State of Alaska v. Department of Agriculture , 772 F.3d 899 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2014 Decided November 7, 2014
No. 13-5147
STATE OF ALASKA,
APPELLANT
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,
INTERVENOR-APPELLEES
Consolidated with 13-5150, 13-5151
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cv-01122)
Dario Borghesan, Assistant Attorney General, Alaska
Department of Law, argued the cause for appellant. With him
on the briefs were Thomas E. Lenhart, Assistant Attorney
General, Julie A. Weis, Mark C. Rutzick, and Steven W. Silver.
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John M. Schultz was on the brief for amici curiae
Southeast Alaska Power Agency, et al. in support of
appellant.
John L. Smeltzer, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Robert G. Dreher, Acting Assistant Attorney General,
and David C. Shilton, Attorney.
Nathaniel S.W. Lawrence argued the cause for
intervenor-appellees Southeast Alaska Conservation Council,
et al. With him on the brief were Thomas S. Waldo and Eric
P. Jorgensen.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: The United States Forest
Service is an agency within the Department of Agriculture.
The Forest Service manages the Nation’s forests. In doing so,
the Forest Service balances use of forest resources against
conservation of the forests.
In January 2001, the Forest Service adopted the Roadless
Rule. That rule prohibited road construction, road
reconstruction, and timber harvesting on millions of acres of
national forest lands, including vast swaths of national forest
land in Alaska. See 36 C.F.R. §§ 294.10-294.14 (2001); 66
Fed. Reg. 3244, 3244-45 (Jan. 12, 2001); 68 Fed. Reg.
75,136, 75,136-39 (Dec. 30, 2003).
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In 2005, the Forest Service repealed the Roadless Rule.
See 70 Fed. Reg. 25,654, 25,654 (May 13, 2005). But then in
2006, the District Court for the Northern District of California
ordered reinstatement of the rule. See California ex rel.
Lockyer v. U.S. Department of Agriculture, 459 F. Supp. 2d
874, 916 (N.D. Cal. 2006).
In 2011, the State of Alaska filed this lawsuit challenging
the Roadless Rule. A six-year statute of limitations governs
Alaska’s suit. The statute of limitations runs from the date
that “the right of action first accrues.” 28 U.S.C. § 2401(a)
(“every civil action commenced against the United States
shall be barred unless the complaint is filed within six years
after the right of action first accrues”).
The Forest Service argues that Alaska’s suit is out of time
because, according to the Forest Service, Alaska’s right of
action accrued in 2001 when the Roadless Rule was issued.
The fundamental problem with the Forest Service’s argument
is that the Forest Service repealed the Roadless Rule in 2005.
The Forest Service’s 2005 repeal of the Roadless Rule
extinguished the right of action that had accrued in 2001.
It is true that the Roadless Rule, after being repealed by
the Forest Service in 2005, was reinstated in 2006 as a result
of an order by the District Court for the Northern District of
California. For purposes of Section 2401(a), however, a new
right of action necessarily accrued upon the rule’s
reinstatement in 2006. In essence, when the District Court for
the Northern District of California issued its 2006 order, a
new rule identical to an old repealed rule was issued. The
Forest Service concedes that a new right of action would have
accrued in 2006 if the agency acting on its own had issued the
new rule. See Oral Arg. Rec. at 17:45-18:12. But the Forest
Service says that this case is different because the rule was
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reinstated in 2006 as a result of a court order. In our
judgment, however, it does not matter for these purposes
whether the 2006 rule was issued by the agency acting on its
own or as a result of a court order. Either way, when the rule
was reinstated in 2006 after its repeal in 2005, a new right of
action accrued. Cf. Ohio v. Environmental Protection
Agency, 838 F.2d 1325, 1328 (D.C. Cir. 1988) (“the period
for seeking judicial review may be made to run anew when
the agency in question by some new promulgation creates the
opportunity for renewed comment and objection”). To be
sure, under a statute allowing suit only if brought within a
specified period “after the right of action first accrues,” it may
seem anomalous that a legal challenge to a regulation may be
filed considerably after the initial expiration of that period.
But the same thing occurs under our “reopener” doctrine, as
exemplified by Ohio. Under that doctrine, the reopening is
seen as giving rise to a “new right of action” even though the
regulation challenged is no different. Sendra Corp. v.
Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997).
Under Section 2401(a), Alaska had six years from the
time of the rule’s reinstatement in 2006 to file a lawsuit
challenging the rule. Alaska filed suit in 2011. Alaska’s suit
is therefore timely under Section 2401(a).
This case has an unusual procedural background, and our
holding is accordingly narrow. We reverse the judgment of
the District Court dismissing Alaska’s complaint as untimely,
and we remand to the District Court for consideration of
Alaska’s challenges to the Roadless Rule.
So ordered.