II. STATEMENT OF FACTS

A. Background

1. Snowbird Ski and Summer Resort, Inc. ("Snowbird"), operates a ski resort in Salt Lake County up Little Cottonwood Canyon on the Wasatch-Cache National Forest. AR at 49. Because it is located on public forest lands, Snowbird operates its ski resort in the confines of its special use permit (SUP) and with the permission and oversight of the Forest Service. AR at 0049.

2. Two federally designated wilderness areas flank Little Cottonwood Canyon road as it travels from the Salt Lake Valley to Snowbird. Steep, bare granite walls rise from the canyon bottom, while dense stands of sub-alpine fir, Englemann spruce and limber pine cover the upper, more gentle north facing slopes. Numerous snow-fed waterfalls spill from cliffs along the route and, high above the road, glacial lakes sit in alpine meadows below sheer peaks.

3. On the south side of Little Cottonwood Canyon, six miles up the steep road, is the Snowbird resort. Snowbird Ski and Summer Resort operates on 2,555 acres of public and private lands. The base of the area, called Snowbird Center is densely developed and includes 520 rooms of condominium and hotel lodging. Exhibit "1" attached. The largest of these, the Cliff lodge is eleven stories in height with 350 hotel rooms, 10 conference rooms and four restaurants. Snowbird has more than 44,000 square feet of existing conference and meeting space, as well as 15 restaurants, 17 retail shops, two general stores, one liquor store, and four cocktail lounges. Exhibit "1" attached (dining and shopping guide).

4. Snowbird has 10 lifts and one aerial tram, which service skiers and snowboarders. AR at 0805. The Tram leaves from Snowbird Center and ends on Hidden Peak.

5. Other facilities and activities provided by Snowbird include ice skating, swimming, hot tubbing, tennis, helicopter skiing, helicopter golf (transport by helicopter,) paragliding, a spa and fitness facility, an adventure park, an outdoor theatre, a ski and snowboard racing course, a mining theme park, a tubing hill, and mountain biking.

6. Currently the Snowbird Center is the focal point of the majority of these activities, which is reachable by foot from all lodging and dining facilities. Nearly all dining, shopping, conference activities, and interpretive facilities are located in and around the Snowbird Center. Alta Ski Resort is located 1 mile farther up the road at the end of Little Cottonwood Canyon.

7. The Twin Peaks Wilderness Area, on the north side of Little Cottonwood Canyon, comes within 200 feet of Snowbird's permit area. The Lone Peak Wilderness Area is approximately 1.5 miles from the Snowbird permit area. The huge structure that the Forest Service has approved to sit atop Hidden Peak is approximately 2.5 miles from the Lone Peak Wilderness Area and 1.75 miles from the Twin Peaks Wilderness Area boundary.

8. From these wilderness areas, as well as from the peaks of Wasatch Range outside these wild places, the views are spectacular. Ridgelines and peaks are rugged and undeveloped. Almost all development is concentrated in the canyon bottom. The skeleton of Snowbird's upper tram tower interrupts the vista of pristine alpine peaks.

9. Protection of ridgelines, skylines and peaks in the Wasatch has long been the focus of relevant land use planning. For example, Salt Lake County's Foothills and Canyons Overlay Zone ordinance prohibits development on ridgelines in the county, which includes much of the Wasatch as well as Hidden Peak. AR 0873 (Section 19.72.0 Development Standards). The County Ordinance states that:

[d]evelopment is likewise prohibited from occurring either on the crest or within one hundred feet horizontally from the crest of ridge lines highly visible from public rights-of-way or trails, or from ridge lines determined to be prominent in conjunction with an adopted county township plan identified and designated through the county's normal development review and approval process.

11. The Hidden Peak structure would be visible from nearly 250,000 acres of public lands on the Uinta and Wasatch-Cache National Forests. Currently, the peak is marred only by Snowbird's uncovered tram terminal, a small shed and a 1,700 square foot warming and ski patrol hut. Also on the peak is the top tower of the newly constructed Mineral A chairlift, which is allegedly located on Snowbird's private land.

B. Snowbird's Development and Expansion Plans

12. Snowbird submitted the, "Snowbird Ski and Summer Resort Master Plan Proposal," to the Forest Service on April 10, 1997. AR at 2021. In this plan, Snowbird was to present all of its development and expansion plans for the next 10 years so that the Forest Service could, with full public participation, conduct environmental analyses of the projects in concert, rather than on a piecemeal basis. AR at 1796. Snowbird's plans included several development projects impacted the public and private land in Mineral Basin, a vast bowl immediately adjacent and south of the Hidden Peak ridge, at the top of American Fork Canyon.

