Southeast Alaska Conservation Council et al v. Federal Highway Administration et al, No. 1:2006cv00009 - Document 199 (D. Alaska 2014)

Court Description: ORDER denying 187 Motion for Clarification. Signed by Judge John W. Sedwick on 11/25/14. (RMC, COURT STAFF)

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Southeast Alaska Conservation Council et al v. Federal Highway Administration et al Doc. 199 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 Southeast Alaska Conservation Council, et al. 12 Plaintiffs, 13 vs. 14 15 Federal Highway Administration, et al. 16 Defendants, 17 and 18 State of Alaska, 19 Intervenor-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-0009 JWS ORDER AND OPINION [Re: Motion at Docket 187] 20 21 22 I. MOTION PRESENTED At docket 187 intervenor-defendant State of Alaska filed a renewed motion for 23 clarification of the amended judgment at docket 117 pursuant to Rule 62(c) of the 24 Federal Rules of Civil Procedure. Plaintiffs’ response is at docket 195, and the federal 25 defendants’ response is at docket 196. The State filed a reply at docket 197. Oral 26 argument was requested but would not assist the court. 27 28 -1- 1 II. BACKGROUND 2 Plaintiffs filed this action more than eight years ago challenging the federal 3 defendants’ decision to authorize the Juneau Access Improvements Project (Project), 4 which involved the construction of a road extension and ferry terminal north of Juneau 5 in a roadless area of the Tongass National Forest. On February 13, 2009, the court 6 granted plaintiffs’ motion for summary judgment in part, declaring the environmental 7 impact statement (EIS) that was prepared in connection with the Project violates the 8 National Environmental Protection Act (NEPA) because it does not consider an 9 alternative for improved ferry service using existing ferries and terminals.1 The court’s 10 judgment was entered at docket 107 and amended at docket 117. The amended 11 judgment vacates the decision to select the State’s propo sed construction plan, 12 remands the decision to authorize a right-of-way easement for the Project to the United 13 States Forest Service, and enjoins “[a]ny and all construction activities related to the 14 [Project], and any and all activities dependent upon the issuance of a valid 15 environmental impact statement . . . until such time as defendants demonstrate full 16 compliance with 42 U.S.C. § 4332, its implementing regulations, and this Court’s Order 17 of Feb. 13, 2009 (Doc. No. 105).” 2 18 Defendants appealed to the Ninth Circuit Court of Appeals.3 While the appeal 19 was pending, the State filed an unopposed motion to clarify the injunction pursuant to 20 Rule 62(c).4 The motion sought clarification that “the 3-mile extension of Glacier 21 Highway (State Project No. 69583) is a separate and distinct project f rom the Juneau 22 23 24 1 25 2 26 3 27 28 Doc. 105 at 21. Doc. 117 at 2. Docs. 119, 123. The federal defendants voluntarily dismissal their appeal and did not participate in the State’s appeal. 4 Doc. 133. -2- 1 Access Improvement Project (State Project No. 71100; Federal Project 2 No. STP-000S(131)).” It was granted at docket 138. On May 4, 2011, a divided Ninth Circuit panel affirmed the court’s judgment in its 3 4 entirety, holding that the EIS violated NEPA “[b]y failing to examine a viable and 5 reasonable alternative to the proposed project, and by not providing an adequate 6 justification for its omission.”5 The State’s petition for panel rehearing and petition for 7 hearing en banc were denied,6 and the Ninth Circuit’s mandate was issued on August 5, 8 2011.7 9 In 2013 the State filed a second motion for clarification of the injunction, 10 informing the court that the State intended to receive and record an easement from the 11 Forest Service that would “authorize engineering field work and other activities 12 necessary or incident to highway and utility planning, design[,] and environmental 13 review processes.”8 The State sought a declaration that its receipt or recordation of the 14 easement would not depend on a valid EIS, and therefore would not violate the court’s 15 injunction.9 The court held that the State’s motion was premature because the process 16 for defining the contours of a right-of-way or easement outlined in the Memorandum of 17 Understanding (MOU) between the Forest Service and the State had not yet been 18 completed.10 The State’s motion was denied without prejudice to renewal at a later 19 date if and when an “easement has been reduced to a specific right-of-way or 20 21 22 23 5 Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th Cir. 2011). 6 24 25 Doc. 142. 7 Doc. 143. 26 8 27 9 28 10 Doc. 170. Doc. 171 at 2. Doc. 185 at 6. -3- 1 easement defined by the signatories to the MOU after they take into account the 2 requirements of the MOU.”11 The State now renews its motion. 