Hogback Basin Preservation v. U.S. Forest Service

Decision Date10 September 2008
Docket NumberNo. C07-1913JLR.,C07-1913JLR.
Citation577 F.Supp.2d 1139
PartiesHOGBACK BASIN PRESERVATION ASSOCIATION, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
CourtU.S. District Court — Western District of Washington

David A. Bahr, Eugene, OR, Richard Arthur Poulin, Scope Law Firm, Stephen J. Tan, Cascadia Law Group PLLC, Seattle, WA, for Plaintiffs.

Brian C. Kipnis, Rebecca Shapiro Cohen, U.S. Attorney's Office, Eric S. Merrifield, Perkins Coie, Seattle, WA, Robert Maynard, Perkins Coie LLP, Boise, ID, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

This matter involves the question of whether the expansion of a ski area, contemplated in varying forms over the past two decades, may proceed on National Forest System land that is regulated simultaneously to preserve its roadless character and to promote the objectives of "Developed Recreation." On cross-motions for summary judgment, each side contends that its interpretation of the contradictory regulatory framework reconciles these competing demands. Having heard argument and reviewed the administrative record, the court GRANTS Defendants' motions for summary judgment (Dkt. ## 27, 29) and DENIES Plaintiffs' motion for summary judgment and a preliminary injunction (Dkt.# 25).

I. BACKGROUND

Plaintiffs are the environmental organizations Hogback Basin Preservation Association and Sierra Club. Defendants are the United States Forest Service and White Pass Company ("WPC"). The White Pass Ski Area (or "White Pass"), which began operations in 1955, is located on Highway 12 in the Cascade Mountain range of Washington State, approximately 55 miles west of Yakima and 20 miles east of Packwood. WPC operates the ski area under the guidance of the 1979 White Pass Master Plan and the terms of a Special Use Permit ("SUP"). WPC presently seeks to expand its alpine-skiing operations into the neighboring Hogback Basin. The expansion area is located entirely within the Gifford Pinchot National Forest.

In the Washington State Wilderness Act of 1984, Congress increased wilderness lands in the state by over a million acres. See Pub.L. No. 98-339, 98 Stat. 299 (codified as amended in scattered sections of 16 U.S.C.) (hereinafter "Wash. Wilderness Act"). The Act has two purposes: (1) to designate certain lands as wilderness "in order to promote, perpetuate, and preserve the wilderness character of the lands, protect watersheds and wildlife habitat, preserve scenic and historic resources, and promote scientific research, primitive recreation, solitude, physical and mental challenge, and inspiration for the benefit of all the American people, to a greater extent than is possible in the absence of wilderness designation," Wash. Wilderness Act § 2(b)(1); and (2) to "insure that certain other National Forest System lands in the State of Washington be available for nonwilderness multiple uses," id. § 2(b)(2). To further these dual purposes, Congress added approximately 23,000 acres to the Goat Rock Wilderness Area but also removed approximately 800 acres, including Hogback Basin, from the Goat Rocks Wilderness Area. See id. §§ 3(7), 5(b)(3); FEIS 1-5 (AR 22814) (quoting statement by Rep. Norm Dicks made before the House of Representatives on March 20, 2007); Sen. Rep. No. 98-461, at 10 (1984) (AR 1358); see generally James F. Torrence, Certification of Legal Boundary Description and Map of Goat Rock Wilderness based on 1964 and 1984 Acts (July 30, 1987) (AR 1708-34). The Act provides that lands removed from wilderness protection "shall be managed for multiple use in accordance with land management plans" and that those lands "need not be managed for the purpose of protecting their suitability for wilderness designation." Wash. Wilderness Act § 5(b)(3).

The present action is the third time the Western District of Washington has been called upon to review Forest Service decisions approving the expansion of WPC's alpine ski operations into the roughly 800-acre portion of Hogback Basin that was removed from designation as wilderness and yet remains within inventoried roadless areas ("IRAs"). Our first opportunity occurred when the Forest Service's 1990 decision to add over 800 acres to the WPC's permit area was administratively appealed and affirmed. See Nw. Ecosys. Alliance v. U.S. Forest Serv., No. C99-759L, Order on Summ. J., at 2 (W.D.Wash. Sep. 26, 2000). In 1992, however, the Forest Service withdrew its decision after an action for judicial review was filed in this court. See id.

