Methow Valley Citizens Council v. Regional Forester

No. 85-2124-DA (D. Or. April 30, 1986)

The court holds that the Forest Service did not violate either the Clean Air Act or the National Forest Management Act (NFMA) when it issued a special use permit for a ski resort development in the Okanogan National Forest prior to adoption of the NFMA plan. The court holds that plaintiffs, environmental and citizen groups composed of residents and recretional users of the affected valley, need not rely on the Clean Air Act's citizen suit provision for their claim that the Forest Service violated § 176 of the Act prohibiting federal agencies from issuing permits for activities that violate state implementation plans (SIPs). Neither of the two cases cited by defendants holds that the citizen suit provision is the only source of subject matter jurisdiction to enforce § 176.

On the merits, the court holds that the Forest Service has not violated § 176. Even if the permit could lead to secondary development of lodgings with woodburning stoves that would increase the emission of total suspended particulates beyond the prevention of significant deterioration (PSD) standard, no provision of the Washington SIP has been violated. Emissions over the allowable PSD increment do not automatically result in an enforceable SIP violation where the SIP does not regulate the pollution source, and the Washington SIP does not regulate wood-burning stoves.

The court rules that the Forest Service may rely on pre-NFMA forest management plans while awaiting adoption of the more comprehensive NFMA management plan for each national forest. Plaintiffs' reliance on one subsection of § 6 requiring that plans developed pursuant to the section shall form an integrated plan for each national forest unit does not compel a contrary result, since it does not prohibit interim planning prior to adoption of the final plan. Moreover, another subsection clearly permits use of existing plans.

Counsel for Plaintiffs
David A. Bricklin
Bricklin & Gendler
Ste. 1015, Fourth and Pike Bldg., Seattle WA 98101
(206) 621-8868

Larry Sokol, Molly Holt
Jolles, Sokol & Bernstein
721 S.W. Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Charles H. Turner, U.S. Attorney
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 S.W. Main St., Portland OR 97204
(503) 221-2101

Robert M. Simmons, Special Ass't U.S. Attorney
Dept. of Agriculture
1220 S.W. Third Ave., Rm. 1734, Portland OR 97204
(503) 221-2725

Glenn J. Amster, Sarah Mack
Hillis, Cairncross, Clark & Martin
403 Columbia St., Seattle WA 98104
(206) 623-1745

Christopher W. Angius
Ball, Janik & Novak
Ste. 1100, 101 S.W. Main St., Portland OR 97204
(503) 228-2525

[16 ELR 20642]

Dale, J.:

A. Background

This is an action for judicial review of the Record of Decision (the decision) by Regional Forester Jeff M. Sirmon of the United States Forest Service to issue a 30-year special use permit for a ski development. The development, to be known as Early Winters, is planned for location on Sandy Butte in the Okanogan National Forest near Mazama, Washington. Sandy Butte is near Washington State Highway 20 at the upper end of the Methow Valley on the east side of the North Cascade Mountains. The decision was based, in large measure, on information supplied in a final, environmental impact statement, which is entitled "Early Winters Alpine Winter Sports Study" (the EIS).

Plaintiffs are public interest and environmental groups concerned variously with the protection of the environment, social, and economic amenities and resources of the Methow Valley. Some of the members of these groups reside in Methos Valley. Others use Methow Valley for recreational educational, scientific or employment purposes. The defendants are various Forest Service officials and the probable developer of Early Winters, Methods Recreation, Inc. (MRI).

Plaintiffs' broad-based complaint seeks a declaratory judgment that the decision under attack was not in accordance with law, was clearly erroneous, arbitrary and capricious, and an abuse of discretion. They claim, among other things, that the decision violates the National Forest Management Act of 1976, (NFMA), 16 U.S.C. §§ 1600-1614 and other scattered sections of 16 U.S.C., the Clean Air Act as amended, 42 U.S.C. §§ 7401-7626, the National Environmental Policy Act of 1969, (NEPA), codified as amended at 42 U.S.C. §§ 4321-4370a, and regulations promulgated under these acts. They also claim other miscellaneous irregularities. They seek an injunction prohibiting the Forest Service from further action with respect to issuing permits or otherwise acting pursuant to the decision. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331, 1361, 2201 and 2202.

