Organized Village of Kake v. United States Department of Agriculture

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,
2 ORGANIZED VILLAGE OF KAKE V. USDA

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, California

Filed July 29, 2015

Before: Sidney R. Thomas, Chief Judge, and Harry
Pregerson, Alex Kozinski, William A. Fletcher, Richard C.
Tallman, Richard R. Clifton, Consuelo M. Callahan, Milan
D. Smith, Jr., Morgan Christen, Jacqueline H. Nguyen,
Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;
Concurrence by Judge Christen;
Dissent by Judge Callahan;
Dissent by Judge M. Smith, Jr.;
Dissent by Judge Kozinski
 ORGANIZED VILLAGE OF KAKE V. USDA 3

SUMMARY*

Environmental Law

The en banc court affirmed the district court’s summary
judgment in favor of the Organized Village of Kake, finding
that the United States Department of Agriculture’s
promulgation of the Tongass National Forest Exemption to
the Department’s “Roadless Rule” (limiting road construction
and timber harvesting in national forests) violated the
Administrative Procedure Act; vacated the Tongass
Exemption; and reinstated application of the Roadless Rule
to the Tongass National Forest in Alaska.

The U.S. Department of Agriculture declined to appeal,
but intervenor-defendant State of Alaska appealed. Under the
National Forest Receipts program, Alaska has a right to
twenty-five percent of gross receipts of timber sales from
national forests in the State.

In 2001, the Department of Agriculture promulgated the
Roadless Rule, and expressly refused to exempt the Tongass
National Forest from the Rule (the “2001 Record of
Decision”). In 2003, relying on the identical factual record
complied in 2001, the Department reversed course and found
that application of the Roadless Rule to Tongass was
unnecessary. The Department’s 2003 Record of Decision
promulgated the Tongass Exemption.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ORGANIZED VILLAGE OF KAKE V. USDA

The en banc court held that the effect of the Roadless
Rule on Alaska’s statutory entitlement to timber receipts
meant that the State of Alaska had an interest in the judgment
sufficient to establish Article III standing. The en banc court
also held that the 2003 Record of Decision fell short of
Administrative Procedure Act requirements. The en banc
court further held that the Tongass Exemption was invalid
because the Department failed to provide a reasoned
explanation for contradicting the findings in the 2001 Record
of Decision. As a remedy, the en banc court upheld the
district court’s reinstatement of the Roadless Rule which
remained in effect and applied to the Tongass Forest.

Concurring, Judge Christen, joined by Chief Judge
Thomas, wrote separately to voice her view that there was no
indication that the district court judge who first ruled in this
case decided it based on his own view, and this court did not
do so either.

Dissenting, Judge Callahan would hold that Alaska does
not have Article III standing to appeal, and the appeal should
be dismissed for lack of appellate jurisdiction. Judge
Callahan also joined Judge M. Smith’s dissent on the merits,
and would reverse and remand.

Dissenting, Judge M. Smith, joined by Kozinski, Tallman,
Clifton, and Callahan, wrote that the Department of
Agriculture followed President Bush’s policy instructions
when it amended the Roadless Rule in 2003, and the agency’s
explanations for its decisions easily met the requirements of
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513–15
(2000) (holding that a court should not substitute its judgment
for that of an agency and should uphold an agency decision
where the agency’s path may be reasonably discerned).
 ORGANIZED VILLAGE OF KAKE V. USDA 5

Judge M. Smith would hold that the Department was not
arbitrary and capricious in 2003 when it exempted the
Tongass National Forest from the Roadless Rule, and would
reverse the district court’s decision. He would also remand
to the district court to consider the Village’s National
Environmental Policy Act claims in the first instance.

Dissenting, Judge Kozinski joined Judge M. Smith’s
dissent in full, and wrote separately to note the glacial pace of
administrative litigation.
6 ORGANIZED VILLAGE OF KAKE V. USDA

COUNSEL

Dario Borghesan (argued), Assistant Attorney General,
Anchorage, Alaska; Thomas E. Lenhart, Assistant Attorney
General, Juneau, Alaska, for Intervenor-Defendant–Appellant
State of Alaska.

Thomas S. Waldo (argued) and Eric P. Jorgensen,
Earthjustice, Juneau, Alaska; Nathaniel S.W. Lawrence,
Natural Resources Defense Council, Olympia, Washington,
for Plaintiffs-Appellees.

Julie A. Weis, Haglund Kelley Jones & Wilder LLP,
Portland, Oregon, for Amicus Curiae Alaska Forest
Association, Inc.
 ORGANIZED VILLAGE OF KAKE V. USDA 7

OPINION

HURWITZ, Circuit Judge:

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 “[a]pplication 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 Conservation, 66 Fed. Reg. 3244, 3245 (Jan.
12, 2001) (to be codified at 36 C.F.R. §§ 294.10–294.14) (the
“2001 ROD”). These “large, relatively undisturbed
landscapes” have a variety of scientific, environmental,
recreational, and aesthetic attributes and characteristics
unique to roadless areas, which the Department refers to as
“roadless values.” Id. at 3245, 3251. As the 2001 ROD
8 ORGANIZED VILLAGE OF KAKE V. USDA

explained, these include healthy watersheds critical for
catching and storing water, protecting downstream
communities from flooding, providing clean water for
domestic and agricultural purposes, and supporting healthy
fish and wildlife populations. Id. at 3245. Roadless area
attributes also include habitats for threatened and endangered
species, space for wilderness recreation, environments for
research, traditional cultural properties and sacred sites, and
defensive zones against invasive species. Id.

Inventoried roadless lands were historically managed
through local- and forest-level plans. Id. at 3246–47. In
2000, citing the “costly and time-consuming appeals and
litigation” that plagued this process, id. at 3244, the
Department considered a national roadless lands policy that
would look at “the ‘whole picture’ regarding the management
of the National Forest System,” id. at 3246–48. The
Department undertook to answer two questions when it
started this process. The first was whether to prohibit timber
harvesting and road construction (or reconstruction) within
inventoried roadless areas of our national forests. Id. at 3262.
The second question recognized the unique nature of the
Tongass National Forest, which, at 16.8 million acres, is the
nation’s largest national forest.1 Id. The issue was whether
to exempt the Tongass from the proposed Roadless Rule in
whole or in part. Id. at 3262–63. Thus, the Department

1
The Tongass is vitally important to the economy of Southeast Alaska;
it supports significant timber and mining activity as well as commercial
and recreational fishing, hunting, recreation, and tourism. The Tongass
is also part of the Pacific coast ecoregion, which encompasses one fourth
of the world’s coastal temperate rainforests. Id. at 3254. The Tongass has
a very high degree of ecosystem health, and a higher percentage of
inventoried roadless acreage than any Forest Service region in the
contiguous United States.
 ORGANIZED VILLAGE OF KAKE V. USDA 9

examined four alternatives for treating the Tongass under the
Roadless Rule: applying any new rule to the Tongass with no
exceptions (Tongass Not Exempt), excluding the Tongass
from a new rule altogether (Tongass Exempt), postponing any
decision on the application of a new rule to the Tongass until
2004 (Tongass Deferred), and applying some of the
prohibitions of a new rule only to certain parts of the Tongass
(Tongass Selected Areas). Id. No other national forest
received such special consideration in the Department’s
nationwide assessment of the proposed Roadless Rule.

Given the unique importance of the Tongass and the
many competing interests in its use and management, it was
not surprising that thousands of public comments concerning
the proposed rule were received, or that the Department gave
the Tongass special consideration. Id. at 3248.
Approximately 16,000 people attended 187 public meetings,
and the Department received more than 517,000 comments
on the proposed rule. Id. The 2001 ROD squarely
recognized that adopting the Roadless Rule risked significant
and negative local economic impact for the Tongass:

With the recent closure of pulp mills and the
ending of long-term timber sale contracts, the
timber economy of Southeast Alaska is
evolving to a competitive bid process. About
two-thirds of the total timber harvest planned
on the Tongass National Forest over the next
5 years is projected to come from inventoried
roadless areas. If road construction were
immediately prohibited in inventoried
roadless areas, approximately 95 percent of
the timber harvest within those areas would be
eliminated.
10 ORGANIZED VILLAGE OF KAKE V. USDA

* * *

Based on the analysis contained in the [Final
Environmental Impact Statement], a decision
to implement the rule on the Tongass National
Forest is expected to cause additional adverse
economic effects to some forest dependent
communities ([Final Environmental Impact
Statement] Vol. 1, 3-326 to 3-350). During
the period of transition, an estimated 114
direct timber jobs and 182 total jobs would be
affected. In the longer term, an additional 269
direct timber jobs and 431 total jobs may be
lost in Southeast Alaska.

Id. at 3254–55.

In light of these socio-economic concerns, the proposed
Roadless Rule suggested the Tongass Deferred option. See
Special Areas; Roadless Area Conservation, 65 Fed. Reg.
30,276, 30,277, 30,280–81 (May 10, 2000) (notice of
proposed rulemaking). But the 2001 ROD expressly found
that such an approach “would risk the loss of important
roadless area values” in the Tongass. 66 Fed. Reg. at 3254.
The 2001 ROD also rejected the Tongass Selected Areas
option, finding that even under that more limited approach,
“[i]mportant roadless area values would be lost or
diminished.” Id. at 3266. Ultimately, the Department
adopted a national Roadless Rule prohibiting road
construction and timber harvesting in inventoried roadless
areas of the National Forest System except for specified
“human and environmental protection measures.” Id. at
3263. The Department decided that the Roadless Rule would
apply to the Tongass, but with several exceptions designed to
 ORGANIZED VILLAGE OF KAKE V. USDA 11

mitigate the impacts of the Rule in Southeast Alaska. The
exceptions allowed: (1) road construction and reconstruction
in certain mineral-leasing areas, (2) timber harvest in areas
where roadless characteristics had been substantially altered
by road construction or timber harvest since the area was
designated an inventoried roadless area but before
implementation of the Roadless Rule, and (3) planned timber
harvest and road construction in areas where a notice of
availability of a draft environmental impact statement had
been published in the Federal Register prior to publication of
the Roadless Rule. Id. at 3266. The Department estimated
that these exceptions would together allow enough continued
timber harvest from the Tongass “to satisfy about seven years
of estimated market demand.” Id.

B. The Roadless Rule Litigation

Although the Department intended the Roadless Rule to
reduce litigation about forest management, see id. at 3244,
3246, that hope was promptly dashed. Litigation over the
Roadless Rule began immediately after its adoption. In 2001,
an Idaho district judge preliminarily enjoined implementation
of the Roadless Rule, citing violations of the National
Environmental Policy Act, 42 U.S.C. §§ 4321–4347
(“NEPA”). Kootenai Tribe of Idaho v. Veneman, No.
01-10-N-EJL, 2001 WL 1141275, at *2 (D. Idaho May 10,
2001). This court reversed, finding that plaintiffs had not
shown a likelihood of success on their NEPA claim.
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1126
(9th Cir. 2002), abrogated on other grounds by Wilderness
Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1178–80 (9th Cir.
2011) (en banc). The Roadless Rule took effect when the
Kootenai mandate issued in April 2003. See California ex
12 ORGANIZED VILLAGE OF KAKE V. USDA

rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1007 (9th
Cir. 2009) (describing history of the Roadless Rule).

