Hanlon v. Barton, J88-025 Civil.

• Decision Date: 14 November 1988
• Docket Number: No. J88-025 Civil.,J88-025 Civil.
• Citation: 740 F. Supp. 1446
• Parties: Sam HANLON, Sr., Individually and as Chief of the Wooshikitaan Clan, Richard Sheakley, Sr., Individually and as Chief of the T'Addeintaan Clan, Victor Bean, Richard Bean, Jr., Ernestine Hanlon, George Westman, and Douglas Glessing, Plaintiffs, v. Michael BARTON, in his official capacity as Regional Forester for the Alaska Region, Dale Robertson, in his official capacity as Chief of the United States Forest Service, Clayton Yeutter, in his official capacity as Secretary of Agriculture, and the United States Forest Service, an agency within the Department of Agriculture, Defendants, Alaska Pulp Corporation, Intervenor-Defendant.
• Court: U.S. District Court — District of Alaska

740 F. Supp. 1446

Sam HANLON, Sr., Individually and as Chief of the Wooshikitaan Clan, Richard Sheakley, Sr., Individually and as Chief of the T'Addeintaan Clan, Victor Bean, Richard Bean, Jr., Ernestine Hanlon, George Westman, and Douglas Glessing, Plaintiffs, v. Michael BARTON, in his official capacity as Regional Forester for the Alaska Region, Dale Robertson, in his official capacity as Chief of the United States Forest Service, Clayton Yeutter, in his official capacity as Secretary of Agriculture, and the United States Forest Service, an agency within the Department of Agriculture, Defendants Alaska Pulp Corporation, Intervenor-Defendant.

No. J88-025 Civil.

United States District Court, D. Alaska.

November 14, 1988.

Alaska Legal Services, Vance A. Sanders, Mark Regan, Juneau, Alaska, Carol A. Daniel, Joseph D. Johnson, Anchorage, Alaska, for plaintiffs.

Bruce M. Landon, Land & Natural Resources Div., Dept. of Justice, Anchorage, Alaska, for defendants.

James F. Clark, Mary A. Nordale, Robertson, Monagle & Eastaugh, Juneau, Alaska, for intervenor-defendant.

MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

THIS CAUSE comes before the court on plaintiffs' motion for preliminary injunction, filed July 21, 1988 (Docket No. 2). Plaintiffs are several subsistence resource users and residents of Hoonah, Alaska.

I. INTRODUCTION.

In 1957, intervenor-defendant Alaska Pulp Corporation (APC) executed a contract with the federal government prescribing terms for timber sales and logging in southeastern Alaska over a fifty year period.¹ The contract provides for harvesting of 4,974,700,000 board feet of timber within the sale area between 1961 and 2011. Since 1971, logging, road building, and related activities have been specifically planned and authorized by the defendant Forest Service of the United States Department of Agriculture for successive five-year periods. Previous five-year plans have been subject to the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. ž 4321 et seq. (NEPA), and it has been determined that five-year operating plans are major federal actions significantly affecting the human environment, thus requiring preparation of an environmental impact statement (EIS) under NEPA. See Tenakee Springs v. Block, 778 F.2d 1402, 1404, 1408 (9th Cir.1985) (Tenakee I). The 1986-90 five-year plan at issue here is the first plan to be subject to the provisions of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3101 et seq. (ANILCA), as well.

On December 31, 1986, the Forest Service, as the delegate of the Secretary of Agriculture, approved a proposed five-year operating plan for harvesting commencing January 1, 1987 and terminating December 31, 1990.² The Service approved the plan based on an evaluation and discussion of alternative proposals contained in the 1986-90 Operating Period for the Alaska Pulp Corporation Long-Term Sale Area, Final Environmental Impact Statement (FEIS).³ Plaintiffs claim that the Forest Service's decision approving the plan violated section 706(2)(A) of the Administrative Procedure Act (APA), 5 U.S.C. ž 706(2)(A), because it was based upon a Finding of No Significant Restriction (FONSR) that does not comply with the requirements of ANILCA, and upon an FEIS that does not comply with the requirements of NEPA.

II. PRELIMINARY INJUNCTION STANDARD.

In United States v. Odessa Union Warehouse Co-op., the Ninth Circuit Court of Appeals described the standard for determining claims for preliminary injunctive relief:

The factors we traditionally consider in determining whether to grant a preliminary injunction in this circuit are (1) the likelihood of plaintiff's success on the merits; (2) the possibility of plaintiff's suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief. To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.

