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16 ELR 20932 | Environmental Law Reporter | copyright © 1986 | All rights reserved Methow Valley Citizens Council v. Regional ForesterNo. 85-2124-DA (D. Or. June 25, 1986)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 mitigationmeasures 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. Dale, J.: This is an action for judicial review of the Record of Decision dated July 5, 1984, by United States Forest Service Regional Forester Jeff M. Sirmon to issue a 30-year special use permit for a large ski development.1 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 area is — in a world — pristine. In a previous opinion dated April 30, 1986, I identified the parties and briefly summarized the claims in the complaint. 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 Methow Valley. Others use Methow Valley for recreational, educational, scientific or employment purposes. The group in the forefront of the controversy regarding Early Winters is Methow Valley Citizens Council (MVCC). Defendants are various United States Forest Service officials and the probable developer of Early Winters, Methow Recreation, Inc. (MRI). In response to the various pretrial motions then before me and for reasons explained in the opinion, I granted summary judgment to the defendants on two claims. I held that the Forest Service had not violated either 1) the National Forest Management Act of 1976 (NFMA), 16 U.S.C. §§ 1600-1614 and other scattered sections of 16 U.S.C. or 2) the Clean Air Act as amended, 42 U.S.C. §§ 7401-7626. I denied summary judgment on all remaining claims. A court trial was held on issues identified in a pretrial order signed by all of the parties and approved by the court. First, plaintiffs contend that the Forest Service Record of Decision to issue the permit must be set aside because it was arbitrary and capricious and not supported by substantial evidence. Second, they argue that a change in agency position on delaying the release of the environmental impact statement and Record of Decision violated their constitutional right to due process. Third, they argue that the environmental impact statement, entitled "Early Winters Alpine Winter Sports Study" (the EIS), is inadequate under the National Environmental Policy Act of 1969, (NEPA), 42 U.S.C. §§ 4231-4370a and associated regulations. I find for the defendants on all claims. The Record of Decision stands. The action is dismissed. To put this case in perspective, it is necessary to begin with a rather extensive background section. MRI applied for a permit to develop and operate Early Winters on approximately 3,900 acres in the Okanogan National Forest, a forest which contains approximately 1,706,000 acres of land, on August 21, 1978. The Early Winters project had its genesis many years before that time, however. In the early 1960s, federal study teams began surveying the North Cascade Mountains for possible designation of national park and wilderness areas. Aware of the federal effort, ski industry representatives conducted their own surveys of potential ski areas in the western United States. From these surveys, Sandy Butte emerged as a potential site for a desirable ski area. (A.R. 46A). In 1968, Congress designated the North Cascades National Park. 16 U.S.C. § 90. The legislation directed the Secretaries of Agriculture and Interior to "agree on the designation of areas within the park or recreation areas or within national forests adjacent to the park and recreation areas needed for public use facilities . . . . [S]uch public use facilities, including . . . lodges, campsites, and ski lifts, shall be constructed according to a plan agreed upon by the two Secretaries." 16 U.S.C. § 90d-3. The national park legislation referred to above led to joint study by the National Forest and National Park Services of potential winter sports activities and sites in the North Cascades area and to the development of a North Cascades Recreation Plan. (A.R. 57 at 2). In 1970, the Forest Service completed a work entitled the North Cascades Winter Sports Study. (A.R. 43C). It examined the opportunities for cross-country skiing,expansion of existing downhill ski resorts, and the development ofr new skiing facilities. This study identified Sandy Butte as having the highest potential of any site in the State of Washington for development as a major destination ski area. (A.R. 57 at 2). In 1974, the Park Service and the Forest Service issued the Joint Plan for the North Cascades area. (A.R. 21A). Like the studies that had preceded it, this plan recognized Sandy Butte as a promising site for downhill skiing facilities. (A.R. 21A at 33). In 1976, Congress enacted the NFMA. In 1977, the Okanogan Forest Supervisor adopted the Twisp-Winthrop-Concolly Unit Plan (T-W-C MUP). The MVCC appealed the approval of the multiple use plan (hence "MUP") to the Regional Forester. The plan was ultimately remanded because of deficiencies in the planning process, particularly the T-W-C MUP's treatment of roadless areas. (A.R. 57 at 3).2 Because the T-W-C MUP never went into effect, the previous plans, including the 1968 Winthrop MUP with its 1970 revision as well as the 1974 Joint Plan for the North Cascades, remained in force. At the time the T-W-C MUP was remanded, Phase II of the Roadless Area review and Evaluation (RARE II) was well underway.3 Under the RARE II project, the Forest Service inventoried all roadless areas within the National Forest System, some 190 million acres containing 154 National Forests and 19 National Grasslands. RARE II allocated all roadless areas to one of three planning categories: wilderness, nonwilderness, and future planning. Controversy arose about what a nonwilderness designation meant. California brought suit against the Forest Service, claiming that the EIS was inadequate because it failed to make site specific evaluations. In 1979, a district court agreed and enjoined the Forest Service from taking any action