The State of Alaska also challenged the Roadless Rule
soon after its adoption. The State’s complaint, filed in the
District of Alaska in 2001, claimed that the promulgation of
the Roadless Rule violated NEPA, the Administrative
Procedure Act, 5 U.S.C. §§ 551–559, 701–706 (“APA”), the
Alaska National Interest Lands Conservation Act, 16 U.S.C.
§§ 3101–3233 (“ANILCA”), the Tongass Timber Reform
Act, Pub. L. No. 101-626, 104 Stat. 4426 (1990) (codified as
amended in scattered sections of 16 U.S.C.) (“TTRA”), and
other federal statutes. Complaint, Alaska v. U.S. Dep’t of
Agric., No. 3:01-cv-00039-JKS (D. Alaska Jan. 31, 2001),
ECF No. 1; see also Organized Vill. of Kake v. U.S. Dep’t of
Agric., 776 F. Supp. 2d 960, 964 (D. Alaska 2011)
(describing this litigation). The case settled, and Alaska’s
complaint was dismissed.2 Organized Vill., 776 F. Supp. 2d
at 964.

Four months after this court decided Kootenai, the
Roadless Rule was permanently enjoined by a Wyoming
district court that found the rule violated both NEPA and the
Wilderness Act, 16 U.S.C. §§ 1131–1136. Wyoming v. U.S.
Dep’t of Agric., 277 F. Supp. 2d 1197, 1239 (D. Wyo. 2003),
vacated, Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207,
1211, 1214 (10th Cir. 2005). While that ruling was on

2
Alaska again challenged the validity of the Roadless Rule in 2011, this
time in the District of Columbia. The district court found the action barred
by the statute of limitations. Alaska v. U.S. Dep’t of Agric., 932 F. Supp.
2d 30, 33–34 (D.D.C. 2013). The D.C. Circuit reversed, holding that the
limitations period had reset when the Roadless Rule was reinstated in
2006. Alaska v. U.S. Dep’t of Agric., 772 F.3d 899, 900 (D.C. Cir. 2014).
This litigation remains pending.
 ORGANIZED VILLAGE OF KAKE V. USDA 13

appeal, the Department promulgated the “Special Areas; State
Petitions for Inventoried Roadless Area Management” rule
(the “State Petitions Rule”). 70 Fed. Reg. 25,654 (May 13,
2005) (to be codified at 36 C.F.R. §§ 294.10–294.18). The
State Petitions Rule replaced the Roadless Rule with a
process under which the “Governor of any State or territory
that contains National Forest System lands” could “petition
the Secretary of Agriculture to promulgate regulations
establishing management requirements for all or any portion
of National Forest System inventoried roadless areas within
that State or territory.” Id. at 25,661. In light of the new rule,
the Tenth Circuit dismissed the Department’s appeal from the
Wyoming district court judgment as moot and vacated the
judgment. Wyoming, 414 F.3d at 1211, 1214.

A year later, however, a California district court set aside
the State Petitions Rule, finding it invalid under NEPA and
the Endangered Species Act, 16 U.S.C. §§ 1531–1544; the
district court therefore reinstated the Roadless Rule.
California ex rel. Lockyer v. U.S. Dep’t of Agric., 459 F.
Supp. 2d 874, 909, 912, 919 (N.D. Cal. 2006). This court
affirmed. Lockyer, 575 F.3d at 1021. In 2008, a Wyoming
district court again permanently enjoined the Roadless Rule.
Wyoming v. U.S. Dep’t of Agric., 570 F. Supp. 2d 1309, 1355
(D. Wyo. 2008), rev’d, Wyoming v. U.S. Dep’t of Agric.,
661 F.3d 1209, 1272 (10th Cir. 2011). In 2011, the Tenth
Circuit once again reversed. Wyoming, 661 F.3d at 1272.

C. The Tongass Exemption

In return for Alaska’s dismissal of its 2001 suit
challenging the Roadless Rule, the Department agreed to
publish (but not necessarily to adopt) a proposed rule, the
“Tongass Exemption,” to “temporarily exempt the Tongass
14 ORGANIZED VILLAGE OF KAKE V. USDA

from the application of the roadless rule” as well as an
advanced notice of proposed rulemaking to permanently
exempt the Tongass and another Alaska national forest from
the Roadless Rule. See Special Areas; Roadless Area
Conservation; Applicability to the Tongass National Forest,
Alaska, 68 Fed. Reg. 41,865, 41,866 (Jul. 15, 2003) (notice
of proposed rulemaking). In December of 2003, the
Department issued a record of decision (the “2003 ROD”)
promulgating the final Tongass Exemption, the “Special
Areas; Roadless Conservation; Applicability to the Tongass
National Forest, Alaska” rule. 68 Fed. Reg. 75,136 (Dec. 30,
2003) (to be codified at 36 C.F.R. § 294.14). The 2003 ROD
expressly found that “the overall decisionmaking picture”
was not “substantially different” from when the 2001 ROD
was promulgated, id. at 75,141, and that public comments
about the Tongass Exemption “raised no new issues . . . not
already fully explored” in the earlier rulemaking, id. at
75,139. Thus, the Department relied on the 2001 Roadless
Rule Final Environmental Impact Statement (“Roadless Rule
FEIS”), rather than preparing a new one. Id. at 75,136,
75,141.

The 2003 ROD adopted the Tongass Exempt Alternative
identified in the 2001 ROD, thus returning the Tongass to
management through a local forest plan, the Tongass Forest
Plan. Id. at 75,136. Contrary to the 2001 ROD, the 2003
ROD concluded “[a]pplication of the roadless rule to the
Tongass is unnecessary to maintain the roadless values of
these areas,” id. at 75,137, which the Department found were
already “well protected by the Tongass Forest Plan,” id. at
75,144.
 ORGANIZED VILLAGE OF KAKE V. USDA 15

D. The Procedural History of This Case

In 2009, the Organized Village of Kake and others
(collectively, the “Village”) filed this suit in the District of
Alaska, alleging that the Tongass Exemption violated NEPA
and the APA. See Organized Vill., 776 F. Supp. 2d at 967.
The State of Alaska intervened as a party-defendant. Id. at
961. The district court granted summary judgment to the
Village, finding the promulgation of the Tongass Exemption
violated the APA, 5 U.S.C. § 706(2)(A), because “the Forest
Service provided no reasoned explanation as to why the
Tongass Forest Plan protections it found deficient in [2001],
were deemed sufficient in [2003].” Id. at 974, 977. The court
thus vacated the Tongass Exemption and reinstated
application of the Roadless Rule to the Tongass.3 Id. at 977.

The Department declined to appeal. See Organized Vill.
of Kake v. U.S. Dep’t of Agric., 746 F.3d 970, 973 (9th Cir.
2014). Alaska, however, did appeal, and a divided three-
judge panel of this court reversed the district court’s APA
ruling and remanded for consideration of the Village’s NEPA
claim.4 Id. at 973, 980. A majority of the nonrecused active
judges on this court then voted to grant the Village’s petition
for rehearing en banc. See Organized Vill. of Kake v. U.S.
Dep’t of Agric., 765 F.3d 1117 (9th Cir. 2014).

3
Because the court found the Tongass Exemption invalid under the
APA, it did not reach the Village’s NEPA claim. Organized Vill., 776 F.
Supp. 2d at 976.
4
The Alaska Forest Association also intervened below, but did not
appeal, instead filing a brief as amicus curiae. Amicus Brief, Organized
Vill., No. 11-35517 (9th Cir. Nov. 1, 2011), ECF No.19.
16 ORGANIZED VILLAGE OF KAKE V. USDA

II.

A. Jurisdiction

We begin, as we did in Kootenai, by examining “whether
the intervenor[] may defend the government’s alleged
violations of . . . the APA when the federal defendants have
decided not to appeal.” 313 F.3d at 1107. Although the
Village does not challenge Alaska’s standing, that silence
does not excuse us from determining whether we have
appellate jurisdiction. United Investors Life Ins. Co. v.
Waddell & Reed Inc., 360 F.3d 960, 966–67 (9th Cir. 2004).5

“[I]ntervenors are considered parties entitled . . . to seek
review,” but “an intervenor’s right to continue a suit in the
absence of the party on whose side intervention was
permitted is contingent upon a showing by the intervenor that
he fulfills the requirements of Art. III.” Diamond v. Charles,
476 U.S. 54, 68 (1986). To establish Article III standing, a
party must demonstrate “injury in fact,” causation, and
redressability. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
When the original defendant does not appeal, “the test is
whether the intervenor’s interests have been adversely
affected by the judgment.” Didrickson v. U.S. Dep’t of
Interior, 982 F.2d 1332, 1338 (9th Cir. 1992).

Under the National Forest Receipts program, Alaska has
a right to twenty-five percent of gross receipts of timber sales
from national forests in the State. See 16 U.S.C. § 500.

5
The D.C. Circuit did not question Alaska’s standing in the litigation
before that court about the 2001 ROD. Alaska, 772 F.3d at 899–900.
 ORGANIZED VILLAGE OF KAKE V. USDA 17

Accordingly, from 1970 through 2001, Alaska received more
than $93 million in Tongass receipts. The permitted amount
of timber harvesting in the Tongass is directly affected by the
Tongass Exemption. See 2001 ROD, 66 Fed. Reg. at 3270
(finding that under the Roadless Rule, “[h]arvest effects on
the Tongass National Forest will be reduced about 18 percent
in the short-term” and “about 60 percent” in the long-term).
The effect of the Roadless Rule on Alaska’s statutory
entitlement to timber receipts means that Alaska has an
interest in the judgment, Didrickson, 982 F.2d at 1338,
sufficient to establish Article III standing, see Watt v. Energy
Action Educ. Found., 454 U.S. 151, 160–61 (1981).

Our dissenting colleague argues that Article III standing
is absent because “Congress did not intend to legislate
standing” for a state under 16 U.S.C. § 500. This argument
misses the mark. As the Supreme Court has recently made
clear, whether Congress created a private cause of action in
legislation is not a question of Article III standing. See
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1386–88 & n.4 (2014). Notwithstanding that courts
sometimes have mistakenly referred to this inquiry as
involving “prudential standing,” the Court has made plain
that it “does not implicate subject-matter jurisdiction, i.e., the
court’s statutory or constitutional power to adjudicate the
case.” Id. at 1387 & n.4 (internal quotation marks omitted)
(noting that “prudential standing” is a “misnomer”). Here,
Alaska does not pursue a claim under the National Forest
Receipts program. Rather, this is an APA action initiated by
the Village challenging the Tongass Exemption. In such an
action, we apply the familiar “zone of interests” test. Id. at
1388–89. The Supreme Court has emphasized,
18 ORGANIZED VILLAGE OF KAKE V. USDA

in the APA context, that the test is not
especially demanding. In that context we
have often conspicuously included the word
“arguably” in the test to indicate that the
benefit of any doubt goes to the plaintiff, and
have said that the test forecloses suit only
when a plaintiff’s interests are so marginally
related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably
be assumed that Congress authorized that
plaintiff to sue. That lenient approach is an
appropriate means of preserving the flexibility
of the APA’s omnibus judicial-review
provision, which permits suit for violations of
numerous statutes of varying character that do
not themselves include causes of action for
judicial review. We have made clear,
however, that the breadth of the zone of
interests varies according to the provisions of
law at issue, so that what comes within the
zone of interests of a statute for purposes of
obtaining judicial review of administrative
action under the generous review provisions
of the APA may not do so for other purposes.

