Southeast Alaska Conservation Council et al v. United States Forest Service et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SOUTHEAST ALASKA
CONSERVATION COUNCIL, et al.,
Plaintiffs,
v.
UNITED STATES FOREST
SERVICE, et al.,
Defendants.
Case No. 1:19-cv-00006-SLG
DECISION AND ORDER
This is an action in which Plaintiffs Southeast Alaska Conservation Council,
Alaska 	Rainforest 	Defenders, 	Center 	for 	Biological 	Diversity, 	Sierra 	Club,
Defenders of Wildlife, Alaska Wilderness League, National Audubon Society, and
Natural Resources Defense Council seek the invalidation of portions of the 2018
Environmental Impact Statement and 2019 Record of Decision for the Forest
Service’s Prince of Wales Landscape Level Analysis Project for the Tongass
National Forest. 	Briefing on the merits concluded on August 23, 2019. 1 	Oral
argument was held on February 7, 2020.2
1 Pursuant to the briefing schedule for administrative agency appeals, see L. R. Civ. P. 16.3(c),
Plaintiffs’ Opening Brief is at Docket 10, Defendants’ Brief in Opposition is at Docket 12, and
Plaintiffs’ Reply Brief is at Docket 19. Plaintiffs subsequently filed a Notice of Errata and
Corrected Opening Brief at Docket 22.
2 Docket 37.
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BACKGROUND
The factual background for this case was set out at some length in the
Court’s prior order granting Plaintiffs’ motion for a preliminary injunction.3 	It is
repeated here to a certain extent with some additions.
The Tongass National Forest (“Tongass”) is a 16.7 million-acre forest in
Southeast Alaska.4 	The nation’s largest national forest, 5 the Tongass has seen
timber harvesting of varying intensity over the past 100 years.6 	In the 1950s, the
Forest Service awarded several 50-year timber sale contracts in the forest to
“provide a sound economic base in Alaska through establishment of a permanent
year-round pulp industry.”7 But logging in the Tongass began to slow in the 1980s
and 1990s, when several of these long-term contracts were terminated due to
market fluctuation, litigation, and other factors.8
Prince of Wales Island, a large island in the Alexander Archipelago, lies
within the Tongass.9 	Two large pulp mills once operated on the island, where
industrial scale logging occurred in the second half of the 20th century, but both
3 Docket 27 at 2–7
4 Administrative Record (“AR”) 833_0404 at 063052, 063054.
5 AR 833_0404 at 063407.
6 AR 833_2077 at 069553–55.
7 AR 833_2077 at 069553.
8 AR 833_2077 at 069553–55.
9 AR 833_0404 at 063054.
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mills closed in the 1990s.10 There are 12 communities on the island with a total of
approximately 4,300 residents, many of whom are Alaska Native.11 	Tourism and
sport and commercial fishing are important to the local economy,12 and many
residents rely to some degree on subsistence hunting, fishing, and gathering.13
Pursuant 	to 	the 	National 	Forest 	Management 	Act 	(“NFMA”) 	and 	its
implementing regulations, the Forest Service has developed land and resource
management plans, also called forest plans, to govern its management of the
Tongass.14 Forest plans “operate like zoning ordinances, defining broadly the uses
allowed in various forest regions, setting goals and limits on various uses . . . , but
do not directly compel specific actions, such as cutting of trees in a particular area
or construction of a specific road.”15 Any activity occurring within a national forest
must comply with the governing forest plan,16 which the Forest Service is required
to revise at least every 15 years.17 	The current forest plan for the Tongass was
issued in 2016, following the completion of an environmental impact statement
10 AR 833_2167 at 01750.
11 AR 833_2167 at 01753; see also AR 833_2167 at 01751, tbl. 70 (showing population
change).
12 AR 833_2167 at 001750
13 See AR 833_2167 at 001753–57 (describing different communities on the island).
14 See 16 U.S.C. § 1604.
15 Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 966 (9th Cir. 2003).
16 16 U.S.C. § 1604(i).
17 36 C.F.R. § 219.7(a).
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(“EIS”).18 The Forest Plan provides that “[t]imber harvest unit cards will document
resource concerns and protection measures,” and requires that these “unit cards,
including a map with relevant resource features, . . . be provided electronically
when Draft or Final NEPA documents and decisions are published.”19
In late 2016, the Forest Service initiated environmental planning for a
proposed project within the Tongass: the Prince of Wales Landscape Level
Analysis Project (“Project”). 20 	The agency describes the Project as “a large
landscape-scale NEPA analysis that will result in a decision whether or not to
authorize integrated resource management activities on Prince of Wales Island
over the next 15 years.”21 	The Forest Service released a final EIS for the Project
on October 19, 201822 and issued a Record of Decision (“ROD”) selecting the
preferred alternative from the EIS on March 16, 2019.23
The Project encompasses all of the land within the national forest system on
Prince of Wales Island, consisting of roughly 1.8 million acres.24 It authorizes four
18 AR 833_0404 at 063039–063554 (2016 Tongass Forest Plan); AR 833_2079 at 071034–
072626 (EIS for Tongass Forest Plan).
19 AR 833_0404 at 063265.
20 AR 833_2167 at 001468.
21 AR 833_2167 at 001459.
22 AR 833_2167 at 001437–001863 (Final EIS).
23 AR 833_2427 at 000776–001118; see also 42 U.S.C. § 4332(2)(C) (requiring agencies to
prepare a “detailed statement” for actions with significant environmental impacts).
24 AR 833_2167 at 001460–61; see also AR 833_2427 at 000781 (map showing distribution of
national forest system land on Prince of Wales Island).
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categories of activities within this area: vegetation management, including timber
harvesting; 	watershed 	improvement 	and 	restoration; 	sustainable 	recreation
management; and “associated actions.” 25 The EIS for the Project does not specify
when and where individual activities will occur within the Project Area. Rather, the
Project is designed to be a flexible planning framework intended to allow the Forest
Service to tailor resource management to changing conditions on the ground over
the course of the Project’s 15-year term.
The Forest Service appended to the EIS what it terms an Activity Card for
each of the 46 activities included in the four activity categories.26 	“The Activity
Cards describe each potential activity and the related resource considerations,”
and include “[p]roject-specific design criteria and mitigation measures.”27 	The
Activity Cards were designed using “on-the-ground inventories, computer (GIS)
data, and aerial photographs to assess project area conditions and resource-
specific concerns.”28 	The Activity Cards describe and govern activities at the
project level, but they do not identify the specific geographic areas within the
Project Area where each activity will occur.29 	Unlike prior sales, the Project EIS
25 AR 833_2167 at 001443.
26 AR 833_2427 at 000848–001030.
27 AR 833_2167 at 001492; see, e.g., AR 833_2427 at 000848–52 (Activity Card 01).
28 AR 833_2167 at 001492.
29 See, e.g., AR 833_2427 at 000848 (Activity Card 01 explaining that “rotational harvest of
young growth using even-aged management” may occur “within the suitable land base based
on legal and technical factors” and “within potential harvest units as shown in the [LSTA]”); AR
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was not accompanied by timber harvest unit cards with maps detailing specific
harvest configurations.30
In preparing the Project EIS, the Forest Service also developed a Logging
System Transportation Analysis (“LSTA”) to “identif[y] potential stands for timber
harvest and the associated transportation network that would be needed.”31 	The
LSTA “was developed for National Forest System lands within the project area
layer using information from the Forest GIS library, aerial photos, and the Forest
Service Activity Tracking System database.”32 The LSTA identified 125,529 acres
of potential timber harvest in the Project Area: 48,140 old-growth acres and 77,389
young-growth acres.33 	The LSTA also identified 643 miles of new roads, 505 of
them temporary and 138 permanent.34 	The Forest Service represented this
833_2167 at 001459 (“The Activity Cards are used to identify and analyze a suite of possible
activities that could be implemented in the project area. With this approach, activities can vary
in magnitude and intensity to respond to resource conditions.”).
30 Cf. AR 833_2084 at 061279–80 (card for timber harvest unit 101 in 2007 Kuiu Timber Sale
EIS).
31 AR 833_2167 at 001561.
32 AR 833_2167 at 001561; see also AR 833_2167 at 1561–71 (describing Forest Service’s
methodology and integration of LSTA into Project EIS); AR 833_1369 at 074744 (providing path
for GIS data .zip file for the draft EIS); AR 833_2115 at 074758 (providing path for GIS data .zip
file for the final EIS); AR 833_2403 at 074762–074854 (Jan. 1, 2015 spreadsheet documenting
raw GIS numbers for entire Tongass National Forest).
33 AR 833_2167 at 001481. The Forest Service further subdivided the Project Area into 18
Timber Analysis Areas (“TAA”) “[t]o allow for more site-specific analysis.” Id. at 001562; see
also id. at 001563 (map showing distribution of TAAs); id. at 001569–70 (tables showing
distribution of old- and young-growth acreage across TAAs).
34 AR 833_2167 at 001481.
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information in a Commercial Vegetation Management map,35 which it appended to
the ROD, and to which it provided a link in the EIS.36
The Project EIS addresses four alternatives in detail, including a no-action
alternative. 37 	Each activity under each alternative must be consistent with the
applicable Activity Card and certain alternative-specific features, and each activity
must also occur within the areas identified for that activity in the LSTA.38 	Each
action alternative establishes a maximum potential amount of timber harvest and
road construction.39 	Focusing on timber harvest, Alternative 2, the preferred
alternative, allows a maximum of 23,269 acres of old-growth harvest and 19,366
acres of young-growth harvest, or roughly 34 percent of the total potential acreage
in the LSTA. 40 	However, the EIS does not identify where the harvest authorized
35 833_2178. This map is attached as an appendix to this decision. See Docket 40-1.
36 AR 833_2167 at 001480.
37 AR 833_2167 at 001479–80.
38 See AR 833_2167 at 001480 (describing role of LSTA and Activity Cards in comparison of
alternatives); id. at 001485–92 (describing features specific to the action alternatives).
39 AR 833_2167 at 001480 (“The total acreage and maximum miles of road construction under
any one alternative is expected to change based on the logging systems used and where
harvest occurs on the landscape, but would not exceed the amount identified within that
alternative.”).
