Se. Alaska Conservation Council v. U.S. Forest Serv.
| Citation | 443 F.Supp.3d 995 |
| Decision Date | 11 March 2020 |
| Docket Number | Case No. 1:19-cv-00006-SLG |
| Parties | SOUTHEAST ALASKA CONSERVATION COUNCIL, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants. |
| Court | U.S. District Court — District of Alaska |
Olivia Elisabeth Glasscock, Thomas S. Waldo, Earthjustice, Juneau, AK, for Plaintiffs.
Erika Danielle Norman, U.S. Department of Justice, Washington, DC, for Defendants.
Sharon L. Gleason, UNITED STATES DISTRICT JUDGE This is an action in which Plaintiffs Southeast Alaska Conservation Council, Alaska Rainforest Defenders, Center for Biological Diversity, Sierra Club, Defenders of Wildlife, Alaska Wilderness League, National Audubon Society, and Natural Resources Defense Council seek the invalidation of portions of the 2018 Environmental Impact Statement and 2019 Record of Decision for the Forest Service's Prince of Wales Landscape Level Analysis Project for the Tongass National Forest. Briefing on the merits concluded on August 23, 2019.1 Oral argument was held on February 7, 2020.2
The factual background for this case was set out at some length in the Court's prior order granting Plaintiffs' motion for a preliminary injunction.3 It is repeated here to a certain extent with some additions.
The Tongass National Forest ("Tongass") is a 16.7 million-acre forest in Southeast Alaska.4 The nation's largest national forest,5 the Tongass has seen timber harvesting of varying intensity over the past 100 years.6 In the 1950s, the Forest Service awarded several 50-year timber sale contracts in the forest to "provide a sound economic base in Alaska through establishment of a permanent year-round pulp industry."7 But logging in the Tongass began to slow in the 1980s and 1990s, when several of these long-term contracts were terminated due to market fluctuation, litigation, and other factors.8
Prince of Wales Island, a large island in the Alexander Archipelago, lies within the Tongass.9 Two large pulp mills once operated on the island, where industrial scale logging occurred in the second half of the 20th century, but both mills closed in the 1990s.10 There are 12 communities on the island with a total of approximately 4,300 residents, many of whom are Alaska Native.11 Tourism and sport and commercial fishing are important to the local economy,12 and many residents rely to some degree on subsistence hunting, fishing, and gathering.13
Pursuant to the National Forest Management Act ("NFMA") and its implementing regulations, the Forest Service has developed land and resource management plans, also called forest plans, to govern its management of the Tongass.14 Forest plans "operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses ..., but do not directly compel specific actions, such as cutting of trees in a particular area or construction of a specific road."15 Any activity occurring within a national forest must comply with the governing forest plan,16 which the Forest Service is required to revise at least every 15 years.17 The current forest plan for the Tongass was issued in 2016, following the completion of an environmental impact statement ("EIS").18 The Forest Plan provides that "[t]imber harvest unit cards will document resource concerns and protection measures," and requires that these "unit cards, including a map with relevant resource features, ... be provided electronically when Draft or Final NEPA documents and decisions are published."19
In late 2016, the Forest Service initiated environmental planning for a proposed project within the Tongass: the Prince of Wales Landscape Level Analysis Project ("Project").20 The agency describes the Project as "a large landscape-scale NEPA analysis that will result in a decision whether or not to authorize integrated resource management activities on Prince of Wales Island over the next 15 years."21 The Forest Service released a final EIS for the Project on October 19, 201822 and issued a Record of Decision ("ROD") selecting the preferred alternative from the EIS on March 16, 2019.23
The Project encompasses all of the land within the national forest system on Prince of Wales Island, consisting of roughly 1.8 million acres.24 It authorizes four categories of activities within this area: vegetation management, including timber harvesting; watershed improvement and restoration; sustainable recreation management; and "associated actions."25 The EIS for the Project does not specify when and where individual activities will occur within the Project Area. Rather, the Project is designed to be a flexible planning framework intended to allow the Forest Service to tailor resource management to changing conditions on the ground over the course of the Project's 15-year term.
