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The
Issue:
The Wasatch Powderbird Guides (WPG)
special use permit expires in
June
1997 and the company is requesting a new permit for another five
year
term. The Forest Service is inviting public input on the issues
and
alternatives that need to be addressed in its environmental analysis
of
this request.
The preliminary alternatives being considered by the Forest Service
are:
Alternative A - No permit would be
issued. (The
required No Action
Alternative).
Alternative B (WPG's Proposal) - A
permit would be issued to
allow
helicopter skiing under the same terms and conditions as the
existing
permit.
Alternative C - This Alternative
would allow helicopter skiing in
the
"tri-canyon" area of the Wasatch on week days (Monday - Friday)
only.
Alternative D - This Alternative
would allow helicopter skiing in
the
"tri-canyon" area of the Wasatch on weekdays (Monday - Friday)
and
alternating weekends.
Alternative E - This Alternative
would allow helicopter skiing in
the
"tri-canyon area of the Wasatch on week days (Monday - Friday) and
even
numbered weekend days.
Alternatives will consider limits on the number of helicopters used
and/or
helicopter days in certain circuits.
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Save
Our Canyons'
Position
This is a brief summary of a more
detailed recommendation.
Goal: Eliminate, or as a compromise, substantially reduce noise and
user
conflicts caused by heli-ski activity and helicopter canyon over
flights.
Balance WPG activity with residential and commercial growth and
ever
increasing dispersed winter back country use in the Central
Wasatch.
SOC ALTERNATIVE 1
(No Action) No renewal of the heli-ski permit. Medical and/or
County
helicopters would continue to conduct any necessary rescues and UDOT
would
contract with private or public agencies for highway avalanche
control
work.
SOC ALTERNATIVE 2
* WPG will stage, base, fly or operate no more than one
commercial
helicopter in the Central Wasatch at any time.
* Various terrains would be subject to limitations on the total
number of
days of heli-ski operation.
* The heli-ski season would be limited to December 15 - March 15
inclusive, with some exceptions for the American Fork region. This
policy
would be easy to manage and would still allow WPG to operate in
excess of
their five year historical use.
* SOC suggests that either WPG not fly or ski in the Central Wasatch
on
Friday, Saturday and Sunday or, alternatively, that WPG would not fly
or
ski in the Central Wasatch for more than 6 weekends in the December
15 to
March 15 season.
* Heli-free circuits would be instituted in the Millcreek, Lambs
Canyon,
Park City, and Snake Creek areas.
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What
You Can Do
The Forest Service wants to know if
there are additional issues
or
alternatives they should consider. The public comment period ends on
April
7 so act now to help eliminate and/or curtail the heli-skiing
concession.
Send your comments to
MICHAEL SIEG, District Ranger
Salt Lake Ranger District
6944 S. 3000 E.
Salt Lake City, UT 84121
Important Heli-ski
meeting:
March 24 7:00 pm
A panel discussion sponsored by the Forest Service
Whitmore Library
2197 E. 7000 S.
Salt Lake City
Also, let others know how you feel. Write to:
Public Forum
Salt Lake Tribune
P.O. Box 867
Salt Lake City, UT 84110
Fax: 237-2022
Readers' Forum Deseret News
P.O. Box 1257
Salt Lake City, UT 84110
Fax: 237-2121
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More
Information
The following is a
letter regarding the Heli-skiing
permit controversy by Joro Walker:
Bernie Weingardt
Forest Supervisor
Wasatch-Cache National Forest
8230 Federal Building
125 South State Street
Salt Lake City, Utah 84138
Mike Seig
District Ranger District
Salt Lake Ranger District
6944 South 3000 East Street
Salt Lake City, Utah 84111
Re: Wasatch Powderbird Guides Permit
Application
Dear Bernie and Mike:
Thank you for soliciting comments from
Citizens' Committee to Save
Our Canyons (SOC) regarding the latest developments in the permit
application process for Wasatch Powderbird Guides (WPG). Recently,
WPG prematurely halted environmental review of its permit application
and suggested that the Forest Service issue a one-year extension to
allow WPG to continue its helicopter skiing operations.
SOC trusts that the Forest Service
will reject the WPG proposal.
