Opinion
No. 98-K-1766.
November 17, 2000
MEMORANDUM DECISION ON APPEAL
I. PROCEDURAL BACKGROUND.
Steven Hannon filed the present action against Forest Service Supervisor Peter Clark, the Forest Service, and the Clear Creek Skiing Corporation (CCSC), which owns and operates the Loveland Ski Area. He seeks review of the actions of the Forest Service under the Administrative Procedure Act (APA), 5 U.S.C. § 701-706, in approving the location and construction of a new ski lift (Lift #9) at Loveland. Specifically, Hannon claims the federal defendants improperly failed to supplement the Final Environmental Impact Statement (FEIS) and to mitigate potential adverse environmental effects of the ski lift, in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and its implementing regulations, 40 C.F.R. § 1500-1508. He contends that Lift #9 must be modified in order to comply with the Forest Service's Decision Memo (DM) which approved the location and construction of Lift #9. According to Hannon, compliance with the Decision Memo would require removal of the top four towers of the ski lift. Additionally, he seeks an order requiring the Forest Service to prepare a supplemental environmental impact statement (SEIS) for the remaining portion of the chair lift.
II. STANDARD AND SCOPE OF REVIEW OF AGENCY DECISIONS.
Judicial review of agency actions is governed by § 706 of the APA, which provides that a "reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of judicial review of agency action under the APA is set forth in the United States Supreme Court's seminal opinion in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed.2d 136 (1971) (discussed and applied in Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)). A review of agency action under the APA requires the court to engage in a "substantial inquiry." Overton Park, 401 U.S. at 415. "An agency's decision is entitled to a presumption of regularity, `but that presumption is not to shield [the agency's] action from a thorough, probing, in-depth review.'" Olenhouse, 42 F.3d at 1574 (quoting Overton Park, 401 U.S. at 415). "Formal agency action must be set aside not only for failing under any of the `generally applicable' standards, but also if the action is unsupported by `substantial evidence' in the hearing record." Olenhouse, 42 F.3d at 1574 (citing Overton Park, 401 U.S. at 415).
The administrative record in the instant case was submitted by the defendants and the plaintiff was allowed to supplement the record. The administrative record includes a number of documents, notes, memos, and maps pertaining to the Forest Service's analysis of the issues before the Decision Memo was issued. The record also includes some documents completed after the Forest Service made its decision regarding the construction of Lift #9. Further, the parties have submitted a number of additional exhibits which pertain to the issues, including photographs and affidavits.
III. FACTS.
Loveland Ski Area has been in operation on Forest Service land since 1937. (R. at 318.) The ski area is adjacent to Interstate 70, a major east-west highway that bisects the State of Colorado. Loveland also borders the Continental Divide which runs along the highest ridge line at the ski area. Interstate 70 is routed under the Continental Divide through the Eisenhower Tunnel. A narrow strip of land forming a land bridge lies above the tunnel along the Continental Divide. This land bridge serves as an important corridor for wildlife to cross the highway.
In June 1994, defendant CCSC submitted a proposed Master Development Plan (MDP) to the Forest Service seeking approval for new upgrades and expansion of existing facilities at the ski area. Id. One of the proposed changes included construction of a new ski lift. As originally designed, this ski lift was to be built from the top of an existing ski lift (Lift #2) up to the highest ridge line of the ski area, terminating approximately one mile south of the Eisenhower Tunnel and the narrowest part of the land bridge. (R. at 468.) The proposed ski lift was intended to be a surface lift which pulls skiers up the hill one at a time. As originally designed, this surface lift had a length of 1700 feet with a vertical rise of 700 feet. (R. at 320.)
Pursuant to federal laws and regulations, the Forest Service conducted an extensive review of the changes proposed by CCSC. After months of review and preparation of reports regarding the impacts of the changes on the environment and wildlife, including a Final Environmental Impact Statement (FEIS), the Forest Service issued a Record of Decision (ROD) that detailed its decisions regarding the MDP. (R. at 316-471.) The ROD approved the proposed ski lift in concept (R. at 320), with the stipulation that final approval would not be rendered until the Forest Service received and approved site-specific plans. (R. at 319, 324.) There had been extensive "public scoping" or hearings regarding the proposed changes, including the surface lift. But the ROD stipulated that the final "[c]onstruction and operation plans are not subject to formal public review, as long as they are consistent with actions disclosed in the FEIS and authorized in this ROD." (R. at 324.)
After the Forest Service completed its review of the MDP and issued the FEIS and ROD in June 1995, defendant CCSC began making some of the improvements to the ski area. As time went by, however, it became clear to CCSC employees that a surface lift would not meet the needs of a new and fast-growing group of customers — snow boarders. (Abrahamson Aff., Ex. A at 1.) Apparently, surface lifts are difficult for snowboarders to use. (R. at 2.) Thus, CCSC shifted its focus to a quad chair lift that could carry both skiers and snowboarders from the top of Lift #2 to the highest ridge line at the ski area. (Abrahamson Aff., Ex. A at 1.) For reasons never clearly spelled out in the Administrative Record, the briefs, or testimony during the TRO hearing, CCSC decided to relocate the top terminal for the newly designed ski lift one-half mile north of the original location; thus placing the terminus within one half mile of the Eisenhower Tunnel. (R. at 4.) This relocation was significant because the top of the ski lift would now be much closer to the narrowest point of the land bridge over the Eisenhower Tunnel used by wild life to cross over I-70. (R. at 257.) As designed, the new quad lift was 4,805 feet long with a vertical rise of 1,270 feet. (R. at 27 0.) This lift was much larger and longer than the surface lift approved in the FEIS.
Defendant CCSC contacted the Forest Service in late February 1998, indicating its intent to submit redesigned plans for Lift #9. (R. at 2-4.) When CCSC submitted its preliminary design for the lift to the Forest Service on April 15, 1998, it tried to bring the new lift within the terms of the FEIS by stating that the new design was "consistent with the intent of approved actions disclosed in the FEIS and authorized in the ROD." (R. at 637.) CCSC maintained that since "[a]ll related environmental concerns have been addressed, in detail, in the recently completed FEIS, . . . a separate Environmental Assessment [was not] necessary. . . ." Id. CCSC took this position regarding further NEPA analysis because it wanted to build the lift during the summer of 1998. (R. at 6.) Since the ski area is covered by snow much of the year, any construction must be completed during the summer months. (R. at 196.) CCSC was also anxious to begin construction that summer because it had already contracted to buy major parts of the lift. (Test. of K. Abrahamson, Trans. TRO Hearing at 78-79.) If the Forest Service decided it needed to conduct a new environmental assessment and/or supplement the FEIS, it was not very likely that the lift would be approved in time for construction to be completed that summer. (See R. at 32.)
The Administrative Record reveals that the Forest Service did not agree with CCSC that no further environmental analysis would be needed. Rather, from the outset, Forest Service employees recognized there were issues that needed to be considered, including possible impacts on the wolverine and lynx (R. at 2, 5, 6, 10). The record demonstrates that, initially, the Forest Service was not sure what process would be required under NEPA. Notes and memos in the Administrative Record indicate that Forest Service employees discussed a wide variety of possible actions, including amending the MDP (R. at 5, 6), preparing a new Biological Evaluation (BE) and Biological Assessment (BA) (R. at 70), amending the BE previously prepared (R. at 6), completing a new BE with some level of environmental analysis — either a categorical exclusion or an environmental analysis (R. at 32), completing an environmental analysis (EA) (R. at 76), or supplementing the original BA and BE (R. at 103).
ABA is used to review, analyze and document the direct, indirect and cumulative effects of proposed actions upon species of wildlife listed as threatened or endangered under the Endangered Species Act. The Forest Service completed a BA in May 1995 for the proposed changes at the Loveland Ski Area. (R. at 410-417.) The original BA studied the effects of the changes on several species of wildlife. ABE accomplishes the same goals as a BA for "Forest Service sensitive species." The Forest Service also completed a BE for several species of wildlife, including the lynx and the wolverine, in connection with its study of the environmental impacts of the proposed changes at the Loveland Ski Area in May 1995. (R. at 419-445.)
The need for, as well as the timing of, completion of any kind of analysis became issues of contention between the Forest Service and CCSC beginning in early April 1998. (See R. at 32.) When Forest Service employees told CCSC employees on April 6, 1998, that it was possible the NEPA revie ws would not be completed in time for the construction of Lift #9 that summer (id.), CCSC and its counsel repeatedly tried to convince the Forest Service that there were no new issues that required analysis. For instance, as discussed above, when the preliminary design documents were submitted to the Forest Service on April 15, 1998, CCSC stated in its proposal that no further analysis was needed. (R. at 637.) Additionally, according to notes of a meeting held the next day, on April 16, 1998, between Forest Service officials and CCSC representatives, CCSC's counsel argued that construction and operation plans were not subject to further NEPA review. (R. at 64.) When the possible need for a new Biological Evaluation (BE) came up in the conversation, CCSC's counsel stated he "did not anticipate that another BE would be needed." Id. CCSC's counsel contended it would be "[e]asy for FS (the Forest Service) to analyze [the changes to the plan], say [the changes were] consistent [with the FEIS], [that they were] not material changes, and get on with it." Id. The Forest Service declined to adopt this reasoning. According to a memo prepared by Forest Service Biologist Dennis Lowry on April 29, 1998, the Forest Service decided, instead, to prepare a BA for the lynx and a supplemental BE for the wolverine. (R. at 107.) At the same time, the Forest Service conducted an "internal scoping process" to determine if there were other environmental issues that needed to be addressed. (R. at 104, 107.) Although the primary focus of the Forest Service was on the impact to wildlife and the land bridge, the Forest Service considered impacts on water issues (R. at 105, 196), trees (R. at 115, 196), cultural resources (R. at 194-195), and rare plants (R. at 197-212). Additionally, the Forest Service consulted with other agencies including U.S. Department of Interior — Fish and Wildlife Service (R. at 190, 213) and the Colorado Division of Wildlife (R. at 188) regarding the land bridge and wildlife issues.
