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Southeast Conference v. Vilsack

February 17, 2010

SOUTHEAST CONFERENCE, ET AL., PLAINTIFFS,
v.
THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

In 2008, the United States Forest Service approved the 2008 Tongass National Forest Land and Resource Management Plan Amendment ("2008 TLMP Amendment" or "Plan"). The Plan established the Forest Service's goals and objectives for the management of the Tongass National Forest in Alaska, which include promoting the ecological, social, and economic values derived from the Tongass. Plaintiffs -- several Alaskan cities and regional, non-profit corporations -- disagree with the Forest Service's vision for the Tongass, particularly as it addresses the timber harvest. Accordingly, they challenge several components of the 2008 TLMP Amendment, positing that it improperly reduces the amount of land available in the Tongass for the timber harvest. Before the Court are the parties' cross-motions for summary judgment, on which the Court heard oral argument on January 14, 2010. Upon consideration of the applicable law, the parties' several memoranda, and the entire record herein, and for the reasons stated below, the Court will grant defendants' motion and deny plaintiffs' motion.*fn1

I.

Located in Southeast Alaska, the 16.8 million acre Tongass National Forest is the nation's largest national forest. "Most of the area of the Tongass is wild and undeveloped." Administrative Record, 2008 TLMP Amendment Final Environmental Impact Statement ("2008 TLMP Amendment FEIS"), 1-3. In spite of -- or perhaps because of -- this feral environment, "[t]he economies of Southeast Alaska's communities rely on the Tongass National Forest to provide natural resources for uses such as fishing, timber harvesting, recreating, tourism, mining, and subsistence." Id. Hence, "[m]aintaining the abundant natural resources of the Forest, while providing opportunities for their use, is a major concern of Southeast Alaska residents." Id. The Forest Service manages the Tongass with these issues in mind.

A.

The National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq., requires the Forest Service to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest systems." 16 U.S.C. § 1604(a). In doing so, the Forest Service must "balance competing demands on national forests, including timber harvesting, recreational use, and environmental preservation." Lands Council v. Powell, 395 F.3d 1019, 1025 n.2 (9th Cir. 2005); see also 16 U.S.C. § 528 (national forests "administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes"). Indeed, "[u]nlike other types of federal conservation statutes, the law regulating the use of national forests embraces the concepts of 'multiple use' and 'sustained yield of products and services.'" Lands Council, 395 F.3d at 1025 n.2 (quoting 16 U.S.C. § 1607). As part of its management of national forests, the Forest Service must "revise[] from time to time [its forest plans] when the Secretary [of Agriculture] finds conditions in a unit have significantly changed, but at least every fifteen years." 16 U.S.C. § 1604(f)(5).

In addition to the statutory scheme governing national forests generally, several other statutes specifically regulate the Tongass. First, the Alaska National Interest Lands Conservation Act ("ANILCA"), Pub. L. No. 96-487, 94 Stat. 2371 (Dec. 2, 1980), created numerous new federal properties in Alaska in order to maintain a "proper balance between the reservation of" land for conservation and the disposition of "those public lands necessary and appropriate for more intensive use." 16 U.S.C. § 3101(d). Because Congress believed that ANILCA properly balanced these outcomes, it concluded that "the need for future legislation . . . has been obviated" by the statute. Id. Congress therefore prohibited "future executive branch action which withdraws more than five thousand acres, in the aggregate, of public lands within the State of Alaska[, unless] notice is provided in the Federal Register and to both Houses of Congress." Id. § 3213(a). The Forest Service must terminate any such withdrawal "unless Congress passes a joint resolution of approval within one year after the notice of such withdrawal has been submitted to Congress." Id.

Second, the Tongass Timber Reform Act ("TTRA"), Pub. L. No. 101-626, 104 Stat. 4426 (Nov. 28, 1990), "imposed additional planning requirements for the Tongass." Natural Res. Def. Council v. United States Forest Serv., 421 F.3d 797, 801 (9th Cir. 2005). "Among these requirements, Congress imposed a unique duty on the Forest Service to consider the 'market demand' for timber" when creating a forest plan for the Tongass. Id. This duty requires the Secretary of Agriculture, to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, [to] seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle. 16 U.S.C. § 539d(a). Although the statute's language is merely "hortatory," it nevertheless requires the "Forest Service . . . [to] at least consider market demand and seek to meet market demand." Natural Res. Def. Council, 421 F.3d at 809. The TTRA envisions "not an inflexible harvest level, but a balancing of the market, the law, and other uses including preservation." Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 731 (9th Cir. 1995).

B.

