*

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), public officers’

successors are automatically substituted as parties, resulting in the following

substitutions here: Faye Kreueger for Thomas L. Tidwell, Brian Ferebee for Peter

W. Karp, and Jack G. Troyer for Cathrine L. Beaty.

FILED

United States Court of Appeals

Tenth Circuit

January 15, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CITIZENS’ COMMITTEE TO SAVE

OUR CANYONS, and UTAH

ENVIRONMENTAL CONGRESS,

Plaintiffs-Appellants,

v. No. 07-4011

FAYE KRUEGER, Forest Supervisor

for the Wasatch-Cache National

Forest; BRIAN FEREBEE, Forest

Supervisor for the Uinta National

Forest, JACK G. TROYER,

Intermountain Region Deputy

Regional Forester, and UNITED

STATES FOREST SERVICE,*

Defendants-Appellees.

WASATCH POWDERBIRD GUIDES,

Defendant-IntervenorAppellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:05-CV-548-TS)
-2-

William B. Lockhart (Sarah Tal, Wildlaw Southwest, with him on the briefs), Salt

Lake City, Utah, for Appellants.

Jared C. Bennett, Assistant United States Attorney (Brett L. Tolman, United

States Attorney, District of Utah, with him on the brief), Office of the United

States Attorney, Salt Lake City, Utah, for Appellees.

Michael J. Malmquist, Parsons Behle & Latimer, Salt Lake City, Utah, on the

brief for Intervenor-Appellee.

Before HENRY, Chief Judge, EBEL and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

In this appeal we consider the United States Forest Service’s decision to

issue a special use permit to Wasatch Powderbird Guides to conduct helicopter

skiing operations in two national forests. Citizens’ Committee to Save Our

Canyons and Utah Environmental Congress argue the decision violated the

National Forest Management Act and the National Environmental Policy Act. 

The district court upheld the Forest Service permit. 

Exercising jurisdiction under the Administrative Procedure Act, 5 U.S.C.

§§ 701–706, and 28 U.S.C. § 1331, we affirm.

I. Background

Wasatch Powderbird Guides (“WPG”) has continuously operated a guided

helicopter skiing business in the Wasatch-Cache and Uinta National Forests since

1973. It operates pursuant to special use permits periodically issued by the Forest
-3-

Service. In this appeal, Citizens’ Committee to Save Our Canyons and Utah

Environmental Congress (collectively “SOC”), challenge the renewal permit

issued to WPG in 2005. Prior to the 2005 permit, WPG operated under a permit

issued in 2000. 

SOC are non-profit organizations comprised of members who use the areas

in which WPG operates for non-motorized uses such as backcountry skiing,

snowshoeing, hiking, and camping. They claim their recreational opportunities

and experiences are diminished by WPG’s operations and argue the Forest Service

failed to comply with relevant laws when issuing WPG’s most recent permit.

A. The Wasatch-Cache and Uinta Forest Plans

Under the National Forest Management Act, the Forest Service manages

national forests pursuant to forest plans periodically developed for each forest. 

The Wasatch-Cache and Uinta forest plans were initially adopted in 1985. At that

time, the Wasatch-Cache plan expressly recognized helicopter skiing as “a

legitimate use of the National Forest” and called for “one helicopter ski special

use permit on the present permit area.” Supp. App. 669–70. The original Uinta

plan also directed the forest would be open to helicopter skiing under a special

use permit. Supp. App. 666. 

The Forest Service revised the Wasatch-Cache plan in 2003. The 2003 plan

established the following as forest-wide goals: “Manage for an array of recreation

opportunities and settings to improve the quality of life for a variety of Forest
-4-

recreation users. Balance growth and expansion of recreation by managing within

the capability of sustainable ecosystems found on the Forest for today and the

future.” Supp. App. 672. Specifically regarding helicopter skiing, the 2003

Wasatch-Cache plan provides,

Helicopter skiing will continue to operate as a component of the

recreation picture in the Central Wasatch. Helicopter skiing and ski

mountaineering will continue to compete for untracked conditions, and

those users seeking quiet in the winter backcountry may continue to

object to helicopter skiing. Information will continue to be available to

all backcountry visitors to help them make informed decisions and

avoid conflicts. . . . It is uncertain, however, whether helicopter skiing

can be managed to remain profitable over the long term while

accommodating a reasonable level of compromise with competing

backcountry uses.