40 AR 833_2167 at 001481. Alternative 3 allows a maximum of 13,014 acres of old-growth and
36,670 acres of young-growth harvest, or roughly 40 percent of the total potential acreage in the
LSTA; and Alternative 5 allows a maximum of 6,365 acres of old-growth and 36,670 acres of
young-growth harvest, or roughly 34 percent of the total potential acreage in the LSTA. Id.
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by each alternative would occur within the potential acreage identified in the
LSTA.41
In order to capture the “maximum effects” of the Project, the Project EIS
makes several assumptions in addressing each alternative.42 	First, in analyzing
each alternative, the Forest Service indicates that it assumed that all acres of
potential harvest in the LSTA would be harvested and all roads proposed by the
alternative would be built.43 	Second, the Forest Service assumed that all acres
would be harvested using clear-cut methods.44 Third, the Forest Service assumed
that each Wildlife Analysis Area—a land division used by the Alaska Department
of Fish and Game—would be harvested to the maximum acreage available.45
As noted above, the alternatives do not provide the specific locations or
configurations of harvest or roadbuilding within the LSTA. Instead, the Project EIS
41 Instead, each alternative considers the Project Area as a whole and “describe[s] the
conditions being targeted for treatments and what conditions cannot be exceeded in an area, or
place[s] limits on the intensity of specific activities.” AR 833_2167 at 001459.
42 AR 833_2167 at 001639.
43 See, e.g., AR 833_2167 at 001629 (“[A]ssumptions include that all harvest stands from the
LSTA would be harvested . . . .”); AR 833_2167 at 001789–90 (discussing road construction by
alternative); see also Docket 12 at 31 (describing analytical approach). It is unclear from the
record whether the Forest Service assumed that the maximum potential harvest in the LSTA
would be harvested or the maximum acreage under each alternative would be harvested; it
appears that the agency made different assumptions about harvest intensity depending on the
impact under consideration. See Docket 39 at 13:23–16:3 (Tr. of Feb. 7, 2020 Oral Arg.)
(discussing Forest Service’s methodology).
44 AR 833_2167 at 001450.
45 See AR 833_2167 at 001500. There are 32 Wildlife Analysis Areas in the Project Area. Id. at
001514.
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provides that “site-specific locations and methods” for activities such as timber
harvest “will be determined during implementation” over the 15-year lifespan of the
Project.46 	It explains that siting decisions and the parameters of actual timber
sales will be determined pursuant to an Implementation Plan, in a way that is
consistent with the alternative selected by the ROD and the Activity Cards
developed for the EIS. 47 	However, the EIS makes clear that these subsequent,
site-specific decisions will not be subject to additional NEPA review. 48 The Forest
Service terms this approach “condition-based analysis.” 49
The Implementation Plan published with the ROD sets out a nine-step
process for making site-specific determinations. 50 This process includes checking
the action against the relevant Activity Card, the final EIS, and the ROD, as well
as engaging in “workshops and other public involvement techniques.”51 It is during
46 AR 833_2167 at 001459.
47 AR 833_2167 at 001459; see also 833_2169 at 002076–002126 (Implementation Plan
attached to Project EIS).
48 See AR 833_2169 at 002078. At oral argument, the Forest Service maintained that the
Implementation Plan could require supplemental NEPA analysis if new information arose
indicating that an “activity is no longer going to have an effect that was disclosed or analyzed” in
the Project EIS. Docket 39 at 21:18–25. The Court has been unable to locate a specific
provision in the Implementation Plan that mandates supplemental review, but the plan does
require the Forest Service to “verify that the effects of the proposed activity [are] within the
effects analyzed for the Selected Alternative” in the EIS. AR 833_2427 at 001039.
49 AR 833_2167 at 001443; see also AR 833_2427 at 000802 (“The POWLLA FEIS uses a
condition-based approach where specific harvest units and roads will be determined during
implementation through a collaborative public process and interdisciplinary review.”).
50 See AR 833_2427 at 001037 (graphically describing Implementation Plan).
51 AR 833_2427 at 001037. The ROD explains that a proposed activity “will take several
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this process, also, that site-specific unit cards will be developed that describe
particular harvest configurations.52 	The ROD explains that the Implementation
Plan “is integral to the analysis of effects in the [Project EIS] and the Selected
Alternative in the [ROD],” and was “developed . . . to provide a linkage from the
[Project EIS] to the project-specific work without the need for additional NEPA
analysis.”53 	That said, the ROD describes the Implementation Plan as a “living
document” that “may need to be adjusted.” 54
The Forest Service began implementing the Project shortly after issuing the
ROD. 	It held a public workshop on April 6, 201955 and published an “Out-Year
Plan” for fiscal year 2019 that included a proposed timber sale of 1,156.34 acres,
known as the Twin Mountain Timber Sale.56 	The Forest Service also published
months to a year to go through all steps of the implementation process.” Id.
52 AR 833_2427 at 000826.
53 AR 833_2427 at 001034. The ROD expanded on the relationship between the Activity Cards
and the Implementation Plan, stating that the “Activity Cards provide activity-specific design
criteria, best management practices, and mitigation measures and the implementation plan
includes site conditions, triggers, or other requirements for each type of activity to inform future
data needs and field visits to develop treatment scenarios that are consistent with the NEPA
analysis.” Id.
54 AR 833_2427 at 001034. The ROD explains that “[a]s activities are designed, the process will
likely be smoother and new technology or expertise may be used.” Id. At oral argument, the
Forest Service maintained that the Implementation Plan was “not necessary for NEPA
compliance.” Docket 39 at 18:18–19; cf. Docket 12 at 19 (“Implementation is an integral part of
the Project’s design.”).
55 See, U.S. Forest Serv., Prince of Wales Landscape Level Analysis Project, Dear Planning and
Implementation Participant Letter,
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd622020.pdf (last visited March 5,
2020).
56 See, U.S. Forest Serv., Prince of Wales Landscape Level Analysis Project, Out-Year Plan,
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draft unit cards for the sale, which identify the specific locations and method of
timber harvest in graphical and narrative form. 57
Plaintiffs initiated this case on May 7, 2019.58 	The Complaint is brought
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702–06, and
alleges 	that 	the 	Project 	EIS 	violates 	three 	federal 	laws: 	(1) 	the 	National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332; (2) the Alaska National
Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. § 3120; and (3) the
National Forest Management Act (“NFMA”), 16 U.S.C. § 1604.59 	The Complaint
seeks declaratory judgment, vacatur of the ROD “or portions of it deemed not in
compliance with law,” and “preliminary and permanent injunctive relief as needed
to prevent irreparable harm from implementation of the [Project].”60 Plaintiffs refine
their claim in their merits briefing, requesting vacatur of the “portions of the ROD
authorizing vegetation management and road construction.” 61
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd622075.pdf (last visited March 5,
2020); see also Docket 21-1 at 2-3, ¶ 6 (providing size of sale).
57 See, U.S. Forest Serv., Twin Mountain Sale Draft Unit Cards,
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd641767.pdf (last visited March 5,
2020). Plaintiffs have produced an area map of the proposed timber activities. See Docket 10-2
at 5 (Ex. A).
58 Docket 1.
59 Docket 1 at 15–19, ¶¶ 47, 51, 58.
60 Docket 1 at 19, ¶¶ 1–5. Plaintiffs also seek “the costs of this action, including reasonable
attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.” Id. at 19, ¶ 6.
61 Docket 22-1 at 43–44. In the alternative, Plaintiffs seek a permanent injunction of “the
vegetation management activities and road construction in the ROD.” Id. at 44–47.
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On September 23, 2019, the Court entered a preliminary injunction, which
prohibited the Forest Service from awarding a contract or authorizing ground-
disturbing activities associated with the Twin Mountain Timber Sale during the
pendency of this case.62 	In the preliminary injunction order, the Court found that
Plaintiffs had raised serious questions going to the merits of their NEPA claim.63
The order also informed the parties that the Court intended to issue a final decision
on the merits no later than March 31, 2020.64
JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
which “confer[s] jurisdiction on federal courts to review agency action, regardless
of whether the APA of its own force may serve as a jurisdictional predicate.”65
LEGAL STANDARD
Plaintiffs’ claims arise under the APA.66 Under that statute, a reviewing court
shall not set aside an agency's decision unless it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 67 Agency action is arbitrary
and capricious if it
62 Docket 27 at 25.
63 Docket 27 at 20.
64 Docket 27 at 8.
65 Califano v. Sanders, 430 U.S. 99, 105 (1977).
66 Docket 1 at 15–19, ¶¶ 47, 51, 58.
67 5 U.S.C. § 706(2)(A).
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relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem, offer[s]
an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it c[an]not be ascribed to a
difference in view or the product of agency expertise.68
A court’s review of whether an agency action is arbitrary and capricious should be
“searching and careful,” but “narrow,” as a court may not substitute its judgment
for that of the administrative agency.69 	Courts will generally “uphold agency
decisions so long as the agencies have ‘considered the relevant factors and
articulated a rational connection between the factors found and the choices
made.’”70
“Agency action is ‘not in accordance with the law’ when it is in conflict with
the language of the statute relied upon by the agency.”71 “Whether agency action
is ‘not in accordance with law’ is a question of statutory interpretation, rather than
an assessment of reasonableness in the instant case.”72
68 Prot. Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034 (9th Cir. 2019) (alterations in
original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)).
69 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
70 Prot. Our Cmtys. Found., 939 F.3d at 1034 (quoting City of Sausalito v. O’Neill, 386 F.3d 1186,
1206 (9th Cir. 1206)).
71 City of Cleveland v. Ohio, 508 F.3d 827, 838 (9th Cir. 2007).
72 Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Envtl. Advocates v. U.S.
Envtl. Prot. Agency, 537 F.3d 1006, 1014 (9th Cir. 2008)).
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DISCUSSION
The Court will address Plaintiffs’ NEPA, ANILCA, and NFMA claims in turn.