To approve the proposal would violate the purpose and letter of the
National Environmental Policy Act (NEPA); disrupt, if not completely
forestall, public participation in the permitting process; and reward
WPG's clear attempts to circumvent its legal obligations. SOC
clarifies these points below.
A. NEPA Requires the Forest Service
to Complete Environmental
Review Before Granting Any Extension of the WPG Permit.
1. Failure to undertake full
environmental review of the WPG
permit application would violate the purpose and letter of NEPA.
To issue a decision regarding the WPG
permit application without
the advantage of environmental review would violate the purpose of
NEPA. As Congress made clear, NEPA requires agencies to make
well-informed decisions based on complete environmental data. In
addition, the NEPA process secures the public access to and the
opportunity to comment on this data. As the Supreme Court explained,
NEPA "ensures that the agency, in reaching its decision, will have
available and will carefully consider detailed information concerning
significant environmental impacts" and "guarantees that the relevant
information will be made available to" the public. Robertson v.
Methow Valley Citizens Council, 109 S.Ct 1835, 1845 (1989).
Unless the Forest Service delays its
decision regarding extension
of WPG permit until after obtaining and fully considering the
relevant environmental information and after involving the public in
this review, the agency will defy the purpose of NEPA. Otherwise, the
agency will be forced to make an ill-informed decision without the
benefit of environmental analysis and will therefore act contrary to
NEPA's purpose. In addition, the Forest Service would formally sever
the public from the agency's decision regarding the WPG application.
Extending WPG's current permit without
first completing
environmental analysis would also violate letter of NEPA.
Importantly, where a proposed activity on the National Forest may
have significant impacts the Forest Service must undertake
environmental analysis. Sierra Club v. Hodel , 848 F.2d 1068,
1088-09 (10th Cir. 1988) (an agency must "issue a full-fledged
EIS, unless it concludes that the action will have no significant
impact"). Because the Forest Service has made no such finding with
regard to the WPG application, environmental analysis must proceed.
Furthermore, a categorical exclusion
is never appropriate where
there is the possibility that significant environmental impacts will
stem from the proposed project. 40 C.F.R. § 1508.4
(categorical exclusion applies only to "actions which do not
individually . . have a significant effect on the environment").
Indeed, not only has the Forest Service failed to determine that no
significant impacts will result from a permit extension, but the all
the agency's conduct and analysis up to this point indicate exactly
the opposite -- that any extension of the WPG permit has the distinct
potential to significantly impact the environment.
2. The Forest Service's previous
conduct and existing analysis
confirm that any extension of the WPG permit has the potential to
significantly impact the environment.
The Forest Service's previous actions
establish that the agency
must conclude environmental analysis before issuing any decision
regarding the WPG application. By initiating an extensive and public
time-table for completing environmental review of the WPG permit
application, the Forest Service ultimately concluded that it must
finish environmental analysis before issuing any decision on the
proposed application. Thus, the Forest Service has determined already
that an environmental analysis of the permit is necessary under NEPA
because the extension of the permit had the potential to
significantly impact the environment.
Logic dictates that, at the same time,
the Forest Service also
found that it could not make any well-informed decision regarding the
permit application until it had relevant environmental data. This
determination precludes the Forest Service from now asserting that it
can extend the WPG permit without the benefit of environmental
review.
Furthermore, issuing a "temporary"
permit for WPG has basically
the same potential for environmental impacts as does issuing a
five-year permit. The majority of the WPG operation has immediate
impacts. For example, impacts to the public safety, the opportunities
for solitude in wilderness areas, golden eagles and the forest are
impacts which will not vary in significance depending on the duration
of the WPG permit. These impacts are as likely to be significant if
the Forest Service issues the WPG permit for one-year or for five
years.
Again, because of the immediate nature
of the impacts of the WPG
operation, the Forest Service's decision that significant impacts may
result from this operation applies to any extension of the WPG
permit. By the same token, the Forest Service's previous decision
that significant impacts may occur as a result of WPG operation
establishes that extension of the WPG permit is not the type of
action that can be categorically excluded from environmental review.
3. The Forest Service's findings to
date indicate that any
extension of the WPG permit has the potential to significantly impact
the environment.
