Colorado Environmental Coalition v. Dombeck, No. 98-1379

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SEYMOUR, BRORBY and HENRY; BRORBY
• Citation: 185 F.3d 1162
• Parties: (10th Cir. 1999) COLORADO ENVIRONMENTAL COALITION; DEFENDERS OF WILDLIFE; WILDERNESS SOCIETY; SIERRA CLUB; SINAPU; SOUTHERN ROCKIES ECOSYSTEM PROJECT; ANNE VICKERY, Plaintiffs-Appellants, v. MICHAEL DOMBECK, in his official capacity asChief 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
• Docket Number: No. 98-1379
• Decision Date: 09 August 1999

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185 F.3d 1162 (10th Cir. 1999) COLORADO ENVIRONMENTAL COALITION; DEFENDERS OF WILDLIFE; WILDERNESS SOCIETY; SIERRA CLUB; SINAPU; SOUTHERN ROCKIES ECOSYSTEM PROJECT; ANNE VICKERY, Plaintiffs-Appellants,
v.
MICHAEL DOMBECK, in his official capacity asChief 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. No. 98-1379 UNITED STATES COURT OF APPEALS TENTH CIRCUIT August 9, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 98-N-1276

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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 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 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

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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.

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 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

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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 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 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...