Ski Resort Plan Approval in Violation of NEPA and NFMA

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SandBar 6:4, January, 2008 Ski Resort Plan Approval in Violation of NEPA and NFMA Oregon Natural Resources Council Fund v. Goodman, 2007 U.S. App. LEXIS 22614 (9th Cir. Sept. 24, 2007). *Terra Bowling, J.D.* The Ninth Circuit has held that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) by not properly evaluating a proposed expansion of a ski resort within the Rogue River and Klamath National Forest. The court also held that the approval violated the NFMA by not designating riparian reserves and restricted watershed terrain. Background For two decades, the Mount Ashland Association (MAA) has been exploring the possibility of expanding the Mount Ashland Ski Area (MASA), located near Ashland, Oregon. MAA, which leases the area from the city, had planned to expand MASA and upgrade its facilities, including the creation of beginner and intermediate ski and snowboard areas. NEPA requires government entities to look at the environmental effects of major federal projects affecting the environment. Agencies must prepare an Environmental Impact Statement (EIS) that “provide full and fair discussion of significant environmental impacts and 85 inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.1 NFMA requires the USFS to develop “forest plans” that maintain the fish and wildlife habitat of area species. The MASA area is subject to two forest plans, the Rogue River LRMP and the NWFP. Under the Rogue River Plan, the USFS must manage and maintain area species, especially sensitive species. The area is home to a sensitive species, the Pacific fisher. The LRMP also requires the agency to conduct an evaluation of recreational lands projects. After MAA submitted a plan to the USFS, the agency prepared a draft Environmental Impact Statement (EIS), which caused the public and the Environmental Protection Agency to express concerns about erosion and sedimentation and the threat to biodiversity, watershed resources, and water quality. The USFS then issued a Final Environmental Impact Statement (FEIS) analyzing six expansion alternatives. A month later, the NFWS issued a Record of Decision (ROD) selecting one of the alternatives for the expansion, with some modifications. The plan selected by the Service proposed several new additions to MASA: (1) the construction of two new chair lifts and two new surface lifts; (2) clear cutting seventy-one acres for new ski runs; and (3) the clearing of four acres for lift corridors and staging areas. The ROD generated 28 notices of appeal, but the Service denied all of the appeals. Several environmental groups filed suit in federal court seeking declaratory and injunctive relief under NEPA and NFMA. The groups claimed that the Forest Service failed to ensure the viability of the fisher, as well as to adequately consider and disclose the direct and cumulative impacts on the fisher. The groups also claimed that the agency failed to (3) evaluate whether the expansion will comply with wetlands laws; (4) adhere to Rogue River LRMP and NWFP standards and guidelines for protecting watersheds and riparian areas; (5) disclose the error rate of the model used to estimate sediment impacts on the municipal watershed; and (6) adequately disclose cumulative water quality impacts by utilizing a flawed computer model. The United States District Court for the District of Oregon granted summary judgment in favor of USFS, but enjoined construction until the Ninth Circuit ruled on a motion to stay. The Pacific Fisher The Ninth Circuit considered whether the district court erred in its decision. The court first looked at whether the USFS violated NFMA by failing to evaluate the effects of the expansion on the Pacific fisher, a sensitive species. The USFS had prepared a biological evaluation on the impact of a MASA expansion on the fisher in 1999; however, the Service did not update the 1999 biological evaluation to reflect the Pacific fisher’s appearance in the project area two years later. The Ninth Circuit found that the Service’s habitat evaluation did not meet the requirements of the LRMP’s evaluation requirement; therefore, the USFS violated NFMA. Next, the court considered whether the Service violated NEPA. First, the court found that the Service failed to analyze the incremental impact of the actions, including all past, present, and future projects. The court then noted that the USFS failed to explain the effect of the project on a biological corridor between the Klamath-Siskiyou and Southern Cascades Regions. Because of these failures, the Service was also in violation of NEPA. The Ninth Circuit also ruled that the USFS violated NFMA by failing to designate riparian reserves and restricted watersheds, as required under the Rogue River LRMP and the NWFP. The riparian reserves and restricted watersheds are intended to provide buffer zones in areas prone to mudslides and other hydrologically important areas. Because the Service failed to do this, the court found that the terrain within the expansion would not be adequately protected. The court held that the district court did not err in ruling in favor of USFS on the remaining claims. The court found that the USFS provided adequate analysis in the FEIS regarding these claims. Furthermore, the court held that the claims regarding the Pacific fisher were the only ones warranting injunctive relief, given the potential for irreparable environmental harm. Conclusion Ninth Circuit re versed the district court, holding that USFS had violated the National En viron mental Policy Act and the National Forest Management Act by not properly evaluating the project’s impact on the Pacific fisher. The court found that the approval also violated the NFMA by not designating riparian reserves and restricted watershed terrain. The court granted injunctive relief and remanded the case to the district court. Endnotes 1 . 40 C.F.R. A7 1502.
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SandBar 6:4, January, 2008

Oregon Natural Resources Council Fund v. Goodman, 2007 U.S. App. LEXIS 22614 (9th Cir. Sept. 24, 2007).

