Methow Forest Watch v. U.S. Forest Service
| Decision Date | 20 January 2005 |
| Docket Number | No. 04-114-KI.,04-114-KI. |
| Citation | 383 F.Supp.2d 1263 |
| Parties | METHOW FOREST WATCH, Kettle Range Conservation Group, The Lands Council, Wild Wilderness, and North Cascades Conservation Council, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant, Washington State Snowmobile Association and Winthrop Snowmobile Rental, Defendant-Intervenors. |
| Court | U.S. District Court — District of Oregon |
Gary K. Kahn, Peggy Hennessy, Reeves, Kahn & Hennessy, Portland, OR, for Plaintiffs.
Karin J. Immergut, United States Attorney, District of Oregon, Jeffrey K. Handy, Assistant United States Attorney, Portland, OR, Val J. McLam Black, Special Assistant United States Attorney, Office of General Counsel, United States Department of Agriculture, Portland, OR, Thomas L. Sansonetti, Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Jean E. Williams, Chief, Jimmy A. Rodriguez, Trial Attorney, U.S. Department of Justice, Wildlife and Marine Resources Section, Ben Franklin Station, Washington, DC, for Federal Defendant.
Beth S. Ginsberg, Laura J. Beveridge, Stoel Rives, LLP, Seattle, Washington, DC, for Intervenors.
Before the court are the following motions: (1) motion for summary judgment by defendant U.S. Forest Service (# 43); (2) motion for summary judgment by defendant-intervenors Washington State Snowmobile Association and Winthrop Snowmobile Rental (# 42); and (3) motion for summary judgment by plaintiffs Methow Forest Watch, Kettle Range Conservation Group, the Lands Council, Wild Wilderness, and North Cascades Conservation Council (# 37). For the reasons below, I grant defendant and defendant-intervenors' motions for summary judgment and deny plaintiffs' motion for summary judgment.
On January 23, 2004, plaintiffs brought a complaint under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370F, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and the Endangered Species Act, 16 U.S.C. §§ 1531-1544. The Forest Service filed a motion to dismiss plaintiffs' ESA claims on April 7, 2004; plaintiffs stipulated to a dismissal of those claims during the pendency of the action, and pursuant to a stipulated order, filed an amended complaint under NEPA and the APA on June 25, 2004.
Plaintiffs seek declaratory and injunctive relief, challenging two decisions by the Forest Service to renew special use permits allowing snowmobiling and helicopter skiing on the Okanogan National Forest in northern Washington. Plaintiffs claim that the agency violated NEPA and its implementing regulations by issuing Environmental Assessments ("EAs") for these renewals that failed to analyze cumulative impacts. Plaintiffs seek to prohibit the agency from taking any actions pursuant to the challenged decisions until the agency complies with NEPA.
The Okanogan National Forest Land and Resource Management Plan, as amended, allows for special recreation uses, such as snowmobile and helicopter skiing, on the Okanogan National Forest if the uses will not damage or impair forest resources or programs. Accordingly, three snowmobile outfitter-guides, Chewack River Guest Ranch, Winthrop Snowmobile Rentals and Jack's RV, applied for the renewal of Special Use Permits ("SUPs") to conduct snowmobile rentals and guiding from snowparks in the forest. A local snowmobile club also requested public use of an existing warming hut in the Blackpine Basin. In response to the applications, the Forest Service prepared the Snowmobile Outfitter/Guide Special Use Permit and Blackpine Basin Hut Environmental Assessment ("Snowmobile EA").
The Snowmobile EA examines three alternatives. Alternative 1 is a "no action" alternative that would deny the applications for the SUPs and the use of the warming hut. Alternative 2 would authorize SUPs for up to 1,200 client days and the use of the warming hut, an increase from 500 client days. Finally, Alternative 3 would grant SUPs without increasing the client days. The Snowmobile EA evaluates impacts to wildlife, water quality and quantity, the spread of weeds, non-motorized recreation, private landowners, Roadless and Wilderness areas, Late Successional Reserves, soils, plants, and air quality. The Snowmobile EA also considers the existing levels and effects of winter recreation uses, such as private snowmobile usage, on forest resources. AR SM 1934-2054.
