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Alaska Wilderness Recreation & Tourism Ass'n v. Morrison

ELR Citation: 26 ELR 20065
Nos. No. 95-35222, 67 F.3d 723/41 ERC 1688/(9th Cir., 07/24/1995, 09/28/1995)

The court holds that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the Alaska National Interest Lands Conservation Act (ANILCA) by failing to prepare a supplemental environmental impact statement (EIS) before offering to sell timber that previously was to be sold under a 50-year contract to a company that shut down its mill. The court first holds that the challenge to the sale raises predominantly legal, not technical, questions. The decision not to prepare a supplemental EIS did not, as the Forest Service maintains, reflect an assessment of the effects of the contract termination on the environment, but an assessment of the effects of the termination on the EIS process. The court holds that the applicable standard of review is reasonableness. The court notes that while the harvest areas are designated for multiple use or resource use, the designations do not indicate the proportion of timber harvesting to be carried out relative to other stated management goals. Further, actual sales of uncut timber are subject to EIS specifications, following a public hearing and based on an analysis that takes into account other uses for the areas. The court next holds that the forest plan and the three EISs prepared for the harvest areas before the contract termination were both devised around the long-term contract, which the Forest Service took as given. Each EIS explains that the alternatives considered for detailed study were those that met the requirements of the contract. The records of decision (RODs) for the sales similarly reflect the central importance of meeting the contract requirements. The court holds that the Forest Service took into account other needs and uses only to the extent that they permitted contract requirements to be met. The court holds that it is impossible to tell how the allocation of resources to timber harvesting would have differed from the chosen plan without the contract, or to what extent other alternatives, eliminated from the EISs because they did not meet volume requirements, might have been considered in detail. The court thus holds that cancellation of the contract is an event requiring serious and detailed evaluation by the Forest Service. The court also holds that the Tongass Timber Reform Act does not relieve the Forest Service of compliance with NEPA and ANILCA. The court holds that because elimination of the contract appears significantly to alter the range of viable alternatives available to the Forest Service in managing the areas in question, the Forest Service's decision not to reconsider land use alternatives in an EIS after providing public notice and conducting proceedings in keeping with the requirements of NEPA and ANILCA was not reasonable. The court next holds that the environmental and Native American groups challenging the sale have made a showing that the proposed sale may significantly degrade some human environmental factor. But questions as to whether an injunction would be appropriate during the remand, and the scope of any such injunction, raise intensely factual issues, and for that reason should be decided by the district court. The court thus extends the temporary injunction against the sales, vacates the district court's order denying an injunction, and remands to the district court for a balancing of the equities to determine whether and in what form the injunction should continue pending the Forest Service's compliance with NEPA and ANILCA. The court next notes that three days after it filed its opinion, Congress enacted the Emergency Supplemental Appropriations for Additional Disaster Assistance for Anti-Terrorism Initiatives. Section 503 is a rider providing that an EIS prepared under NEPA and ANILCA for a timber sale or offering to one party shall be deemed sufficient if the Forest Service sells the timber to an alternate buyer, specifying the EISs at issue here. The court holds that §503 does not materially alter the law underlying the dispute. The Forest Service's decision to offer the timber at the levels specified in the original contract does not negate the environmental significance of the contract's cancellation—that the contract no longer dictates the level of harm that subsistence users and the environment must endure. The dispute does not involve the changing of parties to a contract. Further, the EISs were not prepared for a timber sale, as §503 specifies, but were crafted around a contract effected in advance of statutory requirements aimed at balancing competing claims. And §503's reference to a pending case is of no moment. While Congress may unquestionably amend substantive law affecting a pending case, and may do so in an appropriations statute, it has not done so here. Section 503 offers no new statutory basis on which to analyze the effect of the contract cancellation of a preexisting timber sales contract on the EIS process.

Counsel for Plaintiffs
Thomas S. Waldo
Sierra Club Legal Defense Fund
325 4th St., Juneau AK 99801
(907) 586-2751

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

Before Browning, Wright and Nelson, JJ.