                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

STATE OF ALASKA,                                     )
                                                     )
              Plaintiff,                             )
                                                     )
                    and                              )
                                                     )
ALASKA FOREST ASSOCIATION, et al.                    )
                                                     )
              Intervenor-Plaintiffs,                 )
                                                     )
                     v.                              )   Civil Case No. 11-1122 (RJL)
                                                     )
UNITED STATES DEPARTMENT OF                          )
AGRICULTURE, et al.,                                 )
                                                     )
              Defendants                             )
                                                     )
                    and                              )
                                                     )
SOUTHEAST ALASKA CONSERVATION                        )
COUNCIL, et al.,                                     )
                                                     )
              Intervenor-Defendants.                 )

                               MEMORANDUM OPINION
                                         s..P
                             (March 2!_, 2013) [Dkts. ##45, 46]

       The complaints in this case seek declaratory and injunctive relief for what the State

of Alaska and plaintiff intervenors (collectively, "Alaska") claim are statutory and

administrative-law violations related to the promulgation of the 2001 Roadless Area

Conservation Final Rule and Record of Decision ("Roadless Rule," or the "Rule"). The

federal defendants, United States Department of Agriculture ("USDA"), et al., move for

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dismissal of all claims for lack of subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). Fed. Defs.' Mot. to Dismiss [Dkt. #45]. The intervenor defendants,

Southeast Alaska Conservation Council, et al., similarly move to dismiss all claims under

Federal Rule of Civil Procedure 12(b)(6) as time-barred and unsupported in law.

Intervenor Defs.' Mot. to Dismiss [Dkt. #46]. Upon consideration ofthe parties'

pleadings, relevant law, and the entire record herein, the Court concludes that Alaska's

claims fail for lack of subject-matter jurisdiction because they are untimely.

Accordingly, the Court will GRANT the federal defendants' Motion to Dismiss and

DENY the intervenor defendants' Motion to Dismiss as MOOT.

                                     BACKGROUND

       In the waning hours of the Clinton Administration, the Roadless Rule was signed

by the Secretary of Agriculture, Daniel Glickman, on January 5, 2001, and published on

January 12, 2001, following three years of deliberation and over 1 million public

comments. See Roadless Rule, 66 Fed. Reg. 3,244, 3,247-48 (Jan. 12, 2001) (codified at

36 C.F.R. pt. 294). Acting pursuant to its authority to oversee our national forest system

and maintain a road network of over 400,000 miles, the USDA claimed to be responding

to concerns both environmental and fiscal. See Roadless Rule, 66 Fed. Reg. at 3,245-46,

3,272. As such, the Rule prohibits roadwork and timber harvesting on 58.5 million acres

of national forest, id. at 3,245, 3,247, including 14.7 million acres ofthe Tongass and

Chugach National Forests in Alaska, Compl.    ~57   [Dkt. #1]. To say the least, the


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Roadless Rule engendered mixed reactions.

         Indeed, to date, the Roadless Rule has survived many legal challenges. Shortly

after the Rule was adopted, the Kootenai Tribe brought suit in the District of Idaho. See

Kootenai Tribe ofIdaho v. Veneman, 313 F .3d 1094, 1106 (9th Cir. 2002), partially

abrogated on other grounds by Wilderness Soc y v. US. Forest Serv., 630 F .3d 1173 (9th

Cir. 2011) (en bane). The United States District Court for the District ofldaho

preliminarily enjoined the Rule, id. at 1107, but the Ninth Circuit Court of Appeals

reversed the injunction in December 2002, id. at 1126.

         The State of Alaska was also quick to challenge the Roadless Rule. In January

2001, the State of Alaska filed a suit similar to the instant case in the United States

District Court for the District of Alaska. Alaska v. USDA, No. 3:01-cv-00039-JKS (D.

Alaska filed Jan. 31, 2001). Following the Ninth Circuit's decision in Kootenai, the

parties reached a settlement agreement. See id. (D. Alaska order of dismissal filed July

22, 2003 based on June 10, 2003 settlement agreement). Pursuant to the settlement

agreement, the USDA initiated a rulemaking process culminating in the adoption of an

interim rule, 36 C.F.R. § 294.14(d), exempting Alaska's Tongass National Forest from

the Roadless Rule ("Tongass Exemption"). 68 Fed. Reg. 75,136, 75,138 (Dec. 30,

2003).

         The State of Wyoming also challenged the Roadless Rule in early 2001. See

Wyoming v. USDA, 277 F. Supp. 2d 1197 (D. Wyo. 2003). In 2003, the United States



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District Court for the District of Wyoming invalidated the Rule under the Administrative

Procedure Act ("APA"), holding that it violated the National Environmental Policy Act

("NEPA") and the Wilderness Act. !d. at 1239. The USDA subsequently superseded

the Roadless Rule with the State Petitions for Inventoried Roadless Area Management

Rule ("State Petitions Rule"). 70 Fed. Reg. 25,654, 25,662 (May 13, 2005).

       The State Petitions Rule in tum spurred additional litigation. In September 2006,

the United States District Court for the Northern District of California held that the State

Petitions Rule violated NEP A and the Endangered Species Act and reinstated the

Roadless Rule and the Tongass Exemption. California ex rel. Lockyer v. USDA, 459 F.

Supp. 2d 874, 919 (N.D. Cal. 2006). In 2009, the Ninth Circuit upheld this decision.

California ex rel. Lockyer v. USDA, 575 F.3d 999 (9th Cir. 2009). Undaunted, the State

of Wyoming launched a second attack on the Roadless Rule after it was reinstated. See

Wyoming v. USDA, 570 F. Supp. 2d 1309 (D. Wyo. 2008). In August 2008, the United

States District Court for the District of Wyoming enjoined the Rule for a second time.

