March 11, 2020 press release from plaintiff groups:
JUNEAU, Alaska― A federal judge today rejected the Trump administration’s enormous commercial timber harvest and road-building plan for Prince of Wales Island in the Tongass National Forest of southeast Alaska.
The judge ruled that the project’s approval violated the National Environmental Policy Act, which sets standards for public engagement on federal projects that will alter the environment, and the Alaska National Interest Lands Conservation Act, which requires federal agencies to evaluate how federal use of public lands will affect subsistence uses and needs.
The court found that the U.S. Forest Service “presented local communities with vague, hypothetical, and over-inclusive representations of the Project’s effects over a 15-year period.” It’s not yet clear whether the Forest Service will have to abandon the project entirely because the judge has not yet decided on a legal remedy.
The Forest Service greenlighted a sweeping 15-year logging scheme over a 1.8-million-acre project area across Prince of Wales and surrounding islands in America’s largest and wildest national forest. It would have been the largest timber sale on any national forest in 30 years, allowing for 164 miles of new road construction and the logging of enough trees to equal a forest three times the size of Manhattan.
More than half the logging would have targeted centuries-old trees ― old-growth forests that absorb the greenhouse gas emissions that drive climate change.
Eight conservation organizations, represented by the nonprofit environmental law firm Earthjustice, challenged the logging plan on the grounds that, among other claims, it had violated the National Environmental Policy Act, which gives people a say in government actions that will affect their communities.
Prince of Wales Island is prized for its subsistence hunting and fishing opportunities, yet the Forest Service failed to provide detailed information about where logging would occur. This made it impossible for subsistence hunters, local residents and others who care about the wildlife and forests of Prince of Wales Island to meaningfully weigh in on the plan.
Plaintiffs in this case include the Southeast Alaska Conservation Council, Alaska Rainforest Defenders, Defenders of Wildlife, Sierra Club, Alaska Wilderness League, Natural Resources Defense Council, National Audubon Society and Center for Biological Diversity. Prince of Wales residents, attorneys and plaintiffs released the following statements in reaction to the ruling:
“What the court has cut short is flagrant attempts by the Forest Service to trample not only the remaining old-growth forest on Southeast Alaska’s most heavily-logged major island, but also NEPA, which is America’s bedrock law for protecting the environment from contrived decision-making,” said Larry Edwards of the regional organization Alaska Rainforest Defenders.
“The Prince of Wales project would’ve been the largest logging project that we have seen anywhere in our national forests in decades, and it would have destroyed thousands of acres of irreplaceable old-growth forest in the Tongass National Forest,” said Kristen Miller, conservation director at Alaska Wilderness League. “Today’s ruling is a win for Southeast Alaska’s billion-dollar fishing and tourism industries, and a reminder as the Trump administration tries to significantly weaken the National Environmental Policy Act of the critical role NEPA plays in allowing the public to meaningfully weigh in on issues impacting their public lands.”
“Protecting the Tongass from old-growth clearcuts shouldn’t feel like a guessing game where Alaskans are left in the dark about whether the clear cuts will be on their traditional lands, in their favorite hunting spot, or in the middle of a stunning Alaskan viewpoint,” said Meredith Trainor, executive director of the Southeast Alaska Conservation Council. “Today’s court decision upholds the rights of Southeast Alaskans to weigh in on where logging happens not once our lands are changed forever. We’re grateful the law continues to stand strong and tall, like our old-growth trees, today.”
“This is a victory for wildlife, for our precious public forest lands, and for the rule of law,” said Patrick Lavin, Alaska policy advisor for Defenders of Wildlife. “This decision protects thousands of acres of high quality fish and wildlife habitat and the sustainable industries that rely on it. It also upholds the public’s right to basic information about proposed uses of our national forests, and the impacts of those uses on our shared public resources.”
“The magnificent, ancient forests of the Tongass just got a reprieve from the chain saws,” said Randi Spivak, public lands director at the Center for Biological Diversity. “We’re thrilled the court agreed that the Trump administration broke the law when it approved cutting thousands of acres of old-growth trees. It’s critical to protect our remaining old-growth forests to have any chance of stopping the extinction crisis and slowing climate change.”
“This ruling is a win for old-growth trees, wolves, and other species on Prince of Wales Island,” said Earthjustice attorney Tom Waldo. “Today subsistence hunters who were shut out of a decision-making process that would have caused even greater restrictions for them can breathe a sigh of relief knowing that a massive industrial logging operation isn’t imminent in the forested areas they know and rely upon.”
“This is a huge win for wildlife, climate and all people’s voices on the most biologically diverse and vulnerable island on the Tongass National Forest, said Natalie Dawson, executive director of Audubon Alaska. “This ruling protects ancient forests that are crucial to mitigating climate change impacts in Alaska and across the globe.”
A a veteran of many “do more NEPA” court orders, I’m not sure about:
“The court found that the U.S. Forest Service “presented local communities with vague, hypothetical, and over-inclusive representations of the Project’s effects over a 15-year period.” It’s not yet clear whether the Forest Service will have to abandon the project entirely because the judge has not yet decided on a legal remedy.”
means that a “legal remedy” would be to abandon the project because not enough/right NEPA was done.
I wonder what the lawyers on TSW make of this.
The primary legal question for which the judge has requested further briefing is whether to remand with or without vacating the original decision. As a general rule, the remedy in an APA case, such as this, is to vacate the decision because the original decision was made without considering some necessary fact. Post hoc paperwork cannot assure a decision based on all the facts unless a new decision is made.
However, it is standard practice for the FS to argue otherwise, i.e., remand without vacatur. I’ve never understood the justification for this position.
Here’s an example of a case where a court remanded without vacatur. https://forestpolicypub.com/2020/01/21/helena-project-clears-the-9th-circuit-except-for-some-wui/
The court cites a 9th Circuit case for the legal principle: “In considering whether vacatur is warranted, we must balance these errors against the consequences of such a remedy.”
The court’s decision was based on its conclusion that, “equity counsels in favor of remanding without vacatur. The Forest Service estimates that its reevaluation will take 60 days, and it anticipates that less than 1% of the project will change. Delaying the project in the interim could have negative consequences for the environment and public safety, as the project was designed to improve forest health and create safer firefighting conditions.”
Similar arguments in the POW case, where the errors were fundamental to the entire project and the harm from delay questionable, don’t seem likely to succeed.
Remembering our discussions of the Forest Service’s recent enthusiasm for “condition-based management” (https://forestpolicypub.com/2019/12/13/condition-based-project-in-georgia/),
here is what plaintiffs’ attorneys had to say specifically about that:
https://news.bloombergenvironment.com/environment-and-energy/court-rules-against-trumps-plan-for-logging-in-tongass-forest
**Waldo, the Earthjustice lawyer, said the ruling will affect other Forest Service approvals that relied on “condition-based management,” in which the agency outlines general criteria to govern future timber sales in an area, rather than identifying exact locations for projects and doing site-specific analysis.
Center for Biological Diversity attorney Ted Zukoski noted that the agency was using the same approach to support logging plans in the central Tongass and in forests in Oregon, Vermont, and other states. “The Forest Service really put all their eggs in this condition-based management basket,” he said. While other administrations used the approach on a small scale, Zukoski said, Trump officials have embraced it “as a way to lock in logging over huge areas over vast lengths of time.”**
(It seems to me like the Forest Service choice to take a legally risky approach instead of a better bet on a single timber sale should count against their argument that “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.”)