Terra Bowling, J.D.

The Ninth Circuit has held that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) by not properly evaluating a proposed expansion of a ski resort within the Rogue River and Klamath National Forest. The court also held that the approval violated the NFMA by not designating riparian reserves and restricted watershed terrain.

Background
For two decades, the Mount Ashland Association (MAA) has been exploring the possibility of expanding the Mount Ashland Ski Area (MASA), located near Ashland, Oregon. MAA, which leases the area from the city, had planned to expand MASA and upgrade its facilities, including the creation of beginner and intermediate ski and snowboard areas.
      NEPA requires government entities to look at the environmental effects of major federal projects affecting the environment. Agencies must prepare an Environmental Impact Statement (EIS) that “provide full and fair discussion of significant environmental impacts and 85 inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.1
      NFMA requires the USFS to develop “forest plans” that maintain the fish and wildlife habitat of area species. The MASA area is subject to two forest plans, the Rogue River LRMP and the NWFP. Under the Rogue River Plan, the USFS must manage and maintain area species, especially sensitive species. The area is home to a sensitive species, the Pacific fisher. The LRMP also requires the agency to conduct an evaluation of recreational lands projects.
      After MAA submitted a plan to the USFS, the agency prepared a draft Environmental Impact Statement (EIS), which caused the public and the Environmental Protection Agency to express concerns about erosion and sedimentation and the threat to biodiversity, watershed resources, and water quality. The USFS then issued a Final Environmental Impact Statement (FEIS) analyzing six expansion alternatives. A month later, the NFWS issued a Record of Decision (ROD) selecting one of the alternatives for the expansion, with some modifications. The plan selected by the Service proposed several new additions to MASA: (1) the construction of two new chair lifts and two new surface lifts; (2) clear cutting seventy-one acres for new ski runs; and (3) the clearing of four acres for lift corridors and staging areas. The ROD generated 28 notices of appeal, but the Service denied all of the appeals.
      Several environmental groups filed suit in federal court seeking declaratory and injunctive relief under NEPA and NFMA. The groups claimed that the Forest Service failed to ensure the viability of the fisher, as well as to adequately consider and disclose the direct and cumulative impacts on the fisher. The groups also claimed that the agency failed to (3) evaluate whether the expansion will comply with wetlands laws; (4) adhere to Rogue River LRMP and NWFP standards and guidelines for protecting watersheds and riparian areas; (5) disclose the error rate of the model used to estimate sediment impacts on the municipal watershed; and (6) adequately disclose cumulative water quality impacts by utilizing a flawed computer model. The United States District Court for the District of Oregon granted summary judgment in favor of USFS, but enjoined construction until the Ninth Circuit ruled on a motion to stay.

The Pacific Fisher
The Ninth Circuit considered whether the district court erred in its decision. The court first looked at whether the USFS violated NFMA by failing to evaluate the effects of the expansion on the Pacific fisher, a sensitive species. The USFS had prepared a biological evaluation on the impact of a MASA expansion on the fisher in 1999; however, the Service did not update the 1999 biological evaluation to reflect the Pacific fisher’s appearance in the project area two years later. The Ninth Circuit found that the Service’s habitat evaluation did not meet the requirements of the LRMP’s evaluation requirement; therefore, the USFS violated NFMA.
   Next, the court considered whether the Service violated NEPA. First, the court found that the Service failed to analyze the incremental impact of the actions, including all past, present, and future projects. The court then noted that the USFS failed to explain the effect of the project on a biological corridor between the Klamath-Siskiyou and Southern Cascades Regions. Because of these failures, the Service was also in violation of NEPA.
      The Ninth Circuit also ruled that the USFS violated NFMA by failing to designate riparian reserves and restricted watersheds, as required under the Rogue River LRMP and the NWFP. The riparian reserves and restricted watersheds are intended to provide buffer zones in areas prone to mudslides and other hydrologically important areas. Because the Service failed to do this, the court found that the terrain within the expansion would not be adequately protected.
      The court held that the district court did not err in ruling in favor of USFS on the remaining claims. The court found that the USFS provided adequate analysis in the FEIS regarding these claims. Furthermore, the court held that the claims regarding the Pacific fisher were the only ones warranting injunctive relief, given the potential for irreparable environmental harm.

Conclusion
Ninth Circuit re versed the district court, holding that USFS had violated the National En viron mental Policy Act and the National Forest Management Act by not properly evaluating the project’s impact on the Pacific fisher. The court found that the approval also violated the NFMA by not designating riparian reserves and restricted watershed terrain. The court granted injunctive relief and remanded the case to the district court.

Endnotes
1 . 40 C.F.R. A7 1502.