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Triumvirate, LLC v. Bernhardt

United States District Court, D. Alaska

February 19, 2019

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 ...

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