I. 	National Environmental Policy Act
Pursuant to NEPA, agencies must prepare an EIS before taking an action
“significantly affecting the quality of the human environment.”73 Regulations issued
by the Council on Environmental Quality require an EIS to include discussion of
the direct and indirect effects of the action, as well as “[t]he environmental effects
of alternatives.”74 	After completing an EIS, “the agency must select a course of
action within the range of alternatives analyzed and issue an ROD,” which
“explains why the agency chose a particular alternative, whether all practical
means for avoiding or minimizing environmental harm have been adopted, and, if
not, why not.”75
“An EIS must ‘reasonably set forth sufficient information to enable the
decisionmaker to consider the environmental factors 	and make a reasoned
decision.’”76 	The agency meets this obligation if its EIS “contains a reasonably
73 42 U.S.C. § 4332(2)(C) (requiring a “detailed statement” analyzing “the environmental impact
of the proposed action,” among other things).
74 40 C.F.R. § 1502.16.
75 Protect Our Cmtys. Found., 939 F.3d at 1035 (citing 40 C.F.R. §§ 1505.1, 1505.2).
76 Alaska Ctr. for Env’t v. Armbrister, 131 F.3d 1285, 1289 (9th Cir. 1997) (quoting Or. Envtl.
Council v. Kunzman, 817 F.2d 484, 493 (9th Cir. 1987)); see also City of Tenakee Springs v.
Block, 778 F.2d 1402, 1407 (9th Cir. 1985) (explaining that EIS must be “sufficient ‘to give to
decision makers . . . removed from the initial decision sufficient data from which to draw their
own conclusions.’” (omissions in original) (quoting Coal. for Canyon Preservation v. Bowers, 632
F.2d 774, 782 (9th Cir. 1980))).
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thorough discussion of the significant aspects of the probable environmental
consequences.”77 The NEPA process “serves two fundamental objectives”: “First,
it ‘ensures that the agency, in reaching its decision, will have available, and will
carefully 	consider, 	detailed 	information 	concerning 	significant 	environmental
impacts,” and “second, it requires ‘that the relevant information will be made
available 	to 	the 	larger 	audience 	that 	may 	also 	play 	a 	role 	in 	both 	the
decisionmaking process and the implementation of that decision.’”78
“NEPA requires . . . procedural steps but does not require an agency to
reach any particular result.”79 	Indeed, agencies retain significant discretion over
their “methodology and planning strategy” when engaging in environmental review,
and “NEPA’s ‘requisite “hard look” does not require adherence to a particular
analytic protocol.’”80 	The act “merely prohibits uninformed—rather than unwise—
77 WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 924 (9th Cir. 2015) (quoting
City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)).
78 Id. (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Put
another way:
The requirement of an EIS serves two ends. A properly prepared EIS ensures
that federal agencies have sufficiently detailed information to decide whether to
proceed with an action in light of potential environmental consequences, and it
provides the public with information on the environmental impact of a proposed
action and encourages public participation in the development of that information.
Or. Envtl. Council v. Kunzman, 817 F.2d at 492.
79 Protect Our Cmtys. Found., 939 F.3d at 1035.
80 Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121 (9th Cir. 2010) (quoting
Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir.
1997)).
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agency action.”81 	To determine whether an agency has complied with NEPA’s
requirements, courts apply a rule of reason, which involves “a pragmatic judgment
whether the EIS’s form, content and preparation foster both informed decision-
making and informed public participation.” 82
One method available for agencies engaging in long-term planning is to first
prepare a programmatic EIS that considers the broad, program-level effects of a
coordinated series of actions, and then conduct subsequent site-specific NEPA
analysis for each action as it occurs, tiering back to the programmatic EIS.83
Regarding this approach, the Ninth Circuit has explained that “[t]he detail that
NEPA requires in an EIS depends on the nature and scope of the proposed action,”
and that “[t]he critical inquiry in considering the adequacy of an EIS prepared for a
large scale, multi-step project is not whether the project’s site-specific impact
should be evaluated in detail, but when such detailed evaluation should occur.”84
81 Methow Valley Citizens Council, 490 U.S. at 351.
82 Churchill Cty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v. Block, 690
F.2d 753, 761 (9th Cir. 1982)).
83 See, e.g., W. Watersheds Proj. v. Abbey, 719 F.3d 1035, 1049 (9th Cir. 2013) (noting that
agencies can plan at programmatic or site-specific levels and that “[w]hen an agency develops
an EIS for a programmatic plan . . . , the EIS ‘must provide “sufficient detail to foster informed
decision-making,” but “site-specific impacts need not be fully evaluated until a critical decision
has been made to act on site development”’” (quoting Friends of Yosemite Valley v. Norton, 348
F.3d 789, 800 (9th Cir. 2003))); see also 40 C.F.R. § 1502.20 (NEPA regulation encouraging
tiering to “eliminate repetitive discussions of the same issues and to focus on the actual issues
ripe for decision at each level of environmental review”).
84 California v. Block, 690 F.2d at 761. The Circuit added that “[w]hen a programmatic EIS has
already been prepared, . . . site-specific impacts need not be fully evaluated until a ‘critical
decision’ has been made to act on site development.” Id. (quoting Sierra Club v. Hathaway, 579
F.2d 1162, 1168 (9th Cir. 1978)); see also City of Tenakee Springs v. Block, 778 F.2d 1402, 1407
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The Forest Service chose not to take that approach here. 	Instead of
preparing a programmatic EIS to be followed by site-specific NEPA analyses for
individual timber sales as they occur, the agency compressed its NEPA review for
the entire 15-year Project into a single document. 	The Forest Service maintains
that its “landscape-scale NEPA analysis” enables informed decision-making about
integrated resource management at the programmatic level and contains sufficient
site-specific information and analysis to proceed with individual timber sales over
the 15-year Project period without additional NEPA review.85
The Court will not here decide whether the nature of the Project required the
Forest Service to complete a programmatic EIS to which later planning documents
would tier.86 	Nor do Plaintiffs request such a decision.87 	Instead, the Court will
evaluate the analytical method that the agency employed and determine whether
the Project EIS, a landscape-level long-term planning document, adequately
evaluated the site-specific impacts of as-yet undefined timber sales that could
(9th Cir. 1985) (“Where there are large scale plans for regional development, NEPA requires
both a programmatic and a site-specific EIS.” (citing 40 C.F.R. § 1508.28, 1502.20; Kleppe v.
Sierra Club, 427 U.S. 390, 409–14 (1976))); cf. Prot. Our Cmtys. Found., 939 F.3d at 1039
(explaining that “a site-specific project demands site-specific analysis” and that “[a]gencies
cannot rely on a general discussion in a programmatic EIS or other document to satisfy [their]
NEPA obligations for a site-specific action”).
85 Docket 12 at 24–35; see also AR 833_2167 at 001459 (describing purpose of EIS); AR
833_2169 at 002078 (stating that there is no “need for additional NEPA analysis” under the
Forest Service’s approach).
86 See Churchill Cty., 276 F.3d at 1074–79 (cataloguing cases regarding the necessity of
programmatic EISs).
87 Docket 22-1 at 22–36.
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potentially occur on certain acreage on Prince of Wales Island over the Project’s
term.
Plaintiffs contend that the Project EIS does not provide sufficient site-specific
information or analysis to comply with NEPA.88 	They argue that this case is
governed by the Ninth Circuit’s decision in City of Tenakee Springs v. Block.89 	In
that case, the Circuit reversed a district court’s decision not to enjoin “construction
of an 11-mile road through the Kadashan watershed” in the Tongass.90 	The
plaintiffs had challenged the adequacy of an EIS for a five-year operating plan that
“specified no timber harvesting in the Kadashan Watershed in the years 1981
through 1986,” but did authorize the construction of the road for future harvest
activity.91 	The Circuit ordered the entry of a preliminary injunction, in part due to
its conclusion that the plaintiffs had raised serious questions about the merits of
their NEPA claim.92 	It explained that the challenged EIS did not “g[ive] any
indication of its overall plan for timber harvesting” in the designated area and that
“it [was] impossible to determine where and when harvesting will occur on the
88 Docket 22-1 at 22–36; see also Docket 1 at 16–17, ¶¶ 44–47 (Count I of Compl.). The Court
has already considered this argument in its order granting Plaintiffs’ request for a preliminary
injunction, where it found that Plaintiffs had raised serious questions on the merits on their
NEPA claim. See Docket 27 at 14–20. The Court will necessarily repeat that analysis to a
certain degree here.
89 778 F.2d 1402 (9th Cir. 1985).
90 Id. at 1403.
91 Id. at 1408.
92 Id. at 1407–08.
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750,000 acres of land.”93 The Circuit held that the EIS was inadequate, reasoning
that 	the 	location 	and 	timing 	of 	logging 	would 	affect 	“the 	locating, 	routing,
construction techniques, and other aspects of the road, or even the need for its
construction.”94
In City of Tenakee Springs, the Ninth Circuit separately rejected the trial
court’s 	conclusion 	that 	the 	Forest 	Service 	had 	discretion 	to 	determine 	the
specificity of its environmental review.95 Instead, it held that “[a]lthough the agency
does have discretion to define the scope of its actions, such discretion does not
allow the agency to determine the specificity required by NEPA.”96 	The Circuit
explained that “[w]here there are large-scale plans for regional development,
NEPA requires both a programmatic and a site-specific EIS.”97
Here, Plaintiffs argue that the Project EIS, with its condition-based analysis,
is 	similarly 	deficient, 	and 	that 	the 	Forest 	Service 	impermissibly 	limited 	the
specificity of its environmental review.98 	The Forest Service maintains that it has
93 Id. at 1408.
94 Id. (quoting Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir. 1985), abrogated on other
grounds by Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015)).
95 Id. at 1407.
96 Id. (citing California v. Block, 690 F.2d 753, 765 (9th Cir. 1982)).
97 Id.
98 Docket 22-1 at 23–25.
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complied with NEPA by creating a project-level map that “provide[s] information on
where timber harvest and road construction activities may take place.”99
The Forest Service used the LSTA to identify “potential stands for timber
harvest as well as the transportation network needed to access those stands”
within the roughly 1.8-million-acre Project Area over a 15-year period.100 Through
this process, the agency identified 125,529 acres of timber for potential harvest:
48,140 acres of old growth and 77,389 acres of young growth.101 The Project EIS
links to a Commercial Vegetation Management map, which portrays this potential
acreage 	graphically.102 	However, 	the 	EIS 	expressly 	leaves 	site-specific
determinations about the actual location of timber harvest within this potential
acreage for future determination.103 	For example, Alternative 2—the selected
alternative—allows 23,269 acres of old-growth harvest, but does not specify where
this harvest will be located within the 48,140 acres of old growth identified as
suitable for harvest in the Project Area. 104 	The Activity Cards likewise do not
99 Docket 12 at 26–27, 28–30.
100 AR 833_2167 at 001480.
101 See AR 833_2167 at 001481 tbl. 2. The Forest Service also determined that a maximum of
505 miles of temporary roads and 138 miles of permanent roads would be necessary to access
the potential timber harvest. Id.; see also AR 833_2178 (showing potential locations of
temporary and permanent road construction).
