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

Filing 185

ORDER denying 170 First MOTION Clarification of Injuction. Signed by Judge John W. Sedwick on 10/3/13. (GMM, CHAMBERS STAFF)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

SOUTHEAST ALASKA
CONSERVATION COUNCIL, et al.,
Plaintiffs,
vs.
FEDERAL HIGHWAY
ADMINISTRATION, et al.,
Defendants,
and
STATE OF ALASKA,
Intervener-Defendant.

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1:06-cv-00009 JWS
ORDER AND OPINION
[Re:

Motion at Docket 170]

I. MOTION PRESENTED
At docket 170, intervener-defendant State of Alaska (“the State”) moves for
clarification of the injunction included in this court’s amended judgment at docket 117.
The State’s supporting memorandum is at docket 171. Defendants Federal Highway
Administration, et al. (“Federal Defendants”) respond at docket 180. Plaintiffs
Southeast Alaska Conservation Council, et al. (“Plaintiffs”) respond at docket 181. The
State replies at docket 183. Oral argument has not been requested and would not be
of assistance to the court.

II. BACKGROUND
The capital of Alaska, Juneau, is inaccessible by road or railroad. Aside from
daily scheduled air service, the only means of public access for Alaskans who wish to
visit or depart from their capital city is the Alaska Marine Highway System, which
operates ferries throughout Southeast Alaska. There has long been interest in creating
better access to the capital, and toward that end the Juneau Access Improvements
Project (“Project”) was developed by the Alaska Department of Transportation and
Public Facilities (“ADOT”). Other than improvement of the existing ferry system, all of
the alternatives considered for the Project contemplated construction of a road across
federal lands in the Tongass National Forest, an undertaking requiring various federal
approvals and permits, which in turn require preparation of an environmental impact
statement (“EIS”) to comply with the National Environmental Policy Act (“NEPA”).
An EIS was prepared for the Project. It identified Alternative 2B as the preferred
choice among several which had been considered. Alternative 2B calls for construction
of a new highway linking an existing road near Juneau to a new ferry terminal to be
constructed much closer to Haines, Alaska, (which is connected by road through
Canada to Alaska’s highway system) than the existing terminal in Juneau. The new
highway would proceed northward along the East side of Lynn Canal through the
Tongass National Forest.
Plaintiffs filed suit attacking the adequacy of the EIS. This court found the EIS
defective because the EIS did not adequately consider the alternative of improving the
existing ferry service to and from Juneau. This court enjoined further action on the
Project:
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Any and all construction activities related to the Juneau Access
Improvements Project and any and all activities dependent upon the
issuance of a valid environmental impact statement, are ENJOINED 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).1
In Southeast Alaska Conservation Council v. Federal Highway Administration,2 the
Ninth Circuit Court of Appeals affirmed this court’s decision.
The State’s pending request for clarification asks whether the injunction would
prohibit the State’s receipt and recording of an easement along the East side of Lynn
Canal to be issued by the United States Forest Service. The State first says the
easement would “authorize engineering field work and other activities necessary or
incident to highway and utility planning, design and environmental review processes.” 3
The nature and extent of the field work and other activities is not defined. Then,
backpedaling in its reply memo, the State says, “[t]o remove any doubts, the state is not
seeking construction authorization from the Forest Service and is not asking the court
for clarification that construction activities would be authorized under the injunction.”4
That still leaves the parameters of the easement unclear. Any easement worthy of the
name would necessarily authorize something to take place somewhere within the
easement.

1

Doc. 117 at ¶ 5.

2

649 F.3d 1050 (9th Cir. 2011).

3

Doc. 171 at p. 2.

4

Doc. 183 at p. 8.

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III. DISCUSSION
The State relies on a miscellaneous provision in the Safe, Accountable, Flexible,
Efficient Transportation Equity Act,5 an 833-page act passed in 2005, authorizing funds
for federal highway aid and other purposes. Section 4407 is the miscellaneous
provision. Its text reads in its entirety as follows:
Notwithstanding any other provision of law, the reciprocal rights-of-way
and easements identified on the map numbered 92377 dated June 15,
2005, are hereby enacted into law.6
The court understands that § 4407 reflects a Congressional acknowledgment of the
need for both the federal government and the State to have access across one
another’s land holdings in Southeast Alaska for a variety of public purposes, such as
roads connecting communities, utility corridors, access to log transfer sites, access to
marine facilities, etc.7
Section 4407 does not identify any easement with specificity, it merely
references a map on which general locations for easements are drawn. The statute
does not shed any light on the size, duration, specific route, conditions, specific
purpose, or extent of activity which would be authorized by any particular right-of-way or
easement. Recognizing the vague nature of § 4407, the State, acting through ADOT,
and the United States, acting through the United States Department of Agriculture,

5

Public Law 109-59, 119 Stat. 1144 (August 10, 2005).

6

Id. at 119 Stat. 1777.

7

See Declaration of Albert H. Clough at doc. 171-1 and Memorandum of Understanding
at doc. 171-4.

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Forest Service, Alaska Region,8 entered into a Memorandum of Understanding (“the
MOU”) in September of 2006, whose purpose was “to establish a framework and
process for granting the reciprocal rights-of-way and easements described in Section
4407 . . . .”9
The essence of the State’s argument is that an easement does not depend on
issuance of an EIS because it was “enacted into law” by § 4407, “[n]otwithstanding any
other provision of law.” In their briefing, the State and the Federal Defendants spar
over whether or not when an easement is “enacted into law” it has been “granted.” In
the court’s view that match is being fought too soon. The issue before the court is
whether an EIS is required before some as yet unidentified easement may be received
and recorded without violating the injunction.
With respect to that issue, the State’s “notwithstanding” argument overlooks the
vagaries of § 4407 and the provisions of the MOU. The MOU establishes that rights-ofway and easements granted by the State or the federal government pursuant to § 4407
“will be granted consistent with their respective obligations to protect the scenic,
archaeological, recreation, and fish and wildlife values, resources and habitats on
National Forest System lands and State of Alaska lands.”10 Because it is clear that the
contours of any right-of-way or easement created pursuant to § 4407 will be shaped by

8

Both the United States Department of Agriculture and United States Forest Service are
included among the Federal Defendants.
9

Doc. 171-4 at p. 1.

10

Doc. 171-4 at p. 1.

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a good-faith evaluation of these values, the nature and extent of such a right-of-way or
easement cannot be known until the MOU process has been completed.
Even if the State is correct to say that an EIS may not be required to support
receipt and recording of some sort of easement along the East side of Lynn Canal, no
specific easement has yet been identified. So, the court is being asked by the State to
advise whether some unidentified easement would violate the injunction. Because it is
impossible to answer that question, the court concludes that the receipt and recording
of an easement may not proceed until the easement has been reduced to a specific
right-of-way or easement defined by the signatories to the MOU after they take into
account the requirements of the MOU. Once that has been accomplished, the court
could sensibly be asked to determine whether receipt and recording of that specific
easement would violate the injunction. The pending request by the State is premature.
The court declines to grant the relief requested by the State, but without prejudice to a
subsequent request which relates to a specific easement which has been developed
though the MOU process.
Given this resolution of the State’s request, the court deems it unnecessary at
this time to resolve the arguments raised in the parties’ briefing. Those arguments may
be renewed should the State return to this court asking it to clarify the injunction with
respect to receiving and recording a specific easement which has been developed
through the MOU process.

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IV. CONCLUSION
For the reasons above, the motion at docket 170 is DENIED without prejudice to
a subsequent motion which is consistent with this order.
DATED this 3rd day of October 2013.

/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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