Navajo Nation v. U.S. Forest Service, CV 05-1824-PCT-PGR.

• Decision Date: 11 January 2006
• Docket Number: No. CV 05-1914-PCT-EHC.,No. CV 05-1824-PCT-PGR.,No. CV 05-1966-PCT-JAT.,No. CV-05-1949-PCT-NVW.,CV 05-1824-PCT-PGR.,CV 05-1914-PCT-EHC.,CV-05-1949-PCT-NVW.,CV 05-1966-PCT-JAT.
• Citation: 408 F.Supp.2d 866
• Parties: The NAVAJO NATION, et al., Plaintiffs, v. U.S. FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

408 F.Supp.2d 866

The NAVAJO NATION, et al., Plaintiffs, v. U.S. FOREST SERVICE, et al., Defendants.

No. CV 05-1824-PCT-PGR.

No. CV 05-1914-PCT-EHC.

No. CV-05-1949-PCT-NVW.

No. CV 05-1966-PCT-JAT.

United States District Court, D. Arizona.

January 11, 2006.

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Howard M. Shanker, The Shanker Law Firm PLC, James Daryl Hill, James D. Hill Law Office, Tempe, AZ, Laura Lynn Berglan, DNA-Peoples Legal Services Inc., Tuba City, AZ, Terence M. Gurley, DNA-Peoples Legal Services Inc., Window Rock, AZ, William Curtis Zukosky, DNA-Peoples Legal Services, Flagstaff, AZ, Alysia E. Lacounte, Richard Monette, Troy Klarkowski, Alysia E. Lacounte, Brown & Lacounte LLP, Madison, WI, Anthony Scott Canty, Lynelle Kym Hartway, Hopi Indian Tribe, Office of General Counsel, Kykotsmovi, AZ for Plaintiffs.

Rachel Anne Dougan, US Dept of Justice, Washington, DC, for Defendants.

Janice M. Schneider, Latham & Watkins, LLP, Washington, DC, Bruce Babbitt, Washington, DC, Philip A. Robbins, Paul G. Johnson, Robbins & Green, PA, Phoenix, AZ, for Arizona Snowbowl Resort Limited Partnership.

ORDER

ROSENBLATT, District Judge.

This consolidated matter comes before the Court on the parties' cross-motions for summary judgment and following a bench trial on Plaintiffs' claims brought under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 ("RFRA").¹ The Court now makes its ruling.

I. Factual Background

This case involves a challenge to the Forest Service's decision to authorize upgrades to facilities at the Arizona Snowbowl ("Snowbowl"), an existing ski area in the Coconino National Forest ("CNF").² The Plaintiffs in this consolidated case include the Navajo Nation, the Hopi Tribe the Havasupai Tribe, the Hualapai Tribe, the Yavapai Apache Nation, the White Mountain Apache Nation, Bill Bucky Preston (a member of the Hopi Tribe), Norris Nez (a member of the Navajo Nation), Rex Tilousi (a member of the Havasupai Tribe), Dianna Uqualla (a member of the Havasupai Tribe), the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network. The Defendants are the United States Forest Service ("Forest Service"), Nora Rasure, the Forest Supervisor, and Hary Forsgren, who was the appeal deciding officer and Regional Forester. Both Ms. Rasure and Mr. Forsgren were named as Defendants in their individual capacity. In addition, the Arizona Snowbowl Resort Limited Partnership ("ASR"), the current owner and operator of the facilities located at the Snowbowl ski area, moved to intervene in these proceedings on June 27, 2005. After receiving briefing on ASR's motion and hearing oral argument, the Court granted ASR's Motion to Intervene (Doc. 45) on July 18, 2005.

The Snowbowl lies on the western flank of the San Francisco Peaks ("Peaks"), and is operated under a 777-acre Forest Service-issued SUP, which is renewable on a 40-year basis. The CNF Land and Resource Management Plan ("Forest Service Plan"), which was subject to its own process under the National Environmental Policy Act ("NEPA") and adopted in 1987, designates the entirety of the Snowbowl SUP as a "Developed Recreation Site." Under the Forest Service Plan, the Snowbowl is located within management area ("MA") 15, which has a management emphasis of developed recreation, including the Snowbowl recreation facilities. Furthermore, the Snowbowl is surrounded on three sides by the 18,963-acre Kachina Peaks Wilderness, which is designated as MA 1 and managed for wilderness values.