13. The 1997 Master Development Plan for Snowbird proposed, inter alia, the construction of a giant complex on Hidden Peak, construction of a new day lodge in lower Gad Valley, construction of a new lift which would facilitate access into White Pine Canyon, annexation of Scotties Bowl into Snowbird's SUP, and development of extensive snowmaking capabilities (covering 180 acres). In Mineral Basin, Snowbird's development plan called for the initiation of avalanche control, the annexation of 84 acres of public land into Snowbirds permit area, the construction of two chairlifts, and the blasting and re-contouring of approximately 20-25 acres of relatively untouched lands Mineral Basin. AR at 2024 - 2032 (elements of the proposal). See Alexis Kelner Photo of Mineral Basin and '99 photo during construction. Exhibit "3" attached.

14. While most of these projects would occur within the boundaries of the Wasatch-Cache National Forest, those in Mineral Basin would occur within the Uinta National Forest.

C. The Administrative Process

1. Scoping

15. In response to Snowbird's 1997 development plans, the Forest Service undertook environmental review of proposal pursuant to its obligations under NEPA and NFMA. To this end, the Forest Service issued a scoping notice for the Snowbird development proposal on May 16, 1997. AR at 6676. Save Our Canyons, other organizations and individuals submitted detailed scoping comments in response to this notice on June 10, 1997, June 12, 1997, and June 16, 1997. AR at 6323-6596; AR at 6524-6534 (Save Our Canyons comments).

16. In its scoping comments, Save Our Canyons stressed that the Mineral Basin development and expansion was connected to and an integral part of the entire Master Development Plan and that the Forest Service must analyze the environmental impacts of the entire project in one environmental document. AR at 6532.

17. The NEPA Compliance section of the Environmental Protection Agency also asserted that proper environmental analysis of the Snowbird development and expansion project must include examination of all proposed activities in Mineral Basin, including any on private land, together with the rest of the project:

[T]he location and connected operation of [Snowbird's] private land requires it be considered within the full scope of the project. Impacts, which need to be considered, are direct, indirect and cumulative impacts on the watershed, water quality, air quality and wildlife. Since the [Forest Service] land lying within the expanded boundary will go through the comprehensive analysis, it would not be practical for the private land impacts to be analyzed separately.

2. Draft EIS - October 16, 1998

19. On October 16, 1998, the Forest Service issued the Draft Environmental Impact Statement ("Draft EIS") for the proposed Snowbird development plan. AR at The Draft EIS did not include consideration of the Mineral Basin development and expansion as an action connected to the rest of Snowbird's master development plan. AR at 2591-2991.

20. After the issuance of the scoping notice, but prior to the issuance of the Draft EIS and unbeknownst to the public, Snowbird and the Forest Service were initiating a significant and clandestine undertaking - Snowbird applied for and was granted title to public inholdings within its private lands in Mineral Basin during the same time period the public was responding to the Draft EIS. AR at 10441 - 10444; AR at 10778- 10781.

3. The Mineral Basin Land Exchange - December 9, 1998

21. In an unsigned application dated December 22, 1997, Snowbird requested that the Forest Service deed to it "up to nine parcels" of public lands "totaling approximately 11.42 acres" within sections 17, 18, 19 and 20 of a specified township and range. AR at 10390 (emphasis added). The parcels of public land lie within an area dominated by property owned by Snowbird. AR at 10390. The application states that "Snowbird has decided to locate a chairlift in the immediate vicinity of the federal" parcels. AR at 10391. The application also states, with regard to the federal parcel that would be impacted by the proposed chairlift, that "Snowbird will either seek the necessary easement across this mineral survey fraction or reconfigure its lift and trail network to avoid this parcel." AR at 10391.

22. In a July 30, 1998 signed application, Snowbird requested that the Forest Service approve a land exchange that would give Snowbird title to "six or more" parcels of public land "totaling approximately 1.98 acres" in Mineral Basin within the same sections 17, 18, 19 and 20. AR at 10828 (emphasis added). Snowbird proposed that for the "six or more" public parcels, it would trade the Forest Service one parcel of private land of 6 acres on a cliff face, also in Mineral Basin. AR at 10828 - 29. Unlike the 1997 unsigned application, the 1998 application makes no mention of Snowbird's plan to "locate a chairlift in the immediate vicinity of the federal" parcels. AR at 10828 - 29.

24. The 1998 application included a provision that would require Snowbird to "bear all reasonable costs of administration, survey, and appraisal incident to the conveyance." AR at 10829; Small Tracts Act, 16 U.S.C. § 521(f) (same).