Id. at 1389 (citations and internal quotation marks omitted).

There can be no doubt that the Village more than amply
met the forgiving “zone of interests” test when it instituted
this APA action. That resolves the issue, because “[a]n
intervenor’s standing to pursue an appeal does not hinge upon
whether the intervenor could have sued the party who
 ORGANIZED VILLAGE OF KAKE V. USDA 19

prevailed in the district court.” Didrickson, 982 F.2d at
1338.6

Of course, Alaska must also have Article III standing.
Thus, the only issue really before us is whether the judgment
below threatens Alaska with an injury in fact that gives the
State a “stake in defending . . . enforcement” of the Tongass
Exemption sufficient to satisfy Article III. Hollingsworth v.
Perry, 133 S. Ct. 2652, 2663 (2013) (internal quotation marks
omitted). In this respect, contrary to the dissent, Energy
Action Educational Foundation is on all fours. Under the
Outer Continental Shelf Lands Act Amendments of 1978
(“OCS”), the federal government was required to share
revenues from a federal OCS lease with a state owning
adjoining portions of an oil and gas pool. Energy Action
Educ. Found., 454 U.S. at 160–61. When California
challenged the bidding system used for awarding federal
leases, the Secretary of the Interior disputed the State’s
standing. Id. In finding that California alleged a potential
injury sufficient to establish Article III standing, the Court
relied expressly on the State’s right to revenues under the
1978 OCS amendments:

The 1978 Amendments require the Federal
Government to turn over a fair share of the
revenues of an OCS lease to the neighboring

6
Even if we were required to determine whether Alaska satisfied the
zone of interest test in this action, the answer would be the same. The
State’s interests in timber harvesting, road construction, and economic
development are directly impacted by the Tongass Exemption, and are
extensively discussed in the 2003 ROD. See Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)
(explaining that APA standing requires only that a party’s interests be
“marginally” related to the challenged action).
20 ORGANIZED VILLAGE OF KAKE V. USDA

coastal State whenever the Federal
Government and the State own adjoining
portions of an OCS oil and gas pool.
California thus has a direct financial stake in
federal OCS leasing off the California coast.
In alleging that the bidding systems currently
used by the Secretary of the Interior are
incapable of producing a fair market return,
California clearly asserts the kind of distinct
and palpable injury that is required for
standing.

Id. at 160–61 (citations and internal quotation marks
omitted).7

The royalties due California under the OCS are
indistinguishable for Article III purposes from the fractional
timber receipts due Alaska under the National Forest Receipts
program. It is not disputed that reinstatement of the Roadless
Rule in the Tongass will limit timbering and thereby reduce
Alaska’s statutory entitlement to fractional receipts. Alaska’s
claimed injury is thus precisely the same kind of “injury in
fact” alleged by California with respect to the federal lease

7
Contrary to the dissent, the Court did not rely on California’s
ownership of adjacent oil deposits in finding a sufficient injury to establish
Article III standing. Although the Court properly noted that the OCS
required the Secretary “to use the best bidding systems and thereby assure
California a fair return for its resources,” Energy Action Educ. Found.,
454 U.S. at 161, it did so when analyzing causation and redressability
after it had already found that California’s right to statutory payment
established the requisite injury in fact.
 ORGANIZED VILLAGE OF KAKE V. USDA 21

bidding system—loss of funds promised under federal
law—and satisfies Article III’s standing requirement.8

To be sure, Alaska and its government subdivisions have
elected since 2001 to receive payments under the Secure
Rural Schools and Community Self-Determination Act of
2000, Pub. L. No. 106-393, 114 Stat. 1607, and successor
legislation, in lieu of the fractional payments.9 But,
Congress’s current decision to protect beneficiaries of the
National Forest Receipts program against declines in
timbering revenues does not vitiate Alaska’s Article III
standing to challenge the reinstatement of the Roadless Rule.
The Rule directly affects the size of Alaska’s statutory
entitlement to receipts from timbering, whether or not
Congress chooses in any year to hold the state harmless
against those losses, just as a plaintiff with an insurance
policy has standing to sue a defendant who has damaged his
home, even though in the end the insurer (or even the

8
The dissent correctly does not contest that the causation and
redressability prongs of Article III standing are satisfied here.
9
The Secure Rural Schools Act was reauthorized numerous times before
it briefly expired in 2014. See U.S. Troop Readiness, Veterans’ Care,
Katrina Recovery, and Iraq Accountability Appropriations Act § 5401,
Pub. L. No. 110-28, 121 Stat. 112 (2007); Emergency Economic
Stabilization Act § 601, Pub. L. No. 110-343, 122 Stat. 3765 (2008);
Moving Ahead for Progress in the 21st Century Act § 100101, Pub. L. No.
112-141, 126 Stat. 405 (2012); Helium Stewardship Act of 2013 § 10(a),
Pub. L. No. 113-40, 127 Stat. 534 (2013). The Secure Rural Schools Act
was reauthorized for two years on April 27, 2015. See Medicare Access
and CHIP Reauthorization Act § 524, Pub. L. No. 114-10, 129 Stat. 87
(2015).
22 ORGANIZED VILLAGE OF KAKE V. USDA

homeowner’s uncle) has agreed to indemnify the homeowner
for all losses.10

B. The APA claim

1. The APA Requirements for a Change of Agency
Policy

The APA requires a court to “hold unlawful and set aside
agency action, findings, and conclusions found to be—(A)
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Agency
action is “arbitrary and capricious if the agency has . . .
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). “Unexplained inconsistency” between agency actions
is “a reason for holding an interpretation to be an arbitrary
and capricious change.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 981 (2005).

The Supreme Court addressed the application of the APA
to agency policy changes in FCC v. Fox Television Stations,
Inc., 556 U.S. 502 (2009). In Fox, the Court held that a
policy change complies with the APA if the agency
(1) displays “awareness that it is changing position,”
(2) shows that “the new policy is permissible under the

10
Because the Roadless Rule’s impact on Alaska’s right to fractional
receipts under the National Forest Receipts program suffices to establish
Article III injury in fact, we need not consider other possible bases for
Article III standing.
 ORGANIZED VILLAGE OF KAKE V. USDA 23

statute,” (3) “believes” the new policy is better, and
(4) provides “good reasons” for the new policy, which, if the
“new policy rests upon factual findings that contradict those
which underlay its prior policy,” must include “a reasoned
explanation . . . for disregarding facts and circumstances that
underlay or were engendered by the prior policy.” Id. at
515–16 (emphasis omitted).

Fox involved the FCC’s decision to treat isolated uses of
non-literal profanity in television broadcasts as indecency, a
reversal of agency policy. Id. at 508–10. Because the FCC
had not based its prior policy on factual findings, but rather
on its reading of Supreme Court precedent, the Fox majority
did not explore the kind of “reasoned explanation” necessary
to justify a policy change that rested on changed factual
findings. See id. at 538 (Kennedy, J., concurring). But,
Justice Kennedy, whose concurrence provided the fifth vote
in the Fox 5–4 majority, plumbed this issue in his opinion.
See id. at 535–39.

As a paradigm of the rule that a policy change violates the
APA “if the agency ignores or countermands its earlier
factual findings without reasoned explanation for doing so,”
Justice Kennedy cited State Farm. Id. at 537. That case
involved congressional direction to an agency to issue
regulations for “motor vehicle safety.” Id. (quoting State
Farm, 463 U.S. at 33). The agency issued a regulation
requiring cars to have airbags or automatic seatbelts, finding
that “these systems save lives.” Id. at 537–38 (citing State
Farm, 463 U.S. at 35, 37). After a change in presidential
administrations, however, the agency rescinded the
regulation, never addressing its previous findings. Id. at 538
(citing State Farm, 463 U.S. at 47–48). As Justice Kennedy
noted, the “Court found the agency’s rescission arbitrary and
24 ORGANIZED VILLAGE OF KAKE V. USDA

capricious because the agency did not address its prior factual
findings.” Id. (citing State Farm, 463 U.S. at 49–51).

The central issue in this case is whether the 2003 ROD
rests on factual findings contradicting those in the 2001 ROD,
and thus must contain the “more substantial justification” or
reasoned explanation mandated by Fox. Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015). We conclude
that the 2003 ROD falls short of these APA requirements.

2. The Tongass Exemption Violated the APA

After compiling a detailed factual record, the Department
found in the 2001 ROD that “the long-term ecological
benefits to the nation of conserving these inventoried roadless
areas outweigh the potential economic loss to [southeast
Alaska] communities” from application of the Roadless Rule.
66 Fed. Reg. at 3255. On precisely the same record, the 2003
ROD instead concluded that the “the social and economic
hardships to Southeast Alaska outweigh the potential
long-term ecological benefits” of the Roadless Rule. 68 Fed.
Reg. at 75,141. Alaska contends, and we agree, that the 2003
ROD is a change in policy.

We also agree with Alaska that the 2003 ROD complies
with three of the Fox requirements. First, the Department
displayed “awareness that it is changing position.” Fox,
556 U.S. at 515. The 2003 ROD acknowledges that the
Department rejected the Tongass Exemption in 2001 and
recognizes that it is now “treating the Tongass differently.”
68 Fed. Reg. at 75,139. Second, the 2003 ROD asserts that
“the new policy is permissible” under the relevant statutes,
ANILCA and TTRA. Fox, 556 U.S. at 515; 68 Fed. Reg. at
75,142. Third, we assume the Department “believes” the new
 ORGANIZED VILLAGE OF KAKE V. USDA 25

policy is better because it decided to adopt it. Fox, 556 U.S.
at 515 (emphasis omitted).

It is the Department’s compliance with the fourth Fox
requirement, that it give “good reasons” for adopting the new
policy, upon which this case turns. Id. The 2003 ROD
explicitly identifies the Department’s reasons for “Going
Forward With This Rulemaking” as “(1) serious concerns
about the previously disclosed economic and social hardships
that application of the rule’s prohibitions would cause in
communities throughout Southeast Alaska, (2) comments
received on the proposed rule, and (3) litigation over the last
two years.” 68 Fed. Reg. at 75,137. We examine below
whether these constitute “good reasons” under the APA, and
whether a factual finding contrary to the findings in the 2001
ROD underlays the Department’s reasoning.

i. Socioeconomic Concerns

The 2003 ROD explains the Department’s reversal of
course as arising out of concern about “economic and social
hardships that application of the [roadless] rule’s prohibitions
would cause in communities throughout Southeast Alaska.”
Id. Those concerns were not new. In both the 2001 and 2003
RODs, the Department acknowledged the “unique”
socioeconomic consequences of the Roadless Rule for the
timber-dependent communities of southeast Alaska. See id.
at 75,139; 2001 ROD, 66 Fed. Reg. at 3266. For this reason,
the Roadless Rule included special mitigation measures—not
added for any other national forest—allowing certain ongoing
timber and road construction projects in the Tongass to move
forward. 2001 ROD, 66 Fed. Reg. at 3266. Moreover, both
RODs incorporated potential job loss analysis from the
26 ORGANIZED VILLAGE OF KAKE V. USDA

Roadless Rule FEIS. See 2003 ROD, 68 Fed. Reg. at 75,137;
2001 ROD, 66 Fed. Reg. at 3255.