In addition, that any extension of the
WPG permit requires
environmental analysis is conclusively established by the findings
made in the draft environmental document already prepared by the
Forest Service to review the WPG permit application. This document
reveals that there is extensive and unresolved disagreement among
Forest Service personnel and consulted avalanche professionals
regarding whether WPG's bombing practices pose a serious safety
hazard to back-country users. Furthermore, the draft document reveals
disagreement among Forest Service experts as to the impact that these
bombing practices have on the health of the forest itself.
Clearly, where such unresolved
disagreements exist, the Forest
Service is precluded from maintaining that there is no potential for
significant impacts posed by WPG operations. See, Citizens
Committee to Save Our Canyons v. U.S. Forest Service, Case No.
1-95-CV-68 G (holding that Forest Service's failure to resolve
disagreement among consulted avalanche professionals regarding the
threats to public safety posed by the construction of a chair lift
and ski runs precluded a finding of no significant impacts).
As a result, based on the Forest
Services recent analysis of the
WPG operations, the agency may not now determine that an extension of
the permit will have no significant impacts and may not, therefore,
exclude the permit extension from environmental review. 40 C.F.R.
§ 1508.4 (categorical exclusion applies only to "actions
which do not individually . . have a significant effect on the
environment").
4. Forest Service regulations prohibit
categorically excluding a
one-year extension of the WPG permit.
Finally, the Forest Service's own
regulations prevent the agency
from treating the WPG permit application as categorically exempt from
environmental review. First, as established above, any extension of
the permit has the potential to significantly impact the environment.
The Forest Service cannot state with certainty that "based both on
past experience and environmental analysis, permit renewal will
have no significant effect on the human environment . . . ." FSH
1952.2, Chapter 30.
Accordingly, a one-year extension of
the WPG permit does not fit
within any of the types of actions which are categorically exempt
from environmental review. Extension of the WPG permit is clearly not
a "continuation of minor, short-term (one year or less) special uses
of National Forest System lands." 31.1b(8) (listing as an example
"approving, on an annual basis, the intermittent use and occupancy
by a State-licensed outfitter or guide").
The WPG operation is by no means a
minor use of the forest. The
operation affects thousands of acres of forest lands and impacts
thousands of back-country users each year. The operation threatens
the opportunities for solitude in at least three wilderness areas. In
addition, the Forest Service has already documented that the WPG
operation could have serious impacts on the public safety and the
health of the forest in general.
Further, that the WPG operation is not
a minor use is confirmed by
the extensive public involvement in and controversy generated over
the WPG permit application. Hundreds of individuals have attended the
public scoping meetings sponsored by the Forest Service. In response
to the call for public comment on the scoping for the permit
application, the Forest service received close to 300 letters. Such
an outpouring of public comment indicates beyond doubt, that any
extension of the WPG permit is not an extension of a minor use. (See
footnote 1 below)
In addition, the extension of the WPG
is not categorically
excluded for environmental review because extraordinary circumstances
are related to the proposed action. 30.3(1)(b) FSH, Chapter 30 (a
proposed action may be categorically excluded only if "there are no
extraordinary circumstances related to the proposed action").
Extraordinary circumstances include, but are not limited to, the
"presence" of threatened and endangered species or their critical
habitat, 30.3(2)(b), or congressionally designated wilderness areas.
30.3(2)(d). Both of these circumstances are implicated by the WPG
permit application.
First, the extensive WPG operations
threaten to impact the
threatened peregrine falcon, recently found nesting within the
present WPG permit area. Evidence indicates that these birds have
been disturbed by WPG activities. Further, ample evidence suggests
that WPG activities jeopardize the well-being and breeding of the
golden eagle which enjoys a unique statutory protection similar to
that provided under the Endangered Species Act to threatened and
endangered species. (See footnote 2 below)
Second, the WPG operation threatens
nearby wilderness areas.
Currently, the WPG flies over and near several congressionally
designated wilderness areas. Analysis and public comment confirm that
the noise from WPG's helicopters threatens to impact the
opportunities for solitude in these pristine areas. As a result,
because of the presence of wilderness areas in relation to WPG's
proposed activities, extraordinary circumstances prevent the Forest
Service from categorically exempting the WPG permit from
environmental review.