Supp. App. 673.

The Uinta forest plan was also revised in 2003. The 2003 Uinta plan

provides for “[d]iverse and suitable recreational opportunities . . . responsive to

public demand while maintaining ecosystem health and contribution to social and

economic sustainability.” Supp. App. 667. The Uinta plan specifically provides

for helicopter skiing “consistent with the resource capability, other land uses, and

other resource management goals.” Supp. App. 668.

B. WPG’s 2000 Permit 

Although SOC challenges WPG’s 2005 permit, the dispute in this case goes

back to the permitting process for WPG’s 2000 permit. 
-5-

When WPG applied for its 2000 permit, the 1985 forest plans governed the

permitting decision. The Forest Service at the time interpreted the 1985 forest

plans as requiring the forests to allow helicopter skiing. Accordingly, when the

Forest Service began developing an Environmental Impact Statement (“EIS”) for

the 2000 permit decision, the Forest Service identified that the purpose and need

of the proposed action was to “[c]ontinue one helicopter ski special use permit on

the present area.” Supp. App. 626. This need would be met by “[a]llowing for an

economically viable helicopter skiing operation.” Supp. App. 625. 

The final EIS for the 2000 permit thus analyzed each option based on

whether it would allow WPG to remain economically viable. The 2000 permit the

Forest Service ultimately approved set forth a number of restrictions on WPG’s

operations, including limiting WPG’s operating season, closing the national

forests to helicopter skiing on Sundays and Mondays, limiting WPG to using one

helicopter in certain areas, and limiting the number of skiers WPG could serve. 

WPG appealed the decision to the Regional Forester, arguing the

restrictions threatened its economic viability. Based on the understanding that the

1985 forest plans required the Forest Service to ensure its helicopter skiing

permittee was economically viable, the Regional Forester ordered a financial

analysis of WPG’s operations. The financial analysis revealed that limiting

weekend operations and limiting WPG to one helicopter in certain areas were key

constraints on WPG’s economic viability. But rather than amending the 2000
-6-

permit, the Forest Service decided to incorporate the information gleaned from

the financial analysis into the analysis for the next permit application.

C. WPG’s 2005 Permit

WPG’s 2005 permit was issued under the new 2003 forest plans, rather than

the 1985 forest plans that governed the 2000 permit. To highlight the change in

focus of the 2003 forest plans, the draft EIS for the 2005 permit provided,

The Forest Service emphasizes the fact that the agency is not

responsible for any permittee’s economic viability. While private

sector economic concerns are not necessarily those of the federal

government, the success or failure of a permittee may have a

considerable bearing on the Forest Service’s ability to meet the mandate

to provide a range of quality recreational opportunities on lands under

our administration. 

Aplt. Excerpts of R. [ER] 520. The Forest Service also identified as an unmet

need “provid[ing] improved operating efficiencies for WPG relative to the current

permit while seeking to minimize conflicts between heli-skiing and other winter

recreational uses.” ER 521. The Forest Service “recognize[d] that there is a

measure of conflict inherent in this statement of needs. On the basis of this

analysis, the decision maker will endeavor to achieve a balance that can be

maintained through the term of the permit.” ER 521 (emphasis supplied).

Accordingly, the draft EIS analyzed a range of alternatives, including not

issuing a permit and various limitations on WPG’s operating season, days, and

area. The draft EIS incorporated much of the analysis from the 1999 EIS, which

was prepared for the 2000 permit. See 40 C.F.R. § 1502.21 (encouraging
-7-

agencies to incorporate material by reference). Particularly, it incorporated the

1999 EIS’s analysis of the safety impact of WPG’s use of explosives to test slope

stability and the noise impacts of WPG’s operations on other backcountry users.