that might change the wilderness character of the disputed areas in California until it filed an EIS that satisfied NEPA's requirements. The Ninth Circuit affirmed. California v. Block, 690 F.2d 753 [13 ELR 20092] (9th Cir. 1982). The precarious legal foundation on which RARE II found itself brought the ill-fated program to an effective halt in states outside California. MRI applied for a special use permit in 1978. The Forest Supervisor announced his decision to study the feasibility of a ski area at Sandy Butte. MVCC appealed the decision to accept and process the permit application. The Chief Forester concluded that MRI's application could be processed if development was consistent with existing plans and satisfied all procedural requirements, including NEPA. Former Department of Agriculture Assistant Secretary M. Rupert Cutler affirmed the Chief Forester's decision. However, he directed the Chief to "ensure that such applications are not approved until the area is appropriately allocated in a land management plan and the project considered through the appropriate environmental review process." (A.R. 4A at 2). By the time the appeal reached Cutler, work on the T-W-C plan had been dropped in favor of drafting the Okanogan NFMA plan. The Regional Forester made inquiries whether the 1968, 1970 Winthrop MUP satisfied Cutler's directive quoted above. Associate Deputy Chief Housley responded with a simple answer: "No." (A.R. 4B). Housely was concerned primarily with the fact that no decision had yet been made as to whether to allocate Sandy Butte for wilderness land. It seems fair to say that Housley interpreted Cutler's decision to allow study of the permit application, but not to issue the permit until the Okanogan NFMA plan (in which allocations to wilderness would be made) was complete. The Forest Service proceeded simultaneously with consideration of MRI's permit application and with preparation of its NFMA plan for Okanogan National Forest. A draft EIS for the Early Winters proposal and a separate draft EIS for the NFMA plan were published simultaneously in 1982. The Early Winters Draft EIS chose alternative five (a larger development than that selected in the Final EIS). The NFMA plan EIS allocated the land around Sandy Butte as "Roaded Recreation," which was defined as compatible for ski area development. (A.R. 21D at 2). Hundreds of public comments were received. In the wake of the Ninth Circuit's decision in California v. Block, the Forest Service decided to start over on the NFMA plan. The Final EIS on Early Winters was completed in due course but not released, apparently because the Forest Service was concerned that release would be incompatible with the Cutler decision. Cutler's successor, John Crowell, received a letter from Washington Congressman Sid Morrison, which raised inquiries regarding the delay in releasing the Final EIS. Crowell expressed concern that release of the Early Winters EIS prior to appropriate resolution of the issue of whether Sandy Butte would be designated as wilderness would be successfully challenged in court under the principles of California v. Block. He stated: "A substantial amount of time would be needed to revise the Sandy Butte FEIS to address the question of whether or not the site should be designated wilderness. This is valuable time which would be better spent on expediting completion of the [Okanogan] Forest [NFMA] Plan." (A.R. 21C at 1). He went on to state that Congress could solve this problem though passage of a satisfactory Washington Wilderness Act. (Id. at 2). MVCC was aware of these developments. In a letter to Cutler dated June 8, 1984, the author indicated that an amendment to the Washington Wilderness Bill had been added "that would alter the intent and effect of your ruling." (A.R. 21D at 1). The letter goes on to state: "Your successor in the Reagan Administration is interpreting your decision as appropriate only because the roadless lands involved were not considered for wilderness designation in Rare II." (Id.) MVCC indicated it did not feel "that the passage of the Washington Wilderness Bill fulfills the intent of the Cutler Decision and hope that you will lend your support at this time in upholding that decision." (Id. at 2). The Washington State Wilderness Act, Pub. L. No. 98-339, 98 Stat. 299 (Washington Wilderness Act) became law on July 3, 1984. It designated various public lands in Washington as wilderness. Sandy Butte was purposefully not among those chosen. Recognizing that the NFMA authorized continued management of forest lands under existing land and resource plans pending the completion of forest plans, the Senate Committee Report accompanying the wilderness bill through Congress specified the management direction for Sandy Butte: That area of the Okanogan National Forest known as Sandy Butte has been excluded from wilderness designation in S. 837. It is the intent of Congress that land use management of Sandy Butte proceed, without delay, in accordance with existing multiple-use management plans, consistent with the National Environment Policy Act (NEPA). The designation by Congress in S. 837 of appropriate wilderness areas in Washington State makes it unnecessary to further withhold the Sandy Butte/Early Winters Alpine Winter Sports Study FEIS pending completion of the Okanogan Forest Plan. The Forest Service and the Department of Agriculture are directed to allow the evaluation process for the Sandy Butte development to proceed without additional delay, given that Congress has determined that the roadless upper third of Sandy Butte is without wilderness characteristics. (A.R. 21F at 11); S. Rep. No. 461, 98th Cong., 2d Sess. 11 (1984). With these facts in mind, I now turn to a discussion of plaintiffs' claims. Additional facts will be discussed below as they become necessary. A. Was the Forest Service decision to issue the special use permit arbitrary and capricious? Plaintiffs claim that the Regional Forester's decision should be set aside because he acted arbitrarily and capriciously and did not rely on substantial evidence in reaching the decision to issue the special use permit. As a threshold matter, I must determine whether the court has the power to review this contention in the context presented in the pretrial order. The Administrative Procedures Act (APA), provides: (a) This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. No statute precludes judicial review of the Forest Service's Record of Decision. The court is concerned here with the exception in § 701(a)(2). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971), the Supreme Court emphasized that the § 701(a)(2) exception where "agency action is committed to agency discretion by law" is "a very narrow exception . . . applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" 401 U.S. at 410 (citation omitted). In Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706 (9th Cir. 1975), plaintiff sought review of a Forest Service decision that a company was unqualified to receive a special use permit to operate a resort. In that case, the Forest Service action was authorized and taken pursuant to statutory authority provided in 16 U.S.C. § 497. The company argued that § 701(a)(2) did not apply. The court disagreed. "The statute, [16 [16 ELR 20935] U.S.C. § 497], is with respect to the proper recipient of a special use permit, drawn in such broad terms that there is no law to apply." Id. at 715. Contra Sabin v. Butz, 515 F.2d 1061, 1067 (10th Cir. 1975). Subsequent Ninth Circuit cases have not interpreted Ness to mean that judicial review of agency action taken pursuant to 16 U.S.C. § 497 or similar broadly-worded discretionary statutes is completely foreclosed in all circumstances. As one of these decisions stated: In considering whether administrative action is "committed to agency discretion by law" within the meaning of the APA, the test "is not whether a statute viewed in the abstract lacks law to be applied but rather, whether 'in a given case' there is no law to be applied." Strickland v. Morton, [519 F.2d 467, 470 (9th Cir. 1975)] (emphasis in original). Thus the existence of some law generally applicable to the subject matter in question will not necessarily remove administrative action from the "committed to agency discretion" rubric. There is "law to apply," only if a specific statute limits the agency's discretion to act in the manner which is challenged. Santa Clara v. Andrus, 572 F.2d 660, 666 (9th Cir.), cert. denied sub nom., Pacific Gas & Electric Co. v. Santa Clara, 439 U.S. § 859 (1978). The discretion afforded the Forest Service is not limited to the mere identification of a qualified recipient of a permit; it extends equally to the more basic decision to issue any permit at all. Plaintiffs' challenge — however phrased — is essentially a claim that the Forest Service had either no basis or relied on an improper basis in reaching the decision on whether or not to issue the permit for Early Winters. That decision is "committed to agency discretion" and is not reviewable. Ness, 512 F.2d at 715. See also Arizona Power Authority v. Morton, 549 F.2d 1231, 1239 (9th Cir.), cert. denied, 434 U.S. 835 (1977). But cf. Sierra Club v. Clark, 774 F.2d 1406, 1408 [16 ELR 20409] (9th Cir. 1985) (environmental challenge to Bureau of Land Management decision to amend California Desert Conservation Area Management Plan pursuant to Federal Land Policy and Management Act of 1976; agency's factual findings in support of decision to be overturned only "if arbitrary and capricious" citing Sierra Club v. Clark, 756 F.2d 686, 691 [15 ELR 20319] (9th Cir. 1985) and 5 U.S.C. § 706(2)(A). Under the circumstances presented in this case, there is no law to apply as to the propriety of the challenged decision. Ness and its progeny necessitate the conclusion that § 701(a)(2) deprives the court of any power to consider plaintiffs' contentions.4 B. Did "reversal" of the "Cutler Decision" deprive plaintiffs of any due process rights? Plaintiffs claim that the reversal of the Cutler Decision denied them due process under the fourteenth amendment to the United States Constitution. Unlike the first claim, here there is law to apply. Ness does not preclude review. In my April 30 opinion, I stated that the Washington Wilderness Act "appears" to have modified former Assistant Secretary Cutler's decision to refrain from making any decision on issuance of a special use permit pending completion of the Okanogan NFMA plan. However one interprets the scope of the Cutler Decision, it is undeniable that the Senate report gives a clear indication that Congress itself had made the determination that Sandy Butte did not posses wilderness characteristics, one of the prime issues in the Okanogan NFMA plan, and that the Forest Service should proceed ith land use management of Sandy Butte in a manner consistent with existing multiple use plans without waiting for the Okanogan NFMA plan. Assuming, without deciding, that plaintiffs have a protected fourteenth amendment interest at stake, a doubtful assumption, plaintiffs have not been denied due process in either a procedural or substantive sense. The MVCC letter to Cutler makes clear that they were aware of the pending legislative action. (A.R. 21D). Nor can it be said that the change in Forest Service policy is somehow "arbitrary or capricious" or that the Forest Service was required to give any explicit basis for the change in its policy. Congressional directive is reason enough. C. Was the EIS adequate under NEPA? This claim is the heart of what remained in the case after my rulings on the summary judgment motions. I will candidly admit that I found the factual material as well some of the environmental statutes, e.g., the Clean Air Act, complex; the legal argument, at times, difficult to follow; and the Ninth Circuit NEPA precedents lacking in adequate guidance from a trial judge's perspective, particularly on evidentiary issues. Despite these admissions, or more