Home » Case Summaries » 1998 » Friends of Southeast's Future v. Morrison

 
 

Friends of Southeast's Future v. Morrison

 

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In 1991, the United States Forest Service (USFS) and the Alaska Pulp Corporation developed a timber harvest schedule for the Chatham area of the Tongass National Forest in southeast Alaska. The agency and the corporation entered into a long-term contract under which USFS would supply approximately one hundred million board feet (MMbf) of timber a year to the corporation for four years.

In 1992, USFS issued a public notice that it intended to prepare an environmental impact statement (EIS) for the Ushk Bay timber sale pursuant to the National Environmental Policy Act (NEPA).[2] The final EIS, published in 1994, stated that the purpose and need of the project was to supply timber to fulfill the requirements of the timber harvest schedule. After accepting public comments, USFS issued a record of decision (ROD) that chose an action alternative over other alternatives, including a “no action” alternative, and released the timber for harvest pending an administrative appeal period.

The plaintiffs filed an administrative appeal with USFS. They claimed that USFS had violated NEPA when it 1) failed to prepare an EIS in 1991 when the harvest schedule was designed, and 2) prepared an inadequate EIS in 1994. The plaintiffs also claimed that USFS had violated the National Forest Management Act (NFMA)[3] because the agency failed to prepare the “area analysis” required by the Tongass Land Management Plan (Tongass Forest Plan) prior to preparing the 1994 EIS. The administrative appeal was denied, and the plaintiffs filed suit in federal district court in Alaska. The district court held for USFS on the NEPA claims, but for the plaintiffs on the NFMA claims, and enjoined the sale until USFS complied with the Forest Plan. USFS appealed.

The Ninth Circuit first addressed the NEPA claims. Appellants claimed that USFS had violated NEPA by failing to prepare an EIS in 1991 when the harvest schedule was developed. In addressing this issue, the court noted that the decision not to prepare a 1991 EIS was valid if that decision was reasonable. A decision is “reasonable” if an agency takes a “hard look” at the issue and concludes that an EIS is unnecessary.[4] On the other hand, an EIS is required when an agency makes an “irreversible and irretrievable commitment of the availability of resources.”[5]

Here, the agency had not made such a commitment of resources because the schedule “‘reserve[d] to the government the absolute right’ to prevent the use of the resources in question.”[6] Important to the court was whether USFS could still exercise some control over the harvest schedule after it adopted the schedule. Because the agency could refuse to offer the full one hundred MMbf limit of the schedule or could direct where future timber harvest would take place on the Tongass, the court held that an irreversible and irretrievable commitment of resources had not occurred. If USFS had surrendered absolute authority to control the activity in the area covered by the harvest schedule, then such a commitment would have occurred.

The court then addressed appellants’ second NEPA argument–that the 1994 EIS was inadequate. Specifically, plaintiffs claimed that the EIS was inadequate because USFS had failed to meaningfully consider the no action alternative. The court rejected this argument and explained that the mere fact that the description of the no action alternative was shorter than the description of the action alternatives did not mean that USFS did not consider it. Furthermore, the no action alternative did not meet the purpose and need of the timber sale, which was to provide timber to fulfill the agency’s obligations under the harvest schedule.

Agencies, the court elaborated, are not bound to consider alternatives that will not meet the purpose and need of a project. Because the purpose and need of the project was reasonable, USFS was justified in giving the no action alternative less analysis than the action alternatives. As a result, the agency complied with NEPA even though it did not adopt the no action alternative and its explanation for rejection lacked detail.

Finally, the court turned to the NFMA claim–that the agency failed to remain consistent with the Tongass Forest Plan when it designed the Ushk Bay sale. First, the court pointed out that NFMA requires site-specific projects to remain consistent with area forest plans, and that NEPA allows site-specific plans to “tier” to such plans. Relying on Neighbors of Cuddy Mountain v. United States Forest Service,[7] the court held that USFS violated NFMA when it prepared the Ushk Bay sale without first conducting an “area analysis” as the Forest Plan required. The Forest Plan indicated that an area analysis must take place before USFS planned any site-specific projects in that area, but the agency did not do so before issuing the 1994 EIS. The agency claimed that the analysis in the EIS was sufficient to fulfill the Forest Plan’s requirements, and in the alternative, the ROD for the 1994 EIS specifically removed from the Forest Plan the requirement for an area analysis.[8]

The court dismissed both contentions. First, it pointed out that the Forest Plan specifically stated that area analyses were to precede any site-specific management activities, and that in light of the fact that USFS had not drafted an area analysis, the agency could not tier the 1994 EIS to a nonexistent document. Although the Service argued that it was entitled to Chevron[9] deference in interpreting NEPA’s tiering requirements as implemented in the Forest Plan, the court noted that this type of deference does not apply when a statute is unambiguous. Because the Forest Plan–which referenced NEPA–clearly indicated that area analyses must precede site-specific projects, deference was not due.

Finally, the court reasoned that USFS could not conform the Forest Plan to its management plans after the Forest Plan had been designed. Although USFS claimed that NFMA allows the agency to amend the Forest Plan as necessary, the court explained that an agency has the “authority to change the legal consequences of completed acts only . . . [if] Congress conveys such authority in an ‘express statutory grant.'”[10] NFMA does not grant such authority to USFS, and to suggest otherwise was the type of post hoc rationalization that NEPA prohibits.


[1] For further discussion of Friends of Southeast’s Future v. Morrison, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 Envtl. L. __ (1999).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[3] National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[4] Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998).

[5] California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).

[6] 153 F.3d at 1063 (quoting Conner v. Burford, 848 F.2d 1441, 1449 (9th Cir. 1988)).

[7] 137 F.3d 1372 (9th Cir. 1998).

[8] The ROD stated:

On January 10, 1997, a federal court held in Friends of Southeast’s Future v. Morrison, No. J96-011-CV (District of Alaska) that the Ushk Bay Timber Sale project did not properly undertake an “Area Analysis” the court found was required by the 1979 TLMP. The Court also upheld the sale against claims that it violated the NEPA. The Forest Service continues to believe that the Ushk Bay Timber Sale satisfied all the requirements of the 1979 TLMP and has appealed the district court’s decision. In any event, this Record of Decision and the revised Plan remove any requirements for “Area Analysis.” The Ushk Bay timber sale and any similarly situated timber sale are specifically allowed to proceed in accordance with the standards and guidelines that were in effect at the time the NEPA decision document for the project was signed, but without undertaking any “Area Analysis.”

153 F.3d at 1070.

[9] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[10] 153 F.3d at 1070 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)).

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