102 AR 833_2167 at 001480; see also AR 833_2178.
103 AR 833_2167 at 1459 (“The site-specific locations and methods [of activities authorized by
the EIS] will be determined during implementation based on defined conditions in the alternative
selected in the [ROD] in conjunction with the Activity Cards . . . and Implementation Plan.”).
104 AR 833_2167 at 001481 tbl. 2. Similarly, the Project EIS does not specify where the 129
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identify with specificity where harvesting will occur, although they do contain
mitigation measures that could constrain future siting decisions.105
The Forest Service maintains that it properly exercised its discretion to
determine the scope of the Project while at the same time providing the specificity
required by NEPA.106 The agency argues that through Project EIS, it “has provided
information on where timber harvest and road construction may take place and is
not ‘attempt[ing] to justify’ any lack of information, or to opt-out of any of NEPA’s
requirements.”107 	However, similar to the EIS found inadequate by the Ninth
Circuit 	in 	City 	of 	Tenakee 	Springs, 	the 	Project 	EIS 	does 	not 	include 	a
determination—or even an estimate—of when and where the harvest activities or
road construction authorized by each alternative will actually occur.108 	Rather, it
reserves actual siting decisions for the future, as individual timber sales are
offered.
miles of temporary roads and 35 miles of permanent roads would be located. See id. The EIS
explains that for each alternative, “[t]he total road miles needed will be determined by the
specific harvest units offered and the needed transportation network.” AR 833_2167 at 001789.
105 See, e.g., AR 833_2168 at 001935–36 (Activity Card for old-growth clearcutting requiring
Forest Service to, among other things, “limit the size of even-age openings to 100 acres with
certain exceptions” and “locate activities outside of required nest/den buffers” where feasible);
but see Docket 12 at 29 (Forest Service asserting that the “Activity Cards are site-specific to the
Project Area in that they reflect analyses by resource specialists who used on-the-ground
inventories, GIS data, and aerial photographs to develop them”).
106 Docket 12 at 26–28 (distinguishing City of Tenakee Springs v. Block, 778 F.2d 1402, 1407
(9th Cir. 1985)).
107 Docket 12 at 26–27 (alteration in original) (quoting Docket 22-1 at 24).
108 See, e.g., AR 833_2167 at 001789 (“The total road miles needed will be determined by the
specific harvest units offered [for sale] and the needed transportation network.”).
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The Forest Service contends that the phrase from City of Tenakee Springs
on which Plaintiffs rely—that it “is impossible to determine where and when
harvesting will occur on the 750,000 acres of land”—was factually inaccurate,
citing the district court’s decision on remand.109 But regardless of that statement’s
factual accuracy, the Circuit’s reasoning is still binding precedent: NEPA requires
that environmental analysis be specific enough to ensure informed decision-
making and meaningful public participation.110 	The Project EIS’s omission of the
actual location of proposed timber harvest and road construction within the Project
Area falls short of that mandate.
The Forest Service maintains that Plaintiffs are demanding more detail than
is required by NEPA. 	The agency relies on Stein v. Barton, which concerned a
challenge to the EIS for a five-year operating plan for an area of the Tongass that
was then being logged pursuant to a long-term contract held by the Ketchikan Pulp
109 Docket 12 at 27; see City of Tenakee Springs v. Courtright, No. J86-024 CIV., 1987 WL
90272, at *3 (D. Alaska June 26, 1987) (“The [Ninth Circuit] opinion also contains puzzling
language suggesting that the EIS did not state where and when harvesting would take place in
the APC contract area. This may be an improperly-drafted allusion to the fact that the final EIS
did not reveal where and when logging would take place along the Kadashan Road . . . .”).
110 City of Tenakee Springs v. Block, 778 F.2d 1402, 1407–08 (9th Cir. 1985); see also Alaska
Ctr. for Env’t v. Armbrister, 131 F.3d 1285, 1289 (9th Cir. 1997) (“An EIS must ‘reasonably set
forth sufficient information to enable the decisionmaker to consider the environmental factors
and make a reasoned decision.’” (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 493 (9th
Cir. 1987))). Also, the Court notes that the district court in City of Tenakee Springs v. Courtright
invalidated an EIS that did not provide sufficient site-specific detail for “information
[to] . . . sufficiently correlat[e] with environmental factors, such as distribution of fish and wildlife
populations, to facilitate public discussion of the [four alternative road and harvest]
configurations.” 1987 WL 90272, at *4.
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Company.111 Among other issues, the plaintiffs in that case argued the “harvesting
plans for each area” were not sufficiently site-specific, “object[ing] that they cannot
determine from the FEIS ‘where, when, and how logging and roading activities will
occur on the 812,477 acres of land.’” 112 	The district court rejected this argument,
concluding that the EIS “contain[ed] comprehensive, detailed quantitative and
qualitative descriptions of the logging and roading plans for each harvest unit.”113
The court noted that “the only details that the FEIS does not disclose are exact
timetables and locations on the ground for planned harvesting activities in each
harvest unit,” but that this was not a fatal omission since “the Forest Service does
not develop these details at the pre-implementation stage.”114
The Forest Service contends that Plaintiffs’ arguments are similar here and
that NEPA does not require disclosure of the exact location of actual timber harvest
in the Project Area.115 	But the EIS that survived review in Stein contained
significantly greater site-specificity than the Project EIS at issue here. In Stein, the
district court described a “nine-volume FEIS [that] employ[ed] a combination of
annotated topographic maps, 	textual, and tabular data to describe the project
111 Docket 12 at 26 (citing 740 F. Supp. 743, 746 (D. Alaska 1990)).
112 Stein, 740 F. Supp. at 749 (citing plaintiffs’ briefing).
113 Id.
114 Id.
115 Docket 12 at 26. Plaintiffs note in their reply that they “do not fault the [Project EIS] for lack
of timetables.” Docket 19 at 13.
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alternatives and their impacts on cognizable values within the affected areas” and
contained “comprehensive, detailed quantitative and qualitative descriptions of the
logging and roading plans for each harvest unit.” 116 	Similarly, in Alliance for the
Wild Rockies v. Weber, another case the Forest Service cites,117 the district court
upheld an environmental analysis for a timber sale that “identif[ied] the project
boundaries down to the township and range level” and contained maps that would
“allow the Plaintiffs to identify where those activities will take place in relation to
bull 	trout 	critical 	habitat,” 	a 	resource 	value 	the 	plaintiffs 	had 	claimed 	was
inadequately addressed.118
The Project EIS at issue here does not approach this level of specificity; it
does not delineate harvest units, let alone identify planned activities within them
and describe their impacts on localized cognizable values. 	Nor does the Project
EIS allow the public to identify where specific harvest activities will occur in relation
to various cognizable values on Prince of Wales Island.119 Far from “unwarranted
116 Stein, 740 F. Supp. at 749.
117 Docket 12 at 25.
118 979 F. Supp. 2d 1118, 1125–28 (D. Mont. 2013). Moreover, the district court in Alliance for
the Wild Rockies held that the Forest Service reasonably concluded that the sale at issue fell
within a categorical exclusion, such that no NEPA analysis was required at all. Id. at 1124–25;
see also 40 C.F.R. § 1508.4 (authorizing agencies to categorically exclude activities from
NEPA’s analysis requirements).
119 As Plaintiffs maintained at oral argument: “The island complex is 130 miles long and 60
miles wide. So if you live in one of the 12 subsistence communities on this island, the timber
sales that have been approved in this project might be right next door to you, or they might be a
hundred miles away.” Docket 39 at 8:24–9:3.
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‘fly-specking,’”120 	Plaintiffs’ 	objections 	identify 	serious 	shortcomings 	in 	the
sufficiency of the Project EIS’s environmental analysis.
Moreover, the district court in Stein rejected the plaintiffs’ site-specificity
claims because they had not asserted or “show[n] why disclosure of more details
regarding site-specific impacts [was] necessary in order to ‘foster both informed
decision-making and informed public participation.’”121 	Here, Plaintiffs maintain
that more detailed information about the specific location of timber harvest under
the 	Project 	is 	necessary 	to 	properly 	assess 	its 	ecological 	and 	subsistence
impacts.122
The Forest Service contends, however, that the EIS satisfies NEPA because
it analyzes the Project’s maximum potential impacts.123 	In its briefing before this
Court, 	the 	agency 	describes 	the 	Project 	EIS 	as 	assuming 	that 	“the
entire . . . Project Area would be harvested by clear-cut methods and that every
120 Stein, 740 F. Supp. at 749.
121 Id. (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987)).
122 See Docket 22-1 at 28–34. For example, Plaintiffs argue:
[W]hile all of [the species occurring within the Project Area] depend to some degree
on old growth, the extent of that dependence varies, and they have different needs
respecting forest structure, elevation, proximity to beaches and streams, proximity
to roads, prey availability, and fragmentation of their habitat. 	For all these
reasons . . . the specific locations proposed for new logging and road construction
matter a great deal for wildlife, for hunters, and for other people who use and enjoy
the forest.
Docket 22-1 at 34.