In mid-July 1998, Forest Service and CCSC representatives, including Forest Service Biologist Lowry, visited the proposed site of the new chair lift to discuss possible mitigation measures. (R. at 196.) Notes pertaining to this site visit indicate it was determined that the top terminal of Lift #9 would not be visible from the west side of the Continental Divide. Id. Other issues were ad dressed during the site visit, including possible impacts to wetlands, the procedures to be used during construction to avoid creating new roads, and the removal of trees for the new ski lift. Id.
On July 20, 1998, Lowry issued the BA for the lynx. (R. at 214-236.) The BE for the wolverine was issued on July 28, 1998. (R. 257-269.) Since the FEIS had been completed in 1995, a few things had changed that caused the Forest Service to have additional concerns regarding the lynx and wolverine. First, the Fish and Wildlife Service proposed listing the lynx as an endangered species in the summer of 1998. (R. at 214.) Additionally, the U.S. Department of Transportation issued a report in 1996 recognizing adverse highway impacts to terrestrial species such as the lynx and the wolverine and, thus, there was a greater focus on the importance of the land bridge over I-70 to these species. (R. at 214, 228.) Further, the Forest Service had increased concerns for the viability of both the lynx and the wolverine. Id.
After analyzing these factors, and taking into account the fact that the top of the proposed chair lift would be terminating much closer to then narrowest part of the land bridge, Lowry determined in the BA that without mitigation beyond what was originally proposed in the FEIS, the new chair lift "may affect, and is likely to jeopardize continued existence of the lynx" due to infringement on its habitat and travel corridor interruption on the land bridge. (R. at 220.) Lowry recommended the following measures be taken in order to mitigate the impact of the ski lift on the lynx population: 1) "Prohibit access to the west slope" by erecting rope closures and operating a ski patrol shack for monitoring and enforcement, ) "Locate the new chair lift and boundary markers so that structures, people, and their movements are not visible from the west side of the land bridge (as viewed by a person at 12,500 elevation on the west slope of the CD [Continental Divide] above Straight Creek)," 3) "Prohibit night-time (dusk to daylight) activity through out [sic] the year between the CD and the tops of lifts 2, 4, 6, and 8, except for emergency operations," and 4) "Use ski lifts only during the winter sports snow season." (R. at 220-221.) Lowry determined that if these mitigation measures were fully implemented and enforced, the proposed new chair lift "may affect, but is not likely to jeopardize continued existence of the lynx." (R. at 221.)
The mitigation measure in the 1995 FEIS required posting of the permit boundary with signs. (See R. at 271.) The original BE indicated that any increased human disturbance caused by siting the top of the surface lift approximately one mile south of the Eisenhower tunnel would "likely result in animals using the corridor to be displaced to the western side." (R. at 427.) The mitigation measure originally selected in the FEIS — merely posting the boundaries — clearly had to do with the fact that the original surface lift terminated much farther away from the "narrowest point of the travel corridor."
On July 27, 1998, before he issued the BE for the wolverine, Lowry made another site visit to review the lift location with Colorado Division of Wildlife Biologist Gene Byrne. They agreed to the location of the ski lift but modified the location of the rope closure which would keep skiers off the top of the ridge and the west side of the Divide. (See R. at 313-14, 272.) This site visit was important to the extent that Gene Byrne changed his mind about where the top terminal should be located. When Byrne originally reviewed drafts of the BA and the BE, he did not agree with the proposed location of the top terminal. In a letter to Lowry, he wrote:
I don't feel that locating the lift structure so that it is not visible from the west side of the land bridge as viewed by a person 20 feet below the elevation of the CD [Continental Divide], on the west slope, is sufficient to mitigate the impact of the lift and as sociated activity. Since many animals like to travel in the areas of least resistance (tops of ridges, riparian corridors, established game trails, etc.), I would suggest that the ridge top be given more consideration and the buffer zone be more clearly defined. I would suggest that a buffer zone be established along the top of the whole ski area and well marked with signs, posts and ropes, etc. The buffer zone should be a minimum of 200 yards. This should mask all the lift towers on the west side of the CD, provide a buffer zone for animals that might travel right on top of the CD ridge and will more adequately reduce the effects of noise on the west side of the CD.
(R. at 238.) Byrne acknowledged in a subsequent letter several weeks later that he agreed to the location of the top terminal as staked out on the ground during the site visit, even though he thought it would be better to create the buffer zone and relocate the top terminal lower on the slope. (R. at 313.) Byrne recounted the discussion he had with Lowry during the site visit and their decision to keep the top terminal in its proposed site. Id. Byrne indicated that he agreed with the location of the top terminal only after they worked out a system for the rope closures which would prevent skiers from going onto the west side of the Divide. Id.
In the BE, which was completed and issued on July 28, 1998, Lowry made similar findings and recommendations as in the BA for the lynx. (R. at 232-35.) With respect to the mitigation measures, Lowry determined that if they were fully implemented and enforced, the new chair lift "may adversely impact individuals, but is not likely to result in a loss of viability [of the wolverine] on the Planning Area, nor cause a trend to federal listing or a loss of species viability rangewide." (R. at 235.) Lowry included the additional mitigation measures (a rope closure which would keep skiers from the top of the Divide and an occupied ski patrol shack for monitoring and enforcement) in the final version of the BE for the wolverine. The wording of the second mitigation measure was also changed from the BA to the BE. In the BA, the mitigation measure required that the lift be located so that "structures, people, and their movements are not visible from the west side of the land bridge (as viewed by a person at the 12,500 elevation on the west slope of the CD above Straight Creek)." (R. at 220-221.) In the BE, the reference to the 12,500 foot elevation was deleted. The second mitigation measure in the BE stipulated that the lift be located so that "structures, people, and their movements are not visible from the top of the CD or west side of the land bridge above Straight Creek." (R. at 263.)
On July 29, 1998, Forest Service Supervisor Peter Clark issued the Decision Memo (DM) pertaining to Lift #9. (R. at 270-274.) The DM states that the ski lift was originally "approved, in concept, in the Environmental Impact Statement (EIS) for the Loveland Ski Areas Revised Master Development Plan (MDP), approved in June, 1995." (R. at 270.) Clark approved CCSC's installation of the new chair lift subject to the same mitigation measures delineated in the BE. Id. There is no discussion in the DM about whether any of the new circumstances or information pertaining to Lift #9 were "significant" for purposes of NEPA. Nor is there any discussion in the DM regarding whether any of the changes in the proposed action were "substantial."
As discussed above, the wording of the second mitigation measure varies from document to document. This variance has caused much of the controversy in this case.
The second mitigation measure in the DM states as follows:
Locate the new chair lift so that structures, people and their movements are not visible from the top of the Continental Divide or west side of the land bridge above Straight Creek. From the top of the new chair lift, locate the rope closure to point A as indicated in Figure 2. That is, the rope boundary will be located to the east of the Continental Divide, continually dropping in elevation from the lift terminus to a point just east of the saddle benchmarked 12,517 feet, before climbing to point A. On-the-ground location will involve a Forest Service Biologist.
(R. at 271.) With respect to this mitigation measure, the DM notes that the intent "is to retain a sight and sound barrier to the top of the Continental Divide and the western side of the land bridge (in the narrowest, most untrammeled portion) from human activities within the ski area." Id. The Forest Service Supervisor indicated in the DM that if CCSC failed fully to implement any of the mitigation measures, the Forest Service could shut down Lift #9. (R. at 272.) Additionally, he stated that if any of the mitigation measures failed to achieve their intended purpose and function, the mitigation measures would be reviewed and new mitigation measures would be identified. Id.
Construction of the new ski lift began the day after the DM was issued. (Abrahamson Aff., Ex. A at 3.) Steve Hannon, who had been involved in the public scoping pertaining to the original surface lift in 1994-95, but knew nothing of the new ski lift since the Forest Service only performed an "internal scoping" regarding Lift #9, came upon the construction on August 9, 1998, during a hike. (Pl.'s First Am. Compl. at 5.) Many aspects of the construction of Lift #9 appeared to Hannon to be improper and involve negative impacts to the environment. For example, Hannon has offered evidence that old growth trees were cut down to make room for the towers of the new lift. (See Miller Aff., Pl.'s Ex. JJ-77; T.R.O. Ex. E.) Also, some of the towers for the lift were built in a willow bog and adjacent to small streams which Hannon claims amounted to improper construction in a wetland area. (See Pl.'s Ex. JJ-11, JJ-12, JJ-52; T.R.O. Ex. L-R.) Further, when the pits were dug for the towers, inadequate measures were taken to contain the soil. Soil spilled into the adjacent creek. There were also some problems with erosion. (See T.R.O. Ex. L, M, N; Pl.'s Ex. JJ-8 through JJ-11; R. at 287, 310.) Additionally, Hannon claims that construction workers improperly drove ATVs across the tundra near the upper terminal of the lift, creating ruts which he characterizes as a "new road." (See Pl.'s Ex. JJ-26 through JJ-35; T.R.O. Ex. S, Y, AA, BB.) Finally, Hannon contends that the top terminal of the lift can be seen and heard by wildlife at the top of the divide, which will adversely affect the wildlife using the land bridge to cross I-70. (See Pl.'s Ex. JJ-14 through JJ-22.)