precisely because of them, I have given plaintiffs' NEPA claim extensive consideration. However, applying the applicable statutes, regulations and precedents as I understand them, I find that the EIS is adequate in all respects.5 "The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decision on the environment." Friends of the Endangered Species v. Jantzen, 760 F.2d 976, 985 [15 ELR 20455] (9th Cir. 1985). To effectuate NEPA's purpose, Congress requires that federal agencies prepare an EIS where "major Federal actions [will] significantly affect] [ the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS is designed to serve two basic functions. First, it "should provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences." Trout Unlimited v. Morton, 509 F.2d 1276, 1282 [5 ELR 20151] (9th Cir. 1974). Second, the EIS should "provide the public with information on the environmental impact of a proposed project as well as encourage public participation in the development of that information." Id.; Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 [15 ELR 20907] (9th Cir. 1985). There is no contention in this case that the Forest Service did not observe the purely procedural requirements of NEPA, in terms of the timing of its public announcements and the like. The issue is solely one of adequacy of the impact statement itself. The adequacy of an agency's preparation of an EIS is reviewed under 5 U.S.C. § 706(2)(D). Enos v. Marsh, 769 F.2d 1363, 1372 [15 ELR 20853] (9th Cir. 1985); Lathan v. Brinegar, 506 F.2d 677, 693 [4 ELR 20802] (9th Cir. 1974) (subsequent history omitted). In passing on the adequacy of the EIS under § 706(2)(D), the court must employ a "rule of reason" that inquires whether an EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). [Sic]. This standard is not susceptible to refined calibration. It instead requires a reviewing court to make a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and public participation. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam); Trout Unlimited, Inc., 509 F.2d at 1283. [Sic]. This standard of review, however, does not authorize a reviewing court to substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action. Once satisfied that a proposing agency has taken a "hard look" at the decision's environmental consequences, the review is at an end. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [ ] (1976). California v. Block, 690 F.2d at 761. With these standards in mind, I now turn to plaintiffs' specific challenges to the EIS. 1. Alternatives NEPA requires that an EIS provide information in detail on alternatives to the proposed action. 42 U.S.C. § 332(2)(C)(iii); 40 C.F.R. 1502.14.6 Plaintiffs contend the EIS's discussion of alternatives is inadequate because there is no detailed discussion in the EIS of expanding existing ski sites in Washington State as an alternative to developing Sandy Butte. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051 [15 ELR 20907] (9th Cir. 1985) involved a challenge to a Department of Interior proposed action to route a direct-current transmission line on multistory towers through Henderson, Nevada. The EIS gave detailed consideration to ten alternative segments of the approved route. Not one of these segments resulted in a route that avoided Henderson. Henderson contended that another route that avoided Henderson was reasonable and should have been given detailed consideration in the EIS. Id. at 1053, 1057. The trial judge, after a trail on the merits, found that the Henderson route was superior. The Ninth Circuit panel sharply criticized this approach to resolving the challenge to the EIS. "[T]he superiority of the preferred route is irrelevant to the reasonableness of the omitted alternative route." Id. at 1057. "The question for the district court, therefore, was whether [the route that avoided Henderson] was reasonable." Id. Discussion of the superiority of one route over another was apparently tantamount to substitution of the court's judgment for that of the agency, a practice forbidden by Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976). See also Adler v. Lewis, 675 F.2d 1085, 1096 [12 ELR 20674] (9th Cir. 1982) (court review is limited to assuring that the agency "considered" the environmental consequences of its proposed action). Reasonableness cannot be discussed in a vacuum. There must be some benchmark against which the court can measure the reasonableness of an agency decision to forego discussion, detailed or otherwise, of a given alternative in an EIS.7 The cases demonstrate that reasonableness of alternatives is measured largely in response to the scope of the proposed action as defined by the agency. See Friends of Endangered Species v. Jantzen, 760 F.2d at 988; California v. Block, 690 F.2d at 766-67; Save Lake Washington v. Frank, 641 F.2d 1330, 1334 [11 ELR 20645] (9th Cir. 1981); Brooks v. Coleman, 518 F.2d 17, 18-19 [5 ELR 20444] (9th Cir. 1975) (per curiam). Accord Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 836-38 [2 ELR 20029] (D.C. Cir. 1972). As Judge Burns recently noted, for purposes of judicial review it must be remembered that the scope of the EIS is largely determined by the scope of the proposed action itself and the rule of reason. . . [W]here the proposed action is vast in scope, covering a large project or program, NEPA's policy will obviously demand more from the EIS in the way of specificity and range of alternatives than where the proposed action is more modest in its scale. Natural Resources Defense Council, Inc. v. Hodel, 624 F. Supp. 1045, 1050-51 [16 ELR 20508] (D. Nev. 1985) (Burns, J. sitting by designation) (NEPA challenge to adoption of site-specific land use plan for Bureau of Land Management grazing allotment). Compare id. with California v. Block, 690 F.2d 753 [13 ELR 20092] (9th Cir. 1982) (NEPA challenge to adoption of plan to classify 62 million acres of roadless land for wilderness or other purposes, potentially irreversible if development