Alaska v. U.S. Dep't of Agric.

273 F.Supp.3d 102

State of ALASKA, Plaintiff,

and

Alaska Forest Association, Southeast Conference, Alaska Electric Light & Power, Alaska Power & Telephone, Alaska Miners Association, Citizen's Pro Road, Alaska Marine Lines, Inc., Northwest Mining Association, Durette Construction Company, First Things First Foundation, Juneau Chamber of Commerce, City of Ketchikan, Ketchikan Gateway Borough, Southeast Stevedoring Corp., Chris Gerondale, Southeast Roadbuilders, Inc., Hyak Mining Co., Inc., Inside Passage Electric Cooperative, City of Craig,

and

Southeast Alaska Power Agency, Plaintiff–Intervenors,

v.UNITED STATES DEPARTMENT OF AGRICULTURE, United States Department of Agriculture Forest Service, George Ervin "Sonny" Perdue III

, in his official capacity as Secretary of Agriculture,

and

Tom Tidwell, in his official capacity as Chief of the United States Forest Service, Defendants,

Southeast Alaska Conservation Council, Alaska Center for the Environment, Boat Company, tongass Conservation Society, Sierra Club, Wilderness Society, Natural Resources Defense Council, Greenpeace, Inc., Defenders of Wildlife,

and

Center for Biological Diversity, Defendant–Intervenors.

Civil Case No. 11–1122 (RJL)

United States District Court, District of Columbia.

Signed September 20, 2017

Thomas Earl Lenhart, Alaska Department of Law, Juneau, AK, for Plaintiff.

Steven William Silver, Robertson, Monagle & Eastaugh, Reston, VA, James F. Clark, III, Pro Hac Vice, Hoffman & Blasco, LLC, Juneau, AK, Stephen J. Kennedy, Pro Hac Vice, Law Offices of Stephen J. Kennedy, Lynnwood, WA, Mark C. Rutzick, Mark C. Rutzick, Incorporated, Oak Hill, VA, Julie A. Weis, Pro Hac Vice, Haglund Kelley Horngren Jones & Wilder LLP, Portland, OR, for Plaintiff–Intervenors.

Barclay Samford United States Department of Justice Denver, CO, for Defendants.

Eric Paul Jorgensen, Thomas S. Waldo, Pro Hac Vice, Earthjustice, Juneau, AK, Nathaniel S.W. Lawrence, Pro Hac Vice, Natural Resources Defense Council, Olympia, WA, for Defendant–Intervenors.

MEMORANDUM OPINION

September 20, 2017 [Dkt. ## 94, 95, 96, 97]

RICHARD J. LEON, United States District Judge

In 2001, the United States Department of Agriculture ("USDA") promulgated the Roadless Area Conservation Rule—commonly referred to as the "Roadless Rule"—which limits road construction and timber harvesting in national forests. It is this Rule—and its application to the Tongass National Forest (the "Tongass")—that the State of Alaska ("Alaska" or "plaintiff") challenges today. In essence, Alaska argues that the Roadless Rule was promulgated in an unrealistic time frame, without considering the needs of individual states and without weighing the potentially devastating consequences to multiple-use management on national forest lands. Specifically, Alaska alleges that the Roadless Rule violates the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 – 70 ("NEPA"), the Administrative Procedure Act, 5 U.S.C. §§ 551 – 59, 701 – 06 ("APA"), the Wilderness Act of 1964, 16 U.S.C. §§ 1131 – 36 ("Wilderness Act"), the Multiple–Use Sustained–Yield Act, 16 U.S.C. §§ 528 – 31 ("MUSYA"), the Organic Administration Act, 16 U.S.C. § 475 ("Organic Act"), the National Forest Management Act, 16 U.S.C. §§ 1600 – 14 ("NFMA"), the Tongass Timber Reform Act, Pub. L. No. 101–626, 104 Stat. 4426 (1990) (codified as amended in scattered sections of 16 U.S.C.) ("TTRA"), and the Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101 – 233 ("ANILCA"). Upon consideration of the record, the relevant law, and the briefs submitted by the parties, I find that plaintiff has not shown that the USDA violated any federal statute in promulgating the Roadless Rule. Defendants' and Defendant–Intervenors' Cross–Motions for Summary Judgment are therefore GRANTED, and Plaintiff's and Plaintiff–Intervenors' Motions for Summary Judgment are DENIED.

