United States District Court, D. Alaska
ORDER GRANTING MOTION FOR PRELIMINARY
INJUNCTION
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 17 is Plaintiffs Southeast Alaska
Conservation Council, Alaska Rainforest Defenders, Center for
Biological Diversity, Sierra Club, Defenders of Wildlife,
Alaska Wilderness League, National Audubon Society, and
Natural Resources Defense Council’s (collectively
“Plaintiffs”) Motion for Preliminary Injunction.
Defendants U.S. Forest Service, U.S. Department of
Agriculture, David Schmid, and Earl Stewart (collectively
“Forest Service”) opposed at Docket 21.
Plaintiffs replied at Docket 26. Amicus curiae Alaska Forest
Association filed a brief in opposition at Docket 24. Oral
argument was not requested by any party and was not necessary
to the Court’s decision.
BACKGROUND
The
Tongass National Forest (“Tongass”) is a 16.7
million-acre forest in Southeast Alaska.[1] The
nation’s largest National Forest, [2] the Tongass has
seen timber harvesting of varying intensity over the past 100
years.[3] But logging in the Tongass has slowed
since the 1980s in response to the termination of several
long-term contracts-awarded by the Forest Service to
“provide a sound economic base in Alaska through
establishment of a permanent year-round pulp
industry”[4]- due to market fluctuation, litigation,
and other factors.[5]
Prince
of Wales Island, a large island in the Alexander Archipelago,
lies within the Tongass.[6] Two large pulp mills once operated on
the island, where industrial scale logging occurred in the
second half of the 20th century, but both mills closed in the
1990s.[7] There are 12 communities on the island
with a total of approximately 4, 300 residents, many of whom
are Alaska Native.[8] Tourism and sport and commercial fishing
are important to the local economy, [9] and many residents rely to
some degree on subsistence hunting, fishing, and
gathering.[10]
In late
2016, the Forest Service initiated environmental planning for
the Prince of Wales Landscape Level Analysis Project
(“Project”).[11] The Project is “a large
landscape-scale NEPA analysis that will result in a decision
whether or not to authorize integrated resource management
activities on Prince of Wales Island over the next 15
years.”[12] The Forest Service released a final
environmental impact statement (“EIS”) for the
Project on October 19, 2018[13] and issued a Record of
Decision (“ROD”) selecting the alternative
proposed therein on March16, 2019.[14]
The
Project covers all land on Prince of Wales Island within the
National Forest System, consisting of roughly 1.8 million
acres.[15] It authorizes four categories of
activities within this area: vegetation management, including
timber harvesting; watershed improvement and restoration;
sustainable recreation management; and “associated
actions.”[16] The Forest Service created what it calls
an Activity Card for each of the 46 activities included in
these broad categories.[17]“The Activity Cards describe
each potential activity and the related resource
considerations, ” but do not include
maps.[18]
The
Forest Service used the Activity Cards to create a flexible
planning framework intended to allow it to tailor resource
management to changing conditions on the ground. Viewing the
project area as a whole, each alternative considered in the
EIS “describe[d] the conditions being targeted for
treatments and what conditions cannot be exceeded in an area,
or place[d] limits on the intensity of specific activities
such as timber harvest.”[19] But the EIS provides that
“site-specific locations and methods will be determined
during implementation based on defined conditions in the
alternative selected in the . . . ROD . . . in conjunction
with the Activity Cards . . . and Implementation Plan . . .
