F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 9 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
COLORADO ENVIRONMENTAL COALITION;
DEFENDERS OF WILDLIFE; WILDERNESS SOCIETY;
SIERRA CLUB; SINAPU; SOUTHERN ROCKIES
ECOSYSTEM PROJECT; ANNE VICKERY,
Plaintiffs-Appellants,
v. No. 98-1379
MICHAEL DOMBECK, in his official capacity as Chief
of the United States Forest Service; LYLE K. LAVERTY,
in his official capacity as Regional Forester of the Rocky
Mountain Region; MARTHA KETTELE, in her official
capacity as Supervisor of the White River National Forest;
UNITED STATES FOREST SERVICE,
Defendants-Appellees.
______________
VAIL ASSOCIATES, INC.,
Intervenor-Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-N-1276)
Edward B. Zukoski (Richard E. Condit of Land and Water Fund of the Rockies,
Boulder, Colorado, and Stephen D. Harris of Merrill, Anderson, King & Harris,
Colorado Springs, Colorado, with him on the briefs for Colorado Environmental
Coalition, Defenders of Wildlife, The Wilderness Society, Sinapu, Southern
Rockies Ecosystem Project, and Anne Vickery; Gretchen Biggs, Boulder,
Colorado, with him on the briefs for Sierra Club), of Land and Water Fund of the
Rockies, Boulder, Colorado, for Plaintiffs-Appellants.
Ellen J. Durkee of the United States Department of Justice, Washington, D.C.,
and David S. Neslin of Arnold & Porter, Denver, Colorado (Lois J. Schiffer,
Assistant Attorney General, and Andrea Berlowe, United States Department of
Justice, Washington, D.C.; Linda A. McMahan, United States Attorney, and
Michael Hegarty, Assistant United States Attorney, Denver, Colorado, with them
on the brief for Michael Dombeck, Lyle K. Laverty, and Martha Kettelle, in their
official capacities, and the United States Forest Service; Peter Krumholz of
Arnold & Porter, and Bruce F. Black of Holme Roberts & Owen LLP, Denver,
Colorado, with them on the brief for Vail Associates, Inc.; and Kenneth Capps,
United States Department of Agriculture, Of Counsel, Denver, Colorado, with
them on the brief), for Defendants-Appellees and Intervenor-Appellee.
Before SEYMOUR, BRORBY and HENRY, Circuit Judges.
BRORBY, Circuit Judge.
Appellants, one individual and various groups that promote the protection
of the environment, natural resources and wildlife, appeal a district court order
refusing to enjoin the defendant, United States Forest Service (“Forest Service”),
from permitting the Intervenor, Vail Associates, Inc. (“Vail”), to expand its
existing ski area into a new area known as Category III. Appellants present two
principal issues on appeal: (1) whether the Forest Service violated the National
Forest Management Act, 16 U.S.C. § 1604(g)(3)(B), and its implementing
regulations, 36 C.F.R. § 219.19, in analyzing the effects of the proposed ski area
expansion on the viability of Canada lynx populations within the Category III
-2-
area; and (2) whether the Forest Service violated the National Environmental
Policy Act, 42 U.S.C. § 4332, and its implementing regulations, 40 C.F.R.
§§ 1500-1508, in analyzing the environmental impacts of the proposed expansion.
Having carefully reviewed the administrative record, we conclude the Forest
Service’s lynx habitat analysis did not contravene the National Forest
Management Act or the forest planning regulations. We further conclude the
Forest Service’s final environmental impact statement satisfied National
Environmental Policy Act standards, and the Forest Service was not required to
prepare a supplemental environmental impact statement. Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, the Forest Service approved Vail’s site-specific, detailed proposal
to expand its existing ski area into roughly half of a 4,100 acre area south of the
developed back bowls of Vail Mountain known as Category III. The Forest
Service exercised jurisdiction over this matter because the existing ski area and
the Category III area are within the White River National Forest. In approving
the proposed expansion, the Forest Service concluded the expansion : (1) is
consistent with the applicable Forest Plan; (2) will significantly improve the
recreational experience for visitors to the Vail Ski Area and the White River
National Forest by providing more reliable and dependable skiing conditions, and
-3-
by adding needed intermediate terrain; (3) will build skier visitation during non-
peak periods, thus making more efficient use of existing infrastructure; and (4) as
modified and restricted, will not threaten the viability of lynx, will have minor
socioeconomic effects, and will have an acceptable level of impact on other
resources.
By way of history we point out that Vail submitted a general expansion
proposal in 1986. The Forest Service conceptually approved expansion into
Category III and included that area in Vail’s special use permit, designating it as a
potential area for future ski area expansion, subject to subsequent site-specific
environmental analysis. 1 The environmental assessment supporting the Forest
Service’s conceptual approval concluded it was unknown whether lynx use
portions of Category III, but nevertheless treated them as a species of concern and
required Vail to develop guidelines to protect potential lynx habitat.
1
The Forest Service first contemplated an expansion into the Category III
area as early as 1962, when it issued Vail’s first special use permit. The 1983 and
1992 Rocky Mountain Regional Guides, which establish general policies and
programmatic direction for ski area development in National Forests in Colorado
and nearby states, likewise acknowledged the high priority for further
development at Vail. Moreover, the 1984 White River National Forest Plan
specifically designated the Category III area for ski development, and
contemplated completion of such development by 1999.
-4-
Vail developed the lynx habitat guidelines in consultation with the Forest
Service and the Colorado Division of Wildlife. 2 Vail also worked with the Forest
Service and Colorado Division of Wildlife to conduct over thirty specialized
resource studies on Category III, which it then utilized to prepare a detailed
development plan. In order to preserve natural contours, avoid wetlands and old
growth forest, and protect potential habitat identified by those studies, Vail
eliminated plans for development in about half of Category III, and agreed to
maintain the ski area’s existing capacity of 19,900 skiers-at-one-time. Vail
submitted its site-specific, detailed development proposal to the Forest Service in
1994.
