United States District Court, D. Alaska
TRIUMVIRATE, LLC, d/b/a TORDRILLO MOUNTAIN LODGE, MICHAEL OVERCAST, and STEVEN HALL, Plaintiffs,
v.
DAVID BERNHARDT, Acting Secretary of the Interior, et al., Defendants.
ORDER MOTIONS FOR JUDICIAL NOTICE; CROSS-MOTIONS FOR
SUMMARY JUDGMENT
H.
Russel Holland, United States District Judge.
Plaintiffs
move for summary judgment.[1] This motion is opposed and defendants
cross-move for summary judgment.[2] Defendants' cross-motion
is opposed.[3] Plaintiffs also move for the court to take
judicial notice of six newspaper articles.[4] The motions for
judicial notice are opposed.[5] Oral argument was requested and
has been heard.
Facts
Plaintiffs
are Triumvirate, LLC d/b/a Tordrillo Mountain Lodge, Michael
Overcast, and Steven Hall. Overcast is Triumvirate's
general manager and Hall works for Triumvirate as a heli-ski
guide.
Defendants
are David Bernhardt, in his capacity as the Acting Secretary
of the Interior; the U.S. Department of Interior; the U.S.
Bureau of Land Management, an agency of the U.S. Department
of Interior; and Brian Steed, Deputy Director of the U.S.
Bureau of Land Management, exercising authority as the
Director.
In
2012, Triumvirate submitted an application to BLM for a
special recreation permit that would allow it to conduct
commercial heli-skiing on lands managed by BLM in the
Tordrillo and Neacola Mountains.[6] This region includes the
Neacola Mountains Area of Critical Environmental Concern
(ACEC), an area designated as such because of its scenic
value.
After
Triumvirate submitted its application, BLM conducted an
environmental assessment[7] (EA) because a portion of the lands
involved carried the ACEC designation. Triumvirate paid for
half of the cost of doing the EA.[8] In the EA, BLM considered
whether Triumvirate's proposed operations would impact
wildlife resources, in particular, Dall sheep, whether noise
from the helicopters would impact other visitors, and whether
it would impact the visual values of the Neacola
ACEC.[9] The EA considered two alternatives, either
deny or grant the permit application.[10] In the EA,
BLM determined that Triumvirate's proposed operations
were consistent with the Ring of Fire Resource Management
Plan.[11] BLM also concluded that any visual
impacts if the permit were granted would be temporary and
transient and that any impact on Dall sheep could be
mitigated by permit conditions.[12]
While
the EA was being completed, Overcast wrote to BLM complaining
about a permit that had been issued to Teton Gravity Research
(TGR), a film company.[13] TGR had been issued a “Land Use
Permit for commercial filming purposes to film professional
skiers on helicopter-supported ski descents in the south
block of BLM-managed lands in the Neacola Mountains Area of
Critical Environmental Concern. . . .”[14] Overcast
wrote that
[w]e are . . . in competition for terrain. Our guests are
interested in being the first people to heliski in these
areas and this is why we have pursued this permit. Now I have
learned that TGR will be in there for weeks to a month this
spring before we get a shot at it. Why was I not informed of
this in writing for the analysis that is required for their
permit?[15]
On
February 20, 2014, BLM issued a Record of Decision
(ROD)[16] and a Finding of No Significant Impact
(FONSI) on Triumvirate's request for a special recreation
permit.[17] In the FONSI, BLM noted that the EA
“disclose[d] the potential for both beneficial effects
and adverse effects.”[18] The adverse effects included
noise generated by helicopters and fixed-wing airplanes and
the “potential to disturb sheep populations at a
vulnerable time of year. . . .”[19] Beneficial
effects included providing “additional recreational
opportunities in a remote area. . . .”[20] In the ROD,
BLM found that “[a]uthorizing the requested SRP will
provide a unique recreational experience in a remote and
primitive setting, consistent with the RMP/ROD goals for the
Neacola Mountains ACEC . . . without compromising other
resource values, specifically, the visual resources or
wilderness characteristics. . . .”[21]
Triumvirate's
one-year special recreation permit was issued on February 20,
2014.[22]Triumvirate's permit was later
extended for ten years.
