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Southeast Alaska Conservation Council v. Federal Highway Administration

United States District Court, Ninth Circuit

October 3, 2013

SOUTHEAST ALASKA CONSERVATION COUNCIL, et al., Plaintiffs,
v.
FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants, and STATE OF ALASKA, Intervener-Defendant.

ORDER AND OPINION [Re: Motion at Docket 170]

JOHN W. SEDWICK, District Judge.

I. MOTION PRESENTED

At docket 170, intervener-defendant State of Alaska ("the State") moves for clarification of the injunction included in this court's amended judgment at docket 117. The State's supporting memorandum is at docket 171. Defendants Federal Highway Administration, et al. ("Federal Defendants") respond at docket 180. Plaintiffs Southeast Alaska Conservation Council, et al. ("Plaintiffs") respond at docket 181. The State replies at docket 183. Oral argument has not been requested and would not be of assistance to the court.

II. BACKGROUND

The capital of Alaska, Juneau, is inaccessible by road or railroad. Aside from daily scheduled air service, the only means of public access for Alaskans who wish to visit or depart from their capital city is the Alaska Marine Highway System, which operates ferries throughout Southeast Alaska. There has long been interest in creating better access to the capital, and toward that end the Juneau Access Improvements Project ("Project") was developed by the Alaska Department of Transportation and Public Facilities ("ADOT"). Other than improvement of the existing ferry system, all of the alternatives considered for the Project contemplated construction of a road across federal lands in the Tongass National Forest, an undertaking requiring various federal approvals and permits, which in turn require preparation of an environmental impact statement ("EIS") to comply with the National Environmental Policy Act ("NEPA").

An EIS was prepared for the Project. It identified Alternative 2B as the preferred choice among several which had been considered. Alternative 2B calls for construction of a new highway linking an existing road near Juneau to a new ferry terminal to be constructed much closer to Haines, Alaska, (which is connected by road through Canada to Alaska's highway system) than the existing terminal in Juneau. The new highway would proceed northward along the East side of Lynn Canal through the Tongass National Forest.

Plaintiffs filed suit attacking the adequacy of the EIS. This court found the EIS defective because the EIS did not adequately consider the alternative of improving the existing ferry service to and from Juneau. This court enjoined further action on the Project:

Any and all construction activities related to the Juneau Access Improvements Project and any and all activities dependent upon the issuance of a valid environmental impact statement, are ENJOINED until such time as defendants demonstrate full compliance with 42 U.S.C. § 4332, its implementing regulations, and this Court's Order of Feb. 13, 2009 (Doc. No. 105).[1]

In Southeast Alaska Conservation Council v. Federal Highway Administration, [2] the Ninth Circuit Court of Appeals affirmed this court's decision.

The State's pending request for clarification asks whether the injunction would prohibit the State's receipt and recording of an easement along the East side of Lynn Canal to be issued by the United States Forest Service. The State first says the easement would "authorize engineering field work and other activities necessary or incident to highway and utility planning, design and environmental review processes."[3] The nature and extent of the field work and other activities is not defined. Then, backpedaling in its reply memo, the State says, "[t]o remove any doubts, the state is not seeking construction authorization from the Forest Service and is not asking the court for clarification that construction activities would be authorized under the injunction."[4] That still leaves the parameters of the easement unclear. Any easement worthy of the name would necessarily authorize something to take place somewhere within the easement.

III. DISCUSSION

The State relies on a miscellaneous provision in the Safe, Accountable, Flexible, Efficient Transportation Equity Act, [5] an 833-page act passed in 2005, authorizing funds for federal highway aid and other purposes. Section 4407 is the miscellaneous provision. Its text reads in its entirety as follows:

Notwithstanding any other provision of law, the reciprocal rights-of-way and easements identified on the map numbered 92377 dated June 15, 2005, are hereby enacted into law.[6]

The court understands that § 4407 reflects a Congressional acknowledgment of the need for both the federal government and the State to have access across one another's land holdings in Southeast Alaska for a variety of public purposes, such as roads connecting communities, utility ...


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