United States District Court, D. Montana, Missoula Division
WESTERN MONTANA COMMUNITY PARTNERS, INC., a Montana non-profit corporation; and SPECIAL USE PERMIT FOR PUBLIC RESORT BENEFITS, LLC, a Montana limited liability corporation, Plaintiffs,
DEBORAH AUSTIN, Lolo National Forest Supervisor; JULIE KING, Bitterroot National Forest Supervisor; FAYE KRUEGER, Regional Forester of Region One of the U.S. Forest Service; and UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendants
For Western Montana Community Partners, Inc., a Montana non-profit corporation, Special Use Permit for Public Resort Benefits, LLC, a Montana limited liability corporation, Plaintiffs: Jeffrey Russel Kuchel, Mark L. Stermitz, Matthew A. Baldassin, LEAD ATTORNEYS, CROWLEY FLECK PLLP, Missoula, MT.
For Deborah Austin, Lolo National Forest Supervisor, Julie King, Bitterroot National Forest Supervisor, Faye Krueger, Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants: Mark Steger Smith, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, Billings, MT.
ORDER AND OPINION
DONALD W. MOLLOY, UNITED STATES DISTRICT JUDGE.
Western Montana Community Partners, Inc. and Special Use Permit for Public Resort Benefits, LLC (collectively " Plaintiffs" ) seek a declaratory judgment that the United States Forest Service's (the " Forest Service" ) decisions to reject Plaintiffs' request for a special use permit for a ski area development and to deny Plaintiffs' request for an administrative appeal are void and of no effect. (Compl., Doc. 1 at 27.) Plaintiffs ask the Court to set aside these decisions and remand the matter to the Forest Service. ( Id. ) Plaintiffs' motion for summary judgment (Doc. 10) is denied, and Defendants' cross motion for summary judgment (Doc. 14) is granted. Jurisdiction exists under the Administrative Procedure Act because the Forest Service's denial of Plaintiffs' request for a special use permit constitutes final agency action and because Plaintiffs exhausted their administrative remedies under the Forest Service's regulations. For the reasons stated below, the Forest Service's decision to deny Plaintiffs' request for a special use permit proposal was not arbitrary and capricious.
Early studies of skiing in the Lolo Peak Area.
In the 1960s, President Lyndon Johnson instructed the Forest Service to " strengthen the cooperative relationship between government and private enterprise in the field of outdoor recreation." (Doc. 21 at 4.) As a result, the Forest Service began preparing " feasibility plans" for the development of ski areas in certain regions of the United States. ( Id. ) In 1965, the Forest Service began studying the Carlton Ridge-Lolo Peak area (collectively, " the Lolo Peak Area" ), which lies partly within the Lolo National Forest and partly within the Bitterroot National Forest, as a potential site for ski resort development. (Doc. 17 at 2, 8.) The Forest Service prepared a report in 1965 that identified " strengths and weaknesses" of the Lolo Peak Area for skiing. ( Id. at 8.) A subsequent report dated 1966 found " tremendous potential" for a ski area, including " one of the largest vertical drops and some of the longest ski runs in North America." ( Id. at 9.) The report provided that the potential of the Lolo Peak Area " is so great that it can properly be classified as a national resource." ( Id. ) The report recommended further research. An Assistant Regional Forester stated that " timber will be managed primarily for benefit of skiing." ( Id. at 11.) The reports indicate some concern for whether there was adequate snow depth at lower elevations in the Lolo Peak Area. (Doc. 21 at 5.)
During the 1970s, the Forest Service took no direct action with respect to development of a ski resort in the Lolo Peak Area. But a 1971 memorandum from a District Ranger voiced the District Ranger's concerns for ski development in the Lolo Peak Area due to lack of snow, lack of water, soil conditions, high winds, and aesthetics. (Doc. 17 at 12-13.)
Creation of the National Forest Plans.
In 1976, Congress passed the National Forest Management Act (" NFMA" ). Pub. L. 94-588, 90 Stat. 2949. NFMA requires the Forest Service to develop forest plans. 16 U.S.C. § 1604(a). Once the Forest Service promulgates a plan for a forest, the Forest Service must issue permits, contracts, and other documents in a manner consistent with the forest plan. 16 U.S.C. § 1604(i).
In April 1986, the Lolo National Forest Plan was approved. (Doc. 21 at 7.) In September 1987, the Bitterroot National Forest Plan was approved. (Doc. 17 at 15.) Although the Lolo National Forest Plan mentions the " potential for a ski area" in the Lolo Peak Area, the Forest Service determined " community ideals and National interests had changed . . . favoring roadless, wilderness, and other resource values." (Doc. 21 at 8.) As a result, the Lolo National Forest Plan did not specifically allocate any lands in the Lolo Peak Area for ski area development. ( Id. ) The Bitterroot National Forest Plan was silent as to skiing in the Lolo Peak Area. ( Id. at 11.)
