Hoonah Indian Ass'n v. Morrison

• Decision Date: 24 March 1999
• Docket Number: Nos. 97-35833,97-36018,s. 97-35833
• Citation: 170 F.3d 1223,1999 WL 156061
• Parties: 29 Envtl. L. Rep. 21,024, 99 Cal. Daily Op. Serv. 2126, 1999 Daily Journal D.A.R. 2758 HOONAH INDIAN ASSOCIATION, Plaintiff-Appellant, v. Gary MORRISON, Forest Supervisor, Chatham Area, Tongass National Forest; Phil Janik, Regional Forester, Alaska Region, United States Forest Service; U.S. Forest Service, Defendants-Appellees. Sitka Tribe of Alaska, Plaintiff-Appellant, v. Gary Morrison, Forest Supervisor, Chatham Area, Tongass National Forest; Phil Janik, Regional Forester, Alaska Region, United States Forest Service; U.S. Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1223

170 F.3d 1223

29 Envtl. L. Rep. 21,024, 99 Cal. Daily Op.

Serv. 2126,

1999 Daily Journal D.A.R. 2758

HOONAH INDIAN ASSOCIATION, Plaintiff-Appellant, v. Gary MORRISON, Forest Supervisor, Chatham Area, Tongass

National Forest; Phil Janik, Regional Forester,

Alaska Region, United States Forest

Service; U.S. Forest Service,

Defendants-Appellees.

Sitka Tribe of Alaska, Plaintiff-Appellant, v. Gary Morrison, Forest Supervisor, Chatham Area, Tongass

National Forest; Phil Janik, Regional Forester,

Alaska Region, United States Forest

Service; U.S. Forest Service,

Defendants-Appellees.

Nos. 97-35833, 97-36018.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 4, 1998.

Decided March 24, 1999.

Thomas S. Waldo, Earthjustice Legal Defense Fund, Juneau, Alaska, for plaintiff-appellant Hoonah Indian Association; Michael Jude Pate, Sitka Tribe of Alaska, Sitka, Alaska, for plaintiff-appellant Sitka Tribe of Alaska.

David C. Shilton, United States Department of Justice, Washington, D.C., for defendants-appellees.

Vance A. Sanders, Council and Sanders, Juneau, Alaska, for amici curiae Klawock Cooperative Association and Organized Village of Kake.

Appeals from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. Nos. CV-96-00018-JWS, CV-96-00019-JWS.

Before: BRUNETTI, RYMER, and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge.

These appeals relate to two timber sales, and raise questions under the Alaska National Interest Lands Conservation Act (ANILCA), and the National Historic Preservation Act (NHPA).

Facts.

The Forest Service gave notice of its intent to conduct timber sales in the Tongass National Forest in Southeast Alaska. 58 Fed.Reg. 21559-01, 37458-01 (1993). Two sales were proposed, called the Northwest Baranof and Eight Fathom, on Baranof Island north of Sitka, and on Chichagof Island around Hoonah.

The timber sales were planned pursuant to the Tongass Timber Reform Act, 16 U.S.C. § 539d. This federal law speaks not to all national forests but only to one, the Tongass National Forest in Southeast Alaska. It commands the Secretary of Agriculture to sell enough wood from the Tongass National Forest, subject to certain qualifications, to satisfy market demand:

a. Tongass National Forest timber supply; satisfaction of certain market demands. Subject to appropriations, other applicable law, and the requirements of the National Forest Management Act of 1976 (Public Law 94-588), except as provided in subsection (d) of this section, the Secretary shall, to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle.

16 U.S.C. § 539d(a).

Final Environmental Impact Statements were published in February, 1996 for the Northwest Baranof project, and in May, 1996 for the Eight Fathom project.

Hoonah Indian Association and Sitka Tribe brought this lawsuit and now appeal. Hoonah is among Alaska's larger villages, about 800 people, and Sitka is among its largest cities (by Alaska standards), close to 9,000 people. The Native community in each town has a tribal government. Both towns are in Southeast Alaska. Though the towns are distinct from the tribal governments (Sitka is largely non-Native, with a substantial Tlingit minority), the tribal governments are referred to herein for convenience as Hoonah and Sitka. Sitka and Hoonah both argue that the timber sales would violate 16 U.S.C. § 3120's limitation on dispositions affecting subsistence uses of public land. Sitka also argues that the Northwest Baranof sales would violate the National Historic Preservation Act, 16 U.S.C. § 470f.

