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Brubaker Amusement Co. v. United States

Citation: 32 ELR 20824
No. Nos. 01-5070 et al., 304 F.3d 1349/(Fed. Cir., 07/23/2002)

The court holds that two U.S. Forest Service land transactions with a ski resort complied with the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). In one transaction, the Forest Service approved the construction of a large resort facility on a mountain owned by the federal government but used by a ski resort under a special use permit. In another transaction, the Forest Service transferred to the resort small fractions of land in return for land adjacent to other federal property. A nonprofit organization filed suit, alleging that the Forest Service's handling of these transactions was arbitrary and capricious in several respects. The court first holds that the Forest Service, in approving the land exchange, complied with NEPA's categorical exclusion requirements. The Forest Service adequately explained its basis for subjecting the land exchange to a categorical exclusion and properly applied the categorical exclusion it invoked. The court next holds that the group lacked standing to assert its claim that the Forest Service failed to give adequate notice before implementing the land exchange. Even if it had standing, the group would lose on the merits. The court also rejects the group's claim that the Forest Service's determination that the exchanged land was of approximately equal value was arbitrary and capricious. Additionally, the court holds that the land exchange and the master development plan for the resort do not satisfy the regulatory definition for "connected" actions. Thus, the Forest Service did not have to consider them in a common environmental impact statement.

As for the construction project, the court rejects the group's claim that the Forest Service did not consider a sufficient number of alternatives before authorizing the construction of the facility on the mountain. The Forest Service did not breach the "rule of reason" by refusing to study in detail alternatives that would have limited the structure's size or moved the structure off-peak altogether. Proposals calling for smaller structures on the mountain or removing the structure to another location were impractical and failed to satisfy the project's objectives. Last, the court holds that the Forest Service did not violate the NFMA. The group argued that the Forest Service violated the NFMA by improperly amending an existing forest plan to allow for construction on the mountain. Forest Service provided sufficient notice to the public on the amendment, and it adequately considered the factors that the Forest Service handbook indicated should be used when assessing a forest plan amendment's significance.

The full text of this decision is available from ELR (58 pp., ELR Order No. L-545).

Counsel for Plaintiffs
Joro Walker
Land and Water Fund of the Rockies
214 E. 500 South St., Salt Lake City UT 84102
(801) 487-9911

Counsel for Defendants
Todd S. Aagaard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000