaska. The court is equally express in acknowledging that changes .of administration can indeed have consequences. Neither of these points is in dispute.

This case is unique because no new facts were presented between the'time the Department of Agriculture adopted the Road-less Rule in 2001 and the time it reversed its decision in 2003. The outcome of the case pivots on the undeniable: the 2003 *971 decision was contradicted by the agency’s previous factual findings. In 2001, the agency found that “[ajllowing road construction and reconstruction on the Ton-gass National Forest to continue unabated would risk the loss of important roadless area values.” Special Areas; Roadless Area Conservation, 66 Fed.Reg. 3,244, 3,254-55 (Dep’t of Agric. Jan. 12, 2001) (to be codified at 36 C.F.R. §§ 294.10-294.14 ). In 2003, the agency concluded that “the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits because the Tongass Forest Plan adequately provides for the ecological sustainability of the Tongass.” Special Areas; Roadless Area Conservation;…

dissenting:

I join Judge M. Smith’s masterful dissent in full. I write only to note 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. How can a President with a mere four or eight years in office hope to accomplish any meaningful policy change- — as the voters have a right to expect when they elect a new President — if he enters the White House tethered by thousands of Lilliputian ropes of administrative procedure? The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites the type of judicial policymaking that Judge Smith points out. This is just one of the ways we as a nation have become less a democracy and more an oligarchy governed by a cadre of black-robed mandarins. I seriously doubt this is what the Founding Fathers had in mind and worry about the future of the Republic if the political branches fail to take back the power the Constitution properly assigns to them.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORGANIZED VILLAGE OF KAKE; THE No. 11-35517

BOAT COMPANY; ALASKA

WILDERNESS RECREATION AND D.C. No. TOURISM ASSOCIATION; SOUTHEAST 1:09-cv-00023-

ALASKA CONSERVATION COUNCIL; JWS

NATURAL RESOURCES DEFENSE

COUNCIL; TONGASS CONSERVATION

SOCIETY; GREENPEACE, INC.; OPINION

WRANGELL RESOURCE COUNCIL;

CENTER FOR BIOLOGICAL

DIVERSITY; DEFENDERS OF

WILDLIFE; CASCADIA WILDLANDS;

SIERRA CLUB,

Plaintiffs-Appellees,

v.

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.

Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding

Argued and Submitted En Banc December 16, 2014—Pasadena,…

dissenting:

The State of Alaska appeals the District Court for the District of Alaska’s decision setting aside the Departure of Agriculture’s exemption of the Tongass National Forest from the Roadless Rule. The majority holds that Alaska has standing to appeal based on a statutory entitlement— *972 an option to collect a share of the revenue the United States makes from timber harvested from national forests in Alaska. See 16 U.S.C. § 500 (creating the National Forest Receipts Program). But Alaska does not have standing based on this statutory interest. A statutory provision is insufficient to establish Article III standing where, as here, the right it creates has not been invaded, Congress did not intend to legislate standing, and no factual injury has been suffered. The majority strays well beyond Article Ill’s confines in holding that Congress legislated standing by creating a revenue-sharing program. The majority alarmingly opens the door to governance of the nation’s natural resources by injunction, but only to those groups powerful enough to secure a statutory entitlement tied to development of those resources. Moreover, Alaska has not lost any revenue or even alleged that…

dissenting:

Elections have legal consequences. When a political leader from one party becomes president of the United States after a president from another party has occupied the White House for the previous term, the policies of the new president will occasionally clash with, and supplant, those of the previous president, often leading to changes in rules promulgated pursuant to the Administrative Procedure Act (APA), Pub.L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. § 701 et seq.). See, e.g., Animal Legal Def. Fund v. Veneman, 469 F.3d 826 , 830-31 (9th Cir.2006) (withdrawal under President George W. Bush of agricultural policy announced under President Clinton), vacated en banc, 490 F.3d 725 (9th Cir.2007); Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 824 F.2d 1146 , 1149 (D.C.Cir.1987) (withdrawal under President Reagan of an emission standard from President Carter’s administration), vacated, 817 F.2d 890 (D.C.Cir.1987); Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 617 (D.C.Cir.1987), vacated sub nom., Farmworkers Justice Fund, Inc. v. Brock, 817 F.2d 890 (D.C.Cir.1987) (withdrawal by President Reagan’s Secretary of Labor of…