The tribal governments moved for summary judgment, which was denied. They sought injunctions, which were denied as well. The United States moved for clarification, noting that the Tribes had moved for a permanent, not preliminary, injunction. The district court granted the clarification, stating that its order denying an injunction was a final decision. The Tribes appeal. Because there was no certification under Federal Rule of Civil Procedure 54(b), we lack jurisdiction to review the denial of summary judgment. See Datagate, Inc. v. Hewlett-Packard, 941 F.2d 864, 868 n. 1 (9th Cir.1991); Kraus v. County of Pierce, 793 F.2d 1105, 1106 (9th Cir.1986). We have jurisdiction to review denial of the injunction under 28 U.S.C. § 1292(a)(1).

Analysis.

I. Alaska National Interest Lands Conservation Act Claims.

The ANILCA claim relates to what the statute calls "subsistence." The Tribes say in their brief that "[i]n the lower 48 states, 'subsistence' is often associated with the grinding poverty present on many Indian reservations.... In Alaska ... 'subsistence' represents a source of great economic and cultural wealth." What the subsistence issue is about in this case, concretely, is deer hunting. The evidence was that in Hoonah, the value of fish and game, especially deer, provide around a third of average household income. Basically people who successfully hunt enough deer need not buy much meat for cash. The subsistence issue is cultural as well as economic. By living on deer meat that they hunt, Tlingits provide for their subsistence as their ancestors did.

Rural Alaskan subsistence is protected by a provision in the Alaska National Interest Lands Conservation Act (ANILCA). Though directed in large part toward land conservation rather than subsistence, ANILCA says in part that no permit or other use of public lands "which would significantly restrict subsistence uses shall be effected until" the agency head determines that such a restriction is "necessary, consistent with sound management principles for the utilization of public lands" and would "involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition." ¹ 16 U.S.C. § 3120(a).

A. "Necessary."

Hoonah and Sitka argue that, although the agency head purported to make the determinations ANILCA requires, he misinterpreted the statutory command and should have determined that the timber sales were neither "necessary" nor involved the "minimal" amount of lands necessary. The statute does not require the "necessary" finding except where a disposition "would significantly restrict subsistence uses." 16 U.S.C. § 3120(a). The agency head found that these timber sales would not by themselves significantly affect subsistence uses, but would in combination with other timber sales, by the Forest Service and Native corporations, in the past, contemporaneously, and in the future.

For the last two decades, both the Forest Service and the local Native corporations have sold rights to clear cut various areas around Hoonah and Sitka. This damages deer habitat. The deer are likely to leave areas with trees cut down and noisy with chain saws, and go to undisturbed woods. But there are a lot of deer in the area, even though timber harvesting has been extensive since the Russians colonized the area two centuries ago (they colonized it partly because it had extensive timber good for shipbuilding). The Tlingits have subsisted on deer hunting there, as well as fishing and trading, since time immemorial. The final environmental impact statements conclude that the impact of the timber sales at issue on the deer population would be "minimal." The environmental impact statements conclude that the total deer habitat capabilities of the Northwest Baranof and Eight Fathom locations would decrease two and seven percent, respectively.

We assume, as the parties have, but do not decide, that a sale which would not by itself significantly restrict subsistence uses, but which would in combination with other sales public and private, meets the statutory condition, "which would significantly restrict subsistence uses." ²

The Tribes' argument about "necessary" is that the Secretary was not required by statute to sell any particular minimum amount of timber, just to "seek to provide a supply" meeting market demand. Because the Secretary is not compelled by law to provide a minimum amount, any significant restriction on subsistence use is not "necessary." They correctly cite Alaska Wilderness Recreation and Tourism Ass'n. v. Morrison, 67 F.3d 723, 731 (9th Cir.1995), for the proposition that 16 U.S.C. § 539d(a) "envisions not an inflexible harvest level, but a balancing...." The Tribes' argument would imply that, because there is no law requiring a set amount of timber harvesting, no restriction on subsistence uses is "necessary," so any use significantly restricting subsistence uses would be prohibited.

We agree with the United States' argument that the word "necessary" does not have the effect of prohibiting timber sales that affect subsistence and are not required by law. The statute does not say that. The word "necessary" does not stand outside of a context, subject to definition only by a dictionary. The subsistence provision of the statute says "necessary, consistent with sound management principles for the utilization of public lands." The words following the comma qualify and explain the statutory term "necessary." The agency head is directed by Congress to consider consistency with "sound management principles for the utilization of the public lands" in connection with evaluating whether a significant restriction of subsistence uses is "necessary." A significant restriction of subsistence uses might not be necessary to achieve compliance with law, yet necessary to conform to sound management principles for such "utilization." If so, the statutory language would make it "necessary."

The Forest Supervisor found that "these actions are necessary, consistent with sound management of public lands." His...