123 Docket 12 at 30–32.
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mile of road would be constructed up to the maximum number of harvest acres
and miles of road authorized under each alternative.”124 	The Forest Service
maintains that as a result of this worst-case-scenario analysis, “whatever units [it]
ultimately selects within the constraints outlined in the alternatives, Activity Cards,
and Implementation Plan, the Project will produce environmental effects that fall
within those already disclosed and analyzed in the EIS.” 125
It is not entirely clear from the record, but for at least some of the impacts
analyzed, the Project EIS assumes that considerably more timber would be
harvested than is actually authorized under each alternative. 	For example, to
determine the effects of each alternative on wildlife and subsistence, the Project
EIS focused on the 32 Wildlife Analysis Areas (“WAA”)—“land divisions used by
[the Alaska Department of Fish and Game] for wildlife analysis and regulating
wildlife populations”—situated in the Project Area. 126 	In its briefing, the Forest
Service explained that “for each WAA, the Service assumed [timber] harvest would
be concentrated in that WAA and would occur at the maximum level.”127 	At oral
argument, the agency confirmed that this approach could cause the EIS to assume
that more harvest would occur under each alternative than actually allowed by that
124 Docket 12 at 31 (citing AR 833_2167 at 001449, 001634).
125 Docket 12 at 32 (citing WildEarth Guardians v. Conner, 920 F.3d 1245, 1258 (10th Cir.
2019)).
126 AR 833_2167 at 001514.
127 Docket 12 at 37.
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alternative. 128 	And language in the Project EIS itself indicates that this approach
assumed 	that 	all 	potential 	harvest 	stands 	identified 	in 	the 	LSTA 	were 	cut,
regardless of the acreage authorized by the alternative in question.129 The Project
EIS makes these assumptions despite its recognition that “[t]he specific location
and amount of harvest in each WAA would be determined during implementation
and vary by alternative.”130
The Forest Service cites WildEarth Guardians v. Conner to defend its
approach.131 There, the Tenth Circuit upheld an Environmental Assessment (“EA”)
128 Docket 39 at 19:1–18.
129 See, e.g., AR 833_2167 at 001629 (“For purposes of analysis [of impacts to wildlife],
assumptions include that all harvest stands from the LSTA would be harvested and the only
harvest method would be clearcut.”); id. at 001634 (“The effects of the POW LLA Project [on
wildlife] are similar between all alternatives because all alternatives assume that all acres
proposed for timber harvest will be harvested.”).
130 AR 833_2167 at 001639.
131 Docket 12 at 17 n.5, 31, 32 (citing 920 F.3d 1245 (10th Cir. 2019)). The Forest Service also
cites Protect Our Communities Foundation v. Jewell, No. 13CV575, 2014 WL 1364453, at *9
(S.D. Cal. Mar. 25, 2014), aff’d 825 F.3d 571 (9th Cir. 2016), to support its assertion that its
maximum-impacts analysis satisfied NEPA. Docket 12 at 31. However, the narrow holding in
that case is inapplicable to the Project EIS. There, the Bureau of Land Management (“BLM”)
“adopted a cautious and conservative approach to measuring turbine noise” in completing the
EIS for a proposed wind facility. 2014 WL 1364453, at *9. This analysis led BLM to conclude
that the facility would result in adverse noise impacts and caused it to develop a “site-specific
noise mitigation plan.” Id. The district court rejected the plaintiffs’ argument that BLM should
have modelled turbine noise using larger turbines and that it had therefore “underestimate[ed]
overall noise levels,” citing the agency’s scientific expertise. Id.; see also Native Ecosys.
Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (“A court generally must be ‘at its most
deferential’ when reviewing scientific judgments and technical analyses within the agency’s
expertise under NEPA.” (quoting N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d
1067, 1075 (9th Cir. 2011))). This issue was not raised on appeal, but the Ninth Circuit did
address the BLM’s consideration of inaudible noise impacts and similarly deferred to the
agency’s judgment. Prot. Our Cmtys. Found. v. Jewell, 825 F.3d 571, 584 (9th Cir. 2016). The
present case does not concern a discrete “evaluation of complex scientific data” such as the
proper method to model noise impacts from a wind turbine, id.; rather, it presents a broad legal
question about the general structure of the Project EIS. Moreover, as Plaintiffs note, BLM in
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for a tree-thinning project designed to address a beetle infestation in two national
forests.132 	The EA “evaluat[ed] the Project’s effects on lynx in a worst-case
scenario in which all the mapped lynx habitat in the Project area is treated.”133 Due
to the listing of the Canada lynx as a threatened species, the Forest Service had
previously amended the forest plans for the two forests to prohibit the clearcutting
of more than 15% of lynx habitat or precommercial thinning of more than 1% of
lynx habitat in a given analysis area after analyzing the impact of these changes
in an EIS.134 In the subsequent EA for the tree-thinning project, the Forest Service
took “the conservative approach of assuming that all lynx habitat in the Project
area w[ould] be treated.”135 	Using that approach, the Forest Service found that
only 6% of lynx habitat would be subject to clearcutting, and no more than 0.2%
subject to precommercial thinning—well below the percentages prohibited by the
governing forest plans.136 	The Tenth Circuit held that because the project’s
impacts to lynx habitat were below the caps established in the amended forest
Protect our Communities Foundation “was not substituting the worst-case analysis for site-
specific decisions,” but was instead using the analysis to assess the impact produced by a wind
facility in a specific location. Docket 19 at 15.
132 920 F.3d at 1251.
133 Id. at 1258.
134 Id.at 1252–53, 1256. Precommercial thinning is “a process of thinning stands that were
clear-cut 20-30 years earlier, so that growth can be concentrated on the more commercially
valuable trees.” Id. at 1255.
135 Id. at 1255 (emphasis in original).
136 Id. at 1255–56.
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plans, which had been adopted after a full analysis of the lynx-habitat impacts in
the EIS, the Forest Service “could reasonably assess the maximum impact that
the Project could have on the lynx and conclude it was unlikely to adversely affect
them.”137
Although in the instant case the Forest Service applied an analytical
framework similar to the one it used in WildEarth Guardians v. Conner, the
difference between an EA and an EIS renders that case inapplicable. 	An EA is
meant to determine whether a proposed action will have a significant impact on
the environment, such that an EIS is necessary. 138 	In contrast, an EIS must
compare the environmental impacts of different alternatives, not just determine
whether environmental impacts will occur.139 	While an agency’s analysis of a
proposed action’s maximum potential impacts may be appropriate for an EA, the
Forest Service’s analytical framework in this case is not sufficient to meet the
requirements for an EIS.140
137 Id. at 1257.
138 See id. at 1251 (describing purpose of EA).
139 See id.; see also 40 C.F.R. § 1502.16(d) (requiring discussion of “[t]he environmental effects
of alternatives including the proposed action”); 40 C.F.R. § 1502.14(a) (requiring EIS to
“[r]igorously explore and objectively evaluate all reasonable alternatives”).
140 Indeed, the Tenth Circuit explained in WildEarth Guardians v. Conner that it had earlier held
an EIS inadequate that did not base its analysis of impacts to vegetation and wildlife on the
actual location of the project, “reasoning that ‘the location of development greatly influences the
likelihood and extent of habitat preservation’” because “’[d]isturbances on the same total surface
acreage may produce wildly different impacts on plants and wildlife depending on the amount of
contiguous habitat between them.’” 920 F.3d at 1257–58 (quoting Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 706–07 (10th Cir. 2009)); see also Docket 17 at 14 (Plaintiffs arguing that
“[w]here . . . significant environmental impacts demand an EIS for a site-specific project, the
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The Forest Service candidly acknowledges in the EIS that its analytical
framework overestimates the Project’s impacts and is unlikely to reflect the actual
extent and nature of activities under each of the proposed alternatives within the
Project Area.141 	By focusing on the Project’s maximum potential impacts for all
alternatives rather than its actual or foreseeable impacts for each alternative, the
EIS falls short of NEPA’s directive to “contain[] a reasonably thorough discussion
of the significant aspects of the probable environmental consequences” for each
alternative. 142 	This approach, coupled with the lack of site-specific information in
the Project EIS, detracts from a decisionmaker’s or public participant’s ability to
conduct a meaningful comparison of the probable environmental impacts among
the various alternatives. For example, in the introduction to the section discussing
the Project’s impacts to wildlife habitat, the EIS states that “[t]he effects . . . are
similar between all alternatives because all alternatives assume that all acres
agency must disclose with specificity where it intends to undertake the project, what the impacts
will be, and what alternatives are available.”). Yet the Tenth Circuit was careful to note that its
holding in Richardson was not “that an agency’s EA or EIS always must specify the precise
locations within a project area that will be affected.” WildEarth Guardians v. Conner, 920 F.3d at
1258 (emphasis added).
141 See, e.g., AR 833_2167 at 1634 (“The total acres estimated to be needed to meet timber
needs are likely over-estimated and therefore the effects are likely over-estimated as well.”).
The Forest Service’s briefing admits this as well, stating that the Project EIS “analyz[es] the
Project’s maximum potential impacts, . . . even though in reality impacts would be less.” Docket
12 at 31; see also id. at 31 n.10 (noting that “under Alternative 2, about fifty-seven percent of the
old-growth acreage proposed for harvest would be harvested using uneven-aged harvest
prescriptions,” even though the EIS’s analysis assumed that all acres would be clear-cut).
142 WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 924 (9th Cir. 2015)
(emphasis added) (quoting City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)).
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proposed for timber harvest will be harvested. The analysis also assumes that all
acres will be harvested by even-aged harvest methods.”143 Due to these identical
assumptions for each alternative, it appears that at least with respect to wildlife
impacts, the Project EIS only meaningfully analyzed the different mitigation
measures contained in each alternative, not the harvest limits.144 	And where the
Project EIS does differentiate between alternatives, it does so in partly conditional
terms due to its lack of site-specific information. 	For example, when discussing
impacts to high productive old growth habitat, the EIS concludes that Alternative 2
“may 	result 	in 	two 	[Wildlife 	Analysis 	Areas] 	dropping 	below 	50% 	habitat
remaining.”145
The Project EIS identified a total acreage of potential timber harvest, but not
the distribution of the specific acreage authorized by each alternative within these
areas. This omission is meaningful given the duration and scale of the project.146
Despite 	“additional 	parameters 	that 	limit 	the 	ultimate 	selection 	of 	units 	and
143 AR 833_2167 at 001634; see also supra note 43 and accompanying text.
144 See, AR 833_2167 at 001642–43 (differentiating impacts of alternatives to deep snow habitat
purely in terms of mitigation measures).
145 AR 833_2167 at 001500 (emphasis added).
146 For example, Alternative 2 authorizes a maximum 42,635 acres of timber harvest—23,269
acres of old growth and 19,366 acres of young growth—which is roughly 34 percent of the
125,529 acres identified for potential old- and young-growth harvest in the Project Area. AR
833_2167 at 001481.
