When administrations change, so does policy.  That may result in an agency changing its mind.  On the federal level, that change — particularly a change in a factual finding — will be subject to review under the Administrative Procedure Act.

The Ninth Circuit recently considered such a change in position over whether the Tongass National Forest in Alaska ought to be exempt from the “Roadless Rule,” and its “roadless values” left to protection under the Tongass’s individual forest plan.  Organized Village of Kake v. U.S. Dept. of Agriculture, No. 11-35517 (9th Cir. July 29, 2015)(en banc).  This was a dispute that has been going on since the transition from the Clinton Administration to the Bush Administration.  Perhaps that alone is a lesson.  More significantly, the majority suggests that outgoing administrations can insulate their policy choices to some extent by couching them as factual findings.  Factual findings appear to require more of a basis to undo.  That may have importance as we come to another transition.

I address these issues in my September column in the Pennsylvania Law Weekly.  Read When an Agency Changes Its Mind, 38 Pa. L. Weekly 856 (Sept. 15, 2015), by clicking here.