We do not question that the Department was entitled in
2003 to give more weight to socioeconomic concerns than it
had in 2001, even on precisely the same record. “Fox makes
clear that this kind of reevaluation is well within an agency’s
discretion.” Nat’l Ass’n of Home Builders v. EPA, 682 F.3d
1032, 1038 (D.C. Cir. 2012). There was a change in
presidential administrations just days after the Roadless Rule
was promulgated in 2001. Elections have policy
consequences. But, State Farm teaches that even when
reversing a policy after an election, an agency may not simply
discard prior factual findings without a reasoned explanation.

That is precisely what happened here. The 2003 ROD did
not simply rebalance old facts to arrive at the new policy.
Rather, it made factual findings directly contrary to the 2001
ROD and expressly relied on those findings to justify the
policy change. The 2001 ROD explicitly found that wholly
exempting the Tongass from the Roadless Rule and returning
it to management under the Tongass Forest Plan “would risk
the loss of important roadless area values,” 66 Fed. Reg. at
3254, and that roadless values would be “lost or diminished”
even by a limited exemption, id. at 3266. The 2003 ROD
found in direct contradiction that the Roadless Rule was
“unnecessary to maintain the roadless values,” 68 Fed. Reg.
at 75,137, and “the roadless values in the Tongass are
sufficiently protected under the Tongass Forest Plan,” id. at
75,138.

There can be no doubt that the 2003 finding was a critical
underpinning of the Tongass Exemption. The 2003 ROD
states that “[t]he Department has concluded that the social
 ORGANIZED VILLAGE OF KAKE V. USDA 27

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.” Id. at 75,141–42 (emphasis
added). The 2003 ROD also makes plain that “[t]his decision
reflects the facts . . . that roadless values are plentiful on the
Tongass and are well protected by the Tongass Forest Plan.
The minor risk of the loss of such values is outweighed by the
by the more certain socioeconomic costs of applying the
roadless rule’s prohibitions to the Tongass.” Id. at 75,144.

Thus, contrary to the contentions of both Alaska and
dissenting colleagues, this is not a case in which the
Department—or a new Executive—merely decided that it
valued socioeconomic concerns more highly than
environmental protection. Rather, the 2003 ROD rests on the
express finding that the Tongass Forest Plan poses only
“minor” risks to roadless values; this is a direct, and entirely
unexplained, contradiction of the Department’s finding in the
2001 ROD that continued forest management under precisely
the same plan was unacceptable because it posed a high risk
to the “extraordinary ecological values of the Tongass.”
66 Fed. Reg. at 3254. The Tongass Exemption thus plainly
“rests upon factual findings that contradict those which
underlay its prior policy.” Fox, 556 U.S. at 515. The
Department was required to provide a “reasoned explanation
. . . for disregarding” the “facts and circumstances” that
underlay its previous decision. Id. at 516; Perez, 135 S. Ct.
at 1209. It did not.

Consistent with Fox, we have previously held that
unexplained conflicting findings about the environmental
impacts of a proposed agency action violate the APA. In
Humane Society of the United States v. Locke, we confronted
28 ORGANIZED VILLAGE OF KAKE V. USDA

a determination by the National Marine Fisheries Service that
sea lions posed a “significant negative impact” on fish
populations, and could therefore be “lethally removed.”
626 F.3d 1040, 1045–46 (9th Cir. 2010). The agency had
made four previous findings, however, that comparable or
greater dangers to similar fish populations would not have a
significant adverse impact. Id. at 1048. We found that the
APA required the agency to provide a “rationale to explain
the disparate findings.” Id. at 1049 (citing Fox, 556 U.S.
502).

The same result is mandated here. The 2003 ROD does
not explain why an action that it found posed a prohibitive
risk to the Tongass environment only two years before now
poses merely a “minor” one. The absence of a reasoned
explanation for disregarding previous factual findings
violates the APA. “An agency cannot simply disregard
contrary or inconvenient factual determinations that it made
in the past, any more than it can ignore inconvenient facts
when it writes on a blank slate.” Fox, 556 U.S. at 537
(Kennedy, J., concurring).

Of course, not every violation of the APA invalidates an
agency action; rather, it is the burden of the opponent of the
action to demonstrate than an error is prejudicial. Jicarilla
Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121
(D.C. Cir. 2010); see also Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (“This Court has said that the party that seeks to
have a judgment set aside because of an erroneous ruling
carries the burden of showing that prejudice resulted.”
(internal quotation marks omitted)).

But the required demonstration of prejudice is “not . . . a
particularly onerous requirement.” Shinseki, 556 U.S. at 410.
 ORGANIZED VILLAGE OF KAKE V. USDA 29

“If prejudice is obvious to the court, the party challenging
agency action need not demonstrate anything further.”
Jicarilla, 613 F.3d at 1121. Because the Department’s 2003
finding that the threat to the environment from the Tongass
Exemption had now become “minor” is the centerpiece of its
policy change, the absence of a reasoned explanation for that
new factual finding is not harmless error. See Cal.
Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072,
1091–92 (9th Cir. 2011) (applying Shinseki prejudice review
to rulemaking). The Tongass Exemption therefore cannot
stand.

ii. The Department’s Other Rationales

Although we conclude that the Tongass Exemption is
invalid because the Department failed to provide a reasoned
explanation for contradicting the findings in the 2001 ROD,
we also briefly consider the two other rationales offered by
the Department. These rationales do not rest on factual
findings contrary to the 2001 ROD, but neither withstands
even the forgiving general requirement that the proffered
reason for agency action not be “implausible.” State Farm,
463 U.S. at 43.

The second of the three reasons given by the Department
in the 2003 ROD for promulgating the Tongass Exemption
was “comments received on the proposed rule.” 68 Fed. Reg.
at 75,137. But, the 2003 ROD expressly conceded that these
“comments raised no new issues” beyond those “already fully
explored in the [Roadless Rule FEIS].” Id. at 75,139. It is
implausible that comments raising “no new issues” regarding
alternatives “already fully explored” motivated the adoption
of the final Roadless Rule.
30 ORGANIZED VILLAGE OF KAKE V. USDA

The third rationale for the Tongass Exemption, “litigation
over the last two years,” id. at 75,137, fares no better. The
2003 ROD states that “[a]dopting this final rule reduces the
potential for conflicts regardless of the disposition of the
various lawsuits” over the Roadless Rule. Id. at 75,138.
Alaska candidly conceded in its opening brief that the
Tongass Exemption “obviously will not remove all
uncertainty about the validity of the Roadless Rule, as it is the
subject of a nationwide dispute and . . . nationwide
injunctions.” These other lawsuits involved forests other than
the Tongass, so it is impossible to discern how an exemption
for the Alaska forest would affect them. And, the Department
could not have rationally expected that the Tongass
Exemption would even have brought certainty to litigation
about this particular forest. It predictably led to this lawsuit,
and did not even prevent a separate attack by Alaska on the
Roadless Rule itself.11 At most, the Department deliberately
traded one lawsuit for another.

C. Remedy

“‘Ordinarily when a regulation is not promulgated in
compliance with the APA, the regulation is invalid.’”
Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005)
(quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392,
1405 (9th Cir. 1995)); see 5 U.S.C. § 706(2)(A) (“The
reviewing court shall . . . set aside agency action . . . found to
be . . . arbitrary, capricious, an abuse of discretion, or

11
The settlement of Alaska’s 2001 suit against the Department required
the department to promulgate an advance notice of proposed rulemaking
to permanently exempt several national forests in Alaska from the
Roadless Rule; the State’s concerns with the Roadless Rule thus extend
beyond the Tongass. See 2003 ROD, 68 Fed. Reg. at 75,136.
 ORGANIZED VILLAGE OF KAKE V. USDA 31

otherwise not in accordance with law . . . .”). “The effect of
invalidating an agency rule is to reinstate the rule previously
in force.” Paulsen, 413 F.3d at 1008. A district court’s
reinstatement of a prior rule is reviewed for abuse of
discretion. Lockyer, 575 F.3d at 1011, 1019–20.

Alaska argues, however, that because the remedy for an
invalid rule is not the reinstatement of another invalid rule,
see Paulsen, 413 F.3d at 1008, the district court abused its
discretion reinstating the Roadless Rule because that Rule had
been enjoined by the Wyoming district court both when the
Tongass Exemption was promulgated and when the judgment
below was entered. But, wholly aside from the obvious
conflict between the first Wyoming district court judgment
and our later opinion in Lockyer, 575 F.3d 999, the argument
is of no avail. The Tenth Circuit vacated both Wyoming
district court injunctions. See Wyoming, 661 F.3d at 1272;
Wyoming, 414 F.3d at 1214. The Roadless Rule therefore
remains in effect and applies to the Tongass.

III.

We AFFIRM the judgment of the district court.

CHRISTEN, Circuit Judge, with whom THOMAS, Chief
Circuit Judge, joins, 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.
32 ORGANIZED VILLAGE OF KAKE V. USDA

This case is unique because no new facts were presented
between the time the Department of Agriculture adopted the
Roadless Rule in 2001 and the time it reversed its decision in
2003. The outcome of the case pivots on the undeniable: the
2003 decision was contradicted by the agency’s previous
factual findings. In 2001, the agency found that “[a]llowing
road construction and reconstruction on the Tongass 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; Applicability to the Tongass National Forest,
Alaska, 68 Fed. Reg. 75,136, 75, 141–42 (Dep’t of Agric.
Dec. 30, 2003) (to be codified at 36 C.F.R. § 294.14)
(emphasis added).

The dissent suggests that the 2003 decision was likely the
result of a change in administrations, and argues that the
agency, “following the policy instructions of the new
president,” was free to weigh the same evidence and “simply
conclude[] that the facts mandated different regulations than
the previous administration.” Supreme Court authority
directs otherwise. Under FCC v. Fox Television Stations,
Inc., when a new policy is contradicted by an agency’s
previous factual findings, the law does not allow the agency
to simply ignore the earlier findings. 556 U.S. 502, 516
(2009). Instead, the law requires that the agency provide a
reasoned explanation for changing course and adopting a
position contradicted by its previous findings. Id.
 ORGANIZED VILLAGE OF KAKE V. USDA 33

In this case, the agency was unable to defend its flip-flop
when the case was argued in the district court, and the agency
chose not to participate in the appeal. Despite the efforts of
the intervenor, the record and arguments presented to the
district court support its decision, which we affirm today.

I write separately to voice my view that there is no
indication the conscientious district court judge who first
ruled in this case decided it based on his own views, and our
court does not do so either. Judges do not have the expertise
to manage national forests, but we are often called upon to
decide whether a federal agency followed correct procedures.
Whether or not they are reflected in the headlines, our rulings
in environmental cases sometimes have the result of
permitting resources to be extracted, e.g., Jones v. Nat’l
Marine Fisheries Serv., 741 F.3d 989 (9th Cir. 2013), roads
to be constructed, e.g., Sierra Club v. BLM, 786 F.3d 1219
(9th Cir. 2015), forests to be logged, e.g., Lands Council v.
McNair, 629 F.3d 1070 (9th Cir. 2010), or forests to be
thinned to manage the risk of fire, e.g., Friends of the Wild
Swan v. Weber, 767 F.3d 936 (9th Cir. 2014). Other times,
they do not. See, e.g., League of Wilderness Defenders/Blue
Mountains Biodiversity Project v. Connaughton, 752 F.3d
755, 767 (9th Cir. 2014) (enjoining logging project while
Forest Service completed supplemental environmental impact
statement). Regardless of the outcome, the court’s aim is to
fairly and impartially apply the law when we entertain such
procedural challenges. Because in this case the Department
of Agriculture did not follow the rule articulated by the
Supreme Court in Fox, I join the majority in affirming the
district court’s decision.
34 ORGANIZED VILLAGE OF KAKE V. USDA

CALLAHAN, Circuit Judge, 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—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 III’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 it will receive less money from the federal
government if the district court’s decision stands. I
respectfully dissent.