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activities,”147 such as mitigation measures contained in the Activity Cards,148 the
Project EIS’s structure creates ambiguity about the actual location, concentration,
and timing of timber harvest and road construction on Prince of Wales Island.149
By 	doing 	so, 	the 	Project 	EIS 	fails 	to 	provide 	a 	meaningful 	comparison 	of
alternatives.
By authorizing an integrated resource management plan but deferring siting
decisions to the future with no additional NEPA review,150 the Project EIS violates
NEPA. 	The Forest Service has not yet taken the requisite hard look at the
environmental impact of site-specific timber sales on Prince of Wales over the next
15 years. The Forest Service’s plan for condition-based analysis may very well
streamline management of the Tongass and decrease the amount of falldown
acreage associated with each timber sale;151 however, it does not comply with the
147 Docket 12 at 29.
148 See, e.g., AR 833_2168 at 001935–39 (Activity Card for “Rotational Harvest of Old Growth
Using Even-aged Management”).
149 See Docket 19 at 9 (“Even the maximum level of logging . . . and road-building . . . could be
distributed in countless combinations around the 125,529 acres allowed in the Project.”)
150 The ROD states that the Implementation Plan is to “provide a linkage from the [Project EIS]
to the project-specific work without the need for additional NEPA analysis.” AR 833_2427 at
001034. As Plaintiffs note, the Forest Service’s “approach might be permissible if the agency
were going to prepare a subsequent EIS” for decisions at the site-specific level. Docket 22-1 at
26; see also City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir. 1985) (“Where
there are large-scale plans for regional development, NEPA requires both a programmatic and a
site-specific EIS.” (citing 40 C.F.R. §§ 1508.28, 1502.20)); California v. Block, 690 F.2d 753, 761
(9th Cir. 1982) (“The detail that NEPA requires in an EIS depends upon the nature and scope of
the proposed action. . . . The critical inquiry in considering the adequacy of an EIS prepared for
a large scale, multi-step project is not whether the project’s site-specific impact should be
evaluated in detail, but when such detailed evaluation should occur.”).
151 Docket 12 at 10 (describing condition-based management as “superior method to analyze
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procedural requirements of NEPA, which are binding on the agency.152 	“NEPA
favors ‘coherent and comprehensive up-front environmental analysis to ensure . . .
that the agency will not act on incomplete information, only to regret its decision
after it is too late to correct.”153 Plaintiffs have therefore established Count I of the
Complaint; the Project EIS violates NEPA and is therefore not in accordance with
law.154
II. 	Alaska National Interest Lands Conservation Act
Congress enacted ANILCA to “cause the least adverse impact possible on
rural residents who depend upon subsistence uses of the resources of [the public
lands 	in 	Alaska].”155 	To 	achieve 	this 	purpose, 	§ 	810 	of 	ANILCA 	imposes
the environmental effects of multi-year, landscape level analyses such as this one”). At oral
argument, the Forest Service explained that one motivation behind the decision to adopt
condition-based analysis was to minimize downward reductions of harvest volume as sales are
finalized, known as “falldown.” Docket 39 at 19:20–20:8; see also AR 833_2167 at 001561
(describing falldown). The Court notes that while the EIS does discuss falldown, neither it nor
the ROD identifies falldown as a motivating factor in the Project’s design.
152 See Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1035 (9th Cir. 2019) (“NEPA
requires . . . procedural steps but does not require an agency to reach any particular result.”). In
its briefing, the Forest Service maintained that “resource concerns and mitigations measures
[would be] further refined” through the Implementation Plan “after treatment units are identified.”
Docket 12 at 29–30. But the Implementation Plan is not a valid substitute for NEPA. For
example, NEPA provides for a minimum 45-day comment period on draft EISs, 40 C.F.R. §
1506.10(c), while the Implementation Plan allows for only a 30-day comment period. AR
833_2427 at 001035. The ROD notes that the Implementation Plan may be altered by the
Forest Service, see AR 833_2427 at 000811, and the agency maintained at oral argument that
the Project would be NEPA-compliant even if no Implementation Plan existed. Docket 39 at
18:6–13.
153 Protect Our Cmtys. Found., 939 F.3d at 1035 (alterations in original) (quoting Churchill Cty. v.
Norton, 276 F.3d 1060, 1072–73 (9th Cir. 2001)).
154 See 5 U.S.C. § 706(2)(A).
155 16 U.S.C. § 3112(1); see also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987)
(“The purpose of ANILCA § 810 is to protect Alaskan subsistence resources from unnecessary
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procedural requirements upon federal decisionmakers; pursuant to its terms, an
agency proposing an action resulting in the “use, occupancy, or disposition of
public lands” must evaluate that action’s effects on “subsistence uses and needs,”
the availability of other lands for the same purpose, and “other alternatives” that
would reduce the impacts to subsistence uses.156 Upon determining that the action
“would significantly restrict subsistence uses,” the agency must provide notice to
the affected communities, hold public hearings, and make three findings:
[T]hat 	(A) 	such 	a 	significant 	restriction 	of 	subsistence 	uses 	is
necessary, consistent with sound management principles for the
utilization of the public lands, (B) the proposed activity will involve the
minimal amount of public lands necessary to accomplish the purposes
of such use, occupancy, or other disposition, and (C) reasonable
steps will be taken to minimize adverse impacts upon subsistence
uses and resources resulting from such actions.157
When the proposed action requires completion of an EIS, the agency “shall provide
the notice and hearing and include the findings required by [ANILCA § 810(a)] as
part of such [EIS].” 158
The Project EIS contains a section discussing the impacts to subsistence
activities.159 This section recognizes that “[s]ubsistence hunting, fishing, trapping,
and gathering activities are a major focus of life for many residents on Prince of
destruction.”).
156 16 U.S.C. § 3120(a).
157 16 U.S.C. § 3120(a)(1)–(3).
158 16 U.S.C. § 3120(b).
159 AR 833_2167 at 001540–1559.
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Wales Island.”160 	The EIS notes that commenters were particularly concerned
about the Project’s impacts to Sitka black-tailed deer, which the EIS “considered
an ‘indicator’ for potential subsistence resource effects concerning the resources
associated 	with 	old-growth 	forest 	habitat.”161 	Using 	the 	maximum-impact
methodology described in the previous section of this order,162 the Forest Service
determined that the Project presents “a significant possibility of a significant
restriction for the use of deer,” largely “due to the loss of deep snow habitat in
some WAAs [Wildlife Analysis Areas].”163 The Project EIS identified “five WAAs of
concern . . . [:] 	1214, 	1315, 	1317, 	1318, 	and 	1420,” 	which 	are 	“near 	the
communities of Thorne Bay, Coffman Cove, Hollis and Klawock.” 164
In light of this determination, the Forest Service held seven subsistence
hearings in Prince of Wales Island communities after issuing the draft EIS.165 	In
160 AR 833_2167 at 001540.
161 AR 833_2167 at 001540.
162 See supra 26–27; see also Docket 12 at 37 (“In other words, for each WAA [Wildlife Analysis
Area], the Service assumed [timber] harvest would be concentrated in that WAA and would
occur at the maximum level.”)
163 AR 833_2167 at 1557. Regarding other subsistence resources, the Forest Service
concluded that “[n]one of the project alternatives would present ‘a significant possibility of a
significant restriction’ of subsistence uses for most subsistence resources (food plants, personal
use timber, upland game birds and waterfowl, furbearers, and marine mammals).” AR
833_2167 001545; see also AR 833_2167 at 001548 (finding same for aquatic resources).
164 AR 833_2167 at 001550. The Project EIS noted that “[t]he Forest Plan estimates that with
full implementation of the Forest Plan, WAAs 1420 and 1421 in the project area may retain 50
percent or less of the estimated deer habitat capability.” AR 833_2167 at 001554; see also AR
833_2167 at 1500–01 (showing impacts of various alternatives to different habitats).
165 AR 833_2167 at 001470. The Forest Service held subsistence hearings in Whale Pass,
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response to concerns raised at two of these hearings, the agency decided “not to
authorize commercial harvest of old-growth stands in the area ‘North of the 20
Road, and in VCU 5280.” 166 In the final Project EIS, the Forest Service made the
three findings required by ANILCA § 810(a)(3).167
Plaintiffs contend that “[t]he lack of site-specific information in the [Project
EIS] violates not only NEPA, but also section 810 of ANILCA.”168 	They maintain
that “analysis of impacts on subsistence uses under section 810 should be at least
as site-specific as that for the environmental impacts under NEPA.”169 	As such,
Plaintiffs also argue that the Forest Service’s § 810(a)(3) findings were premature
since they were made “before deciding the specific location or extent of logging or
road construction over the next 15 years.” 170
The Forest Service argues that Plaintiffs have simply repackaged their
NEPA 	claim.171 	However, 	due 	to 	the 	similarities 	between 	the 	procedural
requirements of NEPA and ANILCA, courts have evaluated the two statutes under
Klawock (twice), Hydaburg, Point Baker, Kasaan, and Naukati. Id.
166 AR 833_2427 at 000787. The “area North of 20 Road” is on the northern tip of Prince of
Wales Island, to the East of the communities of Point Baker and Port Protection. See AR
833_2178.
167 AR 833_2167 at 001558–59.
168 Docket 22-1 at 36; see also Docket 1 at 17–18, ¶¶ 48–51 (Count II in Complaint).
169 Docket 22-1 at 37.
170 Docket 22-1 at 39.
171 Docket 12 at 35.
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similar standards. 172 	Although there is little case law on the issue, at least one
court has looked to NEPA decisions to determine the site-specificity required by
ANILCA § 810. 	In City of Tenakee Springs v. Clough, the district court rejected
the plaintiffs’ claims that supplemental EISs were “deficient because they discuss
site-specific impacts of proposed harvesting on subsistence resources but do not
correlate those impacts with the specific subsistence needs of each affected
community.”173 	The 	court 	cited 	Stein 	v. 	Barton’s 	description 	of 	NEPA 	site-
specificity as the relevant standard, stating that “[p]roposed activities must be
sufficiently correlated with environmental factors in each affected area to facilitate
public discussion of the project.”174 	But the court found that no additional site-
specificity was necessary to comply with ANILCA because the “EIS’s identify site-
specific impacts on subsistence resources, incorporate maps identifying which
sites are important for subsistence use generally, and catalog how and to what
extent each community utilizes subsistence resources, including data on per capita
consumption.”175
172 See, e.g., Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 731 (9th
Cir. 1995) (evaluating adequacy of EIS’s consideration of alternatives under NEPA and ANILCA
together); City of Tenakee Springs v. Clough, 915 F.2d 1308, 1310–12 (9th Cir. 1990) (same);
Sierra Club v. Penfold, 664 F. Supp. 1299, 1307 (D. Alaska 1987) (“NEPA case law is helpful in
interpreting § 810.”).
