Opposition Brief — Loon Mountain Recreation Corp. v. Dubois

Supreme Gourt, Us.

i: | | : bE, 1> ;

No. 96-1539 ees

ETA MOE OEE ASAI TBO OE LTTE EOS EEE SOLTEELEE EALS ENE BEEBE MELE TN

>

In the Supreme Court of the Chuted States

OCTOBER TERM, 1996

LOON MOUNTAIN RECREATION CORPORATION,

PETITIONER

ROLAND C. DUBOIS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

LOIS J. SCHIFFER

Assistant Attorne y General

STEPHEN L. SAMUELS

JOHN A. BRYSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the operation of a snowmaking system

for a ski resort wherein water is transferred from one

water body of the United States to another results in

a discharge of pollutants that is subject to the permit

requirements of Section 402 of the Clean Water Act,

33 U.S.C, 1342.

2. Whether, in assessing the environmental im-

pacts of an expanded snowmaking system of a ski re-

sort, the Forest Service violated the requirements of

the National Environmental Policy Act, 42 U.S.C.

4321, by failing to evaluate the use of artificial water

storage ponds as an alternative to drawing water from

a natural body of water.

3. Whether the Forest Service was required to

supplement its draft Environmental Impact State-

ment to solicit comment on its preferred alternative,

where the preferred alternative identified in the Final

Environmental Impact Statement was a composite of

elements of other alternatives that had been analyzed

in the draft Environmental Impact Statement.

(I)

TABLE OF CONTENTS

Page

NE IIT A datasddicincidiacerciiesinasanasjutibimbinciacadiies inten l

ESET SERS EATERS oh eae MOE eee RR l

I a a 2

ERSTE Ea STF eG aS TA Rr RORY ERE MPT ONE 7

CNEL R SALI EROS Be NATED ROE TA LR PED 12

TABLE OF AUTHORITIES

Cases:

Bettis v. Town of Ontario, 800 F. Supp.

PEM EPI cas MIME. ccchicktonacxisepideubdeshinidasuiacsienees 10

City of Carmel-By-The-Sea v, United States

Dep't of Transportation, 95 F.3d 892 (9th Cir.

NERS AER SENET SS eo HE SD PSC RE 1]

Environmental Defense Fund vy. Hoffman, 566

an AE EE CE, BOTT) ccvnciecsscccyecicocsseccoseavecesecss 1]

United States v. M.C.C. of Florida, Inc., 772

a IEE RARIUR SOME BOD Ss cck aves exes clsdsinenseccpacndacs no 7

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 706(2)(A)

i SEE Ait cotcniinnptelbdpubiuneciieviabictayveenendckie <coasziassnbante 5

Clean Water Act, 33 U.S.C. 1311 et seq.:

PUN PU CTS, BEB MIEY ous ss csasnscosereeccsoenssness 4

RU UN PMA Oi 5

© ene), O UT, TIGR) ons csscsscztsecevevnnesesses 4,6

National Environmental Policy Act, 42 U.S.C.

NAN Sih sa hae d nh scien Gabienbwacnnibidsinayvavasticuniakeves 2

National Forest Service Ski Area Permit Act,

ERED SSE INR ener Rep OPI 2

SN II Sahiba is aciicchlvnsdidupssndig header didedsccs 4

eA ets SR RMPOEDEID icasicnncrscavcesonssaciverconissssusivncs 2

(IIT)

IV

Regulations—Continued: Page

40 C.F.R.:

I Ta 1]

Un I le ae 11

SRE SE ROME INLD cn csicicccoxdsvenactadshesssderavessens 11

Miscellaneous:

Exec. Order No. 11,990, 42 Fed. Reg. 29,961

GREED .snirsdcikinibhnsaiicdbd itn kankdsinaepeindianchiniabaaeiteves on oicekeies 5

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1539

LOON MOUNTAIN RECREATION CORPORATION,

PETITIONER

v.

ROLAND C. DUBOIS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRTEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

59a) is reported at 102 F.3d 1273. The memorandum

and order of the district court (Pet. App. 62a-102a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 19, 1996. Petitions for rehearing were dis-

posed of on February 13, 1997. Pet. App. 60a-6la. The

petition for a writ of certiorari was filed on March 28,

1997. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATEMENT

1. Petitioner operates the Loon Mountain Ski

Area in the White Mountain National Forest, near

the town of Lincoln, New Hampshire, pursuant to the

terms of a special use permit issued by the Forest

Service pursuant to the National Forest Service

Ski Area Permit Act, 16 U.S.C. 497(b). See 36 C.F.R.

