dissenting:
As the majority points out, this is not the first time we have seen this case. In City of Tenakee Springs v. Clough, 915 F.2d 1308 (9th Cir.1990) (Tenakee II), we held that plaintiffs were entitled to a preliminary injunction because they had demonstrated the possibility of irreparable harm and the likelihood that they would succeed on the merits. Today, the majority holds that we need not reach the merits because the equities do not favor permanent injunc-tive relief. I disagree. It is sometimes said of judges that we cannot see the forest for the trees. In this case, it is the trees that the majority overlooks by focusing improperly on the forest as a whole.
The majority’s decision rests entirely on Congress’ enactment in 1990 of the Ton-gass Timber Reform Act (“TTRA”). In considering the equities, however, the majority errs by confusing the effect of the TTRA on the entire Tongass National Forest with the effect of the TTRA on the particular tracts of land that are the subject of this lawsuit. The majority notes that the TTRA will reduce the volume of timber to be harvested, expand wilderness areas, and commission a study of environmental effects. However, none of these changes will affect the land currently designated for logging under the 1989 Supplemental Environmental Impact Statement (“SEIS”).
The majority also notes that the TTRA will prevent long-term carryovers in the future. However, the same provision that bars future carryovers will force the Alas*780ka Pulp Corporation (“APC”) to harvest all timber currently designated under the allegedly inadequate SEIS within three years if it hopes to receive further offerings of timber. TTRA § 301(c)(3). The one major effect the TTRA will have on the particular tracts at issue here is to ensure that a large number of the trees on them will be logged in a relatively short period of time. If anything, this tips the equities in favor of the plaintiffs and makes it even more important that we address their claims on the merits.
We discussed plaintiffs’ claims at length in Tenakee II. The 1989 SEIS authorizes the Forest Service to make available 696 metric million board feet (MMBF) for the 1986-90 operating period. However, because APC harvested an average of only 85 MMBF in each of the first four years, the SEIS in effect made available more than 350 MMBF for the period November 1989 through December 1990. Tenakee II, 915 F.2d at 1311.
Plaintiffs contend that the Forest Service did not consider reasonable alternatives to making such a large amount of timber available in a single year. Indeed, they argue that the government’s contract with APC did not require the government to offer 700 MMBF during the 1986-90 period. In Tenakee II, we expressed our view that plaintiffs’ “interpretation of the language of the contract is not unreasonable.” 915 F.2d at 1311. “[I]t is not at all clear,” we said, “that the contract requires the government to make available to APC hundreds of millions more board feet than it could possibly cut during the five-year period.” Id.
Even if the contract with APC does require that 700 MMBF be made available during the 1986-90 period, plaintiffs argue that the Forest Service should have considered cancelling or modifying the contract. We noted in Tenakee II that the Forest Service’s regulations permit it to cancel or modify a contract where it would result in serious environmental degradation or resource damage. Id. at 1312. The SEIS failed to consider not only this alternative but also the alternative of modifying the contract by congressional enactment. “[T]he fact that an alternative requires legislative action does not automatically justify excluding it from an EIS.” City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 197, 98 L.Ed.2d 148 (1987).
Plaintiffs also contend that the 1989 SEIS is deficient because it fails to consider cumulative impacts adequately. The SEIS considers the impact of logging on environmental and subsistence uses in each of four Analysis Areas (“AA’s”) but does not consider the cumulative impact of logging in all four areas. To give one example, the Village of Hoonah is divided between two AA’s. One part of the SEIS addresses the impact on Hoonah of losing 214 deer because of logging in one AA. Another part of the SEIS addresses the impact on Hoo-nah of losing 190 deer because of logging in a second AA. Nowhere, however, does the SEIS consider the cumulative impact on Hoonah of losing 404 deer. We noted in Tenakee II that plaintiffs had “raised serious questions concerning the adequacy of the EIS with regard to cumulative impact analysis required by both NEPA and AN-ILCA.” 915 F.2d at 1313.
The majority claims that the inadequacies of the 1989 SEIS were addressed by Congress in passing the TTRA. However, nothing in the TTRA or its legislative history supports the assumption that Congress intended to validate retroactively the 1989 SEIS or exempt it from complying with NEPA and ANILCA.
I respectfully dissent.