173 750 F. Supp. 1406, 1422 (D. Alaska 1990), rev’d on other grounds, 915 F.2d 1308 (9th Cir.
1990).
174 Id. at 1422 (quoting Stein v. Barton, 740 F. Supp. 743, 749 (D. Alaska 1990)).
175 Id.
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The Court has already determined that the Project EIS does not contain the
level of site-specificity required by NEPA. 	For the same reasons, the Court finds
that despite the public hearings it held and the findings it made, the Forest Service
has failed to comply with ANILCA § 810. The purpose of that section is to promote
informed decision-making, such that the impacts of an action to subsistence
activities 	are 	considered; 	those 	actions 	“which 	would 	significantly 	restrict
subsistence uses can only be undertaken if they are necessary and if the adverse
effects are minimized.”176 This purpose can only be fulfilled if specific information
about the actual, not the potential, proposed action is available. This is made clear
by the statute’s command to consider site-specific aspects of a proposed action,
such as its effect on local “subsistence uses and needs.”177
The Forest Service contends that it has fulfilled its duty under ANILCA by
“identifying where Project activities would occur, evaluating the maximum impacts
of the Project on subsistence uses, and by taking actions to benefit subsistence
uses and reduce the adverse effects of the project on . . . those uses.”178 However,
as discussed above, the Commercial Vegetation Management map only identifies
the potential, and not the actual, locations of timber harvest and road building
within the 1.8-million acre Project Area. 	The Forest Service’s evaluation of the
176 Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544 (1987).
177 16 U.S.C. § 3120(a); see also supra note 119.
178 Docket 12 at 35–36.
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Project’s maximum impacts does not evaluate the Project’s actual expected
impacts.179 	By not developing actual site-specific information, the Forest Service
limited its ability to make informed decisions regarding impacts to subsistence uses
and presented local communities with vague, hypothetical, and over-inclusive
representations of the Project’s effects over a 15-year period.180
The Implementation Plan does envision additional information-gathering
and public participation before site-specific decisions are made.181 	However, as
Plaintiffs note, this process does not require the Forest Service to make additional
findings under ANILCA § 810(a)(3) or provide the public with a right of appeal.182
Moreover, the Implementation Plan is subject to change by the Forest Service, and
there is no certainty that its public participation provisions will last for the Project’s
15-year duration.183 	Without either an up-front discussion of actual site-specific
impacts or future ANILCA analysis when siting decisions are made, the Project
EIS and ROD are inconsistent with ANILCA § 810. 	Plaintiffs have therefore
179 See supra 30–32. 	As noted previously, see supra note 146, Alternative 2 authorized 42,635
acres of timber harvest, or 34 percent of the 125,529 acres identified for potential harvest by the
LSTA, but gave no indication of where that harvest would occur within the total acreage. AR
833_2167 at 001481.
180 As Plaintiffs note, “subsistence activities are inherently location-specific,” and “[p]eople care
about the places they use for subsistence and how the action will affect those places and
nearby habitat.” Docket 19 at 18.
181 See AR 833_2427 at 001037 (describing implementation process).
182 Docket 19 at 19.
183 See AR 833_2427 at 000811 (“The plan is meant to be a ‘living’ document and may need to
be adjusted . . . .”).
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established Count II of the Complaint; the Project EIS violates ANILCA and is
therefore not in accordance with law.184
III. 	National Forest Management Act
Pursuant to NFMA, the Forest Service must prepare a land and resource
management plan, also called a “forest plan,” for each forest it manages.185
Projects occurring in a national forest must comply with that forest’s management
plan.186 	Standard and Guideline TIM3.I.C in the 2016 Forest Plan that currently
governs management of the Tongass provides:
Timber harvest unit cards will document resource concerns and
protection measures. 	The unit cards, including a map with relevant
resource features, will be provided electronically when Draft or Final
NEPA documents and decisions are published. 	(Consult Tongass
National Forest Supplement 1909.15-2015-1.)187
Tongass 	National 	Forest 	Supplement 	1909.15-2015-1, 	which 	“[e]stablishe[d]
procedures for producing and distributing unit and road cards associated with
NEPA documents,”188 was rescinded by the Forest Service in October 2018.189
184 See 5 U.S.C. § 706(2)(A).
185 See 16 U.S.C. § 1604(a).
186 16 U.S.C. § 1604(i); see also Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1068 (9th
Cir. 1998) (“[P]ursuant to the NFMA, the Forest Service must demonstrate that a site-specific
project would be consistent with the land resource management plan of the entire forest.”
(quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1377 (9th Cir.
1998))).
187 AR 833_0404 at 63265. Forest plans for the Tongass have included a unit-card requirement
since at least 1997. AR 833_2076 at 068765 (1997 Tongass Forest Plan).
188 AR 833_2526 at 074726.
189 AR 833_2525 at 074720–25.
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The Project EIS does not contain unit cards, and the ROD explains in the
section describing Activity Cards that “[u]nit cards would be developed for any
timber 	sales 	when 	site-specific 	locations 	are 	determined” 	through 	the
Implementation Plan. 190 	Plaintiffs contend that the “Forest Service violated the
forest plan requirement to include unit cards with the draft or final EISs for the
Prince of Wales Project.”191
Responding to comments arguing that the Project EIS had failed to comply
with the Tongass Forest Plan, the Forest Service explained that it understood the
rescission 	of 	Tongass 	National 	Forest 	Supplement 	1909.15-2015-1 	to 	have
rendered “the timing for when electronic unit cards are provided . . . no longer
applicable.” 192 	The 	Forest 	Service 	added 	that 	the 	Implementation 	Plan’s
“opportunity for public comment on the maps, and unit and road cards meets the
intent of Forest Plan TIM3.I.C.” 193
In 	its 	briefing 	to 	this 	Court, 	the 	Forest 	Service 	advances 	a 	different
argument. 	It now contends that TIM3.I.C is ambiguous regarding “the contents
190 AR 833_2427 at 000826; see also id. at 000802 (“The Implementation Plan identifies that
unit and road-specific cards will be developed when specific harvest units and road locations
are determined as part of the Implementation Plan process.”)
191 Docket 22-1 at 39; see also Docket 1 at 18–20, ¶¶ 52–58 (Count III in Complaint).
192 AR 833_2440 at 000020 (Responses to Comments on Draft ROD); see also AR 833_2427 at
000802 (ROD determining that publishing unit cards during Implementation Plan “is an
alternative way to fully comply with Forest Plan Standard TIM3.I.C, which is no longer applicable
in terms of timing when unit cards are provided”).
193 AR 833_2171 at 002149 (Responses to Comments on Draft EIS).
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and format of unit cards, except that the cards ‘will document resource concerns
and protection measures’ and ‘include[e] [sic] a map with relevant resource
features.’”194 The Forest Service maintains that the Activity Cards and Commercial
Vegetation Management map provided with the Project EIS comply with this
requirement. 195
The Forest Service argues that its interpretation of TIM3.I.C is entitled to
Auer deference, which accords “defer[ence] to agencies’ reasonable readings of
genuinely ambiguous regulations.”196 	But Auer deference is not automatic; the
Supreme Court has explained that “before concluding that a rule is genuinely
ambiguous, a court must exhaust all the ‘traditional tools’ of construction,” meaning
it 	“must 	‘carefully 	consider[]’ 	the 	text, 	structure, 	history, 	and 	purpose 	of 	a
regulation.”197
Addressing first the Forest Service’s position in the administrative record,
the Court finds no ambiguity in TIM3.I.C about when the agency is required to
provide unit cards, notwithstanding the rescission of the supplement cited therein.
The Standard and Guideline clearly states that “[t]he unit cards . . . will be provided
194 Docket 12 at 42 (emphasis and alterations in original) (quoting AR 833_0404 at 063265).
195 Docket 12 at 41–45.
196 Kisor v. Wilkie, ___ U.S. ___, 139 S. Ct. 2400, 2408 (2019) (citing Auer v. Robbins, 519 U.S.
452 (1997)).
197 Id. at 2415 (2019) (second alteration in original) (first quoting Chevron U.S.A. Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984), then quoting Pauley v. BethEnergy Mines,
Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting))).
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electronically 	when 	Draft 	or 	Final 	NEPA 	documents 	and 	decisions 	are
published.”198 	Under the plain language of the Forest Plan, the Forest Service
must 	provide 	unit 	cards 	when 	the 	relevant 	NEPA 	document 	is 	published.
Regardless of the provision’s intent,199 the Forest Service departed from the
unambiguous directive of TIM3.I.C. The agency’s decision to delay the publication
of unit cards until the Implementation Plan, after NEPA review was completed for
the Project, is therefore inconsistent with the Forest Plan.
The Court finds the Forest Service’s position in its briefing to be no more
convincing. While TIM3.I.C does not fully explain what a unit card should contain,
it is clear from the Standard and Guideline’s language that each card must relate
to a discrete geographic area, or “[t]imber harvest unit,” within the Project Area. 200
The Commercial Vegetation Management map does not identify specific timber
harvest 	units,201 	and 	the 	Activity 	Cards 	“document 	resource 	concerns 	and
protection measures at the Project level.”202 	They are not unit cards within the
meaning of TIM3.I.C. 203
198 AR 833_0404 at 63265 (emphasis added).
199 See AR 833_2171 at 002149 (stating that Implementation Plan’s “opportunity for public
comment on the maps, and unit and road cards meets the intent of the Forest Plan TIM3.I.C”).