25. First on November 4, 1998, (AR at 10444), and then on December 9, 1998, (AR at 10781), the Forest Service approved a Mineral Basin land exchange on the basis of the agency's determination that the transaction was "categorically excluded" from examination in an environmental assessment or environmental impact statement. AR at 10441 - 10444; AR at 10778- 10781.

26. The two Decision Memos approving the Mineral Basin land exchange contain significantly different descriptions of the public land tracts to be deeded to Snowbird. AR at 10441; AR at 10778. The November Decision Memo deeds to Snowbird all public lands contained within the parameter of Snowbird's private land in the West ½ of section 17 and the Northeast 1/8 of section 18. AR at 10441. In contrast, the December Decision Memo deeds to Snowbird all public lands within the boundaries of Snowbird's private lands located in sections 8, 17, 18, 19 and 20. AR at 10778. Snowbird had not requested title to the public lands in section 8 in its July 30, 1998 application, (AR at 10828), but the Forest Service deeded any such lands to Snowbird in the December Decision Memo. AR at 10778.

27. Snowbird's private lands in sections 19 and 20 are not in Mineral Basin, but are in a totally different drainage - the adjacent Mary Ellen Gulch. AR at 10778 (December Decision Memo); 10565 (d) (map). Exhibit "8" attached. The total area of Snowbird's private lands in Mary Ellen Gulch relevant to the second land exchange equals approximately 63 acres. AR at 10393 - 94 (acreage tabulations for properties owned by Snowbird - Silver Bell, Red Cloud, Eudora, Patric Henry No.2, Mono). Thus, the December Decision Memo conveys to Snowbird all federal lands lying within this 63 acres of Mary Ellen Gulch.

28. While the Forest Service extended the reach of the Mineral Basin land exchange from its November to its December decision, the agency did not change its analysis of the land transfer in any way. AR at 10441 - 10444; AR at 10778 - 10781. The Forest Service's analysis and determinations of the public interest, including factors such as potential impacts to "scenic, wildlife, environmental, historical, archaeological, or cultural values" are identical in both decision memos. AR at 10442 - 43; AR at 10779 - 80.

29. Moreover, the December 1998 Decision Memo, potentially transferring additional acreage out of the public domain, does not require additional payment or additional acreage from Snowbird, (AR at 10778 - 10781), and relies on the same "Statement of Approximate Equal Value." AR at 10463.

30. Agency assessments, such as its determination of impacts to riparian areas and wetlands, which were based on review of the "six parcels" in the first Mineral Basin exchange did not expand review to all the potential public parcels in sections 8, 18, 19, and 20 impacted by the second exchange. AR at 10811.

31. The Forest Service's Biological Assessment/Biological Evaluation, prepared to analyze the potential impacts of the land exchange on animal and plant species, is limited to review of Mineral Basin and does not apply to the adjacent Mary Ellen Gulch. AR at 10788 - 10800; see also AR at 10808 (cultural survey restricted to Mineral Basin); AR at 10436 and 10435 (United States Fish and Wildlife Service concurrence regarding "no effect" on listed species based on description of proposal as involving 1.98 acres).

32. To categorically exclude the Mineral Basin exchange from more thorough review in an Environmental Assessment or Environmental Impact Statement, the Forest Service is required to determine that the land use resulting from the exchange will be essentially the same as before the exchange. Forest Service Handbook, 1909.15, 31.1b(7). The Forest Service made no determination regarding changes in the use of land as a result of the exchange in the decision document prepared for Mineral Basin land exchange. AR at 10441 - 10444; AR at 10778- 10784.

33. Forest Service comments suggest that the agency was determined to categorically exclude the Mineral Basin land exchange from more thorough environmental analysis before the agency undertook review of the project. AR at 10476. (Gerrish Willis, USFS, wrote, "Snowbird has applied under the Small Tracts Act to interchange (exchange) ?[public lands] in Mineral Basin. They have contacted Pioneer to do the environmental analysis. We plan to eventually CE [categorically exclude] the project").

a. Failure to notify public regarding Mineral Basin land exchange.

34. Statute and regulation require the Forest Service to involve the public in and inform the public about its decision-making regarding the Mineral Basin land exchange. Forest Service Handbook 1090.15, 32.1 ("interested and affected persons must be informed in an appropriate manner of the decision to proceed with the proposed action" (sec. 11.7)). The Forest Service completely failed to give any official notice or comment opportunity to the public, other than one adjacent landowner, at any time before, during or after the consummation of the land exchange. AR at 10442; AR at 10779. This failure occurred although that Rob Cruz, NEPA Coordinator, of the Wasatch-Cache National Forest, Salt Lake Ranger District, had recommended to Forest Service officials that they provide such notification. AR at 2222 ("I recommended that they call SOC [Save Our Canyons] and Utah County as a min[imum] to complete scoping for this proposal").