Hannon complained to the Forest Service about these issues on August 13, 1998. (See R. at 115.) Forest Service employees visited the construction site on August 17, 1998, in and adjacent to the towers but did not find that any of the towers were built in wetlands. (See R. at 284-309, 311.) The report filed by ERO Resources noted the soil spillage in the surrounding wetland areas. (R. at 287.) The Forest Service was notified, on August 17, 1998, that ERO Resources " [c]onfirmed that [the tower] locations are outside jurisdictional wetlands. . . ." (R. at 115.) Defendant CCSC also assured the Forest Service that the soil spills would "be cleaned up and monitored better." Id. On August 19, 1998, as a follow-up to the ERO Resources Wetlands Report, a representative from the U.S. Army Corps of Engineers visited the construction site at the request of defendant CCSC to check on the soil spillage. (R. at 310.) The Corps analyzed the wetlands delineation report prepared by ERO Resources and indicated in a letter to defendant CCSC that it considered the report "accurate and accepted by this office." Id. The letter noted that there was soil spillage around the tower footings. Id. It indicated, however, that there was noviolation of Section 404 of the Clean Water Act since the spillage was "minor in nature and non-flagrant" and CCSC had assured the Corps the spillage would be removed from the wetlands. Id. Hannon brought the instant action on August 17, 1998, seeking a halt to the construction. (R. at 273.) After his motion for a temporary restraining order was denied, he filed an amended complaint seeking an order requiring removal of the top four towers of Lift #9 and completion of a SEIS for the rest of the lift.
On December 9, 1998, Forest Service Biologist Dennis Lowry revisited Lift #9. He determined that the lift "had been built and located in accordance with the terms of the Decision Memo and [his] earlier direction and intent." (See Lowry Decl. ¶ 3.) He stated in his declaration that "the top terminal location maintains a sufficient sight and sound barrier to permit continued wildlife use of the land bridge." Id. Lowry inspected the lift again on March 17, 1999, and concluded that "Clear Creek [Skiing Corporation] had met the terms of the Decision Memo by effectively implementing a rope closure that prevented access to the west side of the ridge above the Eisenhower Tunnel." Id. During the subsequent ski season, CCSC successfully prohibited access to the west slope through strict enforcement of the rope closures. (SIR at 6.)
Several months later, on September 10, 1999, the Forest Service reviewed new information pertaining to Lift #9 to determine whether any of the new information was "significant" and whether there were any substantial changes relevant to environmental concerns. (SIR at 8.) The Forest Service issued a "Supplemental Information Report" detailing the analysis of the effectiveness of mitigation measures as well as new information pertaining to Lift #9. Id. The SIR was completed and issued on September 19, 1999 — nearly a year after the construction of Lift #9 was finished. The stated purpose of the SIR was to readdress the issue of whether the FEIS needed to be supplemented based on a new analysis of the "project as constructed and relevant new information and changed circumstances since the July 29, 1998 final construction approval decision memo. . . ." (SIR at 1.) The SIR states explicitly that "[t]he interdisciplinary review, . . . [conducted before the DM was issued], confirmed that a supplement to the 1995 EIS was not necessary because the construction and operation of Lift 9 did not represent a substantial change relevant to environmental concerns with respect to those as sociated with the approved surface lift." (SIR at 8.) The SIR also determined that "the new circumstances and information [studied by the interdisciplinary team were] not . . . significant with regard to environmental concerns and bearing on the impacts of Lift 9." Id.
IV. LEGAL ISSUES. A. Scope of the Review of the Administrative Record.
The scope of the materials I should consider in ruling on Hannon's claims is at issue in this case. Ordinarily, when reviewing an agency action under the APA, I must limit my review to those materials considered by the agency in making its decision as well as the decision itself. See American Mining Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985)("[T]he agency's action must be reviewed on the basis articulated by the agency and on the evidence and proceedings before the agency at the time it acted."). In the instant case, that would include the Decision Memo and all of the materials considered by the Forest Service before July 29, 1998, when the Decision Memo was issued. But there is a need to supplement the record in this case with documents that were part of the record but omitted by the parties. Additionally, for reasons discussed below, other documents and materials generated after the Decision Memo was issued must also be considered in rendering my decision.
1. Supplementing the Administrative Record with Omitted Documents
While reviewing the issues in this case, I determined it was necessary to review two documents concerning wetlands and old growth forests which were referred to in the 1995 FEIS. These documents were obviously considered by the Forest Service at some point in its review of the environmental effects of the changes at the ski area but were not included in the administrative record. The documents were submitted by the federal defendants after a minute order was issued requiring their production.
Under the applicable case law, all materials considered by the agency, directly or indirectly, including documents omitted from the record, are reviewable by the court. Where documents have been omitted, the court may supplement the record by including them. Citizens for Environmental Quality v. U.S., 731 F. Supp. 970, 982 (D. Colo. 1989)("[R]eview of the agency decision is upon the whole record, and therefore the court may supplement the record submitted by the agency with matters which were omitted therefrom, but which were considered, either directly or indirectly, by the agency in rendering its decision.") (citing Overton Park, 401 U.S. at 420); see also Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir. 1990). Thus, as I previously indicated in the minute order requiring their production, the wetlands and old growth documents submitted by the defendants have been made a part of the administrative record in this case.
2. Hannon's Motion to Strike the Supplemental Information Report
Hannon has moved to strike the Supplemental Information Report (SIR) filed by the defendants as an exhibit to their response to his claims for relief. The SIR is not part of the administrative record because it was completed nearly a year after Lift #9 was constructed. Hannon does not want me to consider the SIR in arriving at my decision. He maintains the SIR should be stricken because it violates Forest Service regulations and "is nothing more than an argumentative post hoc rationalization." (Pl.'s Mot. to Strike at 1-3.) In order to analyze this issue, some background discussion is necessary.
As discussed above, the Forest Service rendered its decision regarding the new chair lift in a Decision Memo on July 29, 1998. The Decision Memo is descriptive, rather than explanatory, in nature. (See R. at 270-274.) It authorizes construction of Lift #9, noting that the project was previously approved, in concept, in the FEIS, in June 1995. (DM at 1, R. at 270.) It goes on to describe "modifications to the lift proposal (type of lift, length and location) and the need to supplement the biological analysis that was completed for the 1995 EIS." Id. The Decision Memo does not explicitly state whether the Forest Service analyzed any of the changes or new information pertaining to Lift #9 in terms of determining the significance or insignificance of any impacts on the environment. This failure by the Forest Service opened the door to many of the Hannon's complaints. The defendants have tried to close that door with the SIR.
a. Whether the SIR violates federal regulations.
Hannon's first attack on the SIR rests on a complicated interpretation of the Forest Service regulations. He claims there is no regulatory basis for the SIR or the DM in this case. In his initial brief, he claims it was improper for the Forest Service to use a Decision Memo to approve the lift because he interprets Forest Service regulations as authorizing Decision Memos only in connection with a Categorical Exclusion (CE). A "Decision Memo" is defined in the Forest Service's Environmental Policy and Procedures Handbook ("Environmental Handbook") as "[a] concise written record of the responsible official's decision to implement an action that has been categorically excluded from documentation in an environmental impact statement or environmental assessment." 57 Fed. Reg. 43,189, FSH 1909.15, § 0-05. A "Categorical Exclusion" is defined as "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect . . . and for which, therefore, neither an environmental assessment nor an environmental impact statement are required." 57 Fed. Reg. 43,188, FSH 1909.15, § 0-05; see also 40 C.F.R. § 1508.4. The actions or categories of actions subject to a Categorical Exclusion are specifically listed in the regulations and do not include any of the circumstances of the instant case. See 57 Fed. Reg. 43,207-43,210, FSH 1909.15, Chapter 31 et seq. Hannon reasons that because the Forest Service chose to use a Decision Memo, it must also have chosen the Categorical Exclusion route for dealing with the potential environmental impacts in this case, which would be improper as none of the circumstances of this case fit any of the defined categories for a Categorical Exclusion.
Hannon claims that if the federal defendants did not invoke a Categorical Exclusion in this case, then the Forest Service regulations do "not provide any authority for a SIR." (Pl.'s Mot. to Strike at 2.) He states, without citing any authority, that SIRs can only be issued where there is new information (1) of projects that have not been completed, (2) supplementing an EIS, (3) supplementing an Environmental Assessment, and (4) reconsideration of actions categorically excluded. Id. According to Hannon, none of these categories fit the circumstances under which the SIR was issued in this case. Thus, he argues, the Forest Service violated its own regulations in issuing the SIR and it must be stricken. Id. The Forest Service responds by stating that it was acting in accordance with well-established Forest Service policy by issuing a Decision Memo which ensured consistency with the ROD. (Defs. § Joint Resp. Pl.'s Cl. for Relief at 11, n. 7.) Unfortunately, the defendants fail to explain this "well-established policy." They merely restate the Forest Service regulation that if, "after an interdisciplinary review and consideration of new information . . ., the responsible official determines that a . . . supplement . . . is not necessary, implementation should continue and the results of the review `document[ed]' in the `project file.' 57 Fed. Reg. 43,180, 43,199 (1992)." Id. There is nothing in the regulations that indicates how the results of a review resulting in a determination that supplementation of a FEIS is not necessary should be documented. There is also nothing pertaining to Decision Memos in the regulations that specifically restrict their use to matters involving Categorical Exclusions. In the absence of an explicit prohibition against the use of Decision Memos in other circumstances, it is not reasonable to conclude that the use of a Decision Memo in the in stant case was erroneous.
