June 12, 1997
Mike Sieg
District Ranger
6944 South 3000 East Street
Salt Lake City, Utah 84121
Re: Comments by Citizens' Committee to Save Our Canyons ("SOC") on Scoping Notice: Snowbird Ski and Summer Resort Master Develop- ment Plan Proposal.
Dear Mike,
SOC thanks you for this opportunity to comment on the scoping notice for the Snowbird Ski and Summer Resort proposed ("Snowbird") Master Development Plan ("MDP"). SOC appreciates the Forest Service's continuing efforts to elicit meaningful public participation in the agency's decision affecting the National Forest.
SOC has several comments on and concerns regarding the Forest Service's scoping notice. These include: A) the Forest Service's adoption of Snowbird's statement of the purpose for and need for the proposed project; B) the content of the statement of the purpose and need for Snowbird's desired expansion; C) the mandate that the Forest Service to analyze a broad range of alternatives to the proposed project; D) the need for careful and thorough examination of the cumulative impacts of the proposed development together with the impacts of past, present and future projects; E) the need for the Forest Service to thoroughly examine the potential environmental impacts of the proposed GAD III chairlift on White Pine Canyon and the public safety; F) the obligation of the Forest Service to regulate and complete NEPA analysis of the Mineral Basin expansion plan; and, G) the vegetation plan for Snowbird. SOC addresses each of these issues in turn.
A. The Statement of the Purpose of and Need for the Project Is Biased and At the Outset, Necessarily Prejudices the Forest Service's Environmental Review of the Proposed Expansion Scheme.
The National Environmental Policy Act of 1969, 42 U.S.C.A. 4321-61 ("NEPA"), requires an agency to state the purpose and need of a proposed project in terms of a federal or public interest. Citizens Against Burlington, Inc. v. Busey, 983 F.2d 190, 196 (D.C.Cir. 1991). Despite this requirement, the Forest Service has completely adopted the applicant's version of the purpose and need for the proposed expansion project in its scoping notice. The Forest Service's apparent endorsement of Snowbird's statement of the purpose and need for its expansion project may seem like a harmless error and time saving device. However, the consequences of this endorsement are far from trivial.
First, by adopting Snowbird's representation of the value of the project, the Forest Service has, from the outset, biased its environmental review of the project. By failing to state the purpose and need for a project in terms of a federal or public interest, the agency is prevented from analyzing a wide range of alternatives to the proposed project. Should the agency merely adopt the applicant's rendering of the need for the project, the agency's analysis of the alternatives, artificially oriented toward a means to achieve the applicant's goals, will be improperly restrictive. City of New York v. Dept. of Trans- portation, 715 F.2d 732, 743 (2nd Cir. 1983) ("[A]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative . . . would accomplish the goals of the agency's action, and the EIS would become a foreordained formality"). Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986) ("[T]he evaluation of `alternatives' mandated by NEPA . . . is not an evaluation of the alternative means by which a parti- cular applicant can reach his goals").
Further, a neutral approach and an analysis of what will indeed serve the public interest, helps guarantee that the agency will make a well-informed decision regarding the proposed project. This is achieved when the goals of a project are considered in terms of the federal interests in the federally protected resources involved. Citizens Against Burlington v. Busey, 983 F.2d 190, 196 (D.C.Cir. 1991) (in determining the purpose and need for a project, "an agency should always consider the views of Congress, expressed . . . in the agency's statutory authorization to act, as well as in other congressional directives"). The Congressional directive to the Forest Service is the Multiple-Use and Sustained-Yield Act of 1960, 16 U.S.C.A. 528-31, which commands the agency to administer the forests for range, timber, watershed, wildlife, fish and outdoor recreation purposes and prevents the agency from considering one of these uses at the expense of all others. These management obligations, rather than the desires of the applicant and the applicant's understanding of what will benefit the public, must guide Forest Service decision-making.