Upon receipt of Vail’s site-specific proposal, the Forest Service initiated an
environmental review process as required by the National Environmental Policy
Act. This process included a scoping period to identify issues for analysis and the
2
The guidelines specifically evaluated and discussed numerous aspects of
lynx ecology and the impacts of proposed ski area expansion on lynx habitat. In
the discussion preceding the specific guidelines identified to mitigate such
impacts, Vail and the federal and state agencies acknowledged it is preferable to
develop a management plan with the specific knowledge that the species in
question actually exists in or adjacent to the management area. Nevertheless, they
concluded that even if the species is absent, implementation of the guidelines “is
prudent for maintaining adequate habitat, if and when the species reoccupies the
area.”
-5-
preparation of a biological evaluation and environmental impact statement.
Particularly relevant to this appeal, the biological evaluation and environmental
impact statement concluded that each expansion alternative considered may
adversely impact individual lynx and their habitat, but is unlikely to result in a
loss of species viability on the White River National Forest. Based on these
documents, in August 1996, the Forest Service published a Record of Decision
approving one of the expansion alternatives, as modified to minimize
environmental impacts.
A number of entities, including several of the Appellants, appealed that
decision to the Deputy Regional Forester, raising many of the same issues before
us. The Deputy Regional Forester denied the appeal, but directed the Forest
Service to prepare further documentation on potential cumulative impacts and
proposed forest plan amendments. The Forest Service conducted and documented
its further review, and again approved the modified expansion plan in August
1997. Expansion opponents filed another administrative appeal, which the Forest
Service denied. 3
3
Between 1986 and its approval of the expansion in 1997, the Forest
Service conducted or considered over seventy different environmental studies on
Category III and nearby areas; participated in over forty meetings with the general
public, environmental groups and government agencies; formally consulted with
seventeen federal, state and local agencies; and prepared an environmental
-6-
Appellants brought the present judicial action in June 1998, seeking a
preliminary injunction enjoining the commencement of work on the expansion and
a declaration the Forest Service violated the National Forest Management Act and
the National Environmental Policy Act. The district court consolidated the
hearing on the motion for preliminary injunction with a trial on the merits.
Concluding the Appellants did not show a likelihood of success on the merits, or
questions going to the merits so serious, substantial, difficult, and doubtful as to
make the issues ripe for litigation, the district court denied the preliminary
injunction motion, entered final judgment in favor of the Forest Service, and
dismissed the case. Those rulings are now before us on appeal. 4
II. DISCUSSION
Appellants seek judicial review of the Forest Service’s final decision
pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706. We review
assessment, an environmental impact statement, a supplemental environmental
impact statement, and two biological evaluations.
4
This court denied Appellants’ motion for injunction pending appeal by
order dated October 14, 1998. Appellants’ request for expedited decision, or, in
the alternative, for stay pending the court’s decision was likewise denied by order
dated June 30, 1999.
-7-
that decision under 5 U.S.C. § 706(2)(A) to determine, de novo, 5 whether it was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th
Cir. 1992).
“[I]n determining whether the agency acted in an ‘arbitrary and capricious
manner,’ we must ensure that the agency ‘decision was based on a consideration
of the relevant factors’ and examine ‘whether there has been a clear error of
judgment.’” Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir.
1997) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971)). We consider an agency decision arbitrary and capricious if
“the agency ... relied on factors which Congress had not intended it
to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.”
Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Inc. Co., 463
5
We afford no particular deference to the district court’s review of an
agency action; our review of the administrative record pertaining to the
challenged action is independent. Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.
1989); see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1569 n.16
(10th Cir. 1994). We compliment the parties on their extraordinary efforts to
compile, organize and accurately cite to the voluminous record.
-8-
U.S. 29, 43 (1983)).
Applying this standard, we examine Appellants’ claims under the National
Forest Management Act and the National Environmental Policy Act to ascertain
whether the Forest Service examined the relevant data and articulated a rational
connection between the facts found and the decision made. Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43.
A. National Forest Management Act
1. Overview
The National Forest Management Act directs the Forest Service to develop
Land and Resource Management Plans (“Forest Plans”) by which to manage each
National Forest under principles of “multiple-use” and “sustained yield.” 16
U.S.C. § 1604. Forest management occurs at two distinct levels. See Ohio
Forestry Ass’n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1668-69 (1998).
At the first level, the Forest Service develops the Forest Plan, a broad,
programmatic document, accompanied by an environmental impact statement and
public review process conducted in accordance with the National Environmental
Policy Act. 42 U.S.C. § 4331 et seq.; see also 16 U.S.C. § 1604(d); 36 C.F.R.
-9-
§ 219.10(b). The Forest Plan must incorporate multiple forest uses, and thus
coordinate the management of “outdoor recreation, range, timber, watershed,
wildlife and fish, and wilderness.” 6 16 U.S.C. § 1604(e)(1). The Forest Plan
must also “provide for diversity of plant and animal communities based on the
suitability and capability of the specific land area in order to meet overall
multiple-use objectives.” Id. at § 1604(g)(3)(B).
At the second level, the Forest Service implements the Forest Plan by
approving (with or without modification) or disapproving particular projects such
as the Category III expansion. Proposed projects must be consistent with the
Forest Plan, id. at § 1604(i), 36 C.F.R. § 219.10(e), and are subject to further
National Environmental Policy Act review. See Ohio Forestry Ass’n, 118 S. Ct.
at 1668-69.
