Opinion
No. CV 97-1787-KI
December 15, 2000
Karl G. Anuta, Sokol Anuta, P.C., Portland, Oregon, for plaintiffs.
Eric S. Gould, U.S. Department of Justice Environment and Natural Resources Division General Litigation Section, Washington, D.C., for defendants.
Mark A. Nitczynski, U.S. Department of Justice Environmental Defense Section (Denver Field Office), Denver, Colorado.
Per A. Ramfjord, Stoel Rives LLP, Portland, Oregon.
Richard H. Allan, Ball Janik LLP, Portland, Oregon, for Defendants-Intervenors.
OPINION
Numerous environmental organizations filed this action alleging that activities at Mt. Hood Meadows ski area violate the National Forest ski area Permit Act of 1986 ("SAPA"), 16 U.S.C. § 497b, the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 501 . Defendants are the United States Forest Service ("USFS") and some of its employees acting in their official capacities (collectively, the "Federal Defendants"). Defendant-intervenors are two business entities that operate the ski area, Mt. Hood Meadows Oregon Ltd and Mt. Hood Meadows Development Corp. (collectively, "MHM"). Plaintiffs are concerned about management at MHM ski area over the last 30 years and activities related to a proposed expansion.
Plaintiffs' claims under the Clean Water Act, 33 U.S.C. § 1365, were settled.
Before the court is plaintiffs' motion for partial summary judgment (#116), Federal Defendants' motion to dismiss or in the alternative for summary judgment (#123), and MHM defendants' motion for partial summary judgment (#127). For the reasons below, I find two NEPA violations and request supplemental briefing on certain issues.
BACKGROUND
The USFS manages the National Forest System. It must develop land and resource management plans (also known as forest plans) under NFMA. Ski areas within the National Forest System may be operated under Special Use Permits obtained under SAPA. To obtain the permit, the ski area must submit a proposed ski area master plan which is subject to the terms of the forest plan.
For the Mt. Hood National Forest, the documents are organized in tiers. At the top, there is a regional guide covering all Forest Service units in Region 6. Next is a land and resource management plan for Mt. Hood National Forest ("Forest Plan"), originally issued in 1990 and amended by the Northwest Forest Plan of April 1994. The Forest Plan states forest-wide standards and guidelines and divides Mt. Hood National Forest into forty-six management areas which each have management prescriptions.
In 1965, the USFS proposed to develop a ski area in the location now known as Mt. Hood Meadows. A predecessor to MHM was granted a Special Use Permit in 1966. The Master Plan for MHM ski area and an EIS were issued in 1978. The MHM ski area is currently operated under a 40-year permit effectuated on March 11, 1993.
In March 1988, MHM presented to the Mt. Hood National Forest a proposed concept and two alternatives for a new Master Plan intended to expand the area and replace the then-current Master Plan. On March 3, 1989, the USFS published a Notice of Intent to prepare an environmental impact statement ("EIS") concerning the proposed expansion. A draft EIS ("DEIS") on the proposal was released for public review in February 1989. The USFS received over 16,800 comments, responded to some while drafting a revision issued in 1990, and published a Notice of Availability of a final EIS ("FEIS") on January 18, 1991. An additional comment period then occurred.
The USFS issued a Record of Decision ("ROD") on May 10, 1991, which authorized a new 15-20 year Master Plan to replace the 1978 Master Plan. The 1991 Master Plan included: (1) conversion from a day-use ski area to a full-season regional destination resort with a maximum capacity of 15,000 persons at one time ("PAOT"); (2) 500 units of housing in phases of no more than 250 units; (3) expansion of the permit area by 700 acres to provide downhill skiing in the White River area; (4) replacement of some existing lifts with higher capacity lifts and construction of five new lifts; (5) construction and year-round operation of a mid-mountain restaurant; and (6) expansion of the permit area by 96 areas for additional groomed nordic skiing in the Hood River Meadows area. AR 4-5.
Some of the plaintiffs administratively appealed the ROD. The ROD was reversed and remanded on November 8, 1991, to allow additional data on the effect of the expansion on Native American interests. The plaintiffs' additional grounds for the appeal were not addressed. In May 1995, MHM formally withdrew its request for approval of facilities used exclusively for overnight accommodations and asked the Mt. Hood National Forest to reinitiate the environmental review process for the revised conceptual Master Plan proposal.
On January 26, 1996, the USFS published a Notice of Intent to prepare a supplemental EIS ("SEIS") and provided the draft SEIS ("DSEIS") for review on July 12, 1996. The USFS responded to some of the comments received and made a final SEIS ("FSEIS") available on January 24, 1997. It also issued a ROD on January 24, 1997, which some of the plaintiffs appealed administratively. The appeals were denied on June 23, 1997. The 1997 ROD amended portions of the Forest Plan, amended the Special Use Permit for the MHM ski area, and approved a new Master Plan for the MHM ski area. The ROD summarizes the following changes to the Master Plan: (1) increases in the winter PAOT from 8,600 to 13,900; (2) increases in the summer PAOT from 150-500 to 500-1,500; (3) chairlifts increased from 12 to 20; (4) expansion at the three bases; (5) construction of a restaurant on the mountain; (6) increase of parking areas from 22.5 acres to 30.5 acres; and (7) a 96 acre expansion at Hood River Meadows. AR 11. The 1997 ROD is at issue in this action.