The Snowbowl has been used as a ski area since 1938. In 1979, the Forest Service conducted an extensive process pursuant to NEPA to evaluate proposed upgrades to the Snowbowl, which included the installation of new lifts, trails and facilities. Specifically, the 1979 Snowbowl decision approved 206 acres of skiable terrain and facilities to support a comfortable carrying capacity ("CCC") — the number of guests that the Snowbowl facilities could comfortably carry at one time — of 2,825 skiers. The Forest Service's decision to approve the proposed action was challenged in court by several Indian tribes. The tribes asserted that development of the Peaks would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes. Wilson v. Block, 708 F.2d 735, 738 (D.C.Cir.1983), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In addition, the tribes argued that development would seriously impair their ability to pray and conduct ceremonies upon the Peaks. Id. However, the District of Columbia Court of Appeals eventually upheld the Forest Service's decision to move forward with the upgrades. Id. at 760.

Since 1979, the Snowbowl has operated under the direction of the EIS upheld in Wilson. Many of the improvements authorized by the Forest Service in 1979, and later upheld by the Wilson decision, have been implemented over the years. However, in September of 2002, ASR sought to implement the remaining previously authorized upgrades (including cutting certain ski runs), and submitted a formal proposal to implement snowmaking at the facility using A+ reclaimed water. After an extensive environmental review under NEPA that spanned several years of public participation, tribal consultation and input, and analysis, the Forest Service ultimately approved ASR's proposal. Specifically, in February of 2005, Forest Supervisor Nora Rasure issued a Final Environmental Impact Statement ("FEIS") and a Record of Decision ("ROD"). The Forest Service's ROD approved, in part: (a) approximately 205 acres of snowmaking coverage throughout the area, utilizing reclaimed water; (b) a 10 million-gallon reclaimed water reservoir near the top terminal of the existing chairlift and catchments pond below Hart Prairie Lodge; (c) construction of a reclaimed water pipeline between Flagstaff and the Snowbowl with booster stations and pump houses; (d) construction of a 3,000 to 4,000 square foot snowmaking control building; (e) construction of a new 10,000 square foot guest services facility; (f) an increase in skiable acreage from 139 to 205 acres — an approximate 47% increase;³ and (g) approximately 47 acres of thinning and 87 acres of grading/stumping and smoothing. The Plaintiffs appealed the Forest Supervisor's decision, and the Forest Service's Southwestern Regional Office arranged a technical review team to evaluate the administrative appeals. On June 8, 2005, the Forest Service issued its final administrative decision and affirmed the Forest Supervisor's original conclusions. This litigation followed.⁴

On August 12, 2005, the parties filed cross-motions for summary judgment on, in part, claims brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). The APA claims are based on the Forest Service's alleged failure to comply with requirements of NEPA, 42 U.S.C. §§ 4321-4307d ("NEPA"), the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq. ("NHPA"), RFRA, 42 U.S.C. §§ 2000bb-2000bb-4 ("RFRA"), the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i ("GCEA"), and the National Forest Management Act, 16 U.S.C. §§ 1600-1687 ("NFMA"). In addition, an alleged failure of the Forest Service to comply with its trust responsibility to the tribes was included in these motions.

II. Legal Standard and Analysis

In reviewing administrative agency decisions, the function of the district court is to determine, as a matter of law, whether evidence in the administrative record permitted the agency to render the decision it did. Accordingly, summary judgment is an appropriate mechanism for deciding the legal question of whether an agency could reasonably have found the facts as it did.

A person suffering legal wrong because of an agency action, or adversely affected or aggrieved by an agency action within the meaning of the relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702. Agency action made reviewable by statute, and final agency action for which there is no other adequate remedy in a court, are subject to judicial review. 5 U.S.C. § 704. Under the APA, a reviewing court may "hold unlawful and set aside agency action, findings and conclusions" that are found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706; Center for Biological Diversity v. United States Forest Service, 349 F.3d 1157, 1165 (9th Cir.2003). To determine whether agency action was arbitrary or capricious, a court must consider "whether the decision was based upon a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 368, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

A. National Environmental Policy Act

The purpose of NEPA, 42 U.S.C. §§ 4321 et seq., is to focus the attention of federal agencies and the public on a proposed action so that the environmental impacts of the action can be studied before a decision is made. By focusing the agency's attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351, (1989). Accordingly, NEPA requires federal agencies to prepare an EIS for all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2). However, NEPA does not mandate certain substantive results, but instead prescribes the necessary process an agency must undergo to evaluate a proposed action's potential environmental impact. Methow Valley, 490 U.S. at 350, 109 S.Ct. 1835.

In reviewing the required EIS, the court must...