Southeast Alaska Conservation Council et al v. Federal Highway Administration et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Southeast Alaska Conservation )
Council, et al. ) 1:06-cv-0009 JWS
)
Plaintiffs, ) ORDER AND OPINION
)
vs. )
) [Re: Motion at Docket 187]
Federal Highway Administration, )
et al. )
)
Defendants, )
)
and )
)
State of Alaska, )
)
Intervenor-Defendant. )
)
I. MOTION PRESENTED
At docket 187 intervenor-defendant State of Alaska filed a renewed motion for
clarification of the amended judgment at docket 117 pursuant to Rule 62(c) of the
Federal Rules of Civil Procedure. Plaintiffs’ response is at docket 195, and the federal
defendants’ response is at docket 196. The State filed a reply at docket 197. Oral
argument was requested but would not assist the court.
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II. BACKGROUND
Plaintiffs filed this action more than eight years ago challenging the federal
defendants’ decision to authorize the Juneau Access Improvements Project (Project),
which involved the construction of a road extension and ferry terminal north of Juneau
in a roadless area of the Tongass National Forest. On February 13, 2009, the court
granted plaintiffs’ motion for summary judgment in part, declaring the environmental
impact statement (EIS) that was prepared in connection with the Project violates the
National Environmental Protection Act (NEPA) because it does not consider an
alternative for improved ferry service using existing ferries and terminals.1 The court’s
judgment was entered at docket 107 and amended at docket 117. The amended
judgment vacates the decision to select the State’s proposed construction plan,
remands the decision to authorize a right-of-way easement for the Project to the United
States Forest Service, and enjoins “[a]ny and all construction activities related to the
[Project], and any and all activities dependent upon the issuance of a valid
environmental impact statement . . . until such time as defendants demonstrate full
compliance with 42 U.S.C. § 4332, its implementing regulations, and this Court’s Order
of Feb. 13, 2009 (Doc. No. 105).”2
Defendants appealed to the Ninth Circuit Court of Appeals.3 While the appeal
was pending, the State filed an unopposed motion to clarify the injunction pursuant to
Rule 62(c).4 The motion sought clarification that “the 3-mile extension of Glacier
Highway (State Project No. 69583) is a separate and distinct project f rom the Juneau
1Doc. 105 at 21.
2Doc. 117 at 2.
3Docs. 119, 123. The federal defendants voluntarily dismissal their appeal and did
not participate in the State’s appeal.
4Doc. 133.
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Access Improvement Project (State Project No. 71100; Federal Project
No. STP-000S(131)).” It was granted at docket 138.
On May 4, 2011, a divided Ninth Circuit panel affirmed the court’s judgment in its
entirety, holding that the EIS violated NEPA “[b]y failing to examine a viable and
reasonable alternative to the proposed project, and by not providing an adequate
justification for its omission.”5 The State’s petition for panel rehearing and petition for
hearing en banc were denied,6 and the Ninth Circuit’s mandate was issued on August 5,
2011.7
In 2013 the State filed a second motion for clarification of the injunction,
informing the court that the State intended to receive and record an easement from the
Forest Service that would “authorize engineering field work and other activities
necessary or incident to highway and utility planning, design[,] and environmental
review processes.”8 The State sought a declaration that its receipt or recordation of the
easement would not depend on a valid EIS, and therefore would not violate the court’s
injunction.9 The court held that the State’s motion was premature because the process
for defining the contours of a right-of-way or easement outlined in the Memorandum of
Understanding (MOU) between the Forest Service and the State had not yet been
completed.10 The State’s motion was denied without prejudice to renewal at a later
date if and when an “easement has been reduced to a specific right-of-way or
5Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th
Cir. 2011).
6Doc. 142.
7Doc. 143.
8Doc. 170.
9Doc. 171 at 2.
10Doc. 185 at 6.
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easement defined by the signatories to the MOU after they take into account the
requirements of the MOU.”11 The State now renews its motion.