251.50-251.65. Petitioner’s original permit allowed

use of 785 acres of national forest land, and authorized

a snowmaking system that utilized water from three

water bodies: the East Branch of the Pemigewasset

River, Boyle Brook, and Loon Pond. Pet. App. 4a-6a.

Loon Pond is drained by Loon Pond Brook, which in

turn feeds a municipal reservoir below Loon Pond

before emptying into the East Branch. Gov’t C.A. Br.

9. A 1974 agreement between petitioner and the Town

of Lincoln authorized petitioner to pump snowmak-

ing water from Loon Pond down to 18 inches below

full level. In 1988, that agreement was amended to

authorize snowmaking drawdowns below the 18-inch

level on a case-by-case basis. Pet. App. 5a.

In 1986, petitioner applied to the Forest Service for

an amendment to its special use permit to allow

expansion of its facilities. Pursuant to the National

Environmental Policy Act (NEPA), 42 U.S.C. 4321

et seqg., the Forest Service in 1989 published a

Draft Environmental Impact Statement (DEIS) and a

supplement to that draft. Responding to criticisms of

those documents, the Forest Service in 1991 issued a

revised draft (RDEIS) that set forth five alternatives

to meet the perceived increase in demand for use of

the ski resort. Pet. App. 5a-6a; Gov’t C.A. Br. 9-10.

The alternatives ranged from no expansion of the

resort to a 930-acre expansion, with improvements

——————————————

designed to accommodate 7600 additional skiers per

day, that would require 193 million gallons of water

annually for snowmaking. Each alternative was

assessed with respect to a wide range of

environmental effects, including effects on soils, air

quality, water resources, vegetation, and wildlife.

Gov’t C.A. Br. 10-11.

Following public comment on the RDEIS, the

Forest Service issued a Final Environmental Impact

Statement (FEIS) in November 1992. Pet. App. 7a;

Gov’t C.A. Br. 10. The FEIS identified a new Alterna-

tive 6 as the preferred alternative. Alternative 6

provided for the expansion of petitioner’s resort to

accommodate 3200 additional skiers per day by

increasing petitioner’s permit area by 581 acres and

authorizing the construction of one new lift and

approximately 70 acres of new ski trails in the new

area. Under Alternative 6, petitioner’s water use for

snowmaking would double, from 67 to 138 million

gallons (mgl), with the additional water coming

from the East Branch and Loon Pond. Alternative 6

limited drawdowns of Loon Pond for snowmaking

purposes to 15 feet, with an additional 5 feet of acces-

sible water to be held in reserve for the Town of

Lincoln. Gov’t C.A. Br. 11.

To prevent any adverse effects on Loon Pond from

the larger transfers of waters associated with peti-

tioner’s proposed expansion project, Alternative 6

required daily monitoring of water levels and water

quality and required petitioner to pump water from

the East Branch to Loon Pend in December and May

of each year if Loon Pond was not otherwise fuli at

those times. Pet. App. 7a-8a; Gov’t C.A. Br. 11. Alter-

native 6 also restricted the transfer of East Branch

water to Loon Pond if it exceeded certain levels of

turbidity, bacteria, oil or grease. Jd. at 8a.

In March 1998, the Forest Service published a

record of decision (ROD) that adopted Alternative 6.

Respondents Roland C. Dubois and RESTORE: The

North Woods (RESTORE) appealed the ROD to the

Regional Forester and, thereafter, to the Chief of the

Forest Service. Both appeals were denied. On March

16, 1994, the Forest Service issued a special use per-

mit to petitioner. Pet. App. 8a-9a.

2. On June 13, 1994, Dubois filed suit against the

Forest Service in the United States District Court

for the District of Columbia challenging the Forest

Service’s permitting decision. In November 1994,

the district court granted the Forest Service’s

motion under 28 U.S.C. 1404(a) to transfer the case

to the District of New Hampshire. RESTORE inter-

vened as a plaintiff in March 1995, and petitioner Loon

Mountain Recreation Corporation intervened as a

defendant in May 1995. Pet. App. 9a-10a; Gov’t C.A.

Br. 13-14.

