Southeast Alaska Conservation Council, Inc. v. Watson

No. J81-12 (D. Alaska September 11, 1981)

The district court issues a temporary restraining order prohibiting certain mining activities within the Misty Fjords National Monument in Alaska. The U.S. Forest Service allowed U.S. Borax to begin the mining activities, which are identical to those described in U.S. Borax's 1979 Bulk Sampling Study Plan, without preparation of an environmental impact statement (EIS). The court rules that denial of preliminary relief will cause plaintiff irreparable injury because the Forest Service will continue to allow mining activities, which will disturb wildlife habitat and may result in adverse environmental consequences. In addition, the court rules that plaintiff has shown a strong likelihood of success on the merits since § 503(h)(3) of the Alaska National Interest Lands Conservation Act requires preparation of an EIS before federal agency approval of the building of an access road for bulk sampling and the start of the bulk sampling phase of the project. Finally, the court rules that granting the temporary restraining order is in the public interest.

Counsel for Plaintiff
Durwood J. Zaelke
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants
Sue Ellen Tatter, Ass't U.S. Attorney
701 C St., Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Intervenor Defendants
Michael T. Thomas
Robertson, Monagle, Eastaugh & Bradley
P.O. Box 679, Anchorage AK 99510
(907) 277-6693

[12 ELR 20187]

VON DER HEYDT, J.:

Findings of Fact and Conclusions of Law

THIS CAUSE comes before the court on plaintiff's motion for a temporary restraining order. FED. R. CIV. P. 65(b). Although written notice was given to the adverse party, the notice was insufficient to allow completion of certain discovery matters necessary for thorough preparation. Accordingly, this order is not equivalent to a preliminary injunction. FED. R. CIV. P. 65(a); see 11 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE § 2951 at 500.

Findings of Fact

1. The court has jurisdiction pursuant to 28 U.S.C. § 1331 as this cause arises under the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), Pub. L. No. 96-487, 94 Stat. 2401.

2. Defendants admit that United States Borax (Borax) has commenced work pursuant to amendments to the Borax 1980-83 Plan of Operations for the Quartz Hill Project. See Federal Defendants' Responses to Certain of Plaintiff's Requests for Admission (Defendants' Admission), response four.

3. Defendants admit that the amendments authorize Borax to engage in the same activities described in the 1979 Bulk Sampling Study Plan. Defendants' Admission, response seventeen.

4. Federal defendants have allowed Borax to commence activities pursuant to the amendments, described in finding three, prior to preparation of an Environmental Impact Statement.

5. Defendants admit that work pursuant to the amendments will affect the wilderness quality of lands in the Quartz Hill area as well as the lands in the Misty Fjords National Monument Wilderness. Defendants' Admission, responses eighteen and nineteen.

6. Defendants admit that work pursuant to the amendments has or will disturb wildlife habitat. Defendants Admission, response twenty three.

7. Plaintiff will sustain irreparable injury if a temporary restraining order is not granted as defendants will allow mining activities to continue which may result in adverse environmental consequences and the destruction of environmental baseline data.

8. ANILCA provides that the "Secretary shall prepare an environmental impact statement (EIS) under the National Environmental Policy Act of 1969 which covers an access road for bulk sampling purposes and the bulk sampling phase proposed by United States Borax and Chemical Corporation in the Quartz Hill area." ANILCA § 503(h)(3).

9. It has consistently been recognized that the filing of an EIS should precede rather than follow federal agency action. Cady v. Morton, 527 F.2d 786, 793-94 [5 ELR 20445] (9th Cir. 1975).

Conclusions of Law

1. Plaintiff has shown that the balance of irreparable harm [12 ELR 20188] favors it; that it has a strong likelihood of success on the merits; and that the public interest favors granting a temporary restraining order. See City of Anaheim v. Kleppe, 590 F.2d 285, 288 n.4 (9th Cir. 1978).

2. A temporary restraining order may issue.

Temporary Restraining Order

THE COURT has found that plaintiff will sustain irreparable injury if this temporary restraining order is not granted, in that defendants will allow mining activities to continue which may result in adverse environmental consequences and the destruction of environmental baseline data, and,

THE COURT FURTHER has found that defendants have received notice of plaintiff's motion for temporary restraining order,

Accordingly, IT IS ORDERED:

1. THAT plaintiff's motion for temporary restraining order is granted.

2. THAT defendants are hereby restrained and enjoined from allowing the following mining activities to continue pursuant to the 1981 amendments to Borax's 1980-83 Plan of Operations:

Defendants are enjoined and ordered to disapprove further blasting, further operation of the sampling plant, crusher and other heavy equipment; and from helicopter flights, except as necessary to safely conclude the current activities for this field season.

3. THAT defendants may upon 5 days notice move for an order modifying this temporary restraining order upon an adequate showing that a narrower injunction will provide equal environmental protection, including protection to the integrity of baseline data.

IT IS FURTHER ORDERED THAT this order shall expire after 10 days of the date hereof.

Bond is set in the sum of $3000.00, cash or corporate surety.

DATED at Anchorage, Alaska, this 11th day of September, 1981, at 10:15 a.m.