BACKGROUND

A. Statutory Framework

The National Forest System ("NFS") currently contains approximately 192 million acres of land. AR Doc. 4609 (FEIS Vol. 1), at 3–111. This land includes 155 proclaimed or designated national forests, 20 national grasslands, 51 purchase units, 8 land utilization projects, 20 research and experimental areas, and 33 "other areas." 36 C.F.R. § 200.1(c)(2). Among the national forests within the Forest Service's jurisdiction is the Tongass National Forest in Southeast Alaska. Covering roughly 16.8 million acres, the Tongass is the nation's largest national forest. 68 Fed. Reg. 75,136, 75,137 –39 (Dec. 30, 2003) (to be codified at 36 C.F.R. pt. 294). The Forest Service is responsible for managing the NFS under, inter alia, the Organic Act, the MUSYA, and the NFMA, which authorize the Forest Service to manage NFS lands and designate those lands for multiple uses. In exercising its managerial authority under these statutes, the Forest Service must also comply with the Wilderness Act and NEPA. I will briefly review the relevant statutory text below.

In 1897, Congress enacted the Organic Act, which set forth a multiple-use mandate for the management of the National Forests. The Act mandated that National Forests may be established and administered only for the following purposes: (1) "to improve and protect the forest within the boundaries"; (2) to "secur[e] favorable conditions of water flows"; or (3) "to furnish a continuous supply of timber for the use and necessities of citizens of the United States." 16 U.S.C. § 475. Over sixty years later, after the Forest Service was transferred to the Department of Agriculture, Congress codified the Organic Act's multiple-use mandate by enacting the MUSYA. 16 U.S.C. §§ 528 – 31. The MUSYA directs the Forest Service to "administer the renewable surface resources of the national forests for multiple use and sustained yield." Id. § 529. Specifically, the MUSYA identifies "outdoor recreation, range, timber, watershed, and wildlife and fish purposes" as the purposes for which the national forests are to be established and administered. Id. § 528.

Four years after Congress enacted the MUSYA, it passed the Wilderness Act, which "established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’ " 16 U.S.C. § 1131(a). Importantly, the Act explicitly retained Congress's authority to designate which areas qualify as "wilderness areas." Id. § 1132. But to aid Congress in its task of designating wilderness areas, the Act authorized the Secretary of Agriculture to "review, as to its suitability or nonsuitability for preservation as wilderness, each area in the national forests classified ... as ‘primitive.’ " Id. § 1132(b). The Act also delegated to the Forest Service the responsibility of "preserving the wilderness character of the area" and "administer[ing] such area" for "the public purposes of recreational, scenic, scientific, educational, conservation, and historical use." Id. § 1133.

In 1976, Congress passed the NFMA, which requires the Forest Service to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). The Act imposes requirements on NFMA's land and resource management plans, including the requirement that any plan for the NFS must "provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the [MUSYA]." Id. § 1604(e)(1).

Finally, any time the Forest Service exercises its authority under any of these statutes, it is required to comply with NEPA, which mandates that federal agencies must "carefully consider[ ] detailed information concerning significant environmental impacts" of their proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Under NEPA, a federal agency must prepare an Environmental Impact Statement ("EIS") whenever a proposed government action qualifies as a "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). And that EIS must "state how alternatives considered in it and decisions based on it will or will not achieve the requirements of [NEPA] and other environmental laws and policies," 40 C.F.R. § 1502.2(d), discuss "[p]ossible conflicts between the proposed action and the objectives of Federal ... land use plans, policies and controls for the area concerned," id. § 1502.16(c), and "present the environmental impacts of the proposal and the alternatives in comparative form," id. § 1502.14. Thus, any time the Forest Service takes action to manage NFS lands and designate those lands for multiple uses, it must do so in compliance with NEPA.

B. History of the Rule

The origins of the Roadless Rule date back over four decades, when in 1972 the Forest Service embarked on a Roadless Area Review and Evaluation project ("RARE I") to identify roadless areas on NFS lands and determine their suitability for designation as wilderness, pursuant to its authority under the Wilderness Act. 16 U.S.C. § 1132(b) ; see 66 Fed. Reg. 35,918, 35,919 (July 10, 2001) (to be codified at 36 C.F.R. pts. 219, 294) (describing RARE I efforts). As part of this effort, the Forest Service inventoried approximately 56 million acres that it deemed suitable for designation as wilderness areas. See Wyoming v. U.S. Dep't of Agric. , 277 F.Supp.2d 1197, 1205 (D. Wyo. 2003) (discussing RARE I inventory of NFS roadless areas), vacated and remanded , 414 F.3d 1207 (10th Cir. 2005). After the RARE I inventory was successfully challenged under NEPA, however, it was abandoned. See Wyo. Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973) (enjoining development pursuant to RARE I until the Forest Service completed an EIS), overruled by Vill. of Los Ranchos de Albuquerque v. Marsh , 956 F.2d 970 (10th Cir. 1992).

Four years later, the Forest Service began a more extensive Roadless Area Review and Evaluation project ("RARE II"), which also...