There is also nothing in the Environmental Handbook, or any other Forest Service regulations or policies, pertaining to Supplemental Information Reports. It is clear that the Forest Service regularly uses SIRs and other courts have accepted them as useful documents in other cases. For example, in Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997), the Forest Service prepared a 26-page SIR and submitted it to the plaintiffs in connection with the ongoing litigation. The plaintiffs actually used the SIR to support their position in the case and the Tenth Circuit relied on the SIR in finding that the Forest Service did not act arbitrarily or capriciously. Friends of the Bow, 124 F.3d at 1219. Additionally, in Friends of the Bitterroot, Inc. v. U.S. Forest Service, 900 F. Supp. 1368, 1372 (D.Mont. 1995), the court considered a SIR prepared by the Forest Service in denying the plaintiffs' motion for summary judgment.
The Army Corps of Engineers has promulgated regulations which explicitly state that SIRs can be prepared and filed when a decision has been made not to supplement an EIS. See 33 C.F.R. § 230.11(d)(1987).
I cannot conclude that the defendants have violated any Forest Service regulations or policies in their use of a Decision Memo or issuance of a SIR in this case. The Forest Service regulations require a decision not to supplement an EIS be documented in the file but the regulations do not specify how this should be done. The Forest Service regulations also do not explain when or how supplemental information should be documented. The Forest Service cannot be said to have violated regulations which give no specific guidance. Further, an administrative agency can implement a reasonable method for documenting decisions and supplementing information in the absence of specific regulations.
b. Whether the SIR amounts to a post hoc rationalization.
Hannon also claims the SIR should be stricken because it "is nothing more than an argumentative post hoc rationalization." (Pl.'s Mot. to Strike at 1-3.) The federal defendants note that a SIR is, by definition, a "post hoc" document. They contend that the Forest Service has an ongoing duty to analyze new information and changed circumstances regarding any projects approved by the Forest Service and that the SIR was prepared in response to Hannon's claims of impropriety during construction of the lift which the Forest Service was obligated to evaluate on its own.
An examination of the SIR reveals some bona fide reasons for its creation. New information came to light after the Decision Memo was issued and during the construction of Lift #9. Hannon's own complaints about how the lift was being constructed led the Forest Service to investigate some issues and analyze their impact on the environment. For example, Hannon claimed that the lift terminals were being built in wetlands and that soil spillage from the construction was contaminating Clear Creek. The SIR summarizes and explains the Forest Service's subsequent analysis of these claims. Additionally, the SIR examines the effectiveness of the mitigation measures set forth in the Decision Memo. The Forest Service clearly has an ongoing duty to ensure the effectiveness of these measures and the SIR documents this effort. Although there is considerable background information set forth in the SIR, as well as explicit statements underlying the decision not to supplement the FEIS, that were missing in the Decision Memo, I cannot say that the SIR contains illicit post hoc rationalizations. I am convinced that the SIR contains an analysis of pertinent, new information that is actually needed in this case in order to evaluate properly the plaintiff's claims. I am also convinced the SIR makes explicit the Forest Service's reasoning at the time the DM was issued but which the Forest Service failed to include in the DM.
I have the power to strike the SIR as not being properly a part of the administrative record. See Idaho Conservation League v. Thomas, 91 F.3d 1345, 1350 (10th Cir. 1996); see also Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S. Ct. 579, 582, 46 L.Ed.2d 533 (1976). I believe, however, I must consider parts of the SIR in this case in order to make a reasoned decision on the issues. When necessary, supplementary materials and evidence can be considered in a review of agency action under the APA. In a case involving a similar issue, I found that, under certain circumstances, it is appropriate to consider additional materials:
Defendants in this action have objected to my admitting into evidence exhibits which they claim are outside the two administrative records. [Footnote omitted.] I agree that `the focal point for judicial review should be the administrative record already in existence, [and] not some new record made initially in the reviewing court.' [Citations omitted.]
* * *
However, it is also clear that in reviewing administrative decisions I may consider supplemental evidence, i.e., testimony or exhibits, for explanatory purposes — `such additional explanation of the reasons for the agency decision as may prove necessary.' [Citations omitted.] While I am aware the additional explanatory material cannot constitute post hoc rationalizations, [citing Overton Park, 401 U.S. at 419], and I should uphold agency action on the basis of reasons supplied by the Forest Service and not the court, [citations omitted], I may uphold a decision of `less than ideal clarity if the agency's path may reasonably be discerned. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. at 285-286, 95 S. Ct. at 441-442.
City County of Denver v. Bergland, 517 F. Supp. 155, 181 (D. Colo. 1981), aff'd in part and rev'd on other grounds in part, 695 F.2d 465 (10th Cir. 1982).
In the instant case, the Forest Service's decision regarding the approval of Lift #9 was initially one of "less than ideal clarity" but "the agency's path" can "reasonably be discerned" by considering evidence submitted by the parties, including the SIR, which goes beyond a narrow review of the administrative record. "So long as the new material is explanatory of the decisionmakers' action at the time it occurred . . . and does not contain post-hoc rationalizations for the agency's decision . . ., the new material may be considered." Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 209 (1st Cir. 1999) (citation omitted). Hannon's motion to strike the SIR is denied. I will consider the SIR in the instant case.
B. Whether the federal defendants violated NEPA in approving Lift #9 by failing to supplement the FEIS.
The first issue raised by Hannon in this case involves a review of the process the Forest Service chose to use with respect to its approval of the new chair lift. Specifically, Hannon contends the Forest Service violated NEPA and its implementing regulations by not supplementing the 1995 FEIS. He argues that under NEPA, the significant changes in the proposed ski lift, as well as the substantial new information pertaining to the wildlife issues, required the Forest Service to prepare a Supplemental Environmental Impact Statement (SEIS) before it could approve the new ski lift.
The National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and its implementing regulations, 40 C.F.R. § 1500-1508, direct all federal agencies to comply with certain procedures before taking any action or making any decision that could "significantly affect the quality of the human environment." Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999). The purpose behind this requirement is to ensure that the agencies will "take a `hard look' at the environmental consequences of proposed actions utilizing public comment and the best available scientific information." Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir. 1992); 40 C.F.R. § 1500.1). While NEPA specifies the necessary process, it clearly "does not mandate particular results." Holy Cross, 960 F.2d at 1522 (quotation marks and citation omitted). In other words, "the Act `prohibits uninformed — rather than unwise — agency action.'" Colorado Environmental Coalition, 185 F.3d at 1172 (quoting Robertson, 490 U.S. 332 (1989)). It is not for the court to second-guess the wisdom of the agency's decisions. Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1240 (10th Cir. 2000).
When reviewing an agency decision or action under the Administrative Procedure Act (APA), 5 U.S.C. § 706, I must determine whether the agency: "(1) acted within the scope of [its] authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion." Wyoming Farm Bureau Federation, 199 F.3d at 1231 (citing Olenhouse, 42 F.3d at 1574 (10th Cir. 1994)). In the instant case, Hannon contends the federal defendants failed to comply with the prescribed procedures in dealing with the newly proposed ski lift by not supplementing the FEIS. He further contends the Forest Service's actions were arbitrary and capricious by failing to supplement the FEIS and by approving the location of the lift since it is visible from the top of the Continental Divide. (See Pl.'s First Am. Compl. at 31.)
NEPA itself does not explicitly state when environmental impact statements must be supplemented. Rather, the implementing regulations promulgated by the Council on Environmental Quality (CEQ) specify the procedure to be followed in determining when to supplement an Environmental Impact State ment. See 40 C.F.R. § 1502.9. Under these regulations, agencies must prepare supplements to a FEIS if "(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(i)-(ii).
The Forest Service has also promulgated procedural guidelines for implementing NEPA and CEQ regulations. Chapter 10 of the Forest Service Environmental Policy and Procedures Handbook sets forth guidelines regarding environmental analysis. Section 18 of that chapter specifies the circumstances under which the Forest Service must supplement an FEIS:
18.1 — Review and Documentation of New Information Received After a Decision Has Been Made. If new information or changed circumstances relating to the environmental impacts of a proposed action come to the attention of the responsible official after a decision has been made and prior to completion of the approved program or project, the responsible official must review the information carefully to determine its importance.
If, after an interdisciplinary review and consideration of new information within the context of the overall program or project, the responsible official determines that a correction, supplement, or revision to an environmental document is not necessary, implementation should continue. Document the results of the interdisciplinary review in the appropriate program or project file.
If the responsible official determines that a correction, supplement, or revision to an environmental document is necessary, follow the relevant direction in section 18.2-4.
18.2 — Reconsideration of Decisions Based on an Environmental Impact Statement.
1. Correction. Use errata sheets to make simple corrections.
2. Supplement.
(C) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact statements if:
(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.57 Fed. Reg. 43,180, 43,199. Under the applicable case law, an agency need not supplement an EIS "every time new information comes to light after the EIS is finalized." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372 (1989); see also Colorado Environmental Coalition, 185 F.3d at 1177. Rather, "the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains `major Federal actio[n]' to occur, and if the new information is sufficient to show that the remaining action will `affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared. Cf. 42 U.S.C. § 4332(2)(C)." Marsh, 490 U.S. at 374 (footnote omitted); see also Colorado Environmental Coalition, 185 F.3d at 1177-78. Stated differently, "the new circumstance[s] must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned." Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987) (citing Wisconsin v. Weinberger, 745 F.2d 412, 421 (7th Cir. 1984)).