The Forest Service appended to the EIS what it terms an Activity Card for each of the 46 activities included in the four activity categories.26 "The Activity Cards describe each potential activity and the related resource considerations," and include "[p]roject-specific design criteria and mitigation measures."27 The Activity Cards were designed using "on-the-ground inventories, computer (GIS) data, and aerial photographs to assess project area conditions and resource-specific concerns."28 The Activity Cards describe and govern activities at the project level, but they do not identify the specific geographic areas within the Project Area where each activity will occur.29 Unlike prior sales, the Project EIS was not accompanied by timber harvest unit cards with maps detailing specific harvest configurations.30
In preparing the Project EIS, the Forest Service also developed a Logging System Transportation Analysis ("LSTA") to "identif[y] potential stands for timber harvest and the associated transportation network that would be needed."31 The LSTA "was developed for National Forest System lands within the project area layer using information from the Forest GIS library, aerial photos, and the Forest Service Activity Tracking System database."32 The LSTA identified 125,529 acres of potential timber harvest in the Project Area: 48,140 old-growth acres and 77,389 young-growth acres.33 The LSTA also identified 643 miles of new roads, 505 of them temporary and 138 permanent.34 The Forest Service represented this information in a Commercial Vegetation Management map,35 which it appended to the ROD, and to which it provided a link in the EIS.36
The Project EIS addresses four alternatives in detail, including a no-action alternative.37 Each activity under each alternative must be consistent with the applicable Activity Card and certain alternative-specific features, and each activity must also occur within the areas identified for that activity in the LSTA.38 Each action alternative establishes a maximum potential amount of timber harvest and road construction.39 Focusing on timber harvest, Alternative 2, the preferred alternative, allows a maximum of 23,269 acres of old-growth harvest and 19,366 acres of young-growth harvest, or roughly 34 percent of the total potential acreage in the LSTA.40 However, the EIS does not identify where the harvest authorized by each alternative would occur within the potential acreage identified in the LSTA.41
In order to capture the "maximum effects" of the Project, the Project EIS makes several assumptions in addressing each alternative.42 First, in analyzing each alternative, the Forest Service indicates that it assumed that all acres of potential harvest in the LSTA would be harvested and all roads proposed by the alternative would be built.43 Second, the Forest Service assumed that all acres would be harvested using clear-cut methods.44 Third, the Forest Service assumed that each Wildlife Analysis Area—a land division used by the Alaska Department of Fish and Game—would be harvested to the maximum acreage available.45
As noted above, the alternatives do not provide the specific locations or configurations of harvest or roadbuilding within the LSTA. Instead, the Project EIS provides that "site-specific locations and methods" for activities such as timber harvest "will be determined during implementation" over the 15-year lifespan of the Project.46 It explains that siting decisions and the parameters of actual timber sales will be determined pursuant to an Implementation Plan, in a way that is consistent with the alternative selected by the ROD and the Activity Cards developed for the EIS.47 However, the EIS makes clear that these subsequent, site-specific decisions will not be subject to additional NEPA review.48
The Forest Service terms this approach "condition-based analysis."49
The Implementation Plan published with the ROD sets out a nine-step process for making site-specific determinations.50 This process includes checking the action against the relevant Activity Card, the final EIS, and the ROD, as well as engaging in "workshops and other public involvement techniques."51 It is during this process, also, that site-specific unit cards will be developed that describe particular harvest configurations.52 The ROD explains that the Implementation Plan "is integral to the analysis of effects in the [Project EIS] and the Selected Alternative in the [ROD]," and was "developed ... to provide a linkage from the [Project EIS] to the project-specific work without the need for additional NEPA analysis."53 That said, the ROD describes the Implementation Plan as a "living document" that "may need to be adjusted."54
The Forest Service began implementing the Project shortly after issuing the ROD. It held a public workshop on April 6, 201955 and published an "Out-Year Plan" for fiscal year 2019 that included a proposed timber sale of 1,156.34 acres, known as the Twin Mountain Timber Sale.56 The Forest Service also published draft unit cards for the sale, which identify the specific locations and method of timber harvest in graphical and narrative form.57
Plaintiffs initiated this...
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TEAR DOWN THIS WALL: ALIGNING THE CORPS' ENVIRONMENTAL REVIEW OBLIGATIONS UNDER NEPA AND THE CLEAN WATER ACT FOR SECTION 404 WETLAND PERMITS.
...to document that there are no significant impacts for the proposed project. See Se. Alaska Conservation Council v. U.S. Forest Serv., 443 F. Supp. 3d 995, 1012-13 (D. Alaska 2020) ("An EA is meant to determine whether a proposed action will have a significant impact on the environment, such......