Second, the Forest Service's apparent acceptance and full scale endorsement of Snowbird's statement of purpose and need serves only to stifle, rather than to encourage, meaningful public comments on the project. The Forest Service essentially conveys the impression that it endorses all the elements of the expansion project. For example, the Scoping Document states: "[W]e [the Forest Service] have worked with the ski area to identify opportunities to better serve the public. Updated facilities and improvements in operations are necessary for the resort to continue to provide the quality recreational experience which has made Snowbird a cornerstone of Utah's ski industry." Scoping Notice at 1 (emphasis added). Such statements assume, without further inquiry, that Snowbird's expansion project necessarily serve the public. See also, Scoping Notice at 3 ("In short, we believe utilizing this property for alpine skiing as per this plan would maximize the recreational opportunity available through our partnership with the ski area") (emphasis added). This and other language in the scoping notice indicates that the Forest Service has reached certain conclusions regarding the public good in consultation with Snowbird and without the benefit of public involvement. The public then can only believe that the Forest Service has made certain decisions before undertaking environmental analysis and that public comment on these decision is moot.
Thus, NEPA dictates that the Forest Service adopt a neutral and broad statement of the purpose and need for the Snowbird expansion project. By adopting a statement of need in the context of the actual interests of the public, the Forest Service will be best able to conduct an unbiased study of a wide range of alternatives to the proposed project and will be truly open to information gleaned from this process. In addition, the Forest Service must, at the onset, refrain from endorsing the proposed project and thereby provide the public a meaningful opportunity to influence the agency's decision making.
B. Subsequent Environmental Review of the Proposed Project Should Carefully Question and Analyze Snowbird's Statement of the Purpose of and Need for the Planned Development.
As explained above, the Forest Service is legally restrained from adopting, without analysis, Snowbird's statement of the purpose of and need for the expansion project. Thus, the Forest Service's future environmental analysis must seriously question whether Snowbird's proposals do indeed serve the public good.
Initially, this analysis of the purpose and need for the expansion must be factually based and independently verifiable. See Van Abbema, 807 F.2d at 639 (holding that the agency's con- clusions "must find some reasonable support in the record" and "is responsible for the independent verification of specifically challenged information obtained from applicants or outside consultants"). Thus, the Forest Service is prevented from merely adopting Snowbird's declarations as to what constitutes the public need, if this need is currently unserved and how the Snowbird proposal will serve this perceived need.
As it currently stands, Snowbird's assessment of the purpose and need for its expansion proposal is at best, based on anecdotal evidence, and at worst, mere conjecture. Therefore, the Forest Service must analyze Snowbird's contentions regarding the public need and independently establish what constitutes the public interest. Among the contentions upon which this inquiry must focus are: 1) what are the "needs and expectations in the skier market" and whether the proposed expansion project meets these needs, Scoping Notice at 1; 2) what, if any, aspects of the proposal "are necessary for the resort to continue to provide the quality recreational experience . . . ," Id.; 3) what constitutes an "outdated facility," Id.; 4) what constitutes an "improved circulation of visitors," how this goal is achieved and what aspects, if any, of the proposed expansion meet this goal, Id.; 5) whether Snowbird's snowmaking proposal is desirable and/or compelling; and, 6) whether the proposed plan would actually attract "destination skiers" (versus weekend skiers) and whether destination skiers actually impact midweek rather than weekend and holiday skier numbers. Id. at 2.
In questioning Snowbird's contentions and establishing a basis for the relationship between the public good and Snowbird's expansion proposal, the Forest Service must focus on several relevant factors. First, the number of skier days in the West is not increasing and has not for the last several years. Therefore, there is no increase in the demand for ski terrain. In addition, lift ticket prices are increasing steadily at a rate higher than inflation. The high cost of skiing may explain why the number of people skiing has not increased, but it certainly means that fewer and fewer lower income individuals will be able to ski at resorts. Furthermore, increases in ticket prices are closely linked to capital investments at ski resorts, including the building of new lifts and facilities, the expansion and extensive modification of terrain and the installation and operation of snowmaking equipment.
