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Greenpeace, Inc. v. Cole

United States District Court, D. Alaska

September 26, 2014

GREENPEACE, INC., et al., Plaintiffs,
v.
FORREST COLE, et al., Defendants

For Greenpeace, Inc., Cascadia Wildlands, Plaintiffs: Christopher G. Winter, LEAD ATTORNEY, PRO HAC VICE, The Crag Law Center, Portland, OR; Peter H. Van Tuyn, LEAD ATTORNEY, Bessenyey & Van Tuyn, LLC, Anchorage, AK; Rene Peter Voss, LEAD ATTORNEY, PRO HAC VICE, Rene Voss - Attorney At Law, San Anselmo, CA.

For Forrest Cole, Tongass National Forest Supervisor, United States Forest Service, an agency of the U.S. Department of Agriculture, Beth Pendleton, Alaska Regional Forester, Defendants: Dean Dunsmore, LEAD ATTORNEY, U.S. Department of Justice (Anch U.S. Atty), Environment & Natural Resources Division, Anchorage, AK.

Page 1159

ORDER REGARDING MOTION TO ENFORCE MANDATE ON REMAND

RALPH R. BEISTLINE, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiffs Greenpeace, Inc., and Cascadia Wildlands Project (" Plaintiffs" ) move for an order enforcing the mandate of the United States Court of Appeals for the Ninth Circuit and the amended judgment of this Court regarding the United States Forest Service's (" Forest Service" ) approval of four timber sale projects in the Tongass National Forest. Plaintiffs request at Docket 106 that, due to failure to comply with the Circuit Court's direction on remand, this Court vacate the four agency actions or, in the alternative, remand

Page 1160

the four decisions back again to the Forest Service and enjoin the Forest Service from moving forward with the sales. The Forest Service responds at Docket 115 that it complied with the Circuit Court's memorandum opinion and this Court's remand order. Plaintiffs reply at Docket 118.

II. GOVERNING PROVISIONS

A. NFMA

The National Forest Management Act (" NFMA" ), 16 U.S.C. § § 1600 et seq., requires the Forest Service to develop and maintain forest resource management plans.[1] After a forest plan is developed, all subsequent agency actions must comply with NFMA and the governing forest plan.[2] Substantively, NFMA requires that forest plans " provide for diversity of plant and animal communities based on the suitability and capability of the specific land area." [3]

B. NEPA

The National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq., contains additional procedural requirements. Its purpose is to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public.[4] The Forest Service must prepare an Environmental Impact Study (EIS), which identifies environmental effects and alternative courses of action, when undertaking any management project.[5] " 'In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results.'" [6] Under NEPA, the agency need only take a " hard look" at its proposed action.[7] However, the EIS " must respond explicitly and directly to conflicting views in order to satisfy NEPA's procedural requirements." [8] In order to determine whether an EIS is required, NEPA regulations allow an agency to prepare a more limited document, known as an environmental assessment (" EA" ).[9] An EA is a " concise public document" that " briefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." [10] If the agency determines on the basis of the EA that an EIS is not required, it must then issue a " finding of no significant impact" (" FONSI" ), which is a document " briefly presenting" the reasons that the agency action will not have a significant impact on the human environment.[11]

III. FACTUAL BACKGROUND

Established September 10, 1907, the Tongass National Forest covers nearly 17

Page 1161

million acres across southeastern Alaska. Pursuant to the requirements of NFMA, 16 U.S.C. § § 1600-1614, the Forest Service adopted a revision of the Tongass National Forest Land and Resource Management Plan in 1997 (" 1997 Forest Plan" ), which was subsequently amended again in 2008 (" 2008 Forest Plan" ). There are four projects challenged by Plaintiffs which were approved pursuant to the 1997 Forest Plan: Scott Peak, Overlook, Traitors Cove, and Soda Nick. For each of the four projects, the Forest Service conducted an environmental analysis in accordance with NEPA, including either an environmental impact statement (" EIS" ) or an environmental assessment (" EA" ).

A. Initial Forest Service Actions

1. 1997 Forest Plan

The 1997 Forest Plan was ultimately adopted based on a Final Environmental Impact Statement (" FEIS" ), which discussed the planning process and analysis used to develop the Forest Plan, described and analyzed the alternatives considered in detail, and discussed public objections to the plan. Two local species were identified within the 1997 Forest Plan, the Sitka black-tailed deer (" deer" ) and the Alexander Archipelago wolf (" wolf" ), as " management indicator species." [12] The 1997 Forest Plan requires the Forest Service to " [p]rovide the abundance and distribution of habitat necessary to maintain viable populations of existing native and desirable introduced species well distributed in the planning area." [13] The Forest Service was directed by the 1997 Forest plan to accomplish this by " [p]rovid[ing] sufficient deer habitat capability to first maintain sustainable wolf populations, and then to consider meeting estimated human deer harvest demands." [14] Guideline WILD112 XI.A.3 set 13 deer per square mile as the necessary density to " maintain sustainable wolf populations" due to the fact that deer are a crucial prey for wolves.[15] However, the Forest Service later adopted an 18 deer per square mile guideline as the minimum to support hunting and wolves.[16]

2. The Projects

Under the 1997 Forest Plan, the four projects at the core of this matter were proposed, reviewed, and approved. While the geography, size, and timeline of actions by the Forest Service varied among the projects, the final decisions to approve each timber sale project were based on consistency with the guidelines of the 1997 Forest Plan.

a. Scott Peak

The Scott Peak project was analyzed in a FEIS published in November 2005.[17] The Forest Supervisor signed a Record of Decision (" ROD" ) in November 2005, approving timber harvest within a project area of 24,110 acres.[18] This decision was reversed on an administrative appeal due to a question of the adequacy of the cumulative effects analysis.[19] Subsequent analysis was conducted and the same decision was issued on September 20, 2006, and was

Page 1162

upheld during subsequent administrative ...


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