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Southeast Alaska Conservation Council v. United States Forest Service

United States District Court, D. Alaska

September 23, 2019

SOUTHEAST ALASKA CONSERVATION COUNCIL, et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.

          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.


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