Forest Service Employees For Environmental Ethics v. United States Forest Service

Filing 71

Order on Motion for Summary Judgment

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

FOREST SERVICE EMPLOYEES FOR
ENVIRONMENTAL ETHICS; and GLEN
ITH,
Plaintiffs,

3:06-cv-00068 JWS
ORDER AND OPINION

vs.

[Re: Motion at docket 64)

UNITED STATES FOREST SERVICE,
an agency of the U.S. Department of
Agriculture,
Defendant.

I. MOTION PRESENTED
At docket 64 plaintiffs Forest Service Employees for Environmental Ethics
(“FSEEE”) and Glenn Ith (“Ith”) have moved for summary judgment declaring that the
defendant, United States Forest Service (“Forest Service”), violated the National
Environmental Policy Act (“NEPA”) and Appeals Reform Act (“ARA”) in authorizing and
implementing the Road 6231, Road 6232, SW Neets, Rockfish, and Francis Cove road
reconstruction projects in the Tongass National Forest. FSEEE and Ith also seek
injunctive relief ordering the Forest Service to close these five reconstructed logging
roads with locked gates, and to implement appropriate mitigation measures as
necessary to minimize the ongoing erosion and sedimentation caused by these roads
pending the agency’s full compliance with the law. In its response at docket 68,
defendant, the Forest Service, concedes that it has violated NEPA, specifically that the
use of a categorical exclusion for the road contracts at issue was improper because the
road reconstruction and the planned timber sale projects constitute connected actions
that should be considered in the NEPA documents for the timber sale projects.

However, the Forest Service opposes the request for injunctive relief to the extent it
seeks mandatory relief. At docket 15, FSEEE has replied to the Forest Service’s
opposition. Neither party has requested oral argument, and the court has determined
that oral argument would not assist in deciding the motion at bar.

II. BACKGROUND
This case arises out of the Forest Service’s work on roads in Tongass National
Forest in Southeast Alaska. FSEEE and Ith challenge road projects concerning Roads
6231 and 6232 on Mitkof Island, and the SW Neets, Rockfish, and Francis Cove road
projects near Traitors Cove on Revilla Island.
At docket 37, in ruling on Plaintiff’s motion for a preliminary injunction, the court
found that the work on Roads 6231 and 6232 and the SW Neets road project was
completed rendering the request for interim injunctive relief as to those roads moot.
However, the court further found that with respect to Roads 6231 and 6232 and the SW
Neets road project, the completion of the work did not render moot the request for noninjunctive relief. The work on the Rockfish and Francis Cove projects was not yet
complete, and the court granted a preliminary injunction prohibiting, with certain
exceptions, further reconstruction/maintenance work on those projects. At docket 46 the
court granted the unopposed motion of the Forest Service to amend the preliminary
injunction to permit the Forest Service to seed and fertilize areas of disturbed soil in the
Rockfish and Francis Cove areas.
The Forest Service contends, and plaintiffs do not contest, that all work on the
Rockfish and Francis Cove projects was completed before the preliminary injunction took
effect.

III. ISSUES PRESENTED
The motion at bar presents two issues that the court must address:
1.

The extent to which the concession by the Government that it violated NEPA

renders the declaratory relief action moot; and

2

2.

The nature and extent of the injunctive relief that the court must enter as result of

the admitted violation of NEPA.
In the event the court finds that the declaratory relief action is not moot, the court
must decide plaintiffs’ additional claims that they and the public are entitled to advance
notice, an opportunity to review an environmental analysis and submit comments, and an
opportunity to file an administrative appeal prior to a major road reconstruction project
moving forward in the Tongass National Forest.

IV. APPLICABLE STANDARDS
The Declaratory Judgment Act provides in part:
(a) In a case of actual controversy within its jurisdiction, [with exceptions
not pertinent here], any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not further relief
is or could be sought. Any such declaration shall have the force and effect
of a final judgment or decree and shall be reviewable as such.1/
The act goes on to provide that, “[f]urther necessary or proper relief based on a
declaratory judgment or decree may be granted, after reasonable notice and hearing,
against any adverse party whose rights have been determined by such judgment.”2/
The basis for injunctive relief in federal courts has always been irreparable injury
and inadequacy of legal remedies.3/ Even in the context of environmental litigation
courts apply the traditional balance of harms analysis.4/

1/

28 U.S.C. § 2201.

2/

28 U.S.C. § 2202.

3/

Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57 (1975); Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 506–507 (1959).
4/

National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 737 (9th Cir.2001); see
also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 541, 542 (1987) (holding that unless
Congress directed otherwise, "a court must balance the competing claims of injury" in
determining whether injunctive relief is appropriate).
3

