Southeast Alaska Conservation Council v. Fed. Highway Admin., No. 09–35551.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, and RICHARD R. CLIFTON, Circuit Judges.
Citation72 ERC 1705,649 F.3d 1050,11 Cal. Daily Op. Serv. 5294,2011 Daily Journal D.A.R. 6317
Decision Date04 May 2011
Docket NumberNo. 09–35551.
PartiesSOUTHEAST ALASKA CONSERVATION COUNCIL; Skagway Marine Access Commission; Lynn Canal Conservation, Inc.; Alaska Public Interest Research Group; Sierra Club; Natural Resources Defense Council, Plaintiffs–Appellees,v.FEDERAL HIGHWAY ADMINISTRATION; United States Department of Transportation; Ray Lahood, in his official capacity as Secretary of Transportation; United States Forest Service; David C. Miller, in his official capacity as Division Administrator for the Federal Highway Administration; United States Department of Agriculture; Mark Rey, in his official capacity as Under Secretary of Agriculture; Dennis R. Bschor, in his official capacity as Alaska Regional Forester, Defendants,andState of Alaska, Defendant–intervenor–Appellant.

649 F.3d 1050
72 ERC 1705
11 Cal.
Daily Op. Serv. 5294
2011 Daily Journal D.A.R. 6317

SOUTHEAST ALASKA CONSERVATION COUNCIL; Skagway Marine Access Commission; Lynn Canal Conservation, Inc.; Alaska Public Interest Research Group; Sierra Club; Natural Resources Defense Council, Plaintiffs–Appellees,
v.
FEDERAL HIGHWAY ADMINISTRATION; United States Department of Transportation; Ray Lahood, in his official capacity as Secretary of Transportation; United States Forest Service; David C. Miller, in his official capacity as Division Administrator for the Federal Highway Administration; United States Department of Agriculture; Mark Rey, in his official capacity as Under Secretary of Agriculture; Dennis R. Bschor, in his official capacity as Alaska Regional Forester, Defendants,andState of Alaska, Defendant–intervenor–Appellant.

No. 09–35551.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 26, 2010.Filed May 4, 2011.


[649 F.3d 1052]

Katherine S. Glover, Juneau, AK, for plaintiffs-appellees Southeast Alaska Conservation Council, et al.Sean Lynch, Juneau, AK, for defendant-intervenor-appellant State of Alaska.Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding. D.C. No. 1:06–cv–00009–JWS.Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, and RICHARD R. CLIFTON, Circuit Judges.Opinion by Judge SCHROEDER; Dissent by Judge O'SCANNLAIN.
OPINION
SCHROEDER, Circuit Judge:

The issue in this environmental case is whether the district court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. We hold the district court was correct under settled environmental law.

Intervenor State of Alaska appeals the district court's judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, “SEACC”) in their suit against the Federal Highway Administration (“FHWA”), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. Alaska argues the district court erred in holding that the Environmental Impact Statement (“EIS”) issued by the FHWA for the Juneau Access Improvements Project violated the National Environmental Policy Act (“NEPA”) by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries, or terminals. The district court vacated the FHWA's Record of Decision (“ROD”), which approved Alaska's preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a valid EIS, until one was prepared. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. FACTS & PROCEDURAL HISTORY

In the early 1990s, the Alaska Department of Transportation and Public Facilities (“ADOT”) initiated the Juneau Access Improvements Project (“Project”) to improve surface access between Juneau and the communities of Haines and Skagway in the Lynn Canal corridor of Southeast Alaska. Access to Juneau is possible by air and water.

The available public surface transportation to and from Juneau is the Alaska Marine Highway System (“AMHS”), a state-owned ferry system operated by ADOT that provides transportation to many of Alaska's southeast coastal communities. AMHS service from Juneau connects to the continental highway system in Prince Rupert, British Columbia, and Bellingham, Washington, to the south, and in Haines and Skagway to the north. The most commonly used access route to the continental highway system is the northbound ferry.

