Citizens' Committee v. U.S. Forest Service

297 F.3d 1012

CITIZENS' COMMITTEE TO SAVE OUR CANYONS and Wasatch Mountain Club, nonprofit organizations; William Thompson and Gavin Noyes, individuals, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Bernie Weingardt, Forest Supervisor, Wasatch-Cache National Forest; and Peter W. Karp, Forest Supervisor, Uinta National Forest, Defendants-Appellees, and Snowbird Corporation, Intervenor-Appellee.

No. 01-4082.

United States Court of Appeals, Tenth Circuit.

July 23, 2002.

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Joro Walker (Bruce Plenk with her on the briefs), Salt Lake City, UT, for Plaintiffs-Appellants.

Todd S. Aagaard, Attorney, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC (Andrew Mergen, Attorney, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC; John C. Cruden, Acting Assistant Attorney General, Washington, DC; Maggie L. Hughey and Stephen L. Roth, Assistant United States Attorneys, District of Utah, Salt Lake City, UT; and Elise Foster, Office of General Counsel, U.S. Department of Agriculture, Washington, DC, with him on the brief), for Defendants-Appellees United States Forest Service, Bernie Weingardt, and Peter W. Karp.

Martin K. Banks (Mark E. Hindley with him on the brief), Stoel Rives LLP, Salt Lake City, UT, for Intervenor-Appellee Snowbird Corporation.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BROWN,^* Senior District Judge.

EBEL, Circuit Judge.

This case centers around privately and publicly owned lands located in Northern Utah and the interactions between Defendant-Appellee United States Forest Service and Plaintiffs-Appellants Citizens' Committee to Save Our Canyons, the Wasatch Mountain Club, William Thompson, and Gavin Noyes (collectively SOC) regarding development plans for the Snowbird Ski and Summer Resort. At issue is whether the Forest Service complied with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. § 1601 et seq., in carrying out two transactions involving Snowbird. In one transaction, the Forest Service approved, as part of a larger plan, the construction of large resort facility on Hidden Peak, a mountain owned by the federal government but used by Snowbird pursuant to a special use permit. In another transaction, the Forest Service transferred to Snowbird small fractions of land in return for land adjacent to other federal property. Both of these transactions occurred while Snowbird was undertaking operations to improve its resort capacity.

SOC alleges that the Forest Service's handling of these transactions was arbitrary and capricious in several respects. It contends that the Forest Service authorized the land exchange (called the Interchange) without first giving sufficient public notice, and that the Forest Service did not receive an equal value of land in exchange. In addition, it argues the Forest Service did not consider a sufficient number of alternatives before authorizing the Hidden Peak structure. Finally, it claims the Forest Service improperly amended an existing forest plan to allow for the Hidden Peak building.

The United States District Court for the District of Utah rejected SOC's arguments, and, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I. Background

Snowbird owns and operates a ski resort located twenty-five miles southeast of Salt Lake City, Utah. All parties agree that Snowbird is a ski resort of some significance, and during the 1998-99 ski season over 380,000 people visited the resort. The resort itself is comprised of 881 acres of private land (called the Mineral Basin) and 1,674 acres of public land located within the Wasatch-Cache National Forest ("WCNF"). In 1979, the Forest Service issued a special use permit to Snowbird that allowed the resort to establish ski operations on national forest land. Because of its special use permit, Snowbird is required to submit periodically a master development plan outlining its long-range plans for the resort and the public lands it utilizes.

A. Master Development Plan

In 1997, Snowbird submitted a master development plan (MDP) to the Forest Service. In the MDP, Snowbird proposed extensive changes to its resort operations. In addition to calling for a general upgrade in operations, increased snowmaking equipment, additional chair lifts, and improved hiking trails, the MDP proposed the construction of a 78,000 square-foot conference center and resort facility on an area known as Hidden Peak, which is within the public property Snowbird uses pursuant to a special use permit. The facility proposed by Snowbird would be considerably larger than the existing ski tram and 1,700 square foot ski patrol and skier service center currently located on Hidden Peak. Under Snowbird's proposal, the new structure would essentially replace the two existing structures and would contain space for "a restaurant, lounge, meeting rooms, an interpretive area, retail space, ski patrol quarters, restrooms, snowcat garages, and a maintenance area."

