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Alaska Ctr. for the Env't v. U.S. Forest Serv.

ELR Citation: 30 ELR 20105
Nos. No. 97-36128, 189 F.3d 851/49 ERC 1264/(9th Cir., 09/07/1999)

The court holds that the U.S. Forest Service complied with the National Environmental Policy Act (NEPA) when it issued a special use permit to a helicopter-guided skiing company in Chugach National Forest in Alaska without conducting an environmental assessment (EA) or an environmental impact statement (EIS). The court first holds that the environmental group's challenge to the special use permit falls within the capable of repetition yet evading review exception to the mootness doctrine. The duration requirement of the exception is satisfied because the duration of the permit is too short to allow full litigation before the permit expires. A stay or injunction would not have prevented the permit's expiration, and there is no rule that states that the repetition exception is inapplicable where, as here, the parties fail to seek expedited review under permissive circuit rules. Further, based on the evidence that the Forest Service issued similar permits to other ski companies after the permit at issue expired, there is a reasonable expectation that the Forest Service will engage in the challenged conduct again.

The court next holds that the Forest Service reasonably interpreted a categorical exclusion to NEPA environmental review to include short-term helicopter permits. The categorical exclusion for intermittent short-term uses specifically refers to guiding, does not prohibit motorized uses, and the intermittent requirement could reasonably be interpreted to include the helicopter company's daytime use. The court then holds that the Forest Service provided a reasonable decision and specifically indicated that during the scoping process there were no extraordinary circumstances that would supersede the categorical exclusion and warrant the preparation of an EA or an EIS.

Counsel for Plaintiffs
Patrick D. Lavin
Trustees for Alaska
725 Christensen St., Ste. 4, Anchorage AK 99501
(907) 276-4244

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

Before Trott and Tashima, JJ.