On November 2, 1995, the district court ruled on the

parties’ cross-motions for summary judgment. Pet.

App. 62a-102a. The court concluded that petitioner’s

proposed water transfers did not violate Sections

301(a) and 402(a) of the Clean Water Act (CWA), which

prohibit the “discharge of any pollutant” into naviga-

ble waters of the United States from any “point

source” without a National Pollutant Discharge

Elimination System (NPDES) permit. 33 U.S.C.

1311(a), 1342(a). The court reasoned that because the

pollutants contained in the East Branch water never

leave the navigable waters of the United States, the

pollutants are not added to Loon Pond within the

meaning of the CWA. Pet. App. 67a-75a. The court

= —s

eee

also rejected the contention that the Forest Service’s

environmental evaluation of petitioner’s expanded ski

resort violated the requirements of NEPA. The

court found (1) that the public was given an adequate

opportunity to comment on the environmental effects

of the project described in Alternative 6 of the FEIS

(Pet. App. 98a-102a); (2) that the FEIS adequately

analyzed alternative means of meeting increased

public demand for downhill skiing that would not

have involved expansion of ski areas within the White

Mountain National Forest (id. at 82a-83a); and (3)

that the FEIS did not arbitrarily exclude from con-

sideration alternative water storage mechanisms to

reduce or eliminate drawdowns of Loon Pond (id. at

83a-84a).'

3. The court of appeals affirmed in part, reversed

in part and remanded. Pet. App. 1a-59a.* The court

reversed the district court’s grant of summary judg-

' The district court also concluded that RESTORE had

standing to sue on all claims and that it thus was unnecessary to

resolve whether Dubois had standing to sue (Pet. App. 68a n.1);

that the Forest Service had not violated the Administrative

Procedure Act, 5 U.S.C. 706(2)(A), by accepting New Hamp-

shire’s water quality certification under Section 401 of the

CWA, 33 U.S.C. 1341 (Pet. App. 76a-78a); and that the Forest

Service had complied with Executive Order No. 11,990, 42

Fed. Reg. 26,961 (1977), which addresses construction in wet-

lands (Pet. App. 95a-98a).

2 The court of appeals concluded that Dubois had standing

to sue (Pet. App. lla-18a) and that the district court had juris-

diction over plaintiffs’ claims (id. at 43a-44a). The court also

rejected respondents’ claims that the Forest Service improp-

erly accepted the State’s water quality certification (id. at 53a-

58a) and that the Forest Service’s special use permit violated

Executive Order 11,990 (Pet. App. 39a-42a). Those rulings are

not at issue before this Court.

ment with respect to respondents’ claims under

NEPA. The court concluded that “the Forest Service

has not rigorously explored all reasonable alterna-

tives, in particular the alternative that Loon Corp. be

required to build artificial water storage ponds,

instead of withdrawing water for snowmaking from,

and discharging water into, an ‘outstanding resource

water’ like Loon Pond.” Jd. at 27a. The court also

concluded that the Forest Service’s failure to prepare

a supplemental EIS disclosing the scope and impacts

of Alternative 6 “was arbitrary and capricious.” Jd. at

39a. The court explained that, “based on the record in

this case, * * * Alternative 6 entails substantial

changes from the previously proposed actions that are

relevant to environmental concerns, and * * * the

Forest Service did not present those changes to the

public in its FEIS for review and comment.” Jbid.

The court of appeals also reversed the district

court’s conclusion that the Forest Service could

authorize petitioner’s proposed expansion without the

issuance of a NPDES permit under Section 402(a) of

the CWA, 33 U.S.C. 1342(a). Observing that “there

are at least some pollutants in the East Branch that

do not exist naturally in Loon Pond” (Pet. App. 52a)

and that “the transfer of water or its contents

from the East Branch to Loon Pond would not occur

naturally” (id. at 48a), the court rejected the district

court’s conclusion that the East Branch and Loon

Pond are part of the same “singular entity” such that

the transfer of water from East Branch into Loon

Pond was not an “addition” of new pollutants into

Loon Pond under the CWA. Id. at 47a. Accordingly,

the court held that an NPDES permit is required for

the discharges of water containing pollutants from

the East Branch into Loon Pond. Z/d. at 53a. In re-

sponse to the Forest Service’s petition for rehearing,

the panel amended its opinion to make clear that

petitioner, rather than the Forest Service, was

required to apply for and obtain the NPDES permit.