The Federal Defendants dispute this statement and contend that the ROD recorded a decision to amend the Special Use Permit but that the actual amendment has not yet been executed. The ROD states:
I am amending the Special Use Permit issued to MHM in December 1992 to:
a. Expand the permit area by 96 acres to the east of the Hood River Meadows base between the current permit boundary and Clark Creek.
b. Establish authorized summer uses.
AR 7. My analysis below does not require resolution of the discrepancy.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
Generally, NEPA imposes procedural requirements and NFMA imposes substantive requirements. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir. 1998). Further details of the laws are discussed below.
DISCUSSION
I. Mismanagement Claim (Claim One)
In this and following "Nature of the Claim" sections of this opinion, I will summarize plaintiffs' arguments. The sections are all stated from plaintiffs' view and do not necessarily reflect my conclusions.
In their first claim for relief, plaintiffs allege that MHM, acting with the approval of Federal Defendants, conducted daily operations and special projects which resulted in fill entering rivers, creeks, streams, and wetlands within the MHM ski area Special Use Permit boundaries. Generally, plaintiffs allege that the USFS has engaged in a pattern of representing to the public and decision-makers that certain actions would be taken or resources protected. Subsequently, the USFS has allegedly allowed or authorized conduct without regard for the earlier promises, misrepresenting what is happening on-the-ground at the MHM ski area.
Plaintiffs allege that defendants have violated SAPA and the APA by creating or allowing ongoing ski area Special Use Permit violations, reissuing a ski area Special Use Permit to MHM in 1993, and amending and reissuing the ski area Special Use Permit in 1997.
Plaintiffs also allege that defendants are violating numerous standards, guidelines, and management prescriptions stated in the Forest Plan. These violations and the two issuances of the ski area Special Use Permit allegedly violate NFMA and the APA.
B. Applicable Law
The parties agree that the first claim for relief is governed by the standards of the APA. Under the APA, the court may overturn an agency action only if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S. Ct. 1851 (1989); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), cert. denied, 527 U.S. 1003 (1999). In determining whether a Forest Service decision is arbitrary and capricious, courts "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh, 490 U.S. at 378. "A decision is arbitrary and capricious if the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'"O'Keeffe's. Inc. v. U.S. Consumer Product Safety Comm., 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto, Ins., Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867 (1983)). Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency. Id. at 942.
C. Final Agency Action
The APA allows judicial review for an "[a]gency action made reviewable by statute and final agency action for which there is no adequate remedy in a court." 5 U.S.C. § 704. Intermediate agency actions or rulings not directly reviewable are subject to review during the review of the final agency action. Id. "Except where Congress explicitly provides for [judicial] correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific `final agency action' has an actual or immediately threatened effect." Lujan v. National Wildlife Federation, 497 U.S. 871, 894, 110 S.Ct. 3177 (1990). The Court acknowledged the frustration of the plaintiff organization with its objective of "across-the-board" protection of wildlife, streams, and forests. The organization, however, "cannot demand a general judicial review of the BLM's day-to-day operations" in its land withdrawal review program covering 1,250 classifications at the time. Id. at 894, 899. Two conditions must be met for an administrative action to be considered a final one under the APA:
(1) the action should mark the consummation of the agency's decision-making process; and (2) the action be one by which rights or obligations have been determined or from which legal consequences flow.Ecology Center. Inc. v. U.S. Forest Service, 192 F.3d 922, 925 (9th Cir. 1997). In Ecology Center, the USFS was required by a forest plan to monitor numerous parameters, such as wildlife populations, on specified intervals and produce reports of the monitoring data on which to base recommendations to the Forest Supervisor about possible management changes. The court held that inadequate monitoring was not a final agency action. Under the first prong, the conduct was a step leading to an agency decision. Under the second prong, the monitoring, although mandatory under the forest plan, was not a concrete action causing a harm. This was because NFMA did not provide for public participation in the conduct of the monitoring. Id..
Federal Defendants contend that portions of plaintiffs' first claim for relief are not subject to review under the APA because they are not final agency actions. They point to plaintiffs' identification in their motion of three types of conduct challenged by the complaint: (1) ongoing day-to-day management of the MHM ski area for the last six years; (2) USFS approval of the 1997 Master Plan; and (3) reauthorization of a Special Use Permit. Federal defendants admit that the second item is a final agency action but contend that the first is the type of conduct not considered final agency actions under Lujan. For the third item, they contend that the Special Use Permit was not reauthorized because the 1997 ROD authorized an amendment but the amendment has not yet been made.
In their reply brief, plaintiffs respond that the three items were categories of final agency
decisions. They list 20 final agency actions which they contest in the first claim:
1. 1997 ROD approval of the Master Plan (#2 in the categories above)
2. 1997 ROD amendments of the Forest Plan
3. 1997 ROD decision to amend the Special Use Permit
4. 1995 NEPA decision to construct the Heather Canyon Chairlift
5. 1995 NEPA decision approving the Hood River Meadows lift conversion to high speed
6. 1994 NEPA decision on Mt. Hood Express lift high speed conversion
7. 1994 NEPA decision on Hood River Meadows day lodge and parking lot expansion
8. 1993 NEPA decision on Chunk Swirly blasting and slope grooming
9. 1992 NEPA decision on Gulch Chairlift authorization
10. 1993 Special Use Permit renewal
11. 1992 half pipe slope grooming project
12-21. Nine summer work project lists approved by the USFS in 1991-2000
Federal Defendants contend that plaintiffs should be estopped from listing these 21 actions at this late date in the litigation and should be required to stay with the three generic categories stated in the summary judgment motion. They also note that the administrative record filed concerned the three categories and not the final actions listed above. If plaintiffs are allowed to continue to pursue APA claims contesting each of these 20 actions, Federal Defendants contend that they must file additional administrative records which cover them. Moreover, Federal Defendants state that plaintiffs already challenged action number 9 in court and failed to pursue an administrative appeal against action number 10, and are consequently precluded from challenging those two actions at this time. Finally, Federal Defendants contend that actions number 4-8, and 11-20 are all completed, thus mooting a challenge at this time.
