Opinion
No. CV 97-1787-KI
June 4, 2001
Karl G. Anuta Sokol Anuta, P.C. Portland, Oregon Attorney for Plaintiffs.
Eric S. Gould U.S. Department of Justice Environment and Natural Resources Division General Litigation Section Washington, D.C.
Mark A. Nitczynski U.S. Department of Justice Environmental Defense Section (Denver Field Office) Denver, Colorado, Attorneys for Federal Defendants.
Per A. Ramfjord Stoel Rives LLP Portland, Oregon.
Richard H. Allan Ball Janik LLP Portland, Oregon, Attorneys for Defendants-Intervenors.
OPINION
Numerous environmental organizations filed this action alleging that activities at Mt. Hood Meadows ski area violate the National Forest Ski Area Permit Act of 1986 ("SAPA"), 16 U.S.C. § 497b, the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 501.
On December 15, 2000, and after reconsideration on May 16, 2001, I ruled that the USFS violated NEPA in failing to assess a viable alternative concerning the amount of parking at the ski area, and the possible use of shuttle buses from an off-site parking area.
Plaintiffs seek to enjoin the federal defendants from approving any project that is tiered to the 1997 ROD or the 1997 Master Plan on which the ROD relies unless or until the agency has completed properly prepared and approved NEPA documents. Defendants contend that no injunction should be entered because the 1997 Master Plan and ROD are programmatic documents from which no site-specific activities flow without additional environmental analysis and NEPA process. Alternatively, defendants contend that any injunction should be limited to enjoining action that relies on the documents' approval of additional parking at the ski area.
Courts apply the traditional balance of harms analysis in deciding whether injunctive relief is appropriate in the context of environmental litigation. National Parks Conservation Association v. Babbitt, 241 F.3d 722, 737 (9th Cir. 2001). An injunction may be withheld or limited in scope in the event of "unusual circumstances," otherwise an injunction is the appropriate remedy for a violation of NEPA's procedural requirements. Id. at 737 n. 18; Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985). Unusual circumstances are the existence of irreparable harm that would flow from the injunction, such as leaving fragile desert resources vulnerable to permanent damage or allowing timber to become worthless because of ongoing insect damage. Thomas, 753 F.2d at 764 n. 8.
I acknowledge plaintiffs' concern that the failure to enjoin all conduct tiered to the 1997 ROD, or the 1997 Master Plan on which the ROD relies, intensifies the pressure to agree with the USFS's future conclusions when it gives additional consideration to the parking alternatives. The 1997 Master Plan approved many types of expansions to the ski area. I consider the other projects severable from the size of the parking lot. Defendants wish to risk beginning on other projects, such as Lift 21, without a final decision on parking so that Mt. Hood Meadows remains competitive with other local ski areas. After balancing the harms I conclude that I should allow them to do so.
I disagree with plaintiffs' contention that I cannot sever the issues and enjoin only part of what was approved in the Master Plan and ROD. In National Parks, the National Park Service wrote a combined environmental assessment and vessel management plan ("VMP") assessing six alternatives for managing vessels, including big cruise ships, in Glacier Bay. The circuit enjoined implementation of the portions of the VMP which increased vessel traffic above levels in earlier regulations. It also ordered a rollback of the traffic level to the earlier regulation level because the increases had started taking affect. But it specifically did not enjoin the parts of the VMP that protect the environment, such as protected whale waters and implementation of oil-spill response plans. National Parks, 241 F.3d at 737-39. Injunctions are equitable remedies and must be shaped to fit the situation. There is no requirement that they be all or nothing propositions.
A limited permanent injunction will issue which will enjoin defendants from proceeding with any project at the Mt. Hood Meadows Ski Area that has a direct material effect on parking facilities or that materially increases the presently approved parking load. The Court will not enjoin the implementation of the entire Master Plan.