Citizens' Committee to Save Our Canyons v. Krueger
| Decision Date | 15 January 2008 |
| Docket Number | No. 07-4011.,07-4011. |
| Citation | 513 F.3d 1169 |
| Parties | CITIZENS' COMMITTEE TO SAVE OUR CANYONS, and Utah Environmental Congress, Plaintiffs-Appellants, v. Faye KRUEGER, Forest Supervisor for the Wasatch-Cache National Forest; Brian Ferebee, Forest Supervisor for the Uinta National Forest, Jack G. Troyer, Intermountain Region Deputy Regional Forester, and United States Forest Service,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees. Wasatch Powderbird Guides, Defendant-Intervenor-Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William B. Lockhart (Sarah Tal, Wildlaw Southwest, with him on the briefs), Salt Lake City, UT, for Appellants.
Jared C. Bennett, Assistant United States Attorney (Brett L. Tolman, United States Attorney, District of Utah, with him on the brief), Office of the United States Attorney, Salt Lake City, UT, for Appellees.
Michael J. Malmquist, Parsons Behle & Latimer, Salt Lake City, UT, on the brief for Intervenor-Appellee.
Before HENRY, Chief Judge, EBEL and TYMKOVICH, Circuit Judges.
In this appeal we consider the United States Forest Service's decision to issue a special use permit to Wasatch Powderbird Guides to conduct helicopter skiing operations in two national forests. Citizens' Committee to Save Our Canyons and Utah Environmental Congress argue the decision violated the National Forest Management Act and the National Environmental Policy Act. The district court upheld the Forest Service permit.
Exercising jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and 28 U.S.C. § 1331, we affirm.
Wasatch Powderbird Guides ("WPG") has continuously operated a guided helicopter skiing business in the Wasatch-Cache and Uinta National Forests since 1973. It operates pursuant to special use permits periodically issued by the Forest Service. In this appeal, Citizens' Committee to Save Our Canyons and Utah Environmental Congress (collectively "SOC"), challenge the renewal permit issued to WPG in 2005. Prior to the 2005 permit, WPG operated under a permit issued in 2000.
SOC are non-profit organizations comprised of members who use the areas in which WPG operates for non-motorized uses such as backcountry skiing, snowshoeing, hiking, and camping. They claim their recreational opportunities and experiences are diminished by WPG's operations and argue the Forest Service failed to comply with relevant laws when issuing WPG's most recent permit.
Under the National Forest Management Act, the Forest Service manages national forests pursuant to forest plans periodically developed for each forest. The Wasatch-Cache and Uinta forest plans were initially adopted in 1985. At that time, the Wasatch-Cache plan expressly recognized helicopter skiing as "a legitimate use of the National Forest" and called for "one helicopter ski special use permit on the present permit area." Supp.App. 669-70. The original Uinta plan also directed the forest would be open to helicopter skiing under a special use permit. Supp.App. 666.
The Forest Service revised the Wasatch-Cache plan in 2003. The 2003 plan established the following as forest-wide goals: Supp.App. 672. Specifically regarding helicopter skiing, the 2003 Wasatch-Cache plan provides,
Helicopter skiing will continue to operate as a component of the recreation picture in the Central Wasatch. Helicopter skiing and ski mountaineering will continue to compete for untracked conditions, and those users seeking quiet in the winter backcountry may continue to object to helicopter skiing. Information will continue to be available to all backcountry visitors to help them make informed decisions and avoid conflicts .... It is uncertain, however, whether helicopter skiing can be managed to remain profitable over the long term while accommodating a reasonable level of compromise with competing backcountry uses.
The Uinta forest plan was also revised in 2003. The 2003 Uinta plan provides for "[d]iverse and suitable recreational opportunities ... responsive to public demand while maintaining ecosystem health and contribution to social and economic sustainability." Supp.App. 667. The Uinta plan specifically provides for helicopter skiing "consistent with the resource capability, other land uses, and other resource management goals." Supp.App. 668.
Although SOC challenges WPG's 2005 permit, the dispute in this case goes back to the permitting process for WPG's 2000 permit.