Id, at 61a.

ARGUMENT

Although the court of appeals rejected the govern-

ment’s contentions below, its decision is based upon

the specific circumstances of this case and does not

present questions of broader significance requiring

resolution by this Court. Therefore, further review

by this Court is not warranted.

1. a. Petitioner maintains (Pet. 8) that there is a

conflict among the appellate courts on whether an

NPDES permit is required “to withdraw and return

water to the same water body without addition of any

pollutants.” Petitioner asserts (Pet. 8, 12) that the

decision below reached that issue, citing a portion of

the court of appeals’ opinion that stated that “[t]he

Eleventh Circuit has held that * * * a permit is

required in order to move dredge materials by a point

source within the same water body.” Pet. App. 50a

(citing United States v. M.C.C. Of Florida, Inc., 772

F.2d 1501, 1506 (1985)).

The decision below, however, merely “hfeJld that

the Pemigewasset River and Loon Pond are two

distinct ‘waters of the United States,’ and that the

proposed transfer of water from one to the other

constitutes an ‘addition’” requiring an NPDES per-

mit under the CWA. Pet. App. 53a. See also ibid.

(“The Forest Service is simply wrong to analogize

the present situation to a dam that merely accumu-

lates the same water, or a pump storage facility that

stores water from one source in a different place, as

distinguished from moving different water from one

flowing water body into another stationary, colder

body.”) (citations omitted); id. at 48a (“the East

Branch and Loon Pond are not the same body of

water; the East Branch is indeed a source ‘external’

to Loon Pond”); id. at 51a (“defendants cannot credi-

bly argue that these water bodies are so related that

the transfer of water from the East Branch to Loon x |

Pond is not an ‘addition’ of water from one of the Bees

‘waters of the United States’ to another”). Thus, be- |

cause the decision did not address a set of facts ;

involving withdrawal and return of water to the same |

water body, this case would not be an appropriate

vehicle for this Court’s review of whether an NPDES

permit would be required under those circumstances.

Petitioner acknowledges that the district court’s

decision “did not focus on the withdrawal and return

of water to the same water body” and that the court of

appeals’ decision likewise “failed to fully analyze the

issue,” but petitioner nevertheless argues that the

court of appeals’ “decision turns on the idea that

once water leaves the ‘domain of nature’ it becomes

a discharge if later returned to its source, even if re-

turned unchanged.” Pet. 9-10. Petitioner is referring

to the court of appeals’ observation that water passing

through petitioner’s pipes on its way from the East

Branch to Loon Pond “leaves the domain of nature”

and “has lost its status as waters of the United

States.” Pet. App. 49a. The court of appeals made

that statement, however, in the context of its holding

that the transfer of water from the East Branch to

Loon Pond requires an NPDES permit. /d. at 53a.

On remand, the district court raised the issue of

whether the court of appeals’ decision requires peti-

tioner to obtain an NPDES permit for discharges of

attel < Cal ial tee, oe ht ret tn he, abt LL TOA LN:

a an acini aac

9

water from the snowmaking system to the same

water body from which the water was withdrawn,

even if no new pollutants are added by virtue of the

snowmaking system itself.’ Petitioner argued to the

district court that an NPDES permit is not required

because “(t}he First Circuit held only that transfers

of water from one body to another would constitute

discharges under the Clean Water Act.” April 9,

1997 Memorandum In Partial Opposition To Proposed

Injunction at 3. On May 5, 1997, the district court

entered an order requiring petitioner to apply for a

permit for such discharges, but allowing such dis-

charges on an interim basis.’ If the First Circuit

should hold in the future that an NPDES permit is

required where water is restored to the same

* Such discharges could occur, for example, when East

Branch water passing through petitioner’s snowmaking pipes

later drains back into the East Branch. The parties dispute,

however, whether petitioner’s snowmaking pipes themselves

add new pollutants, such as oil and grease, to the water. See

Pet. App. 47a n.29.

* The United States supported the entry of the Court’s

May 5, 1997 order. During a hearing regarding that order—in

response to a question from the district court as to whether an

NPDES permit was required if water is taken from a water

body, confined in a pipe without adding anything to the water,

and released back into the same water body—government

counsel stated: “Pursuant to the decision of the First Circuit,

your Honor, I think that’s correct in this situation.” Apr. 11,

1997 Tr. 35. It is unclear whether “decision” refers to the

First Circuit’s actual holding or the particular language in its

opinion quoted above. See Pet. App. 49a. As we explain in the

text, however, the question addressed by the First Circuit

involved a transfer of water from one body to another. We

therefore do not believe that the First Circuit’s specific holding

in this case reaches the situation raised by the district court’s

question.