Plaintiffs admitted at oral argument that their first claim for relief is unique and that they were unaware of any published decision where a plaintiff alleged a similar claim. This uniqueness has led to confusion over what the claim entails on the part of defendants and the court. The case is now three years old. The complaint has been amended twice, the last time on March 6, 2000. The parties spent days in a judicial settlement conference with the Honorable Janice Stewart, resulting in a partial settlement. The claims should be well understood by all at this point. I conclude that it would be unreasonable to allow plaintiffs to specify now additional conduct which underlies their first claim. Consequently, I am holding plaintiffs to the three categories of relief specified in their motion: (1) ongoing day-to-day management of the MHM ski area for the last six years; (2) USFS approval of the 1997 Master Plan; and (3) reauthorization of a Special Use Permit.
I agree with defendants that the day-to-day management of the MHM ski area is not a final agency action for APA review under Lujan. See also Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (challenge to even-aged timber management across all Texas national forests is not a final agency action under the APA, even though plaintiffs identified numerous allegedly-improper final agency actions, namely timber sales, within the program). Summary judgment is granted against that portion of claim one.
D. Ripeness
Federal defendants contend that a portion of claim one is not ripe for review: the allegations that reissuance of the Special Use Permit violates NFMA. They argue that the Special Use Permit does not authorize any implementing activity and thus, under the reasoning in my opinion of September 29, 1998, plaintiffs cannot contest the conduct. Relying onOhio Forestry Association v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665 (1998), I concluded that three alleged NFMA violations concerning the 1997 Master Plan were not ripe for review: (1) EIS documents failed to include more restrictive options for the general riparian area overlay; (2) the 1997 Master Plan is inconsistent with standards and guidelines in the Forest Plan; and (3) the EIS documents violate the Northwest Forest Plan Aquatic Conservation Strategy. I concluded that the claims would be ripe once the USFS authorized new facilities or uses in site-specific proposals. The Federal Defendants contend that the Special Use Permit, like the 1997 Master Plan, does not authorize any implementing activity.
Plaintiffs argue that the 20 actions listed above are final actions and are not pure planning. That argument does not meet Federal Defendants' argument. An action can be a final action under the APA but still be unripe for judicial review. The issuance of the land and resource management plan being challenged in Ohio Forestry was a final agency action even though the Court found it to be unripe for review. See Nevada Land Action Ass'n v. U.S. Forest Service, 8 F.3d 713 (9th Cir. 1993) (NFMA challenge to a land and resource management plan using APA standard of review).
The Special Use Permit states: "Nothing in this permit shall be construed to imply permission to build or maintain any improvement not specifically named in the Master Development Plan and approved in the annual operating plan, or further authorized in writing by the authorized officer." AR 4336 (emphasis in the original)).
The Ohio Forestry Court reviewed the four steps required before the USFS could permit logging under the forest plan. Even though there was "considerable legal distance between the adoption of the Plan and the moment when a tree is cut," the Court acknowledged that the plan's promulgation made logging more likely. Id. at 730. It reasoned: (1) the parties would not suffer significant hardship if review was delayed because the plan did not require anybody to do anything or refrain from doing anything; (2) a later challenge once logging was permitted could include a challenge to the plan itself; (3) delayed review would allow the USFS to refine the plan; and (4) a later challenge with further factual development would allow the court to focus on a particular logging proposal rather than on a plan affecting many parcels of land.Id. at 733-36.
As in my earlier ruling in this case, plaintiffs' challenge to the reissuance of the Special Use Permit is not ripe. The Permit itself does not authorize any action. Additional work on the part of the agency would refine the claim before it came to this court. Summary judgment is granted against this portion of claim one.
E. Standing for the SAPA Challenge
Plaintiffs allege that defendants violated SAPA and the APA by creating or allowing ongoing ski area Special Use Permit violations, reissuing a ski area Special Use Permit to MHM in 1993, and amending and reissuing the ski area Special Use Permit in 1997.
Federal Defendants contend that plaintiffs lack standing to challenge violations of SAPA under the APA for two reasons: (1) plaintiffs are not adversely affected or aggrieved within the meaning of SAPA; and (2) SAPA contains no law, in the form of standards, to apply to the case.
Plaintiffs do not provide an argument against Federal Defendants' first contention. Federal Defendants state that the real thrust of SAPA was to authorize ski areas with a single permit lasting for up to 40 years, rather than 30 years as under the previous law in effect since 1915. I agree with their characterization of the act.
For standing under the APA, a plaintiff must not only challenge a final agency action but must "show that the injury complained of falls within the zone of interests sought to be protected by the statutory provision whose violation forms the basis" of the allegations. ONRC Action v. Bureau of Land Management, 150 F.3d 1132, 1135 (9th Cir. 1998) (internal quotation omitted).
I conclude that plaintiffs, all environmental organizations, do not fall within the zone of interests protected by SAPA, those of ski areas. The interests of the two groups are opposed, at least in this action.