But the draft EIS also distinguished its analysis from the 1999 EIS:

The 1999 EIS provided a detailed analysis of the impacts of various

permit terms on WPG’s economic viability. However, the revised

Forest Plans for the [Wasatch-Cache and Uinta National Forests] clarify

the relationship between the Forest Service and outfitter and guide

permittees, including the agency’s perspective on permittee’s economic

viability. The agency’s concern is provision of a range of recreational

opportunities on the lands under their administration. While it is

recognized that a permittee cannot continue to provide a recreational

opportunity if the permitted operation is not economically viable,

viability in itself is not an agency concern. 

ER 522. It then concluded:

Therefore, the focus of this analysis is on whether or not the terms of

a given permit would provide WPG with adequate operational

flexibility to continue to provide a quality heli-skiing experience. . . .

Economic viability, per se, was determined to be outside the scope of

the analysis on the basis of the current Forest Plan direction.

ER 522.

Numerous comments on the draft EIS, including one from SOC, accused

the Forest Service of considering WPG’s economic viability, in the guise of

“operational efficiency,” in violation of the 2003 forest plans. SOC also

suggested the term “operational efficiency” should be defined, and set forth

reasons why WPG’s economic viability would not actually be threatened by

increased restrictions. ER 513–15.
-8-

In response to comments like these, the Forest Service in the final EIS

defined “operating efficiency” as “how the operational conditions of the permit

negatively or positively affect the permittee’s ability to provide the type and level

of recreational opportunity desired by the Forest Service.” ER 526. The Forest

Service reiterated “the economic viability of outfitter and guide permittees is not

the agency’s concern.” ER 675. Rather, 

the Forest Service’s interest is in retaining heli-skiing as a recreational

opportunity on the [Wasatch-Cache and Uinta National Forests], as long

as other values are maintained. To meet this objective in a sustainable

way, and with the least environmental impact, requires an efficient heliski operation. Thus, while WPG’s economics are not a Forest Service

concern, their operational efficiency is. 

ER 675.

D. Prior Proceedings

On October 14, 2004, the Forest Service issued a Record of Decision

outlining the decision to issue another five-year permit to WPG and adopting the

following permit restrictions: WPG may (1) operate between December 15 and

April 15, plus five additional days outside of this period, but days used before

December 15 must be for noncommercial purposes; (2) not operate in the most

heavily used area of the forest on Sundays and Mondays, except that WPG may

operate on three Mondays if it does not operate on the preceding Saturday; (3)

operate on three Sundays or Mondays if it collects skiers at the end of the day by

van rather than helicopter; (4) use two helicopters in the most heavily used area
1

 A skier-day consists of eight runs by one skier. ER 672.

-9-

five days per season; (5) provide 1,600 total skier days1 in the permit area, half of

which may be used in the most heavily used area; and (6) use up to 300 explosive

charges per season to test slope stability. ER 691–92, 700.

SOC appealed the Record of Decision, and the Regional Forester affirmed. 

SOC then filed this action in federal district court challenging the Regional

Forester’s decision. SOC argued the Forest Service (1) violated the National

Forest Management Act (“NFMA”) because the permitting decision was

inconsistent with the Wasatch-Cache and Uinta forest plans and (2) violated the

National Environmental Policy Act (“NEPA”) by failing adequately to consider

potential environmental impacts. 

The district court found for the Forest Service, and SOC appeals.

II. Discussion

 SOC first argues the Forest Service violated the forest management laws

embodied in NFMA. SOC contends that, by the Forest Service’s own

interpretation of the 2003 forest plans, the Forest Service should not have

considered WPG’s economic viability. By considering WPG’s operational

efficiency, the Forest Service in effect considered economic viability in violation

of the forest plans. 

Second, SOC argues the Forest Service violated the environmental laws

contained in NEPA in two ways: (1) the Forest Service prevented the public from
-10-

commenting on WPG’s economic viability, a significant decision-making factor,

by insisting that it would not consider economic viability and couching the

consideration of economic viability in the term “operational efficiency”; and (2)

the Forest Service did not sufficiently analyze increasing recreational pressures in

the forests that affect the safety of forest users and noise impacts associated with

WPG’s operations. 

