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

Filing 199

ORDER denying 187 Motion for Clarification. Signed by Judge John W. Sedwick on 11/25/14. (RMC, COURT STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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Southeast Alaska Conservation
Council, et al.

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Plaintiffs,
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vs.
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Federal Highway Administration,
et al.

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Defendants,

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and

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State of Alaska,

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Intervenor-Defendant.

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1:06-cv-0009 JWS
ORDER AND OPINION
[Re: Motion at Docket 187]

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I. MOTION PRESENTED
At docket 187 intervenor-defendant State of Alaska filed a renewed motion for

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clarification of the amended judgment at docket 117 pursuant to Rule 62(c) of the

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Federal Rules of Civil Procedure. Plaintiffs’ response is at docket 195, and the federal

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defendants’ response is at docket 196. The State filed a reply at docket 197. Oral

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argument was requested but would not assist the court.

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II. BACKGROUND

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Plaintiffs filed this action more than eight years ago challenging the federal

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defendants’ decision to authorize the Juneau Access Improvements Project (Project),

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which involved the construction of a road extension and ferry terminal north of Juneau

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in a roadless area of the Tongass National Forest. On February 13, 2009, the court

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granted plaintiffs’ motion for summary judgment in part, declaring the environmental

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impact statement (EIS) that was prepared in connection with the Project violates the

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National Environmental Protection Act (NEPA) because it does not consider an

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alternative for improved ferry service using existing ferries and terminals.1 The court’s

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judgment was entered at docket 107 and amended at docket 117. The amended

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judgment vacates the decision to select the State’s proposed construction plan,

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remands the decision to authorize a right-of-way easement for the Project to the United

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States Forest Service, and enjoins “[a]ny and all construction activities related to the

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[Project], and any and all activities dependent upon the issuance of a valid

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environmental impact statement . . . until such time as defendants demonstrate full

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compliance with 42 U.S.C. § 4332, its implementing regulations, and this Court’s Order

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of Feb. 13, 2009 (Doc. No. 105).” 2

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Defendants appealed to the Ninth Circuit Court of Appeals.3 While the appeal

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was pending, the State filed an unopposed motion to clarify the injunction pursuant to

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Rule 62(c).4 The motion sought clarification that “the 3-mile extension of Glacier

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Highway (State Project No. 69583) is a separate and distinct project f rom the Juneau

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Doc. 105 at 21.
Doc. 117 at 2.

Docs. 119, 123. The federal defendants voluntarily dismissal their appeal and did
not participate in the State’s appeal.
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Doc. 133.

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Access Improvement Project (State Project No. 71100; Federal Project

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No. STP-000S(131)).” It was granted at docket 138.

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On May 4, 2011, a divided Ninth Circuit panel affirmed the court’s judgment in its

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entirety, holding that the EIS violated NEPA “[b]y failing to examine a viable and

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reasonable alternative to the proposed project, and by not providing an adequate

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justification for its omission.”5 The State’s petition for panel rehearing and petition for

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hearing en banc were denied,6 and the Ninth Circuit’s mandate was issued on August 5,

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2011.7

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In 2013 the State filed a second motion for clarification of the injunction,

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informing the court that the State intended to receive and record an easement from the

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Forest Service that would “authorize engineering field work and other activities

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necessary or incident to highway and utility planning, design[,] and environmental

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review processes.”8 The State sought a declaration that its receipt or recordation of the

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easement would not depend on a valid EIS, and therefore would not violate the court’s

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injunction.9 The court held that the State’s motion was premature because the process

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for defining the contours of a right-of-way or easement outlined in the Memorandum of

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Understanding (MOU) between the Forest Service and the State had not yet been

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completed.10 The State’s motion was denied without prejudice to renewal at a later

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date if and when an “easement has been reduced to a specific right-of-way or

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Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th
Cir. 2011).
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Doc. 142.

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Doc. 143.

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Doc. 170.
Doc. 171 at 2.
Doc. 185 at 6.

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easement defined by the signatories to the MOU after they take into account the

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requirements of the MOU.”11 The State now renews its motion.

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III. STANDARD OF REVIEW
Rule 62 contains various provisions that govern stays of proceedings to enforce

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a judgment. Rule 62(c) pertains to injunctions pending appeal, and authorizes the

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district court to suspend, modify, restore, or grant an injunction during the pendency of

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an appeal. 12 The purpose of the rule is to codify the district court’s inherent, limited

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power to preserve the status quo while an appeal is pending.13 Because the appeal

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concluded in 2011, Rule 62© has no application here. Nev ertheless, the court will

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consider the State’s motion under its inherent power to enforce its own judgments.14

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IV. DISCUSSION

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The State’s motion seeks “clarification” of the injunction, but in substance it

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seeks to supplement the amended judgment with the following two declarations: (1) “the

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receipt and recordation of an easement established by Section 4407 of Public Law

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109-59 is not dependent upon the issuance of a valid [EIS];” and (2) the State’s

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“intended use of the easement to conduct engineering activities necessary or incident

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to highway planning, design and environmental review processes is not dependent

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upon the issuance of a valid [EIS].”15 The first declaration was also sought in the

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State’s 2013 motion for clarification;16 the second is a new request.

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Id.

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11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2904 (3d
ed. 2014).
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McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, Int’l
Typographical Union, 686 F.2d 731, 734 (9th Cir. 1982).

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See Duchek v. Jacobi, 646 F.2d 415, 418 (9th Cir. 1981).
Doc. 187 at 2. See also Doc. 188-3 at 1-2.
Doc. 170 at 4.

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The MOU describes a two-step process for developing an easement. First, the

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Forest Service grants the State a highway and utility planning easement (or “D1

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Planning Easement”) that allows the State to “conduct engineering and all other

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activities necessary or incident to highway and utility planning, design and

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environmental review processes” in the easement.17 Second, the Forest Service sends

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the State written acceptance of its survey diagram and issues it a construction,

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reconstruction, operation, and maintenance easement (or “D2 Construction

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Easement”),18 “which authorizes construction and maintenance of the facility.”19 In the

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spring of 2012, the State asked the Forest Service to issue a D1 Planning Easement so

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that the State could conduct “necessary planning activities,” which have now been

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identified as various geotechnical investigations in four different zones.20 In 2013 the

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court explained that once a specific easement has been identified through the bilateral

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process described in the MOU the court “could sensibly be asked to determine whether

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receipt and recording of that specific easement would violate the injunction.” 21

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The State’s inability to present the court with a proposed easement that has

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been specifically delineated pursuant to the MOU, which plagued its 2013 motion for

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clarification, persists today. Although the State and the federal defendants have

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engaged in discussions regarding the contours of the State’s proposed easement,22

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these discussions have still not culminated in an agreement.23 The State’s motion is

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Doc. 171-4 at 2, 10.
Id. at 3.
Doc. 188 at 5.
Doc. 188-2 at 2-4 ¶¶ 5, 7.
Doc. 185 at 6.

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Doc. 196 at 7.

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Id. (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

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completed.24

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In its reply brief the State invokes 5 U.S.C. § 706(1) and asks the court to com pel

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the Forest Service to issue the D1 Planning Easement.25 This request will not be

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considered because the State raised it for the first time on reply,26 and because it

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requests novel relief not contemplated by the court’s injunction and therefore exceeds

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the court’s inherent power to enforce its own judgments. If the State wants a court

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order compelling the Forest Service to issue the D1 Planning Easement, it will have to

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file a new lawsuit.

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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.

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/s/

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JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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Id. at 9.

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Doc. 197 at 15.

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See, 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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