35. Specifically, the Forest Service failed to give Save Our Canyons, the Wasatch Mountain Club, or any other non-governmental entity (aside from one landowner in Mineral Basin) any notice at any time before, during or after the consummation of the land exchange. AR at 10442; AR at 10779.

36. Both the November and December Decision Memos state, in toto, with regard to "public involvement" in the proposed action, that:

Adjoining landowners were notified of this application by sending a copy of the application together with a notification letter dated August 31, 1998. Utah County was contacted on September 3, 1998, regarding the proposed interchange. At the Forest Service's request, representatives of Snowbird met on July 6, 1998, with members of Save Our Canyons and the Sierra Club to discuss the proposed interchange. In response to these various public involvement efforts, the Forest Service has not received any opposition to the proposed interchange.

37. Representatives of Save Our Canyons who attended the referenced meeting with Snowbird remember that Snowbird referred to the land exchange only briefly and only as something that the Forest Service would analyze in the future. Furthermore, participants were not given any opportunity to comment to the Forest Service on the proposal and received no opportunity to address the decision, which the Forest Service finally approved. AR at 10442; AR at 10779. In any case, this meeting occurred without Forest Service attendance, before Snowbird had applied for the exchange, and well before the Forest Service issued its Decision Memos. AR at 10442; AR at 10779 (same).

38. No member or officer of Save Our Canyons or the Wasatch Mountain Club or any other member of the general public received any notification of the Forest Service's November 4, 1998 and December 9, 1998 decisions regarding the Mineral Basin land exchange. AR at 10437 - 10440; AR at 10452 - 10455. The Administrative Record Decision contains one letter allegedly sent to "Tom Bergen" of Save Our Canyons on November 4, 1998 and again on December 10, 1998 regarding and containing the Decision Memos for the land exchange. AR at 10440; AR at 10455. The address used by the Forest Service for Tom Berggren was 18 months out of date -- Mr. Berggren had moved from the address used by the Forest Service on June 5, 1997. Neither Mr. Berggren, nor any other member or officer of Save Our Canyons received any written or oral communication regarding, nor copies, of the Decision Memos for the Mineral Basin land exchange. Noyes Declaration at ¶ 16, Exhibit "5", attached.

39. According to the Administrative Record, the Forest Service choose not to notify Save Our Canyons of the land exchange by sending the its decision memos to the organizations official post office box. The agency also choose not to disclose it decision on the land exchange to any of the individuals who attended the meeting with Snowbird regarding the land exchange. AR at 10437 - 10440; AR at 10452 - 10455.

40. The Forest Service was also aware that the public would be intensely interested in any proposal to exchange lands in Mineral Basin. For example, in an email to Steve Dodds, the Forest Service Land Surveyor, Gerrish Willis, Uinta National Forest, states, regarding the Mineral Basin land exchange, that "[t]he FS wants this deal to be completely clean and above board, as it's high visibility." AR at 10671.

b. The Snowbird surveys of Public Lands in the Mineral Basin Project Area - April and July 1998.

41. Starting in December 1997, the Forest Service and Snowbird became more and more aware that the proposed Mineral Basin land exchange would actually involve the transfer to Snowbird at least 3.7 acres, and up to 11.67 acres, of public lands and that these tracts of would be traversed by both proposed Mineral Basin lifts. For example, AR at 10390 - 91 (December 1997 application citing 11.42 acres of public lands in the Mineral Basin project area); AR at 8681 b (April 1998 Map "Snowbird Mineral Basin Project subject to EIS," 3.7 to 11.23 acres); 10327 (Snowbird's Survey Map of Public Lands in Mineral Basin, 3.87 to 11.67 acres).

42. Snowbird sent to the Forest Service a map dated April 27, 1998 and entitled "Mineral Basin Project subject to EIS." This map shows public parcels totaling 3.7 acres intermixed with Snowbird's private lands. AR at 8681b. This map also shows the Mineral Basin "Proposed chair lift alignment" running directly over the largest USFS parcel of 1.47 acres. AR at 8681b. The map depicts a "(p)roposed alternative chair lift alignment," which substantially changes the Mineral A lift to avoid the identified public land parcels. AR at 8681b. This realignment involves replacing the single Mineral A lift with two, shorter lifts. Id.