We agree with the district court that the permitting decision complied with

both NFMA and NEPA.

A. Standard of Review

Under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706,

which governs judicial review of agency actions, we review the lower court’s

decision de novo. N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248

F.3d 1277, 1281 (10th Cir. 2001). “Under the APA we set aside the agency’s

action . . . if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.’” Center for Native Ecosystems v. Cables, — F.3d —, No.

06-1130, 2007 WL 4376063, at *9 (10th Cir. Dec. 17, 2007) (quoting 5 U.S.C.

§ 706(2)(A)). We will also set aside an agency action if the agency has failed to

follow required procedures. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,

1574 (10th Cir. 1994); 5 U.S.C. § 706(2)(D). 

“Our review is highly deferential.” Ecology Center v. U.S. Forest Serv.,

451 F.3d 1183, 1188 (10th Cir. 2006) (quotation omitted). “The duty of a court
-11-

reviewing agency action under the ‘arbitrary or capricious’ standard is to

ascertain whether the agency examined the relevant data and articulated a rational

connection between the facts found and the decision made.” Olenhouse, 42 F.3d

at 1574. Furthermore, “[i]n reviewing the agency’s explanation, the reviewing

court must determine whether the agency considered all relevant factors and

whether there has been a clear error of judgment.” Id.; accord Utah Envtl. Cong.

v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). “A presumption of validity

attaches to the agency action and the burden of proof rests with the appellants

who challenge such action.” Colo. Health Care Ass’n v. Colo. Dep’t of Soc.

Serv., 842 F.2d 1158, 1164 (10th Cir. 1988).

We turn to whether the Forest Service’s permitting decision in this case

complied with NFMA and NEPA. 

B. NFMA

NFMA requires the Forest Service to “develop, maintain, and, as

appropriate, revise land and resource management plans for units of the National

Forest System.” 16 U.S.C. § 1604(a). All permits the Forest Service issues “for

the use and occupancy of National Forest System lands shall be consistent with

the land management plans.” Id. at § 1604(i). 

SOC argues WPG’s permit is inconsistent with the 2003 forest plans. SOC

argues the Forest Service interpreted its own forest plans as prohibiting the
-12-

consideration of WPG’s economic viability, but then employed economic

considerations in the permitting decision.

To support its argument, SOC quotes a single sentence from the section of

the EIS discussing public involvement and issues reviewed by the Forest Service. 

It suggests the following language embodies the Forest Service’s extant

interpretation of the 2003 forest plans: “Economic viability, per se, was

determined to be outside the scope of this analysis on the basis of current Forest

Plan direction.” ER 582. 

Given the context of this statement and the document as a whole, we cannot

agree this sentence alone constitutes the Forest Service’s interpretation of the

forest plans. Taken as a whole, the EIS shows the forest plans require the Forest

Service to balance a variety of recreational activities in the permit area, including,

if possible, helicopter skiing. Nothing in the EIS prohibits the consideration of

broad economic factors in the permitting process. Rather, the EIS interprets the

forest plans as redirecting the perspective of the Forest Service to recreational

opportunities as a whole, with a due consideration for the effect of permit

conditions on proposed operations.

The EIS goes to great lengths to explain the role of economic viability in

its analysis. It explains, for example, how the 2003 forest plans changed the

focus of the permitting decision from requiring consideration of a permitee’s

economic viability to a more balanced approach; and how, consistent with this
-13-

change in focus, considering WPG’s operating efficiencies better meets the new

forest plans’ goals than examining WPG’s economic viability—as the Forest

Service had prior to issuing the 2000 permit. 

In particular, the very paragraph SOC quotes from explains that the forest

plans require the Forest Service to provide “a range of recreational opportunities

on the lands under their administration” including the “Forest Service’s interest in

retaining heli-skiing as a recreation opportunity [within the forests].” ER 582,

675. The EIS explicitly acknowledges that certain restrictions on permittee

operations could limit the kinds of recreational opportunities available in the

forests and interfere with forest plan goals if permittees cannot operate under the

established restrictions. ER 582. 