B. Present motions

Plaintiffs move for summary judgment on their claims "arising under the National Forest Management Act and the National Environmental Policy Act." MRI cross-moves for summary judgment on plaintiffs' claims that the decision violates NFMA, that the EIS fails to adequately discuss reasonable alternatives to construction of the ski resort, and that the EIS inadequately discusses air quality impacts. MRI moves for summary judgment dismissing all claims in sections, four, six, and seven of plaintiffs' complaint. The federal defendants move: to dismiss for lack of subject matter jurisdiction or in the alternative, for failure to state a claim, plaintiffs' claim that the decision violates the Clean Air Act; to dismiss sections four, six, and seven of plaintiffs' complaint for failure to state a claim. For good measure, the federal defendants move "for entry of summary judgment . . . dismissing plaintiffs' Complaint and action in their entirety."

No genuine question of material fact exists as to plaintiffs' claimed violations of NFMA and the Clean Air Act. I conclude as a matter of law that defendants have not violated either act. Accordingly, I grant summary judgment to the defendants on these claims. I deny summary judgment on all remaining claims.

II. The Clean Air Act

A. Background on the Clean Air Act

Congress became involved in air pollution at least as early as 1955 with the passage of the Air Pollution Control-Research and Technical Assistance Act, P.L.84-159, 69 Stat. 322. Beginning in the early sixties, Congress took several baby steps toward regulation of air pollution, but its first giant step came in 1970 at the height of the environmental movement. The Clean Air Act Amendments of 1970, P.L. 91-604, 84 Stat. 1676, added much to existing legislation. The 1970 legislation totally restructured the federal/state schemethat had evolved during the previous fifteen years. Congress created the Environmental Protection Agency and ordered it to designate air pollutants that endangered public health or welfare. 42 U.S.C. § 7408. The EPA was ordered to promulgated primary and secondary national ambient air quality standards (NAAQS) for each designated pollutant. 42 U.S.C. § 7409. Primary NAAQS define upper limits of these designated pollutants above which public health is endangered. 42 U.S.C. § 7409(b)(1). Secondary standards, more stringent than primary standards, define levels necessary to protect the public welfare from any known or anticipated adverse effects of a pollutant. 42 U.S.C. § 7409(b)(2). NAAQS are not source specific emission controls, but rather are concerned with the total amounts of a designated pollutant in an entire airshed from all sources.

The NAAQS are not a police mechanism; nor are they self-enforcing. Congress directed each state to work toward attaining these national standards by adopting and enforcing a state implementation plan (SIP). Each SIP was to provide for the implementation, maintenance, and enforcement of primary and secondary NAAQS. 42 U.S.C. § 7410. Every state was directed to submit its SIP to the EPA for approval. 42 U.S.C. § 7410(a). If the state failed to submit a SIP that made the grade, the EPA was directed to create one itself for each noncomplying state. 42 U.S.C. § 7410(c).

In 1977, Congress enacted major amendments to the Clean Air Act. Congress added a program for "prevention of significant deterioration" (PSD) of air quality in "clean" air regions of the country, i.e., areas in which ambient air quality exceeded the limits set by the EPA's primary and secondary NAAQS. 42 U.S.C. §§ 7470-7479. Congress directed each state to amend its SIP to include emission limitations and such other measures that the EPA determined would be necessary to prevent the significant deterioration of air quality in affected areas of the country. 42 U.S.C. §§ 7471.

The Clean Air Act establishes a PSD permit system under which major new sources of pollution must undergo preconstruction review before locating in a clean air area. 42 U.S.C. §§ 7475. The PSD permit system does not apply to every potential source of pollution; it only applies to stationary sources of pollution that are "major emitting facilities." 42 U.S.C. § 7475(a). This term is defined in the [16 ELR 20643] legislation to include any source falling within one of 26 categories of industrial facilities which emit, or have the potential to emit, 100 tons per year of any air pollutant. Examples include refineries, smelters, and municipal incinerators. The term also includes any other source with the potential to emit 250 tons per year of any air pollutant. 42 U.S.C. § 7479(1).

