Friends of Southeast's Future v. Morrison

• Decision Date: 03 September 1998
• Docket Number: Nos. 97-35157,97-35346,s. 97-35157
• Citation: 153 F.3d 1059
• Parties: 29 Envtl. L. Rep. 20,070, 98 Cal. Daily Op. Serv. 6948, 98 Daily Journal D.A.R. 9582 FRIENDS OF SOUTHEAST'S FUTURE; Sitka Conservation Society; and Southeast Alaska Conservation Council, Plaintiffs-Appellants-Cross-Appellees, v. Gary MORRISON, Forest Supervisor, Chatham Area, Tongass National Forest; U.S. Forest Service, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1059

153 F.3d 1059

29 Envtl. L. Rep. 20,070, 98 Cal. Daily Op.

Serv. 6948,

98 Daily Journal D.A.R. 9582

FRIENDS OF SOUTHEAST'S FUTURE; Sitka Conservation Society; and Southeast Alaska Conservation Council, Plaintiffs-Appellants-Cross-Appellees, v. Gary MORRISON, Forest Supervisor, Chatham Area, Tongass

National Forest; U.S. Forest Service,

Defendants-Appellees-Cross-Appellants.

Nos. 97-35157, 97-35346.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 1998.

Decided Sept. 3, 1998.

Douglas A. Ruley (argued), Earthjustice Legal Defense Fund, Juneau, Alaska, for plaintiffs-appellants-cross-appellees.

David C. Shilton (argued), Robert L. Klarquist, Bruce M. Landon, Michael A. Gheleta, United States Department of Justice, Washington, D.C.; James Ustasiewski, United States Department of Agriculture, Washington D.C., for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the District of Alaska; H. Russel Holland, District Judge, Presiding. D.C. No. CV-96-00011-HRH.

Before: FARRIS, O'SCANNLAIN, and HAWKINS, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the Forest Service violated both the National Environmental Policy Act and the National Forest Management Act in approving a timber sale on national forest lands in Alaska.

I

This litigation concerns proposed sales by the Forest Service of 67 million board feet of timber from the Ushk Bay area of the Tongass National Forest ("Forest") in southeast Alaska.

The Forest is managed pursuant to the Tongass Land Management Plan ("Forest Plan"). The Forest Plan, issued in 1979, ¹ divides the Forest into 867 value comparison units ("VCUs"), and classifies each VCU according to a land use designation ("LUD"). LUD I lands are wilderness. LUD II lands are managed in a roadless state, but some recreational facilities are allowed. LUD III lands are managed for a variety of uses, including timber harvesting. Finally, LUD IV areas are devoted mainly to resource use and development. The Ushk Bay Project Area consists of VCUs 279-81. VCU 279 is an LUD III area, while VCUs 280-281 are LUD IV areas.

The Forest Plan provides that the Forest Supervisor is responsible for conducting an "area analysis" to determine where and when logging will occur in the Forest. The Plan describes the area analysis process as follows:

Each Forest Supervisor is responsible for identifying, on a case by case basis, the relevent [sic] geographic area; the social, resource, and management considerations which will be assessed; and the relative level of analysis necessary. The Supervisor may choose to address several projects on a large area or a single project on a smaller area. The analysis usually will include evaluation of specific project alternatives in order to determine the feasibility and environmental affects [sic]. The analysis will follow the NEPA process, provide opportunity for public comment, and conform to Regional and National Forest Service direction.

In 1991, the Forest Service developed a "Tentative Operating Schedule" for the Chatham Area of the Forest. This schedule was prepared in consultation with the Alaska Pulp Corporation ("APC"), with whom the Forest Service was under a long-term contract to provide 100 million board feet of timber per year. The Tentative Operating Schedule listed seven proposed logging projects, including one involving Ushk Bay. Accompanying the schedule was a letter from Forest Supervisor Gary Morrison which stated that the "enclosed tentative schedule is subject to revision under the modified contract."

On May 8, 1992, the Forest Service issued a notice of intent to prepare an environmental impact statement ("EIS") for the proposed Ushk Bay project. A draft environmental impact statement for the project was completed in June 1992, and a final environmental impact statement followed in September 1994. The EIS defined the objectives of the project as follows:

The purpose of this project is to consider specific alternatives for harvesting timber within the [Ushk Bay] project area given the guidance in the Tongass Land Management Plan (TLMP), as amended (USDA Forest Service 1979, 1986a). The TLMP presently directs us to manage most of the Project Area for intensive resource use and development, with an emphasis on commodity resources. Furthermore, the TLMP specifically schedules timber sale preparation for the entire Project Area.

