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Friends of Southeast's Future v. Morrison

Citation: 29 ELR 20070
No. 97-35157, -35346, 153 F.3d 1059/(9th Cir., 09/03/1998)

The court holds that the U.S. Forest Service's approval of a proposed timber sale in the Tongass National Forest in Alaska violated the National Forest Management Act (NFMA), but did not violate the National Environmental Policy Act (NEPA). The court first holds that the Forest Service's tentative operating schedule did not constitute an irreversible and irretrievable commitment of resources and, therefore, did not require preparation of an environmental impact statement (EIS). Whether an agency action constitutes an irreversible and irretrievable commitment of resources turns on whether that schedule reserves to the government the absolute right to prevent the use of the resources in question. Here, the tentative operating schedule makes no commitment of any part of the national forests because the government retains absolute authority to decide whether any such activities will ever take place on the lands. Moreover, the Forest Service did not commit itself to a certain volume of timber when it prepared the tentative operating schedule. It was free to follow or alter the schedule as conditions warrant.

The court next holds that the Forest Service did not act unreasonably in rejecting the no-action alternative in the EIS ultimately prepared in 1994 on the ground that it would not meet the purpose and need of the proposed project. The Forest Service's purpose and need statement for the project is not unreasonable. It permitted the agency to evaluate a wide range of action alternatives in the 1994 EIS, which vary in terms of proposed timber volume from 46.5 million board feet to 90.3 million board feet. All of the alternatives are reasonably consistent with the purposes and needs of the project, because they aim to balance the Tongass National Forest plan's wilderness, fish, and wildlife goals with the need to meet timber demands. By contrast, the noaction alternative is plainly inconsistent with the projects' overarching purposes and needs, because whatever other goals it may serve, it would not help to meet timber demands.

The court then holds that the Forest Service violated the NFMA by failing to make the proposed timber sale consistent with the procedural provisions of the Tongass land management plan. The plan's statement that each area analysis "will be tiered" to the appropriate project-implementation step in conjunction with 40 C.F.R. § 1508.28 undermines the Forest Service's argument that the two steps may be conducted simultaneously. Therefore, the court rejects the Forest Service's argument that it was not required to conduct an area analysis prior to the project-specific EIS. Even assuming that the area analysis could be conducted within a project-specific EIS, the Forest Service's contention that its EIS satisfied the area analysis requirement fails. To analyze in an appendix of the EIS the reasons for choosing a specific site after analyzing in the body of the EIS the specifics of implementing a project at that site demonstrates that the area analysis was conducted after-the-fact. The court also rejects the Forest Service's argument that the proposed sale became consistent with the plan when the plan was amended in 1997 to remove the area analysis requirement. Retroactive application of the area analysis provisions of the amended plan is not authorized by the NFMA. The statutory language relied on by the Forest Service only applies to the revision of instruments to achieve consistency with forest plans, not to the revision of the forest plans themselves.

Counsel for Plaintiffs
Douglas A. Ruley
Earth Justice Legal Defense Fund
325 4th St., Juneau AK 99801
(907) 586-2751

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Farris and Hawkins, JJ