!d. at 1355. In October 2011, however, the Tenth Circuit reversed the injunction and

upheld the Roadless Rule. Wyoming v. USDA, 661 F.3d 1209, 1272 (lOth Cir. 2011).

       In 2011, an Indian tribe and other groups challenged the Tongass Exemption in the

District Court for the District of Alaska. Organized Vill. of Kake v. USDA, 776 F. Supp.

2d 960 (D. Alaska 2011). The State of Alaska intervened in support ofthe Exemption.

On March 4, 2011, the court vacated the Tongass Exemption and reinstated the Roadless


                                              4
Rule in the Tongass National Forest. !d. at 976-77. Shortly thereafter, the State of

Alaska brought the instant suit.

                                STANDARD OF REVIEW

       The defendants have moved to dismiss all claims as time-barred under Federal

Rule of Civil Procedure 12(b)(1) or, in the alternative, under Federal Rule of Civil

Procedure 12(b)( 6). The Court must address the Rule 12(b)( 1) jurisdictional challenge

first. See Vt. Agency ofNatural Res. v. United States ex rel. Stevens, 529 U.S. 765, 778

(2000) ("Questions of jurisdiction, of course, should be given priority-since if there is

no jurisdiction there is no authority to sit in judgment of anything else."). Under Rule

12(b)(l), "[i]t is to be presumed that a cause lies outside [the Court's] limited

jurisdiction." Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). A

plaintiff must establish that the Court possesses jurisdiction by a preponderance of the

evidence. See Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006). The Court

must grant plaintiffs all favorable inferences supported by the facts in the complaint.

Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1134 (D.C. Cir. 2002).

                                         ANALYSIS

       Alaska challenges the facial validity of the 200 1 Roadless Rule under the AP A and

various federal and state statutes. Because none of these statutes includes its own statute

of limitations, 28 U.S.C. § 240l(a), the general six-year statute of limitations for civil

actions against the federal government, applies. See Conservation Force v. Salazar, 811


                                               5
F. Supp. 2d 18, 27 (D.D.C. 2011). Section 2401(a) provides that "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." 28 U.S.C. § 2401(a). A facial challenge

to an agency action "first accrues" under§ 2401(a) "on the date of the final agency

action." See Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004).

       Here, Alaska's cause of action accrued in January 2001, when the Roadless Rule

was adopted and published. The six-year limitations period established by§ 2401(a)

expired well before Alaska instituted the present action in 2011. Because"§ 2401(a) is a

jurisdictional condition attached to the government's waiver of sovereign immunity, and

as such must be strictly construed," this Court lacks jurisdiction over Alaska's claims.

Spannaus v. U.S. Dep 't ofJustice, 824 F .2d 52, 55 (D.C. Cir. 1987).

       Indeed, Alaska's argument that§ 2401(a) is not jurisdictional is contrary to

longstanding precedent in our Circuit. See id.; Hardin v. Jackson, 625 F.3d 739, 740

(D.C. Cir. 2010); P & VEnters. v. U.S. Army Corps ofEng'rs, 516 F.3d 1021, 1026 (D.C.

Cir. 2008); JEM Broad. Co. v. FCC, 22 F. 3d 320, 325 (D.C. Cir. 1994); Conservation

Force, 811 F. Supp. 2d at 27; Bigwood v. Def Intelligence Agency, 770 F. Supp. 2d 315,

318-19 (D.D.C. 2011); Ramstackv. Dep't of the Army, 694 F. Supp. 2d 16,20 (D.D.C.

2010); Kenney v. U.S. Dep't ofJustice, 700 F. Supp. 2d 111, 115 (D.D.C. 2010); Porter v.

CIA, 579 F. Supp. 2d 121, 126 (D.D.C. 2008); W. Va. Highlands Conservancy v.

Johnson, 540 F. Supp. 2d 125, 138 (D.D.C. 2008). And while our Circuit Court has


                                             6
noted the possibility in dicta that the Supreme Court's decision in Irwin v. Dep 't of

Veterans Affairs, 498 U.S. 89 (1990), could undermine its longstanding precedent that§

240l(a) is jurisdictional, it has not, to date, had an occasion to so rule. SeeP & V

Enters., 516 F.3d at 1026-27; Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir.

2007); Harris, 353 F.3d at 1013 n.7.

       Finally, I also reject Alaska's back-up argument that standing to sue is a

prerequisite to the running of the limitations period established by§ 240l(a). See Alaska

Opp 'n to Defs.' Mots. to Dismiss 12-14 [Dkt. #51]. If a litigant has a question as to

ripeness or standing, "the appropriate time for a judicial determination ... is within the

prescribed statutory period for review." Eagle-Picher Indus., Inc. v. US. EPA, 759 F.2d

905, 909 (D.C. Cir. 1985). "[P]etitioners who delay filing requests for review on their

own assessment of [justiciability] do so at the risk of finding their claims time-barred."

!d. Indeed, allowing litigants to do so "would virtually nullify the statute of limitations"

in the context of facial challenges to agency rules, Shiny Rock Mining Corp. v. United

States, 906 F.2d 1362, 1365 (9th Cir. 1990), thereby upsetting the balance struck by

Congress between administrative finality and the interests of litigants, see JEM Broad.

Co., 22 F.3d at 326.

                                       CONCLUSION

       Thus, for all of the foregoing reasons, the Court concludes that plaintiffs'

complaints must be dismissed as untimely pursuant to Rule 12(b)(l) for lack of


                                              7
subject-matter jurisdiction. Accordingly, intervenor defendants' Motion to Dismiss

pursuant to Rule 12(b)(6) need not be resolved and is DENIED as MOOT. An Order

consistent with this decision accompanies this Memorandum Opinion.




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