To obtain a PSD permit, the owner or operator of a major emitting facility must meet several requirements including a demonstration that its emissions of controlled pollutants will not cause or contribute to concentrations in excess of the allowable PSD increment or NAAQS, whichever is lower, for that controlled pollutant. 42 U.S.C. § 7475.

Congress set the allowable PSD increments for total suspended particulates (TSP) and sulphur dioxide. 42 U.S.C. § 7473(b). The EPA was given the task of establishing other PSD increments for other pollutants for which the EPA had or would determine NAAQS. 42 U.S.C. § 7476. A calculation is made of the concentration of a given pollutant at a given time. An area's "baseline concentration" for each pollutant is the base figure from which one determines whether a PSD increment has been used up. 42 U.S.C. § 7473. The "baseline concentration" of a pollutant is defined as the ambient concentration at the time of the first application for a PSD permit. 42 U.S.C. § 7479(4). For a more complete background of the Clean Air Act in general and the PSD program in particular, see Alabama Power Co. v. Costle, 636 F.2d 323, 346-52 [ELR 20001] (D.C. Cir. 1979).

B. Washington's PSD SIP

Washington's post-1977 SIP failed to satisfy the Clean Air Act because it did not include approvable procedures for preventing the significant deterioration of air quality. 40 C.F.R. 52.2497(a).¹ Consequently, EPA did the job itself for Washington and incorporated EPA's ready-made regulations concerning PSD, found in 40 C.F.R. 52.21(b) through (w), into Washington's SIP. 40 C.F.R. 52.2497(b). These EPA-drafted rules constitute Washington's SIP with respect to the Clean Air Act's PSD program.

Sandy Butte is a class II area under the SIP. 42 U.S.C. § 7472(b); 40 C.F.R. 52.21(e)(3). Consistent with the 1977 amendments, the SIP provides that in class II areas, increases in TSP concentration over the baseline concentration shall be limited in a 24-hour maximum to 37 micrograms per cubic meter. 40 C.F.R. 52.21(c).

C. The parties contentions

Plaintiffs argue that issuance of the special use permit will run afoul of a section of the Clean Air Act that was added with the 1977 amendments. It provides in relevant part:

No department, agency, or instrumentality of the Federal Government shall (1) engage in, (2) support in any way or provide financial assistance for, (3) license or permit, or (4) approve, any activity which does not conform to a plan [i.e. a SIP] after it has been approved or promulgated under section 7410 of this title. . . . The assurance of conformity to such a plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality.

42 U.S.C. § 7506(c).

Plaintiffs contend that issuance of the special use permit will lead to construction of the ski resort.Construction of the ski resort will in turn lead to the construction of secondary development associated with the ski resort. Secondary development, particularly lodgings with wood stoves, will cause an increase in the TSP in the Methow Valley far beyond the 37 microgram per cubic meter PSD increment. Because issuance of the permit "authorizes" or "permits" this "activity" and because this "activity" does not conform to Washington's state implementation plan (SIP), the decision violates 42 U.S.C. 7506(c).

Defendants argue first that the court lacks subject matter jurisdiction over plaintiffs' claim because the plaintiffs failed to give notice sixty days prior to filing of the complaint. Sixty day notice is necessary because of defendants' contention that plaintiffs' alleged violations of the Clean Air Act may only be brought under the Clean Air Act's citizen suit provision in 42 U.S.C. § 7604(a). Assuming the court has subject matter jurisdiction on some other basis, MRI argues that "activity" within the meaning of § 7506(c) does not encompass the secondary development associated with the ski resort, but only the ski resort itself. It is undisputed that operation of the ski resort will not cause any significant increase in TSP.Therefore, the permitted "activity" i.e., development and operation of the ski resort, will not exceed the TSP increment. Finally, defendants argue that even if "activity" is so expansive as to include secondary development, that plaintiffs have not shown how such development fails to conform to Washington's SIP with respect to increased level of TSP.

Plaintiffs eschew reliance on the jurisdictional grant provided in 42 U.S.C. § 7604(a). (Plaintiffs' Reply Brief at 26).They contend that the court has jurisdiction to review their claim under the general federal question statute and mandamus statute. 28 U.S.C. §§ 1331, 1361.