V. DISCUSSION
A. Declaratory Relief
The Forest Service concedes that the use of a categorical exclusion for the road
projects at issue in this case was improper and constituted a violation of NEPA. The
Forest Service also concedes that the fact that although work has been essentially
competed the issuance of a permanent injunction in this case is appropriate. The
concession on the merits notwithstanding, FSEEE and Ith argue the court should
nonetheless declare that they and the public are entitled to advance notice, an
opportunity to review an environmental analysis and submit comments, and an
opportunity to file an administrative appeal prior to a major road reconstruction project
moving forward on the Tongass National Forest. For the following reasons the court
disagrees.
The relief that FSEEE and Ith seek is that the Forest Service be enjoined from
proceeding further with the road projects on Mitkof Island concerning Roads 6231 and
6232, and the SW Neets, Rockfish, and Francis Cove road projects near Traitors Cove
on Revillagigedo Island. The basis for the relief sought was that the Forest Service had
violated NEPA and the ARA by improperly using a categorical exclusion. The Forest
Service has conceded that the use of a categorical exclusion in this case was improper.
It has also conceded that the road projects in question should be considered in the
NEPA documents for the timber sales to which they are connected. As a consequence
there is no further controversy between plaintiffs and the Forest Service: Plaintiffs win.
The Declaratory Relief Act makes clear that there must be a controversy. It is not
enough that a controversy exist at the time the complaint was filed, a controversy must
exist at all stages of the litigation.5/ Where this condition is not met, the case has

5/

See Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) (“an actual controversy must
be extant at all stages of review, not merely at the time the complaint is filed”).
4

become moot and the court lacks authority to decide it.6/ As the Ninth Circuit has
stated:7/
The test for mootness in the context of a case, like this one, in which a
plaintiff seeks declaratory relief ··· is whether the facts alleged, under all the
circumstances, show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment. Stated another way, the
central question before us is whether changes in the circumstances that
prevailed at the beginning of litigation have forestalled any occasion for
meaningful relief.
There are four major exceptions to the mootness doctrine: (1) when there are collateral
legal consequences that survive after plaintiff's primary injury has been resolved;
(2) when there are wrongs capable of repetition yet evading review; (3) when there has
been a voluntary cessation of activity complained of; and (4) in class actions when the
named party ceases to represent the class.8/ None apply in this case.
In the context of this case, the fundamental problem the court faces is that by
ruling on the additional points asserted it could not grant any further meaningful relief to
Plaintiffs than that based on the Forest Service’s concession. Thus, to rule on them
would likely run afoul of the Supreme Court’s admonition that federal courts not render
advisory opinions.9/ Moreover, those matters on which FSEEE and Ith wish a further
declaration are either already requirements of the law or, if not, are not “rights” that this
court could declare. The Forest Service is required to follow the law even absent a
declaration of this court that it do so, and there is no basis for the court to assume that
the Forest Service will in the future fail to follow the law.

6/

See Foster v. Carson, 347 F.3d 742, 747 (9th Cir.2003) (“We do not have the
constitutional authority to decide moot cases.”).
7/

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir.2005) (en banc).

8/

Pub. Util. Comm’n of California v. Fed. Energy Regulatory Comm’n, 100 F.3d 1451,
1459-61 Cir.1996).
9/

Hall v. Beals, 396 U.S. 45, 48 (1969); see also Thomas v. Anchorage Equal Rights
Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc) (“Our role is neither to issue advisory
opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies
consistent with the powers granted the judiciary in Article III of the Constitution.”).
5

The closest FSEEE and Ith come to an exception to the mootness doctrine is that
these are wrongs capable of repetition yet evading review. The gist of their argument in
this respect is that the Forest Service could again use the categorical exclusion on road
projects in the Tongass National Forest without giving any public notice thereby making it
possible such projects would escape public scrutiny prior to the work being completed.
In order to grant this relief, the court would necessarily have to determine that categorical
exclusions are never appropriate for road projects in the Tongass National Forest.
Based upon the record before this court in this case the court cannot make such a
sweeping all-inclusive determination.
There is no reason for or basis upon which this court can declare the rights of the
parties beyond the concession made by the Forest Service: the Roads 6231 and 6232,
and the SW Neets, Rockfish, and Francis Cove road projects are connected to the
Overlook and Traitors Cove timber sale projects, not entitled to a categorical exclusion,
and must be considered in the environmental review of those proposed timber sales.
Put another way, the use of a categorical exclusion having been determined to be
inappropriate in the case at bar there is no need to decide the matter on broader or
additional grounds.10/
B. Injunctive Relief
FSEEE and Ith contend, and the Forest Service concedes, that the appropriate
remedy in this case is injunctive relief. The parties disagree on the scope of relief.
FSEEE and Ith request that this court not only enjoin further construction on the roads
pending an appropriate environmental review, but also order the reconstructed roads be
closed using locked gates and impose unspecified mitigation measures to reduce
ongoing erosion and sedimentation. The Forest Service agrees that enjoining further
construction as provided in the preliminary injunction, with some modification, on the five
reconstructed roads until such time as the NEPA environmental review is completed is
appropriate, but disagrees with the suggestion that it be compelled to close the roads

