The past few years have seen an increase in the federal executive branch launching significant policy initiatives. While some of these policy initiatives may continue regardless of who holds the presidency, others may change depending on policy views.

On July 29, 2015, the Ninth Circuit Court of Appeals examined what standard to use when evaluating executive branch changes in policy that resulted from reversals of factual findings made by a prior administration. Organized Vill. of Kake et al v. U.S. Dep’t of Agric. et al, No. 11-35517, 2015 WL 4547088 (“Kake”). The court held that an agency must now provide a “reasoned explanation” of policy changes that are occasioned by different factual findings.

While the decision does not foreclose the ability of the executive branch to change policies, it emphasizes the need for policy changes to be supported by appropriate facts.

The Roadless Rule and the Tongass National Forest

Kake involved a national roadless lands policy (the Roadless Rule), which would limit timber harvesting and construction of roads in inventoried “roadless areas.” The Roadless Rule was issued by the U.S. Department of Agriculture (USDA) at the very end of the Clinton administration. In its original 2001 Record of Decision (ROD), the USDA concluded that the Roadless Rule should include the Tongass National Forest in Alaska because the failure to include this area could occasion “the loss of important roadless area [ecological] values.”

In 2003, after the Bush administration came to power, the USDA promulgated the “Tongass Exemption.” The 2003 ROD for the exemption found that application of the Roadless Rule to the Tongass Forest was “unnecessary to maintain the roadless values.” The Organized Village of Kake filed suit, alleging the Tongass Exemption violated both the Administrative Procedure Act and the National Environmental Policy Act.

The Decision

The Ninth Circuit reviewed this case to determine whether the “dramatically changed finding” regarding the Tongass Exemption was sufficiently explained under the requirements of the Administrative Procedure Act. In an en banc decision, the court held that the 2003 Tongass Exemption violated the Administrative Procedure Act because the USDA had failed to demonstrate that each of the following four factors was met in 2003 when it changed its policy:

  1. An “awareness” that it was changing its position;
  2. That the new policy was “permissible under the statute”;
  3. That the agency believed the new policy was better; and
  4. That the agency had “good reasons” for adopting the new policy, including a “reasoned explanation” of any factual findings upon which the policy rested.

The court held the USDA satisfied the first three requirements identified in Fox, but failed to meet the fourth requirement of providing a reasoned explanation for its factual finding.

The 2003 ROD identified the following USDA rationale for the exemption:

  1. “Serious concerns” about the previously identified economic and social hardships of the Roadless Rule,
  2. Comments received regarding the proposed rule, and
  3. Litigation caused by the Roadless Rule.

The court rejected these reasons, noting that the 2003 ROD’s findings directly contradicted the 2001 ROD’s findings without explanation and based on the same record, the comments on the proposed rule did not raise new issues, and the Tongass Exemption would not prevent litigation: “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.”

Because the USDA failed to explain its reversal based on the same factual record, the finding—and, therefore, the Tongass Exemption—violated the Administrative Procedure Act. As indicated above, this decision reemphasizes that there are some limits on the executive, and that an agency needs to act holistically when policy changes occur. Where decisions are piecemeal and prior fact findings are not modified, courts are willing to step in.