D. Jurisdiction

The jurisdictional issue in this case is not a simple matter. Both sides present reasonable arguments. However, I conclude that the court has subject matter jurisdiction to reach the merits of plaintiffs' claim independent from the Clean Air Act citizen suit provision. Jurisdiction is proper under the general federal question jurisdictional grant. 28 U.S.C. § 1331. Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936). If the court lacks subject matter jurisdiction on that basis, I find that the court has subject matter jurisdiction under the mandamus statute. 28 U.S.C. 1361.

Middlesex County Sewerage Authority v. Sea Clammers Association, 453 U.S. 1 [11 ELR 20684] (1981) and Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d 390 [4 ELR 20689] (9th Cir. 1974) do not compel the result desired by defendants. In the Sea Clammers case, fishermen sued various state and federal officials, inter alia, for damages to fishing grounds caused by discharges and ocean dumping of sewage and other waste. They alleged violations of two environmental acts with citizen suit provisions similar to those found in the Clean Air Act. The issue in that case was whether Congress intended to make available an implied cause of action for damage under the acts through passage of the citizen suit provisions. The Court held that Congress did not.

In Plan for Arcadia, plaintiffs sought to enjoin the construction of a shopping center because of their claim that the center would "produce large quantities of air pollution." 501 F.2d at 392. No relief was available under the citizen suit provision because the state's SIP that potentially covered the shopping center had been rejected by the EPA. At the time of the litigation, the EPA had not gotten around to promulgating a SIP for the state. Thus, there was no SIP to enforce. The court noted that the NAAQS themselves were not enforceable. Id. at 392 n.1. The court held that mandamus would not lie to compel the EPA Administrator to promulgate specific regulations to prevent the construction of pollution-creating developments like the shopping center.

No authority presented to the court holds that the citizen suit provision provides the only source of subject matter jurisdiction to enforce 42 U.S.C. § 7506(c). Because the merits of the case turn, at least potentially, on the construction of this statute, and because the statute appears to impose a nondiscretionary duty on federal officials, I conclude the court has subject matter jurisdiction under 28 U.S.C. § 1331 and if not that section, then under 28 U.S.C. § 1361.

E. Does the decision "permit" or "authorize" on activity that does not conform to Washington's SIP?

Proof of noncompliance with 42 U.S.C. § 7506(c) requires that plaintiffs show that the Forest Service issued a permit authorizing an activity that "does not conform to a [state implementation] plan." To succeed, plaintiffs must show that the permitted activity will violate some provision of Washington's SIP. They have not and cannot do so.²

PSD increments, enacted directly by Congress or promulgated by the EPA, share a fundamental characteristic with NAAQS. They are goals; they are not means by which the goals are to be achieved. See Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d 390, 392 n.1 [4 ELR 20689] (9th Cir. 1974). These goals are enforced through measures in the SIP.

[16 ELR 20644]

The Court in Alabama Power explained the statutory PSD provisions in this manner:

On their face, these provisions establish the thresholds as limitations that are not to be exceeded and contemplate that state implementation plans shall include such measures "as may be necessary" to ensure the observance of this command. The section 165 permit process alone does not ensure that maximum concentrations or allowable increments will not be exceeded. Significant deterioration may occur due to increased emissions from unregulated minor sources . . . .Nothing in the plain language of the statute limits the measures in the state implementation plan to the preconstruction permit process. The legislative history reflects an understanding that other measures might be required — and are within the authority conveyed by the Act.

636 F.2d at 362.

Conceivably, the state SIP could regulate practically any activity that contributes to air pollution, from cigarette smoking to large industrial concerns. Under Washington's current SIP, which of course is the sole focus of any challenge under 42 U.S.C. § 7506(c), PSD increments are meaningless from an enforcement standpoint until the first complete application under 42 C.F.R. 52.21 is submitted by a major stationary source or major modification subject to the requirements of 40 C.F.R. 52.21. 40 C.F.R. 52.21(b)(13)(i), (14)(i), 15(i), and 52.21(c). It is impossible to determine whether an increment has been used up until one has a baseline to measure from. But even if there were a baseline, plaintiffs have pointed to nothing in the SIP that regulates woodstoves and other minor sources of air pollution.