B. To Extend the WPG Permit Without
First Completing the NEPA
Process Would Unlawfully Preclude Public Participation in the
Agency's Decision-Making
If the Forest Service were to abort
the NEPA process and to issue
an extension of the WPG permit without further formal public input,
the agency would be deviating from NEPA and would seriously disrupt,
if not completely thwart, public participation in this process. From
the outset, the Forest Service promised the public full participation
in the agency's environmental review of the WPG permit application.
In response, the public has exhibit an overwhelming desire to be
involved. The agency has held several standing-room only hearings to
establish a time-line for its NEPA review and to elicit public
comment on the process. The Forest Service subsequently issued a
scoping document for the permit application and received almost 300
written responses to its request for public input.
To abort this process prematurely
would be vastly unfair to the
public -- an unfairness compounded by the fact that the process was
aborted at the behest of WPG and for no legitimate reason. As a
result, suspending the NEPA review process would undermine public
confidence in its access to the Forest Service decision making
process. In addition, as established above, such a move would
unlawfully defy NEPA's requirement for public participation in agency
decisions.
Because the Forest Service's elaborate
promises of public
participation in the various stages of the NEPA process, that this
process may be continued next year is no consolation. Based on
timelines for this year, the public expended a great deal of time and
effort to become educated about and involved in the permit
application process. Should the Forest Service delay this process,
based solely on a request by WPG, the public will understandably
perceive that it has been taken unfairly out of the loop and that its
input is not valued. Indeed, by removing its decision making from the
NEPA process, the Forest Service would preclude the public from any
formal means of countering the WPG's significant role in and
influence on the extension of the WPG permit. Plainly, such
legitimate perceptions will undermine the public's confidence in its
role in the management of the public forests.
C. To Grant a One-year Extension of
the WPG Permit Would
Unfairly Reward the Applicant's Refusal to Meet its Legal
Obligations.
Until recently, the Forest Service had
been conducting full NEPA
review of the WPG permit application. The agency had established a
time-line for this process and took extensive steps to involve the
public in this process. The public responded heartily, attending
hearings in great numbers and commenting in good faith on the scoping
document prepared to initiate NEPA review of the WPG permit. As
established above, to halt this process at the request of WPG and for
no legitimate reason, is vastly unfair to the public. In addition, to
do so would reward WPG for its failure to comply with the NEPA
process.
To allow an applicant to avoid NEPA
compliance, even if only for
one year, merely by the asking, would set a dangerous precedent. In
addition, such a move would foster the understandable public
conception that the applicant, not the public, has the ear of the
Forest Service. Certainly, the public knows that if it does not
comply with the various timelines and appeal periods for the NEPA
process, it will conclusively lose its opportunity to be involved in
the process. Certainly fairness dictates that the same constraints be
applied to the applicant. To do otherwise would be unfair and would
place a disproportionate amount of power in the hands of the
applicant. As a result, should the Forest Service suspend its
environmental review of the WPG permit, the agency will be unable to
avoid this unfairness and understandable conception of impropriety.
For the reasons stated above, any
Forest Service decision
regarding renewal of the WPG permit requires full environmental
review. To approve a one-year extension of the permit without first
completing an environmental analysis would violate the purpose and
letter of NEPA, would unlawfully abridge public participation in the
application process and would unfairly reward WPG's refusal to meet
the legal obligations which stem from its desire to operate on public
lands. We hope that you will seriously consider these arguments
before you make any decision affecting WPG's permit.
Thank you again for your attention to
these matters. Please feel
free to contact me at 801-273-0249 if you have any questions or
concerns.
Joro Walker
Attorney for SOC
1. Importantly, the relevant Forest
Service regulation states that
a short term continuation of a minor use of the forest may be
categorically exempt. However the regulation does not state that
decision regarding a short term continuation of non-minor use of the
forest, such as WPG's extensive and impactful operation, is a
categorically exempt from environmental analysis.
2. Because extraordinary circumstances
include, but are not
limited to, the examples listed in the Forest Service regulations,
the presence of the golden eagle, which enjoys special statutory
protection, would constitute an extraordinary circumstance and
therefore would preclude categorically exempting the WPG permit
application from environmental analysis.
