Tenakee Springs v. Franzel and the Tongass Timber Reform Act.

• Author: McCrackin, Karen A.
• Position: 1992 Ninth Circuit Environmental Review

In 1992, the Ninth Circuit closed the most recent chapter in a series of cases concerning logging in the Tongass National Forest in Alaska, determining that Congress, in enacting the Tongass Timber Reform Act, remedied the deficiencies alleged by the plaintiffs under NEPA and ANILCA. The author examines the history of the litigation, and concludes that the court's decision runs counter to the Reform Act's purpose of providing further protection for the Tongass.

1. Introduction

   A seven-year controversy presumably was put to rest in June of 1992 when the Ninth Circuit Court of Appeals heard the arguments for the third and final time in City of Tenakee Springs v. Franzel (Tenakee III).(1) The controversy concerned old-growth timber harvesting in the Tongass National Forest in Alaska. The U.S. Forest Service wanted to make vast tracts of old-growth forests available to a Tongass timber company for harvesting, asserting that a thirty year old contract mandated the sale. Conservation groups and subsistence users battled the harvest, challenging the sufficiency of the Forest Service's environmental impact statements (EISs), which were required by the National Environmental Policy Act of 1969 (NEPA).(2)

   In City of Tenakee Springs v. Block (Tenakee I)(3) and City of Tenakee Springs v. Clough (Tenakee II),(4) the Ninth Circuit agreed with conservation groups that the EISs were insufficient as a matter of law, issued a partial injunction against logging particularly sensitive lands, and remanded to the district court to redress the inadequacies. In Tenakee III, however, the court finally lifted the injunction, not because the Forest Service had cured these defects, but rather because the court believed that intervening congressional legislation - the Tongass Timber Reform Act of 1990, enacted after Tenakee II - essentially mooted the issue.

   This chapter provides an overview of the circumstances and legislation controlling this issue, the judicial decisions leading to Tenakee III, and an analysis of the court's reasoning.

2. Statutory Background

   Tongass National Forest in southeast Alaska was established at the beginning of the century and is the largest forest in the National Forest System.(5) The Tongass covers 16.7 million acres, of which approximately eight million acres are non forested, covered by glaciers, rocks and tundra.(6) Much of the remaining acreage is widely known as one of the world's last old-growth, temperate rain forests, boasting 800-year-old Sitka spruce, hemlocks, and cedars.(7) It is a complex ecosystem, home to a wide variety of wildlife and fish, including black bears, deer, moose, wolves, seals, sea lions, ravens, bald eagles and grizzly bears.(8) Additionally, more than ninety percent of Southeast Alaska's spawning salmon return to the Tongass each year.(9)

   Unlike national forests outside of Alaska, both rural Native and rural non-native residents "depend critically on the deer and other fish and wildlife resources of the forest to provide food and to preserve a way of life that, with the wildlife, is all too rapidly disappearing."(10) Rural residents depend on old-growth forests for subsistence, recreation, commercial fishing, and tourism.(11) Subsistence lifestyles that are thousands of years old are quickly being destroyed as clear-cutting of the forests is increased around these rural villages.(12)

   1. Tongass Timber Industry

      The Tongass old-growth forest attracts more than fish, wildlife and subsistence users. It also is of keen interest to timber companies. Since the 1920s, the Forest Service has worked, often with the blessing of Congress, to establish a thriving timber industry to draw settlers to the region and to stabilize the "boom and bust" Alaskan economy.(13) In the 1950s, as long-term timber sales were phased out in most of the nation's forests, the Forest Service awarded fifty-year contracts to three Tongass timber companies, two of which remain in effect today.(14) Of particular concern to the Tenakee Springs plaintiffs was the contract awarded in 1956 to the Alaska Lumber and Pulp Company, now the Japanese-owned Alaska Pulp Corporation (APC), for 4.975 billion board feet of timber.(15) This contract will expire in 2011.(16)

      Together with the other long-term contract holder, Ketchikan Pulp Company, APC controls approximately sixty-six percent of the timber sales in the Tongass.(17) It had long been feared by some that these two companies might collude to fix market prices, thereby squeezing out independent contractors. Indeed, in 1983 the Ninth Circuit affirmed convictions of these companies for anti-trust violations.(18) Even so, both contracts remain intact today.