It is not the province of this court to redraft Washington's SIP; it must be taken as it is found. Under the current SIP, sources not subject to the PSD permit system can apparently cause a substantial increase in pollutants to the airshed without violating a single provision of that plan. This may be at odds with the broad congressional purpose that "economic growth will occur in a manner consistent with the preservation of existing clean air resources," 42 U.S.C. § 7470(3), but this court is faced with the issue of whether the Forest Service has violated 42 U.S.C. § 7506(c). It has not. The law does not prohibit the Forest Service from approving an activity, however that term is construed, which would merely cause or contribute to air pollution; it prohibits approval of activity inconsistent with the SIP. 42 U.S.C. § 7506(c). Plaintiffs may not, through an attack under § 7506(c), seek a revision of the SIP to have it conform to their notion of proper environmental policy. Action for Rational Transit v. Westside Highway Project, 699 F.2d 614, 616 [13 ELR 20347] (2d Cir. 1983) (per curiam).

The remedy is to revise Washington's SIP pursuant to EPA regulations. 40 C.F.R. 52.24(a)(3). A revision is currently taking place through coordinated efforts of the EPA, the Department of Energy and Okanogan County. (Record Ex. 53).

The court's construction of 42 U.S.C. § 7506(c) is not inconsistent with the EPA's "interpretation" of that statute. The EPA indicated in a letter to the Forest Service that in its view, the statute required that the Forest Service "insure that no violation of the [SIP] occurs as a result of its permitting or approval activities." As this discussion has demonstrated, the activity, even broadly defined, does not violate a single provision of the Washington SIP.

III. National Forest Management Act

In 1973, a district court in West Virginia ruled that the Forest Service's Organic Act of 1897 forbade the Forest Service to clear cut trees in the Monongahela National Forest. West Virginia Division of the Izaak Walton League v. Butz, 367 F. Supp. 422 [3 ELR 20895] (N.D. W. Va. 1973), aff'd 522 F.2d 945 [5 ELR 20573] (4th Cir. 1975) (the Monongahela case). This decision, which made clear cutting impossible and other techniques such as thinning more difficult, precipitated a crisis for the Forest Service and the timber industry. See Barlow, Evolution of the NFMA of 1976, 8 Envt'l L. Rev. 539 (1977). In 1976, Congress responded by enacting the NFMA, which partially repealed the Organic Act. It was, in the words of Senator Humphrey, designated "to get the practice of forestry out of the courts."³

Senator Humphrey's faction was wary of placing numerous substantive restrictions on the Forest Service for fear of making the courts the final arbiters of Forest Service practices in the national forests. Senator Randolph's faction was concerned that special interest groups could influence the Forest Service into making poor policy choices if the legislation contained no substantive guidance on forest management. These two perspectives resulted in a compromise.⁴

The basic approach Congress took in the NFMA was to give the Forest Service broad substantive discretion, but to bind the agency to a deliberate, public decision process. Planning was the primary means Congress chose to insure public observation and input, although some substantive restrictions were placed on timber harvesting. Congress had started down this road two years before, when it passed the Forest and Rangeland Renewable Resources Planning Act (RPA).⁵ The RPA had called for planning at the "local" national forest level, but failed to impose many restraints on the process.The NFMA fleshed out the planning process outlined in the RPA.

The NFMA calls for periodic unit plans for each national forest. 16 U.S.C. § 1604. These plans address local, site-specific concerns, including timber harvest programs, methods for site preparation and harvesting, and land use designations. NFMA plans must reflect the policy directives of the Multiple-Use Sustained-Yield Act (MUSY), 16 U.S.C. §§ 528-531. Congress directed the Forest Service to "attempt" to complete the new plans by the end of fiscal year 1985. 16 U.S.C. § 1604(c).Until that time, the Forest Service could continue to operate under pre-NFMA management plans. Id. The Forest Service regulations, promulgated in 1982, are found in 36 C.F.R. pt. 219. The Okanogan Forest Plan is scheduled to be adopted in 1986.

