Alaska Wilderness Recreation and Tourism Ass'n v. Morrison, 95-35222

• Citation: 67 F.3d 723
• Decision Date: 28 September 1995
• Docket Number: No. 95-35222,95-35222
• Parties: , 26 Envtl. L. Rep. 20,065, 95 Cal. Daily Op. Serv. 7590, 95 Daily Journal D.A.R. 12,963 ALASKA WILDERNESS RECREATION AND TOURISM ASSOCIATION; Organized Village of Kake; Southeast Alaska Conservation Council; Natural Resources Defense Council; The Wilderness Society, Plaintiffs-Appellants, v. Gary A. MORRISON, Forest Supervisor, Chatham Area, Tongass National Forest; Abigail Kimbell, Forest Supervisor, Stikine Area, Tongass National Forest; U.S. Forest Service, Defendants-Appellees. Alaska Forest Association, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 723

67 F.3d 723

41 ERC 1688, 26 Envtl. L. Rep. 20,065,

95 Cal. Daily Op. Serv. 7590,

95 Daily Journal D.A.R. 12,963

ALASKA WILDERNESS RECREATION AND TOURISM ASSOCIATION Organized Village of Kake; Southeast Alaska Conservation Council; Natural Resources Defense Council; The Wilderness Society, Plaintiffs-Appellants, v. Gary A. MORRISON, Forest Supervisor, Chatham Area, Tongass National Forest; Abigail Kimbell, Forest Supervisor, Stikine Area, Tongass National Forest; U.S. Forest Service Defendants-Appellees Alaska Forest Association, Defendant-Intervenor-Appellee.

No. 95-35222.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1995.

Decided July 24, 1995.

As Amended Sept. 28, 1995.

Thomas S. Waldo, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for the plaintiffs-appellants.

David Shilton, United States Department of Justice, Washington, DC, for the defendants-appellees.

James F. Clark, Robertson, Monagle & Eastaugh, Juneau, Alaska, for defendant-intervenor-appellee Alaska Forest Association.

Appeal from the United States District Court for the District of Alaska.

Before: BROWNING, WRIGHT, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

The Alaska Wilderness Recreation and Tourism Association, the Organized Village of Kake, the Southeast Alaska Conservation Council, the Natural Resources Defense Council, and the Wilderness Society ("Alaska Wilderness") appeal the district court's denial of their request for an injunction and declaratory judgment against the United States Forest Service. Amici curiae Sitka Tribe of Alaska and Klawock Cooperative Association submit a brief in support of Alaska Wilderness. Intervenor Alaska Forest Association ("AFA") intervened on the side of the Forest Service.

Following the early termination of a 50-year contract with the Alaska Pulp Corporation ("APC"), the Forest Service opened the harvest area to bids from other lumber companies. We hold that the Forest Service's failure to hold public proceedings and to consider alternative plans for the area before embarking on new timber sales violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321 et seq., and the Alaska National Interest Lands Conservation Act ("ANILCA"), 16 U.S.C. Sec. 3101 et seq. We vacate and remand to the district court to conduct a balancing of the equities to determine whether the preliminary injunction now in force should continue pending the Forest Service's compliance with NEPA and ANILCA, or to fashion an injunction as it deems appropriate.

I

Statutory Framework

A. The National Environmental Policy Act

NEPA requires federal agencies to file an environmental impact statement ("EIS") before undertaking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). The EIS is to include a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id. The regulations of the Council on Environmental Quality ("CEQ") require the agency to prepare a supplemental EIS whenever "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" arise. 40 C.F.R. Sec. 1502.9(c)(1)(ii).

B. Alaska National Interest Lands Conservation Act

According to ANILCA's policy statement, public lands in Alaska are to be used so as to "cause the least adverse impact possible on rural residents who depend upon subsistence uses of the resources of such lands." 16 U.S.C. Sec. 3112(1). Passed in 1980, ANILCA provides that in "determining whether to withdraw, reserve, lease or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions," the agency shall "evaluate the effect of such use," taking into account the "availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes." 16 U.S.C. Sec. 3120(a).

Where the use would "significantly restrict subsistence uses," the agency must also follow notice and hearing procedures and determine whether "such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of public lands." See 16 U.S.C. Sec. 3120(a)(1)-(3).

