ELR Citation: ELR 20001
No(s). s. 90-35516, -35527 (9th Cir. Oct 17, 1990)

The court enjoins cutting on portions of ancient forests in Alaska's Tongass National Forest until the Forest Service adequately considers all reasonable alternatives and cumulative impacts in its supplemental environmental impact statement (SEIS) required under the National Environmental Policy Act (NEPA) and §810(a) of the Alaska National Interest Lands Conservation Act (ANILCA). After the Forest Service determined that insufficient timber existed in cutting areas to meet its timber contract, it selected four additional areas to be logged to meet contractual timber volume. Environmental groups challenge the alternatives and impacts considered by the Forest Services in the SEIS for opening the four additional areas to logging. The court first holds that the Forest Service did not consider any alternatives that decrease the amount of board feet to be cut. The Forest Service must consider reasonable alternatives under both NEPA and ANILCA. Moreover, NEPA requires careful and reasonable consideration of environmental impacts and ANILCA is designed to ensure that projects have the least adverse impact possible on subsistence resources used by rural Alaskan residents. Thus, because the environmental groups' interpretation of the Forest Service's contract was not unreasonable, cutting of the ancient forest is enjoined pending consideration on the merits. Specifically, the court finds that the environmental groups' argument that the "availability constraint" language in the Forest Service's contract makes the amount of board feet in the contract a ceiling rather than a requirement is likely to succeed on the merits, since that quantity exceeds the contract beneficiaries' capacity to cut. The court also finds the argument that the contract does not necessarily require the Forest Service to concentrate logging in the area at issue rather than cutting less ancient forest over a larger area is also reasonable. Even if the contract terms required concentrated cutting, the environmental groups' argument that the SEIS must consider amending or modifying the contract in light of Forest Service regulations that allow cancellation where fulfillment results in serious environmental damage is likely to suceed on the merits. The Forest Service's failure to evaluate terminating, suspending, or amending the contract in a no-action alternative shows the requisite likelihood of success on the merits necessary for an injunction. Moreover, NEPA and ANILCA also require consideration of cumulative impacts. The environmental groups sufficiently showed that the SEIS failed to adequately address cumulative impacts because the Forest Service disaggregated the analysis to an area-by-area study. The Forest Service considered logging in the four additional areas in isolation from action contemplated elsewhere in the contract area and over future contract years. The Tongass Land Management Plan (TLMP) and accompanying EIS are not site-specific with regard to the four additional logging areas. The court holds that the analysis of cumulative impacts in future revisions of the TLMP are inadequate to satisfy NEPA's requirement that environmental impacts be assessed before an action is taken. The SEIS fails to address the cumulative impacts of future planned cuts on the four areas at issue. The court holds that the environmental impacts of logging would be irreversible, while the adverse impact on the Forest Service and the contract beneficiaries is negligible.

[A related case is published at 16 ELR 20263].

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

Counsel for Appellants
Vance A. Sanders, Mark Regan
Alaska Legal Services Corporation
419 Sixth St., Ste. 322, Juneau AK 99801
(907) 586-6425

Eric P. Joregnsen, Thomas S. Waldo, Marlyn J. Twitchell
Sierra Club Legal Defense Fund
419 Sixth St., Ste. 321, Juneau AK 99801
(907) 586-2751