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Tenakee Springs, City of v. Block

ELR Citation: 16 ELR 20263
Nos. No. 84-3883, 778 F.2d 1402/23 ERC 2097/(9th Cir., 12/20/1985) Denial of preliminary injunction rev'd

The court holds that the Alaska National Interest Lands Conservation Act (ANILCA) does not bar judicial review of roadless area development plans on Alaska national forest lands and that an environmental impact statement (EIS) covering a five-year timbering plan for part of southeastern Alaska is not site-specific enough to permit individual developments to proceed. The court first holds, in a footnote, that plaintiffs' challenges are not foreclosed by delays in attacking the Forest Service's draft and final EIS, since the challenges address an alternative not described in the draft EIS. The court holds that ANILCA §708, which immunized from judicial review the Alaskan portion of the second Roadless Area Review and Evaluation, which in turn incorporated by reference a Forest Service EIS on the Tongass National Forest, only prevents judicial review of wilderness recommendations and not of proposals to develop lands not recommended for wilderness. This conclusion is supported both by the text of §708 and its legislative history. The district court erred in concluding it could only review decisions on how to build roads and log, not on whether to do so. Even if ANILCA did preclude any review of the proposals covered in the Tongass EIS, the EIS did not include detailed or site-specific proposals for management of the nonwilderness roadless areas. Neither Congress nor the courts have held the Tongass EIS to be site-specific enough to fulfill the National Environmental Policy Act (NEPA) requirements for development of individual sites.

The court then rules that although an agency has discretion to set the scope of its actions, the agency does not have accompanying discretion to decide how site-specific its EISs must be. For large-scale plans for regional development, NEPA requires that the programmatic EIS be followed by site-specific EISs. The district court thus erred in concluding the Forest Service had discretion to determine the specificity of the five-year Alaska Lumber and Pulp EIS covering logging and road building for parts of southeastern Alaska.

The court then holds that plaintiffs are entitled to a preliminary injunction against construction of a road in the Kadashan watershed of Chichagof Island, and area covered in the Alaska Lumber and Pulp EIS. The balance of hardship tips decidedly in favor of plaintiffs, and the EIS, with no overall site-specific plan for timber harvesting, appears to be inadequate.

A concurring judge would read ANILCA §708 to preclude review of all land use designations in the Tongass EIS, including those giving general management guidelines for nonwilderness lands. However, he agrees that Tongass EIS is programmatic, that it is not site-specific enough to permit individual developments, that the Alaska Lumber and Pulp EIS is reviewable, and that a preliminary injunction should issue.

Counsel for Plaintiffs-Appellants
Richard M. Burnham
Findley & Burnham
217 2nd St., Suite 200, Juneau AK 99801
(907) 586-3811

Counsel for Defendants-Appellees
James F. Clark
Robertson, Monagle, Eastaugh & Bradley
240 Main St., Suite 800, P.O. Box 1211, Juneau AK 99802
(907) 586-3340

David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580