I.

This Court’s jurisdiction is limited by Article III of the
Constitution to “cases” and “controversies.” U.S. Const., Art.
III, § 2. One element of the Constitution’s case-or-
controversy requirement is that a litigant must demonstrate
standing to sue. Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1146 (2013). The standing requirement is built on
 ORGANIZED VILLAGE OF KAKE V. USDA 35

separation-of-powers principles; it “serves to prevent the
judicial process from being used to usurp the powers of the
political branches.” Id. The standing requirement “must be
met by persons seeking appellate review, just as it must be
met by persons appearing in courts of first instance.”
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)
(citation omitted).

States generally may seek to bring suit in three capacities:
(1) “proprietary suits,” in which states sue like private parties
to remedy a concrete, particularized injury; (2) “sovereignty
suits,” in which states, for example, seek adjudication of
boundary or water rights; and (3) “parens patriae suits,” in
which states sue on behalf of their citizens.1 Alfred L. Snapp
& Son v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 600
(1982). To establish standing to sue in a proprietary capacity
a State, like other litigants, must meet the following, familiar
requirements:

First, the plaintiff must have suffered an
“injury in fact”—an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent,
not ‘conjectural or hypothetical.’” Second,
there must be a causal connection between the
injury and the conduct complained of—the
injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not
. . . th[e] result [of] the independent action of
some third party not before the court.” Third,

1
States also may seek to protect their “quasi-sovereign” interests in such
suits, but “evidence of actual injury is still required.” Sturgeon v. Masica,
768 F.3d 1066, 1074 (9th Cir. 2014); see also Snapp, 458 U.S. at 607.
36 ORGANIZED VILLAGE OF KAKE V. USDA

it must be “likely,” as opposed to merely
“speculative,” that the injury will be
“redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(footnote and citations omitted).

Alaska’s standing fails at the first step. Alaska has not
demonstrated that reinstatement of the Roadless Rule’s
application to the Tongass has caused, or imminently will
cause, the State an injury in fact. This is the “first and
foremost” requirement of standing, Arizonans for Official
English v. Arizona, 520 U.S. 43, 64 (1997), “a hard floor of
Article III jurisdiction that cannot be removed by statute.”
Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).

II.

Alaska advances three interests for purposes of
demonstrating injury in fact: (1) a statutory interest in “the
flow of monies to the State via the National Forest Receipts
Program”; (2) a procedural interest based on the fact that the
Department of Agriculture “initiated the rulemaking [that led
to the Tongass exemption] pursuant to a settlement agreement
with the State”; and (3) a parens patriae interest in Alaskan
jobs that are “tied to timber.” None of these asserted harms
satisfies Article III’s injury-in-fact requirement.

A.

The majority finds that Alaska has standing because of
“the effect of the Roadless Rule on Alaska’s statutory
entitlement” under the National Forest Receipts Program to
twenty-five percent of gross receipts of timber sales from
 ORGANIZED VILLAGE OF KAKE V. USDA 37

national forests in the State. Without the Tongass exemption,
the majority explains, less timber will be harvested from the
Tongass National Forest, thus potentially decreasing the
amount of revenue that Alaska may receive under the
National Forest Receipts Program. This statutory entitlement
argument fails for at least two reasons.

1.

First, by creating a “statutory entitlement” to a share of
federal timber revenue, Congress did not legislate the Article
III standing of state and local governments to challenge
federal natural resource management. The Supreme Court
has strongly suggested that Congress cannot create injury in
fact by legislative fiat—rather, a litigant must have suffered
not only a violation of a legal right, but also a factual harm.
See, e.g., Summers, 555 U.S. at 497; Lujan, 504 U.S. at 578.
But it still may be that “Congress may enact statutes creating
legal rights, the invasion of which creates standing, even
though no injury would exist without the statute.” Linda R.S.
v. Richard D., 410 U.S. 614, 617 n.3 (1973). We, for
example, have held that a statutory provision may provide a
litigant with Article III standing where (1) Congress indicated
that it intended for the provision to create a statutory right by
creating a “private cause of action to enforce” the provision,
(2) the litigant’s statutory right has been infringed, and (3) the
litigant has also suffered a concrete, “de facto injury,” albeit
one that was previously inadequate at law. Robins v. Spokeo,
Inc., 742 F.3d 409, 412–13 (9th Cir. 2014), cert. granted, No.
13-1339, 2015 WL 1879778 (U.S. Apr. 27, 2015).

Even if Congress may legislate standing in some
circumstances, however, it has not done so here. There is no
indication in 16 U.S.C. § 500’s text or history that Congress
38 ORGANIZED VILLAGE OF KAKE V. USDA

intended to legislate state and municipal standing to challenge
the federal government’s management of national forests.
See Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir.
2010) (“Essentially, the standing question in such cases
[where a litigant asserts standing based on a statutory right]
is whether the . . . statutory provision on which the claim rests
properly can be understood as granting persons in the
plaintiff’s position a right to judicial relief.”) (citation
omitted), cert. dismissed as improvidently granted, 132 S. Ct.
2536 (2012).2 Indeed, in the 107 years since § 500 was
enacted, no court has found that the law gives states standing
to challenge actions or inactions that may reduce federal
timber receipts.

Moreover, even if Congress intended for § 500 to confer
a statutory right to revenue, the invasion of which constitutes
injury in fact, the right does not entitle Alaska to standing
here because it has not been infringed. See Linda R.S.,
410 U.S. at 617 n.3 (“Congress may enact statutes creating
legal rights, the invasion of which creates standing, even
though no injury would exist without the statute.” (emphasis
added)).3 Section 500 entitles Alaska to a share of revenue

2
Other courts have disagreed that a statutory provision can create
standing in the absence of actual harm. See, e.g., David v. Alphin,
704 F.3d 327, 338–39 (4th Cir. 2013) (“[T]his theory of Article III
standing is a non-starter as it conflates statutory standing with
constitutional standing.”); see also Joint Stock Soc’y v. UDV N. Am., Inc.,
266 F.3d 164, 176 (3d Cir. 2001) (Alito, J.). To the extent that Congress
may legislate Article III standing, however, it follows that a Court must
employ the usual tools of statutory interpretation to determine if Congress
intended for a statutory provision to create standing.
3
See also Warth v. Seldin, 422 U.S. 490, 500 (1975) (same); Kootenai
Tribe of Idaho v. Veneman, 313 F.3d 1094, 1109 (9th Cir. 2002) (“To
establish standing [to appeal], the defendant-intervenors must first show
 ORGANIZED VILLAGE OF KAKE V. USDA 39

generated, not a right to have revenue generated. Alpine
Cnty., Cal. v. United States, 417 F.3d 1366, 1368 (Fed. Cir.
2005) (there is “no duty to generate revenue” under the
National Forest Receipts Program). Thus, Alaska’s
entitlement to a share of federal timber revenue has not been
“invaded” by reinstatement of the Roadless Rule, even
assuming that Alaska could show that the Roadless Rule will
cause Alaska to receive less money from the federal
government.

The majority conflates the injury-in-fact requirement with
the zone-of-interest test in discussing Lexmark International,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377
(2014). The zone-of-interest test asks whether an injury to a
litigant that meets Article III’s injury-in-fact requirement falls
within the zone of interests protected by the substantive
statute under which that litigant sues. Id. at 1387–89. If not,
the litigant’s claim under that statute may not proceed.4 Id. at

that they have suffered an injury in fact, [which involves, among other
things,] an invasion of a legally-protected interest . . . .” (quotation marks
omitted)), abrogated by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d
1173 (9th Cir. 2011); Consumer Watchdog v. Wisc. Alumni Research
Found., 753 F.3d 1258, 1262 (Fed. Cir. 2014) (dismissing for lack of
standing because, “[u]nlike the plaintiffs in the [Freedom of Information
Act] and [Federal Election Campaign Act] cases, Consumer Watchdog
was not denied anything to which it was entitled”), cert. denied, 135 S. Ct.
1401 (2015).
4
For example, if Alaska had alleged that reinstatement of the roadless
rule caused a State-owned timber business to suffer a financial loss,
Alaska would have demonstrated an injury in fact for purposes of Article
III standing. However, this “purely economic interest” would fall outside
of the zone of interests protected by the National Environmental Policy
Act under our precedent. Ashley Creek Phosphate Co. v. Norton, 420 F.3d
934, 940 (9th Cir. 2005).
40 ORGANIZED VILLAGE OF KAKE V. USDA

1388–89 (explaining that “the zone-of-interests test is [a] tool
for determining who may invoke [a] cause of action . . . .”).
I agree with the majority that whether an injury in fact falls
within a statute’s zone of protected interests is not a
jurisdictional question. See id. at 1387–88 & n.4.

This appeal presents a different, critical, and jurisdictional
question that is rooted in Article III’s case-or-controversy
requirement: whether a statutory provision that has not been
invaded and does not include a cause of action endows a
litigant who has not suffered a de facto injury with Article III
standing. The answer to this jurisdictional question is clearly
no. Because Alaska’s statutory right under § 500 has not
been invaded, Alaska lacks both injury in law and injury in
fact. Attempting to sidestep this problem, the majority
suggests that Alaska does not need to demonstrate an injury
in fact to maintain this appeal, it need only demonstrate a
“stake in defending” the Tongass exemption. Maj. Op.
16–17, 19. This suggestion is contrary to controlling
Supreme Court precedent and our circuit precedent.
Diamond v. Charles, 476 U.S. 54, 66–69 (1986) (dismissing
for lack of jurisdiction because a defendant intervenor did not
demonstrate an injury in fact necessary to establish his
standing to appeal); Kootenai Tribe of Idaho, 313 F.3d at
1109 (“To establish standing [to appeal], the defendant-
intervenors must first show that they have suffered an injury
in fact . . . .”).

The prospective effects of the majority’s decision are
alarming. After today, states and many local governments
presumably have standing, at least in the Ninth Circuit, to
challenge federal actions and inactions that may result in,
among other things, fewer trees being felled in federal forests,
less oil, gas, and coal being extracted from federal mineral
 ORGANIZED VILLAGE OF KAKE V. USDA 41

estates, fewer cattle being turned out on public lands, or even
the devaluation of federal land. States and local communities
get a share of revenue generated from these and many other
federal resources.5 Surely by creating a revenue-sharing
program tied to the development of natural resources
Congress did not legislate state and municipal standing to
challenge the pace and manner of the federal government’s
management of the nation’s natural resources.