proceeded on erstwhile roadless area). An agency need only set forth "those alternatives necessary to permit a 'reasonable choice.'" Natural Resources Defense Council, Inc. v. Hodel at 1051 citing California v. Block, 690 F.2d at 767 and Save Lake Washington, 641 F.2d at 1334. Stated another way, "[t]he range of alternatives that must be considered need not extend beyond those reasonably related to the purposes of the project." Trout Unlimited, 509 F.2d at 1286. The proposed action in this case is whether to build a destination ski resort in the Okanogan National Forest. For purposes of this opinion, it is sufficient to state that a "destination ski resort" in general terms is a large, multi-season, recreation ski area with numerous runs and sufficiently varied activities and base facilities of a sufficient quality to entice vacationers to stay several days at the site.8 The Early Winters EIS discussed five alternatives in detail. The first was no action. Under this alternative, no special use permit would have issued and no development would have been allowed. Alternatives two through five contemplated increasingly larger developments ranging from 2,300 to 10,500 skiers at one time. The preferred alternative in the EIS was the fourth alternative, which would permit a phased development over several years ultimately allowing 8,200 skiers at one time. The Regional Forester selected this preferred alternative in the Record of Decision.9 The tone of plaintiffs' alternatives argument makes it sound as if other sites were simply ignored by the Forest Service. This is not the case. The EIS itself indicates that sites in the Okanogan National Forest other than Sandy Butte were considered. (EIS at 6-7). These alternative sites were eliminated from detailed study in the EIS. See 40 C.F.R. § 1502.14(a). The primary reason given in the EIS for elimination of detailed discussion of expansion of alternative sites was that the North Cascade Winter Sports Study, a work cited in the EIS and available to the public, had identified Sandy Butte as the only area in the Okanogan Forest having good potential as a major ski development. The EIS also stated that it did not consider expanding existing sites elsewhere in Washington because the EIS was specifically tailored to development of Sandy Butte. Plaintiffs focus on this latter reason and contend that omission of detailed discussion of alternative sites outside the Okanogan National Forest renders the EIS inadequate. I cannot agree. Sites a hundred or more miles away from the Okanogan National Forest are not reasonable alternatives to the development of a ski resort at Sandy Butte. It was not unreasonable for the Forest Service to forego detailed discussion of expanding sites outside the Okanogan. As the CEQ has recognized in explaining its own regulations concerning alternatives in the context of licensing and permitting situations, a decision-maker need not "disregard the applicant's purposes and needs and the common sense realities of a given situation in the development of alternatives." CEQ Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34263, 34267, citing with approval Roosevelt Campobello International Park Commission v. EPA, 684 F.2d 1041 [12 ELR 20903] (1st Cir. 1982) (EPA licensing of refinery and deep-water petroleum terminal). The EIS need only set forth those alternatives "sufficient to permit a reasoned choice." Life of the Land v. Brinegar, 485 F.2d 460, 472 [3 ELR 20811] (9th Cir. 1973) quoting Natural Resources Defense Council v. Morton, 458 F.2d at 834. Consistent with the teachings of Better Henderson and Kleppe, and given the record before me, I conclude that expansion of existing sites was not a reasonable alternative requiring detailed discussion in the EIS. 2. General observations regarding adequacy The bulk of plaintiffs' remaining attack challenges the adequacy of the EIS discussion of "secondary" or "indirect" impacts. Indirect impacts are not those impacts caused by the construction of runs, and ski lifts and the like on Forest Service lands. In NEPA nomenclature, such effects are known as "primary" or "direct" impacts. See generally D. Mandelker, NEPA Law and Litigation, §§ 10:28 and 10:36 (1984). Indirect impacts are those from development on primarily private property that are expected to follow construction of the ski resort. Most of this development is dependent on local development and zoning policies. The forecasting of secondary impacts is generally more speculative than forecasting of primary impacts. Courts, in applying the rule of reason, take the uncertainty and speculation involved with secondary impacts into account in passing on the adequacy of the discussion of secondary impacts in an EIS. See Enos v. Marsh, 769 F.2d at 1373. This policy [16 ELR 20937] applies with equal force to mitigation measures of secondary impacts. See id. The rule that courts are not to "fly-speck" an EIS, Lathan v. Brinegar, 506 F.2d at 693, but rather to satisfy itself that the EIS has reasonably set forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned choice, Adler v. Lewis, 675 F.2d at 1096, also bears repeating. Plaintiffs contend that the EIS discussion of the direct and secondary impacts of the development on the valley's mule deer herd is inadequate. Plaintiffs also contend that the Forest Service was required to prepare a worst case analysis regarding the effect of the development on the deer herd. Finally, plaintiffs contend that the Forest Service had a duty to analyze proposed mitigation measures to lessen the impact of the development on the deer herd. a. Inadequate discussion of impact on mule deer. The EIS discussed deer impacts both on-site and off-site. It indicated that adoption of any of the four development alternatives would disturb resident mule deer habitat during the summer and fall. The Forest Service estimated that summer habitat on-site would decrease from seven to ten percent depending on which alternative was chosen. The EIS also