Methow Valley Citizens Council v. Regional Forester

Citation833 F.2d 810
Decision Date01 December 1987
Docket NumberNo. 86-4108,86-4108
Parties, 18 Envtl. L. Rep. 20,163 METHOW VALLEY CITIZENS COUNCIL, et al., Plaintiffs-Appellants, v. REGIONAL FORESTER, etc., et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David A. Bricklin, Bricklin & Gendler, Seattle, Wash. (Molly Holt, Long Beach, Cal., on brief), for plaintiffs-appellants Methow Valley, Washington Environmental Council, and Sierra Club.

David C. Shilton, Dept. of Justice, Washington, D.C., for the federal appellees.

Glenn J. Amster, Hillis, Cairncross, Clark & Martin, Seattle, Wash., for defendant-appellee Methow Recreation, Inc.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and FERGUSON, Circuit Judges, and STEPHENS, * District Judge.

FERGUSON, Circuit Judge:

Sandy Butte overlooks the Methow Valley, an unspoiled, sparsely populated area on the eastern side of the North Cascade Mountains in the State of Washington. The Methow Valley provides critical winter range and migration corridors for Washington's largest migratory deer herd. Sandy Butte is a 3,900-acre parcel in the Okanogan National Forest. The upper one-third of Sandy Butte is entirely roadless. In 1978 appellee Methow Recreation, Inc. (MRI) applied for a "special use" permit to develop and operate a four-season destination ski resort on Sandy Butte and a large parcel of private land it had acquired adjacent to Sandy Butte. The proposed development is known as the Early Winters project. The project is expected to spawn extensive commercial and residential development in the Methow Valley.

Pursuant to requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332, mandating completion of an Environmental Impact Statement (EIS) analyzing the environmental impacts of "major" governmental actions, the appellee Forest Service studied the question of whether it should allocate Sandy Butte for use as a downhill ski area. In 1982 the Forest Service published a draft EIS on a proposal to designate Sandy Butte for use as a major ski area capable of serving 8,200 skiers at one time (SAOT). The final EIS was issued in 1984. Based on its contents, in July 1984 the Regional Forester issued a "Record of Decision" which adopted a "future management plan" for Sandy Butte. The plan allocated the area for use as a ski area capable of serving 8,200 SAOT. The record of decision also approved the issuance of a special use permit to MRI for the Early Winters Project. 1

In December 1985, appellants Methow Valley Citizens Council, et al. (MVCC), brought this action in the District Court for the District of Oregon alleging violations of the National Forest Management Act, 16 U.S.C. Secs. 1600-1614, the Clean Air Act, 42 U.S.C. Secs. 7401-7626, and NEPA. Pursuant to local rule, the case was assigned to a United States Magistrate. The National Forest Management Act and Clean Air Act claims were dismissed upon motions for summary judgment and are not raised on appeal. The remaining NEPA issues were tried before the district court and the court affirmed the Forest Service's Record of Decision, dismissing the remaining claims. MVCC subsequently filed this appeal.

The issues facing this court are whether the district court erred in holding that the Regional Forester's decision to issue a special use permit is not reviewable and in its determination that the EIS adequately discussed alternatives to the proposed project, impacts to the deer herd, impacts on air quality, other significant impacts, and mitigation measures. Jurisdiction of this court is found under 28 U.S.C. Sec. 1291.


The Administrative Procedure Act, 5 U.S.C. Secs. 701-706, governs judicial review of agency actions. Section 702 grants standing to challenge an agency action to anyone adversely affected by such action, except where the statute under which the action was taken precludes judicial review, or where the action is committed to agency discretion by law. 5 U.S.C. Sec. 701(a). While there is no claim here that judicial review is barred by statutory preclusion, there is dispute as to whether the Regional Forester's issuance of a special use permit is an action committed to agency discretion such that it is removed entirely from the scrutiny of judicial review. The district court held that it was committed to agency discretion and not subject to judicial review.

The district court cited two cases--Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and Ness Investment Corp. v. United States Dept. of Agric., Forest Service, 512 F.2d 706 (9th Cir.1975)--in support of its decision. In Citizens to Preserve Overton Park, the Supreme Court emphasized that action committed to agency discretion by law is "a very narrow exception ... applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " 401 U.S. at 410, 91 S.Ct. at 820 (citation omitted). In Ness, this court held that the denial of a special use permit was not judicially reviewable because there was no "law to apply" by which the court could assess the legality of the agency's decision. The court held that neither the authorizing statute, 16 U.S.C. Sec. 497, nor the very general language of corresponding regulations, 36 C.F.R. Sec. 251.1 et seq., offered standards by which the agency's action could be tested. Id. at 715, 716. Contra Sabin v. Butz, 515 F.2d 1061, 1065 (10th Cir.1975). Thus central to our decision in Ness was the lack of formal guidelines for the issuance of special use permits.

The district court failed to note, however, that in 1980--prior to the commencement of activities relevant to this action--the Forest Service issued detailed supplemental regulations which, while not entirely removing the decision to issue a special use permit from agency discretion, do impose specific obligations on the authority considering issuance. See 36 C.F.R. Secs. 251.54-251.56. These guidelines, binding upon the Regional Forester when deciding whether to grant MRI its special use permit for development of the Sandy Butte area, constitute sufficient "law" for this court to apply to confer jurisdiction over the matter. See Wallace v. Christensen, 802 F.2d 1539, 1556 (9th Cir.1986) (en banc) (Hall, J., concurring). 2 Thus we hold that the Regional Forester's decision to issue a special use permit is subject to judicial review 3 where review involves an inquiry into whether the proper factors were considered by the Forestry Service. See Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282, 1295-96 (5th Cir.1977). 4


The National Environmental Policy Act, codified at 42 U.S.C. Sec. 4332, provides in relevant part that when an EIS must be prepared--whenever a major government action is proposed--it must include

a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. Sec. 4332(2)(C). Section 4332(2)(E) adds that all agencies of the Federal Government shall, to the fullest extent possible

study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

42 U.S.C. Sec. 4332(2)(E).

There are two purposes served by preparation of an EIS. The statement should "provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences," Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir.1974), as well as "provide the public with information and an opportunity to participate in gathering information." Citizens for A Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985) (citations omitted).

An EIS aids the agency's own decisionmaking process by ensuring that the agency has before it " 'all possible approaches to a particular project ... which would alter the environmental impact and the cost-benefit balance.' " State of Alaska v. Andrus, 580 F.2d 465, 474 (D.C.Cir.), vacated in part sub nom. Western Oil & Gas v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978) (quoting Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1114 (D.C.Cir.1971)).


The findings of fact underlying a lower court's decision on the adequacy of an EIS are reviewed for clear error. Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 696 (9th Cir.1986), cert. granted, --- U.S. ----, 107 S.Ct. 1971, 95 L.Ed.2d 812 (1987). "Interpretations of [environmental] regulations present questions of law, which are reviewable de novo." Oregon Environmental Council v. Kunzman, 817 F.2d 484, 493 (9th Cir.1987) (citing Sierra Club v. Union Oil Co. of California, 813 F.2d 1480, 1489 (9th Cir.1987)). "We review de novo the district court's determination of whether the EIS is reasonably thorough in discussing the significant aspects of the probable environmental impact of the proposed agency action." Oregon Natural Resources Council v. Marsh, 820 F.2d 1051, 1054 (9th Cir.1987) (citation omitted). This requires application of a "rule of reason" because a "reviewing court may not 'fly speck' an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies." Kunzman, 817 F.2d at 492. In other words, "whether a particular deficiency, or combination of deficiencies in an EIS is sufficient to...

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