In
2016, Silverton Mountain Guides applied for a special
recreation permit for heli-skiing in the Tordrillo and
Neacola Mountains.[23] In connection with the Silverton
application, BLM prepared a Determination of NEPA Adequacy
(DNA) worksheet.[24] In the DNA, BLM concluded that
the ranges of alternatives presented in the 2013
Environmental Assessment for Triumvirate LLC Heli-skiing are
appropriate and sufficient in respect to the current Proposed
Action. There are no new issues or concerns that would prompt
development or consideration of additional alternatives. The
issues identified for analysis in the 2013 EA remain
unchanged. There are no new issues around which to develop
additional alternatives for the current Proposed
Action.[25]
BLM
considered the “direct, indirect, and cumulative
effects” Silverton's operations might have and
concluded that these effects were similar to those considered
in the Triumvirate EA “but less than what have been
previously analyzed . . . (for Triumvirate Heli-skiing)
because though the operations are nearly the same, Silverton
Mountain Guides will have one less helicopter and no
airplanes, whereas Triumvirate has two helicopters and one
airplane.”[26] Based on the DNA, BLM issued a special
recreation permit to Silverton in February 2017.
In
April of 2017, Overcast contacted BLM to inquire if Silverton
had a permit to operate in the Neacolas.[27] BLM advised
that “Silverton Mountain Guides is permitted to operate
on BLM-managed lands in the Neacolas. There are a total of
three permits we have in that area: yours, Teton Gravity
Research, and now Silverton.”[28] On April 25, 2017, April
Rabuck, an assistant field manager in the Anchorage BLM
office, noted in an email to other BLM employees that
[t]he issue seems to be three fold. The first operator,
[Triumvirate], is concerned that the area is at capacity and
is too crowded for another operator. They are upset that they
did not have input on the NEPA for Silverton Mountain Guides
(second operator). Finally, when BLM authorized the second
SRP holder we stipulated that Silverton Mountain Guides must
contact and coordinate with [Triumvirate] (per [Triumvirate]
this has not occurred).
We continue to have conversations with these operators about
SRP's being a non-exclusive use and are exploring ways to
improve communication. To asses[s] impact on the resources
for these activities AFO has a compliance trip scheduled this
week. . . .[29]
In July
2017, Overcast had a conversation with BLM regarding permits
in the Neacolas.[30] Overcast informed BLM that Silverton had
not communicated with Triumvirate as to when and where it was
flying.[31] Overcast “encourage[d] the BLM to
increase . . . dialogue with already permitted operators when
. . . consider[ing] adding a new permit to the area and
“suggest[ed]” that BLM “put a moratorium on
permits until a capacity study has been
completed.”[32] BLM informed Overcast that it “was
looking at a capacity study, but” that it was
“around the middle of the priority
list.”[33]
In
September 2017, Alaska Snowboard Guides (ASG) submitted an
application for a special recreation permit “to conduct
heliskiing/snowboarding, touring, and fishing in the
Neacolas.”[34] On December 11, 2017, Overcast advised
BLM that he had heard a rumor that ASG had been issued a
permit or was going to be issued a permit.[35] BLM responded
that there was a third applicant and asked Overcast what his
“thoughts and concerns” were “with adding a
third operator[.]”[36] BLM indicated that it “was
worried we may be reaching capacity for the
area[.]”[37] Overcast called BLM on December 15,
2017.[38] During that conversation,
Overcast was very vocal in expressing his great concern over
the potential permitting of an additional operator in the
Neacolas citing aircraft and passenger safety, and
degradation of the quality of his client[s'] experience.
From a safety point of view, Overcast accused BLM of
“stacking helicopter companies up” and that three
helicopter operations in the Neacolas was a “huge deal
to us.” Overcast expressed that only 10% of the terrain
in the Neacola Mountains was “usable” and that
BLM was “making a mistake authorizing an additional
permit”. Overcast repeatedly stated that the BLM lands
in the Neacola Mountains were too small and concentrated for
three permittees to safely operate.
Overcast expressed concerns that an additional heliski
operator would “degrade the experience for his guests
by leaving tracks in the snow” and that his clients
expect clean un-tracked slopes.
Overcast stated that he had not been consulted about a new
pending SRP application in the Neacolas. He stated that he
was “just getting things going” in his business
and that he had 13 competitors statewide.[39]
On
December 18, 2017, Overcast provided a written response via
email, in which he wrote:
I am adamantly opposed to[] further permitting in the
Neacolas. Especially, where we operate. There is a long
history of problems associated with shared areas of federal
lands with helicopter skiing. This is why I was so concerned
that the BLM has permitted Silverton without any input from
the current Permittee. Adding yet another would compound the
issues and really compromise public safety. We are a member
of Heli US. This trade organization focuses on best practices
with the industry. If needed, I will engage the organization
and get their input on shared use areas. They would agree
that any additional use by other companies would not be
recommended. Please keep me informed.[40]
On
December 22, 2017, Overcast emailed BLM to inquire whether
ASG had been issued a permit.[41] Overcast stated that
“[w]e have industry concerns that need address[ing].
Silverton[']s permit was written without public input and
acknowledgment of other outfitters. Is this really happening
again?”[42] BLM responded that
ASG has not yet received their permit, but the Anchorage
Field Office has decided to permit them. They will base their
operations off Ron Eagley's property. TGR will no longer
be operating in the Neacolas.