Because the Project would involve federal lands, federal funds, and environmental impacts, ADOT needed to obtain approvals and permits from several federal agencies, including the FHWA. In June 1997, ADOT and the FHWA issued a draft EIS for the Project, as required by NEPA, 42 U.S.C. § 4332. See AR 2693–4409. Over the next two years, ADOT analyzed comments submitted regarding the draft EIS and conducted further studies. In January

[649 F.3d 1053]

2000, Governor Tony Knowles announced that ADOT's preferred alternative for the Project was a plan in the draft EIS calling for the construction of a highway along the eastern side of Lynn Canal to a new ferry terminal to be built near the Katzehin River Delta, but stated that the alternative would not be actively pursued during his administration because of its high cost. He directed ADOT to discontinue most work on the EIS.

In 2002, Governor Frank Murkowski ordered the completion of the EIS. Because more than three years had passed since the release of the draft EIS, ADOT, in December 2002, reevaluated the adequacy of the earlier study. See 23 C.F.R. § 771.129(a). ADOT determined, and the FHWA concurred, that there were sufficient changes in project alternatives and potential environmental impacts to warrant preparation of a supplemental draft EIS. ADOT and the FHWA released the supplemental draft in January 2005, and allowed public comment until March 21, 2005. Among those who submitted comments was Plaintiff–Appellee SEACC.

The supplemental draft EIS analyzed ten alternatives for the Project. All but the first involved substantial construction expenditures. The alternatives included: No Action Alternative—Continuation of existing mainline AMHS service and fast ferry service in Lynn Canal, with the previously scheduled addition of a ferry shuttle service between Haines and Skagway; Alternatives 2, 2A, 2B, and 2C—Various plans that would include construction of a highway along the eastern coast of Lynn Canal (the “East Lynn Canal Highway”) that either stretched all the way to Skagway or stopped at some point short of Skagway where a new ferry terminal would be constructed to provide shuttle service to and from Skagway and Haines; Alternative 3—Building two new ferry terminals slightly north of Juneau—one on the east and one on the west side of Lynn Canal—to provide ferry service between Juneau and a 39–mile highway to Haines that would be constructed on the western coast of the canal (the “West Lynn Canal Highway”), with ferry service also offered between Haines and Skagway; and Alternatives 4A, 4B, 4C, and 4D—Four marine alternatives that would consist of constructing new ferries to operate in addition to continued mainline service in Lynn Canal. The supplemental draft EIS identified Alternative 2 as the preferred alternative for the Project. Under Alternative 2, the East Lynn Canal Highway would extend from Juneau to Skagway, and a new ferry terminal would be constructed on the eastern shore of Lynn Canal near the Katzehin River Delta to provide shuttle service to Haines.

In its comment letter to the FHWA, SEACC asserted that the supplemental draft EIS violated NEPA. Among other contentions, SEACC argued that the analysis of Project alternatives in the supplemental draft EIS was inadequate because it failed to consider practicable ways of improving ferry service without expenditure of significant capital funds. Citing to referendum votes and survey results, SEACC asserted that a majority of the community in the Lynn Canal corridor preferred improving existing AMHS ferry services over building a network of new roads. Despite this public support, however, the supplemental draft EIS failed to analyze as a Project alternative any plan that would make changes to improve existing ferry services without expending significant capital funds for new roads, terminals, or ferries. SEACC attached as an exhibit to its comment letter a May 2002 study by a consulting firm that suggested changes in AMHS's management structure, operations, and financial planning that would reduce costs to the State while improving the existing ferry service.

[649 F.3d 1054]

SEACC also suggested that scheduling changes, including revisions to current ferry routes, could be made to the existing services that would provide greater flexibility and improved opportunity for travel at a reduced user cost.