This case is not like Watt v. Energy Action Education
Foundation, 454 U.S. 151(1981), the case on which the
majority relies. In Watt, California had standing based on its
interest in “assur[ing] a fair return for its resources,”
specifically state-owned oil and gas reserves drained by
drilling on adjoining federal leases.6 Id. at 161 (emphasis
added); see also id. at 160 (“California . . . claim[ed] standing
as an involuntary ‘partner’ with the Federal Government in
the leasing of [Outer Continental Shelf (OCS)] tracts in which
the underlying pool of gas and oil lies under both the OCS

5
See, e.g., 43 U.S.C. §§ 315b, 315i, 315m (Grazing Leases Payments);
7 U.S.C. § 1012 (National Grasslands Payment); 30 U.S.C. §§ 191, 355
(Mineral Leasing Payments); 43 U.S.C. § 1337(g) (Offshore Mineral
Leasing Payment); 42 U.S.C. § 6506a (National Petroleum Reserve in
Alaska Payment); 16 U.S.C. § 715s (Refuge Revenue Sharing Payment);
31 U.S.C. §§ 6901–6907 (Payments in Lieu of Taxes); 16 U.S.C. §§ 577g,
577g-1 (Payments to Minnesota); 43 U.S.C. § 1181f (Oregon and
California Grant Lands Payments); 43 U.S.C. § 1181f-1 (Coos Bay
Wagon Road Grant Fund Payment); P.L. 100-446, § 323 (Arkansas
Smoky Quartz Payment).
6
In Watt, California challenged the federal government’s bidding system
for lease sales allowing for oil and gas development of the Outer
Continental Shelf. California claimed that the bidding system was
incapable of producing a fair market return for California’s oil and gas
drained by drilling on federal leases. Id. at 160–61.
42 ORGANIZED VILLAGE OF KAKE V. USDA

and the 3-mile coastal belt controlled by California.”
(emphasis added)). The very language that the majority
excerpts also makes it plain that California’s standing was
based on the State’s “own[ership of] adjoining portions of an
[OCS] oil and gas pool” and interest in securing a “fair
market return” for drainage of those State-owned resources.
Maj. Op. 19 (quoting Watt, 454 U.S. at 160–61). Alaska has
not alleged injury to its interest in being fairly compensated
for or avoiding damage to its natural resources, which would
implicate an injury in fact. Watt, 454 U.S. at 160–61.7

To be clear, the Supreme Court did not hold in Watt, as
suggested by the majority, that the revenue sharing required
by section 8(g) of the Outer Continental Shelf Lands Act, 43
U.S.C. § 1337(g)(2), provides states with standing to
challenge federal actions and inactions that may result in less
oil and gas being extracted from the federal OCS. Rather,
section 8(g) embodies a state’s interest in being fairly
compensated for development of the federal OCS that
diminishes the state’s resources. Absent harm to a state’s
resources or an invasion of that state’s right to be fairly
compensated for diminishment of those resources, section
8(g) does not support that state’s standing to challenge federal

7
See also, e.g., Massachusetts v. EPA, 549 U.S. 497, 522 (2007)
(“Because the Commonwealth owns a substantial portion of the state’s
coastal property,” and “rising seas have already begun to swallow
Massachusetts’ coastal land,” it “has alleged a particularized injury in its
capacity as a landowner.” (internal citation, quotation marks, and footnote
omitted)); Wyoming v. U.S. Dep’t of Agric., 570 F. Supp. 2d 1309, 1329
(D. Wyo. 2008), rev’d on other grounds, 661 F.3d 1209 (10th Cir. 2011)
(finding that “Wyoming has presented evidence that the Roadless Rule
will increase the risk of environmental harm to its thousands of acres of
state forest land that are adjacent to, or intermingled with, lands
designated by the Forest Service as inventoried roadless areas”).
 ORGANIZED VILLAGE OF KAKE V. USDA 43

management of the OCS.8 Watt does not support Alaska’s
standing to appeal.

2.

Second, when Alaska appealed in June of 2011, Alaska
had not lost any National Forest Receipts Program money and
did not even allege that it would receive less money from the
federal government as a result of the district court’s decision
setting aside the Tongass exemption. This was no oversight.
Rather, as Alaska acknowledged in its declaration in support
of its motion to intervene, it has for many years elected to
forego its share of federal timber revenue in order to receive
much larger federal funding under the Secure Rural Schools
Program. See Secure Rural Schools and Community Self-
Determination Act of 2000, Pub. L. No. 106-393, 114 Stat.

8
Section 8(g) can thus be viewed as an exercise of Congress’s
uncontroversial power to “expand standing by enacting a law enabling
someone to sue on what was already a de facto injury to that person . . . .”
Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 153 (3d Cir. 1999)
(Becker, C.J., joined by Scirica and Alito, JJ.). Congress may “elevat[e]
to the status of legally cognizable injuries concrete, de facto injuries that
were previously inadequate in law,” Lujan, 504 U.S. at 578, or that were
deemed incognizable as a prudential matter by the courts, Warth, 422 U.S.
at 500 & n.12. See also Vt. Agency of Natural Res. v. United States ex rel.
Stevens, 529 U.S. 765, 773 (2000). Section 500 is not such a statute; it
does not elevate any de facto harm. But section 8(g) does. Section 8(g)
was intended to provide states with fair and easily administered
compensation for drainage of state oil and gas from common-pool
reservoirs. See, e.g., H.R. Rep. No. 95-590, at 1550 (1977) (explaining
that the statute was intended to resolve “the problem of drainage of state
resources by a lessee operating on the Outer Continental Shelf”); H.R.
Rep. No. 99-300 at 547 (1985) (explaining that an amendment of section
8(g) was necessary because case-by-case determinations of “‘fair and
equitable disposition’ of the common pool revenues” had led to “lengthy
litigation”).
44 ORGANIZED VILLAGE OF KAKE V. USDA

1607.9 Thus, for example, in fiscal year 2010—before the
Tongass exemption had been set aside by the district
court—Alaska would have been due only about $517,948
under the National Forest Receipts Program as compared to
the $16,027,564.62 it was paid under the Secure Rural
Schools Act Program.10

Stated simply, Alaska cannot show us the money. Alaska
has neither suffered a financial loss traceable to the district
court’s decision nor shown that such injury is “certainly
impending.” Clapper, 133 S. Ct. at 1147. That Alaska might
elect to receive payments under the National Forest Receipts
Program at some unknown future date in the currently
unforeseeable event that the Secure Rural Schools Program
is discontinued is too “conjectural or hypothetical” and
insufficiently “actual or imminent” of an injury to support
Alaska’s standing. Lujan, 504 U.S. at 560; see also, e.g.,
Sturgeon, 768 F.3d 1at 1075 (“Alaska’s claims regarding its
sovereign and proprietary interests lack grounding in a
demonstrated injury. . . . Any injury to Alaska’s sovereign

9
Congress created the Secure Rural Schools Act and has continued to
reauthorize it, see Maj. Op. 21 n.9, because “precipitously” declining
timber revenue from national forests had decreased “the revenues shared
with the affected counties.” Pub. L. No. 106-393 § 2(a)(9)–(10), 114 Stat.
1607 (Oct. 30, 2000).
10
This data is available on the U.S. Forest Service’s website,
http://www.fs.usda.gov/main/pts/securepayments/projectedpayments (last
visited June 18, 2015), and taken specifically from the “View ASR 10-1
FY2010” spreadsheet and “all counties FY 2010” tab of the “Estimated
25-percent payments, FY 2008–FY2010” spreadsheet.
 ORGANIZED VILLAGE OF KAKE V. USDA 45

and proprietary interest is pure conjecture and thus
insufficient to establish standing.”).11

Alaska’s entitlement under 16 U.S.C. § 500 to a share of
federal timber revenue does not give it standing to maintain
this appeal.

B.

Alaska also alleges injury to what it characterizes as a
procedural interest in the Tongass exemption. Alaska states
that the Department of Agriculture “initiated the rulemaking
[that resulted in the Tongass exemption] pursuant to a
settlement agreement with the State.” This interest is not an
injury in fact. First, Alaska has not alleged that its rights
under the settlement agreement have been violated. As the
settlement agreement required, the Department of Agriculture
initiated the rulemaking and published the resulting rule.
Second, even assuming that Alaska has alleged a violation of
a relevant procedural right, Alaska cannot establish its
standing to appeal based on a procedural interest alone. It is
well established that “deprivation of a procedural right
without some concrete interest that is affected by the
deprivation—a procedural right in vacuo—is insufficient
. . . .” Summers, 555 U.S. at 496; see also Sturgeon, 768 F.3d
at 1075. Thus, Alaska’s asserted legal interests do not
demonstrate an injury in fact.

11
The majority’s analogy to the loss of one’s home due to a neighbor’s
negligence misses the point. Loss of one’s home is an injury in fact. A
statutory financial entitlement untethered to a violation of that entitlement
and an actual or imminent financial loss traceable to that violation is not.
46 ORGANIZED VILLAGE OF KAKE V. USDA

C.

Without an injury of its own, Alaska attempts to invoke
someone else’s injury. Alaska asserts that it has standing
because “Alaska jobs are tied to timber.” This general
interest in the employment of its citizens is a parens patriae
interest.12 However, “[a] State does not have standing as
parens patriae to bring an action against the Federal
Government.” Snapp, 458 U.S. at 610 n.16. That is because
“it is no part of [a State’s] duty or power to enforce [its
citizens’] rights in respect of their relations with the Federal
Government. In that field it is the United States, and not the
State, which represents them as parens patriae.” Id. (quoting
Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)).

Alaska lacks parens patriae standing in this case for
another reason. Alaska has not shown, as it must, that
directly interested private parties—Alaskans and companies
interested in jobs tied to Tongass timber—could not represent
themselves. See, e.g., Snapp, 458 U.S. at 607 (“In order to
maintain such an action, the State must articulate an interest
apart from the interests of particular private parties . . . .”);
Sturgeon, 768 F.3d at 1075 n.4; Oregon v. Legal Servs. Corp.,
552 F.3d 965, 970–71 (9th Cir. 2009). These groups are
entirely capable of representing themselves. Indeed, the
Alaska Forest Association, a trade association for the timber
industry in Alaska, intervened in the district court but decided

12
See, e.g., City of Rohnert Park v. Harris, 601 F.2d 1040, 1044–45 (9th
Cir. 1979) (alleged “loss of investment profits and tax revenues” by
citizens if development did not proceed implicates a parens patriae
interest); Pennsylvania v. Kleppe, 533 F.2d 668, 671 (D.C. Cir. 1976)
(“[A]lleged injuries to the state’s economy and the health, safety, and
welfare of its people clearly implicate the parens patriae rather than the
proprietary interest of the state.”).
 ORGANIZED VILLAGE OF KAKE V. USDA 47

not to appeal. Alaska’s interest in protecting the jobs of
Alaskans and the bottom line of the timber industry is an
insufficient parens patriae interest to support its standing to
appeal.

Alaska has not satisfied the injury-in-fact requirement. Its
alleged injuries fail to ensure that the decision to appeal has
not been “placed in the hands of ‘concerned bystanders,’ who
will use it simply as a ‘vehicle for the vindication of value
interests’” or party politics, rather than to remedy actual or
imminent harm. Hollingsworth, 133 S. Ct. at 2663 (citing
Diamond, 476 U.S. at 62). This appeal should be dismissed
for lack of jurisdiction.

III.