A helicopter-skiing outfitter-guide, North Cascades Heli-Skiing, Inc., separately applied for the renewal of its SUP for the transport and guiding of skiers. In response to this application, the Forest Service prepared the Helicopter-Assisted Skiing Special Use Permit Environmental Assessment ("Helicopter EA"). The Helicopter EA examines three alternatives. Alternative 1 is a "no action" alternative, which would deny the application. Alternative 2 would authorize an SUP for up to 1,050 client days, use of the Barron Yurt and Panther Basin Hut for overnight stays, use of a sno-cat during inclement weather, fuel caches, and use of a radio repeater on Goat Peak. Finally, Alternative 3 would grant an SUP for up to 550 client days, use of the Barron Yurt, use of a sno-cat during inclement weather, fuel caches, and a radio repeater. The Helicopter EA investigates impacts to fish species, roadless areas, Late-Successional Habitat, non-motorized recreation, Wilderness and wildlife, and examined the levels and effects of existing winter recreation uses, including snowmobiling, on forest resources. AR HS 2602-2676. It does not extensively evaluate the impacts of the SUP on vegetation, water quality, soils, or noxious weeds, finding instead that helicopter-assisted skiing does not affect these resources. AR HS 2654.
The Forest Service prepared Biological Assessments ("BAs") pursuant to the Endangered Species Act ("ESA") for each SUP. AR SM 1388; AR HS 2236. On July 29, 2001, the Forest Service submitted the BAs to the United States Fish and Wildlife Service ("FWS") for "consultation" under section 7 of the ESA. The FWS had to determine whether each project was or was not likely to adversely affect ESA-listed species. With respect to both decisions, the FWS concluded that the decisions were not likely to adversely affect any listed threatened or endangered species. AR SM 1469; AR HS 2300. However, the FWS also made the following recommendation:
A large-scale (e.g., Province, Ranger, District, or watershed) coordinated recreation management strategy and action plan should be developed to assess the resources' compatibility with the number and type of existing winter recreation activities in the Upper Methow prior to increasing the use levels. In the absence of such an analysis, the FWS is concerned that the cumulative effects of on-going and proposed activities on listed species may not be adequately addressed.
AR SM 1471; AR HS 2302.
On July 17, 2002, the Tonasket District Ranger and the Methow Valley District Ranger signed a Decision Notice and Finding of No Significant Impact ("DN/FONSI") for the issuance of three five-year SUPs for snowmobile outfitting and guiding from several snowparks within the Ranger Districts, adopting Alternative 2 identified in the Snowmobile EA. This decision includes the use of the Blackpine Basin Hut. AR SM 2115.
On July 31, 2002, the Methow Valley District Ranger signed a DN/FONSI for the issuance of an SUP for helicopter and sno-cat transport and guiding of nordic and alpine skiers on designated routes and landing sites in the Ranger District, adopting Alternative 2 evaluated in the Helicopter EA. This decision includes the use of the Barron Yurt, an electronic repeater site, and remote fuel caches. The issuance of FONSIs for the snowmobile and helicopter proposals means that the Forest Service determined an Environmental Impact Statement ("EIS") was not necessary for either. AR HS 2941.
After the Forest Service issued the DN/FONSIs for the snowmobile and helicopter permit applications, plaintiffs, except Lands Council, administratively appealed the decisions. AR SM 2154; HS 2974. The Deputy Regional Forester denied plaintiffs' appeal and affirmed the FONSIs in October 2002. AR SM 2214; HS 3114. Plaintiffs challenge the two EAs/FONSIs.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 952, 120 S.Ct. 375, 145 L.Ed.2d 293 (1999).
The Forest Service challenges the plaintiffs' standing to bring this action. In response to the Forest Service's argument, plaintiffs submit several affidavits and declarations from their members, each of whom claim recreational interests and interests in the protection of wildlife in the areas at issue.
To satisfy standing requirements under Article III of the United States Constitution, a plaintiff must show:
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members...
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