6
Relevant to the issues presented here, the White River National Forest
Plan allocates approximately 3% of the 2.2 million acre forest for downhill skiing.
The Forest Plan instructs the Forest Service to meet the desires of recreation
visitors by developing additional skiing opportunities and amenities at existing
resorts. Pursuant to its authority under the National Forest Ski Area Permit Act,
the Forest Service may issue permits for this purpose. The permits “shall
encompass such acreage as the Secretary determines sufficient and appropriate to
accommodate the permittee’s needs for ski operations and appropriate ancillary
facilities.” 16 U.S.C. § 497b(b)(3).
-10-
2. Maintaining Viable Populations: Population Data v. Habitat Analysis
To “provide for diversity of plant and animal communities” when planning
or evaluating proposed projects on our national forests, the Forest Service must,
among other things, manage:
[f]ish and wildlife habitat ... to maintain viable populations of
existing native and desired non-native vertebrate species in the
planning area. For planning purposes, a viable population shall be
regarded as one which has the estimated numbers and distribution of
reproductive individuals to insure its continued existence is well
distributed in the planning area. In order to insure that viable
populations will be maintained, habitat must be provided to support,
at least, a minimum number of reproductive individuals and that
habitat must be well distributed so that those individuals can interact
with others in the planning area.
36 C.F.R. § 219.19 (emphasis added).
Appellants claim that in order to comply with the plain language of 36
C.F.R. § 219.19, the Forest Service must compile hard lynx population data (e.g.,
the number of lynx, including reproductive lynx, found in the White River
National Forest and Category III planning area, and lynx distribution in those
areas), not just manage habitat for a hypothetical population. The Forest Service
and Vail contend it is permissible to substitute a habitat analysis for population
data where, as here, (1) population data or estimates are unavailable, and (2) even
if such data existed it would not improve the overall analysis because the project
will not result in species loss.
-11-
To determine what type of data or analysis is necessary to satisfy 36 C.F.R.
§ 219.19, we, too, begin with the plain language, which unmistakably focuses on
the provision and distribution of habitat in order to maintain existing viable
populations. To the extent the regulation discusses, and therefore arguably
requires, specific analysis of the estimated numbers and distribution of individual
members of a species, it does so only in the narrow context of defining what
constitutes a “viable population.” A “viable population” exists when enough
reproductive individuals of a given species are distributed throughout a given area
to insure the continued existence of that species in that area. The regulatory
language clearly presupposes the ascertainable presence of a species’ population
within a given planning area.
The administrative record before us indicates there is no existing lynx
population in Category III or the White River National Forest from which to
gather census or distribution data. 7 Indeed, the Colorado Division of Wildlife
7
For example: although probable lynx tracks were recorded in the area in
1991, last confirmed lynx sighting was on Vail Ski Area during the winter of
1973-74; last reported lynx capture within Colorado occurred twenty-five years
ago on the Vail Ski Area; lack of a verifiable lynx population in Colorado is
attributable to a variety of natural conditions and historic factors; only two sets of
lynx tracks were positively identified after transecting 190.5 miles on and around
the Vail ski area in thirteen days in 1989; a single set of possible tracks identified
after transecting 2,053 miles primarily within the boundaries of the White River
National Forest in 1992; after intensive efforts using snowtracking (5,833.5 mi),
-12-
believes “if any lynx remain in Colorado their numbers are so small that they do
not represent a viable population, and are not detectable by known census
methods.” The United States Fish and Wildlife Service similarly “concludes that
a self-sustaining resident [lynx] population does not exist in Colorado, but
individual animals may be present.” Because no ascertainable lynx population
exists within Category III or the White River National Forest, we do not read 36
C.F.R. § 219.19 to require the Forest Service to collect or evaluate hard lynx
population data prior to making its decision in this case.
A review of the plain language of 36 C.F.R. § 219.19 and its enabling
statute, the National Forest Management Act, establishes Congress never intended
to require the Forest Service to collect population data and make data-based
population viability assessments as a precondition to managing habitat if, despite
good faith efforts to confirm the presence of lynx, 8 no one has seen an actual lynx
hair snags (62 locations), remote cameras (110 locations) and snares (686 trap
nights), only eleven sets of tracks that appeared to have a high probability of
being lynx were found; the Colorado Division of Wildlife has offered a $500
reward for any positive information on lynx since 1993 and has not received any;
there have been no road kills or accidental trapping or shooting of lynx since
1973.
8
Appellants’ claim there has been no meaningful effort to collect lynx
population data is unfounded. The Colorado Division of Wildlife acknowledges
twelve investigations since 1972 attempting to document the presence of lynx in
Colorado. In its proposal to list the lynx as “threatened,” the United States Fish
-13-
in the project area in over twenty-five years, and only a few sets of tracks have
been documented in the past ten years. Under the circumstances, the best the
Forest Service could do to comply with the Forest Plan mandate to develop
additional skiing opportunities at existing resorts and provide for diversity of
plant and animal communities within Category III, was to provide and distribute
lynx habitat based on the best information available, on the remote chance a
population of reproductive lynx might reoccupy the area in the future.
Our views on this issue are in complete accord with the Ninth Circuit’s
decision in Inland Empire Pub. Lands Council v. United States Forest Serv., 88
F.3d 754 (9th Cir. 1996). In Inland Empire, the Forest Service approved timber
sales based on a habitat analysis for seven sensitive species living in the Upper
Sunday area of the Kootenai National Forest in Montana. The Ninth Circuit
concluded the Forest Service’s habitat analysis was not “in any way ‘plainly
erroneous’” or “‘inconsistent’” with the plain language of 36 C.F.R. § 219.19,
which “specifically provides that the Forest Service may discharge its duties
and Wildlife Service acknowledged that “[s]ince the late 1970's, intensive
surveying efforts have revealed only minimal evidence of lynx presence” in
Colorado. Appellants cite no authority for the proposition the Forest Service
itself must conduct or commission a study, concurrent with its environmental
assessment of a proposed project, to satisfy its planning or species diversity
mandates.