833 F.2d 172, 174 (9th Cir.1987). Accordingly, this court must as an initial matter determine whether plaintiffs have shown sufficient likelihood of success on the merits of their claims and probability of irreparable injury in the absence of injunctive relief to qualify for such relief. Furthermore, if plaintiffs make the requisite showing, the court then must balance the harms to each party that would result from a grant or denial of injunctive relief to determine if such relief is appropriate. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988).

III. LIKELIHOOD OF SUCCESS ON THE MERITS OF PLAINTIFFS' CLAIMS.

A. Findings of No Significant Restriction under ANILCA ž 810(a).

Through ANILCA ž 810(a), Congress imposed bifurcated procedural obligations on federal agencies contemplating "whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands" in Alaska. 16 U.S.C. 3120(a). Section 810(a) directs the agency to make a threshold determination whether contemplated actions "would significantly restrict subsistence uses." Id. This determination may be referred to as the "tier-I" evaluation. See Tribal Village of Akutan v. Hodel, 792 F.2d 1376, 1377 (9th Cir.1986), vacated on other grounds sub nom. Amoco Production Company v. Tribal Village of Akutan, 480 U.S. 943, 107 S.Ct. 1598, 94 L.Ed.2d 785 (1987). If the agency makes an affirmative tier-I determination, section 810(a)(1)-(3) requires the agency to give notice to the communities affected, hold public hearings, and make specified findings about the propriety of the proposed action and the measures that will be taken to mitigate adverse impacts on subsistence uses and resources. 16 U.S.C. 3120(a)(1)-(3). If the agency concludes its tier-I evaluation with a finding of no significant restriction (FONSR), however, the tier-II obligations do not apply.

In this case, the Forest Service, in the course of evaluating environmental impacts pursuant to NEPA, considered ten proposed alternatives and concluded that "none of the proposed alternatives would significantly restrict subsistence opportunities" for the plaintiffs, residents of Hoonah.⁴ Consequently, the Service did not perform the tier-II procedures.⁵

Plaintiffs contend that the Service applied the wrong legal standard when it issued the FONSR, rendering that finding, and the subsequent agency decision approving APC's five-year operating plan, invalid under ANILCA ž 810(a).⁶ Plaintiffs argue that the Service has established specific guidelines which it follows when performing the tier-I evaluation. Under these guidelines, the Service first seeks to determine whether or not significant restriction is "likely."⁷ If the Service determines that such restriction is not likely, the guidelines direct the agency to declare that the proposed use "would not" and "shall not" significantly restrict subsistence uses.⁸ Finally, plaintiffs aver that the Service followed these erroneous guidelines in promulgating the FONSR at issue here.⁹

Plaintiffs contend that the correct legal standard under ANILCA ž 810(a) requires compliance with tier-II procedures wherever there is a possibility of significant restriction or a threat thereof. Further, plaintiffs argue, the agency need not find that restriction is "likely"ÔÇöa greater threshold of certaintyÔÇöbefore these procedural requirements apply.¹⁰

Courts that have addressed this issue have concluded that, as a matter of law, the specific procedural requirements of section 810(a)(1)-(3) are triggered by a "threat of significant restriction," Gambell II, 774 F.2d at 1422, or by a finding that a proposed action "may significantly restrict subsistence uses." Id.; Penfold, 664 F.Supp. at 1307. Moreover, the Ninth Circuit Court of Appeals has expressly rejected the view "that section 810(a)(1)-(3) procedures require a likelihood of significant subsistence restrictions." Akutan, 792 F.2d at 1379 (original emphasis). The tier-II requirements apply wherever there is a significant possibility of significant restriction; such restriction need not be likely.

The Forest Service denies that it used an incorrect legal standard in issuing the FONSR. The Service argues that the language criticized by plaintiffs was approved by the Ninth Circuit in Kunaknana.¹¹ This argument is without merit. In Kunaknana, the Court of Appeals held that the tier-II requirements apply "if the agency first concludes that the contemplated action may significantly restrict subsistence uses." Kunaknana, 742 F.2d at 1151 (emphasis added). Later, the court approved agency analysis which "allowed a finding of no significance only if here were `no' reductions or only `slight' reductions...." Id. This latter analysis, however, pertained to the actionable extent, not the likelihood of restriction.¹²

The Service argues, in the alternative, that it used an appropriate "would not" standard in the FEIS, and that this standard, rather than the one described in the Handbook, governed its issuance of the FONSR.¹³ This argument begs the question. The guidelines listed in the Handbook are referred to in the FEIS as the "Forest Service 810 Evaluation and Finding Procedure," and that document declares that a FONSR "must logically follow from" an evaluation "whether or not there is likely to be a reduction in subsistence use."¹⁴ The fact that the Service ultimately concluded the proposed actions "would not" significantly restrict...