Logging in the Tongass: What was Known and When

A Ninth Circuit Case that may wind up being a Very Big Deal

The Tongass Timber Battle.  It rivals the Spotted Owl wars in longevity, energy, lawsuit volume and rhetorical pitch.  The Southeast Alaska Conservation Council and allies headed to the Ninth Circuit yesterday on, among other things, a NEPA claim against the Forest Service (USFS) in what might wind up being more than just the latest salvo.

The petitioners are appealing USFS’s decision to permit the cutting of up to 6,200 acres (or about 120 million board feet) of “old growth” at up to 4.5 million board feet per month.   In one light, this is small potatoes: the Tongass, at 17 million acres, constitutes most of the Southeast Alaskan panhandle.  tongassIn another light, though, this is a gigantic bite out of what remains of relatively intact, relatively undisturbed temperate forest there: big parts of the Tongass have been intensively logged already.  And the local communities of the Tongass are, in some measure, economically dependent on extractive industries like logging.  Which is the real rub: for some timber, there just isn’t any economic substitute.  Very large trees command market premiums.  On the other hand, tourism commands a much larger premium and, for the Alaskan panhandle particularly, a premium connected directly to the presence of intact forests, slopes, trails, and interior forest streams.

Depending on who you ask, then, cutting big lots of old growth timber either makes a lot of (local) economic sense or doesn’t—and USFS hasn’t exactly been of one mind on the matter.  {Check out this piece at NatGeo on the federal subsidies that go into the average Tongass logging project.}

Enter NEPA and the environmental coalition opposing the Big Thorne project.  Trying to halt the felling of Tongass’s immense cedars, spruce, and other conifers—nearly a third of which (by one reliable estimate) have already been cut—has been a battle.

Big Thorne: In the Side of USFS

The “project” dates at least to 2008 when USFS was finalizing its current Land and Resource Management Plan under the National Forest Management Act and mentioned a logging plan of its scale and scope.  More specifically, though, USFS prepared an EIS and record of decision (ROD) in 2013 describing this “Big Thorne” project in detail.  This is what USFS had to say justifying the decision:

A stable supply of wood helps the industry have confidence in their wood supply over the next several years. The Big Thorne project also allows the Forest Service time to prepare young growth projects for offer in the immediate future.

The Forest Service projects that Big Thorne will support over 600 annualized jobs and provide opportunities for a variety of sale sizes, supplying opportunities for small local operators and larger operators in Southeast Alaska.

The Big Thorne Decision allows for a 6- to10-year supply of timber, which could provide stability to the industry and sustain jobs while giving sawmills an opportunity to retool to process young growth timber and seek new markets. Meanwhile the Forest Service will invest its planning efforts in young growth timber projects.

The longer term supply will also give the industry time to investigate the current demand for young growth wood products and cultivate markets with the greatest potential for future sales.

Following administrative appeals, the environmental coalition went to court.  The district court hearing SEACC’s claims, Judge Ralph Beistline presiding, dismissed in full.  That dismissal allows the project to commence April 1, i.e., tomorrow.  {Opinion here.}

So now enter the Ninth Circuit—by all accounts, the NEPA-friendliest court in the land.  Petitioners allege that USFS’s EIS was faulty because, among other things, it included a deficient consideration of resident wolf populations—contrary to 40 C.F.R. § 1502.22 (requiring that information “essential to a reasoned choice among alternatives” be included in an EIS where “the overall costs of obtaining it are not exorbitant”).  USFS argued that “complete” wolf population data wasn’t collected or considered because it wasn’t essential to a reasoned decision.  This in the face of substantial scientific dispute over the nature and magnitude of expected changes from the Big Thorne logging.  In essence, USFS argued that it knew enough about the resident wolves and didn’t want to waste resources integrating more or better information before moving ahead on the project.

The Ninth Circuit panel that hears this appeal will have to grapple first with the availability of a preliminary injunction in the case, a matter on which the Ninth Circuit and SCOTUS have quite a history—and regarding NEPA to boot!  See Winter v. NRDC, 555. U.S. 7 (2008).  We’ll be watching this case closely!


{Photo credit: Mark Brennan, Tongas NF near Ketchikan}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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