-14-
through habitat management as long as ‘habitat [is] provided to support, at least, a
minimum number of reproductive individuals and that habitat [is] well distributed
so that those individuals can interact with others in the planning area.’” Id. at
761 (quoting 36 C.F.R. § 219.19). The court further upheld the Forest Service’s
more limited analysis of the flammulated owl’s nesting and feeding habitat
requirements, because “such data were unavailable” and “an analysis that uses all
the scientific data currently available is a sound one.” Id. at 762. In so holding,
the court appropriately noted the deference due an agency’s interpretation of its
own regulations, especially when that interpretation involves questions of
scientific methodology. Id. at 760; see also Idaho Sporting Congress v. Thomas,
137 F.3d 1146, 1153-54 (9th Cir. 1998).
To the extent other courts have read 36 C.F.R. § 219.19 to prohibit reliance
on habitat analysis without hard population data, see, e.g., Sierra Club v. Martin,
168 F.3d 1 (11th Cir. 1999); Sierra Club v. Glickman, 974 F.Supp. 905 (E.D. Tex.
1997); Seattle Audubon Soc’y v. Lyons, 871 F.Supp. 1291 (W.D.Wash. 1994),
aff’d sub nom. Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401 (9th Cir. 1996),
those decisions are distinguishable from this case in at least two important ways:
(1) they involved the application of § 219.19 under circumstances in which
population data was available; and (2) they involved the provisions of § 219.19
-15-
applicable to the use of a Management Indicator Species as a proxy for
determining the effects of management activities on other species. See Martin,
168 F.3d at 4-8; Glickman, 974 F.Supp. at 936-38; Seattle Audubon Soc’y, 871
F.Supp. at 1315-16. As discussed above, there simply is no lynx population data
available to the Forest Service in this case. Moreover, when considering the
Category III expansion, the Forest Service logically did not select the rare and
elusive lynx as a Management Indicator Species. Thus, the population inventory
requirements of § 219.19 that apply to Management Indicator Species are
irrelevant to the issue before us.
It would be inappropriate to comment here on the soundness of those
opinions requiring population inventories and data-based viability assessments
under very different facts and forest planning contexts. We simply hold the
regulatory language does not require the Forest Service, under the circumstances
of this case, to collect actual lynx population data. It would be absurd to permit
project opponents to utilize the population viability regulation to block
consideration and approval of projects otherwise consistent with the applicable
Forest Plan when no evidence shows a population of a given species is present
within the relevant planning area, and when the viability of any individual
members of that species can otherwise be protected by appropriate habitat
-16-
preservation and distribution. Thus, in this case, where no viable population
exists, we recognize habitat identification and preservation as a legitimate means
of ensuring any future lynx viability. 9
Appellants further argue that even if we read 36 C.F.R. § 219.19 to permit
the use of a habitat analysis instead of a data-based viability assessment, the
Forest Service nevertheless made assumptions without the necessary background
information and failed to make important viability findings. These claims lack
logic and support in the record.
In large part, Appellants’ back-up argument amounts to a repackaging of
their primary argument. As we fail to see how the Forest Service could be
required to gather population data where no population exists, we similarly fail to
see how the Forest Service could be required to determine precisely how much
habitat is necessary to maintain a nonexistent lynx population, or to conclude it is
maintaining a viable population where none exists. 10 Here again, we conclude it
9
Like the Ninth Circuit in Inland Empire, however, we encourage the
Forest Service to analyze the viability of any species’ population in terms of
actual population size, trends, dynamics, and distribution when such data is
available. See Inland Empire, 88 F.3d at 761 n.8.
10
We are particularly puzzled by Appellants’ argument that the Forest
Service somehow acted arbitrarily and capriciously by providing and distributing
-17-
was entirely reasonable under the circumstances for the Forest Service to rely on
the best available scientific information 11 to (1) identify the parameters of suitable
habitat, (2) estimate the amount of suitable habitat available in and adjacent to the
project area, and (3) determine the anticipated effects of the proposed action on
each type of habitat in order to provide and distribute sufficient habitat to
mitigate the loss of any individual lynx possibly present in the planning area.
Having studied the administrative record, and giving a practical
lynx habitat, even in the absence of population data, in order to protect the
species’ future viability. They reason, “[p]roviding habitat where few or no
animals exist will not protect lynx, particularly given that the lynx may already
have dropped below the level of viability.” Apparently, Appellants seek the
protection of habitat or species based on hard population data, or no protection at
all; unless, as counsel suggested at oral argument, Appellants take the position
that if no lynx population exists in the planning area, to comply with 36 C.F.R.
§ 219.19 the Forest Service may be required to introduce a lynx population and
then maintain habitat for that population. Because Appellants did not raise or
support that argument in their brief on appeal, we do not address it here, except to
state we see no support for that proposition in the statutory or regulatory language
cited.
11
The Forest Service examined available data on the characteristics of lynx
denning, foraging, and traveling habitats, and, based on that data, established
conservative parameters for each so as to define suitable habitat and determine
the amount of each type habitat contained in the project area, the landscape area,
the regional area, and the eastern portion of the White River National Forest. The
Forest Service concluded that because fundamental habitat needs for lynx are
similar throughout their North American range, it could reasonably assume that
data from the Northern Rocky Mountains are applicable to lynx habitat needs in
Colorado. We agree.