   2. Tongass Land Management Plan

      Twenty years after issuing these contracts, Congress passed the National Forest Management Act of 1976 (NFMA),(19) which directed the Forest Service to prepare comprehensive plans for each national forest.(20) Tongass Land Management Plans (TLMPs) must consider both the economic and environmental aspects of resource management, ensuring plant and wildlife diversity.(21) NFMA section 15(b) specifically required the Forest Service to revise Alaska's long-term contracts in their five-year operating plans as necessary to bring them into line with NFMA's goals.

      In 1979, the Forest Service issued the first TLMP as required by NFMA, accompanied by a ten-year programmatic EIS for use of the entire Tongass Forest.(22) The TLMP dedicated approximately seven million acres to a management regime that permitted logging, and found that, even under NFMA's economic and environmental requirements, the long-term contracts for harvesting billions of board feet of timber each decade could be met.(23)

   3. Alaska National Interest Lands Conservation Act

      In 1980, the Alaska National Interest Lands Conservation Act (ANILCA) preserved approximately fifty-six million acres of wilderness in Alaska, including 5.4 million in the Tongass National Forest.(24) Three-quarters of the Tongass designated as wilderness has no commercially viable timber.(25) However, despite this, to assuage concerns that the wilderness designation would be a heavy blow to the local timber-based economy, Congress reached a compromise: it appropriated $40 million annually to maintain the Tongass timber industries and guaranteed availability of 4.5 billion board feet of timber per decade.(26) Additionally, Congress exempted the Tongass from the NFMA requirement that national forests limit timber harvesting to lands the Forest Service has determined to be economically and physically suitable.(27) ANILCA thus gave the timber industry in the Tongass a double advantage over timber industries in all other national forests: a large annual subsidy, and special exemptions from economic and environmental requirements which other forests must meet when issuing timber sales.

   4. Economic and Environmental Concerns

      With ANILCA allowing fewer environmental and economic restrictions, and with the presence of long-term timber contracts, critics contend that the Forest Service has evinced a clear preference for timber harvesting in the Tongass.(28) While logging is permitted in more environmentally sensitive lands in the Tongass than in any other forest in the system, the return rate of approximately eight cents on the taxpayer dollar is substantially less than that of any other U.S. National Forest harvest.(29) Additionally, it has been estimated that sixty percent of the Tongass timber is dedicated to pulp mills as the raw material source in cellophane and rayon, with the remainder manufactured into lumber in Southeast Alaska sawmills.(30) Almost all of the end products from the Tongass timber supply eventually are shipped overseas.(31)

      At the same time the timber industry is harvesting Tongass National Forest lands, Native Corporations(32) are on their own lands matching and even exceeding the Forest Service's rate of logging.(33) The Alaska Native Claims Settlement Act of 1971(34) (ANCSA) guaranteed Native Corporations fee title to approximately 550,000 acres of their choosing. The selection of prime land has essentially been completed, as the Native Corporations have selected all but 40,000 acres.(35) This land that was withdrawn from the overall timber base increases pressure on the remaining forests.(36)

   5. Tongass Timber Reform Act

      In response to some of these concerns, Congress passed the Tongass Timber Reform Act(37) (TTRA) in 1990 as an amendment to ANILCA. The TTRA was the culmination of years of hearings and compromise between the Senate and the House of Representatives, and between supporters and opponents of Tongass timber reform.(38) The Senate Committee on Energy and Natural Resources report on the TTRA clearly set out its purpose for enacting the amendment:

      The purposes of H.R. 987 . . . are (1) to repeal the $40 million direct appropriation for the Tongass National Forest; (2) to repeal the 4.5 billion board feet mandated harvest level for the forest and replace it with direction to the Secretary of Agriculture to seek to meet market demand for timber; (3) to establish 100-feet buffer zones on either side of certain streams in the forest, within which commercial timber harvesting will be prohibited; . . . (5) to modify the two long-term contracts on the Tongass National Forest to be more consistent with independent short-term sales . . . .(39)

      Additionally, more than one million acres were withdrawn from the timber base, with about one-third of that designated as wilderness areas. The remainder was designated for multiple use other than timber harvesting because the TTRA re-implemented the NFMA mandate that Tongass meet the same multiple-use requirements as all other National Forests.(40) A brief overview of the TTRA sections pertinent to Tenakee III follows.

      1. Repeal of Subsidy and Mandated Harvest Levels

         Section 101 of the TTRA deleted the $40 million annual subsidy and the mandated availability of 4.5 billion board feet of...