Dubois v. U.S. Dept. of Agriculture

• Decision Date: 10 September 1996
• Docket Number: Nos. 96-1015,96-1068,s. 96-1015
• Citation: 102 F.3d 1273
• Parties: , 27 Envtl. L. Rep. 20,622 Roland C. DUBOIS and Restore: The North Woods, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., and Loon Mountain Recreation Corporation, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1273

102 F.3d 1273

43 ERC 1824, 27 Envtl. L. Rep. 20,622

Roland C. DUBOIS and Restore: The North Woods, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., and Loon Mountain Recreation Corporation, Defendants, Appellees.

Nos. 96-1015, 96-1068.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1996.

Decided Dec. 19, 1996.

Roland C. Dubois, Washington, DC, pro se.

Cindy Ellen Hill, Middlebury, VT, for plaintiff-appellant RESTORE: The North Woods.

Jeffrey P. Kehne, Washington, DC, with whom Lois J. Schiffer, Assistant Attorney General, Sylvia Quast, John A. Bryson, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, Paul M. Gagnon, United States Attorney, T. David Plourde, Assistant United States Attorney, Concord, NH, Wendy M. John, Stuart L. Shelton, Office of the General Counsel, U.S. Department of Agriculture James L. Kruse, Concord, NH, with whom Gallagher, Callahan & Gartrell, P.A., were on brief for defendant-appellee Loon Mountain Recreation Corporation.

Washington, DC, and Leslie M. Auriemmo, Office of the General Counsel, U.S. Department of Agriculture, Milwaukee, WI, were on brief for defendants-appellees U.S. Department of Agriculture; Daniel Glickman, Secretary, U.S. Department of Agriculture; Jack Ward Thomas, Chief, U.S. Forest Service; Robert Jacobs, Regional Forester, Eastern Region, U.S. Forest Service; Donna Hepp, Forest Supervisor, White Mountain National Forest.

Before SELYA, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

The defendant-intervenor Loon Mountain Recreation Corporation ("Loon Corp.") operates a ski resort in the White Mountain National Forest in Lincoln, New Hampshire. In order to expand its skiing facilities, Loon Corp. sought and received a permit to do so from the United States Forest Service. ¹ Appellant Roland Dubois sued the Forest Service alleging violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., the Administrative Procedure Act, 5 U.S.C. § 501, et seq. ("APA"), and Executive Order 11,990, 42 Fed.Reg. 26,961 (1977), reprinted as amended in 42 U.S.C.A. § 4321 (West 1994). Appellant RESTORE: The North Woods ("RESTORE") intervened as a plaintiff claiming violations of the same statutes, and appellee Loon Corp. intervened as a defendant. Dubois and RESTORE (collectively referred to as "plaintiffs") and the Forest Service filed cross-motions for summary judgment, and Loon moved to dismiss. The district court granted the Forest Service's motion for summary judgment and denied the other motions. We affirm in part, reverse in part, and remand.

I. STATEMENT OF THE CASE

A. Facts

The White Mountain National Forest ("WMNF") is a public resource managed by the United States Forest Service for a wide range of competing public uses and purposes, including "outdoor recreation, range, timber, watershed, ... wildlife and fish purposes," 16 U.S.C. § 528 (1994), and skiing, 16 U.S.C. § 497(b) (1994). Pursuant to the National Forest Management Act of 1976, the Forest Service makes long-term plans to coordinate these competing uses, 16 U.S.C. § 1604(e)(1) (1994), and issues "special use" permits authorizing private recreational services on national forest land, 36 C.F.R. §§ 251.50-.65 (1995). The Forest Service's exercise of its permitting authority is legally constrained by environmental considerations emanating, inter alia, from NEPA, the CWA, and Executive Order 11,990.