-18-
interpretation to the Forest Service’s regulatory mandate, consistent with the
“overall multiple use objectives” and “inherent flexibility” of the National Forest
Management Act, Moseley, 80 F.3d at 1404, we hold the Forest Service’s lynx
habitat analysis and lynx viability assessment did not violate the National Forest
Management Act or 36 C.F.R. § 219.19, and was not arbitrary and capricious.
B. National Environmental Policy Act
Federal agencies must comply with certain procedures prior to taking any
action or making any decision that could significantly affect the quality of the
human environment. More precisely, the National Environmental Policy Act
directs all federal agencies to:
(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the
responsible official on –
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term
productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
-19-
implemented.
42 U.S.C. § 4332(2)(C) (listing the requirements for an environmental impact
statement); see also 40 C.F.R. § 1500 et seq. (Council on Environmental Quality
regulations expanding upon the appropriate form and content of an environmental
impact statement).
Congress intended these “action-forcing procedures” merely to guarantee
that agencies take a “hard look” at the environmental consequences of proposed
actions utilizing public comment and the best available scientific information.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Holy
Cross, 960 F.2d at 1521; see also 40 C.F.R. § 1500.1. Consequently, the National
Environmental Policy Act “prescribes the necessary process,” but “does not
mandate particular results.” Holy Cross, 960 F.2d at 1522 (quotation marks and
citation omitted); see also Methow Valley, 490 U.S. at 350. Stated differently, the
Act “prohibits uninformed – rather than unwise – agency action.” Methow Valley,
490 U.S. at 351.
Appellants claim the Forest Service failed to take the “hard look” Congress
intended when it analyzed the environmental impact of Vail’s proposed Category
III expansion. Specifically, Appellants contend the Forest Service failed to: (1)
-20-
obtain necessary information concerning the lynx or disclose that such
information was unavailable; (2) properly analyze mitigation measures; (3)
analyze a range of reasonable alternatives; (4) properly analyze indirect and
cumulative impacts caused by an increase of up to 218,000 skier visits per year;
and (5) analyze significant new information concerning significant undisclosed
impacts of the project. We consider these claims in turn.
1. Adequacy of the Final Environmental Impact Statement.
The first four National Environmental Policy Act issues Appellants raise
pertain to the adequacy of the Final Environmental Impact Statement. In
reviewing the adequacy of a final environmental impact statement we merely
examine “whether there is a reasonable, good faith, objective presentation of the
topics [the National Environmental Policy Act] requires an [environmental impact
statement] to cover.” Holy Cross, 960 F.2d at 1522 (quotation marks and citation
omitted). Our objective is not to “fly speck” the environmental impact statement,
but rather, to make a “pragmatic judgment whether the [environmental impact
statement]’s form, content and preparation foster both informed decision-making
and informed public participation.” Oregon Envtl. Council v. Kunzman, 817 F.2d
484, 492 (9th Cir. 1987) (quotation marks and citation omitted).
-21-
a. Lynx Information
Council on Environmental Quality regulations require agencies to include
complete information in an environmental impact statement “[i]f the incomplete
information relevant to reasonably foreseeable significant adverse impacts is
essential to a reasoned choice among alternatives and the overall costs of
obtaining it are not exorbitant.” 40 C.F.R. § 1502.22(a). Appellants’ claim that
the Forest Service violated the National Environmental Policy Act and this
regulation by failing to obtain and analyze all information concerning the lynx,
amounts to a second attempt to have this court read regulatory language to impose
data gathering requirements under circumstances where no such data exists.
As noted above, the Forest Service collected and utilized the best available
data to (1) analyze the possible impact of the proposed Category III expansion
and reasonable expansion alternatives on lynx habitat, and (2) identify and
preserve sufficient lynx habitat to mitigate any impact on individual lynx that may
live in or travel through the Category III area. We reiterate our belief the Forest
Service was not arbitrary and capricious in its analysis, and conclude the analysis
constitutes a reasonable, good faith presentation of the best information available
under the circumstances. Appellants simply fail to show how additional, site-
specific lynx data is “essential” to reasoned decision making; thus, we hold the
-22-
Forest Service did not violate 40 C.F.R. § 1502.22(a) or the National
Environmental Policy Act.
Moreover, we are unwilling to give a hyper-technical reading of the
regulations to require the Forest Service to include a separate, formal disclosure
statement in the environmental impact statement to the effect that lynx population
data is incomplete or unavailable. See 40 C.F.R. § 1502.22(b). Congress did not
enact the National Environmental Policy Act to generate paperwork or impose
rigid documentary specifications. See 40 C.F.R. § 1500.1(c). The record in this
case amply demonstrates the participants in the environmental review process
were well aware of the relevance of lynx population data to consideration of the
Category III expansion, the scarcity of such data, and the studies and reports the
Forest Service used to evaluate lynx impacts based on available distribution,
denning, and foraging habitat information. As such, an additional, formal
statement citing and specifically parroting the regulatory language at 40 C.F.R.
§ 1502.22(b) would serve no useful purpose, and the omission of such a statement
in this case does not violate the National Environmental Policy Act. See 40
C.F.R. § 1500.3 (trivial violations not actionable).
-23-
b. Mitigation Analysis
By statute and regulation, an environmental impact statement must include
a discussion of possible mitigation measures to avoid adverse environmental
impacts. See 42 U.S.C. § 4332(C)(ii); 40 C.F.R. §§ 1502.14(f), 1502.16(h),
1508.14, 1508.25(b)(3); see also Methow Valley, 490 U.S. at 351-52. Such
discussion must be “reasonably complete” in order to “properly evaluate the
severity of the adverse effects” of a proposed project prior to making a final
decision. Methow Valley, 390 U.S. at 352; see also Holy Cross, 960 F.2d at 1523.
It is not enough to merely list possible mitigation measures. See Neighbors of
Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1380 (9th Cir.