When WPG applied for its 2000 permit, the 1985 forest plans governed the permitting decision. The Forest Service at the time interpreted the 1985 forest plans as requiring the forests to allow helicopter skiing. Accordingly, when the Forest Service began developing an Environmental Impact Statement ("EIS") for the 2000 permit decision, the Forest Service identified that the purpose and need of the proposed action was to "[c]ontinue one helicopter ski special use permit on the present area." Supp.App. 626. This need would be met by "[a]llowing for an economically viable helicopter skiing operation." Supp.App. 625.
The final EIS for the 2000 permit thus analyzed each option based on whether it would allow WPG to remain economically viable. The 2000 permit the Forest Service ultimately approved set forth a number of restrictions on WPG's operations, including limiting WPG's operating season, closing the national forests to helicopter skiing on Sundays and Mondays, limiting WPG to using one helicopter in certain areas, and limiting the number of skiers WPG could serve.
WPG appealed the decision to the Regional Forester, arguing the restrictions threatened its economic viability. Based on the understanding that the 1985 forest plans required the Forest Service to ensure its helicopter skiing permittee was economically viable, the Regional Forester ordered a financial analysis of WPG's operations. The financial analysis revealed that limiting weekend operations and limiting WPG to one helicopter in certain areas were key constraints on WPG's economic viability. But rather than amending the 2000 permit, the Forest Service decided to incorporate the information gleaned from the financial analysis into the analysis for the next permit application.
WPG's 2005 permit was issued under the new 2003 forest plans, rather than the 1985 forest plans that governed the 2000 permit. To highlight the change in focus of the 2003 forest plans, the draft EIS for the 2005 permit provided,
The Forest Service emphasizes the fact that the agency is not responsible for any permittee's economic viability. While private sector economic concerns are not necessarily those of the federal government, the success or failure of a permittee may have a considerable" bearing on the Forest Service's ability to meet the mandate to provide a range of quality recreational opportunities on lands under our administration.
Aplt. Excerpts of R. [ER] 520. The Forest Service also identified as an unmet need "provid[ing] improved operating efficiencies for WPG relative to the current permit while seeking to minimize conflicts between heli-skiing and other winter recreational uses." ER 521. The Forest Service ER 521 (emphasis supplied).
Accordingly, the draft EIS analyzed a range of alternatives, including not issuing a permit and various limitations on WPG's operating season, days, and area. The draft EIS incorporated much of the analysis from the 1999 EIS, which was prepared for the 2000 permit. See 40 C.F.R. § 1502.21 (). Particularly, it incorporated the 1999 EIS's analysis of the safety impact of WPG's use of explosives to test slope stability and the noise impacts of WPG's operations on other backcountry users.
But the draft EIS also distinguished its analysis from the 1999 EIS:
The 1999 EIS provided a detailed analysis of the impacts of various permit terms on WPG's economic viability. However, the revised Forest Plans for the [Wasatch-Cache and Uinta National Forests] clarify the relationship between the Forest Service and outfitter and guide permittees, including the agency's perspective on permittee's economic viability. The agency's concern is provision of a range of recreational opportunities on the lands under their administration. While it is recognized that a permittee cannot continue to provide a recreational opportunity if the permitted operation is not economically viable, viability in itself is not an agency concern.
ER 522. It then concluded:
Therefore, the focus of this analysis is on whether or not the terms of a given permit would provide WPG with adequate operational flexibility to continue to provide a quality heli-skiing experience .... Economic viability, per se, was determined to be outside the scope of the analysis on the basis of the current Forest Plan direction.
ER 522.
Numerous comments on the draft EIS, including one from SOC, accused the Forest Service of considering WPG's economic viability, in the guise of "operational efficiency," in violation of the 2003 forest plans. SOC also suggested the term "operational efficiency" should be defined, and set forth reasons why WPG's economic viability would not actually be threatened by increased restrictions. ER 513-15.
In response to comments like these, the Forest Service in the final. EIS defined "operating efficiency" as "how the...
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