In accordance with this interpretation of the forest plans, the EIS examined

various options and concluded an acceptable balance between helicopter skiing

and other uses could be reached by imposing certain restrictions on WPG’s

operations. These restrictions reflect no special consideration for WPG’s

economic viability beyond the goal of providing “a range of diverse, recreational

opportunities” including helicopter skiing. ER 538. The EIS thoroughly explains

the Forest Service’s approach, and the 2005 permit includes a number of

reasonable restrictions on WPG with the goal of allowing both helicopter skiers

and other backcountry users to enjoy the national forests. In the end, the Forest
-14-

Service’s permit reflected the “type and level” of heli-skiing it thought

appropriately balanced the competing recreational uses in the forests.

Taking the interpretation of the forest plans represented by the EIS as a

whole, the EIS and the ultimate permitting decision comply with the Forest

Service’s interpretation of its forest plans. The Forest Service properly

considered how particular options would affect the range of recreational

opportunities available in the forests and balanced interests in a way it believed

promoted multiple forest uses. Rather than violating the forest plans, this

approach of promoting a variety of recreational opportunities is directly in line

with the forest plans’ goals. 

In short, we cannot conclude this result or the process used to reach it

violates NFMA’s directive that permits be consistent with forest plans.

C. NEPA

Under NEPA, a federal agency must prepare an EIS before it takes any

action “significantly affecting the quality of the human environment.” 42 U.S.C.

§ 4332(C). The EIS must examine “(i) the environmental impact of the proposed

action, (ii) any adverse environmental effects which cannot be avoided should the

proposal be implemented, (iii) alternatives to the proposed action, (iv) the

relationship between local short-term uses of man’s environment and the

maintenance and enhancement of long-term productivity, and (v) any irreversible
-15-

and irretrievable commitments of resources which would be involved in the

proposed action should it be implemented.” Id. 

“NEPA places upon federal agencies the obligation ‘to consider every

significant aspect of the environmental impact of a proposed action.’ It also

ensures that an agency will inform the public that it has considered environmental

concerns in its decision-making process.” Utah Shared Access Alliance v. U.S.

Forest Serv., 288 F.3d 1205, 1207 (10th Cir. 2002) (quoting Baltimore Gas &

Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983)); accord

Ecology Center, 451 F.3d at 1189. 

NEPA does not, however, “require agencies to elevate environmental

concerns over other appropriate considerations . . . ; it requires only that the

agency take a ‘hard look’ at the environmental consequences before taking a

major action. In other words, it prohibits uninformed—rather than

unwise—agency action.” Utah Shared Access Alliance, 288 F.3d at 1207–08

(quotation omitted). “The role of the courts in reviewing compliance with NEPA

is simply to ensure that the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is not arbitrary and

capricious.” Id. at 1208 (quotation omitted).

SOC argues the EIS was inadequate under NEPA because (1) the Forest

Service failed to adequately disclose and solicit public comment in the way it

handled the issue of operational efficiency, and (2) the Forest Service
-16-

inadequately analyzed other environmental impacts, including usage, safety and

noise. 

1. Public Comment

Under NEPA regulations, the agency must publish a draft EIS for public

comment and respond to those comments in the final EIS. 40 C.F.R. §§ 1502.9,

1503.1, 1503.4. The goal is to “inform decisionmakers and the public of the

reasonable alternatives which would avoid or minimize adverse impacts or

enhance the quality of the human environment.” 40 C.F.R. § 1502.1. “[EISs]

shall be written in plain language and may use appropriate graphics so that

decisionmakers and the public can readily understand them.” 40 C.F.R. § 1502.8. 

SOC argues the Forest Service failed to comply with these regulations because it

did not identify WPG’s economic viability as a significant issue in the EIS and

the public therefore had no opportunity to comment on one of the major factors

the Forest Service considered in its decision.