Hannon claims the redesign and relocation of Lift #9 caused significant new impacts on wildlife, old growth trees, wetlands, and roadless areas and, thus, the Forest Service should have supplemented the FEIS. He also contends the following "new information" required supplementation of the FEIS: 1) the increased concerns for the lynx and the wolverine, particularly the relocation of the lift so much closer to the narrowest part of the land bridge; 2) the decision to relocate the Continental Divide National Scenic Trail (CDNST) away from the land bridge; 3) the proximity of the Porcupine/Tenderfoot Research Natural Area (RNA); and 4) the issuance of a report in 1996 recognizing adverse highway impacts to terrestrial species such as the lynx and the wolverine. (Pl.'s Mem. in Supp. Cl. for Relief at 33-44.)
1. Whether the FEIS should have been supplemented due to substantial changes and significant new information impacting wildlife.
In the 1995 FEIS, impacts of the proposed changes to the Loveland Ski Area on many species of wild life were fully analyzed by the Forest Service. (See R. at 316-471.) Once the plans for the lift were changed in 1998, the Forest Service reviewed the wildlife issue once again in the new BA for the lynx (R. at 214-36) and BE for the wolverine (R. at 257-269). These reports take in to account all aspects of the new chair lift — the changes in the length and type of lift and, particularly, the relocation of the top tower so near to the narrowest point of the land bridge. (R. at 214, 257.) The BA and the BE also take into consideration new information such as the 1996 report on adverse highway impacts to terrestrial species, a heightened awareness of the importance of the land bridge to terrestrial species, concerns for the viability of the wolverine and the lynx, and the possibility that the lynx would soon be listed as an Endangered Species. (R. at 214, 257.) Forest Service Biologist Dennis Lowry examined the effects of the proposed changes to the lift and the new information bearing on the wildlife issue. After reviewing all of the changes and new information, as well as consulting with the Fish and Wildlife Service and the Colorado Division of Wildlife, Lowry concluded that Lift #9 may have an impact on the wildlife if the prescribed mitigation measures were fully implemented. (R. at 221, 263.) Lowry did not, how ever, indicate whether any such impact would be "significant." Id. Forest Service Supervisor Clark also did not explicitly state in the Decision Memo whether there would be any "significant" impacts to the wildlife due to the construction of Lift #9. Nor did he state whether any of the proposed changes were "substantial" or any of the new information pertaining to Lift #9 "significant." (R. at 270-274.) He obviously relied on the Forest Service regulations which merely require documentation of a decision not to supplement a FEIS to the file, without any explanation of the decision. See 57 Fed. Reg. 43,180, 43,199.
It is not clear why the analyses included only these two animals and not the other animals that use the land bridge.
The plaintiff also contends that the creation of the Porcupine/Tenderfoot Research Natural Area (RNA), which is located west of the ski area, and the decision to locate the Continental Divide National Scenic Trail (CDNST) well away from the Divide and the land bridge constituted "significant new information" which should have caused the Forest Service to supplement the FEIS for the new ski lift. (See Pl.'s Mem. Supp. Cl. at 39-44.) The mitigation measures intended to keep skiers off of the land bridge and out of the proposed RNA effectively diminished any significance of this "new information." The CDNST was apparently re-routed to keep summertime hikers off of the land bridge. Keeping people from interfering with wildlife on the land bridge was not as much of a concern with a wintertime ski lift that had strictly enforced measures geared toward keeping humans off of the land bridge. The Administrative Record is replete with references to the CDNST decision. (See R. at 2, 7, 64-65, 70, 104, 108.) The Forest Service also took any potential impact to the proposed RNA into consideration. (See R. at 108, 121, 122, 142, 147.) It is clear that the Forest Service considered the underlying concerns related to both the proposed RNA and the relocation of the CDNST.
In the BA, Lowry states that "[w]ith these additional conditions [the mitigation measures], it is estimated that the proposed new chair lift may affect, but is not likely to jeopardize continued existence of the lynx." (BA at 7, R. at 221.) In the BE, Lowry found that "[w]ith these additional conditions [the mitigation measures], it is estimated that the proposed new chair lift may adversely impact individuals, but is not likely to result in a loss of viability on the Planning Area, nor cause a trend to federal listing [of the wolverine] or a loss of species viability rangewide." (BE at 6, R. at 263.)
Also, there is no explanation in the DM of any analysis of other impacts to the environment and whether any such impacts were determined to be significant. For instance, with respect to trees, the DM states the approximate number of trees that will be cut, their location, and how they will be sold under a special use permit. But there is no statement of consideration whether the trees are "old growth" trees or whether any impact would be "significant." (DM at 1, R. at 270.)
A much more detailed explanation of the Forest Service's decision to approve Lift #9 is included in the Supplemental Information Report (SIR) that was submitted as a n exhibit by the defendants. (Defs. § Joint Resp. Pl.'s Cl. for Relief, Ex. C.) The SIR answers the question of what the Forest Service had decided with respect to the significance or insignificance of the changes and the new information pertaining to Lift #9. The SIR also sets forth the Forest Service's decision not to supplement the FEIS. The SIR states explicitly that "[t]he interdisciplinary review . . . [conducted before the DM was issued], confirmed that a supplement to the 1995 EIS was not necessary because the construction and operation of Lift 9 did not represent a substantial change relevant to environmental concerns with respect to those associated with the approved surface lift." (SIR at p. 8.)
As discussed above, the plaintiff calls this a "post hoc rationalization." I am persuaded, however, that it is an explicit statement of the Forest Service's decision and reasoning at the time.
This statement does not end the inquiry, however. The essential question is whether the new circumstances presented a different picture of the environmental impact of Lift #9 from what was previously expected with the surface lift. Assuming the new mitigation measures were fully implemented and enforced, there would purportedly be no change in the conclusions drawn by Forest Service Biologist Lowry regarding the wildlife issue between his 1998 analysis and the analysis he completed for the FEIS in 1995. Mitigation measures designed to reduce the environmental consequences of an action "may be considered in an agency's decision not to prepare an EIS." 1000 Friends of Oregon v. U.S. Forest Service, Nos. 92-35550, 92-36819, 1993 U.S. App. LEX IS 247-4, at *7 (9th Cir. September 23, 1993); see also Friends of the Earth v. Hintz, 800 F.2d 822, 838 (9th Cir. 1986). This should apply equally to a decision not to prepare a supplemental EIS since the test for whether to prepare a supplement is the same as whether to prepare an EIS in the first place. See Marsh, 490 U.S. at 374. With respect to the second mitigation measure, Lowry makes it clear in his declaration that the top terminal was "built and located in accordance with the terms of the Decision Memo and [his] earlier direction and intent [in the BA and BE]." (Lowry Decl. ¶ 3.) He states explicitly that the top terminal of the lift "was constructed east of and below Peak 12701, which thereby shields it from the 12,500 elevation point west of the lift on the other side of the ridge above Straight Creek." Id. Lowry acknowledges that the top terminal is visible from other locations above the ski area, but points out that other existing ski area and highway facilities are visible from these locations as well. Id. Lowry states that, "[i]n my judgment, the top terminal location maintains a sufficient sight and sound barrier to permit continued wildlife use of the land bridge." Id. If this is so, there would be no change in the assessed environmental impact to wildlife from that described in the 1995 FEIS.
The case law is clear that courts should defer to the agency's expertise. "[A]gencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious." Colorado Environmental Coalition, 185 F.3d at 1173 n. 12 (citing Marsh, 490 U.S. at 378). And "the mere presence of contradictory evidence does not invalidate the Agencies' actions or decisions." Wyoming Farm Bureau Federation, 199 F.3d at 1241. But in the instant case, there is significant evidence that contradicts the underlying intent and, thus, effectiveness, of the second mitigation measure. The plaintiff submitted a number of photographs taken from various locations above the ridge line and to the north along the land bridge, which show that the top three or four towers of the ski lift, as well as the bull wheel and the ski patrol shack, are clearly visible. The plaintiff claims these photographs demonstrate that the top terminal was not located properly and, thus, there would be no sight and sound barrier for wildlife crossing the land bridge as required by the Forest Service's Decision Memo.
I visited the ski area on October 3, 2000, in order to aid my understanding of the record. I rode to the top of Lift #9 on the ski lift itself. When I reached the top terminal, I could see that the lift was located just below the ridge line and the Continental Divide. There is a knob of a hill that constitutes the top of Peak 12701 a few feet ahead of skiers and snowboarders as they exit the lift. From a position on the opposite or west side of this small hill, the lift is not visible. It is visible, however, from most of the remaining areas of the land bridge because the ridge line dips down on the north side of Peak 12701 into a broad "saddle." The top terminal, bull wheel, and ski patrol shack, which are all painted black, are visible from a well-worn game trail which is located just west of the Continental Divide. They are clearly visible from the Continental Divide and from many locations to the west side of the Divide. They are also visible from above the Eisenhower Tunnel, which is the narrowest part of the land bridge.