Another factor which necessarily defines the Forest Service's statement of the purpose and need of the project is the agency's management obligations. For example, the Forest Service is required by statute to protect the timber, range, watershed, wildlife and fish of the National Forests. The needs of Snowbird do not take precedent over the requirements of these resources. Indeed, pursuant to its responsibility to manage the public lands for the benefit of the public, the Forest Service is required to put the public interest before the needs of an individual applicant. As the Forest Service Manual directs:
A permit shall not be granted simply to provide a commercial profit-making opportunity. The Forest Service is not required to accommodate a desire of an individual applicant. A real public service or other justification must be evident . . . to show at least that the use meets a public need . . . .
Forest Service Manual 2710.3.
Thus, to fully analyze whether expansion project will serve the public good, the Forest Service must question Snowbird's assertions regarding the purpose and need for the proposed expansion project and must consider the adverse impacts which will result for the proposed expansion. In addition, the Forest Service must consider the need for the project in the context of the agency's management responsibilities which include protection various forest resource values and do not include accommodating commercial needs of applicant.
C. Subsequent Analysis Should Examine, in Detail, the Potential Environmental Impacts of a Wide Range of Alternatives to the Proposed Project.
NEPA and its implementing regulations require an agency, in the preparation of an EIS, to explore the purpose of and to devise and analyze a range of alternatives to the proposed action. 40 C.F.R. 1502.14. This mandate, the "heart" of NEPA, furthers the statute's purpose of insuring careful study of the environmental impacts of government actions.
To be fully informed, an agency must develop a range of alternatives which lead to substantially different results. Citizens for Environmental Quality v. U.S. , 731 F.Supp. 970 (D.D.C. 1991) (range of alternatives must represent substantively different results); City of Tenakee Spring v. Clough, 915 F.2d 1308, 1310 (9th Cir. 1990) (citing 42 U.S.C. 4332 (2)(E), other citations omitted) ("NEPA requires that the agency rigorously explore and objectively evaluate all reasonable alternatives to a proposed action"); Trinity v. Romney, 523 F.2d 88, 94 (2nd Cir. 1975) (agency must consider alternatives requiring action of a significantly different nature). The consideration of alter- natives requirement furthers NEPA's goal of well-informed decision making by ensuring that the agencies "have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit analysis." Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988) (quoting Calvert Cliffs Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C.Cir 1971) (internal punctuation omitted, emphasis original).
The scoping notice currently states that the Forest Service has identified only two alternatives for study, the no action alternative and Snowbird's expansion proposal. Clearly, this is insufficient. Thus, to comply with NEPA, the Forest Service must develop and study a range of alternatives. These alter- natives should consider modifications of the proposal which disturb fewer trees and less terrain, limit adverse visual impacts, and prevent increased access from Snowbird to White Pine Canyon. Additionally, mitigation or off-setting measures should be included in various alternatives, including completely closing off access to White Pine Canyon from Snowbird; requiring Snowbird to take active steps to further the transportation goals for Little Cottonwood Canyon as set forth in the Salt Lake County Wasatch Canyons Master Plan; relocating or abandoning the structure proposed for Hidden Peak, and abandoning the proposal to build the Gad III lift.
Finally, the Forest Service should consider proposed or completed expansion of other, nearby ski resorts as an alter- native to the proposed development of Snowbird. See, Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (9th Cir. 1987), other issues reversed, Robertson v. Methow Valley Citizens Council, 490 U.S. 360, 109 S.Ct. 1835 (1989), confirmed, Methow Valley Citizens Council v. Regional Forester, 879 F.2d 705 (9th Cir. 1989). Where the goal of a project is to serve the public's interest in having "winter sports opportunit[ies]:" "[I]t should have appeared obvious that investigation was warranted to determine whether the development of winter sports opportunities could be pursued at alternative sites." Methow Valley, 833 F.2d at 815 (no consideration given to ways of achieving the Forest Service goal through other options, such as expansion of existing downhill ski areas in other parts of the state).