.”[20] The Forest Service has termed this
approach “condition-based
analysis.”[21]
In the
implementation plan accompanying the EIS, the Forest Service
clarified that there would be no “need for additional
NEPA analysis” under this framework.[22] Instead, the
Project requires that the Forest Service engage in a
predetermined, nine-step implementation process before taking
any specific action in the project area.[23] This process
includes checking the action against the relevant Activity
Card, the final EIS, and the ROD, as well as engaging in
“workshops and other public involvement
techniques.”[24]
The
final EIS considered four alternatives in detail, including a
no-action alternative.[25] In analyzing each alternative, the
Forest Service indicated that it assumed (1) that all acres
proposed for harvest within the project area would be
harvested and all roads proposed by the alternative would be
built[26]; (2) that all acres would be harvested
using clear-cut methods[27]; and (3) that each Wildlife Analysis
Area would be harvested to the maximum acreage
available.[28] The Forest Service made these
assumptions in order to consider the “maximum
effects” of the Project.[29]
The
alternative selected in the ROD-Alternative 2-included the
harvest of 23, 269 acres of old growth trees and 19, 366
acres of young growth trees, out of 48, 140 and 77, 389 acres
identified as potential sites of old- and young-growth
harvest respectively.[30] It also included the construction of
164 miles of road.[31] But pursuant to the Project’s
framework, the selected alternative did not identify the
specific sites where the harvest or road construction would
occur.[32]
The
Forest Service began implementing the Project shortly after
issuing the ROD. It held a public workshop on April 6,
2019[33] and published an “Out-Year
Plan” for fiscal year 2019 that included a proposed
timber sale of 1, 156.34 acres, known as the Twin Mountain
Timber Sale.[34] The Forest Service also published draft
unit cards for the sale, which identify the specific
locations and method of timber harvest in graphical and
narrative form.[35] The parties have stipulated that
ground-disturbing activities associated with the sale could
begin as early as September 27, 2019.[36]
Plaintiffs
initiated this case on May 7, 2019.[37] The Complaint is brought
pursuant to the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 702–06, and
alleges that the Project EIS violates three federal laws: (1)
the National Environmental Policy Act (“NEPA”),
42 U.S.C. § 4332; (2) the Alaska National Interest Lands
Conservation Act (“ANILCA”), 16 U.S.C. §
3120; and (2) the National Forest Management Act
(“NFMA”), 16 U.S.C. § 1604.[38] The Complaint
seeks declaratory judgment, vacatur of the EIS and ROD, and
“preliminary and permanent injunctive relief as needed
to prevent irreparable harm from implementation of the
[Project].”[39] The parties recently completed briefing
on the merits of the case, [40] and the Court intends to rule
on the merits no later than March 31, 2020.
Plaintiffs
filed the instant Motion for Preliminary Injunction on August
15, 2019.[41]
JURISDICTION
The
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331, which “confer[s] jurisdiction on federal
courts to review agency action, regardless of whether the APA
of its own force may serve as a jurisdictional
predicate.”[42]
LEGAL
STANDARD
In
Winter v. Natural Resources Defense Council, Inc.,
the United States Supreme Court held that plaintiffs seeking
preliminary injunctive relief must establish that “(1)
they are likely to succeed on the merits; (2) they are likely
to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in their favor; and
(4) a preliminary injunction is in the public
interest.”[43]Winter was focused on the second
element, and clarified that irreparable harm must be likely,
not just possible, for an injunction to issue.[44]
Following
Winter, the Ninth Circuit addressed the first
element-the likelihood of success on the merits-and held that
its “serious questions” approach to preliminary
injunctions was still valid “when applied as a part of
the four-element Winter test.”[45] Accordingly,
if a plaintiff shows “that there are ‘serious
questions going to the merits’-a lesser showing than
likelihood of success on the merits- then a preliminary
injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff’s
favor.”[46] “Serious questions are
‘substantial, difficult, and doubtful, ’ as to
make them a fair ground for litigation and thus for more
deliberative investigation.”[47] They “need not
promise a certainty of success, nor even present a
probability of success, but must involve a ‘fair chance
on the merits.’”[48] All four Winter
elements must still be satisfied under this approach,
[49]
but analyses of the last two elements-harm to the opposing
party and consideration of the public interest-may merge when
the government is the opposing party.[50]
Injunctive
relief is an equitable remedy, and “[t]he essence of
equity jurisdiction is the power of the court to fashion a
remedy depending upon the necessities of the particular
case.”[51]
DISCUSSION
Upon
consideration of the parties’ briefing and the record
in this case, the Court finds as follows:
I.
The likelihood of irreparable harm in the absence of
preliminary relief Plaintiffs’ members use areas
that would be affected by the Twin Mountain Timber Sale for
hunting, fishing, gathering, and recreation.[52] They also
enjoy the area’s aesthetic qualities.[53] Plaintiffs
maintain that in light of these uses, the timber harvest and
road construction authorized by the sale would cause them
irreparable harm.[54] The record demonstrates that
Plaintiffs’ members value the forests in the project
area.[55]
“Environmental
injury, by its nature, can seldom be adequately remedied by
money damages and is often permanent or at least of long
duration, i.e., irreparable.”[56] The Ninth
Circuit has explained that the harvest of mature trees is
“irreparable for the purposes of the preliminary
injunction analysis” because it “cannot be
remedied easily if at all.”[57] Based on the foregoing,
Plaintiffs have established that they will suffer irreparable
harm if the harvest-particularly of old growth
trees-authorized by the Twin Mountain Timber Sale occurs.