10/

See, e.g., West v. Secretary of Dept. of Transp., 206 F.3d 920, 929 n.10 (9th
Cir.2000); Thomas v. Peterson, 753 F.2d 754, 761 n.4 (9th Cir.1985).
6

using locked gates. With some modification the court will adopt the remedy suggested
by the Forest Service.
The principal harm claimed by FSEEE and Ith is the specter that the
reconstructed roads invite heavier traffic ,and heavier traffic will increase erosion and
sedimentation. That significantly heavier traffic would increase erosion and
sedimentation is not disputed by the Forest Service. However, as the Forest Service
argues, the uncontradicted evidence shows that public use by motorized vehicles has
been limited historically and significantly increased use in the foreseeable future is
unlikely.
Prior to reconstruction, Road 6231 was passable to passenger cars to the "old
bridge site" at approximately milepost 0.76 of the road.11/ There was no physical barrier
to prevent this use.12/ The old bridge had deteriorated to the degree that passenger
vehicles could no longer use it; however, the entire length of the road (end at milepost
1.27) was extensively used by motorcycles and off-road vehicles.13/ The end of the road
was known as a particularly good view spot during hunting season to scout for moose in
the muskeg below.14/ As part of the reconstruction contract, the old bridge and culverts
on that portion of Road 6231 beyond the bridge were removed.15/ A rock and earth berm
was placed before the bridge site so that the public would no longer attempt to cross the
stream from which the bridge had been removed. 16/
Road 6232 was maintained for use by passenger vehicles up to the LeConte
Glacier Overlook Picnic Area at approximately milepost 0.58.17/ From milepost 0.58 to
the end of the road (milepost 2.65), the road was classified as a maintenance level 1 (the
11/

Defendant’s Response to Plaintiffs’ Motion for Summary Judgment and Injunctive
Relief, Exh. 11, Declaration of Patricia A. Grantham, ¶ 5 (doc. 68-3 at 2–3).
12/

Id.

13/

Id.

14/

Id.

15/

Id.

16/

Id.

17/

Grantham Declaration, ¶ 6 (doc. 68-3 at 3).
7

lowest) road.18/ The Forest Service blocked that portion of the road beyond milepost 0.7
with a rock barrier approximately eight years ago to discourage use of the further
reaches of the road, which the Forest Service deemed unsafe due to failing log stringer
bridges.19/ Prior to the installation of the barrier, motorcycles and off-road vehicles had
used the entire length of that road.20/
The roads in the S.W. Neets, Francis Cove, and Rockfish road systems are on
northern Revilla Island, but are not connected to each other, the Ketchikan road system,
or the road system of any other town.21/ Almost all public use has been to access the
Margaret Creek Wildlife Observation Site, for recreation or for deer hunting.22/ Access to
the observation site is by van barged out to the log transfer facility at Margaret (Francis
Cove road system) by float plane tour operators and left there for the summer tourist
season.23/ Deer hunters walk or use bicycles, motorcycles or ATVs for access.24/ Use of
trucks by deer hunters is very uncommon because few hunters have the barge or special
boats that would be necessary to bring trucks ashore.25/ During weekends in late
October or early November (when most hunting occurs) approximately three to seven
ATV or motorcycle users are on the Francis Cove system, three to five on the Rockfish
system, and one to three on the S.W. Neets system.26/
Based on these uncontradicted facts, the court finds that the likelihood that there
will be a significant increase in either the degree or nature of motorized traffic is, at most,
minimal.
18/

Id.

19/

Id.

20/

Id.

21/

Defendant’s Response to Plaintiffs’ Motion for Summary Judgment and Injunctive
Relief, Exh. 12, Declaration of Robert J. Emley, ¶ 3 (doc. 68-4 at 2).
22/

Emley Declaration, ¶ 5 (doc. 68-4 at 3).

23/

Id.

24/

Id.

25/

Id.