Whether the ski lift activities are audible could not be determined during my site visit. The wind was blowing very intensely from west to east over the Continental Divide and any noise made by the lift was carried off by the wind. I can imagine that on a calm day, if the winds are ever calm in that location, there would be at least some noise from the operation of the lift and the voices and activities of the skiers and snowboarders as they exit the lift.
Apart from the small knob of a hill directly west of the top terminal, there appears to be no other barrier to any noise that may be associated with the lift. I am cognizant of the fact that the location of Lift #9 was changed from its original configuration. (R. at 822.) Specifically, both the top and bottom terminals had been moved downhill from their originally proposed locations. Id. A Forest Service Engineering report, dated September 4, 1998, indicates that when this change was discussed with the lift contractor, Jeff Smith, he indicated that "[t]he top terminal was moved at the request of the District to eliminate visuals on the west side of the ridge." Id. The Forest Service clearly required CCSC to change the lift location to lessen the impact on wildlife traveling across the land bridge and along the Continental Divide. But the issue is whether the Forest Service required CCSC to move the lift far enough down the slope to maintain a sufficient sight and sound barrier.
There is no analysis of any noise made by the ski lift or human activity associated with the operation of the ski lift in the record.
The entire record fails to establish that a sight and sound barrier was achieved. As discussed above, the top towers of Lift #9 are clearly visible from the top of the Continental Divide and many areas west of the Divide, including the narrowest part of the land bridge. All of the Forest Serviced documents are premised on the assumption that the ski lift is not visible. The record is, therefore, inadequate to decide whether the Forest Service should have supplemented the FEIS that was completed in 1995. An analysis of the impact to the wildlife that takes into account the fact that there is little to no sight and sound barrier must be completed before any decision can be made about whether the Forest Service should have supplemented the FEIS on this issue. I must, therefore, remand this matter to the Forest Service for it to reassess whether there is any impact to the wildlife crossing the land bridge given the fact that the upper portion of the ski lift is visible and, possibly, audible, to wildlife, and whether any impacts to wildlife are "significant" for purposes of NEPA and its implementing regulations.
2. Whether the FEIS should have been supplemented due to significant changes impacting old growth trees.
The plaintiff also contends that the new lift had a substantial impact on old growth trees and the Forest Service should have supplemented the FEIS with respect to this impact. In support of this claim, the plaintiff submitted an affidavit by Phillip Miller, a former Forest Service employee with a degree in Forest Management and 40 years experience dealing with forest management and forest inventory tasks. (See Pl.'s Ex. JJ-77.) Miller took core samples from three trees in the area of Lift #9 and examined the stump of a tree removed for the construction of the lift. He determined, from the samples, that the three trees had an averageage of 257 years and that the stump was from a tree that was 297 years old. (Miller Aff. at ¶ 6.) Miller concluded that the trees removed for the "lower terminal and along the lift line up to between lift towers 5 and 6 [were] within the boundaries of the old growth stand." (Miller Aff. at ¶ 8.)
No one contests that old growth trees were cut to make room for Lift #9. Under the method of designating old growth stands used by the Forest Service, however, the mere fact that an old growth tree or even several old growth trees are located in a certain area does not mean that area would be classified as an "old growth stand." According to the "Old Growth Forests" report submitted by the defendants pursuant to my minute order, "entire sites were called either old growth or non-old growth, even though areas of each occurred within individual sites." See "Old Growth Forest in the Southwest and Rocky Mountain Regions Proceedings of a Workshop," March 9-13, 1992, United States Department of Agriculture at 122.
Additionally, the Forest Service is required to manage only 5 percent of the forested area of a unit for old growth. (See FEIS at 42, R. at 372.) The 1995 FEIS indicates that only 21 percent of the forest in the ski area is spruce-fir old growth, and all of these acres are on the lower, north-facing slope of Mt. Sniktau, which is mostly outside the ski area's permit boundary. Id. To comply with Forest Plan direction, the Forest Service is required to maintain only 5 percent of the forests as old growth. Id. The Forest Service noted that the proposed changes at the ski area in 1995 would leave 659 acres or 19 percent of the forests in old growth, which is well above the required 5 percent. Id. Thus, even if every one of the 65 trees cut for Lift #9 was an old growth tree, the Forest Service would not have gone below the 5 percent retention requirement.
While there is nothing in the administrative record analyzing whether any of the trees cut to make room for the towers constituted "old growth," there is a map of "Old Growth Stands" attached to the FEIS which indicates the only old growth stands within the permit boundaries of the ski area are located quite some distance from either of the proposed lifts. (See R. at 470.) The FEIS itself also indicates that the only inventoried stands of "old growth" trees are on "the lower, north-facing slope of Mt. Sniktau" (R. at 373), which is located in a different area than where the new chair lift was built. (See R. at 470.) If the Forest Service already knew that there are no inventoried stands of old growth trees anywhere near the location of the new lift, there would be no reason for it to analyze specifically whether the new lift would impact old growth trees. The Forest Service never addressed this issue in the Decision Memo or anywhere else in the administrative record. However, it is addressed in the SIR. There, the Forest Service makes its reasoning explicit:
As documented in the 1995 EIS, the only old growth stands within Loveland's special use permit boundary are on the lower, north facing slopes of Mr. Sniktau. Since neither the surface lift nor Lift No. 9 were to be located in this area, the construction and operation of Lift No. 9 does not represent a substantial change relevant to environmental concerns regarding old growth.
(SIR at 6.)
The plaintiff's expert, Phillip Miller, used a method to arrive at his conclusion that differs from that used by the Forest Service for concluding that the trees cut for Lift #9 were within an old growth stand. The Forest Service is entitled to select its own method of designating old growth stands, if that method is not arbitrary and capricious. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) ("NEPA does not require that we decide whether an [EA] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology."); see also Marsh, 490 U.S. at 378 ("[A]n agency must have discretion to rely on the reasonable opinions of its own qualified experts. . . ."). As stated above, the case law is clear that courts should defer to the agency's expertise. Colorado Environmental Coalition, 185 F.3d at 1173 n. 12 (citing Marsh, 490 U.S. at 378). The Forest Service would rely on its previous survey of Old Growth Forests within the permit boundaries of the Loveland Ski Area to determine that the cutting of trees for the lift, in terms of old growth, was a nonissue. Given the information the Forest Service had at the time it considered the changes to the ski lift, it cannot be said that the change in location of the lift was "significant" for NEPA purposes with respect to old growth stands. Thus, the Forest Service did not have to supplement the FEIS with respect to this issue.
3. Whether the FEIS should have been supplemented due to significant changes impacting wetlands.
Hannon claims Lift #9 was built in wetlands and the change in location of the lift was "significant" because it impacted wetlands. (See Pl.'s Mem. Supp. Cl. for Relief at 20-29.) The administrative record demonstrates that the Forest Service evaluated the location of the lift in terms of whether it would impact wetlands. On May 26, 1998, Forest Service Hydrologist Jean Thomas sent an e-mail to Susan Greenley, the Forest Service District Winter Sports Administrator, inquiring whether there were any water issues with respect to the Lift #9 project. (R. at 105.) Thomas indicated in the e-mail message that she did "not plan to spend any time looking at this. If there is something I should look at let me know." Id. A hand written note by Greenley indicates that "Jean will discuss w/Dennis [Lowry] and look at map. Will let Jean know after field review if there are concerns." Id. The field review for Lift #9 took place on July 15, 1998. Greenley's notes pertaining to that field review indicate that the midway terminal was "originally in wetlands location" but that the location of the terminal was "moved to just below to not impact." (R. at 196.) The notes also indicate that other towers were "near/adjacent to wetlands" but that "[n]one of [the] towers [was] in wetlands. . . ." Id. Without any discussion, the Decision Memo concluded that "[t]here will be no impacts to wetlands . . . associated with this project." (R. at 270.)
On August 15, 1998, after the Decision Memo was issued and after the plaintiff raised the issue of whether wetlands were being impacted, defendant CCSC hired ERO Resources Corporation to survey the ski lift line for wetlands. (See R. at 285-309.) ERO Resources used the guidelines and criteria of the U.S. Army Corps of Engineers 1987 Wetland Delineation Manual. (R. at 285.) The report indicated that the lift is built in a "glaciated valley that forms the headwaters of Clear Creek . . ." (R. at 286.) The report documented that wetlands exist near some of the lift towers and that there were "[m]inorimpacts to wetlands" which occurred "when soil materials from the tower pits tumbled down the slopes of [some of the towers] into wetlands below." (R. at 287.) But ERO Resources determined that none of the lift towers had been built in wet lands. (R. at 284-309.)
On August 19, 1998, a representative from the Army Corps of Engineers visited the site of Lift #9 to assess the wetland situation. (R. at 310.) On October 7, 1998, the Corps sent a letter to CCSC stating that the ERO Resources report was "accurate and accepted by this office." Id. The Corps acknowledged the incidental soil spillage but determined it was "minor in nature and non-flagrant." Id. After noting that the fill material would be removed from the wetlands, the Corps determined that there was "no violation of Section 404 of the Clean Water Act regarding this project." Id. The important question regarding the wetlands issue is what the Forest Service knew at the time the Decision Memo was issued. Clearly, there were wetlands adjacent to the area of the proposed lift line. Greenley requested that one of the towers be relocated so that it would not be sited "in wetlands." She determined that none of the towers was in wetlands and conveyed this information to the Forest Service Supervisor who included this determination in the Decision Memo. Subsequently, ERO Resources confirmed that none of the towers was actually in wetlands. Some of the towers were adjacent to wetlands and soil spillage had contaminated adjacent wetlands, but none of the towers was in wetlands, according to the ERO Resources report.