1998).
Appellants contend the Forest Service’s mitigation discussion pertaining to
the Category III expansion is insufficient because, although the agency listed and
numerically rated the effectiveness of a number of mitigation measures, it “failed
to evaluate the measures’ effectiveness in any way.” Appellants further claim the
Forest Service included mitigation measures in its 1996 and 1997 Records of
Decision that it never analyzed or proposed in the underlying environmental
review documents. The administrative record belies both claims.
-24-
It can hardly be said the Forest Service did little more than list numerous
mitigation measures. To the contrary, the Forest Service identified nearly 150
project-specific mitigation measures, and, as evidenced by the numerical
effectiveness ratings, 12 separately analyzed and evaluated each. The Forest
Service provided a narrative discussion of the possible mitigation measures
applicable to each resource affected by the proposed expansion. The intent and
efficacy of certain mitigation measures is further derived from the impact analysis
pertaining to issues of particular public interest, such as trees, wetlands, erosion
control, and lynx and other wildlife. Finally, the Forest Service properly
identified which mitigation measures it adopted in its Records of Decision, 13 40
C.F.R. § 1505.2(c), and where relevant, noted the cooperating agencies’
recommendations and/or findings regarding those adopted measures.
12
Appellants cite no evidence and do not appear to argue that the Forest
Service arbitrarily assigned a numerical value to each mitigation measure. That
Appellants cite to an “expert” who opined the Forest Service failed to discuss the
mitigation measures in adequate detail, is of little consequence given our
deferential standard of review and the established principal that agencies are
entitled to rely on their own experts so long as their decisions are not arbitrary
and capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360,
378 (1989).
13
Having reviewed the record, we simply cannot agree with Appellants’
assertion that the decision documents themselves adopted mitigation measures
substantially different from those proposed and analyzed in the environmental
impact statements.
-25-
This record demonstrates the Forest Service included a reasonably complete
discussion of possible mitigation measures in the appropriate environmental
review documents. The mitigation analysis certainly was adequate to foster
informed public participation as well as an informed decision, and thus satisfied
the National Environmental Policy Act mandate.
c. Alternatives Analysis
The alternatives analysis is characterized as “the heart” of the
environmental impact statement. 40 C.F.R. § 1502.14. To comply with the
National Environmental Policy Act and its implementing regulations, the Forest
Service is required to rigorously explore all reasonable alternatives to the
Category III expansion in comparative form, and give each alternative substantial
treatment in the environmental impact statement. Id. at §§ 1502.1, 1502.14(a); 42
U.S.C. §§ 4332(2)(C)(iii) & (E); All Indian Pueblo Council v. United States, 975
F.2d 1437, 1444 (10th Cir. 1992).
When evaluating the adequacy of the Forest Service’s alternatives analysis
(i.e., the number of alternatives the Forest Service was required to consider and
the requisite level of detail), we employ the “rule of reason” to ensure the
environmental impact statement contained sufficient discussion of the relevant
-26-
issues and opposing viewpoints to enable the Forest Service to take a hard look at
the environmental impacts of the proposed expansion and its alternatives, and to
make a reasoned decision. Pueblo Council, 975 F.2d at 1445. We note the
National Environmental Policy Act “does not require agencies to analyze the
environmental consequences of alternatives it has in good faith rejected as too
remote, speculative, or ... impractical or ineffective.” Id. at 1444 (quotation
marks and citation omitted). “What is required is information sufficient to permit
a reasoned choice of alternatives as far as environmental aspects are concerned.”
Id. (quotation marks and citation omitted).
Appellants assert the Forest Service violated the National Environmental
Policy Act by “arbitrarily and capriciously refus[ing] to consider in detail a
reasonable development alternative proposed by Appellant Colorado
Environmental Coalition.” Appellants further argue the district court erred by
allowing Vail’s stated purpose and need for the expansion to “categorically
preclude” consideration of Colorado Environmental Coalition’s “Conservation
Biology Alternative.” 14 They encourage us to adopt the standard applied by the
14
According to Appellants, the Colorado Environmental Coalition’s
Conservation Biology Alternative would provide (1) up to 232 additional acres of
skiable terrain; (2) increased reliable, early season skiing without additional
snowmaking; (3) a lift to improve access and alleviate skier crowding at certain
areas and provide a back-up evacuation route; (4) improved and increased front-
-27-
Seventh Circuit, such that “the evaluation of ‘alternatives’ mandated by [the
National Environmental Policy Act] is to be an evaluation of alternative means to
accomplish the general goal of an action; it is not an evaluation of the alternative
means by which a particular applicant can reach his goals.” Van Abbema v.
Fornell, 807 F.2d 633, 638 (7th Cir. 1986); see also Simmons v. United States
Army Corps of Eng’rs, 120 F.3d 664, 669 (7th Cir. 1997).
As noted, the National Environmental Policy Act and Council on
Environmental Quality Regulations require the Forest Service to study in detail all
“reasonable” alternatives. 42 U.S.C. §§ 4332(2)(C)(iii) and (E), 40 C.F.R.
§§ 1502.1, 1502.14(a). The Seventh Circuit, and other courts, have interpreted
this requirement to preclude agencies from defining the objectives of their actions
in terms so unreasonably narrow they can be accomplished by only one alternative
(i.e., the applicant’s proposed project). See, e.g., Simmons, 120 F.3d at 669; c.f.
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir.), cert.
denied, 502 U.S. 994 (1991). Agencies also are precluded from completely
ignoring a private applicant’s objectives. See Busey, 938 F.2d at 196; Louisiana
Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985); Guidance
side intermediate terrain; and (5) transportation to nearby resorts to improve the
overall distribution of skiers during peak periods.
