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The Ark Initiative and Donald Duerr v. Thomas L. Tidwell

October 5, 2012

THE ARK INITIATIVE AND DONALD DUERR,
PLAINTIFFS,
v.
THOMAS L. TIDWELL, CHIEF OF THE U.S. FOREST SERVICE, DEFENDANT,
AND
ASPEN SKIING COMPANY, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

In the mountains of Colorado, Aspen Skiing Company has begun cutting trees to create a new ski run on the edge of Snowmass ski resort. Plaintiffs -- environmental group the Ark Initiative and its founder Donald Duerr -- believe that the parcel where the trees grow should be designated "roadless," which they claim would block the tree removal. To that end, Plaintiffs sent the U.S. Forest Service an "Emergency Petition" in July, asking the agency to add the parcel to its inventory of roadless areas and suspend the permit that allows Aspen Skiing to cut the trees. The Forest Service denied the request, explaining its reasoning in two short letters.

Plaintiffs now complain in this Court that the Forest Service gave an inadequate explanation for its denial. They ask the Court to enjoin Aspen Skiing from cutting trees until the Forest Service justifies its decision. To accomplish such purpose, Plaintiffs moved for a preliminary injunction. With the parties' consent, the Court consolidated the preliminary-injunction hearing with a hearing on the merits, making Plaintiffs' Motion for a Preliminary Injunction akin to a motion for summary judgment. The Forest Service and Intervenor Aspen Skiing have simultaneously moved to dismiss the case for lack of subject-matter jurisdiction or, in the alternative, for summary judgment. Concluding that it has jurisdiction but that the Forest Service adequately explained its decision, the Court will deny Plaintiffs' Motion for a Preliminary Injunction and enter judgment for the agency.

I.Background

This case is about a parcel of land, approximately one square mile in area, on Burnt Mountain in White River National Forest, Colorado, referred to throughout as the "Burnt Mountain parcel." This parcel lies entirely inside Snowmass Ski Area, operated by Aspen Skiing. The Court will first set forth the regulatory framework surrounding "roadless" designations and then describe the procedural history of this dispute.

A. Regulatory Framework

The Forest Service manages public lands in the National Forest System. See 36 C.F.R. § 200.3(b)(2) (citing statutory authority). To protect pristine parcels in those forests, the Forest Service limits activity on land that it deems a "roadless area." See 36 C.F.R. §§ 294.42-.44. Those roadless areas may later gain statutory protection by congressional designation as "wilderness areas" -- defined by a contemplative Congress as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." 16 U.S.C. § 1131(c); see 16 U.S.C. § 1133.

The "[r]esources or features that are often present in and characterize" roadless areas are: "High quality or undisturbed soil, water, and air"; "Sources of public drinking water"; "Diversity of plant and animal communities"; "Habitat for threatened, endangered, proposed, candidate, and sensitive species, and for those species dependent on large, undisturbed areas of land"; "Primitive, semi-primitive non-motorized and semi-primitive motorized classes of dispersed recreation"; "Reference landscapes"; "Natural-appearing landscapes with high scenic quality"; "Traditional cultural properties and sacred sites"; and "Other locally identified unique characteristics." 36 C.F.R. § 294.41 (Colorado-specific definition); see also Roadless Area Conservation Rule, 66 Fed. Reg. 3244, 3272 (Jan. 12, 2001) (listing same characteristics).

In most national forests, the 2001 Roadless Area Conservation Rule governs the use of roadless areas. See Wyoming v. USDA, 661 F.3d 1209 (10th Cir. 2011) (upholding Roadless Area Conservation Rule). After promulgating that Rule, the Forest Service updated its list of roadless areas in the White River National Forest (which it calls "inventoried roadless areas") in 2002. See 67 Fed. Reg. 39,383, 39,384 (June 7, 2002); 1 Forest Service, Final Environmental Impact Statement for the White River National Forest Land and Resource Management Plan 2002 Revision at 3-523 to -536 (2002), S 659-72.*fn1 That inventory added the Burnt Mountain Inventoried Roadless Area, which is adjacent to the Burnt Mountain parcel in dispute here, but omitted the parcel itself from the roadless list. See 3 Forest Service, 2002 Final Environmental Impact Statement at C-11, S 1620. Plaintiffs never commented on the omission of the Burnt Mountain parcel.

Because a one-size-fits-all approach does not always work, especially in vast Western States with massive national forests, the Forest Service allowed States to petition for tailored rules as an alternative to the 2001 nationwide Roadless Area Conservation Rule just discussed. See 36 C.F.R. § 294.12 (must submit petition by November 13, 2006). Colorado petitioned for such a tailored rule. See Letter from Gov. Bill Owens to Mike Johanns, Sec'y of Agric., et al. (Nov. 13, 2006), B 95. Because of Colorado-specific "situations and concerns" -- including "accommodating existing permitted or allocated ski areas" -- the Forest Service granted the petition and last summer promulgated a special rule for Colorado: the Colorado Roadless Areas Rule. See 77 Fed. Reg. 39,576, 39,577 (July 3, 2012). The final Rule emerged only after years of work by both the State and Federal Governments and extensive public involvement, including: Colorado legislation forming a bipartisan task force to study the issue in 2005; nine public meetings in Colorado, six deliberative meetings open to the public, and 40,000 public comments reviewed by the task force in 2005 and 2006; a petition by Governor Bill Owens in 2006; a revised petition by Governor Bill Ritter in 2007; a notice of intent to prepare an environmental impact statement by the Forest Service in 2007 that received 88,000 comments; a proposed rule by the Forest Service in 2008 that entailed nine public meetings and received another 106,000 comments; a revised petition by Colorado in 2010 after receiving 22,000 more comments; and a second proposed rule by the Forest Service in 2011 with nine more public meetings and 56,000 more comments. See 2 Forest Service, Rulemaking for Colorado Roadless Areas: Final Environmental Impact Statement at 3, 8-9 (2012), B 619, 624-25.