As the majority finds that this Court has jurisdiction and
thus decides this appeal on the merits, I must reach the merits
too. The same concern with the judiciary’s limited role
compels me to join Judge M. Smith’s dissent on the merits.
Congress in the Administrative Procedure Act did not
authorize a judge, or even an en banc panel of judges, to set
aside an agency decision because the reasons the agency
proffered for the decision were not, from the viewpoint of the
bench, “good” enough. Rather, an agency’s decision must
stand if it is not “arbitrary or capricious.” 5 U.S.C. § 706.
The Supreme Court’s decision in FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 514–16 (2009), does not hold
otherwise. See, e.g., White Stallion Energy Ctr. LLC v. EPA,
748 F.3d 1222, 1235 (D.C. Cir. 2014) (judicial review of a
“change in agency policy is no stricter than our review of an
initial agency action” (citing Fox, 556 U.S. at 514–16)). Fox
holds that an agency must “provide reasoned explanation for
its action,” which normally requires “that it display awareness
48 ORGANIZED VILLAGE OF KAKE V. USDA

that it is changing position.” Fox, 556 U.S. at 515 (emphasis
omitted); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983)
(“Normally, an agency rule would be arbitrary and capricious
if the agency has . . . entirely failed to consider an important
aspect of the problem.”).

Here, the Department of Agriculture met Fox’s
requirement by acknowledging that it was changing its mind.
The Department also met the APA’s requirements by
explaining that the exemption would allow for a better
balance between environmental preservation, road access, and
timber availability. The balance the Department struck is
reasonable and well within its mandate under the National
Forest Management Act and the Tongass Timber Reform Act
to “provide for multiple use and sustained yield” of forest
resources. 16 U.S.C. §§ 539d(1), 1604(e)(1).

“Litigation over the last two years” was not, as the
majority suggests, an extra-statutory weight that entered into
the Department’s “enormously complicated task of striking
a balance among the many competing uses to which land can
be put.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
58 (2004) (addressing the Bureau of Land Management’s
similar statutory charge). Rather, litigation was part of what
prompted the Department to consider striking a different
balance.

The significance of the Tongass exemption’s foreseeable
environmental and socioeconomic impacts did enter into that
balance, and were detailed by the Department in its
Environmental Impact Statement (EIS) and discussed in its
Record of Decision. The majority latches onto one word in
setting aside the Department’s decision. It faults the
 ORGANIZED VILLAGE OF KAKE V. USDA 49

Department for calling the risk to roadless values—one of the
many natural resources provided by the Tongass—“minor.”
See 68 Fed. Reg. 75,136, 75,144 (Dec. 30, 2003). It is clear,
however, that the Department was not tossing aside its
analysis of the significance of environmental impacts set
forth in the EIS. Instead, after further consideration, the
Department found that the loss of some roadless values did
not outweigh “the socioeconomic costs of applying the
roadless rule’s prohibitions to the Tongass.” Id. The
Department’s explanation of its balance was not arbitrary or
capricious.

IV.

I would dismiss this case for lack of appellate jurisdiction.
Stuck with the majority’s finding that this Court has
jurisdiction, I would reverse and remand.

M. SMITH, Circuit Judge, with whom KOZINSKI,
TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges,
join, 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)
50 ORGANIZED VILLAGE OF KAKE V. USDA

(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 sanitation standard proposed under
President Carter); Press Release, Department of the Interior,
Salazar and Locke Restore Scientific Consultations under the
Endangered Species Act To Protect Species and Their
Habitats (Apr. 28, 2009), available at 2009 WL 1143690
(withdrawal by President Obama’s Secretary of Commerce
and Secretary of Interior of rule pertaining to consultation of
federal wildlife experts proposed under President George W.
Bush).

This phenomenon is particularly common in the period
between the last few months of an outgoing administration
and the first few months of an incoming administration, as
was the case here. Recent legal scholarship has shed light on
the concept of “midnight regulations,” whereby, during their
final period in office, outgoing administrations accelerate
rulemaking and agency actions, which incoming
administrations then attempt to stay and reverse. See Jack M.
Beermann, Midnight Rules: A Reform Agenda, 2 Mich. J.
Envtl. & Admin. L. 285 (2013); Jacob E. Gersen & Anne
Joseph O’Connell, Hiding in Plain Sight? Timing and
Transparency in the Administrative State, 76 U. Chi. L. Rev.
1157, 1196 (2009); Anne Joseph O’Connell, Agency
Rulemaking and Political Transitions, 105 Nw. U. L. Rev.
 ORGANIZED VILLAGE OF KAKE V. USDA 51

471 (2011). For example, on President Obama’s first day in
office, Chief of Staff Rahm Emanuel issued a memo to the
heads of federal agencies mandating that they stop the
publication of regulations unless they obtained approval of
the new administration. See Memorandum from Rahm
Emanuel, Assistant to the President and Chief of Staff, the
White House, to Heads of Executive Departments and
Agencies (Jan. 20, 2009), in 74 Fed. Reg. 4435 (Jan. 26,
2009). On the first day of President George W. Bush’s
presidency, Chief of Staff Andrew Card similarly directed
agencies to stop all regulatory notices. See Memorandum
from Andrew H. Card, Jr., Assistant to the President and
Chief of Staff, the White House, to Heads and Acting Heads
of Executive Departments and Agencies (Jan. 20, 2001), in
66 Fed. Reg. 7702 (Jan. 24, 2001).

Inevitably, when the political pendulum swings and a
different party takes control of the executive branch, the cycle
begins anew. There is nothing improper about the political
branches of the government carrying out such changes in
policy. To the contrary, such policy changes are often how
successful presidential candidates implement the very
campaign promises that helped secure their election. That is
simply the way the modern political process works.

On the other hand, when party policy positions clash, it is
improper and unwise for members of the judiciary to decide
which policy view is the better one, for such action inevitably
throws the judiciary into the political maelstrom, diminishes
its moral authority, and conflicts with the judicial role
envisioned by the Founders. As the Supreme Court has
cautioned, “[i]t is hostile to a democratic system to involve
the judiciary in the politics of the people. And it is not less
pernicious if such judicial intervention in an essentially
52 ORGANIZED VILLAGE OF KAKE V. USDA

political contest be dressed up in the abstract phrases of the
law.” Colegrove v. Green, 328 U.S. 549, 553–54 (1946),
overruled on other grounds by Baker v. Carr, 369 U.S. 186
(1962).

This case involves a clash between the policies of the
outgoing Clinton administration and those of the incoming
George W. Bush administration. The two presidents viewed
how certain aspects of the laws governing national forests
should be implemented very differently. On October 13,
1999, President Clinton issued a memo to the Secretary of
Agriculture, instructing him “to develop, and propose for
public comment, regulations to provide appropriate long-term
protection for most or all of [the] currently inventoried
‘roadless’ areas.” The United States Department of
Agriculture (USDA) followed those instructions in
promulgating the Roadless Area Conservation Rule, 66 Fed.
Reg. 3244 (Jan. 12, 2001) (the Roadless Rule). In keeping
with President Clinton’s policies, the Roadless Rule
emphasized “prohibit[ing] road construction, reconstruction,
and timber harvest in inventoried roadless areas because they
have the greatest likelihood of altering and fragmenting
landscapes, resulting in immediate, long-term loss of roadless
area values and characteristics.” Id.

In November 2001, after President Bush took office and
sought to implement his own policy preferences respecting
national forests, the USDA began a process of “reevaluating
its Roadless Area Conservation Rule.” The USDA believed
that “the abundance of roadless values on the Tongass, the
protection of roadless values included in the Tongass Forest
Plan, and the socioeconomic costs to local communities of
applying the roadless rule’s prohibitions to the Tongass, all
warrant treating the Tongass differently from the national
 ORGANIZED VILLAGE OF KAKE V. USDA 53

forests outside of Alaska.” Roadless Area Conservation;
Applicability to the Tongass National Forest, Alaska, 68 Fed.
Reg. 75,136, 75,139 (Dec. 30, 2003) (Tongass Exemption
herein). It also found that “[t]he repercussions of delaying
the project planning process regarding road building and
timber harvest [in the Tongass], even for a relatively short
period, can have a significant effect on the amount of timber
available for sale in the next year.” Slide Ridge Timber Sale
Environmental Impact Statement, 66 Fed. Reg. 58710-01
(Nov. 23, 2001). The USDA ultimately modified the Clinton-
era Roadless Rule due to, among other reasons, “(1) serious
concerns about the previously disclosed economic and social
hardships that application of the rule’s prohibitions would
cause in communities throughout Southeast Alaska,
(2) comments received on the proposed rule, and (3) litigation
over the last two years.” Tongass Exemption, 68 Fed. Reg.
at 75,137.

While the APA requires a reasoned explanation for a
change in policy, “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.” FCC v. Fox Television Stations, Inc., 556 U.S.
502, 513–15 (2009) (internal citation and quotation marks
omitted). The USDA followed President Bush’s policy
instructions when it amended the Roadless Rule in 2003,
68 Fed. Reg. 75,136 (Dec. 30, 2003), and the agency’s
explanation for its decision easily meets the requirements of
Fox. Unfortunately, it appears that, contrary to the
requirements of Fox, the majority has selected what it
believes to be the better policy, and substituted its judgment
for that of the agency, which was simply following the
political judgments of the new administration. Accordingly,
I respectfully dissent.
54 ORGANIZED VILLAGE OF KAKE V. USDA

I. The USDA’s 2003 Change in Policy

Without acknowledging that the factual findings in the
2003 Record of Decision (ROD) rest on different policy
views than those in the 2001 ROD, the majority argues that
“[t]he Tongass Exemption thus plainly ‘rests upon factual
findings that contradict those which underlay [the agency’s]
prior policy.’” This conclusion is simply incorrect. The
agency, following the policy instructions of the new
president, weighed some of the facts in the existing record
differently than had the previous administration, and
emphasized other facts in the record that the previous
administration had not. Stated differently, the two
administrations looked at some of the same facts, and reached
different conclusions about the meaning of what they saw.
The second administration simply concluded that the facts
called for different regulations than those proposed by the
previous administration.

There is little dispute that the underlying facts analyzed
by the USDA had not changed meaningfully between
November 2000, when the USDA completed the original
rule’s Final Environmental Impact Statement (FEIS), and
2003. The USDA acknowledged as much when it considered
the environmental impact of the Tongass Exemption in 2003.
It concluded that “the identified new information and changed
circumstances do not result in significantly different
environmental effects from those described in the roadless
rule FEIS. Such differences as may exist are not of a scale or
intensity to be relevant to the adoption of this final rule or to
support selection of another alternative from the roadless rule
FEIS. Consequently, the overall decisionmaking picture is
not substantially different from what it was in November
 ORGANIZED VILLAGE OF KAKE V. USDA 55

2000, when the roadless rule FEIS was completed.” 68 Fed.
Reg. at 75,141.