United States Forest Ashley Salt Lake
Ranger District
Department of Service Uinta 6944 South 3000 East
Agriculture Wasatch-Cache Salt Lake City, UT 84121
National Forests (801) 943-1794
File Code: 1950/2720
Date: January 27, 1997
Dear Friend:
I am writing to inform you of, and
seek your input on, a proposal
to continue guided helicopter skiing on the Wasatch-Cache and Uinta
National Forests. The five year special use permit for Wasatch
Powderbird Guides (WPG) expires in June 1997. WPG has applied for a
new permit for another five year term. We will be conducting an
environmental analysis to evaluate WPG's proposed operation. We need
your input on the issues and alternatives that need to be addressed
in our analysis.
Many of you have been involved in this
debate since the last
permit was issued and recognize there are vastly different opinions
about this type of use in the wasatch canyons. Our intent is to make
a decision that will be easy to understand, easy to monitor, and fair
to backcountry users of your National Forests.
Issues
In 1991, an Environmental Assessment
(EA) was completed and a
Decision Notice signed that allowed WPG to continue guided helicopter
skiing on the Uinta and Wasatch-Cache National Forests through June
1997. Enclosure 1 are the issues that were addressed in that
analysis. Many of those issues may still be relevant today. If the
analysis done in 1991 is still relevant we will incorporate, by
reference, those portions of the 1991 EA into our new analysis and
environmental documentation.
The focus of our new analysis will be
new issues and alternatives
that are relevant to the situation today. Preliminary issues that we
have identified for our new analysis include:
1. Wildlife: There is concern with how
helicopter operations in
the Wasatch Mountains affects golden eagles during the nesting
period, which is early to mid March through early June.
2. Use of private lands for staging
areas: The existing permit
authorizes use only for National Forest system lands. In some areas,
private lands have been used for staging and refueling sites without
permission of private land owners.
3. Public safety: Based on our
monitoring the past five years
there is a concern that helicopter skiing in the Wasatach Mountains
poses a risk to the public. WPG also enhances public safety by
providing current avalanche hazard information to the public and
government agencies and by being available to assist in backcountry
rescues.
Wasatch Powderbird Guides 2
Preliminary Alternatives Being
Considered
The National Environmental Policy Act
(NEPA) of 1969 requires that
the No Action Alternative be considered. For this analysis the No
Action Alternative means no permit will be issued. This alternative
will be considered in the EA. For now we will call this Alternative
A.
Other alternatives being considered
for detailed review include:
Alternative B (WPG's Proposal) - A
permit would be issued to allow
helicopter skiing under the same terms and conditions as the existing
permit.
Alternative C - This Alternative would
allow helicopter skiing in
the "tri-canyon" area of the Wasatch on week days (Monday-Friday)
only.
Alternative D - This Alternative would
allow helicopter skiing in
the "tri-canyon" area of the Wasatch on week days (Monday-Friday) and
alternating weekends.
Alternative E - This Alternative would
allow helicopter skiing in
the "tri-canyon" area of the Wasatch on on week days (Monday-Friday)
and even numbered weekend days.
Alternatives will consider limits on
the number of helicopters
used and/or helicopter days in certain circuits.
Keep in mind that the issues and
alternatives discussed above are
preliminary and will be finalized through our scoping process.
Public Involvement:
Public involvement is a major part of
our analysis process; we
welcome comments and concerns. To be most effective comments should
be as specific as possible. We also want to know if there are
additional issues or alternatives that need to be considered that
have not been identified in this letter.
This mailing begins a 45 day public
comment period which ends on
April 7, 1997. This document is being distributed to indentified
individuals, organizations, businesses, government agencies, and
media outlets. There will be a public meeting held on February 3,
1997 at the Whitmore Library, 2197 East 7000 South, Salt Lake City,
from 6:30 to 8:30 pm. Copies of this scoping letter will be available
to the public at that meeting. Copies will also be available at the
Salt Lake Ranger District and Supervisor's Office of the
Wasatch-Cache National Forest in Salt Lake City and the Pleasant
Grove Ranger District and Supervisor's Office of the Uinta National
Forest in Provo. Other public meetings may be scheduled later as
needed.
