In re Big Thorne Project & 2008 Tongass Forest Plan

93 F. Supp. 3d 1134, 45 Envtl. L. Rep. (Envtl. Law Inst.) 20056, 2015 U.S. Dist. LEXIS 37391
CourtDistrict Court, D. Alaska
DecidedMarch 20, 2015
DocketCase Nos. 1:14-cv-0013-RRB, 1:14-cv-0014-RRB, 1:14-cv-0015-RRB
StatusPublished

This text of 93 F. Supp. 3d 1134 (In re Big Thorne Project & 2008 Tongass Forest Plan) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Big Thorne Project & 2008 Tongass Forest Plan, 93 F. Supp. 3d 1134, 45 Envtl. L. Rep. (Envtl. Law Inst.) 20056, 2015 U.S. Dist. LEXIS 37391 (D. Alaska 2015).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS

RALPH R. BEISTLINE, District Judge.

I. INTRODUCTION

In the consolidated matter before the Court, Southeast Alaska Conservation Council, Alaska Wilderness League, National Audubon Society, Natural Resources Defense Council, Sierra Club, Cascadia Wildlands, Center for Biological Diversity, Greater Southeast Alaska Conservation Community, Greenpeace, and The Boat Company (“Plaintiffs”) have challenged timber development in the Tongass National Forest that has been considered and approved by the United States Forest Service.

Plaintiffs claim violations of the National Environmental Policy Act (“NEPA”), the National Forest Management Act (“NFMA”), and the 2008 Amended Ton-gass National Forest Land and Resource Management Plan (“2008 Forest Plan”). Plaintiffs have also challenged the 2008 Forest Plan as failing to comply with NFMA. Prior to consolidation, Plaintiffs filed motions for summary judgment at Docket 32 (1:14-cv-13), Docket 26 (1:14-cv-14), and Docket 28 (1:14-cv-15). The Defendants United States Forest Service, United States Department of Agriculture, Beth Pendleton, and Forrest Cole, (“USFS”) responded at Docket 58 (1:14-cv-13), Docket 64 (l:14-cv-14), and Docket 68 (l:14-cv-15). The Alaska Forest Association, the State of Alaska, the city of Craig, and Viking Lumber, Inc. (“Interve-nors”) also filed responses in opposition to Plaintiffs’ motions for summary judgment at Docket 57 (1:14-cv-13), Docket 62 (1:14-cv-14), and Docket 69 (1:14-cv-15). Plaintiffs reply at Docket 68 (1:14-cv-13), Docket 68 (l:14-cv-14), and Docket 72 (1:14-cv-15). In their responsive filings, USFS moves for summary judgment.

Plaintiffs also have requested oral argument at Docket 28 (1:14-cv-15) and to strike portions of Intervenors’ response in opposition at Docket 66 (1:14-ev-14). Motions for preliminary injunction have also been made by Plaintiffs at Docket 85 (1:14-cv-13) and Docket 78 (1:14-cv-15). As a preliminary matter, the Court grants Plaintiffs’ unopposed motion for judicial notice at 'Docket 70 (1:14-cv-14). Plaintiffs seek declaratory and injunctive relief from USFS, asking the Court to prevent the commencement of timber activities scheduled to begin April 1, 2015.

II. GOVERNING PROVISIONS

A. NFMA

The National Forest Management Act (“NFMA”) requires the Forest Service to manage the National Forest System through a two-tiered land management process.1 The first tier calls for “land and resource management plans,” commonly referred to as forest plans, which define allowed uses in various parts of the forest, establish management goals, and set standards and guidelines for site-specific forest management.2 Forest Plans must also provide for sustained yield and balance [1140]*1140multiple uses: they must coordinate outdoor recreation range, timber, watershed, wildlife and fish, and wilderness uses.3 After a forest plan is developed, all subsequent agency actions must comply with NFMA and the governing forest plan.4 The second tier consists of project-level decisions which govern actual on-the-ground actions such as timber sales. 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.”5

B. NEPA

The National Environmental Policy Act (“NEPA”) contains additional procedural requirements to be followed whenever the federal government proposes actions with environmental consequences.6 Its purpose is to ensure the decision-maker will have detailed information on environmental impacts .and provides that information to the public.7 The Forest Service must prepare an Environmental Impact Study (EIS), which identifies environmental effects and alternative courses of action, when undertaking any management project.8 “ ‘In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results.’ ”9 Under NEPA, the agency need only take a “hard look” at its proposed action.10 So long as “the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.”11

However, the EIS “must respond explicitly and directly to conflicting views in order to satisfy NEPA’s procedural requirements.”12 When additional or updated information is made available to the agency after the close of the decision-making process, the agency may need to prepare a Supplemental Environmental Impact Statement (“SEIS”) in order to address the new information.13 Although not specifically mentioned in NEPA, agencies may utilize a supplemental information report (“SIR”) to evaluate the new information and to evaluate whether it impacts the approved action.14

C. TTRA

The Tongass Timber Reform Act (“TTRA”), which amended portions of the [1141]*1141Alaska National Interest Lands Conservation Act (“ANILCA”), provides that the Forest Service is to “seek to provide a supply of timber from the Tongass National Forest that (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle.”15 The Forest Service is still “[s]ubject to appropriations, other applicable law, and the requirements of the [NFMA]” in meeting timber demand and must remain “consistent with providing for the multiple use and sustained yield of all renewable forest resources.16 At a minimum, the TTRA “requires the Forest Service to at least consider market demand and seek to meet market demand.”17 .

III. FACTUAL BACKGROUND

The Tongass National Forest, established September 10, 1907, covers nearly 17 million acres across southeastern Alaska. Pursuant to the requirements of NFMA, the Forest Service adopted a revision of the Tongass National Forest Land and Resource Management Plan in 1997 (“1997 Forest Plan”). In response to the Ninth Circuit’s decision in Natural Resources Defense Council, et al. v. United States Forest Service, et al., the 1997 Forest Plan was subsequently amended through a Record of Decision (“ROD”) issued on January 23, 2008, (“2008 Forest Plan”).18 Relevant to the present matter, two local species are identified within the 2008 Forest Plan as management indicator species (“MIS”): the Sitka black-tailed deer (“deer”) and the Alexander Archipelago wolf (“wolf’).19 Using MIS the 2008 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.”20

Located within the northern portion of Prince of Wales Island and encompassing approximately 232,000 acres is the Big Thorne area.

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Bluebook (online)
93 F. Supp. 3d 1134, 45 Envtl. L. Rep. (Envtl. Law Inst.) 20056, 2015 U.S. Dist. LEXIS 37391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-big-thorne-project-2008-tongass-forest-plan-akd-2015.