Jump to Navigation
Jump to Content

Dubois v. Department of Agric.

ELR Citation: 27 ELR 20622
Nos. Nos. 96-1015, -1068, 102 F.3d 1273/(1st Cir., 12/19/1996)

The court holds that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the Federal Water Pollution Control Act (FWPCA) by issuing a ski-resort operator a permit to expand its ski resort in the White Mountain National Forest in Lincoln, New Hampshire. The permit allowed the operator to draw water from a river and a pristine pond to make snow and pump the water back into the pond after use. The court first holds that an individual plaintiff has standing. His family home is located squarely within the geographical area allegedly directly affected by the proposed project, he visits the area regularly, he drinks the water that will allegedly be tainted by pollutants, and he will allegedly be deprived of his environmental, aesthetic, and scientific interests in ways directly tied to the project he challenges. These are the types of interests that the U.S. Supreme Court has held satisfy the constitutional requirements for organizational standing, and there is no reason why an organization would have standing to raise these interests but an individual would not. Further, the individual's injuries are likely to be redressed by an injunction against the project's proceeding. And as for the prudential standing requirements, there is no dispute that the violations and injuries alleged in the complaint are the sort that NEPA, the FWPCA, and Executive Order No. 11990 were specifically designed to protect.

The court next holds that the Forest Service has not rigorously explored all reasonable alternatives, in particular the alternative that the operator be required to build artificial water-storage ponds. The Forest Service did not respond to comments on that alternative, or in any way explain its reasoning or provide a factual basis for its refusal to consider the possibility of alternatives to using the pond for snowmaking. Because the Forest Service's decision was not founded on a reasoned evaluation of the relevant factors and did not articulate a rational connection between the facts found and the choice made, it acted arbitrarily and capriciously in granting the operator's special-use permit for the expanded ski resort. And because it did not rigorously explore and objectively evaluate all reasonable alternatives, its decision was not in accordance with law. The court also holds that plaintiffs adequately preserved this argument for appeal. Because plaintiffs' comments on the Forest Service's final environmental impact statement (EIS) were sufficient to notify the agency of the potential alternatives, the district court erred in concluding that plaintiffs were required to offer specifics as to how to implement the suggested alternative water-storage system. The court next holds that the Forest Service's failure to prepare a supplemental EIS when it added the preferred alternative to the list of alternatives under consideration was arbitrary adn capricious. The selected alternative does not fall within the spectrum of alternatives that the Forest Service considered in previous drafts of the EIS. It entails a different configuration of activities and locations, not merely a reduced version of a previously considered alternative, and it cannot be said that these changes are not relevant to environmental concerns.

The court next holds that Executive Order No. 11990 does not apply to this case, because the operator's expansion plan does not satisfy the definition of "new construction" within the meaning of the order. The court then holds that it has jurisdiction over plaintiffs' FWPCA claim that a national pollutant discharge elimination system (NPDES) permit was required for the selected alternative. Although plaintiffs did not notify the operator of their intent to sue under the FWPCA, the individual plaintiff provided notice to the Forest Service of his intent to sue, the Forest Service was the only defendant that he did sue, and he alleged only that the Forest Service, not the intervenor operator, violated the FWPCA. And even if the court lacked jurisdiction to hear the FWPCA claim, the court would still have the authority and the obligation to decide, under NEPA, whether an NPDES permit is required in this case. The court next holds that the district court erred by interpreting the river and the pond to be part of the same "singular entity" and thus concluding that the transfer of the water from the river into the pond would not constitute an "addition" of pollutants to the pond. The court holds that the river and the pond are two distinct waters of the United States and that the proposed transfer of water from one to the other constitutes an "addition." Where, as is undisputed here, the discharge is through a point source and the intake water contains pollutants, an NPDES permit is required. Last, the court holds that because plaintiff cannot, in a challenge to the Forest Service's final EIS, collaterally attack the state's certification of compliance with state water-quality standards, the court need not reach the merits of whether the proposed use of the pond would violate those standards.

Counsel for Plaintiffs
Roland C. Dubois
Dubois Inc.
1101 30th St. NW, Ste. 500, Washington DC 20007
(202) 333-9191

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

Before SELYA, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges.