Ninth Circuit Outlines Standard for Agency Reversal of Policy

With an election year comes speculation about who will win the Presidency and whether the new Administration could reverse some of the more controversial programs of the Obama Administration, including those being pursued by the EPA.  Should that happen, a decision last summer by the Ninth Circuit Court of Appeals, en banc, in Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517, July 29, 2015,, could provide guidelines for evaluating such reversals.  The case involved a Bush Administration effort to reverse the Clinton Administration’s “Roadless Rule”, promulgated in 2001, just days before the change in administration.  In promulgating the rule, the U.S. Department of Agriculture (USDA) expressly refused to exempt the Tongass National Forest from the rule’s restrictions.  In holding that the Bush Administration later improperly exempted Tongass from the Roadless Rule, the 9th Circuit opinion, authored by Circuit Judge Andrew D. Hurwitz, held that an agency “may not simply discard prior factual findings without a reasoned explanation”, Organized Village of Kake, p. 26,  for its new findings and for reversing the prior determination.  “The absence of a reasoned explanation for disregarding previous factual findings violates the APA [Administrative Procedure Act].  ‘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’”, Organized Village of Kake, p. 28, quoting the U.S. Supreme Court decision in FCC v. Fox Television Stations, Inc., 556 U.S. 502 at 537 (2009) (Kennedy, J., concurring).  The Ninth Circuit held that the reversal of policy regarding the Tongass Forest was arbitrary and capricious and therefore violated the APA.

At least six of the eleven judges on the Ninth Circuit supported the opinion.  The opinion did not provide a breakdown of the vote.  Three judges filed dissenting opinions.

For more information on the opinion, contact Steve O’Day.

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