In sum, in order to consider a range of alternative to the proposed project, the Forest Service must develop and study a variety of scenarios for development that would result in diverse outcomes. Among these alternatives should be consideration of proposal that would rely on planned or completed expansion at other ski resorts to meet any public need for increased skiing opportunities.
D. Adequate Environmental Review of the Proposed Development Must Include Consideration of the Cumulative Impacts of the MDP Along With Past, Present and Reasonably Foreseeable Future Impacts, Including Impacts of Activities on Private Lands.
The regulations implementing NEPA require that an EIS must analyze the cumulative impacts of the past, present and foreseeable actions which may compound or add to the effect of the proposed action on the environment. 40 C.F.R. 1508.27 (b)(7). A "cumulative impact" is:
[an] impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency . . . or person undertakes such other actions.
40 C.F.R. 1508.7.
To fulfill its NEPA obligations, the Forest Service must consider the cumulative impacts of the proposed Snowbird expansion together with the following: 1) Snowbird's proposal to expand into Mineral Basin; 2) past, present and reasonably foreseeable expansion at the nearby Alta Ski Resort; 3) past, present and reasonably foreseeable expansion at Big Cottonwood ski resorts; 4) past, present and reasonably foreseeable expansion and development of Wasatch-Cache National Forest ski resorts; and, 5) past, present and reasonably foreseeable expansion and development of Park City area ski resorts. This cumulative impact analysis should include potential impacts on: 1) wildlife and fish, including sensitive, threatened and endangered species; 2) watershed resources; 3) congestion, pollution and parking in Little and Big Cottonwood Canyons; 4) soils and erosion; 5) Mineral Basin and American Fork Canyon; 6) wetlands and riparian areas; and, 7) visual quality in Little Cottonwood Canyon and Mineral Basin.
Thus, the Forest Service must analyze the cumulative impacts of area-wide ski area expansion. As stated in the relevant Forest Management Plan, ski area expansion is a "significant public concern as evidenced by comments critical of Snowbird's proposed expansion into White Pine Canyon and Scottie's Bowl, Solitude's proposed expansion into Silver Fork, and ParkWest's expansion to the Wasatch Crest." Id. at 15. Given that extensive expansion and development of ski resorts on Forest Service and nearby private land has occurred, is occurring and will occur, and may have startling impacts on the important resource values of the National Forest, the Forest Service must consider and disclose to the public the cumulative impacts this area-wide development.
E. In its Further Environmental Analysis, the Forest Service Must Consider Potential Impacts on White Pine Canyon Posed by the Gad III Chairlift Proposal.
The construction of the Gad III Chairlift, a component of Snowbird's proposed expansion project, significantly threatens adjacent White Pine Canyon and the safety of Snowbird's skiers. This pristine canyon "offers one of the only remaining areas in Little Cottonwood Canyon for beginning and intermediate back- country" use. Salt Lake County Wasatch Canyons Masterplan at 76. Because of the beauty and popularity of this canyon, Salt Lake County has recommended that White Pine Canyon "be retained in its natural state for dispersed recreational use." Id.
Despite this recommendation, Snowbird's expansion plan includes construction a lift to the ridge between Gad Valley and White Pine Canyon. Already, a great many skiers from Snowbird hike to this ridge and ski into White Pine Canyon over and down very steep avalanche prone terrain. Clearly, providing lift access to this ridge would greatly increase the numbers of Snowbird skiers accessing this dangerous terrain and would de facto expand Snowbird's permit area to include White Pine Canyon. So great and unregulated would the numbers of skiers accessing White Pine Canyon be, that serious safety concerns would arise. Snowbird skiers would endanger themselves as well as the beginner and intermediate winter recreationalists below them.