Plaintiffs' SAPA and related APA claims fail for a second reason. Judicial review under the APA is precluded if the "agency action is committed to agency discretion by law." 5 U.S.C. § 701 (a)(2). Review is precluded if "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute (`law') can be taken to have `committed' the decisionmaking to the agency's judgment absolutely." The exception is a narrow one. Heckler v. Chaney, 470 U.S. 821,830, 838, 105 S.Ct. 1649 (1985). Put simply, there is no law to apply.
Plaintiffs point to the following SAPA regulations as the law they wish the court to apply:
§ 251.56 Terms and conditions.
(a) General.
(1) Each special use authorization must contain:
(i) Terms and conditions which will:
(B) Minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment;
(ii) Such terms and conditions as the authorized officer deems necessary to:
(F) Require siting to cause the least damage to the environment, taking into consideration feasibility and other relevant factors; and
(G) Otherwise protect the public interest.
Federal Defendants note that the quoted regulations were not promulgated pursuant to SAPA. After SAPA was enacted, the USFS implemented other sections within § 251.56 concerning the duration and renewability of a ski area special use permit and the conversion of ski area authorizations. § 251.56(b) and (g); 54 Fed. Reg. 22,588 (1989). There is limited discussion about environmental concerns in the response to the public comments on the proposed rules. One discussion concerns the term of the permit and the requirement for consistency with documents required by the environmental laws. Id. at 22590. The USFS also comments that the NEPA process is not preempted in any way by the new rules and that Congress was dealing with "instruments of authorization and not with land allocation decisions nor questions of environmental concern." Id. at 22,592. The regulations cited by plaintiffs apply to special use permits of all types.
The regulations relied upon by plaintiffs are not part of SAPA. Thus, there is no law to apply to judge the USFS' exercise of discretion. Summary judgment is granted against plaintiffs' claims under SAPA and related APA claims.
F. Moot and Time-Barred Actions
Federal Defendants contend that in the first claim for relief; plaintiffs rely on conduct which is either moot or time-barred. They point to evidence in the supplemental record filed by plaintiffs which concerns actions in the 1960s through 1980s. Although Federal Defendants agree that agency decision-making can require examination of actions occurring in the past, they are concerned that plaintiffs burden the USFS and the court by the number of references to the past without an appropriate showing of the relevance to a final agency action.
Other than in an exception not applying here, all civil actions against the United States must be filed within six years after the right of action first accrues. 28 U.S.C. § 2401. A controversy may be moot even though the action was commenced within the applicable statute of limitations. "A controversy is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Friends of Payette v. Horseshoe Bend Hydroelectric, 988 F.2d 989, 996 (9th Cir. 1993) (internal quotation omitted).
Federal Defendants do not contend that a claim is time-barred or moot. They are concerned that some of the evidence on which plaintiffs rely to support their claims was more relevant to past agency actions, already litigated, than to the current controversy. Plaintiffs contend that the USFS's practice of ignoring on-the-ground problems, while continuing to approve EISs and issue RODs, is evidence of arbitrary and capricious conduct during the more recent agency actions which are before this court. Plaintiffs' point is a good one. Accordingly, the motion to dismiss claim one on the grounds that it relies on actions which are moot or time-barred is denied.
G. Effect of Settlement
Earlier in this action, the parties settled plaintiffs' claim based on the Clean Water Act, 33 U.S.C. § 1365 ("CWA"). On February 28, 2000, I entered a stipulated partial release of claims and order for dismissal containing the following provisions:
[Plaintiff] covenants and agrees that it will not seek any additional remedies under SAPA, NFMA, NEPA or APA for any potential or actual CWA violations rising out of activities listed in the table entitled "Summary of Allegations, ". . . provided, however, that [plaintiff] reserves the right to introduce factual evidence relating to such activities or the limited purpose of establishing Forest Service liability under SAPA, NFMA, NEPA or APA, but only to the extent any and all such activities violate SAPA, NFMA, NEPA or APA separate and apart from the fact that they may or are alleged to constitute CWA violations. . . .
MHM and the Forest Service do not waive, and expressly reserve, any and all defenses to the Second Amended Complaint (and any subsequent complaints, claims, causes of action and allegations), including but not limited to the defenses that any of [plaintiff's] complaints, claims, causes of action and allegations are barred by the doctrine of res judicata or collateral estoppel, or that the CWA provides the sole remedy for any such complaints, claims, causes of action or allegations.
¶¶ 2, 3.
Federal Defendants contend that part of plaintiffs' NFMA claim was resolved as part of the CWA claim settlement and that the claims under the two acts rely on many of the same factual allegations. They see no point in requiring the USFS to amend the FSEIS on the 1997 Master Plan Amendment to discuss settled matters which plaintiffs agree were resolved in an efficient and appropriate resolution which requires mitigation measures. Thus, Federal Defendants contend that the court should dismiss the claim.
Plaintiffs contend that under the settlement and language quoted above, they have the right to rely on the evidence they cite to support the non-CWA claims alleged in the second amended complaint.
I agree with plaintiffs. Defendants do not specify what particular claims should be dismissed based on this argument. As long as plaintiffs do not allege any claims under the CWA, I do not think the settlement affects the other claims.
H. Summary
The only portion of claim one remaining is plaintiffs' challenge to the USFS approval of the 1997 Master Plan. Defendants never briefed the merits of this claim. The parties are ordered to file supplemental briefs. By January 8, 2001, plaintiffs should specify the statutes allegedly violated, the specific violations, and the appropriate standard of review. By January 29, 2001, defendants should provide an argument on the merits, the appropriate standard of review, and any additional procedural challenges they wish to make.