The Colorado Roadless Rule, mirroring the Roadless Area Conservation Rule, imposed a general ban on tree cutting in roadless areas. "Trees may not be cut, sold, or removed in Colorado Roadless Areas, except as provided in paragraph (b) and (c) of this section." 36 C.F.R. § 294.42(a). Those exceptions allow cutting, however, when "the responsible official determines the activity is consistent with the applicable land management plan," and "[t]ree cutting, sale, or removal is incidental to the implementation of a management activity not otherwise prohibited by this subpart." 36 C.F.R. § 294.42(b); see also 36 C.F.R. § 294.42(c)(5).

As part of the Colorado Roadless Rule, the Forest Service again updated its list of roadless areas this year, adding hundreds of thousands of acres to its inventory. See 77 Fed. Reg. at 39,582-83. The Forest Service also made a change crucial to the dispute here: its inventory excluded from roadless designation land permitted for skiing to "ensure future ski area expansions within existing permit boundaries and forest plan allocations are not in conflict with desired conditions provided through the final rule and address one of the State-specific concerns identified by the State of Colorado." Id. at 39,578; see also id. at 39,582. In other words, if a previous roadless area lay in a permitted ski area, its roadless designation was removed. 8300 such acres were delisted, including 80 acres in the Burnt Mountain Inventoried Roadless Area that overlapped with the Snowmass Ski Area. See 2 Forest Service, 2012 Final Environmental Impact Statement at 254 tbl.3-52, B 870. The Burnt Mountain parcel at issue here was not removed because it had never been designated roadless in the first place. Once more, Plaintiffs submitted no comments.

B. Procedural History 1. Previous Litigation

In 1994, the Forest Service approved the Snowmass Ski Area Master Development Plan, authorizing Aspen Skiing to make significant changes at Snowmass. See Record of Decision (March 1994), S 4185; see also Ski Area Term Special Use Permit (July 13, 1995), S 5566 (special use permit for "constructing, operating, and maintaining" Snowmass Ski Area, subject to permit terms). The Plan included building trails on Burnt Mountain and performing attendant "glading" -- that is, selective tree cutting. See Record of Decision at 5-10, S 4195-200. In 2003, Aspen Skiing amended the Snowmass Master Plan, altering some of its designs for Burnt Mountain. See Snowmass Mountain Master Plan Amendment 2003, S 5741. The Forest Service "accepted" the amendments but cautioned that it would "review each action in detail prior to giving any final Forest Service approval." Letter from Jim M. Upchurch, Forest Service, to Jim Wahlstrom, Snowmass Village (Apr. 3, 2003), S 5898-99.

The next month, Aspen Skiing formally requested permission to construct trails and perform glading on Burnt Mountain over the summer of 2004. See Letter from Victor Gerdin, Aspen Skiing, to Upchurch et al. at 2-3 (May 2, 2003), S 3058-59. Almost three years later, after extensive public comment and a 121-page environmental assessment, the Forest Service approved the request in a Decision Notice. See Decision Notice (Feb. 16, 2006), S 4685; Forest Service, Final Environmental Assessment for the Snowmass Ski Area Master Plan Amendment Ski Area Improvements (Feb. 16, 2006), S 4746.

Plaintiffs first appealed the Decision Notice within the Forest Service. See Notice of Appeal (Apr. 10, 2006), S 4868. One of their many complaints was that the Decision Notice had ignored areas that had roadless characteristics but not the official "roadless area" designation -- including the Burnt Mountain parcel. These were not throwaway comments hidden in footnotes. The appeal spent two pages arguing that "it was arbitrary, capricious and an abuse of discretion for the Forest Service to exclude the roadless lands -- located along the east side of the Snowmass Ski Area -- from the inventoried Burnt Mountain Roadless Area." Id. at 115-17, S 4982-84. And it spent another 11 pages objecting to the Decision Notice's failure to disclose that the Burnt Mountain parcel was roadless and evaluate how the construction and glading would affect the parcel. See id. at 56-67, S 4923-34. The Forest Service affirmed its decision with respect to the Burnt Mountain parcel, saying that altering the roadless inventory was outside the scope of the proceedings. See Letter from Greg Griffith, Forest Service, to Ark Initiative et al. (May 22, 2006), S 5121 (adopting and incorporating recommendation of Peter L. Clark, Forest Service, Recommendation Memorandum for Snowmass Master Plan Amendment and Ski Area Improvement EA at 20-22, 29-30 (May 19, 2006), S 5085-87, 5094-95).

Having exhausted their administrative appeals, Plaintiffs then challenged the Forest Service's Decision Notice in federal court. The objections relating to the Burnt Mountain parcel, however, were not among the issues they raised in the suit. The U.S. District Court for the District of Colorado upheld the Decision Notice. See Ark Initiative v. Forest Serv., No. 06-cv-2418, 2010 WL 3323661 (D. Colo. Aug. ...


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