A few years later, in 1994, the Northwest Forest Plan ("NWFP") went into effect, amending all forest plans within the range of the Northern Spotted Owl, including the Gifford Pinchot National Forest Plan ("GPNFP"). See id. The NWFP did not alter the allocation of Hogback Basin to management for "Developed Recreation." Instead, it designated Hogback Basin as an "Administratively Withdrawn Area," which meant that the standards and guidelines of existing forest plans, such as the GPNFP, would continue to apply to the area to the extent they did not conflict with provisions of the NWFP. Id. at 3. The GPNFP designates for Developed Recreation management the roadless area eliminated from wilderness consideration in the Washington State Wilderness Act of 1984. (See Record of Decision ("ROD") at 34 (AR 24187); Final Environmental Impact Statement ("FEIS") at 1-5, 3-452 (AR 22814, 23378).) The GPNFP provides that the "Desired Future Condition" for such Developed Recreation is one in which "[r]oads, buildings, ski lifts, tables, docks, and other physical facilities are evident, but design and construction will repeat the color, shapes and lines of the surroundings." U.S. Dep't of Agric., Land and Resource Management Plan, Gifford Pinchot Nat'l Forest Plan, Pac. Nw. Region, at 4-6 (1990) (AR 2112) (hereinafter "GPNFP"); see ROD at 34 (AR 24187).

In 1997, WPC requested permission to expand its operations into a part of Hogback Basin called Pigtail Basin. The September 1998 Final Environmental Impact Statement and Record of Decision for this project were affirmed on administrative appeal. A number of groups, including Plaintiffs in this case, then challenged the Forest Service's decision in the Western District of Washington, offering this court a second opportunity to review a White Pass expansion plan. The court rejected the Forest Service's fast-track approval process, finding that Defendants had arbitrarily and capriciously endeavored to circumvent the strictures of the National Forest Management Act ("NFMA"), the NWFP, and the National Environmental Policy Act ("NEPA"). Rather than comply with the NWFP's prohibition against building new roads in roadless areas in Key Watersheds, the Forest Service simply amended the GPNFP to redraw the roadless area boundaries and planned to construct a spur road outside of that territory. See Nw. Ecosys. Alliance, Order on Summ. J. at 6-7. Furthermore, the Forest Service did not, as required by the NWFP, coordinate with the Regional Ecosystem Office in passing this amendment. Instead the Forest Service "crafted their presentation of the issue in a manner intended to avoid meaningful review." See id. at 8. Having found those violations, the court need not have reached the NEPA claims. It did so, however, "in order to emphasize that defendants' past treatment of the NEPA process may not suffice should the project proposal be treated similarly after it is revised to comply with NFMA and NWFP." Id. at 14.

On our third visit to Hogback Basin, the court considers whether the Forest Service, in approving the most recent expansion plan for White Pass Ski Area, has satisfied the substantive and procedural strictures of the Roadless Area Conservation Rule ("Roadless Rule"), the NFMA, and NEPA. In December 2004, the Forest Service issued its Draft Environmental Impact Statement ("DEIS") and accepted public comments on the proposal. In June 2007, the Forest Service issued the Final Environmental Impact Statement ("FEIS") and Record of Decision ("ROD") for the project. The ROD approved the following: (1) a new White Pass Master Development Plan ("MDP") for the expansion of White Pass Ski Area, consistent with Modified Alternative 4 in the FEIS; (2) an amendment of the White Pass SUP to add 767 acres of Hogback Basin to the SUP area; and (3) Amendment 19 to the GPNFP's Riparian Area Standards and Guidelines in order to allow for construction of ski trails, chairlifts, buildings, utilities, and associated infrastructure within an area less than 10 feet from the edges of lakes, streams, ponds, wet meadows, marshes, and springs located in riparian areas. ROD at 2 (AR 24155). No new roads would be built for the White Pass Expansion. It would, however, involve the cutting of "[o]nly those trees within the necessary clearing widths for chairlifts, ski trails and the mid-mountain lodge." (ROD at 37 (AR 24190).)

On August 31, 2007, Plaintiffs filed an administrative appeal of the ROD, which was denied. Plaintiffs then brought this action to seek an order withdrawing the FEIS and ROD and enjoining the White Pass Expansion. Plaintiffs' Complaint asserted thirteen causes of action. On summary judgment, Plaintiffs assert only eight of the thirteen claims:1 (1) violation of the Roadless Rule, 36 C.F.R. § 294.10 et seq. (2001), (Compl.(Dkt.# 1) ¶¶ 32-38); (2) NEPA, failure to adequately consider the cumulative impacts of reasonably foreseeable actions (Compl.¶¶ 39-43); (3) NEPA, failure to analyze all reasonable alternatives (Compl.¶¶ 44-52); (4) NEPA, failure to consider environmental impacts of electrical utility upgrades (Compl.¶¶ 53-59); (5) NEPA, failure to address sewage issues (Compl.¶¶ 60-66); (6) NFMA, violation of the Aquatic Conservation Strategies ("ACS") (Compl.¶¶ 96-107); (7) NFMA, violation of the Forest Service regulations involving the amendment of forest plans (Compl....

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