The
Forest Service does not dispute that the harvest of mature
trees would constitute irreparable harm.[58] Instead, it
notes that the sale has yet to be completed, and maintains
that any alleged injury is speculative until a contract is
awarded and preliminary planning “indicates activities
that would imminently and irreparable affect
[Plaintiffs’] claimed use of the Sale
area.”[59] Plaintiffs’ reply identifies
several cases in which courts have enjoined timber sales
before a contract was awarded.[60] And Plaintiffs, citing the
Forest Service’s own arguments, maintain that a rule
prohibiting preliminary injunctive relief until a sale is
finalized could compromise the integrity of the bidding
process or expose the government to contract
damages.[61] The Forest Service has advertised the
Twin Mountain Timber Sale and identified where harvesting
will occur.[62] It plans to review the bids on the sale
on September 24, 2019, and intends to award a contract soon
thereafter.[63] The parties have stipulated that
ground-disturbing activities could begin as early as
September 27, 2019.[64] Given this immediacy, the Court finds
that injury to Plaintiffs is not speculative.
The
Forest Service also argues that the injury to Plaintiffs is
not imminent because a mobilization period of several weeks
will precede any timber harvest under the sale.[65] But the
mobilization includes the construction of roads,
[66]
which Plaintiffs allege would itself cause irreparable
harm.[67] Indeed, according to the EIS,
“[r]oad construction is an irreversible action because
of the time it takes for a constructed road to revert to
natural conditions.”[68] The Ninth Circuit has
previously ordered the entry of a preliminary injunction
against “the construction of roads for future
logging” in response to deficient environmental
analysis.[69] In these circumstances, the Court
therefore finds that Plaintiffs have demonstrated that they
are very likely to suffer irreparable harm in the absence of
preliminary injunctive relief.
II.
The likelihood of success on the merits
Pursuant
to NEPA, agencies must prepare an EIS before taking an action
“significantly affecting the quality of the human
environment.”[70] Regulations issued by the Council on
Environmental Quality require an EIS to include discussion of
the direct and indirect effects of the action, as well as
“[t]he environmental effects of
alternatives.”[71] “An EIS must ‘reasonably set
forth sufficient information to enable the decisionmaker to
consider the environmental factors and make a reasoned
decision.’”[72] This requirement is met if the EIS
“contains a reasonably thorough discussion of the
significant aspects of the probable environmental
consequences.”[73]
Plaintiffs
assert that the Project EIS, with its condition-based
analysis, does not contain enough site-specific information
or analysis to comply with NEPA.[74] They contend that this
case is governed by the Ninth Circuit’s decision in
City of Tenakee Springs v. Block.[75] In that case,
the Circuit reversed a district court’s decision not to
enjoin “construction of an 11-mile road through the
Kadashan watershed” in the Tongass.[76] The
plaintiffs had challenged the adequacy of an EIS for a
five-year operating plan that would defer logging but
authorized the construction of roads for future harvest
activity.[77] The Ninth Circuit rejected the trial
court’s conclusion that the Forest Service had
discretion to determine the specificity of its environmental
review.[78] Instead, it held that “[a]lthough
the agency does have the discretion to define the scope of
its actions, such discretion does not allow the agency to
determine the specificity required by
NEPA.”[79] The Circuit explained that
“[w]here there are large scale plans for regional
development, NEPA requires both a programmatic and a
site-specific EIS.”[80]
The
Circuit then ordered the entry of a preliminary injunction,
in part due to its conclusion that the plaintiffs had raised
serious questions about the merits of their NEPA
claim.[81] It explained that the challenged EIS did
not “g[ive] any indication of its overall plan for
timber harvesting” in the project area and that
“it is impossible to determine where and when
harvesting will occur on the 750, 000 acres of
land.”[82] The Circuit held that the EIS was
inadequate, reasoning that the location and timing of logging
would affect “the locating, routing, construction
techniques, and other aspects of the road, or even the need
for its construction.”[83]
Here,
Plaintiffs argue that the Project EIS is similarly deficient
and that by engaging in condition-based analysis, the Forest
Service impermissibly limited the specificity of its
environmental review.[84] The EIS identified which areas within
the roughly 1.8-million-acre project area could potentially
be harvested over the Project’s 15-year period,
[85]
but expressly left site-specific determinations for the
future.[86] For example, the selected alternative
allows 23, 269 acres of old-growth harvest, but does not
specify where this will be located within the 48, 140 acres
of old growth identified as suitable for harvest in the
project area.[87] Similar to the EIS found inadequate in
City of Tenakee Springs, the EIS here does not
include a determination of when and where the 23, 269 acres
of old-growth harvest will occur. As a result, the EIS also
does not provide specific information about the amount and
location of actual road construction under each alternative,
stating instead that “[t]he total road miles needed
will be determined by the specific harvest units offered and
the needed transportation network.”[88]
The
Forest Service argues that the relevant phrase in City of
Tenakee Springs was factually inaccurate, citing an
unreported district court order on remand.[89] But
regardless of the decision’s factual accuracy, the
reasoning of City of Tenakee Springs remains: An EIS
must be specific enough to ensure informed decision-making
and meaningful public participation.[90]
The
Forest Service contends that the EIS provides the specificity
required by NEPA because it identifies potential areas of
harvest within the project area.[91]It cites Stein v.
