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Methow Valley Citizens Council v. Regional Forester

ELR Citation: 18 ELR 20163
Nos. No. 86-4108, 833 F.2d 810/27 ERC 1923/(9th Cir., 12/01/1987) Decision at 16 ELR 20932 rev'd

The court holds that the Forest Service's decision to issue a special use permit for a ski resort in Okanogan National Forest in Washington is reviewable under the Administrative Procedure Act (APA), and the Forest Service's environmental impact statement (EIS) inadequately discusses alternatives to the project and mitigation measures. The court first holds that the decision to issue a special use permit is reviewable under the APA. Although this court has held that the issuance of special use permits is generally committed to agency discretion, in this case the Forest Service has issued detailed supplemental regulations concerning permit issuance. These guidelines, binding on the Regional Forester who issued the permit, constitute sufficient "law to apply." The court next holds that the Forest Service failed to consider every reasonable alternative in the EIS. The Forest Service's purpose is to provide a winter sports opportunity, and the agency gave no reasons as to why development of this particular parcel of land was necessary. Although the EIS listed four alternatives, all four options involved development of this site. The court holds that the EIS also did not adequately discuss the environmental impacts of the project and its alternatives on mule deer populations. The Forest Service's conclusion that the impacts on mule deer will be minor is inadequate as a matter of law, since mitigation measures have not yet been developed and effectiveness of such measures has not yet been assessed. The Forest Service's current preparation of a detailed study of the mule deer cannot cure a deficient EIS, and the absence of adequate information upon which to make a reasoned assessment of the project's environmental impacts may obligate the Service to conduct a worst-case analysis. The court holds that the EIS did not adequately discuss potential air quality impacts on an adjacent wilderness area. Although the EIS concluded that no Class I area would be affected by the proposed action, subsequent information has shown that the government's data is egregiously incorrect. The court holds that the National Environmental Policy Act and the Forest Service's special use permit authority require that mitigation measures to prevent state standards for total suspended particulates from being exceeded be prepared before a permit application may be approved. The court holds that the discussion in the EIS concerning possible air quality mitigation measures is inadequate, since it is presented in very general terms, lacks a detailed description of mitigation measures, and does not provide any analysis as to the effectiveness of such mitigation measures.

[The district court's decisions are published at 16 ELR 20641 and 20932.]

Counsel for Plaintiffs-Appellants
David A. Bricklin
Bricklin & Gendler
1424 4th Ave., Seattle WA 98101
(206) 621-8868

Counsel for Appellees
David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Glenn J. Armster
Hillis, Cairncross, Clark & Martin
500 Gallard Bldg., 1221 Second Ave., Seattle WA 98101-2925
(206) 623-1745

Before Goodwin and Stephens Jr.,[*] JJ.