10

water body without the addition of new pollutants,

there will be time enough for review by this Court.

Accordingly, because the court of appeals has not yet

definitively resolved the question of whether an

NPDES permit is required for discharges into the )

same water body, review by this Court would be pre-

mature.

b. Petitioner also argues (Pet. 8) that there is a

conflict among the courts of appeals on the question

whether an NPDES permit is required “to transfer

water without addition of any pollutants from one

body of water of the United States to another via a

point source.” Petitioner fails to cite any appellate

decision, however, that conflicts with the decision

below. Indeed, the only case cited by petitioner (Pet.

14) that holds an NPDES permit is not required is a

district court decision that involves not the discharge

of pollutants from one water body into another,

but the diversion of a stream. See Bettis v. Town of

Ontario, 800 F. Supp. 1118, 1119 (W.D.N.Y. 1992).

Accordingly, there is no circuit conflict on the issue

that warrants this Court’s review.

2. Petitioner also argues (Pet. 16-19) that the

court of appeals erred in faulting the Forest Service

for not evaluating the use of artificial water storage

ponds for snowmaking as an alternative to drawing

water from Loon Pond. Although the federal respon-

dents agree that that alternative lacks sufficient

plausibility to merit detailed evaluation, the court of

appeals’ factbound conclusion to the contrary does not

warrant further review by this Court.

Petitioner maintains (Pet. 16-18) that the decision

below holds that agencies must not only evaluate rea-

sonable suggestions of project alternatives but also

all reasonable suggestions for mitigation even if the

Kar aie mT

11

agency has determined that the chosen means of

mitigation will be satisfactory. The court of appeals’

decision, however, simply applies the requirement

under NEPA that an agency must explore all reason-

able alternatives to a proposed action in order to per-

mit a reasoned choice by the decision maker. See 40

C.F.R. 1502.14(a). Petitioner’s proposed expansion

contemplated an increase in water use to satisfy peti-

tioner’s increased snowmaking needs. Alternative

means of water use are project alternatives, not miti-

gation measures to be employed once an alternative is

selected. See 40 C.F.R. 1502.14(f). Accordingly, the

decision below does not conflict with the decisions

cited by petitioner that uphold the agency’s evalua-

tion of mitigation measures. See, e.g., City of

Carmel-By-The-Sea v. United States Dep’t of Trans-

portation, 95 F.3d 892, 908-909 (9th Cir. 1996); En-

vironmental Defense Fund v. Hoffman, 566 F.2d

1060, 1071 (8th Cir. 1977).

3. Finally, petitioner argues (Pet. 20-24) that the

court of appeals erred in concluding that the Forest

Service was required to prepare a supplemental

draft EIS to discuss Alternative 6. That factbound

contention, however, does not warrant this Court’s

review. The court of appeals acknowledged that an

agency must publish a supplemental draft EIS only

if there are “substantial changes in the proposed

action that are relevant to environmental concerns.”

Pet. App. 36a (quoting 40 C.F.R. 1502.9(c)(1)(i)). Both

petitioner and the Forest Service argued to the court

of appeals that the potential environmental effects of

Alternative 6 fell within the range of effects of other

alternatives that had previously been evaluated in the

draft EIS, particularly Alternative 2. The court of

appeals disagreed, however, concluding that altera-

12

tions in the configuration of development of peti-

tioner’s ski resort (which the court thought included

areas that would have been undisturbed under the

previously analyzed alternatives) and the increase in

volume of water to be used for snowmaking were

“substantial changes” that necessitated a supple-

mental draft EIS. Pet. App. 38a-39a. Although

petitioner provides substantial reasons for believing

that the court of appeals erred, the decision below

was dependent on the court’s view of the particular

circumstances of the case and not on the application

of legal principles significantly different from those

applied by other courts of appeals. Thus, no further

review by this Court is warranted.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

LoIsS J. SCHIFFER

Assistant Attorney General

STEPHEN L. SAMUELS

JOHN A. BRYSON

Attorneys

May 1997