discusses the impact of the development on winter habitat and fawning. (EIS at 75-76). In making these conclusions, the EIS depended in large part on a 1975 study and on a 1978 study by D. L. Zeigler. The EIS acknowledged that discussion of off-site impacts on deer herds was more difficult because of uncertainty about where other public and private lands may ultimately be developed. (EIS at 76). The Record of Decision, it will be remembered, merely authorizes the issuance of the permit. Actual construction of the resort must be preceded by an acceptable master development plan. The EIS did proceed to indicate that the off-site development would decrease the existing herd. (Id.). Plaintiffs challenge the quality of the Zeigler studies as well as the EIS discussion on deer impacts. They contend that the Forest Service was obligated to obtain missing data. CEQ regulations require tht agencies include information relevant to adverse impacts which is essential to a reasoned choice among alternatives if the cost of obtaining such information is not exorbitant. 40 C.F.R. § 1502.22(a). I find that the essential information relevant to a reasoned choice among alternatives was known and discussed. Plaintiffs bear the burden of proof to show that studies, models and the like are inadequate. They have not met their burden. I find the studies and the EIS discussion on deer impacts adequate under the rule of reason. b. Failure to prepare a worst case analysis. This argument is related to the preceding argument. CEQ regulations provide that a worst case analysis must be prepared in certain circumstances. A worst case analysis is not required unless information relevant to a reasoned choice among alternatives is not known and the cost of obtaining it is exorbitant. Alternatively, a worst case analysis is required if information relevant to adverse impacts is important to the decision and the means of obtaining it are unknown. 40 C.F.R. § 1502.22(b). Neither situation applies here. The relevant information essential to a choice among alternatives was known as well as the means to obtain such information. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 n.5 [15 ELR 20035] (9th Cir. 1984); cf. Sierra Club v. Sigler, 695 F.2d 957 [13 ELR 20210] (5th Cir. 1983).10 c. Duty to analyze mitigation measures. NEPA requires a discussion of "any adverse environmental effects which cannot be avoided." 42 U.S.C. § 4332(2)(C)(ii). The CEQ regulations require that an EIS section on environmental consequences must "include a discussion" of [m]eans to mitigate adverse environmental impacts (if not fully covered under § 1502.14(f))." 40 C.F.R. § 1502.16(h). Section 1502.14(f) provides that the EIS section on alternatives must contain "appropriate mitigation measures not already included in the proposed action or alternatives" 40 C.F.R. § 1502.14(f). Mitigation as used in the regulations is defined in 40 C.F.R. § 1508.20. Mere listing of mitigation measures in an EIS is generally inadequate to satisfy the CEQ regulations. See Northwest Indian Cemetery Protective Association v. Peterson, 764 F.2d 581 [15 ELR 20682] (9th Cir. 1985). However, in this EIS there is more — not much more — but more than a mere listing of mitigation measures as to the deer herd. To be sure, the mitigation discussion on deer herds and on all other adverse environmental impacts could have been more extensive. More important, however, is the recognition that formulation of at least some mitigation strategies logically must follow submission of the master development plan. Moreover, the Forest Service is currently in the process of developing mitigation measures as information becomes available based on a new study. See Oregon Natural Resources Council v. Marsh, 628 F. Supp. 1557, 1565 [16 ELR 20475] (D. Or. 1986). The Record of Decision requires, as a condition to issuance of the special use permit, that the Forest Service enter into an agreement with the Washington Department of Game and Okanogan County to develop actions to mitigate effects of development on the mule deer herd. In response to the conditions imposed by the Record of Decision, various federal, state and local agencies have signed a Memorandum of Understanding (MOU) to develop a plan to mitigate impacts on mule deer. To implement the MOU, the Forest Service and the Washington State Department of Game have undertaken an extensive study of mule deer habitat and migratory routes in the Methow Valley. Okanogan County is also studying and considering various land use controls and other measures to mitigate any impacts of population growth and development on mule deer. The Forest Service's response demonstrates that it was informed and responsive to the public concern on the effect the project would have on mule deer.See Sierra Club v. Clark, 774 F.2d at 1411. I find under the rule of reason that discussion of mitigation measures for mule deer impacts in the EIS was adequate. This claim contains several subissues. Plaintiffs contend that the EIS was inadequate on several grounds. As background to this claim, it is important to note the EIS states, and the statement has not been challenged by plaintiffs, that the ski area itself will have no measurable direct impact on air quality in the Methow Valley. The controversy over air, as over mule deer, concerns secondary impacts. a. Inadequate discussion of air quality impacts. i. Failure to discuss certain air pollutants. Plaintiffs contend that the EIS is inadequate because it contains absolutely no information regarding carbon monoxide pollution resulting from woodstoves and no information regarding nitrogen dioxide pollution. Even though plaintiffs' contention of fact is correct, I find that the omission does not render the EIS inadequate. This argument strikes me as "fly-specking."11 The evidence showed that the impacts from these pollutants from woodstoves would be relatively insignificant. The EIS does contain a brief discussion of carbon monoxide impacts. (EIS at 