Nor had the facts underlying the USDA’s assessment of
the socioeconomic impact of the Tongass Exemption changed
meaningfully by 2003; the USDA simply prioritized different
aspects of the same socioeconomic data that it had considered
in 2000. In the original Roadless Rule, the USDA had found
that “[c]ommunities with significant economic activities in
these sectors could be adversely impacted. However, the
effects on national social and economic systems are
minor. . . . None of the alternatives are likely to have
measurable impacts compared to the broader social and
economic conditions and trends observable at these scales,
however the effects of the alternatives are not distributed
evenly across the United States.” 66 Fed. Reg. at 3261. In
the 2003 ROD, on the other hand, the USDA assigned greater
importance to the adverse socioeconomic impact of the
Roadless Rule: “This decision reflects the facts, as displayed
in the FEIS for the roadless rule and the FEIS for the 1997
Tongass Forest Plan that roadless values are plentiful in the
Tongass and are well protected by the Tongass Forest Plan.
The minor risk of the loss of such values is outweighed by the
more certain socioeconomic costs of applying the roadless
rule’s prohibitions to the Tongass. Imposing those costs on
the local communities of Southeast Alaska is unwarranted.”
68 Fed. Reg. at 75,144. In 2003, then, the USDA concluded
that it was important to give greater weight to some adverse
socioeconomic effects than was done when the original
Roadless Rule was promulgated.

Given the substantial similarity between the facts the
USDA weighed in the 2003 ROD and those it weighed in the
2001 ROD, it is abundantly clear that the differences between
56 ORGANIZED VILLAGE OF KAKE V. USDA

the two are the result of a shift in policy. After analyzing
essentially the same facts, the USDA changed policy course
at the direction of the new president, prioritizing some
outcomes over others. Fox fully envisions such policy
changes. It directs courts to uphold regulations that result
from such changes, even if the agency gives an explanation
that is of “less than ideal clarity,” as long as “the agency’s
path may reasonably be discerned.” Fox, 556 U.S. at 513–14
(internal quotation marks and citation omitted). That
requirement is clearly met here.

II. The USDA Was Not Arbitrary and Capricious

The APA requires that we set aside agency actions that
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). In 2003,
the USDA carefully reconsidered the facts before it, going
through a full notice-and-comment process before exempting
the Tongass National Forest from the Roadless Rule. The
USDA was not arbitrary and capricious in making this
decision.

The majority contends that the USDA does not meet a key
requirement under Fox—that an “agency must show that
there are good reasons for the new policy.” 556 U.S. at 515.
Respectfully, the majority misconstrues Fox. Under Fox, an
agency “need not demonstrate to a court’s satisfaction that the
reasons for the new policy are better than the reasons for the
old one; it suffices that the new policy is permissible under
the statute, that there are good reasons for it, and that the
agency believes it to be better, which the conscious change of
course adequately indicates.” Id. (emphases added).
 ORGANIZED VILLAGE OF KAKE V. USDA 57

Accordingly, although the USDA only needed one good
reason to change its policy, it had four independent ones, all
of which are supported by the 2003 ROD: (1) resolving
litigation by complying with federal statutes governing the
Tongass, (2) satisfying demand for timber, (3) mitigating
socioeconomic hardships caused by the Roadless Rule, and
(4) promoting road and utility connections in the Tongass.

A. Litigation and Statutory Compliance

The USDA promulgated the exemption to the Roadless
Rule in part to comply with statutes governing the Tongass
and in response to lawsuits challenging the Roadless Rule.
The Supreme Court has suggested that it is appropriate for an
agency to engage in new rulemaking when litigation reveals
new information. See Smiley v. Citibank (S. Dakota), N.A.,
517 U.S. 735, 741 (1996) (“Nor does it matter that the
regulation was prompted by litigation, including this very
suit.”). This is precisely what occurred here: A number of
lawsuits filed against the USDA brought to light issues
concerning potential conflicts between the Roadless Rule, the
Alaska National Interest Lands Conservation Act (ANILCA),
Pub. L. No. 96-487, 94 Stat. 2371 (1980), and the Tongass
Timber Reforms Act (TTRA), Pub L. No. 101-626, 104 Stat.
4426 (1990). The majority focuses on the fact that the 2003
ROD engendered new litigation, and concludes that it was
therefore arbitrary and capricious for the USDA to act in
response to the earlier litigation. However, the fact that the
2003 ROD led to additional litigation says very little about
whether the earlier litigation pointed to legitimate issues
regarding the Roadless Rule’s compliance with various
statutes ordering preservation of an adequate supply of timber
to Southeast Alaskan communities whose inhabitants depend
on it for their livelihood. The agency acted well within the
58 ORGANIZED VILLAGE OF KAKE V. USDA

bounds of its authority if it believed that revising the
Roadless Rule would ensure compliance with the statutory
mandates that had generated the original litigation.

We have previously concluded that ANILCA and TTRA
require that the USDA balance multiple goals in the Tongass:
“recreation, environmental protection, and timber harvest.”
Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797,
808 & n.22 (9th Cir. 2005). The USDA’s 2003 ROD clearly
finds that the Tongass Exemption was meant to bring the
Roadless Rule in line with the purposes of ANILCA and
TTRA. The USDA noted that, under ANILCA, Congress
placed 5.5 million acres of Tongass in permanent wilderness
status and the designation of disposition of lands in the act
“represent[s] a proper balance between the reservation of
national conservation system units and those public lands
necessary and appropriate for more intensive use and
disposition.” 68 Fed. Reg. at 75,142. The USDA also stated
that TTRA requires it to ensure that enough timber is
available to “meet[] the annual market demand for timber”
and “meet[] the market demand from the forest for each
planning cycle . . . .” 68 Fed. Reg. at 75,140.

After promulgating the revised Roadless Rule, the USDA
issued a press release stating that the Tongass Exemption
sought to maintain “the balance for roadless area protection
struck in the Tongass Land Management Plan.” The 2003
ROD also concluded that “[t]his final rule reflects the
Department’s assessment of how to best implement the letter
and spirit of congressional direction along with public values,
in light of the abundance of roadless values on the Tongass,
the protection of roadless values already included in the
Tongass forest plan, and the socioeconomic costs to local
 ORGANIZED VILLAGE OF KAKE V. USDA 59

communities of applying the roadless rule’s prohibitions.”
68 Fed. Reg. at 75,142.

I do not suggest that ANILCA and TTRA explicitly forbid
the USDA from applying the Roadless Rule to the Tongass.
TTRA, for example, is “[s]ubject to appropriations, other
applicable law, and the requirements of the National Forest
Management Act . . . .” 16 U.S.C. § 539d(a). The USDA
therefore had discretion to adopt the Roadless Rule to protect
wildlife, recreation, sustained use, and other values. See
Natural Res. Def. Council, 421 F.3d at 801. By the same
token, nothing prevented the USDA from striking a different
balance and choosing to exempt the Tongass. Considering
the purposes of ANILCA and TTRA, it is clear that Congress
sought to promote a balance between environmental
preservation, road access, and timber availability. The USDA
recognized this directive in promulgating the revised rule.
The Supreme Court has “long recognized that considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to
administer, and the principle of deference to administrative
interpretations. . . .” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984). We should
abide by this principle, and defer to the actions of the USDA
in promulgating an exemption to the Roadless Rule.

B. Timber Demand

Likewise, the USDA’s determination that applying the
Roadless Rule to the Tongass would have led to a timber
shortage was not arbitrary and capricious. The majority fails
to even acknowledge the agency’s effort to promote timber
production, a factor which, by itself, suffices to uphold the
agency’s 2003 rulemaking.
60 ORGANIZED VILLAGE OF KAKE V. USDA

“A court generally must be ‘at its most deferential’ when
reviewing scientific judgments and technical analyses within
the agency’s expertise.” N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. 2011)
(citation omitted). The USDA calculated that the average
annual timber harvest in the Tongass between 1980 and 2002
was 269 million board feet (MMBF), which was higher than
usual. The USDA estimated that in the years following the
Roadless Rule, demand for timber would fall, but that
demand would still be at least 124 MMBF. The USDA found
that if the Roadless Rule were applied to the Tongass, the
maximum timber harvest would be 50 MMBF, which would
create a shortage of around 75 MMBF. The agency
concluded that exempting the Tongass from the Roadless
Rule would allow infrastructure to be built and boost timber
production to meet national demand. 68 Fed. Reg. at
75,141–42.

C. Socioeconomic Hardships

The USDA also revised the Roadless Rule because it
reconsidered socioeconomic hardships caused by applying the
rule to the Tongass. The majority fails to address this
justification for the Tongass Exemption, which is yet another
independent basis on which to uphold the agency’s 2003
rulemaking.

The district court held that the Roadless Rule would not
lead to job losses because reductions in timber demand had
already occurred. It suggested that the fall in timber demand
would have led to job losses, even without the Roadless Rule
in place. However, the district court impermissibly
substituted its factual determination for that of the agency.
Although some jobs would have been lost with the fall in
 ORGANIZED VILLAGE OF KAKE V. USDA 61

demand, the USDA concluded that the application of the
Roadless Rule to the Tongass would have exacerbated these
losses. The USDA had clear reasons to revise the Roadless
Rule to mitigate job losses caused by the fall in timber
demand. This decision is adequately supported by material
in the record.

D. Road and Utility Connections

Finally, the USDA promulgated the Tongass Exemption
to encourage road and utility construction in the Tongass,
another independent factor ignored by the majority that
justifies the agency’s action. Such infrastructure helps the
timber industry and supports isolated communities in the
national forest. The USDA found, for example, that “[t]he
impacts of the roadless rule on local communities in the
Tongass are particularly serious. Of the 32 communities in
the region, 29 are unconnected to the nation’s highway
system. Most are surrounded by marine waters and
undeveloped National Forest System land.” 68 Fed. Reg. at
75,139.

E. Notice and Comment

Several of the arguments raised by Organized Village of
Kake (the Village), and now affirmed by the majority, are
policy-based. By overturning the Tongass Exemption, the
majority conflates the process of judicial review with the
agency’s review of factual and policy questions. See 5 U.S.C.
§ 553(c) (“After notice required by this section, the agency
shall give interested persons an opportunity to participate in
the rule making through submission of written data, views, or
arguments with or without opportunity for oral presentation.
After consideration of the relevant matter presented, the
62 ORGANIZED VILLAGE OF KAKE V. USDA

agency shall incorporate in the rules adopted a concise
general statement of their basis and purpose.”).

The Village questions the merits of the USDA’s decision
to exempt the Tongass by raising what are primarily policy
issues that were addressed by the notice and comment
process. The USDA carefully considered comments it
received before promulgating the 2003 exemption. E.g.,
68 Fed. Reg. at 75,138 (“The agency received comments
regarding the effects the proposed exemption from the
roadless rule would have on the natural resources of the
Tongass. Some respondents expressed their view that 70
percent of the highest volume timber stands in Southeast
Alaska have been harvested, and exempting the Tongass from
the roadless rule would lead to the harvest of most or all of
the remainder of such stands.”); 68 Fed. Reg. 41,864, 41,865
(July 15, 2003) (“All interested parties are encouraged to
express their views in response to this request for public
comment on the following question: Should any exemption
from the applicability of the roadless rule to the Tongass
National Forest be made permanent and also apply to the
Chugach National Forest?”). As long as the agency’s
decision has clear factual support in the record, as is the case
here, it is not our place to substitute our policy preferences
for those of the agency. See Fox, 556 U.S. at 513–14.

III. National Environmental Policy Act (NEPA)
Claims

The Village claims that the USDA violated NEPA by
neglecting to prepare a new environmental impact statement
and by failing to consider alternatives to exempting the
Tongass. The district court did not reach this issue because
it reversed the agency on other grounds. Given my
 ORGANIZED VILLAGE OF KAKE V. USDA 63

disagreement with the majority, I would remand to the district
court to consider the NEPA claims in the first instance.

I respectfully dissent.

KOZINSKI, Circuit Judge, 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.