-28-
Regarding NEPA Regulations, 48 Fed. Reg. 34263, 34267 (July 28, 1983). We do
not perceive these authorities as mutually exclusive or conflicting. They simply
instruct agencies to take responsibility for defining the objectives of an action and
then provide legitimate consideration to alternatives that fall between the obvious
extremes. Beyond this, there are no hard and fast rules to guide the alternatives
analysis. Our task, then, is to determine whether the Forest Service stepped
outside the established parameters by declining to give more attention to the
Conservation Biology Alternative the Appellants prefer, or, stated differently,
whether the alternatives analysis provided satisfies the rule of reason.
The record reveals the Forest Service considered the Regional Guide, the
White River Forest Plan, prior Forest Service planning and permitting decisions
in accordance with the National Forest Ski Area Permit Act of 1986, and Vail’s
expressed needs and goals, when drafting the statement of purpose and need for
the Category III expansion environmental impact statement. Indeed, the Forest
Service expressly referenced the agency management goals to be achieved vis-à-
vis implementation of the Category III proposal. The record thus disproves
Appellants’ claim the Forest Service blindly adopted Vail’s articulated purpose
and need.
-29-
While we appreciate that Appellants zealously advocate a wilderness
conservation philosophy and would like to see that philosophy expressly
recognized in environmental impact statements and other environmental review
documents, and implemented by the Forest Service and other federal
land/resource management agencies, the fact is the Forest Service could not
consider the proposed Category III expansion in a vacuum. The White River
Forest Plan, itself subject to National Environmental Policy Act review,
previously prescribed additional winter recreation development on the Forest, and
designated the Category III area for that purpose. We hold the Forest Service was
fully authorized within this decision-making context to limit its consideration to
expansion alternatives designed to substantially meet the recreation development
objectives of the Forest Plan. Accordingly, the statements of purpose and need
drafted to guide the environmental review process concerning the proposed
Category III expansion are not unreasonably narrow. 15 See City of Angoon v.
15
The Forest Service defined the needs of the proposal as:
1. To respond to a proposal which has the potential for offering
more effective recreation utilization of public lands without
creating additional demands and impacts on off-site lands and
communities.
2. To help to achieve Forest Service goals by providing high
quality recreation experiences for visitors to the National
Forest, specifically within the Vail Ski Area [special use
permit] area.
-30-
Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987)
(court not at liberty to restate the purpose in terms of a broad social interest).
It is within this defined context that the Forest Service analyzed four
alternatives in detail, including the required “no action” alternative. The three
development alternatives varied primarily in the amount and type of additional
skiable terrain and related amenities to be developed, and, consequently, in the
type and degree of environmental impacts each would impose. The Forest Service
made clear it formulated alternatives “to respond to the significant issues
identified during scoping while still addressing the purpose and need for the
Proposed Action and maintaining consistency with pertinent Forest Service
3. To fulfill the broad management goals of the [White River
National Forest] Land and Resource Management Plan.
The identified objectives (purposes) correspond to those needs:
1. Enhance the quality of skiing opportunities within [Vail’s]
existing [special use permit] area by [specified] means....
2. Make more efficient use of existing local and on-mountain
infrastructure at Vail Ski Area during traditionally low periods
of use.
3. Support community and ski area efforts to stabilize seasonal
economic fluctuations and build annual skier visitation at Vail
Ski Area without increasing peak-days.
-31-
policy.”
In declining to analyze more thoroughly the Conservation Biology
Alternative, the Forest Service noted it would not add “appreciably more” or
“substantially increase” intermediate ski terrain. In fact, “[t]he most optimistic
estimate of skiable terrain that could be made available under this alternative (232
acres) represents about half of the terrain that would result from the most limited
of the development alternatives.” 16 The Forest Service reasoned, “[w]hen the
purpose is to add terrain in order to respond to specific qualitative needs at the ski
area, it is appropriate to dismiss from consideration ski trail development
opportunities that would not advance those objectives.” In light of the defined
purpose and need for the expansion, which we have upheld as reasonable, we
conclude the Forest Service provided a reasonable explanation for declining to
further consider the Conservation Biology Alternative in accordance with 40
C.F.R. § 1502.14(a). Moreover, the Forest Service provided sufficient discussion
16
The Forest Service further explained that much of the terrain proposed
under the Conservation Biology Alternative was either previously approved, and
hence available under the no-action alternative (130 acres), or would not provide
needed intermediate skiing due to topography, elevation or location (74 acres).
Moreover, the new access lift and skier busing components of the Conservation
Biology Alternative were already in place or contemplated under the other
alternatives.
-32-
of the relevant issues and opposing viewpoints to demonstrate it took the requisite
“hard look” at an adequate array of alternatives to make a reasoned decision.
d. Impact Analysis
An environmental impact statement must analyze not only the direct
impacts of a proposed action, but also the indirect and cumulative impacts of
“past, present, and reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such other actions.” 40
C.F.R. § 1508.7; see also §§ 1508.8 (including ecological, aesthetic, historical,
cultural, economic, social and health impacts) and 1508.25(a)(2), (c).
Appellants contend the Forest Service failed to adequately consider off-site,
indirect cumulative impacts. More specifically, they claim (1) the Forest Service
gave short shrift to its analysis of the socioeconomic impact of increased skier
visitation and spending in Vail and Eagle County, and (2) the agency’s
conclusions concerning socioeconomic impacts are arbitrary and capricious
because they are based on unreasonable assumptions and are not supported by the
record. According to Appellants, “[i]ncreased visitorship and spending
attributable to the expansion will undoubtedly further spur real estate speculation,
... worsen parking and housing woes, increase activity in the retail industry, and
-33-
harm virtually every aspect of the human environment.” In support of their
argument, Appellants cite to the comments of Mr. Charles Romaniello, a natural
resource economist, to the effect the Forest Service is capable of, but failed to
project or discuss the secondary and tertiary revenue flows produced by increased
skier numbers.