The proposed vegetation management and timber production within the Ushk Bay Project Area specifically addresses three identified needs. These are: (1) to implement Forest Plan direction for the Project Area; (2) to help meet market demand for timber in Southeast Alaska; and, (3) to move toward the desired future condition for the Project Area by harvesting mature stands of suitable timber and replacing them with faster growing, managed stands of second growth timber, capable of long-term timber production....

The final EIS proposed five "action" alternatives for the Ushk Bay timber sale. These alternatives varied in terms of proposed timber harvest from 46.5 million board feet to 90.3 million board feet. The EIS also considered a "no-action" alternative, but did not adopt it on the ground that "it would not meet the purpose and need of the project." After completion of the NEPA process, Forest Supervisor Gary Morrison issued a Record of Decision ("ROD") published in September of 1994. The ROD adopted "alternative F," which would result in the harvest of 67 million board feet of timber and require the construction of 42.4 miles of road.

Sitka Conservation Society ("Sitka") filed an administrative appeal of the ROD, alleging that the Forest Service had failed to comply with the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA"). The Forest Service denied the appeal, whereupon Sitka, joined by Friends of Southeast's Future ("Friends") and Southeast Alaska Conservation Council ("Southeast"), ² brought suit alleging: (1) that the Forest Service violated NEPA because (a) it did not issue an EIS in conjunction with the 1991 Tentative Operating Schedule, and (b) the 1994 EIS inappropriately foreclosed discussion of the no-action alternative; and (2) that the Forest Service violated NFMA when it failed to follow the Area Analysis provisions of the Forest Plan.

The district court held that Friends' NEPA claim failed because: (1) the 1994 Ushk Bay EIS adequately considered various alternatives to the proposed action, including the no-action alternative; and (2) no additional NEPA compliance was required in conjunction with the Tentative Operating Schedule issued in 1991. However, the district court held that the Forest Service did violate NFMA because it followed procedures for approving the timber sale that were inconsistent with the procedures required by the Tongass Forest Plan. Accordingly, the court enjoined the Forest Service from proceeding with the Ushk Bay timber sale "until [it had] fully complied with the requirements of the Forest Plan with respect to that project."

II

NEPA mandates the preparation of an EIS for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS is "a procedural obligation designed to assure that agencies give proper consideration to the environmental consequences of their actions." Merrell v. Thomas, 807 F.2d 776, 777-78 (9th Cir.1986). The EIS also ensures that the public is informed about the environmental impact of such actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

Friends challenges both (1) the Forest Service's decision not to prepare an EIS in 1991 and (2) the adequacy of the EIS that the Forest Service did prepare in 1994. We consider each challenge in turn.

A

We must uphold the Forest Service's decision that preparation of an EIS was not required in 1991 unless that decision was unreasonable. See Friends of the Earth v. Hintz, 800 F.2d 822, 836 (9th Cir.1986). Similarly, in reviewing the EIS that the Forest Service did prepare in 1994, we must determine whether it contained "a reasonably thorough discussion of the significant aspects of the probable environmental consequences." See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992) (internal quotations and citation omitted). We must make "a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation." Id. (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). In determining whether the EIS contains a "reasonably thorough discussion," we may not "fly-speck the document and hold it insufficient on the basis of inconsequential, technical deficiencies...." Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir.1996) (internal quotations and citation omitted). That is to say, once we are satisfied that a proposing agency has taken a "hard look" at a decision's environmental consequences, our review is at an end. Id.

This court has held that an EIS is required at the point when a federal agency makes an "irreversible and irretrievable commitment of the availability of resources." Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir.1979); see also Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988); California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Friends maintains that the Forest Service made an "irreversible and irretrievable commitment" of the resources of Ushk Bay when, in February 1991, it prepared a Tentative Operating Schedule to plan for its long-term contract with the Alaska Pulp Corporation. Therefore, Friends argues, the agency should have prepared an EIS in 1991.

The Forest Service's Tentative Operating Schedule states:

The [Alaska Pulp Corporation...