43. Beginning on July 15, 1998, Alpentech, a contractor for Snowbird, surveyed Mineral Basin to determine the location and size of public lands in the Mineral Basin project area. AR at 10404 - 05 (Letter from Alpentech to Snowbird regarding "Outline of Property Boundary Survey in Mineral Basin"). This on-the-ground survey of the Mineral Basin project area essentially verified the location and size of the public land parcels depicted on the April 1998 map. AR at 10565 (a), (b), (c) and (d); compare AR at 8681 (b). The survey found all three witness corners (or monuments placed to mark the corners or other reference points to identify property boundaries) for the 1.47 acre parcel of public land traversed by the proposed Mineral A lift. AR at 10565 (b). This means that Snowbird identified the exact location and size of the 1.47-acre parcel that was to be impacted by the Mineral A lift. AR at 10565 (b).

44. In maps it presented to the Forest Service on December 1, 1998, Snowbird determined that the public lands involved in the Mineral Basin land exchange totaled 9.39 acres. AR at 10565.

c. The Draft EIS Does Not Mention Pending Land Exchange and Misrepresents Land Ownership in Mineral Basin.

46. The Forest Service's Draft EIS, issued on October 16, 1998, before the land exchange was complete, makes no mention of the proposed Mineral Basin land exchange. AR at 2592-2991.

47. In the Draft EIS, the Forest Service also contradicts facts regarding land ownership known to the Forest Service and Snowbird as of October 16, 1998. For example, the Forest Service states that regarding the Mineral A chairlift, "the alignment and both top and bottom stations are on private land" and regarding the Mineral B chairlift, "[t]he proposed lift line and both upper and lower stations are entirely on Snowbird's private property". AR at 2697 (emphasis added). The agency also states that "all of the physical developments and most of the skiing terrain proposed in Mineral Basin are on private land." AR at 2688.

48. As of October 16, 1998, the Forest Service also had before it Snowbird's application to trade 1.98 acres of public lands for a private parcel. AR at 10828 - 29 (July 30 , 1998). Snowbird's application for the Mineral Basin land exchange also specifically listed the parcel over which the Mineral A lift was proposed to be constructed, and actually was constructed in 1999. AR at 10828 (fifth parcel listed).

49. Indeed, after the fact, in a November 1999 letter to the Forest Service, Snowbird admitted that the Mineral A does indeed cross what was previously public land; "Snowbird could have installed and operated the Mineral Basin project without the [land] interchange. It would have been less than ideal, but Snowbird's new ski lift and runs could have simply been built around the interchanged parcels." AR at 10542.

d. The Decision Memos are Inaccurate

50. In the Decision Memos for the Mineral Basin land exchange, the Forest Service fails to identify the location and size of this parcel and fails to acknowledge that it lies in the path of the proposed Mineral A lift. AR at 10441 - 10444; AR at 10778- 10784. Despite the fact that Snowbird had pointed this out to the Forest Service. AR at 10391. ("Snowbird has decided to locate a chairlift in the immediate vicinity of the federal?" parcels.)

51. All of Snowbird's maps show acreage figures significantly different from the 1.98 acre figure the Forest Service adopted to describe the public lands to be deeded to Snowbird in the Forest Service's November and December Decision Memos consummating the Mineral Basin land exchange. AR at 10441; 10778 (Decision Memos stating that 1.98 acres of public lands will be transferred to Snowbird).

52. In a November 23, 1998 memorandum from Steven Dodds, the Forest Service Land Surveyor, to Peter Karp, Forest Supervisor of the Uinta National referred to his October 27, 1998 meeting with J.D. Gailey, Land Surveyor working for Snowbird regarding the results of Snowbird's July 1998 survey of the public lands in Mineral Basin. AR at 10665. In that memorandum, the Forest Service states that the October 27 meeting was necessary because Snowbird's "returns on several mining claims differed greatly from the 'official' BLM [Bureau of Land Management] record as per the supplemental plat of this area." AR at 10665.

53. In an email to Steve Dodds, the Forest Service Land Surveyor, Gerrish Willis, Uinta National Forest states, regarding the Mineral Basin land exchange, "[t]his will be a call by the Forest. The FS wants this deal to be completely clean and above board, as its high visibility. Would it be ethical to use the BLM record, knowing that their figures don't jive with what is located on the ground?" AR at 10671

e. The Entire Mineral Basin Proposal is Connected to the Rest of the Snowbird's Development and Expansion

54. In its March 1997 Draft Master Development Plan, Snowbird proposed to the Forest Service that the top station of the Mineral A lift, which terminates on Hidden Peak, "would be incorporated into the proposed ski patrol / food service / restrooms structure on the peak." AR at 5718.