200 AR 833_0404 at 63265.
201 AR 833_2178.
202 Docket 12 at 44; see also AR 833_2427 at 000826 (describing Activity Cards).
203 Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1069 (9th Cir. 1998) (“However, an
agency’s interpretation does not control, where, as here, it is plainly inconsistent with the
regulation at issue.”). The Forest Service has previously used the term “activity cards”
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Moreover, even if TIM3.I.C were ambiguous, the current interpretation
advanced in the Forest Service’s briefing would not be entitled to Auer deference.
Throughout the administrative record, the Forest Service’s position is consistent:
provision of unit cards after the completion of NEPA review complies with TIM3.I.C
due to the rescission of Tongass National Forest Supplement 1909.15-2015-1. It
is only in its briefing to this Court that the agency asserts that the Activity Cards
and the Commercial Vegetation Management map themselves constituted the unit
cards required by TIM.3.I.C.204 	“[A] court should decline to defer to a merely
‘convenient litigating position’ or ‘post hoc rationalization[n] advanced’ to ‘defend
past agency action against attack.’”205 	And the administrative record itself belies
the Forest Service’s litigation position; in the ROD, the agency differentiated
collectively to refer to cards “used to explain site-specific proposed activities,” including “timber
harvest units and proposed and existing roads.” AR 833_2084 at 061267 (EIS for Kuiu Timber
Sale). Unlike the Activity Cards in this case, the Kuiu Timber Sale unit cards described harvest
activities in specific geographic locations, including both graphical and narrative information for
each harvest unit. See AR 833_2084 at 061279–80 (card for unit 101); see also id. at 061268–
76 (describing activity cards, as defined by that project, and locating individual harvest units and
roads on map of Project Area). Although Forest Supplement 1909.15-2015-1 was still effective
when the Kuiu Timber Sale EIS was prepared, the Court finds a comparison between the timber
harvest unit cards in that case and the Activity Cards used here to be instructive.
204 At oral argument, the Forest Service maintained that the agency had twice asserted in the
administrative record that the Activity Cards and Commercial Vegetation Management map
themselves complied with TIM3.I.C. Docket 39 at 24:24–26:19 (citing AR 833_2427 at 000802
and AR 833_2171 at 002149). Not so. As discussed above, the two pages of the record cited
by the Forest Service concern the timing of unit card publication.
205 Kisor v. Wilkie, ___ U.S. ___, 139 S. Ct. 2400, 2417 (2019) (alteration and emphasis in
original) (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)).
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between Activity Cards and unit cards and explained that the latter would be
provided through the Implementation Plan in an effort to comply with TIM3.I.C.206
Due to their failure to include timber harvest unit cards corresponding to
discrete geographic locations, the Project EIS and ROD are inconsistent with the
2016 Tongass Forest Plan. 	Plaintiffs have therefore established Count III of the
Complaint; by not complying with the applicable forest plan, the Project violated
NFMA and is therefore not in accordance with law.207
206 The ROD lays out the difference between Activity Cards and unit cards, explaining that the
former inform but do not replace the latter:
The POWLLA FEIS uses a condition-based approach where specific harvest units
and roads will be determined during implementation through a collaborative public
process and interdisciplinary review. Activity Cards and maps were included with
the FEIS and Draft ROD and will also be part of this Final ROD. The Activity Cards
were designed to honor the public process developed at the community level
during the POW LLA NEPA process, to be a resource for the public and Forest
Service 	resource 	specialists, 	to 	assist 	in 	alternative 	development, 	and 	to
accompany the EIS to provide clarity for environmental effects analysis and guide
implementation . . . . The Implementation Plan identifies that unit and road -specific
cards will be developed when specific harvest units and road locations are
determined as part of the Implementation Plan process. This Implementation Plan
allows for more collaboration during implementation, and responsiveness to
dynamic on-the-ground conditions, new science information, and public input. This
process provides for publishing unit and road cards online and providing an
opportunity for public review and comment before final line officer decisions on
specific project activities are made. This has been clarified in the Implementation
Plan, ROD Appendix 2, under step 4. I have determined this process is an
alternative way to fully comply with Forest Plan Standard TIM3.1.C, which is no
longer applicable in terms of the timing of when unit cards are provided.
AR 833_2427 at 000802.
207 See 5 U.S.C. § 706(2)(A).
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Nevertheless, 	the 	Forest 	Service 	asserts 	that 	this 	error 	was 	not
prejudicial.208 	“Relief is available under the APA only for ‘prejudicial error.’” 209
Plaintiffs challenging agency action bear the burden of showing prejudice, but this
is not “a particularly onerous requirement.”210 Plaintiffs have met their burden here.
They argue that they “were prejudiced by the lack of unit cards that would have
given them the opportunity to provide meaningful input on logging locations,
impacts, and alternatives.”211 The Ninth Circuit has consistently held that an error
that affects the public’s ability to meaningfully participate in the NEPA review
process is prejudicial.212
The Forest Service contends that Plaintiffs had the opportunity to comment
on the Activity Cards and Commercial Vegetation Management map, which
contain “proposed locations of timber harvest.” 213 	However, as discussed above,
208 Docket 12 at 45–47.
209 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1090–91 (9th Cir. 2014) (quoting 5 U.S.C. §
706).
210 Shinseki v. Sanders, 556 U.S. 396, 410 (2009).
211 Docket 19 at 24; see also supra note 119.
212 See, e.g., Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 571 (9th Cir. 2016) (holding error to
be prejudicial where “the public was not able to tailor its comments to address concerns
regarding the potential winter presence of sage grouse” because “baseline conditions [were]
inadequately established”); Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1068 (9th Cir.
1998); cf. Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1091–92 (9th Cir. 2011)
(reaffirming Circuit’s “consistent case law holding that ‘harmless error’ requires a determination
that the error ‘had no bearing on the procedure used or the substance of [the] decision
reached’” (alteration in original) (quoting Paulsen v. Daniels, 413 F.3d 999, 1006 (9th Cir.
2005))).
213 Docket 12 at 46.
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these documents do not contain the level of site-specificity required by TIM3.I.C—
or by NEPA for that matter—and did not allow Plaintiffs to meaningfully comment
on the specific harvest activities that would have been identified on timber harvest
unit cards had they been published with the draft EIS.214 The Court therefore finds
that the NFMA violation was prejudicial and that relief is warranted under the APA.
IV. 	Proper Remedy
Having 	determined 	that 	Plaintiffs 	prevail 	on 	all 	three 	counts 	in 	their
Complaint, the Court turns to the question of the proper remedy. Plaintiffs request
a judgment declaring that the Project EIS “violates NEPA, section 810 of ANILCA,
and NFMA,” and “vacating those portions of the ROD authorizing vegetation
management and new road construction.”215 	The Forest Service contends that
remand without vacatur may be appropriate, and requests the Court to allow
supplemental briefing to address the proper remedy.216
Vacatur is the default remedy under the APA, which directs reviewing courts
to “hold unlawful and set aside” unlawful agency action.217 	The Ninth Circuit has
214 Further, the ability to comment on draft unit cards produced pursuant to the Implementation
Plan does not render the error harmless, see Docket 12 at 47, since the Implementation Plan is
subject to change and does not provide for the same public participation and review process as
NEPA. See supra note 152.
215 Docket 22-1 at 43.
216 Docket 12 at 47–49.
217 5 U.S.C. § 706(2)(A). Both partial and complete vacatur of the offending agency action are
acceptable forms of relief under the APA. See Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 165–66 (2010) (“If a less drastic remedy (such as partial or complete vacatur of APHIS’s
deregulation decision) was sufficient to redress respondents’ injury, no recourse to the additional
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explained that a court should “order remand without vacatur only in ‘limited
circumstances,’” and “leave an invalid rule in place only ‘when equity demands.’”218
To determine whether to remand an action without vacatur, a court is to “weigh the
seriousness of the agency’s errors against ‘the disruptive consequences of an
interim change that may itself be changed.’”219
The Forest Service maintains that “[b]oth considerations are informed by the
Court’s decision on the merits,” and the agency “believes the consequences of
vacatur would be extremely disruptive due to the recent low and uncertain supply
of timber in Southeast Alaska, which threatens businesses in the region.”220 	The
Forest Service maintains that “[t]he economic need for Project timber and the harm
that would be caused by delaying timber harvesting activities authorized by the
Project cannot be adequately addressed within the page limits for [its] merits
brief.”221 	In response, Plaintiffs note that the Forest Service “made a strategic
choice to devote more pages to the merits of the claims, with no basis to assume
it was entitled to supplemental briefing on the remedy.”222 	Since Plaintiffs did
and extraordinary relief of an injunction was warranted.”).
218 Pollinator Stewardship Council v. U.S. Envtl. Prot. Agency, 806 F.3d 520, 532 (9th Cir. 2015)
(first quoting Cal. Cmtys. Against Toxics v. U.S. Envtl. Prot. Agency, 688 F.3d 989, 994 (9th Cir.
2012) then quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995)).
219 Id. (quoting Cal. Cmtys. Against Toxics, 688 F.3d at 992).
220 Docket 12 at 48.
221 Docket 12 at 49.
222 Docket 19 at 26.
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choose to devote a section of their briefing to the remedy issue, they maintain that
allowing supplemental briefing would unfairly prejudice them.223
The Court finds that supplemental briefing on the appropriate remedy could
be helpful. 	Any prejudice to Plaintiffs as a result of this delay will be eliminated
because the Court will keep the preliminary injunction in effect until the appropriate
remedy is determined.
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223 Docket 19 at 26.
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CONCLUSION
In light of the foregoing, IT IS HEREBY ORDERED that:
Plaintiffs’ request at Docket 10 for declaratory relief is GRANTED. 	The
Project EIS violates NEPA, 42 U.S.C. § 4332(2)(C), ANILCA, 16 U.S.C. § 3120(a),
and NFMA, 16 U.S.C. § 1604(i). It is therefore “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”224
Each party may file a supplemental brief addressing the proper remedy in
this case within 21 days of the date of this order; such brief shall not exceed
15 pages. 	Each party will then have an additional 14 days to file a response,
not to exceed 8 pages.
The preliminary injunction at Docket 27 shall remain in place until the Court
enters a final judgment.
DATED this 11th day of March, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
224 5 U.S.C. § 706(2)(A).
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