The Forest Service spent some time on the wetlands issue before the Decision Memo was issued. While it cannot be said that the Winter Sports Administrator is an expert in wetlands delineation, especially when no field survey was conducted, it turns out that Ms. Greenley was correct in her determination that none of the towers was located in wetlands. The subsequent in-depth analysis by ERO Resources demonstrated no significant environmental impact in terms of wetlands. Without a significant impact, no supplement to the FEIS is required.
Hannon claims this is a post hoc rationalization. I am convinced, after reviewing the Administrative Record, that the Forest Service believed it gave the wetlands issue as much evaluation as was needed under the circumstances. Certainly, there were minor violations of the Clean Water Act that the contractor could have avoided. The issues, however, are whether the Forest Service should have supplemented the FEIS and whether there were significant changes with respect to wetlands. The Forest Service decided there were no significant changes regarding wetlands and a subsequent survey confirmed this determination. There is no reason to supplement the FEIS under these circumstances.
4. Whether the FEIS should have been supplemented due to the creation of "new roads" as a result of the construction of Lift #9.
Hannon also claims that the creation of roads during the construction of the ski lift constituted a "substantial change" from the FEIS and the Forest Service should have supplemented the FEIS to evaluate the environmental impact of roads that were created. (See Pl.'s Mem. Supp. Cl. for Relief at 29-33.) He claims that two new roads were created: 1) near the top terminal consisting of ruts created by the construction workers driving the ATVs to the ridge line and 2) near the bottom terminal when "CCSC bulldozed a new road, parallel to the creek and apparently to avoid a switchback on the preexisting road." Id. The FEIS evaluated impacts of the proposed changes to the ski area on the "roadless" areas of Bard Creek and Mt. Sniktau. (R. at 358.) The area where Lift #9 was constructed is not an "inventoried roadless area." (See R. at 471.) Thus, none of the special provisions regarding "roadless areas" apply in the instant case. However, the Forest Service is still obligated to evaluate any significant environmental impacts caused by the construction of the ski lift, including the creation of roads.
In the instant case, the Forest Service discussed the methods of construction of Lift #9 with CCSC and special measures were put in place which would cause the least disturbance to the environment. (See R. at 196; see also Abrahamson Aff., Ex. A, Defs. § Joint Resp. at 3-4.) For example, all of the foundation pits for the lift towers were dug by hand. (Abrahamson Aff., Ex. A, Defs. § Joint Resp. at 3; see also R. at 29-30.) A helicopter was used to position the towers and deposit concrete in the pits. (Abrahamson Aff., Ex. A, Defs. § Joint Resp. at 3.) Power lines were laid in existing areas of pre-existing disturbance. Id. The defendants deny that any new roads were built during the project. Id. When CCSC submitted its preliminary design for Lift #9 to the Forest Service, it noted that "[n]o new access roads will be required. . . . The bottom terminal is located adjacent to an existing summer access road." (R. at 15.) In fact, CCSC informed the Forest Service in a letter dated March 30, 1998, that the location of the bottom terminal of Lift #9 "was selected in large part based on the fact that it would require no new permanent access road. . . ." (R. at 29.) Hannon has provided no evidence that the road near the bottom terminal was a new road. He has included a picture of what he claims to be a new dirt road adjacent to the bottom terminal in his exhibits. (See Pl.'s Ex. JJ-3.) Hannon has not, however, offered proof to show that this road was not already in existence and is, in fact, part of the summer access road referred to by the defendants.
With respect to Hannon's claims that the ruts from the ATVs created a new road near the top of the lift line, it is undisputed that employees of the construction company improperly drove ATVs to the top terminal and that the ATVs made marks on the high mountain terrain. (See Pl.'s Ex. 26-33; T.R.O. Ex. AA, BB; R. at 279.) The defendants deny, however, that a new road was created, pointing out that the Forest Service inspected the damage to the terrain caused by the ATVs and "determined that impacts . . . were minimal and acceptable." (Defs. § Joint Resp. at 17.) Specifically, District Winter Sports Administrator Sue Greenley and Winter Sports Specialist Ed Ryberg visited the site and examined the ATV damage on August 17, 1998, in response to the Hannon's complaints. Notes pertaining to this field visit indicate that they "could barely see any tracks and the areas that we could were very faint." (R. at 279.) Hannon's photographs of the marks caused by the ATVs indicate damage to the terrain that could not be called "very faint." Rather, the ruts depicted are very clear. (See Pl.'s Ex. 26-33.) Nevertheless, the question is whether the Forest Service should have supplemented the FEIS.
In determining this issue, it is important to examine the information available to the Forest Service both before and after the Decision Memo was issued. Before the Forest Service Supervisor issued the Decision Memo, the Forest Service had no knowledge that there would be any new road created. The Forest Service had worked out an arrangement with CCSC for construction of the lift where no roads were contemplated. From the perspective of the Forest Service, because no new roads were needed, there would be no need to supplement the FEIS.
What happened after the Decision Memo was issued is a separate matter. The Forest Service received information from Hannon that a new road had been created. The Forest Service investigated his allegations and determined that the ruts caused by the ATVs near the top terminal were not "significant" in terms of any environmental impact. I am not persuaded at this point that the ruts constitute a "significant" environmental impact.
The evidence submitted pertaining to the "new road" created near the bottom terminal is also not persuasive at this point. The dirt road depicted could be the summer access road which was already in existence.
Accordingly, I find that the Forest Service was not required to supplement the FEIS regarding the purported creation of new roads during the construction of Lift #9.
C. Whether the defendants acted "arbitrarily and capriciously" by failing to ensure that the mitigation measures were fully implemented.
In his Seventh Claim for Relief, Hannon maintains that Lift #9 is visible from the top of the Continental Divide and the west side of the Land Bridge above Straight Creek, in violation of the terms of the Decision Memo. (Pl.'s First Am. Compl. at 33.) Hannon claims the defendants acted "arbitrarily and capriciously" by failing to ensure that the top terminal was built in accordance with the terms of the second mitigation measure which requires that "the new chair lift [be located] so that structures, people and their movements are not visible from the top of the Continental Divide or westside of the land bridge above Straight Creek." (R. at 271.)
As discussed above, this issue exists, in part, because the Forest Service worded the mitigation measure differently from document to document. Originally, in the drafts of the BA and BE, the mitigation measure required that "the new chair lift [be located] so that structures, people and their movements are not visible from the west side of the land bridge along that portion of the CD [Continental Divide] above Straight Creek (as viewed by a person at any point 20 feet below the elevation of the CD, on the west slope)." (R. at 246, 252.) The final version of the BA requires that the ski lift must be located "so that structures, people and their movements are not visible from the west side of the land bridge (as viewed by a person at 12,500 elevation on the west slope of the CD [Continental Divide] above Straight Creek)." (R. at 221.) This parenthetical provision was omitted from the final draft of the BE for the wolverine. (R. at 263.) The BE for the wolverine merely requires that the lift be located "so that structures, people and their movements are not visible from the top of the CD or west side of the land bridge above Straight Creek." (R. at 263.) The Decision Memo used the terminology of the BE, requiring that "the new chair lift [be located] so that structures, people and their movements are not visible from the top of the Continental Divide or west side of the land bridge above Straight Creek." (R. at 271.)
The other agencies that were consulted regarding the mitigation measures also had different notions of how the mitigation measure should be worded. As discussed above, Colorado Division of Wildlife Biologist Gene Byrne initially disagreed that the proposed mitigation measure in the drafts of the BA and BE would adequately protect the animals traveling across the land bridge and along the Continental Divide. (R. at 2 38.) In a letter to Forest Service Biologist Dennis Lowry on July 23, 1998, Byrne suggested creating a buffer zone of 200 yards so that the top terminal of the ski lift would be located at least 600 feet below the top of the ridge. Id. Four days later, when Byrne and Lowry visited the site, Byrne changed his mind about the location of the top terminal. (R. at 313-14.) With the addition of measures that would keep skiers from going to the top of the ridge, Byrne agreed to the site of the top terminal as it was staked out on the ground and surveyed. Id. It is not clear from the record why Byrne made this concession since the rope closures had nothing to do with creating an adequate sight and sound barrier.
All of this varying language as well as the ambiguity of what is meant by the final wording in the DM has fueled many of Hannon's arguments on this issue. Even the defendants admit that the language used by the Forest Service Supervisor in the DM is "imprecise." (See Defs. § Joint Resp. at 24.) In the SIR, the Forest Service states that "it is important to acknowledge that the wording of [Mitigation Measure #2] is so imprecise that it could be interpreted so as to preclude the construction of any new lift at Loveland, since the entire ski area is visible from various points along the top of the Continental Divide." (SIR at 4.) While admitting that the language in the DM is deficient in advising anyone of where the top terminal should be situated, the defendants point out that the map included in the DM depicts the precise location of the top terminal of Lift #9. They argue that despite the varying language, the map consistently shows where all of the biologists agreed the terminal should be located. (See Defs. § Joint Resp. at 24.)
