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Methow Valley Citizens Council v. Regional Forester

ELR Citation: 16 ELR 20932
Nos. No. 85-2124-DA, (D. Or., 06/25/1986) APA, NEPA claims

The court holds that the Forest Service did not violate the Administrative Procedure Act (APA) or the National Environmental Policy Act in issuing a special use permit for a ski resort development in a roadless area in Okanogan National Forest in Washington. The court first holds that the Forest Service's decision to issue the special use permit is committed to the agency's discretion under §701(a)(2) of the APA and is thus unreviewable. The court next holds that plaintiffs' due process rights were not violated by the Forest Service's decision to issue the permit even though the National Forest Management Act plan for the Okanogan forest, in which the area in question was supposed to be evaluated for its wilderness characteristics, had not yet been completed. Although a former assistant secretary in the Department of Agriculture had decided to refrain from issuing the special use permit and the accompanying environmental impact statement (EIS) until the plan was completed, Congress had in the meantime passed the Washington Wilderness Act. The Senate report for that bill had explicitly directed the Forest Service to proceed with multiple-use land management for the area without waiting for the Okanogan forest plan to be completed.

The court holds that the EIS for the special use permit is adequate. The court initially rules that the adequacy of an agency's preparation of an EIS is governed by the standard in APA §706(2)(D). The court holds that the Forest Service was not required to discuss in the EIS the option of expanding existing ski sites elsewhere in Washington as an alternative to developing this one in the Okanogan National Forest. Although the alternatives discussed in the EIS, other than the no action alternative, only varied in the size of the ski development envisioned, the Forest Service had considered and eliminated from serious discussion other Okanogan sites based on a previously conducted study. Consideration of sites a hundred or more miles away from the Okanogan National Forest would be outside the scope of an EIS specifically intended to address this site's potential. Addressing plaintiffs' concerns regarding the impacts of the ski development on mule deer in the area, the court holds that the EIS adequately considered the potential secondary impacts on deer, that a worst case analysis was not required, and that the discussion of mitigation measures is sufficient. Concerning secondary air quality impacts, the court holds that the Forest Service was not required to discuss in detail the impacts of pollution caused by carbon monoxide from woodstoves or nitrogen dioxide since the evidence indicated that such impacts would be insignificant. The court also holds that the failure to discuss Clean Air Act prevention of significant deterioration policy in the EIS does not render the document inadequate, although the court notes that the EIS might have been a better document if it had included such a discussion. The court holds that the EIS was not required to discuss impacts on a wilderness area near the upper tip of the affected valley, that no worst case analysis was required in connection with potential air quality impacts, and that the mitigation measures discussed to reduce air quality impacts were adequate. The court also holds that the general discussion of mitigation measures to protect fisheries in the area is sufficient given that the specific location of facilities is still unknown, and that the Forest Service's population growth analysis is adequate. Finally, the court holds that the expansion of an intercity airport is not a connected action requiring the preparation of a separate EIS. Althougth the ski resort may have an indirect effect on the airport, the expansion is a separate action.

[A previous decision in this case is published at 16 ELR 20641.]

Counsel are listed at 16 ELR 20642.