III. STANDARD OF REVIEW
Rule 62 contains various provisions that govern stays of proceedings to enforce
a judgment. Rule 62(c) pertains to injunctions pending appeal, and authorizes the
district court to suspend, modify, restore, or grant an injunction during the pendency of
an appeal.12 The purpose of the rule is to codify the district court’s inherent, limited
power to preserve the status quo while an appeal is pending.13 Because the appeal
concluded in 2011, Rule 62© has no application here. Nev ertheless, the court will
consider the State’s motion under its inherent power to enforce its own judgments.14
IV. DISCUSSION
The State’s motion seeks “clarification” of the injunction, but in substance it
seeks to supplement the amended judgment with the following two declarations: (1) “the
receipt and recordation of an easement established by Section 4407 of Public Law
109-59 is not dependent upon the issuance of a valid [EIS];” and (2) the State’s
“intended use of the easement to conduct engineering activities necessary or incident
to highway planning, design and environmental review processes is not dependent
upon the issuance of a valid [EIS].”15 The first declaration was also sought in the
State’s 2013 motion for clarification;16 the second is a new request.
11Id.
1211 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2904 (3d
ed. 2014).
13McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, Int’l
Typographical Union, 686 F.2d 731, 734 (9th Cir. 1982).
14See Duchek v. Jacobi, 646 F.2d 415, 418 (9th Cir. 1981).
15Doc. 187 at 2. See also Doc. 188-3 at 1-2.
16Doc. 170 at 4.
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The MOU describes a two-step process for developing an easement. First, the
Forest Service grants the State a highway and utility planning easement (or “D1
Planning Easement”) that allows the State to “conduct engineering and all other
activities necessary or incident to highway and utility planning, design and
environmental review processes” in the easement.17 Second, the Forest Service sends
the State written acceptance of its survey diagram and issues it a construction,
reconstruction, operation, and maintenance easement (or “D2 Construction
Easement”),18 “which authorizes construction and maintenance of the facility.”19 In the
spring of 2012, the State asked the Forest Service to issue a D1 Planning Easement so
that the State could conduct “necessary planning activities,” which have now been
identified as various geotechnical investigations in four different zones.20 In 2013 the
court explained that once a specific easement has been identified through the bilateral
process described in the MOU the court “could sensibly be asked to determine whether
receipt and recording of that specific easement would violate the injunction.”21
The State’s inability to present the court with a proposed easement that has
been specifically delineated pursuant to the MOU, which plagued its 2013 motion for
clarification, persists today. Although the State and the federal defendants have
engaged in discussions regarding the contours of the State’s proposed easement,22
these discussions have still not culminated in an agreement.23 The State’s motion is
17Doc. 171-4 at 2, 10.
18Id. at 3.
19Doc. 188 at 5.
20Doc. 188-2 at 2-4 ¶¶ 5, 7.
21Doc. 185 at 6.
22Doc. 196 at 7.
23Id. (explaining that the draft agreement submitted by the State as Exhibit A “has not
. . . been executed by the Forest Service” and therefore “is the State’s proposal only.”).
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denied for the same reason its last motion was: the MOU process has not yet been
completed.24
In its reply brief the State invokes 5 U.S.C. § 706(1) and asks the court to compel
the Forest Service to issue the D1 Planning Easement.25 This request will not be
considered because the State raised it for the first time on reply,26 and because it
requests novel relief not contemplated by the court’s injunction and therefore exceeds
the court’s inherent power to enforce its own judgments. If the State wants a court
order compelling the Forest Service to issue the D1 Planning Easement, it will have to
file a new lawsuit.
V. CONCLUSION
Based on the preceding discussion, the State’s renewed motion for clarification
at Docket 187 is DENIED.
DATED this 25th day of November 2014.
/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
24Id. at 9.
25Doc. 197 at 15.
26See, e.g., State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties]
cannot raise a new issue for the first time in their reply briefs.” (citations omitted)); United States
ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a
moving party to introduce new facts or different legal arguments in the reply brief than those
presented in the moving papers.”).
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