The Save The Peaks Coal. v. United States Forest Serv.
| Decision Date | 01 December 2010 |
| Docket Number | No. CV 09-8163-PCT-MHM,CV 09-8163-PCT-MHM |
| Parties | The Save the Peaks Coalition, et al., Plaintiffs, v. United States Forest Service, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
This lawsuit concerns challenges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370(d) to the United States Forest Service's 2005 decision to allow Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership ("the Snowbowl") to upgrade its operations by allowing the production of man-made snow using non-potable Class A+ reclaimed wastewater. See Ariz. Admin. Code § R18-11-303. Plaintiffs are specifically challenging whether the 2005 Environmental Impact Statement prepared and issued by the Forest Service in connection with this upgrade violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d ("NEPA") by failing to properly and sufficiently consider and address the possibility or likelihood that people would ingest snow made from Class A+ reclaimed wastewater and the health impact of such potential ingestion.
Currently pending before the Court are Plaintiffs' The Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso's Motion for Summary Judgment, (Doc. 74), and Motion to Strike, (Doc. 101). Also pending are Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership's ("the Snowbowl's") Motion to Strike Plaintiffs' Citation to the Vacated Ninth Circuit Panel Opinion, (Doc. 85), and Motion for Summary Judgment, (Doc. 88), as well as Defendant United States Forest Service and Earl Stewart, in his official capacity as Forest Supervisor for the Coconino National Forest's ("the Federal Defendants") Motion for Summary Judgment, (Doc. 92). After reviewing the pleadings and conducting oral argument on July 20, 2010, the Court issues the following order.
I. FACTUAL AND PROCEDURAL HISTORY
Most of the core facts in this case are not disputed. The San Francisco Peaks are part of 1.8 million acres of public federal land located within the Coconino National Forest. Since at least 1938, people have been attracted to the snow-covered slopes of the San Francisco Peaks for skiing and winter recreation activities. As winter sports activity increased over time, a ski area was developed and expanded on the western flank of the San Francisco Peaks with a Poma lift installed in 1958, and a chair lift installed in 1962. The ski area, currently known as the Arizona Snowbowl, is located entirely on 777 acres of land within the Coconino National Forest. The Snowbowl operates under a Forest Service-issued Special Use Permit ("SUP") pursuant to the Forest Ski Area Permit Act of 1986, 16 U.S.C. § 497(b). The SUP is renewable on a 40-year basis. In 1979, the Snowbowl introduced a master plan for upgrading the ski area. The master plan included proposals for the installation of new lifts, trails, and facilities. Shortly after the Forest Service approved the Snowbowl's proposed upgrades in 1979, several Native American Tribes challenged the decision in federal court. The Forest Service's decision approving the master plan was ultimately upheld by the District of Columbia Court of Appeals. See Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983).
In 2002, Intervenor-Defendant Snowbowl submitted to the Forest Supervisor for the Coconino National Forest a formal proposal entitled the "Arizona Snowbowl Facilities Improvements Proposal." The goals of the Proposed Action were twofold: (1) to provide a consistent and reliable operating season and (2) to improve safety, skiing conditions, and recreational opportunities by bringing terrain and infrastructure into balance with existing demand. The proposed action included a request for snowmaking from non-potable Class A+ reclaimed wastewater supplied by the City of Flagstaff through a previously authorized agreement with the Snowbowl. The en banc Ninth Circuit characterized the non-potable Class A+ reclaimed wastewater that is to be utilized on the Snowbowl as follows:
The recycled wastewater to be used for snowmaking is classified as "A+" by the Arizona Department of Environmental Quality ("ADEQ"). [ ] A+ recycled wastewater is the highest quality of recycled wastewater recognized by Arizona law and may be safely and beneficially used for many purposes, including irrigating school ground landscapes and food crops. [ ] Further, the ADEQ has specifically approved the use of recycled wastewater for snowmaking.
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The recycled wastewater that will be used at the Snowbowl [ ] Further, the recycled wastewater will "comply with extensive treatment and monitoring requirements under three separate permit programs: the Arizona Pollutant Discharge Elimination System ("AZPDeS") Permit, the Arizona Aquifer Protection Permit Program, and the Water Reuse Program." [ ]
Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1065 (9th Cir. 2008) (en banc), cert. denied, 129 S.Ct. 2763 (2009) (internal citations and internal footnote omitted).
In September 2002, the Forest Supervisor for the Coconino National Forest issued a scoping notice on the Forest Service's Proposed Action for improvements at the Snowbowl to interested individuals, public agencies, and other organizations. The notice included a summary of the proposed action, including the proposal to create snow from Class A+ reclaimed wastewater.
On October 7, 2002, the Forest Service published a notice of intent to prepare an Environmental Impact Statement ("EIS") in the Federal Register. The notice stated that the chief feature of the Proposed Action was to produce artificial snow from Class A+ reclaimed wastewater on 203.5 acres of skiing terrain within the SUP area. See 67 Fed. Reg. 62435 (Oct. 7, 2002). On February 2, 2004, the Forest Service issued a Draft Environmental Impact Statement ("DEIS"). On February 18, 2005, the Forest Supervisor for the Coconino National Forest issued the Final Environmental Impact Statement ("FEIS") for the Arizona Snowbowl Facilities Improvements proposal. The Record of Decision ("ROD") was then issued on February 18, 2005. The ROD selected Alternative Two, which includes authority to make snow from Class A+ reclaimed wastewater. The Forest Service thereafter received twenty-eight appeals from fifty-nine individuals and organizations. (See AR Index, p. 15-17) (listing individuals and organizations who submitted materials to the Appeal Deciding Officer).
In June 2005, four groups of plaintiffs, composed of several Native American Tribes and Nations, along with various individuals, and environmental organizations, filed suit in the United States District Court for the District of Arizona, challenging the Forest Service's actions in the Arizona Snowbowl Facilities Improvements Project. The cases were consolidated into a single action before the Honorable Paul G. Rosenblatt. See Navajo Nation v. United States Forest Serv., 408 F. Supp. 2d 866 (D. Ariz. 2006) (consolidating Nos. CV 05-1824-PCT-PGR, CV-05-1914-PCT-EHC, CV-05-1949-PCT-NVW, CV-05-1966-PCT-JAT). The plaintiffs in the consolidated Navajo Nation litigation consisted of the Hopi Tribe, the Navajo Nation, the White Mountain Apache Nation, the Yavapai-Apache Nation, the Hualapai Tribe, the Havasupai Tribe, Norris Nez, Bill Bucky Preston, Rex Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network. The Navajo Nation plaintiffs brought claims for alleged violations of the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i ("GCEA"), the National Forest Management Act, 16 U.S.C. §§ 1600-1687 ("NFMA"), and a count alleging the United States had failed to comply with its trust responsibilities to the various Native American Tribes and Nations. See Navajo Nation, 408 F. Supp. 2d at 871.
With respect to NEPA, the Navajo Nation plaintiffs' complaint specifically alleged that "(1) the [FEIS] failed to consider a reasonable range of alternatives to the use of recycled wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of Dr. Paul Torrence; (3) the FEIS failed adequately to consider the environmental impact of diverting the recycled wastewater from Flagstaff's regional aquifer; and (4) the FEIS failed adequately to consider the social and cultural impacts of the Snowbowl upgrades on the Hopi people." Navajo Nation, 535 F.3d at 1079. At summary judgment, the plaintiffs for the first time raised a claim that "the FEIS failed adequately to consider the risks posed by human ingestion of artificial snow." Id. As the en banc Ninth Circuit noted, "[the relevant] complaint did not include this NEPA claim or the factual allegations upon which the claim rests." Id. The defendants in the Navajo Nation lawsuit responded to this new argument in their appeal brief contending that the plaintiffs had failed to properly plead this new NEPA claim in the complaint. The plaintiffs countered by moving the district court for leave to amend their complaint to add the NEPA claim relating to the risks posed by human ingestion of snow made with Class A+ reclaimed wastewater. The district court denied the motion for leave without comment. Navajo Nation, 408 F. Supp. 2d at 908 (...
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