Here again, the fact that Appellants cite an expert who agrees with their
position and alleges a lack of analysis is not dispositive. It merely reflects the
crux of their complaint – they disagree with the Forest Service’s decision. Our
job is not to question the wisdom of the Forest Service’s ultimate decision or its
conclusion concerning the magnitude of indirect cumulative impacts. Cf. Holy
Cross, 960 F.2d at 1522. Rather, we must examine the administrative record, as a
whole, to determine whether the Forest Service made a reasonable, good faith,
objective presentation of those impacts sufficient to foster public participation
and informed decision making. Id. Having carefully reviewed the record, we
conclude the Forest Service’s impact analysis is adequate.
First, we take issue with Appellants’ characterization of the Forest
Service’s conclusions concerning socioeconomic impacts. We found no evidence
in the record, nor did Appellants provide a citation to the record, to support their
-34-
claim the Forest Service assumed or concluded there would be “no impact at all
on numerous aspects of Vail’s and Eagle County’s socioeconomy.” To the
contrary, the record demonstrates that after identifying and analyzing various off-
mountain, growth-related socioeconomic factors potentially impacted by the
Category III expansion, the Forest Service concluded that those impacts would be
relatively minor under any of the alternatives, including the no action alternative.
The Forest Service’s analysis includes discussions of the assumptions
applied, 17 the facts and rationale supporting those assumptions, the appropriate
scope of analysis given those assumptions, and the foreseeable direct, indirect and
cumulative impacts on socioeconomic resources in Vail and Eagle County. Read
in context, as a whole, the documentation patently refutes Appellants’ arguments
the assumptions “contradict logic and reason” and the analysis is arbitrary and
capricious. Accordingly, Appellants’ challenge to the adequacy of the off-site
17
The Forest Service assumed Vail’s skiers-at-one-time capacity of 19,900
will remain constant as reflected and approved in Vail’s existing special use
permit. The Forest Service further assumed many “pertinent aspects” of the
community’s infrastructure (e.g., skier service and retail employment base, and
lodging and restaurant capacity) “have been developed to accommodate high-use
periods and are underutilized during off-peak periods.” Both assumptions are
based on documented facts. The 19,900 skiers-at-one-time capacity was formally
evaluated in the 1986 environmental assessment analyzing the impacts of Vail’s
master development plan.
-35-
indirect and cumulative impact analysis fails.
2. New Information Requiring a Supplemental Environmental Impact
Statement.
Appellants’ final National Environmental Policy Act issue pertains to the
Forest Service’s obligation to prepare a supplemental environmental impact
statement to analyze the cumulative environmental impact of potential
development on land adjacent to the Category III expansion area known as the
“Gilman Tract.” Appellants contend they provided the Forest Service with “clear
information” it is now reasonably foreseeable Vail “or some other purchaser will
use the [Gilman tract] for development of private homes, commercial activities,
and recreation, with consequently dramatic cumulative impacts on wildlife, water,
forests, and other resources in and around the [Category III] area.” Appellants
further claim Vail has a financial interest in, and has discussed specific
development plans for, the Gilman Tract. According to Appellants, the Forest
Service “bluntly and blithely ignore[d] the new information.”
Agencies are required to prepare supplemental environmental impact
statements, before or after issuing a record of decision, if there are “significant
new circumstances or information relevant to environmental concerns and bearing
on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii); Marsh, 490
-36-
U.S. at 372. This requirement is not interpreted to require a supplemental
environmental impact statement “every time new information comes to light.”
Marsh, 490 U.S. at 373. A supplemental environmental impact statement comes
into play only “if the new information is sufficient to show [the proposed action]
will affect the quality of the human environment in a significant manner or to a
significant extent not already considered.” Id. at 374 (quotation marks and
citation omitted). Because the relative significance of new information is a
factual issue, we review the Forest Service’s decision regarding the need for a
supplemental environmental impact statement under the “arbitrary and capricious”
standard. Holy Cross, 960 F.2d at 1524 (citing Marsh, 490 U.S. at 374, 377).
Consequently, we must uphold the Forest Service’s decision to forego a
supplemental environmental impact statement so long as the record demonstrates
the Forest Service reviewed the proffered supplemental information, evaluated the
significance – or lack of significance – of the new information, and provided an
explanation for its decision not to supplement the existing analysis. Holy Cross,
960 F.2d at 1527. Applying this standard, we reject Appellants’ claim.
The record shows the Forest Service received Appellants’ April 1998 letter
notifying it of “new” information concerning the Gilman Tract. The record
further shows the Forest Service reviewed and considered the import of such
-37-
information, but determined it previously disclosed and addressed the relevant
substantive content of the proffered information in the existing environmental
review documents. Additional documents further evidence Forest Service and
general public awareness of Vail’s interest in potential development of the
Gilman tract long before Appellant’s April 1998 letter. In sum, the record amply
proves the Forest Service did not arbitrarily and capriciously determine the
proffered information was neither new nor significant. We therefore uphold the
agency’s decision to forego preparation of a supplemental environmental impact
statement.
III. CONCLUSION
For the foregoing reasons, we hold the Forest Service complied with the
National Forest Management Act and 36 C.F.R. § 219.19, and provided the “hard
look” at the Category III expansion mandated by the National Environmental
Policy Act. Accordingly, we AFFIRM the district court’s judgment and orders.
-38-
Colorado Environmental Coalition v. Dombeck
Court: Court of Appeals for the Tenth Circuit
Date filed: 1999-08-09
Citations: 185 F.3d 1162
Copy CitationsCombined Opinion