26/

Id.
8

Injunctive relief is generally limited to that necessary to prevent further irreparable
harm.27/ While, as FSEEE and Ith contend, the reconstructed roads are somewhat
susceptible to greater use, they have not presented sufficiently compelling reasons,
given the historic use of the roads and the likely usage in the foreseeable future, for the
court to order the Forest Service to close the roads.28/ Ordering the Forest Service to
include the road projects at issue in the appropriate NEPA mandated environmental
review for the associated timber sales and enjoining it from performing any further work
on the road projects pending a final decision is appropriate relief in this case.29/ The
mitigation measure proposed by the Forest Service, seeding and fertilizing exposed
areas of soil, is more likely than not sufficient to prevent increased erosion and
sedimentation in this case. However, if the court is to err, it will err on the side of
preserving the environment. Accordingly, the Forest Service will be ordered to take
appropriate measures to restrict use to that consistent with historic use. Should that
prove inadequate, the court reserves jurisdiction to modify this order accordingly.30/

VI. CONCLUSION
Based upon the foregoing, Plaintiffs’ Motion for Summary Judgment and
Injunctive Relief is GRANTED, in part, and DENIED, in part.

27/

See Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 193 (2000) (“federal courts should aim to ensure ‘the framing of relief no broader than
required by the precise facts’”).
28/

The court also recognizes that erecting barriers is not always effective in preventing
access; people have historically resorted to numerous ingenious methods for circumventing
nearly any barrier to access.
29/

The proposed order submitted by the Forest Service indicates that an Environmental
Assessment is appropriate for the Overlook timber sale while an Environmental Impact
Statement is required for the Traitors Cove timber sale. Given the record before it in this action,
the court must refrain from specifying or even implying which procedure is appropriate.
30/

While the court could direct specific measures to be taken, e.g., locked gates as
suggested by FSEEE and Ith or rock barriers as previously used on Road 6232, the measures
to be used should, at least in the first instance, be left to discretion of the Forest Service.
9

VII. DECLARATION AND INJUNCTION
IT IS DECLARED AND ORDERED THAT:
1.

The road maintenance/reconstruction contract for Roads 6231 and 6232

constitutes an action connected to the proposed Overlook timber sale project and road
maintenance/reconstruction must be considered together with the proposed timber sale
in the appropriate environmental review under NEPA for the proposed Overlook timber
sale project.
2.

The S.W. Neets, Rockfish, and Francis Cove road maintenance/reconstruction

contracts constitute actions connected to the proposed Traitors Cove timber sale project
and road maintenance/reconstruction must be considered together with the proposed
timber sale in the appropriate environmental review under NEPA for the Traitors Cove
timber sale project.
3.

Unless otherwise ordered by the court upon such notice and hearing as may be

appropriate in the circumstances, until the Forest Service completes the appropriate
environmental review under NEPA for the Overlook timber sale project and the decision
rendered thereon is final and may be implemented, the Forest Service is enjoined from
performing road maintenance on or reconstruction of Roads 6231 and 6232.
4.

Unless otherwise ordered by the court upon such notice and hearing as may be

appropriate in the circumstances, until the Forest Service completes the appropriate
environmental review under NEPA for the Traitors Cove timber sale project and the
decision rendered thereon is final and may be implemented, the Forest Service is
enjoined from performing road maintenance on or reconstruction of the roads in the S.W.
Neets, Francis Cove and Rockfish area.
5.

The Forest Service must restrict access to Roads 6231 and 6232 and the roads in

S.W. Neets, Francis Cove, and Rockfish in a manner designed to prevent any significant
increase in the nature and extent of motorized traffic from the historical usage of the
roads, i.e., prior to the time the Forest Service awarded the road
maintenance/reconstruction contracts referred to in paragraphs 1 and 2.

10

6.

The prohibitions in paragraphs 3, 4, and 5 are subject to the following exceptions:
a. Forest Service employees may spread grass seed and fertilizer on areas of

exposed soil;
b. the Forest Service may continue to maintain the road to the Margaret Creek
Wildlife Observation Site; and
c. the Forest Service may undertake emergency maintenance/reconstruction in
response to occurrences such as slides or culvert failures if the Forest Service
reasonably determines that failure to do maintenance/reconstruction poses a significant
risk of substantial harm to the environment or threat to the public safety. To the extent
practicable, the Forest Service should notify counsel for the Plaintiffs prior to undertaking
emergency maintenance/reconstruction and, in any event, provide such notification to
Plaintiffs’ counsel and the court within two (2) business days after commencing such
emergency maintenance/reconstruction.
AND IT IS FURTHER ORDERED THAT:
This court retains jurisdiction to enforce or modify the terms of this order upon such
notice and hearing as may be necessary or appropriate under the circumstances.
FINALLY, IT IS ORDERED THAT:
The parties shall confer and submit a proposed form of judgment consistent with this
order no later than January 18, 2007.
DATED at Anchorage, Alaska this, 15th day of December 2006.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

11