As the Neacolas are public lands, it is important for people
to access them - in a safe manner. Due to the relatively
small size of the area and the compressed operating season,
the field office team feels that three operators is near the
limit of what can occur safely. Should any other operators
apply for use of public lands in this area in the future, the
application will either be denied or go out for extensive
public review.[43]
On
January 28, 2018, BLM prepared a DNA for the ASG permit
application.[44] In the DNA, BLM determined that
the ranges of alternatives presented in the 2013
Environmental Assessment for Triumvirate LLC Heli-skiing are
appropriate and sufficient in respect to the current Proposed
Action. There are no new issues or concerns that would prompt
development or consideration of additional alternatives. The
issues identified for analysis in the 2013 EA remain
unchanged. There are no new issues around which to develop
additional alternatives for the current Proposed
Action.[45]
BLM
found that the direct, indirect, and cumulative effects of
ASG proposed operations “will be nearly similar to
those that have been previously analyzed (for Triumvirate
Heli-skiing), as both Triumvirate and Alaska Snowboard Guides
will have two helicopters and one
airplane.”[46] BLM noted that
[t]he original Environmental Assessment went through public
comment and the new activity is nearly identical to any
activity previously analyzed by AFO. No. further public
comment was pursued for the new activity. However, the
Outdoor Recreation Planner did reach out to the two
previously permitted guides for their opinions on the
possibility of a new operator entering the same area. The
original operator (Triumvirate) was vehemently opposed to
allowing another operator, while the most recently permitted
operator (Silverton) was not opposed to the addition of a
third operator.[47]
On
January 29, 2018, BLM issued a Record of Decision approving a
special recreation permit, effective February 1, 2018, to
ASG.[48] BLM explained that “[b]ased on
review of the DNA worksheet, ” it had “determined
that the proposed action involves no significant impact to
the human environment and no further analysis is
required.”[49]
On
March 5, 2018, Triumvirate commenced this action to challenge
BLM's issuance of a special recreation permit to ASG. In
their amended complaint, plaintiffs assert APA claims,
alleging that defendants violated the National Environmental
Policy Act (NEPA) and the Federal Land Policy and Management
Act (FLPMA). In Count I, Overcast and Hall allege that
“[t]he BLM violated NEPA by not preparing an
environmental assessment or EIS prior to issuing the permit
to ASG.”[50] In Count II, Overcast and Hall allege
that “[t]he BLM violated its non-discretionary
obligation under NEPA to take the requisite ‘hard
look' at the safety and hazard consequences of issuing
the permit to ASG.”[51] In Count III, Overcast and
Hall allege that BLM violated NEPA in issuing the ASG permit
by “fail[ing] to analyze the additional direct,
indirect, and cumulative environmental impacts resulting from
noise, additional aircraft, and aircraft activity on
wildlife, including Dall sheep.”[52] In Count IV,
Overcast and Hall allege that BLM violated the
“heart” of NEPA by failing “to consider
alternatives prior to issuing the permit to ASG. . .
.”[53] In Count V, Overcast and Hall allege
that BLM violated NEPA regulations because it failed to give
Overcast and Triumvirate written notice of the ASG permit
application.[54] In Count VI, plaintiffs allege that BLM
violated FLPMA by failing “to ensure that its actions
conform to the” Ring of Fire RMP.[55]In Count VII,
plaintiffs allege that BLM violated the regulation that
governs the issuance of special recreation permits “by
failing to consider impacts of the ASG permit on public
safety, operating and safety conflicts caused by issuing the
ASG permit, resource protection, the public interest, or
whether the requested permit would conform with laws and land
use plans, including NEPA, FLPMA, and the Ring of Fire
RMP.”[56] For relief on all their claims,
plaintiffs request a declaration that the defendants violated
NEPA, FLPMA, and NEPA and FLPMA regulations and that the
January 29, 2018 ROD approving the issuance of the ASG permit
be vacated.
Plaintiffs
now move for summary judgment on their claims. Defendants
cross-move for summary judgment, seeking the dismissal of all
of plaintiffs' claims.
Discussion
The
court's review of BLM's January 29, 2018 decision to
issue a special recreation permit to ASG is governed by the
Administrative Procedures Act. The court may “set aside
agency actions, findings, or conclusions under the APA that
are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'” Ctr.
for Biological Diversity v. Zinke, 900 F.3d
1053, 1067 (9th Cir. 2018) (quoting Japanese Vill., LLC
v. Fed. Transit Admin., 843 F.3d 445, 453 (9th
Cir. 2016)). “In reviewing whether an agency decision
is arbitrary or capricious, ” the court
“‘ensure[s] that the agency considered the
relevant factors and articulated a rational connection
between the facts found and the choices made.'”