55. In a March 18, 1997, meeting with Snowbird discussing Snowbird's master development plan, the Forest Supervisor, Bernie Weingardt, stated that he believed that the design that incorporated the Mineral A top station into the Hidden Peak structure would mean that the Mineral Basin development would be "connected" to the rest of the master development plan. AR at 5706 (meeting minutes state that "[c]onsensus is that reviewing / proposing lifts as integral part of Hidden Peak structure they are connected, and there is a F[orest] S[ervice] decision to be made - alt[ernative] of moving top term[inal] from b[ui]ld[in]g. would get away from FS decision - FS agrees that linkage is top terminal @ bldg.; otherwise no FS decision" ) AR at 5706 (emphasis added.)

56. Less than a month later, Snowbird changed the description, but not the purpose and function, of the Mineral A lift so that "the top station would be adjacent to the proposed structure on the peak." AR at 2030 (Snowbird Ski and Summer Resort Master Plan Proposal, April 10, 1997) (emphasis added)

57. In addition, Snowbird's Master Development Plan and the Forest Service's analysis of it include the incorporation of public lands in Mineral Basin into Snowbird's permit area. AR at 2029. Furthermore, the entire Mineral Basin development is dependent upon skiers accessing Mineral Basin from public lands. AR at 1025.

58. Snowbird's master development plan includes avalanche control on the public lands, which lie above Snowbird's private lands in Mineral Basin. AR at 2029. The Forest Service admitted that Snowbird could not reasonably or safely develop lift-served skiing in Mineral Basin without permission from the Forest Service to conduct avalanche control on public lands above its terrain. AR at 5792 (noting that "the Forest Service could not disallow avalanche control on public lands when avalanches threaten private land users . . ."); AR at 5800 ("The consensus was that the Forest Service had no authority over construction of the [Mineral Basin] lift itself, but everyone recognized that the avalanche control necessary to use the lift was under agency jurisdiction.?).

59. The Mineral Basin development is also dependent on the land exchange and therefore subject to Forest Service approval. For example, AR at 8681 (April 27, 1998 map showing, inter alia, the public parcel of 1.47 acres over which the Mineral A traverses). In addition, the Forest Service's decision regarding the land exchange and the development of Mineral Basin would have impacts on public lands surrounding the Mineral Basin project area. AR at 10811 (noting that as a result of the proposed land exchange "[t]here is a (future) risk of indirect downstream impacts due to disturbance (road construction, lift tower construction, etc.) on parcels 2, 3, 4, and 5 that could result in downstream sedimentation in Mineral Basin and American Fork Canyon").

60. Although the Forest Service calculated the necessary size of the Hidden Peak structure based on 100 percent of the Mineral A and Mineral B Comfortable Carrying Capacity, the agency refused to consider the building of the Hidden Peak structure as "connected to" the development of Mineral Basin, including the construction of Mineral A and Mineral B. AR at 3342.

f. Construction Begins Before Analysis was Completed

61. Beginning in May of 1999 and only eight weeks after Snowbird had signed the warranty deed for the Mineral Basin land exchange, (AR at 10842), Snowbird began construction of Mineral A lift. AR at 5908; AR at 10506-10516. Without the required permit, Snowbird illegally hauled heavy machinery across public lands and into Mineral Basin. At the time the Forest Service had not released the Final EIS and had made no final determination regarding connectivity of the Mineral A lift with the rest of Snowbird's master development plans.

62. On June 11,1999 the Forest Service cited Snowbird for failing to obtain a permit before accessing its property via federal lands, stating, it is "Snowbird's obligation to obtain authorization from the Forest Service first, before accessing its private land over routes not within your permit." AR at 3306. The Forest Service took no further action to restrain Snowbird's activities or to reprimand the corporation.

63. Snowbird suggests that the Forest Service understood Snowbird's intentions to cross federal land and that the agency would not require Snowbird to obtain a permit to do so. AR at 3303 ("[a]fter careful consideration and discussion with Forest Service officials?Snowbird delivered the lower terminal" into Mineral Basin); AR at 3330 (July 20, 1999 letter from Snowbird to Forest Service states, "(o)ur understanding is that the Forest Service will not be [sic] require Snowbird to obtain any federal permits in order to install and operate the Mineral Basin chairlift, because this portion of the project is on private land. Please let us know if we are mistaken") (emphasis added).

64. In a June 2, 1999 letter, Snowbird requests a Forest Service permit to transport the top terminal into Mineral Basin. At the top of the letter a pre-decisional note is attached that is apparently written by the Forest Service, "(t)his approval will be addressed + authorized in the 1999 Summer project approval letter" subject to NEPA. AR at 3302-3303 (emphasis added).