Thus, the Forest Service must analyze Snowbird's Gad III proposal for potential impacts on White Pine Canyon, and must assess the significant safety risks posed by allowing ready access to the dangerous ridges and gullies of this canyon. In addition, the Forest Service must study the potential impacts of the lift construction to the pristine nature of the canyon and to traffic congestion and transportation problems caused by White Pine skiers trying to return to Snowbird. Finally, the cumulative impacts analysis of this proposal must include examination of the impacts of increased out-of-bounds skiing from other area ski resorts and helicopter skiing on wildlife and backcounty use of Forest Service lands.
F. The Forest Service is Empowered and Obligated to Complete NEPA Analysis of Snowbird's Proposal to Expand its Operations into Mineral Basin.
Although Snowbird's planned expansion into Mineral Basin will occur mostly on private land, the Forest Service is obligated to regulate this activity. See, Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988). In Hodel, the Tenth Circuit determined that the Bureau of Land Management ("BLM") was obligated to regulate activities on a private right-of-way to prevent unnecessary and undue degradation of the adjacent Wilderness Study Areas. This agency obligation came from the Federal Land Policy and Management Act of 1976.
In addition to requiring the BLM to regulate activities on a private property holding, the Tenth Circuit ruled that the BLM must comply with NEPA "to determine whether there are less degrading alternatives" to the proposed activity on the right-of- way. Id. at 1090. Because the BLM "has the responsibility to impose an alternative it deems less degrading upon the non- federal actor," Id. at 1090-91, the agency was required to comply with NEPA to determine its options relative to its regulatory authority.
Similarly, the Forest Service has management obligations with regard to the National Forests as set forth in the Multiple- Use and Sustained-Yield Act of 1960 and the National Forest Management Act of 1976. These obligations require the Forest Service to manage and protect, among others, the wildlife, watershed and outdoor recreation resources of the forest surrounding and included in the Mineral Basin expansion project. In order to determine the proper regulations to impose on Snowbird in development of these lands, the Forest Service must comply with NEPA. Id.
Thus, although the bulk of Snowbird's plans to develop Mineral Basin will occur on private land, the Forest Service is obligated to regulated these activities to ensure that the development does not harm forest resource values. In order to determine what regulation of this activity is necessary, the Forest Service must comply with NEPA. This required environ- mental analysis will enable the Forest Service to make a well- informed decision regarding the Snowbird expansion plans.
G. The Vegetation Plan Should Be Expanded and Should Include Examination of the Overall Coverage of the Forest at Snowbird.
While the vegetation plan appears to carefully examine the health of the existing vegetation at Snowbird, the plan makes no comments and completes no study regarding the forest health implications of the vegetation coverage at the ski resort. In other words, the plan says nothing about increasing or decreasing the number of acres at Snowbird which are denuded of trees and other types of vegetation. Thus, while the plan explains in detail how exisiting tree stands should be managed, its says nothing about how the vegetation on the mountain as a whole should be managed.
Left unanswered are questions such as whether Snowhbird should be free to cut down hundreds of exisiting trees, as proposed in its current masterplan. The plan does not reach the issue of whether the resort should increase the numbers of stands of trees at the resort. Without such guidelines in the plan, the resort is free to cut down all the trees on the mountain without violating the intent of the vegetation plan. This result seems incongruent with the purpose of the plan and therefore should be rectified.
Finally, Snowbird has plans to plant many trees in Mineral Basin. Logic dictates that this proposal should be incorporated into the vegetation plan. This would provide Snowbird with the expertise it needs to properly plan for and manage these future stands of trees.
Thank you again for this opportunity to comment on the Snowbird Scoping Document. As noted above, SOC has several serious concerns about the present state of the scoping notice and has many suggestions for the Forest Service's future environmental analysis of Snowbird's planned expansion scheme. SOC hopes that the Forest Service will carefully consider these comments and concerns and will continue to keep SOC intimately involved in the agency's analysis of this proposal. SOC salutes the Forest Service's goal to protect and manage the National Forests.
Joro Walker for Save Our Canyons
Revised May 29, 1999