In August 2005, ADOT issued a press release announcing that it had changed its preferred alternative for the Project from Alternative 2 to Alternative 2B. Alternative 2B would terminate the new East Lynn Canal Highway at a point north of the Katzehin River Delta, where a new terminal would be built to provide shuttle ferry service to Skagway and Haines. That service, in turn, would be supplemented by the new shuttle between Skagway and Haines contemplated in the No Action Alternative. The change in preference from Alternative 2 to Alternative 2B was necessitated by the fact that a portion of the East Lynn Canal Highway, as envisioned by Alternative 2, would run through lands subject to § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. Section 4(f) prohibits the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through a public park, recreation area, wildlife and waterfowl refuge, or historic site, unless there is “no prudent and feasible alternative to using that land.” 49 U.S.C. § 303(c). Alternative 2B did not run through lands subject to § 4(f).

ADOT and the FHWA issued the final EIS in January 2006. The final EIS dropped three Project alternatives considered in the supplemental draft EIS (Alternatives 2, 2A, and 2C) from consideration, because the FHWA had determined that they would involve lands protected under § 4(f) of the Department of Transportation Act. It retained the remaining seven Project alternatives included in the supplemental draft EIS (Alternatives 1, 2B, 3, 4A, 4B, 4C, and 4D), and provided an analysis of each. The final EIS identified Alternative 2B, involving construction of a new highway and ferry terminal, as the preferred alternative. In analyzing the environmental consequences of each of the...

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9 practice notes
  • Doody v. Ryan, No. 06–17161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 4, 2011
    ...courts is clear: no matter how carefully you decide constitutional issues in criminal cases, no matter how well you justify your opinions [649 F.3d 1050] with evidence of record, we will cast your work aside simply because we disagree. We should instead heed the dictates of the United State......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...evaluat[ing] all reasonable alternatives to a proposed action ...” Southeast Alaska Conserv. Council v. Federal Highway Admin., 649 F.3d 1050, 1056 (9th Cir.2011) (quoting 40 C.F.R. § 1502.14(a)). An agency does not violate NEPA by declining to re-examine alternatives that have previously b......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, No. 11-15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...evaluat[ing] all reasonable alternatives to a proposed action . . ." Southeast Alaska Conserv. Council v. Federal Highway Admin., 649 F.3d 1050, 1056 (9th Cir. 2011) (quoting 40 C.F.R. § 1502.14(a)). An agency does not violate NEPA by declining to re-examine alternatives that have prev......
  • Survival v. Surface Transp. Bd., No. 12–70218.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 23, 2013
    ...any alternatives from detailed study. 40 C.F.R. § 1502.14 (2012); see also Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1056 (9th Cir.2011). “The [EIS] need not consider an infinite range of alternatives, only reasonable or feasible ones.” Carmel–By–The–Sea, 123 F.......
  • Request a trial to view additional results
9 cases
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...evaluat[ing] all reasonable alternatives to a proposed action ...” Southeast Alaska Conserv. Council v. Federal Highway Admin., 649 F.3d 1050, 1056 (9th Cir.2011) (quoting 40 C.F.R. § 1502.14(a)). An agency does not violate NEPA by declining to re-examine alternatives that have previously b......
  • Survival v. Surface Transp. Bd., No. 12–70218.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 23, 2013
    ...any alternatives from detailed study. 40 C.F.R. § 1502.14 (2012); see also Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1056 (9th Cir.2011). “The [EIS] need not consider an infinite range of alternatives, only reasonable or feasible ones.” Carmel–By–The–Sea, 123 F.......
  • Doody v. Ryan, No. 06–17161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 4, 2011
    ...courts is clear: no matter how carefully you decide constitutional issues in criminal cases, no matter how well you justify your opinions [649 F.3d 1050] with evidence of record, we will cast your work aside simply because we disagree. We should instead heed the dictates of the United State......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, No. 11-15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...evaluat[ing] all reasonable alternatives to a proposed action . . ." Southeast Alaska Conserv. Council v. Federal Highway Admin., 649 F.3d 1050, 1056 (9th Cir. 2011) (quoting 40 C.F.R. § 1502.14(a)). An agency does not violate NEPA by declining to re-examine alternatives that have previousl......
  • Request a trial to view additional results

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