The Forest Service promulgated and approved the 2008 TLMP Amendment to fulfill its statutory responsibilities for the Tongass. In the Plan, as in the four previous Tongass forest plans, the Forest Service sought to meet its obligation to "provide for multiple use and sustained yield of the products and services obtained from the National Forest System." Administrative Record, 2008 TLMP Amendment Record of Decision ("2008 TLMP Amendment ROD"), 2 (internal quotation marks omitted). In other words, the 2008 TLMP Amendment balanced "the many competing uses to which land can be put." Id. Of particular concern to plaintiffs here is how the Forest Service balanced the needs of the timber industry with the other uses of the Tongass. Accordingly, the Court will focus on those components of the 2008 TLMP Amendment that are relevant to that issue.

The 2008 TLMP Amendment sets forth the Forest Service's vision for how the 16.8 million acres of the Tongass will be managed. To do so, the Forest Service uses land management planning, which "may be compared to city, county, or borough zoning. Just as areas in a community are zoned as commercial, industrial, or residential, the forest is also zoned to allow, or not allow, various uses and activities." 2008 TLMP Amendment FEIS at 2-1. Forest plan "zoning" is accomplished by employing land use designations, which "specify ways of managing an area of land and the resources it contains." Id. For example, land may be designated to protect certain resources, such as old growth wildlife habitats, or it may be designated to permit the harvest of resources, such as timber or minerals. See id. In addition, lands may be designated to permit a combination of activities on the land, "such as providing for scenic quality in combination with timber harvesting." Id. As relevant here, in the 2008 TLMP Amendment the Forest Service designated 1.22 million acres of the Tongass as "old growth reserves," with the result that timber harvesting is prohibited on these lands. See 2008 TLMP Amendment ROD at 5. The Forest Service also has designated approximately 2.3 million acres of the Tongass for timber production, of which 663,000 acres are available for the timber harvest while the 2008 TLMP Amendment remains in effect. See id. at 5-6.

The 2008 TLMP Amendment also includes the Forest Service's projection of market demand for timber from the Tongass. A Tongass forest plan must include a projection of market demand for timber so the Forest Service can fulfill its statutory obligation under the TTRA to seek to meet market demand. To reach a projection of demand, and to assess whether the Plan would supply enough timber to satisfy that demand, the Forest Service primarily relied on a forecast of market demand prepared by the Pacific Northwest Research Station. See 2008 TLMP Amendment ROD at 31-35 (discussing Allen M. Brackley, et al., Timber Products Output and Timber Harvests in Alaska: Projections for 2005-2025 (2006)). The study "project[ed] the demand for timber from the Tongass, [which was] derived from the demand in Pacific Rim markets for the end products manufactured from that timber." Id. at 31. It gave four different scenarios of timber demand -- limited lumber, expanded lumber, medium integrated, and high integrated -- projecting a range of future average demand for Tongass timber. See id. The scenarios represent a spectrum of market demand, with "limited lumber" projecting the lowest levels of market demand and "high integrated" projecting the highest levels of market demand. Id. Under the scenario deemed most likely -- "expanded lumber" -- market demand is projected to range from 61.9 million board feet in 2007 to 187.1 million board feet in 2022, the end of the planning cycle for the 2008 TLMP Amendment. See id. at 33. The Forest Service adopted the expanded lumber scenario as the measure of market demand in its Tongass forest plan. See id. at 35.*fn2

Based on the demand scenario it adopted, the Forest Service approved a Tongass forest plan that set the allowable sale quantity of timber for the next ten years at 2.67 billion board feet, or an average of 267 million board feet annually. See id. The allowable sale quantity "represents the upper decadal limit on the amount of timber that may be offered for sale from suitable timberland in the Tongass National Forest as part of the regularly scheduled timber sale program." Nat. Res. Def. Council, 421 F.3d at 802 n.10 (internal quotation marks omitted). The Forest Service determined that an allowable sale quantity of 267 million board feet annually not only would satisfy projected market demand, but also would ensure that the Forest Service could meet unforeseen or changing market conditions.*fn3

One such changing market condition the Forest Service considered was the development of an integrated timber industry. It concluded that the 2008 TLMP Amendment should be flexible enough to provide sufficient timber to create an "integrated timber industry" in Southeast Alaska. See 2008 TLMP Amendment ROD at 35. An integrated industry "is one that includes processing facilities and markets for all types of logs from timber harvest operations conducted in the area, and for byproducts such as chips that result from processing those logs into lumber or other products." Id. Although such an industry does not currently exist in Southeast Alaska, the Forest Service "consider[ed] it important to provide an opportunity for the timber industry to become more integrated." Id. at 36. Relying on the Pacific Northwest Research Station's study, the Forest Service concluded that "a reliable annual supply of at least 200 million board feet of economic timber would be needed from the Tongass to meet the objective of providing an opportunity for the reestablishment of an integrated industry." Id. at 37. An allowable sale ...


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