II. NEPA Violations (Claim Two)
A. General Allegations
Plaintiffs contend that the 1990 FEIS and the 1997 FSEIS supporting the 1997 ROD are inadequate because the documents fail to fully inform the decision-maker about critical aspects of the proposed expansion in five areas: (I) need for expansion; (2) reasonable alternatives; (3) site-specific impacts; (4) accurate description of the affected environment; and (5) environmental consequences, including cumulative impacts. These will be discussed individually.
B. Applicable Law
When reviewing the adequacy of an EIS, the Ninth Circuit uses a "`rule of reason' that asks whether an EIS contains a `reasonably thorough discussion of the significant aspects of the probable environmental consequences.' Under this standard, `[o]nce satisfied that a proposing agency has taken a `hard look' at a decision's environmental consequences, the review is at an end.'" Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (citation omitted) (quotingIdaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)).
NEPA does not guarantee substantive results but only sets forth procedural mechanisms to ensure proper consideration of environmental concerns. Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142, 1150 (9th Cir. 1997). The court cannot substitute its "judgment for that of the agency concerning the wisdom or prudence of a proposed action." Id. NEPA does not require unanimity of opinion. The concerns and criticism of other federal agencies or other experts do not undermine the validity of the environmental documents. "[W]hen faced with conflicting evidence, an agency may rely on its own evidence." Id. at 1151.
C. Specific Failures in NEPA Documents
1. Failure to Show a Need for Expansion
a. Nature of the Claim
Plaintiffs contend that the FEIS/FSEIS try to justify the need for the expansion by relying on out-of-date and inaccurate data, or by not providing any discussion for certain types of expansion. The FEIS/FSEIS rely on an alpine skiing analysis to bootstrap a need for increased Nordic skiing. Plaintiffs rely on a declaration of Richard Lovett. Lovett states that the FEIS/FSEIS do not support a substantial growth in downhill skiing demand, rely on faulty assumptions even though data could have been obtained, admit that skier demand can be accommodated through 2010 without expansion, disregard data from the poor 1995-96 ski season, fail to consider data for other Oregon and Washington ski areas, and rely on outdated MHM 1990 market projections.
Plaintiffs argue the PAOT expanded number is three times the number of people the USFS typically designs ski areas to accommodate, the tenth highest day use level. Conclusions on the need for increased summer use or conversion to year-round use are made without analysis and ignore a study showing that summer demand is low to none without increased development. Existing privately-owned overnight housing facilities are acknowledged but no explanation is given as to why there is still a need for adding overnight lodging to accommodate 150 PAOT. No explanation is given on the need for additional late-season skiing or the new 1,000 occupant year-round mid-mountain restaurant.
b. Validity of the Claim
An EIS is required to have the following: "The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13. The purpose and need statement allows the agency to select and evaluate the range of alternatives.
In the DSEIS, the USFS built on the need analysis contained in the 1990 FEIS, expanded it to consider other factors beyond the number of skiers to be accommodated at one time, and updated it with newer data. AR 628-30, 825-29, 1095-99, 1242-52, 1374-86, 1849-65. In response to public comments, the USFS cited evidence that the FEIS demand analysis might be conservative and answered specific comments about skier demand. AR 98, 155-56.
Plaintiffs' expert disagrees with the USFS's choice of statistical methods, use of historical data, failure to obtain new and more accurate surveys, and points out some possible calculation errors. Although there are disagreements, the USFS clearly took a hard look at the need and made a reasonable attempt to forecast future skier demand. Plaintiffs expect more from the need and purpose statement than NEPA requires. The statement is to be brief under the regulations and does not require the specificity that plaintiffs would like to see. Summary judgment is granted against this claim.
2. Failure to Assess Reasonable Alternatives
a. Nature of the Claim
Plaintiffs allege that the USFS never seriously considered an alternative offered by them. In comments on the DSEIS, plaintiffs proposed an alternative which would allow some of the expansion but rely on off-mountain parking and shuttle bus transportation to the ski area. Under this alternative, plaintiffs believed that the MHM ski area parking lot could be reduced in size, which would force people onto the shuttle bus. Thus, the traffic on U.S. Highway 26 would not increase.
b. Validity of the Claim
The EIS is required to "rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." It must also include "reasonable alternatives not within the jurisdiction of the lead agency." 40 C.F.R. § 1502.14 (a), (c). The rule of reason guides the choice of alternatives and the extent each must be discussed. Only reasonable or feasible alternatives must be considered. Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142, 1155 (9th Cir. 1997). The EIS does not need to consider an infinite range of alternatives, alternatives that are not significantly distinguishable from others actually considered, alternatives which have substantially similar consequences as others considered, alternatives that are unlikely to be implemented, or alternatives that are inconsistent with its basic policy objectives.Id.; Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1181 (9th Cir. 1990); Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800, 813 (9th Cir. 1999). "A viable but unexamined alternative renders [the] environmental impact statement inadequate" however. Muckleshoot, 177 F.3d at 814 (internal quotation omitted).
In the DSEIS, the USFS considered in detail four development alternatives and a no-action alternative. Parking is currently on 22.5 acres distributed over three locations. The four development alternatives included parking increases of 20%, 36%, 36%, and 69%. The alternatives all assume that 25% of the skiers will come to MHM on buses. The four development alternatives all have a deficit of parking ranging from 0.7 to 5.5 acres, even after the parking area is increased. This reflects parking for as many as 1,925 skiers. AR 736.