In 1990, Congress enacted the Tongass Timber Reforms Act ("TTRA"), defined, inter alia, as an act to amend ANILCA, modify the existing 50-year timber contracts, and protect certain lands and riparian habitats in the Tongass National Forest. See Pub.L. No. 101-626, 104 Stat. 4426. TTRA section 101 amends ANILCA's mandate to supply 4.5 billion board feet of timber from the Tongass National Forest. Rather than requiring the Forest Service to meet a fixed supply level, the statute now directs the Forest Service to "seek" to meet the annual market demand for timber, "[s]ubject to appropriations, other applicable law, and the requirements of the National Forest Management Act of 1976," and "to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources." 16 U.S.C. Sec. 539d(a). TTRA section 301(c)(2) placed a proportional harvest constraint on old-growth timber in the APC and KPC 50-year contracts. 104 Stat. 4430 (1990).

II Facts & Procedural History

This dispute arises in the wake of the Forest Service's cancellation of its 50-year timber sales contract with APC. While federal law now prohibits timber sales contracts of over ten years' duration, 16 U.S.C. Sec. 472a, the contract with APC was among several long-term contracts initiated in the 1950's, of which only one is still in effect. That contract, with Ketchikan Pulp Company ("KPC"), will expire in 2004. The APC contract, set to expire in 2011, was cancelled by the Forest Service in April 1994 after APC closed its pulp mill in Sitka, laying off 400 workers.

Following cancellation of the APC contract, the Forest Service decided to offer the uncut timber formerly reserved for APC for sale to KPC under its long-term contract and to other lumber companies (via competitive bids) on an independent sales basis. Under the latter plan, the Forest Service would periodically offer for sale a specified number of board feet of timber. (The sale schedule made 71 million board feet ("MMBF") available for sale in July 1994, and projected sales of 100 MMBF for 1995.) One effect of the independent sales plan is the elimination of TTRA's proportional harvest constraint on old-growth timber.

A. Environmental Evaluation Requirements

The current dispute centers on whether the Forest Service is required under NEPA or ANILCA to conduct formal environmental review, including production of an environmental impact statement ("EIS"), before proceeding with the proposed timber sales. The Forest Service produced several area EISs in 1992-93, prior to the cancellation of the APC contract. Their adequacy in light of that cancellation is the subject of this review. The Forest Service's environmental evaluation and management process may be summarized as follows.

1. The Forest Plan

The Forest Service manages national forest land under the National Forest Management Act ("NFMA"), 16 U.S.C. Secs. 1600 et seq. In keeping with NFMA, the Forest Service articulates general goals through a Forest Plan, ¹ which is to be revised every ten to fifteen years. The Forest Plan is implemented through site-specific plans subject to review under NEPA and in Alaska, ANILCA, which mandate the production of certain evaluative documents (most importantly, EISs, and supplementary EISs ("SEISs")). The current Forest Plan for the Tongass was issued in 1979, and amended in 1985-86. The Forest Service is currently working on a revised Tongass Forest Plan.

The 1979 Plan divides the Tongass into four land use designations ("LUDs"): I) wilderness lands; II) lands managed in a roadless state; III) lands managed for multiple uses, including timber; and IV) lands for resource development. The lands at issue here are LUD Types III and IV. While the Forest Plan thus anticipates timber harvest in these areas, timber sales cannot be carried out until site-specific plan requirements are met.

2. The EISs

In 1992-93, the Forest Service produced its most recent site-specific EISs for the areas in question: the Kelp Bay EIS, the Southeast Chicagof EIS and the North & East Kuiu EIS. The three EISs evaluated the environmental and cumulative impacts of various alternatives within the parameters of the APC contract requirements. The EISs also considered the no-action alternative as required by NEPA, though they rejected it because it did not meet the APC contract requirements. While Alaska Wilderness does not challenge any of the existing EISs, it argues that the contract significantly restricted the Forest Service's consideration of alternatives. The Forest Service argues that the contract was not a limiting factor, but was itself a reflection of the underlying goals of the Forest Plan.

3. Supplemental Evaluations

In July 1994, the Forest Service prepared brief supplemental evaluations ("SEs") for each of the three EISs. The SEs, which are identical except for area names, concluded that because Forest Plan direction and need for timber and timber-related jobs had not changed, termination of the APC contract was not a significant change requiring new or supplementary EISs or ANILCA evaluations.

B. Procedural History

Alaska...