Plaintiffs argue that the decision to adopt a "future management plan" with respect to the ski resort violates NFMA. Plaintiffs contend that the act forbids "piecemeal planning" by requiring the adoption of forest plans. 16 U.S.C. § 1604. The argument is primarily based on the structure and purposes underlying the NFMA, because nothing in the NFMA explicitly forbids interim planning. Plaintiffs' argument also hinges on distinctions, largely semantical, between a "plan" and "management of existing plans."

Plaintiff's argument finds only tenuous and strained support in the language of the NFMA, regulations promulgated thereunder, and in the legislative history. Plaintiffs rely primarily on 16 U.S.C. § 1604(f)(1). That section states that plans "developed in accordance with this section shall — (1) form one integrated plan for each unit of the National Forest system." Despite plaintiffs' contrary interpretation, this section does not put the skids on any Forest Service decision which could conceivably be characterized as "planning" prior to adoption of the Okanogan Forest NFMA plan. The act itself provides in relatively clear language that "[u]ntil such time as a unit of the National Forest System is managed under plans developed in accordance with this subchapter, the management of such unit may continue under existing land and resource management plans." 16 U.S.C. § 1604(c).

Plaintiffs agree that the Forest Service may continue to "manage" Okanogan National Forest prior to issuing its NFMA plan, but argues that because existing plans have not had the broad based public comment that NFMA insures, that the Forest Service may not rely on theseplans in making decisions regarding Early Winters. But this argument proves too much, for only NFMA plans are subject to the NFMA procedural requirements which are the cornerstone of the act. See National Wildlife Federation v. United States Forest Service, 592 F. Supp. 931, 937 n.13 (D. Or. 1984).

Congress did not "leave a void when it enacted the NFMA." Id. The decision to issue the special use permit authorizing downhill skiing on Sandy Butte subject to various conditions is essentially a management decision left to the discretion of the Forest Service. This decision was based on a series of plans. The Winthrop Range District Multiple-Use Plan undeniably anticipates the use of Sandy Butte for skiing. See EIS at 8-9. With more particularity, the North [16 ELR 20645] Cascades Recreation Plan identifies Early Winters as the site of a potential ski development. The North Cascades Joint Plan does likewise. The possibility of using Sandy Butte for skiing was contemplated long ago; the decision authorizes future management of Sandy Butte according to previous planning. The decision was a management response to MRI's application for a permit to use Sandy Butte as provided in existing plans. The decision did not allocate land for recreational uses; it analyzed the most appropriate development of land already allocated for such use.

Enactment of the Washington Wilderness Act of 1984 (WWA) reinforces this interpretation of the NFMA. The WWA designated various parcels of land in Washington as wilderness. Sandy Butte was purposefully not among those chosen. This legislation appears to modify a previous Forest Service decision under Assistant Secretary Cutler to postpone any decision regarding development of the ski resort of Sandy Butte until completion of the NFMA plans. Cutler's decision followed the Ninth Circuit's declaration that the RARE II EIS, part of which covered Sandy Butte, was inadequate. California v. Block, 690 F.2d 753 [13 ELR 20092] (9th Cir. 1982).

These developments lead the court to conclude that no violation of the NFMA has taken place by the government activity that plaintiffs challenge.

IV. Conclusion

1. All C.F.R. citations are to the 1985 edition.

2. Because I conclude that plaintiffs have failed to show that the decision violates any provision of Washington's SIP, it is unnecessary to reach the issue of whether "activity" within the meaning of 42 U.S.C. § 7506(c) includes secondary development on private land. See Action for Rationale Transit v. West Side Highway, 699 F.2d 614, 617 [13 ELR 20347] (2d Cir. 1983) (per curiam).

3. Statement of Senator Humphrey in the floor debate on the conference version of the bill, 122 Cong. Rec. 33835 (1976).

4. A thorough and scholarly study was recently published on the history of national forest planning, with a special focus on the NFMA. See C. Wilkinson & H. Anderson, Land and Resource Planning in the National Forests, 64 Or. L. Rev. 1 (1985). For a discussion of the legislative maneuvering in the passage of the NFMA, see the discussion at 40-45 and 69-75.

5. Pub. L. No. 93-378, 88 Stat. 476.