The DSEIS and FSEIS state that one of the significant issues is the increase in peak hour traffic on US Highway 26. AR 65, 634. In November 1996 in comments to the DSEIS, Oregon's governor asked the USFS to deny any increase in parking at MHM because of the state's probable inability to improve Highway 26 during the next 15 years. He asked the USFS and the ski area to work together with the state to enhance and support alternative transportation options. SAR 6358-60. The ROD contains a two-page discussion of the issue. It recognizes that the amount of parking is the single greatest contributor to the increased traffic congestion. It also notes that proposed parking is less than that needed to accommodate the projected capacity. The USFS then chose the alternative that it believed would better mitigate MHM's contribution to peak hour traffic on the highway. It believed that denying a parking increase would render the authorized Master Plan unimplementable and that skiers might be forced to park on road shoulders. AR 28-29. In response to the public comment seeking an alternative with off-the-mountain parking and shuttle buses, the USFS stated that it does not have the authority to require off-site actions under the jurisdiction of state or local government. AR 116.
Plaintiffs' alternative is unlike any of those considered because of the large increase in parking allowed in the four development alternatives. Even though they all depend on busing of 25% of the skiers at peak capacities, plaintiffs' alternative would require more busing and would probably result in skiers being bused even on low-capacity days. There is no evidence that plaintiffs' alternative is not feasible. Plaintiffs contend that this model has been used in Europe, Arizona, Mt. Bachelor, and other ski areas. AR. 218. The USFS would not have to require off-site actions. If it decreased parking at the ski area, MHM would have the option of making arrangements off-site if it wanted to increase the number of skiers. That would be a business decision. It does not follow that the Master Plan could not be implemented. Plaintiffs' alternative would still allow any sized increase in the PAOT levels. Thus, it is in accord with the basic policy objective of increasing skier capacity at MHM while better addressing the recognized serious issue of traffic on Highway 26. I conclude that plaintiffs' alternative is a viable but unexamined alternative which should have been included for study to allow a reasoned decision. Summary judgment is granted in favor of plaintiffs.
3. Failure to Examine Site-Specific Impacts
a. Nature of the Claim
Plaintiffs contend that NEPA requires a site-specific analysis to be included in the FEIS/FSEIS because the 1997 ROD makes a critical decision with respect to site development. Although plaintiffs begrudgingly agree that the 1997 ROD is a programmatic document approving a conceptual Master Plan for MHM ski area, they contend that the various types of expansion authorized in the 1997 ROD will not be revisited and that future analyses will focus solely on the individual facilities as they are implemented. Even though the 1997 ROD states that the future analysis provides ample opportunity to stop the project from proceeding, the FSEIS was the only opportunity to examine the site-specific impacts of the entire project together. Moreover, all future analyses will be conducted within the context of the 1997 ROD approval of intense development for the entire area.
NEPA "mandates the preparation of an environmental impact statement on any major Federal action "significantly affecting the quality of the human environment.' 42 U.S.C. § 4332 (2)(C). When there is a regional plan or when multiple federal programs will have a `cumulative or synergistic environmental impact upon a region,' the relevant agency must prepare a programmatic environmental impact statement on the regional plan or on the pros' combined impact." Churchill County v. Babbitt, 150 F.3d 1072, 1076 (9th Cir.), amended on other grounds on denial of rehearing, 158 F.3d 491 (9th Cir. 1998).
b. Validity of the Claim
The 1997 ROD approved a conceptual Master Plan. The ROD states:
This approval does NOT authorize specific facilities or uses, define the exact location of facilities, nor stipulate a timeline for development. Rather, it conceptually approves the number and approximate location of lifts, additional ski terrain, base area expansions, other winter facilities and uses, access and service roads, and summer uses. Implementation will require additional site-specific environmental analysis pursuant to NEPA requirements. Future NEPA analysis will be tiered to this Decision and the Final SEIS and the public will have the opportunity to participate.
AR 8.
"[W]hen a programmatic EIS is prepared, site-specific impacts need not be fully evaluated until a critical decision has been made to act on site development." Northern Alaska Environmental Center v. Lujan, 961 F.2d 886, 891 (9th Cir. 1992). That time has not yet arrived. All on-the-ground projects will require another round of NEPA documentation. If plaintiffs feel those documents are not sufficient in scope, plaintiffs may challenge them in a separate action which is focused on the particular project. Plaintiffs are arguing that the momentum is against them if the FEIS/FSEIS receive court approval. The law does not support the argument. Summary judgment is granted against this claim.
4. Failure to Accurately Describe Affected Environment
a. Nature of the Claim
NEPA requires a description of the affected environment. Plaintiffs contend that a detailed description is of even greater importance here because the FEIS/FSEIS support a programmatic Master Plan. Thus, these documents are the only opportunity for an overall assessment of the environmental condition of the entire permit area.
Plaintiffs contend that the FEIS/FSEIS fail to sufficiently describe the affected environment. The documents describe the individual components of the ecosystem in isolation but fail to describe the functioning of the ecosystem as the components interact. Even within each component, the documents do not describe the functioning of each discrete ecosystem, namely the aquatic, wetland, and alpine ecosystems.
Weather, air quality, hydrology, vegetation, wetlands, wildlife, etc.
b. Validity of the Claim
An EIS requires a discussion of the environmental consequences, including direct and indirect effects, as a basis for the comparison of alternatives. 40 C.F.R. § 1502.14.
Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.40 C.F.R. § 1508.8 (b).
The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration. The descriptions shall be no longer than is necessary to understand the effects of the alternatives. Data and analyses in a statement shall be commensurate with the importance of the impact, with less important material summarized, consolidated, or simply referenced. Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on important issues. Verbose descriptions of the affected environment are themselves no measure of the adequacy of an environmental impact statement.40 C.F.R. § 1502.15.
Plaintiffs' argument that the documents require a description of the functioning of the affected ecosystems is not supported by the regulations. One possible effect is the effect on the functioning of the ecosystems, but the description of the affected environment is regulated by § 1502.15. That regulation mentions several times that the description should be succinct, no longer than is necessary, and avoid useless bulk and verbosity. The USFS has a reasonably thorough discussion of the affected environment which is sufficient to satisfy the regulation's requirement. AR 747-817, 1196-1240. Summary judgment is granted against this claim.
5. Failure to Adequately Discuss Environmental Consequences
a. Nature of the Claim
Plaintiffs contend that the FEIS/FSEIS do not adequately discuss environmental consequences, specifically, the documents: (1) depend on unstated or undocumented assumptions; (2) use faulty methodologies; (3) omit consideration of necessary factors; (4) lack evidentiary support; and (5) understate, vaguely state, or only qualitatively state the impacts.
b. Validity of the Claim
A reasonably thorough discussion of the significant aspects of the probable environmental consequences is all that is required by an EIS.Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). The USFS discussion of the environmental consequences is extensive. AR 748-879, 1282-1457.
I reviewed the Steen Declaration, AR 6369-84. Some of his complaints are disagreements with the methodologies employed by the USFS scientists in measuring certain things. This is not a reason to invalidate an EIS.See Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142, 1151 (9th Cir. 1997). Other pieces of information discussed by Steen as lacking from the documents might have been nice for the decision maker to have. I cannot say, however, that the USFS did not take a hard look when discussing the probable environmental consequences. This is sufficient under the law. Summary-judgment is granted against this claim.
6. Failure to Adequately Discuss Cumulative Impacts
a. Nature of the Claim
Plaintiffs contend that the FEIS/FSEIS fail to adequately discuss the cumulative impacts of the expansion in numerous ways. There is no analysis of the past and present impacts in conjunction with the future projected impacts. This is caused in part by the very minimal and general discussion of past and present impacts. Thus, there is not a detailed base on which to build an analysis of the cumulative impacts.
Additionally, the documents do not consider the impacts of the expansion outside the immediate geographic ski area and in conjunction with the other ski areas on Mt. Hood as well as other ski areas in Oregon and Washington. There is no mention of the summer work projects occurring each year without any environmental analysis. Although some of these individual projects are small, they have a cumulative impact over the years. The cumulative impact discussion on vegetation, wildlife, and hydrology is minimal and inadequate.
b. Validity of the Claim
NEPA requires the consideration of cumulative environmental impacts from multiple actions. Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1378 (9th Cir. 1998). A "cumulative impact" is "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. . . ." 40 C.F.R. § 1508.7. To consider the cumulative effects, quantified or detailed information is required. "General statements about "possible' effects and `some risk' do not constitute a `hard look' absent a justification regarding why more definitive information could not be provided." Cuddy Mountain, 137 F.3d at 1379-80.
In their second amended complaint, plaintiffs list seven areas in which they claim the FEIS/FSEIS fail to adequately discuss the cumulative impacts. I will analyze these below. In their concise statement of facts, plaintiffs add several additional areas: soils, transportation, wilderness, recreation, land use, and the Timberline trail. Those issues were not pleaded, are not a part of this action, and will not be considered.
i. Other ski areas
The USFS quantified the cumulative impacts of the other Oregon ski areas on the traffic situation on Highway 26. AR 873. It also provided a table which explains the resources on which the cumulative impacts of "other mountain development," which would include the other ski areas, was analyzed: geologic hazards, fire hazards, air quality, vegetation, wildlife aquatic ecology and fisheries, visual, recreation, overnight housing, socioeconomics, transportation, and utilities/energy. AR 1284-85. I see nothing wrong with subdividing the analysis of the cumulative impacts caused by other ski areas. Summary judgment is granted against this claim.
ii Summer Work Projects
Plaintiffs list some examples of typical summer work projects but do not explain what cumulative environmental impacts they are concerned have been affected by summer work projects. Their argument is inadequate. Summary judgment is granted against this claim.
iii Hydrology
The hydrology cumulative impacts are adequately discussed. In particular in the DSEIS, the previous four years of water quality and quantity monitoring results are discussed, along with the cumulative impacts of the various alternatives under consideration. AR 763-66, 767-80. The USFS took a hard look at the issue. Summary judgment is granted against this claim.
iv. Vegetation
Plaintiffs' expert disagrees with the USFS's estimate of Krummholtz disturbance. This is not an indication, however, that the USFS did not take a hard look at the issue of the cumulative impacts on the vegetation communities. The DSEIS has a table which lists the percentage of disturbed acreage by vegetative community. Historic vegetation management and the cumulative impacts it caused is discussed. The amount of clearing for each alternative is listed. AR 781-91. The USFS took a hard look at the cumulative impacts of the projects on vegetation. Summary judgment is granted against this claim.