Responsible Official
Salt Lake District Ranger Michael Sieg
(Wasatch-Cache National
Forest) and Pleasant Grove District Ranger Bob Easton (Uinta National
Forest) will be the responsible officials for this decision and will
decide whether or not to issue a permit and under what conditions.
Before a decision is made, a Wasatch Powderbird Guides 3
"pre-decisional" EA will be made
available for review, and those
who wish to comment on its contents will have a 30 day opportunity to
do so.
Other Agencies Involved
Salt Lake City, Salt Lake County,
Summit County, Wasatch County,
Utah County, Provo City, Wasatch State Park, Utah Department of
Wildlife Resources, the Utah Department of Transportation and the
Town of Alta will all be involved in this process. Each of these
agencies will have the opportunity to present information during the
scoping process.
Any Questions?
Please let us know if you're
interested in this proposal. Only
those who respond or otherwise express interest will be mailed copies
of the pre-decisional EA and copies of the final decision.
If you have any questions or need
additional information, contact
Al Soucie, Dave Ream or me, at the above address, or call
801-943-1794.
Please send your comments on this
proposal by April 7, 1997 to:
District Ranger
Salt Lake Ranger District
6944 South 3000 East
Salt Lake City, Utah 84121
Thank you for your interest in our
planning process and the
management of the Uinta and Wasatch-Cache National Forests.
Sincerely,
MICHAEL SIEG
District Ranger
Enclosure
Enclosure 1
1991 Environmental Assessment
Helicopter Skiing Issues
1. Noise and Other Intrusions: Helicopter
noise, helicopter
exhaust fumes seeing the helicopter disturbs homeowners and winter
backcountry users. They feel the WPG helicopters adversely affect the
solitude and ambience of the canyons and their experience. Although
WPG is excluded from landing in Wilderness, these sights and sounds
from adjacent non-Wilderness occasionally disturb backcountry users
in Wilderness.
2. Competition for Terrain and
Powder Snow: Backcountry
skiers, snowboarders and WPG clients compete for terrain and
backcountry powder snow. Backcountry users are often frustrated to
hike to an area to find the terrain already used by heliskiers.
Advocates of heliskiing feel that since heliskiing is a permitted use
they should be able to use the terrain available to them.
3. Helicopter Landing
Zones: Some
backcountry skiers and others have reported WPG helicopters have
compromised their safety by landing too close to them or by flying
too close to people and facilities. WPG has reported that backcountry
skiers often occupy ridge top landing zones to intentionally prevent
WPG helicopters from landing.
4. Backcountry Avalanche Control: Some
feel WPG should
limit explosive testing in the backcountry while others feel more
secure seeing the explosive test holes on the slopes. Other concerns
address the amount of explosives which WPG uses and safety concerns
for backcountry travelers traveling or camping beneath avalanche
paths being controlled by WPG. Some feel that the use of explosives
for stability testing provides valuable information for the Utah
Avalanche Forecast Center and avalanche forecasters with the Utah
Department of Transportation and ski area snow safety departments.
5. Backcountry Rescue:
WPG's presence in
the Wasatch provides a valuable element for experienced and timely
rescues because of their capabilities and response times.
6. Magnitude of Change for WPG:
There is concern that there
should be some kind of limit on the number of helicopters used by WPG
and/or the number of heliskier visits/runs made by their clients. WPG
has concerns of limits which may remove their flexibility and force
them out of business. Note: Limits were incorporated into the last
five years with the permit for WPG's operation and use data was
collected for that period.
7. Helicopter Skiing Opportunities:
WPG provides an
opportunity for people lacking the physical stamina, expertise or
desire to hike into the backcountry to experience backcountry skiing
on National Forest lands. Many feel that backcountry skiers do not
have exclusive or preeminent right to the backcountry and that the
Forest Service should provide the public an opportunity to helicopter
ski.
8. Economics: Many feel WPG
attracts people to Utah who
spend a great deal of money which stimulates the economy and provides
jobs and tax revenues. Others feel backcountry skiing and other uses
stimulates the economy as much as heliskiing and would stimulate the
economy even more if heliskiing were not available.
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