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Tongass Conservation Society v. Cole

April 30, 2009

TONGASS CONSERVATION SOCIETY; SIERRA CLUB; NATURAL RESOURCES DEFENSE COUNCIL; GREENPEACE, INC., CENTER FOR BIOLOGICAL DIVERSITY; AND CASCADIA WILDLANDS PROJECT, PLAINTIFFS,
v.
FORREST COLE, IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR, TONGASS NATIONAL FOREST; UNITED STATES FOREST SERVICE; AND UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANTS.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motion at Docket 4]

I. MOTION PRESENTED

At docket 4, plaintiffs Tongass Conservation Society, et al. ("plaintiffs") move for a preliminary injunction against the Orion North Reoffer timber sale and its associated roads. At docket 10, defendants Forrest Cole, Forest Supervisor, Tongass National Forest, et al. ("the agencies") oppose the motion. Plaintiffs reply at docket 12. Oral argument was not requested, and it would not assist the court.

II. BACKGROUND

The subject of this action is the Orion North timber sale, which is a part of the Sea Level Timber Sale project in the Tongass National Forest. In May 1999, the Forest Service issued a Final Environmental Impact Statement ("FEIS") for the Sea Level Timber Sale. The "Purpose and Need" section of the FEIS stated that the Sea Level Timber Sale project was intended to meet objectives set forth in the Tongass Land Management Plan as revised in 1997 ("TLMP"), including:

* improve timber growth and productivity on suitable timber lands made available for timber harvest, and manage these lands for long-term sustained yield of timber,

* contribute to a timber supply to meet market demand, and

* provide opportunities for local employment in the wood-products industry, which in turn contribute to the local and regional economies of Southeast Alaska.*fn1

On May 3, 1999, the Forest Service signed a Record of Decision ("ROD") authorizing the Sea Level Timber Sale and construction of necessary roads. The Sea Level Timber Sale project, which is comprised of numerous timber sales, including the Orion North timber sale, is projected to harvest about 1,828 acres of commercial forest land, provide approximately 51 million board feet of timber, and involve reconstruction of 14 miles of existing road and construction of 29 miles of new road.*fn2

The Orion North timber sale was previously awarded in 2003 and then canceled in 2007.*fn3 In 2007, a settlement agreement in Natural Resources Defense Council v. U.S. Forest Service*fn4 prohibited logging in inventoried roadless areas, including Orion North, until after the Forest Service completed an amendment to the TLMP. The settlement agreement specifically provided that the Forest Service would not offer Orion North for sale until 30 days after the TLMP Amendment was completed. In January 2008, the Forest Service issued the FEIS and signed the ROD for the TLMP Amendment, with an effective date of March 17, 2008.

On May 14, 2008, the District Ranger for the Ketchikan/Misty Fjords Ranger District completed a Change Analysis advising the Forest Supervisor that the District was preparing to reoffer the Orion North timber sale authorized in the Sea Level Timber Sale ROD.*fn5 The Change Analysis concluded that "[n]o additional modifications have occurred that would result in additional environmental effects"*fn6 since a previous change analysis was completed in December 1999, and recommended that the Forest Supervisor find that the Orion North "Reoffer" timber sale was consistent with the Amended TLMP.

By letter dated September 9, 2008, plaintiffs requested the Forest Service to delay offering the Orion North Reoffer timber sale and road construction contract until after the Forest Service prepared a supplement to the Sea Level FEIS.*fn7 Plaintiffs argued that "revisions to the deer habitat capability model and developments related to wolf viability, invasive species, yellow cedar decline and climate change, changes in timber economics and market demand, endemism, and intact habitat present significant new information that should be analyzed in a supplemental environmental impact statement."*fn8 On September 19, 2008, the Forest Supervisor signed a Supplemental Information Report for the Orion North Reoffer timber sale, concluding that there was no significant new information that required preparation of a supplemental environmental impact statement ("SEIS").*fn9 On the same day, the Forest Service awarded a public-works roads contract "for the reconstruction and construction of specified roads necessary to access the timber required to be removed on the Orion North timber sale."*fn10

On March 3, 2009, plaintiffs filed this action seeking declaratory and injunctive relief pursuant to 5 U.S.C. §§ 702, 706(2)(A) and 42 U.S.C. § 4332.*fn11 Plaintiffs request the court to "[e]nter a declaratory judgment that Defendants' decision to proceed with the Sea Level Roads contract and the Orion North Reoffer timber sale without preparing a supplement to the Sea Level FEIS was arbitrary, unreasonable and contrary to NEPA." Plaintiffs also request "preliminary and permanent injunctive relief to prevent implementation of the Sea Level roads and the Orion North Reoffer timber sale."*fn12

Plaintiffs also filed the underlying motion for preliminary injunction on March 3, 2009.*fn13

The Orion North timber sale is one of the last sales to be implemented under the Sea Level FEIS and ROD. The Forest Service held a bid opening for the Orion North timber sale on April 14, 2009. Award of the sale to the highest bidder is expected to be completed on or about May 1, 2009.*fn14 The Forest Service ...


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