v. Economics of Hood River County
The documents discuss the financial impacts to Hood River County from tourism and updated the number of people employed by agriculture in the county. Travel expenditures, payroll, and jobs are quantified, including impacts on employment caused by each alternative. AR 89, 850-56. The USFS explained that it did not expect the cumulative impacts to destabilize the agriculture in Hood River County if the County continued to maintain adequate zoning and preferential tax treatments for the agriculture industry. AR 89. Plaintiffs' expert disagrees, AR 4419-22, but this does not signify that the USFS did not take a hard look at the cumulative impact on the economics of Hood River County, particularly concerning the agriculture industry. Summary judgment is granted against this claim.
vi. Fish Habitat
The FSEIS discusses cumulative impacts by fish species. AR 81-85. Fish habitat is discussed in the watershed report. AR 757. Impacts, particularly from increased sedimentation is discussed. The USFS had difficulty gauging cumulative impacts on fisheries because most of the activities are located away from fish-bearing streams. AR 771. The FEIS discussed the cumulative impacts of changes to sedimentation, water temperature, and run-off on fish. AR 1353-56. The USFS took a hard look at the issue. Summary judgment is granted against this claim.
vii. Wildlife
The DSEIS has an extensive discussion on the cumulative impacts of each of the proposed alternatives and the effect on various species which inhabit the permit area. The number of additional disturbed acres are quantified for each alternative. AR. 797-809. The analysis indicates that the USFS took the required hard look at the issue. Summary judgment is granted against this claim.
III. NFMA Challenges to the Forest Plan Amendment (Claim Two)
Plaintiffs withdraw all other challenges to the Forest Plan amendment stated in claim two.
A. Nonsignificance Determination
1. Nature of the Claim
The 1997 ROD also amends the Forest Plan in two ways: (1) the visual quality objective ("VQO") was amended; and (2) the management area designation associated with the 96-acre permit area expansion was amended. The Forest Plan lists six factors to be considered when determining if a proposed Forest Plan amendment is significant. Plaintiffs contend that Federal Defendants violated NFMA because the 1997 ROD failed to analyze two of the factors: (1) a statement of the NFMA significance of the changes; and (2) a statement outlining NEPA compliance.
2. Validity of the Claim
The actions challenged under NFMA are reviewed under the APA's standard to see if they are arbitrary and capricious, an abuse of discretion, or not in accordance with the law. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir. 1998).
Plaintiffs state that the ROD for the Forest Plan lists six elements that must be included in Forest Plan significance determinations, including a "statement of the NFMA significance of the changes" and a "statement outlining NEPA compliance, which includes specifically addressing effects on the environment of the change and any changes in the effects that were disclosed in the Forest Plan EIS."
The parties do not appear to have provided a copy of this ROD to me. Defendants do not dispute the statement, so I will assume that it is correct.
The USFS gave a two page explanation of the NFMA significance analysis, including factors such as the size of the area compared to the entire Forest, the goals and objectives affected by the amendment, including reduced timber harvest and recreational use, and the change in outputs projected by the Forest Plan, again primarily timber reduction. AR 37-38.
The ROD also contains a history of the MHM expansion proposal, the NEPA events that have happened, the efforts at public involvement, and the effect on the environment of the amendment. AR 4-6, 17-19.
This is sufficient to demonstrate that the USFS did not act arbitrarily and capriciously or not in accordance with the law when making the significance determination. Summary judgment is granted against this claim.
B. Inadequate NEPA Disclosure and Analysis to Change Designation of 96 Acres
1. Nature of the Claim
One of the amendments to the Forest Plan was to reclassify 96 acres from a B-9 Wildlife/Visual land use allocation to an A-11 Winter Recreation allocation. The original B-9 allocation was made to provide a high-quality rearing habitat for elk and other wildlife species. AR 3781. Plaintiffs contend that the failure to provide any analysis of this change's impact on the wildlife is an inadequate disclosure under NEPA.
2. Validity of the Claim
The ROD states that the reclassification "is intended to incorporate the approximately 15 kilometers of groomed nordic trails currently operated by MHM through its annual Operations Plan and avoid an annual permitting process." No expansion in capacity was authorized. AR 17. The DSEIS states that "for the most part" the proposed allocation change would be compatible with guidelines for Wildlife/Visual areas. Conflicts are related to summer uses (which are allowed under Winter Recreation) and regulated timber harvest (which is not allowed under Winter Recreation). AR 847-48.
I agree with plaintiffs that the USFS did not take a hard look at the impact on wildlife caused by the reclassification and have violated NEPA in failing to do so. Summary judgment is granted in favor of plaintiffs.
III. Remedy
None of the parties addressed the possible remedies if plaintiffs prevail in this action. I have found two NEPA violations and have not ruled on the entirety of claim one. As part of the supplemental briefs ordered above, I would like the parties to propose a remedy, including a proposed permanent injunction if they believe one is necessary.
CONCLUSION
Plaintiff's motion for partial summary judgment (#116) is granted in part, Federal Defendants' motion to dismiss or in the alternative for summary judgment (#123) is granted in part, and MHM Defendants' motion for partial summary judgment (#127) is granted in part. Supplemental briefing is due on January 8 and 29, 2001.
ORDER
Plaintiff's motion for partial summary judgment (#116) is granted in part, Federal Defendants' motion to dismiss or in the alternative for summary judgment (#123) is granted in part, and MHM Defendants' motion for partial summary judgment (#127) is granted in part. Supplemental briefing is due on January 8 and 29, 2001.
IT IS SO ORDERED.