67). The evidence showed that nitrogen dioxide impacts would be insignificant. ii. Failure to measure existing concentrations of air pollutants. The EIS discusses the general air flow characteristics in the Methow Valley in some detail. (EIS at 26-29). More specifically, measurements of TSP were taken in both Mazama and Winthrop, two towns in the valley. Plaintiffs' argument that measurements of other pollutants, particularly carbon monoxide and nitrogen dioxide, were required to make the EIS adequate are unpersuasive. The evidence showed that nitrogen dioxide impacts would not be so significant as to warrant the type of treatment plaintiffs suggest. iii. Failure to discuss Clean Air Act PSD policy. This argument has been a moving target throughout these proceedings. In an earlier form, plaintiffs challenged the EIS because it allegedly failed to discuss the Clean Air Act's PSD policy. This argument fails. The decision-makers were aware of the PSD program [16 ELR 20938] and presumably the broad congressional policy of nondegradation. See, e.g., EIS at D-44. Disclosure of physical impacts on the environment is the primary function of an EIS. NEPA does not require that an EIS contain a definitive legal brief. At closing argument, plaintiffs contended that the EIS was inadequate because it failed to inform the decision-maker that the PSD increment for TSP had been triggered. Although the materials submitted in support of the summary judgment were in dispute on this point, the evidence clearly shows that the baseline has in fact been triggered. Because of this triggering, the PSD increment for TSP is in the process of being consumed. The ski resort and the secondary development to follow may consume the TSP increment of 37 micrograms per cubic meter for the applicable Clean Air Act geographic district. Consumption of the increment would foreclose the placement of any major emitting facility in the geographic area covered by the TSP increment. See discussion of Clean Air Act issues in April 30, 1986, opinion at 4-10. Plaintiffs, citing Alabama Power Co. v. Costle, 636 F.2d 323, 381 [10 ELR 20001] (D.C. Cir. 1979), challenge the EIS because it fails to disclose this potential foreclosure of economic opportunity in the Methow Valley. I find nothing in Alabama Power to support this contention. The EIS would have been better had it contained such a discussion, but given the legal ambiguities surrounding the PSD program, the omission is not fatal. iv. Failure to discuss impacts on Pasayten Wilderness. There was some dispute in the evidence concerning secondary impacts on the Pasayten Wilderness area, a Class I area near the upper tip of the Methow Valley. See 40 C.F.R. § 52.21(e). I find that the evidence supports the conclusion in the EIS that Class I areas will not be impacted. (EIS at 68). I find the discussion and the studies underlying such discussion adequate. b. Failure to prepare worst case analysis. No worst case analysis was necessary for reasons similar to those previously discussed in the mule deer analysis. c. Failure to analyze mitigation measures. The EIS discloses the adverse impacts on air quality that are likely to occur as a result of population growth and development in the Methow Valley over the next ten to twenty years. Air quality impacts resulting from increased growth over such a period of time is inherently speculative. See Enos v. Marsh, 769 F.2d at 1373. The secondary air qualiy impacts that may result from population growth and development in the Method Valley were forecasted on the basis of existing information and reasonable forecasting methods. The EIS stated that the majority of those impacts would be caused by off-site combustion of wood for space heat and motor vehicle use during the operating ski season. (EIS at 65, 68). The EIS lists several mitigation measures to reduce air quality impacts. (EIS at 68-69). It identifies mitigation measures to be studied and implemented by Okanogan County. The Record of Decision required development of an air quality management program designed to minimize deterioration of air quality in the Methow Valley, particularly that resulting from wood smoke emissions. (A.R. 2 at 4). The Forest Service, the Environmental Protection Agency, the Washington State Department of Ecology and Okanogan County executed a MOU which represents a determination that the air pollution mitigation measures, programs, plans and commitments identified therein will operate to prevent violation of applicable air quality standards. (A.R. 53). I find the discussion of air mitigation measures in the EIS adequate. Plaintiffs argue that the EIS is inadequate because of its failure to analyze the effectiveness of mitigation measures relating to fish and water quality impacts. The EIS states that Cedar Creek is one of the most productive trout streams in the Early Winters creek system. It analyzes in detail the increased sedimentation that could occur in Cedar Creek predominantly as a result of construction of the ski area. (EIS at 72). The EIS identifies several mitigation measures that will reduce the risk of impact on fisheries resulting from the development on Sandy Butte. Failure to discuss the effectiveness of specific mitigation measures in this EIS is understandable given the fact that effectiveness will depend on the location of facilities on the mountain. I find the fish and water discussion adequate. Plaintiffs take issue with the population growth analysis in the EIS. They complain that the population model underestimated population growth and consequently underestimated environmental damage that correlates to population growth. The discussion in the EIS is based on an extensive study performed at the request of the Forest Service. Experts disagreed over its adequacy. I find it adequate in all respects. Plaintiffs contend that the expansion of the intercity airport is closely related to the development of Early Winters, but the impacts of expansion of the intercity airport are not