65. Prior to Snowbird's construction activities, the Forest Service repeatedly expressed concern that NEPA would be violated if Snowbird began construction in Mineral Basin, especially the Mineral A lift, before it completed its environmental review of the rest of the Snowbird master development plan. For example, AR at 5801 (March 30, 1998, noting in the context of building Mineral A lift before the Forest Service completed NEPA that "the Forest Service believes that early construction of the lift would put the agency in a bad position in terms of public perception and would also create a process flaw unless a defendable way of handling the NEPA review is identified"); AR at 5800, 5706, 2831 (Artz to Cruz letter), and 3392 (Jiron to Dick letter).

4. The Record of Decision

66. On December 10, 1999, the Forest Service issued its Final Environmental Impact Statement (Final EIS) and Record of Decision (ROD) relative to the Snowbird master development plan.

67. This decision, inter alia, approved the construction of a building not to exceed 50,00 square feet in size on the top of Hidden Peak. AR at 0004 In the ROD, the Forest Service also "amended" the Wasatch-Cache National Forest Plan. AR at 0015 In the ROD, the Forest Service also approved a new day lodge providing additional food service in Gad Valley, 110 additional acres of snowmaking (totaling 180 acres), the Mineral Basin permit area expansion, a Little Cloud lift upgrade, trail construction, and various other projects.

a. Hidden Peak Structure

68. The Forest Service approved the construction and operation of a structure on Hidden Peak of up to 50,000 square feet in size. This building would be approximately 30 times the size of the existing skier service facilities present on Hidden Peak. The proposed building is a significant departure from other developments on Forest Service land in the intermountain west. Nowhere in Utah or the Intermountain Region of the Forest Service does there exist a ridge top building of this scale. See Appendix 1.

69. The Forest Service delineated the following purposes and needs to be met at Snowbird: 1) an upgrade outdated facilities, 2) improvement of skier circulation at the base of the resort and on the mountain, 3) a balancing of terrain, lift and base facility capacities; 4) efficient use of ski terrain within existing permit area; and, 5) development four-season recreation alternatives. AR at 0170 - 0171 (identifying purposes 1, 2, 3, 4, and 8 defining the objectives of the proposed project relative to Hidden Peak).

70. At a meeting held on May 12, 1998, in which the alternatives to be listed in the DEIS were finalized, Snowbird asserted that the "minimum requirements" for the Hidden peak structure, including food service, mandated a building of 29,000 square feet in size. AR at 5829. The Forest Service's "capacity-based" determination of the "minimum requirements" for the Hidden Peak structure, including food service, mandated a building of 17,738 square feed in size. AR at 5830.

i. Faulty food service analysis

71. In calculating skier service needs, the Forest Service failed to consider the hundreds of seats available throughout the resort that are currently utilized by skiers as well as hundreds of unutilized restaurant seats that Snowbird has already built. Had the Forest Service consider these available food services, the agency would have determined that there exists only an 87 seat deficit resort wide, not the 955 seat deficit that the EIS reported. AR at 0266.

See Attachment 3 for a detailed analysis of Snowbird's seating situation and the Forest Service's misrepresentation of that.

73. The Forest Service recognizes the feasibility of making up the food service deficit elsewhere in the resort. In the context of finalizing the ROD, the Forest Service stated under the title, "Rationale: Hidden Peak," "Additional restaurant seating is needed at Snowbird to meet standards. Would not need to be at the top of the mountain. However, once we have committed to patrol quarters and snowcat storage, retail sales and restrooms, we might better combine needed restaurant space with that building rather than building another restaurant elsewhere." AR at 5913d. The Forest Service did approve "another structure elsewhere," yet still failed to analyze the alternative of making that structure larger. The Forest Service does not present or analyze this justification for placing restaurant space on the top of Hidden Peak in either the Final EIS or the ROD.

ii. Hidden peak viewshed and a structure's impact on views

74. The acreage in the Uinta National Forest from which one would be able to see the proposed Hidden Peak building is 106,449 acres. (Assuming the structure complies with FCOZ height restriction of 35 feet.) This constitutes 10.8% of this 983,261 acre Forest, which has 983,261 acres. The acreage in the WCNF which would impacted by Wasatch-Cache National Forest from which one would be able to see the proposed Hidden Peak building is 139,910 acres which is 7.3% of the 1,927,912 acres in this Forest. Exhibit "9" attached.

iii. Hidden peak decision does not reflect industry standards

75. Since Snowbird first sought permission to build its Hidden Peak structure on public lands, other ski resorts have followed suit. Snowbasin Ski Resort on the Wasatch Cache National Forest, Utah, which is one of the most aggressively developing ski resorts in the Utah (investing over $100 million annually), proposed and approval to build two skier service structures during the 2000-2001 construction seasons -- the two story Strawberry Ridge Daylodge and the two story Middle Bowl Daylodge. The structures are worthy of comparison because, 1) both are on public lands on the Wasatch-Cache National Forest, 2) one is being built on a ridgetop, 3) one is serviced by lifts with the identical hourly capacity as Hidden Peak, and, 4) all structures serve nearly identical functions (with two exceptions).

