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RESTORE: The N. Woods v. Department of Agric.

ELR Citation: 27 ELR 21403
Nos. 97 CV 163, 968 F. Supp. 168/(D. Vt., 06/17/1997)

The court holds that a proposed land exchange between a ski resort operator and the U.S. Forest Service falls under the purview of the National Environmental Policy Act (NEPA) and does not qualify for a categorical exclusion. The court first holds that the proposed land exchange is not exempt from NEPA. When a federal agency is involved in the action and it is possible to comply with NEPA, NEPA analysis must be taken. Although NEPA's environmental impact statement requirement is inapplicable where there is a clear and fundamental conflict between NEPA and a statute, the court finds that the language of the Sugarbush Land Exchange Act (SLEA) indicates that Congress has limited, but not eliminated, the Secretary of Agriculture's discretion in this land exchange. SLEA provides that the land the resort operator conveys to the United States must be "acceptable" to the Secretary and that the Secretary may prescribe "terms and conditions" in the conveyance. Because the Secretary maintains some discretion with the exchange, there is no clear and fundamental conflict imposed on the Forest Service by NEPA and SLEA.

The court further holds that the Forest Service's conclusion that the proposed land exchange could be categorically exempt from environmental review under NEPA was arbitrary and capricious. The Forest Service ignored evidence and the commands of its Environmental Policy and Procedures Handbook. Additionally, scoping and the Forest Service's own analysis indicated that the proposed land exchange could have a significant environmental effect. The Forest Service determined that the proposed land exchange could be categorically excluded, because the land use of the exchanged parcel would remain essentially the same before and after the exchange, and because it and the resort share the same resource management objectives. However, the court fails to see any rational basis for concluding that a hotel/conference center is the same land use as a parking lot and tennis courts. The court therefore enjoins the Forest Service from proceeding with the land exchange until the appropriate NEPA analysis has been conducted.

Counsel for Plaintiff
Cindy Ellen Hill
Law Offices of Cindy Ellen Hill
Merchants Row, Ste. 215, Middlebury VT 05753
(802) 388-1317

Counsel for Defendents
Joseph R. Perella, Ass't U.S. Attorney
U.S. Attorney's Office
11 Elmwood Ave., Burlington VT 05402
(802) 951-6725