In its MDP, Snowbird argued that the larger structure was needed because the limited nature of the existing Hidden Peak facilities adversely affected the resort in a number of ways. Ski and equipment rental offices, as well as restaurants, currently sit below Hidden Peak at the base of the resort, making Hidden Peak less amenable to skiers. In addition, although considered a world class facility in many regards, in recent years Snowbird has been unable to meet all the requests for its services and facilities. In 1997, for example, Snowbird turned away 19 percent of conference requests because of space limitations. The limited space on Hidden Peak also adversely affects activities across the resort, limiting skier circulation and making general use of the resort less efficient.

Because Hidden Peak is located on land owned by the federal government, any substantial structures on the region require Forest Service approval, which, in turn, implicates NEPA. On May 17, 1997, the Forest Service began the NEPA process by announcing its intent to prepare an Environmental Impact Study (EIS) examining Snowbird's proposal and by sending a scoping document, which outlined Snowbird's proposal and solicited public comments to over 1,000 individuals and organizations. In addition, on July 19 and 30, 1997, Snowbird held a public open house to discuss its proposal. A year later, in October 1998, the Forest Service published a draft EIS (DEIS) that consolidated several possible courses of action, including a no-action alternative, the Snowbird-proposed 78,000 square-foot structure, a considerably smaller, 22,000 square-foot structure, and the preferred alternative, a middle-sized structure ranging from 22,000 to 50,000 square-feet. In addition to discussing the proposed alternatives, the Forest Service outlined, as required by NEPA, alternatives that it had analyzed but not considered in detail. These "rejected alternatives" included a proposal to locate the Hidden Peak development at a different resort area altogether and a proposal to maintain the current sized structure, though with internal upgrades. The Forest Service justified not examining these alternatives in detail on the grounds that they would not meet the needs identified in the MDP.

In addition, the DEIS pointed out that the current Hidden Peak buildings violated an existing provision of the WCNF Forest Plan prohibiting structures that might interfere with mountain views from being built on Hidden Peak.¹ An amendment to the existing Forest Plan, the DEIS explained, would be necessary to accommodate any Hidden Peak structure, even the existing structures.

On December 12, 1999, the Forest Service issued a final EIS (FEIS) and a Record of Decision (ROD) authorizing the construction of the Forest Service's preferred alternative, which, among other things, authorized the construction of "a building not to exceed 50,000 square feet" and amended the existing Forest Plan to permit the structure.

B. Mineral Interchange

The proposal for a new structure on Hidden Peak specifically dealt with Snowbird's proposed development on federal land. However, the MDP submitted by Snowbird also detailed activities it planned to undertake on its private land (land known as the Mineral Basin), regardless of whether the Hidden Peak structure received Forest Service approval.

Within the Mineral Basin are relatively small fragments of federally owned land known as mineral survey fractions.² In 1998, while the Forest Service studied Snowbird's MDP and Hidden Peak proposals, Snowbird approached the Forest Service and asked it to enter a transaction known as an interchange (the Interchange).³ Under Snowbird's proposed interchange, the Forest Service would give Snowbird the fractions of land it owned in the Mineral Basin in exchange for 6.71 acres of land known as the "War Eagle" property. The Forest Service eventually approved this transaction in December 1998. Because the Forest Service concluded that under existing regulations the transaction did not pose a significant risk of impacting the environment, it "categorically excluded" the Interchange from NEPA review. Conflicting surveys, however, left the exact size of the land transferred by the government unclear, with government surveys placing the size at 1.98 acres, but surveys by Snowbird suggesting over nine acres may have been transferred by the Forest Service.

Although the Forest Service was considering the Interchange while simultaneously studying the MDP, the DEIS issued by the Forest Service in October 1998 did not mention the Interchange, though the FEIS, issued a year later, did.

The land received by Snowbird as a result of the Interchange took on added significance when Snowbird pressed forward with plans to develop the property it previously...