Id. (quoting Greater Yellowstone Coalition, Inc.
v. Servheen, 665 F.3d 1015, 1023 (9th Cir.2011)).
“[A]n agency rule would be arbitrary and capricious if
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency
expertise.”
Id. (quoting Greater Yellowstone Coalition,
665 F.3d at 1023).
“The
district court ‘is not required to resolve any facts in
a review of an administrative proceeding'; rather,
‘the function of the district court is to determine
whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the
decision it did.'” Animal Legal Defense Fund v.
U.S. Dep't of Agric., 223 F.Supp.3d 1008, 1015 (C.D.
Cal. 2016) (quoting Occidental Eng'g Co. v.
I.N.S., 753 F.2d 766, 769 (9th Cir. 1985)). “As a
result, summary judgment is an appropriate vehicle for
deciding APA cases.” Id.
As an
initial matter, defendants argue that Overcast and Hall lack
constitutional standing to bring their NEPA claims.
“The ‘irreducible constitutional minimum of
standing' consists of three elements: the plaintiff must
have (1) suffered an injury in fact; (2) that was caused by
the defendant's challenged conduct; and (3) that would be
redressed by the remedy the plaintiff seeks.”
Desert Water Agency v. U.S. Dep't of the
Interior, 849 F.3d 1250, 1253 (9th Cir. 2017) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). Defendants argue that Overcast and Hall have not
shown that they suffered an injury in fact, “the
‘[f]irst and foremost' of standing's three
elements.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (quoting Steel Co. v. Citizens for
Better Environment, 523 U.S. 83, 103 (1998)).
“A
plaintiff establishes injury in fact, if he or she suffered
‘an invasion of a legally protected interest' that
is ‘concrete and particularized' and ‘actual
or imminent, not conjectural or hypothetical.'”
Van Patten v. Vertical Fitness Group, LLC, 847 F.3d
1037, 1042 (9th Cir. 2017) (quoting Spokeo, Inc.,
136 S.Ct. at 1547). The “injury must have actually
occurred or must occur imminently; hypothetical, speculative
or other possible future injuries do not count in the
standings calculus.” Schmier v. U.S. Court of
Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir.
2002) (citation omitted).
“A
plaintiff must demonstrate standing for each claim he or she
seeks to press and for each form of relief sought.”
Wash. Envt'l Council v. Bellon, 732 F.3d 1131,
1139 (9th Cir. 2013). “The plaintiff also bears the
burden of proof to establish standing ‘with the manner
and degree of evidence required at the successive stages of
the litigation.'” Id. (quoting
Lujan, 504 U.S. at 561). “While ‘[a]t
the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice,'
in responding to a summary judgment motion, ‘the
plaintiff can no longer rest on such mere allegations, but
must set forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment motion will be
taken to be true.'” Id. (quoting
Lujan, 504 U.S. at 561).
First,
Overcast and Hall allege health and safety injuries. Overcast
and Hall allege that the decision to issue a permit to ASG
injured them “because it results in more helicopters
assessing the same limited terrain” and because it
“increases the risk of a potentially catastrophic
accident between two helicopters from different
operators.”[57] Overcast and Hall further allege that
permitting ASG to operate in the same terrain
“increases the risk that [they] will be injured or
killed by an avalanche or catastrophic helicopter
accident.”[58] Overcast and Hall offer competent
evidence to support their allegations in the form of
declarations. Overcast avers that
[p]ermitting multiple helicopter ski operators to use the
same terrain materially increases the risks of helicopter
skiing. It creates safety hazards that do not exist if the
terrain is limited to one helicopter ski operator. As
explained above, the amount of terrain that is suitable and
available on a given day is restricted by topography,
avalanche risks, and prudent operating standards. If multiple
operators are stacked on the same terrain, they compete for
the limited terrain that is suitable and available that day.
That creates an incentive for one operator to access it
before the other operator to provide the guests with
untracked snow. That incentive works against efforts to
minimize avalanche risks. It is difficult to build in
geographic buffers among multiple operators if all may access
the same limited terrain. Stacking operators in the same
terrain creates the risk that one group may inadvertently ski
onto terrain above a group from another operator, potentially
causing an avalanche. There have been several close calls in
the Valdez area due to this. Permitting multiple operators in
the same area increases the risk of catastrophic mid-air
accident between helicopters from different
operators.[59]
Overcast
further avers that
[t]he BLM decision to authorize Alaska Snowboard Guides to
fly and ski in the same terrain as me increases the risks to
me of loss of life and catastrophic accidents[.] I am harmed
because the BLM is forcing me to lower the safety standards
under which I use the ...