ELR Citation: ELR 20817
No(s). s. 91-35520, -35522 (9th Cir. Feb 12, 1992)

The court holds that the district court properly refused to permanently enjoin timber harvesting in the Tongass National Forest in southeastern Alaska pursuant to a 50-year timber sale contract between the U.S. Forest Service and the Alaska Pulp Company, because the Tongass Timber Reform Act of 1990 (TTRA) adequately addressed any inadequacies in the 1989 supplemental environmental impact statement (SEIS) prepared to assess the environmental effects of compliance with the contract as then written. An Alaskan municipality and native Alaskan subsistence users challenged the adequacy of the SEIS prepared by the U.S. Forest Service in 1989, and the appeals court had previously found that appellants had raised serious legal questions relating to the adequacy of the SEIS' cumulative impact analysis and the range of alternatives considered. Subsequently, Congress passed the TTRA and the district court granted summary judgment for the government and denied permanent injunctive relief concerning timber harvesting under the contract.

The court holds that even assuming that the U.S. Forest Service did not comply with environmental laws when it prepared the 1989 SEIS to assess the environmental effects of compliance with the contract as then written, significant legislation addressing the applicable contract timber harvest issues has intervened since the district court first issued preliminary injunctive relief. In the previous opinions in this case, the court notes that it was concerned about the government's refusal to consider the environmental effects of harvesting the totality of the contract requirements, its refusal to consider any modification of the contract requirements, and its lack of attention to the cumulative impact this totality of harvest would have on subsistence users pursuant to §810(a) of the Alaska National Interest Lands Conservation Act (ANILCA). However, in passing the TTRA, Congress reduced the volume to be harvested, expanded the non-harvestable wilderness areas, and ordered the government to prepare an extensive study of the environmental effects of the contract requirements in order to better determine whether and how further to modify the contract. Moreover, the TTRA changes the methodology for ensuring future compliance with environmental laws by providing that subsequent cutting will be pursuant to the requirements now imposed for environmental study of individual sales, rather than on the basis of the five-year plans required by law in 1989. Thus, passage of the TTRA eliminates the same threat of irreparable harm resulting from the long-term carryover effects of logging carried out under the procedurally suspect, contract-driven, 1989 SEIS. Further, the court holds that under these circumstances there is no need to address the merits of appellants' claims that the 1989 SEIS was inadequate when prepared.

A dissenting judge would hold that because nothing in the TTRA or its legislative history supports the assumption that Congress intended to retroactively validate the 1989 SEIS or exempt it from complying with the National Environmental Policy Act and ANILCA, the court should have reached the merits on further injunctive relief.

[Previous decisions in this litigation are published at 16 ELR 20263 and 21 ELR 20001.]

Counsel for Plaintiffs-Appellants
Thomas S. Waldo
Sierra Club Legal Defense Fund
325 4th St., Juneau AK 99801
(907) 586-2751
Vance Sanders
Alaska Legal Services Corporation
419 6th St., Ste. 322, Juneau AK 99801
(907) 586-6425

Counsel for Defendants-Appellees
David Shilton
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
James F. Clark
Robertson, Monagle & Eastaugh
240 Main St., Ste. 800, P.O. Box 21211, Juneau AK 99802
(907) 586-3340

Schroeder, J. (before Wright and Norris, JJ.):