76. Yet the Strawberry Ridge Daylodge is 9,000 square feet and the Middle Bowl Daylodge is 13,600 square feet. At the same time, the Forest Service determined, that even though it served essentially the same purposes as these two lodges, Hidden Peak facility could be no smaller than 22,500 square feet. Thus, the "minimum size" for the Hidden Peak structure is larger than Snowbasin's Strawberry Ridge and Middle Bowl lodges combined. Furthermore, these two lodges have a combined capacity of --- seats, providing serves to -- lifts

See Appendix 1, "Comparison of Hidden Peak Facility ?" for a detailed comparison of the Forest Service approved structure on Hidden Peak, the "bare minimum" 22,500 square foot Hidden Peak alternative, and two similar daylodges being built at Snowbasin Ski Resort.

77. Save Our Canyons repeatedly went on record before the decision saying that it would support a Forest Service decision incorporating all "necessary" functions into a 7,000 square feet structure on top of Hidden Peak. AR at 6020. This idea was dismissed in the Final EIS under the "Alternatives Considered but Not Analyzed in Detail" section with the following:

Several comments on the Draft EIS asked that alternative Hidden Peak structures smaller than the Alternative A structure, which is 22,545 square feet. (sic) However, as indicated in the description of Alternative A (Section 2.6), this alternative is intended to reflect the bare minimum size necessary to meet skier-services purposes and needs for the structure. The analysis documented in Chapter 4 (primarily Section 4.7.3.3) supports the conclusion that this size is marginal. Therefore smaller alternatives would not meet purpose and need.

79. The Forest Supervisor stated in his Record of Decision regarding the smallest structure considered, "Alternative A (22,500 square feet) is too restrictive and does not meet identified mountain operations and visitor service needs." The Supervisor then listed "a 225-seat deficit in food service seating," a wasted chance of providing interpretive space on "the natural and historic setting," and the inability "to purchase essential items" as the reasons listed in the Record of Decision for denial of the "bare minimum" structure. AR at 9.

4. "Amendment" of the Wasatch Cache National Forest Plan.

80. In the Draft EIS, the Forest Service first indicated that, in order to approve the Hidden Peak structure, it would have to amend the visual quality objectives (VQO) of the Wasatch-Cache Forest Plan for Hidden Peak. AR at 2591-2991. ("A WCNF Forest Plan amendment to allow the ridgeline structure within the site's VQO would be required for the[Hidden Peak] structure to be built"). The DEIS does not specify any proposed amendment to the Wasatch-Cache Forest Plan. AR at 2591-2991.

81. The Forest Service first provided specific Forest Plan amendment language to the public in the ROD, at the same time that the Forest Service approved the amendment. AR at 1-35. The Final EIS contains no analysis of the proposed Forest Plan Amendment. AR 93-749.

82. In the ROD, the Forest Service also presented to the public for the first time the agency's analysis of whether the proposed amendment was significant. AR at 1-35. The extent of the Forest Service's analysis of the amendment is:

We have concluded that this is a non-significant amendment to the Forest Plan because the affected area?is a very limited area in the context of the overall planning area (the WCNF). In addition, the change does not alter the long-term relationship between levels of goods and services projected by the Forest Plan not change the desired future condition of the land.

83. The public had no opportunity to comment on the amendment, the amendment language or the Forest Service's analysis of the significance of the amendment. AR at 23

5. Exhaustion of Administrative Remedies

85. On January 27, 2000, Save Our Canyons timely appealed the ROD to Jack Blackwell, the Regional Director of the Intermountain Region of the Forest Service. Snowbird also appealed the decision. In its detailed analysis of the ROD, Save Our Canyons cited 61 areas where the Finial EIS fell short or ignored concerns that might have affected the outcome of the decision. 27 points were raised regarding the Hidden Peak structure.

86. On March 13, 2000, the Forest Service rejected Save Our Canyon's appeal on all counts, save limited additional mitigation measures involving certain plant species. On April 14, 2000, the Forest Service also rejected Snowbird's appeal.

87. Save Our Canyons filed the Complaint in this matter on May 3, 2000.