Loon Pond is located in the WMNF at an elevation of 2,400 feet. It has a surface area of 19 acres, with shallow areas around the perimeter and a central bowl 65 feet deep. It is unusual for its relatively pristine nature. There is virtually no human activity within the land it drains except skiing at the privately owned Loon Mountain Ski Area. New Hampshire Department of Environmental Services ("NHDES") regulations classify Loon Pond as a Class A waterbody, protected by demanding water quality standards under a variety of criteria, see N.H.Code Admin. R. Env-Ws 432.03, and as an Outstanding Resource Water ("ORW"), protected against any measurable long-term degradation by the State's anti-degradation rules, see id. 437.06; 40 C.F.R. § 131.12(a)(3) (1995). It ranks in the upper 95th percentile of all lakes and ponds in northern New England for low levels of phosphorus, which results in limited plant growth and therefore high water clarity and higher total biological production. The pond supports a rich variety of life in its ecosystem. Loon Pond also constitutes a major source of drinking water for the town of Lincoln 1,600 feet below it. A dam across the outlet of the Pond regulates Loon Corp., defendant-intervenor herein, owns the Loon Mountain Ski Area, which has operated since the 1960s not far from Loon Pond. Prior to the permit revision that gave rise to this litigation, Loon Corp. held a special use permit to operate on 785 acres of WMNF land. That permit allowed Loon Corp. to draw water ("drawdown") for snowmaking from Loon Pond, as well as from the East Branch of the Pemigewasset River ("East Branch") and from nearby Boyle Brook. In order to use water from Loon Pond, Loon Corp. also needed authorization from the Town of Lincoln and the State of New Hampshire. Beginning in 1974, Loon Corp. was authorized to pump snowmaking water from Loon Pond down to 18 inches below full level. ² A 1988 amendment to this agreement permitted drawdown below the 18-inch level on a case-by-case basis. Combined uses by Lincoln and Loon Corp. during the period governed by these agreements typically caused four- to six-foot fluctuations in the level of Loon Pond.

the flow of water from the Pond to Lincoln's municipal reservoir.

In addition to being used as a source of water for snowmaking, Loon Pond has been the repository for disposal of water after it is pumped through the snowmaking system. ³ This includes water that originally came from Loon Pond, as well as water that originated in the East Branch or in Boyle Brook. Approximately 250,000 gallons of East Branch water have been transferred into Loon Pond each year in this manner. Obviously the water discharged into Loon Pond contains at least the same pollutants that were present in the intake water. Evidence in the record indicates that intake water taken from the East Branch contains bacteria, other aquatic organisms such as Giardia lambia, phosphorus, turbidity and heat. Evidence was also introduced in court, but not available prior to the issuance of the Environmental Impact Statement ("EIS"), that oil and grease were present in the discharge water, although their source was disputed.

In 1986, Loon Corp. applied to the Forest Service for an amendment to its special use permit to allow expansion of its facilities within the WMNF. Pursuant to NEPA, 42 U.S.C. § 4332, the Service developed a draft EIS, and a supplement to the draft. Responding to criticism of the adequacy of those documents, the Forest Service issued a revised draft EIS ("RDEIS"), which was published for public comment. The RDEIS set forth five alternatives to meet the perceived demand for additional alpine skiing. All five were located at the Loon Mountain site. ⁴

Many individuals and groups, including both plaintiffs, filed comments pointing out various environmental problems with each alternative that involved expanding the ski area. One lengthy comment from the U.S. Environmental Protection Agency ("EPA") expressed its concern that the use of Loon Pond for snowmaking purposes would "use Loon Pond like a cistern" instead of treating it "with care" because it is "acknowledged to be one of the rare high altitude ponds of its size in the White Mountains." Joint Appendix ("JA"), vol. II, Response to Public Comment on RDEIS at A-78. Other commenters suggested that Loon Corp. be required to build artificial water storage ponds, in order to eliminate the problem of depleting Loon Pond when withdrawing water for snowmaking as well as the problem of adding pollutants to Loon Pond when discharging water into the Pond after use.

During the EIS process, Ron Buso, a hydrologist for the WMNF, expressed concern to another Forest Service hydrologist that the proposed drawdown of Loon Pond by twenty feet was likely to have a severe impact on the Pond. He explained that natural snowmelt in New Hampshire is extremely acidic and that, as a result of the planned drawdown, a substantial amount of acidic snowmelt would remain in Loon Pond, increasing the Pond's acidity by a factor of two to three times what it would be without the planned drawdown. Without the drawdown, Loon Pond would be relatively full in the spring, and much of the snowmelt from surrounding higher elevations would glide over the surface of the Pond and down the mountain without significantly mixing with other Loon Pond water. According to Buso and a number of scientists whose affidavits were submitted to the district court, the increase in the Pond's acidity due to the planned drawdown would change the chemistry of the Pond, cause toxic metals to be released from the sediment, and kill naturally occurring organisms.

Without addressing the issues raised in the Buso memorandum or in the comments suggesting artificial storage ponds, the Forest Service prepared a Final EIS ("FEIS"). The FEIS added a sixth alternative, also on the Loon Mountain site. The new alternative provided for expansion of Loon Corp.'s permit area by 581 acres and for the construction of one new lift and approximately 70 acres of new ski trails, changes designed to accommodate 3,200 additional skiers per day (from the current 5,800 per day). The Forest Service deemed Alternative 6 as the preferred alternative. Under it, Loon Corp. would more than double the amount of water used for snowmaking, from 67 million gallons per year to 138 million gallons....