Barton, in which the district court concluded that an
EIS need not provide “exact timetables and locations on
the ground for planned harvesting activities within each
harvest unit.”[92] The EIS in that case “employ[ed] a
combination of annotated topographic maps, textual, and
tabular data to describe the project alternatives and their
impacts on cognizable values within the affected areas”
and contained “comprehensive, detailed quantitative and
qualitative descriptions of the logging and roading plans for
each harvest unit.”[93] Similarly, in Alliance for
the Wild Rockies v. Weber, the district court upheld the
environmental analysis for a timber sale that
“identif[ied] the project boundaries down to the
township and range level” and used maps to “allow
the Plaintiffs to identify where those activities will take
place in relation to bull trout critical
habitat.”[94] Here, the Project EIS does not identify
individual harvest units; by only identifying broad areas
within which harvest may occur, it does not fully explain to
the public how or where actual timber activities will affect
localized habitats.
Moreover,
the court in Stein rejected the plaintiffs’
site-specificity claims because they had not argued that or
“show[n] why disclosure of more details regarding
site-specific impacts [was] necessary in order to
‘foster both informed decision-making and informed
public participation.’”[95] Here, Plaintiffs contend
that more detailed information about the location of timber
harvest under the Project is necessary to properly assess its
ecological and subsistence impacts.[96]
Finally,
the Forest Service argues that the EIS satisfied NEPA by
analyzing the Project’s maximum potential
impacts.[97] For example, in discussing the potential
impacts to wildlife, the EIS states that “[f]or
purposes of analysis, assumptions include that all harvest
stands from the [Project-wide logging system and
transportation analysis] would be
harvested.”[98] As a result of this worst-case-scenario
analysis, the Forest Service maintains that “whatever
units [it] ultimately selects within the constraints outlined
in the alternatives, Activity Cards, and Implementation Plan,
the Project will produce environmental effects that fall
within those already disclosed and analyzed in the
EIS.”[99] The Forest Service relies on
WildEarth Guardians v. Conner.[100] There,
the Tenth Circuit upheld an Environmental Assessment
(“EA”) for a tree thinning project that
“evaluat[ed] the Project’s effects on lynx in a
worst-case scenario in which all the mapped lynx habitat in
the project area is treated.”[101] An EA is meant to
determine whether an action will have a significant impact on
the environment, such that an EIS is necessary.[102] In
contrast, an EIS must compare the environmental impacts of
different alternatives, not just determine whether
environmental impacts will occur.[103] While the Forest
Service’s analysis of the Project’s maximum
potential impacts to wildlife may be appropriate for an EA,
it may not be sufficient to meet the requirements for an EIS.
Based
on the foregoing, the Court finds that Plaintiffs have shown
that there are at least serious questions going to the merits
of its NEPA claim. Accordingly, the Court does not address
their ANILCA or NFMA claims for the purposes of preliminary
injunctive relief.[104]
III.
Balance of equities and public interest
Although
analyses of the balance of equities and public interest
generally merge when the government is a party, the public
interest “is better seen as an element that deserves
separate attention in cases where the public interest may be
affected.”[105] Hence, the Court will consider these
elements separately.
A.