3 4 III. STANDARD OF REVIEW Rule 62 contains various provisions that govern stays of proceedings to enforce 5 a judgment. Rule 62(c) pertains to injunctions pending appeal, and authorizes the 6 district court to suspend, modify, restore, or grant an injunction during the pendency of 7 an appeal. 12 The purpose of the rule is to codify the district court’s inherent, limited 8 power to preserve the status quo while an appeal is pending.13 Because the appeal 9 concluded in 2011, Rule 62© has no application here. Nev ertheless, the court will 10 consider the State’s motion under its inherent power to enforce its own judgments.14 11 IV. DISCUSSION 12 The State’s motion seeks “clarification” of the injunction, but in substance it 13 seeks to supplement the amended judgment with the following two declarations: (1) “the 14 receipt and recordation of an easement established by Section 4407 of Public Law 15 109-59 is not dependent upon the issuance of a valid [EIS];” and (2) the State’s 16 “intended use of the easement to conduct engineering activities necessary or incident 17 to highway planning, design and environmental review processes is not dependent 18 upon the issuance of a valid [EIS].”15 The first declaration was also sought in the 19 State’s 2013 motion for clarification;16 the second is a new request. 20 21 11 Id. 22 12 23 24 25 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2904 (3d ed. 2014). 13 McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, Int’l Typographical Union, 686 F.2d 731, 734 (9th Cir. 1982). 26 14 27 15 28 16 See Duchek v. Jacobi, 646 F.2d 415, 418 (9th Cir. 1981). Doc. 187 at 2. See also Doc. 188-3 at 1-2. Doc. 170 at 4. -4- 1 The MOU describes a two-step process for developing an easement. First, the 2 Forest Service grants the State a highway and utility planning easement (or “D1 3 Planning Easement”) that allows the State to “conduct engineering and all other 4 activities necessary or incident to highway and utility planning, design and 5 environmental review processes” in the easement.17 Second, the Forest Service sends 6 the State written acceptance of its survey diagram and issues it a construction, 7 reconstruction, operation, and maintenance easement (or “D2 Construction 8 Easement”),18 “which authorizes construction and maintenance of the facility.”19 In the 9 spring of 2012, the State asked the Forest Service to issue a D1 Planning Easement so 10 that the State could conduct “necessary planning activities,” which have now been 11 identified as various geotechnical investigations in four different zones.20 In 2013 the 12 court explained that once a specific easement has been identified through the bilateral 13 process described in the MOU the court “could sensibly be asked to determine whether 14 receipt and recording of that specific easement would violate the injunction.” 21 15 The State’s inability to present the court with a proposed easement that has 16 been specifically delineated pursuant to the MOU, which plagued its 2013 motion for 17 clarification, persists today. Although the State and the federal defendants have 18 engaged in discussions regarding the contours of the State’s proposed easement,22 19 these discussions have still not culminated in an agreement.23 The State’s motion is 20 21 17 22 18 23 19 24 20 25 21 26 27 28 Doc. 171-4 at 2, 10. Id. at 3. Doc. 188 at 5. Doc. 188-2 at 2-4 ¶¶ 5, 7. Doc. 185 at 6. 22 Doc. 196 at 7. 23 Id. (explaining that the draft agreement submitted by the State as Exhibit A “has not . . . been executed by the Forest Service” and therefore “is the State’s proposal only.”). -5- 1 denied for the same reason its last motion was: the MOU process has not yet been 2 completed.24 3 In its reply brief the State invokes 5 U.S.C. § 706(1) and asks the court to com pel 4 the Forest Service to issue the D1 Planning Easement.25 This request will not be 5 considered because the State raised it for the first time on reply,26 and because it 6 requests novel relief not contemplated by the court’s injunction and therefore exceeds 7 the court’s inherent power to enforce its own judgments. If the State wants a court 8 order compelling the Forest Service to issue the D1 Planning Easement, it will have to 9 file a new lawsuit. 10 11 12 13 V. CONCLUSION Based on the preceding discussion, the State’s renewed motion for clarification at Docket 187 is DENIED. DATED this 25th day of November 2014. 14 /s/ 15 JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 24 25 26 27 28 Id. at 9. 25 Doc. 197 at 15. 26 See, e.g., State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties] cannot raise a new issue for the first time in their reply briefs.” (citations omitted)); United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”). -6-

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