During the time the Lolo National Forest Plan was being prepared, the Forest Service designated about 920 acres of the Lolo Peak Area to be a Research Natural Area. (Doc. 17 at 15.) The Carlton Ridge Research Natural Area (" the Research Area" ) was approved by the Forest Service on June 11, 1987. ( Id. ) The Lolo National Forest Plan anticipated the creation of the Research Area and allocated the 920-acre area to Management Area 6, which provides goals and standards for Research Natural Areas. The Lolo National Forest Plan acknowledged the land surrounding the Research Area has " potential for a ski area of national class" and the Lolo Peak Area " appears to contain sufficient room for both opportunities." ( Id. at 16.) The Lolo National Forest Plan also provided that the Research Area proposal " should not preclude the development of the potential ski area." ( Id. ) The Research Area includes a number of " ecologically significant values" :
1) the most extensive forest of alpine larch in the United States, 2) old growth whitebark pine forest, 3) a virtually unique high elevation forest occurring on well-developed soils supporting luxuriant undergrowth communities which represent a climatic climax of special importance in ecological studies, 4) a continuous gradient of timber line, upper subalpine, and lower subalpine forest types, 5) a strip of coarse talus and bedrock extending down-slope occupied by alpine larch, western larch, and their natural hybrids, and 6) an ancient slump supporting an old spruce/riparian community containing exceptionally large western large trees, and other unique natural features.
(Doc. 21 at 44.)
Discussion of ski resort development in the late 1980s.
In the late 1980s, after the promulgation of the Lolo National Forest Plan, interest in potential ski resort development in the Lolo Peak Area increased. ( Id. at 24-25.) The Forest Service acknowledged " [t]here is a great deal of interest among citizens in Missoula regarding a ski area on the Peak, and the climate is ideal for a deliberate, cautious and thorough assessment of the potential for a resort on Lolo Peak, conducted by local citizens and government agencies." ( Id. at 25.) A letter written by the Missoula District Ranger in January 1987 observed that " [l]ocal business persons and elected officials have indicated a desire to discuss this project again." ( Id. at 26.) The Ranger further wrote, " I see the Forest Service role as a participant, rather than leading the process." ( Id. )
The Missoula Economic Development Corporation became interested in attracting developers for a ski resort in the Lolo Peak Area. ( Id. at 22-23.) In November 1987, the Lolo Forest Supervisor wrote a letter to Missoula County, the Missoula Economic Development Corporation, and others, indicating the Forest Service " is, and will remain, neutral on the [ski resort] proposal." ( Id. at 27.) An internal Forest Service memorandum dated April 18, 1988, stated that " the position of the Lolo Forest is neutral on the ski area development proposal. However, we will support the community in their preliminary effort . . . and are willing to work with the Missoula County Commissioners by sharing our expertise." ( Id. at 24.)
In October 1988, the Forest Service prepared a document entitled Lolo Peak Ski Area Preliminary Review, which stated the Lolo Peak Area " has the potential for a ski area of national class" and " [n]o fatal flaw has been identified that would preclude ski area development." (Doc. 17 at 28-30.) It also listed concerns, such as " the lack of reliable snow at lower elevations, the lack of water for snow making, variable soil conditions, prevailing winds, and visuals." ( Id. at 30.)
In November 1988, a non-binding referendum appeared on the ballot in Missoula County, asking voters if they were interested in the possibility of a three-season resort in the Lolo Peak Area. Sixty-three percent of voters voted in favor of the possibility of the resort. (Doc. 21 at 30); AR905.
In 1989, the Missoula Economic Development Corporation prepared a prospectus entitled " Lolo Peak Resort: An Opportunity Worth Considering" (" the Prospectus" ). (Doc. 21 at 22.) The Prospectus encouraged developers to submit proposals, which would be reviewed by Missoula Economic Development Corporation. ( Id. at 23.) The Prospectus explained that, after reviewing all proposals, the Missoula Economic Development Corporation " will recommend a developer" to the Forest Service and to Missoula County. ( Id. )
In August 1989, the Forest Service entered into a Memorandum of Understanding with Missoula County and the Montana Department of State Lands for " Joint Review and Analysis of the 'Plan of Development' for any proposed recreation resort." ( Id. at 27.) The Memorandum of Understanding provided for how the agencies would cooperate in preparing an Environmental Impact Statement to review the effects of a proposal. ( Id. at 28.)
By February 1991, the federal, state, and local agencies " decided not to spend any more time or money investigating a proposed destination ski resort" in the Lolo Peak Area. ( Id. at 31.) A newspaper article on February 8, 1991, reported Forest Service and local officials concluded there was not enough snow in the Lolo Peak Area and there were already sufficient ski areas in the region to satisfy regional demand. AR1244.
Tom Maclay's attempts to develop skiing in the Lolo Peak Area.
Tom Maclay (" Maclay" ) and his family owned a historic ranch, dating back to 1872, adjacent to the Forest Service lands in the Lolo Peak Area. (Doc. 1 at 14.) Starting in 1999, Maclay and various entities controlled by him began submitting numerous proposals to the Forest Service for permission to use Forest Service lands for skiing and other recreational uses. From April 1999 to 2013, Maclay and his entities submitted " at least eighteen" proposals (none of which were approved) to the Forest ...