The balance of hardships tips sharply in Plaintiffs’
favor
“If
[environmental injury] is sufficiently likely . . . the
balance of harms will usually favor the issuance of an
injunction to protect the environment.”[106] If the 1,
156.34 acres in the Twin Mountain Timber Sale are logged, the
“recreational opportunities that would otherwise be
available on that land are irreparably
lost.”[107]Several members of the plaintiff
organizations filed declarations in which they stated that
harvest activities would disrupt their use and appreciation
of the affected area.[108] The Forest Service argues that the
sale implicates “a small fraction of the Project,
”[109] as it consists of only 4.9% of the
total old-growth acres authorized for commercial
harvest.[110] But the Ninth Circuit has
characterized the logging of a similar area-1, 652 acres-as
“hardly a de minimis injury.”[111]
On the
other side of the scale, the Forest Service points to the
economic harm it would suffer if the sale is enjoined. It set
a minimum bid of $1.2 million on the sale, [112] and
argues that this money is necessary to fund other Project
activities.[113] But the Forest Service would not
receive this money until harvesting is
completed.[114] “[T]he operating season in the
area of this sale usually ends in early November,
”[115] so a preliminary injunction would only
prevent roughly one month of logging and associated
activities during the 2019 season. It is highly unlikely that
the harvest authorized by the sale would be completed during
that brief period.[116] And the Court intends to issue an
order on the merits by March 31, 2020, before the normal
operating season reopens.[117] Thus, the economic loss to
the government caused by a preliminary injunction that would
be in effect for several months is not considerable.
The
Forest Service also argues that any delay to the Twin
Mountain Timber Sale would pose a serious threat to local
mills, potentially erasing the market for Tongass old-growth
timber.[118] Similarly, amicus curiae Alaska Forest
Association asserts that the sale is “desperately
needed to support the Southeast Alaska timber
industry.”[119] The Court acknowledges the harm that a
preliminary injunction would cause the local timber economy.
But it must consider “only the portion of the harm that
would occur while the preliminary injunction is in
place.”[120] The preliminary injunction that
Plaintiffs request would have a relatively short duration,
intended to maintain the status quo only until the Court
issues a decision on the merits. In light of this, the Court
finds that the balance of harms tips sharply in
Plaintiffs’ favor due to the irreparable harm they
would suffer in the absence of preliminary injunctive
relief.[121]
B.
A short-term injunction to maintain the status quo is in the
public interest
The
Ninth Circuit has recognized “the well-established
‘public interest in preserving nature and avoiding
irreparable environmental injury.’”[122] And
“[s]uspending a project until [environmental analysis]
has occurred . . . comports with the public interest, ”
because “the public interest requires careful
consideration of environmental impacts before major federal
projects may go forward.”[123] The Forest Service
stresses that the “selected alternative is projected to
support 2, 657 jobs and provide $146, 620, 933 in direct
income, ” and that this economic benefit would be
jeopardized if “operators are forced out of business
from a lack of timber” due to delays in
implementation.[124] A preliminary injunction’s
impact on the local economy is certainly relevant to the
public interest inquiry, [125] but the Forest Service
paints the impact too broadly by focusing on the projected
economic benefit for the entire 15-year Project. As
Plaintiffs point out, “permanent relief [is] not at
issue in this motion, ”[126] only a preliminary
injunction of relatively short duration.
Moreover,
the Project is not the only planned source of timber in
Southeast Alaska, including on Prince of Wales Island. For
example, the State of Alaska has scheduled two timber sales
on the island for 2020, offering a cumulative 2, 141 acres of
old-growth harvest.[127] And the State anticipates awarding
a local company a 10-year contract that will provide roughly
50 million board feet of timber.[128] These planned projects
would lessen the economic impact of a short-term preliminary
injunction of the Twin Mountain Timber Sale. The Court thus
finds that the “public interests that might be injured
by a preliminary injunction . . . do not outweigh the public
interests that will be served.”[129]
CONCLUSION
In
light of the foregoing, Plaintiffs’ Motion for
Preliminary Injunction at Docket 17 is GRANTED.
IT IS
ORDERED that Defendants are hereby enjoined from allowing any
cutting of trees, road construction, or other
ground-disturbing activities implementing the Twin Mountain
Timber Sale authorized in the Prince of Wales Landscape Level
Analysis Project Record of Decision until further order of
this Court. Defendants are further enjoined from opening any
bids or awarding any contracts for the Twin Mountain Timber
Sale until further order of this Court.
This
preliminary injunction is effective immediately. However, the
parties have not provided the Court with sufficient
information to allow the Court to determine the appropriate
amount of security, if any, required by Rule 65(c), Federal
Rules of Civil Procedure.[130] Therefore, within one week
of the date of this order, the parties shall file, either
separately or jointly, their positions on the amount of any
required bond, and the Court shall promptly thereafter
address this issue.
---------
Notes:
[1] Administrative Record
(“AR”) 8330404 at 063052, 063054.
[2] AR 8330404 at 063052.
[3] AR 8332077 at 069553–55.