The defendants also argue that every government biologist who examined the issue of whether the ski lift would substantially impact wildlife at the top of the divide and on the land bridge agreed to the location of the top terminal. Id. For instance, Dennis Lowry, the Forest Service biologist who wrote the BA and BE, twice inspected and approved the location of the top terminal before the Decision Memo was issued. (R. at 196, 313.) After Lift #9 was built, other Forest Service employees claim they verified that the top terminal was built in the location approved in the Decision Memo. For example, on August 17, 1998, Sue Greenley, the District Winter Sports Administrator, and Ed Ryberg, the Winter Sports Specialist, inspected the construction site of the top terminal. (R. a t 279.) Notes from this field visit indicate they stood at a point 30 feet below the Continental Divide on the west side and verified they could not see the terminal. Id. These Forest Service employees again visited the site on September 28, 1998, and once again verified it had been built in the location approved in the Decision Memo. (R. at 283.)
Visibility from 30 feet below the Continental Divide on the west side is not consistent with the terms of the second mitigation measure in the DM. The fact that they used this standard demonstrates the confusion about what the proper standard was at that point.
After Lift #9 was constructed, Lowry visited the site of the top terminal twice more. (Lowry Decl. at ¶ 2.) On December 9, 1998, he visited the top terminal with other Forest Service officials and determined that the lift "had been built and located in accordance with the terms of the Decision Memo and [his] earlier direction and intent." Id. at ¶ 3. He specifically states in his Declaration that "[a] s[he] intended, Lift No. 9's top terminal was constructed east of and below Peak 12701, which thereby shields it from the 12,500 elevation point west of the lift on the other side of the ridge above Straight Creek." Id.
This may have been his intent but he left out the language pertaining to the 12,500 foot elevation from the BE and it was omitted from the DM as well.
One of the most important factors underlying the Forest Service's determination that any impact to wildlife was not significant is the presumption throughout the record that the ski lift is not visible and there is a sufficient sight and sound barrier protecting the wildlife from any impacts caused by the operation of the ski lift. The critical importance of this sight and sound barrier is emphasized most clearly in a letter from Leroy Carlson, Field Supervisor for the U.S. Fish and Wildlife Service, to Forest Service Supervisor Clark, responding to the Forest Service's request for clarification of the intent of the second mitigation measure:
Because this land bridge is a critical ecosystem connection across I-70 we believe it is imperative that it be protected as a functional movement corridor for all wide-ranging wildlife to connect the northern and southern portions of the ecosystem. All stipulations were collectively intended to preserve that function. Stipulation #2, in particular, was made in recognition that certain species or individuals may attempt or even need (in the case of diurnal species) to cross the land bridge during operational periods. If animals following natural routes on the west side of the land bridge could be provided visual and acoustical isolation from Loveland Basin Ski Area operations and infrastructure, they may in fact feel sufficiently secure to undertake such movements rather than feeling threatened by activity both below them along I-70 and above by skiers and lift operations.
Carlson Letter, Ex. C at 1-2. Carlson further stated that "[a]s long as animals traveling along the land bridge to the west of the ridgeline are screened (visually and acoustically) from associated Loveland Basin activity and infrastructure by the terrain of the land bridge itself, we believe the intent of this stipulation will have been met." Id. The Fish and Wildlife Service was not involved in the exact siting of the ski lift. Id. Rather, the location of the top terminal was left to the discretion and judgment of the Forest Service. Id.
The defendants have offered the opinion of Forest Service Biologist Lowry regarding the ultimate question of whether, despite the varying language of the mitigation measure, the underlying intent of that measure — "to retain a sight and sound barrier to the top of the Continental Divide and the western side of the land bridge" (R. at 271) to protect the wildlife — has been satisfied. In his declaration, Lowry states explicitly that, in his judgment, "the top terminal location maintains a sufficient sight and sound barrier to permit continued wildlife use of the land bridge." (Lowry Decl. at ¶ 3.)
As discussed in detail above, the top portion of the ski lift is, in fact, visible from much of the area used by wildlife to travel across the land bridge. I am dismayed by the extent to which the Forest Service has emphasized that the ski lift was located where they intended for it to be located and where the map depicts it location14 while never addressing the fact that the underlying intent of the mitigation measure — creation of a sufficient sight and sound barrier — was not realized.
In determining whether an agency decision or action is arbitrary and capricious, I am on one hand limited in my role and on the other hand required to engage in a "substantial inquiry." Citizens to Preserve Overton Park, Inc., 401 U.S. at 415. The arbitrary and capricious standard is deferential and presumes that agency action is valid. Id. I may not substitute my judgment for the agency, id. at 416, and I must affirm the agency's decision if a rational basis is presented. Bowman Transportation, Inc., 419 U.S. at 290 (1974). "However, I do not serve as a mere rubber stamp for agency decisions. Rather I must look at all relevant factors." Bergland, 517 F. Supp. at 181(citing Overton Park, 401 U.S. at 416). Generally, "an agency decision will be considered arbitrary and capricious if `the agency had . . . entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Friends of the Bow, 124 F.3d at 1215 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L. Ed.2d 443 (1983)).
I have engaged in a "substantial inquiry" in this case. My review has revealed that the Forest Service failed to acknowledge in their analysis that the lift is visible from much of the land bridge. This is a very important aspect of the issue of whether the ski lift has impacted wildlife use of the land bridge and whether any such impact is significant. In failing to adequately consider the high degree of visibility of the ski lift to wildlife traveling along the land bridge, the Forest Service's decision regarding the location of Lift #9 lacks a rational basis. Further, the Forest Service's insistence that there is an adequate sight and sound barrier is implausible under the circumstances. Thus, I find that the Forest Service took action in this case that was "arbitrary and capricious . . . [and] an abuse of discretion." Olenhouse, 42 F.3d at 1574.
Nevertheless, I recognize that even if the ski lift is visible and audible to wildlife traveling across the land bridge, that does not mean there would be a "significant" impact to the wildlife. Nor does it preclude the possibility that additional mitigation measures might lessen any such impact. The record is simply void of any analysis that would address these issues. Thus, I must remand this matter to the Forest Service so that it can reevaluate any impacts to the wildlife using the land bridge given the fact that the ski lift is, in fact, visible, and possibly, audible, to wildlife crossing the land bridge. See Olenhouse, 42 F.3d at 1575 ("If the agency has failed to provide a reasoned explanation for its action, or if limitations in the administrative record make it impossible to conclude the action was the product of reasoned decisionmaking, the reviewing court may . . . remand the case to the agency for further proceedings.") (citations omitted).
IV. CONCLUSION.
The Forest Service could have, and should have, done a more careful and thorough job of handling the NEPA analysis pertaining to Lift #9. The Forest Service relied too heavily on its regulations allowing the agency to make a determination that new information or changes are not significant or substantial without explicitly stating its reasons. Absent any written analysis, it is difficult to determine in an administrative review whether there was compliance with NEPA and its implementing regulations. I should not have had to resort to using the Supplemental Information Report in this case, which was created, in part, to fill the gaps in the Decision Memo.
I am not persuaded that the Forest Service should have supplemented the FEIS with respect to the wetlands, old growth trees, or road issues. However, the wildlife issue, which is the issue of greatest import, was not given appropriate consideration by the Forest Service. Even though the plaintiff had submitted photographs demonstrating the visibility of the top of the lift, I was surprised by the great extent to which the top towers, the bull wheel, and the ski patrol shack can be seen from all but very limited locations along the top of the ridge, the land bridge, and the west side of the Continental Divide. This is not apparent in the administrative record provided by the defendants and it is a critical factor in this case. There is nothing in the record that provides any kind of written analysis of the fact that the top of the ski lift is, in fact, highly visible. There is also nothing pertaining to any analysis of this fact in terms of impact and significance of any impact to the wildlife using the critically important land bridge.
Accordingly, it is ORDERED that the plaintiff's Motion to Strike is DENIED; it is FURTHER ORDERED that this case is REMANDED to the Forest Service for prompt further administrative proceedings consistent with this opinion; and that the federal defendants file a status report on or before March 1, 2001, advising this Court of the progress of those administrative proceedings.
Hannon has made an issue of what standard should be used in making wetlands determinations. The Forest Service has chosen to follow the methodology developed and used order to assess his complaints for themselves. (R. at 279.) Notes from this site visit indicate that the Forest Service employees specifically evaluated the tower locations, including the top terminal, and determined they were in the positions previously approved. Id. They also addressed the wetlands issue, concluding that none of the towers was located in wetlands. Id. Not all of the trees had been cut at that point in the construction. Id. Defendant CCSC assured the Forest Service employees that the contractor would try to minimize tree removal. Id. There is no indication in the record that the Forest Service employees analyzed whether any of the trees impacted was old growth. Id. The area where the construction workers had driven ATVs was also evaluated. The report indicates that one of these workers was fired and the others were warned not to drive the ATVs off of the existing road created by the Public Service Company when it laid a pipeline across the Continental Divide. Id. The Forest Service employees characterized the tracks made by the ATVs as "very faint." Id. With respect to the wetlands issue, records indicate that Forest Service employees believed "great care" was taken to place the tower locations in "non wet areas" and there was no need to contact the U.S. Army Corps of Engineers for a wetlands determination. (R. at 115.) Defendant CCSC decided to hire a private company, ERO Resources Corporation, to conduct a wetlands analysis of the lift line on August 15, 1998. (R. at 284-309.) ERO Resources followed the guidelines and criteria used by the U.S. Army Corps of Engineers in making the wetlands analysis.[4] (R. at 285.) ERO Resources found some wetlands around by the U.S. Army Corps of Engineers. (SIR at 7.) It is within the agency's purview to select a method of environmental analysis. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) ("NEPA does not require that we decide whether an [EA] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology."); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)("[A]n agency must have discretion to rely on the reasonable opinions of its own qualified experts. . . .").