This Court sought clarification regarding the connectedness of the land exchange, asking whether Snowbird had proposed seeking an easement over, rather than title to, the public lands it needed to build its Mineral Basin chairlifts. In an unsigned Small Tracts Act application, Snowbird suggested obtaining such an easement. AR at 10390-91, attached. This does not alter the connectedness of the Mineral Basin development. The Forest Service still needed to approve the easement pursuant to the Act before Snowbird could construct the core of its Mineral Basin development - chairlifts A and B. Under the Act, this agency action would trigger the exact same statutory obligations required for a land exchange. 16 U.S.C. 521c(2) (governs exchange of approximately equal "interests in lands"). The same NEPA requirements that apply to a land exchange also apply to an easement. FSH 1909.15, 31.1b(7) (Category 7 applies to the "sale or exchange of land or interest in land . . . where resulting land uses remain essentially the same"). Thus, whether Snowbird could have requested an easement makes no difference to the connectedness inquiry - the Forest Service still needed to make a decision based on the exact same law. Because an easement would still require Forest Service analysis and approval, the agency was obviously misleading the public when, in its DEIS, it stated for Mineral A and B, "the proposed lift line and both upper and lower stations are entirely on Snowbird's private property," Aplt. App. at 318 & 317. Whether by approving an easement or land exchange pursuant to the Small Tracts Act, Forest Service action was necessary before Snowbird's chairlifts, as proposed and as completed, could go forward.

During argument Snowbird falsely stated that the approved 50,000 square foot Hidden Peak structure would appear "twice as big" as existing structures on the peak. As photograph Exhibit "1" of Appellants' Opening Brief demonstrates, the structures now on Hidden Peak are a fraction of the size of the approved structure and have a comparatively minor visual impact. The three-story approved structure is 30 times the size of the existing single-story 1,681 square foot skier services building. FS-SB App. at 189. The Forest Service's suggestion that a structure atop Hidden Peak would reduce the visual impact of the existing structures is also contradicted by the agency's finding that "the structure would be significantly larger and more noticeable than the Tram terminal" and "many viewers . . . would consider the structure to be a substantial impact to the scenic resources." FS-SB App. at 494; 496 (preferred alternative); 488 (dramatic impact of daytime glare and nighttime illumination); 491 (structure "would dominate the ridgeline;" not respond to surrounding landscape; "prominent position and obviously human-made" structure would violate Forest Plan); 492 (views from peak obstructed); 371 (views from much of Wasatch Range and surrounding valleys adversely impacted).

This Court questioned whether the Forest Service considered an off-peak alternative to a structure on Hidden Peak. It did not. Rather, the agency arbitrarily and capriciously refused to do so, although an off-peak alternative would be more consistent with the Forest Plan, County zoning and preservation of the protected Wasatch ridgeline. The agency dismissed an off-peak alternative because it would "have adverse visual quality effects," or require "amendment of Utah County zoning and Forest Service policy." FS-SB App. at 624. Yet, these identical concerns did not prevent the agency from considering three alternatives locating a large building on protected Hidden Peak. Id. at 267-68, 706. Skier circulation and balance are the only other "reasons" the agency gives for rejecting an off-peak alternative. However, the FEIS does not even mention a Hidden Peak structure as having a beneficial or adverse impact on skier circulation or balance. Id. at 466 & 468. Indeed, the agency admits that locating skier services anywhere away from existing base facilities, including off of Hidden Peak, would improve skier circulation. Id. at 742. The agency also states that one of the most congested areas on the mountain is the long lines for the Tram, which terminates at Hidden Peak. Id. at 360. As the agency admits, a structure on Hidden Peak would exacerbate this problem, thus worsening circulation problems. Id. at 742.¹ What remains as the real concern is the need for skier services. However, the Forest Service has offered no reason that these needs could not be met totally or partially off-peak. Given the sensitivity of a Hidden Peak site and record references to dozens of off-peak locations where these needs could be met, FS-SB App. at 706, 719-20; Aplt. App. at 335, 344, 298 & 383, the agency's failure to consider an off-peak alternative violates NEPA.

Respectfully Submitted the 15th day of November, 2001.

__________________________

JORO WALKER

BRUCE PLENK

Attorneys for Plaintiffs/Appellants

I hereby certify that I mailed, via first class mail, two copies of the foregoing Appellants' Supplemental Citations to the Record and Response to Questions at Oral Argument to:

Maggie Hughey		Martin Banks, Esq.
Stephen Roth		Mark Hindley, Esq.
Assistant United States Attorneys		Stoel Rives LLP
185 South State, Suite 400		201 South Main Street, Suite 1100
Salt Lake City, Utah 84111-1506		Salt Lake City, Utah 84111-4904

and

Todd S. Aagaard
Environment & Natural Resources Division
Department of Justice
P.O. Box 23795 (L'Enfant Plaza Station)
Washington, D.C. 20026

DATED this 15th day of November, 2001.

_________________________

JORO WALKER

Attorney for Plaintiffs/Appellants