discussed in the EIS. Despite plaintiffs' contention, the EIS contains a rather detailed discussion of the impact of the development on air commuter activity, including activity through the intercity airport. (EIS at 117-121). To the extent plaintiffs argue that the airport is a "closely-related" action within the meaning of 40 C.F.R. § 1508.25(a)(1) requiring a separate EIS for the airport itself, the argument fails. The intercity airport is a separate action which has no direct relationship to the project proposed by MRI. While the ski resort may have an indirect effect on the airport, the actions are not "connected." See Thomas v. Peterson, 753 F.2d 754, 759 [15 ELR 20225] (9th Cir. 1985). Any issue I have neglected to discuss explicitly lacks merit. This opinion constitutes findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a). In summary, I conclude: 1) that the substantive merits of the Record of Decision are not subject to judicial review under Ninth Circuit precedent, 2) that plaintiffs did not suffer any deprivation of due process, and 3) that the Early Winters EIS complies fully with the requirements of NEPA. The action is dismissed. Each side is to bear its own costs. 1. Defendant Coston has since become the Regional Forester. The Record of Decision was signed on July 5, 1984. It was announced August 10, 1984. Plaintiffs filed an administrative appeal. See 36 C.F.R. § 211.18. Substantial wrangling ensued about the timeliness of the appeal (See A.R. 4-10). Ultimately, plaintiffs filed a lawsuit in this court regarding the issue. The Forest Service retreated on the eve of a hearing for summary judgment and allowed the appeal. Max Peterson, Chief of the Forest Service, heard plaintiffs' appeal. (A.R. 12). On December 16, 1985, Peterson affirmed the July 5, 1984, Record of Decision in all respects. (A.R. 57). The Secretary of the Department of Agriculture declined to review Peterson's decision. (A.R. 58). See 36 C.F.R. § 211.189(f)(2). This action was filed on December 17, 1985. All citations to "A.R." refer to consecutively numbered tabs in the three-volume administrative record, a part of the trial record marked as government's exhibit 102. The EIS is marked as government's exhibit 101. The following glossary of abbreviations and acronyms used in this opinion is provided for the convenience of the reader:
3. The Forest Service's efforts in RARE II's precursor, RARE I, were halted when a federal court enjoined development pursuant to the plan until the Forest Service completed an EIS. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973). 4. If the case law of the Ninth Circuit allowed the court to engage in a substantive review of the Regional Forester's decision, I would affirm it because it it neither arbitrary nor capricious. 5 U.S.C. § 706(2)(A). It is not the court's place to substitute its judgment for that of the agency of the decision to issue the permit. The decision reached is without doubt a rational and lawful one. Thesubstantial evidence test of 5 U.S.C. § 706(2)(E) does not apply to either the issue of the propriety of the decision or the adequacy of the EIS under NEPA because the Regional Forester's decision is not a "case" that is "subject to" formal adjudicatory hearings or formal rule-making required by 5 U.S.C. §§ 556, 557. Ethyl Corporation v. Environmental Protection Agency, 541 F.2d 1, 37 n.79 [6 ELR 20267] (D.C. Cir.) (en banc) cert, denied sub nom., E.I. duPont deNemours & Co. v. Environmental Protection Agency, 426 U.S. 941 (1976). See generally D. Mandelker, NEPA Law and Litigation, § 3:04 at 8 (1984). 5. The Council on Environmental Quality (CEQ) has promulgated regulations applicable to and binding upon all federal agencies for implementing the procedural provisions of NEPA. 40 C.F.R. § 1500.3 (1985); see 40 C.F.R. §§ 1500-1508. In the words of the CEQ, the purpose of the regulations is to tell federalagencies what they must do to achieve the goals of NEPA 40 C.F.R. § 1500.1(a). I grant substantial deference to these regulations as the authoritative guide for NEPA's interpretation. California v. Block, 690 F.2d 753, 763 [13 ELR 20092] (9th Cir. 1982) citing Andrus v. Sierra Club, 442 U.S. 347, 358 [9 ELR 20390] (1979). 6. All C.F.R. citations are to the 1985 edition. 7. The uninitiated might think that one component of the inquiry in Henderson regarding the reasonableness of an alternative route would be the relative superiority of a Henderson route over a route that bypassed Henderson. 8. The parties' dispute over this nonissue was particularly teaious. 9. The Forest Service indicated that it preferred alternative five in the Draft EIS. The Record of Decision states that alternative one (no action) was environmentally preferred because it would cause the least disruption to the natural environment. Alternative five would provide maximum utilization of the recreation resource opportunities and increased economic benefit to the area. Alternative four was chosen because "it provides a balance of concerns for the physical and biological components of the human environment in addition to concerns for social and economic welfare." (A.R. 2 at 2a). 10. The CEQ recently rescinded its worst case analysis regulation. The new regulation, which became effective May 27, 1986, requires that the analysis of impacts in the face of unavailable information be grounded in the rule of reason. The new rule states that "in preparing an environmental impact statement, the agency shall make reasonable efforts, in light of overall costs and state of the art, to obtain missing information which, in its judgment, is important to evaluating significant adverse impacts on the human environment that are reasonably foreseeable." 51 Fed. Reg. 15618 (1986). I have not applied the new regulation in my analysis. 11. The arguments on fish and water, population, and expansion of the intercity airport also strike me as fly-specking. 16 ELR 20932 | Environmental Law Reporter | copyright © 1986 | All rights reserved |