As discussed above, the draft EIS explained how the 2003 forest plans

altered the focus of the heli-ski permitting decision when compared to the 1985

forest plans. While the draft EIS explained the forest plans had shifted the focus

away from a mandate of the permittee’s economic viability, it explicitly

acknowledged “the success or failure of a permittee may have a considerable

bearing on the Forest Service’s ability to meet the mandate to provide a range of

quality recreational opportunities.” ER 520. 
-17-

In response to the draft EIS, the Forest Service received comments to the

effect that it should not consider WPG’s economic viability at all and that

operational efficiency should be defined. ER 675–76, 686–87. In particular, SOC

itself commented on the draft EIS, as it argued in this appeal, that the Forest

Service was effectively considering WPG’s economic viability in the guise of

operational efficiency. ER 513–14. SOC even went on to explain how WPG

could continue to operate as an economically viable business even under more

restrictive permit conditions. ER 514–15. 

The Forest Service’s response to these comments reiterated that the Forest

Service was not concerned with WPG’s economic viability, but that its goal was

“retaining heli-skiing as a recreational opportunity on the [Wasatch-Cache and

Uinta National Forests], as long as other values are maintained.” ER 675. The

Forest Service again repeated that a more efficient helicopter skiing operation

would better “meet this objective in a sustainable way, and with the least

environmental impact.” ER 514–15. In the draft EIS and the response to public

comments, the Forest Service clearly articulated its decisionmaking criteria and

the basis for its eventual decision. The Forest Service explained that the term

“operational efficiency” obviously subsumes some element of economic

consideration. The public, including SOC, had a full opportunity to comment on

these criteria, and the public in fact submitted relevant comments. No one was

misled. 
-18-

Because the Forest Service articulated a rational basis for its consideration

of operational efficiency and considered public comments, the Forest Service’s

action was not arbitrary and capricious on this account.

2. Environmental Impact

SOC also argues the permitting decision was arbitrary and capricious for

failure to consider important environmental consequences. It claims the Forest

Service insufficiently analyzed the risk to other forest users from WPG’s

explosives and the effect on other users of helicopter noise. In particular, SOC

argues the discussion of these issues in the most recent EIS relied on the 1999

EIS, and that backcountry use had increased so dramatically that the Forest

Service needed to develop a new analysis of patterns of backcountry use, and the

Forest Service needed to develop a more comprehensive analysis of helicopter

noise patterns.

Under NEPA, the EIS should take a “hard look” at the impacts of a

proposed action. Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th

Cir. 1997); see 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4. But NEPA’s “hard

look” does not necessarily require the agency to develop “hard data.” Ecology

Center, 451 F.3d at 1190. The Forest Service meets the “hard look” requirement

by “present[ing] the environmental impacts of the proposal and the alternatives in

comparative form, thus sharply defining the issues and providing a clear basis for

choice among options.” 40 C.F.R. § 1502.14. “[O]nce environmental concerns
-19-

are adequately identified and evaluated by the agency, NEPA places no further

constraint on agency actions.” Friends of the Bow, 124 F.3d at 1213 (quotation

omitted). 

The EIS in this case adequately identified and evaluated (1) increasing

recreational use of backcountry areas, (2) the impact of WPG’s operations on the

safety of other forest users, and (3) the noise impacts of WPG’s helicopters in the

permit area. The Forest Service thus complied with NEPA’s “hard look”

requirement.

a. Increased Backcountry Usage

The Forest Service identified and evaluated as an important issue

increasing usage of backcountry recreation areas. The EIS for the 2005 permit

recognized that use of the backcountry for winter recreation has been increasing,

but “[r]eliable estimates of the number of individuals recreating in the Central

Wasatch backcountry during the winter are still not available. The question can

be addressed at one level by looking at national trends, which show that . . .

alternatives to resort skiing have gained significant popularity over the past

decade.” ER 589. Based on trends in equipment sales, calls to the Utah

Avalanche Forecast Center, and observations by Forest Service personnel, WPG

employees, and backcountry users themselves, the EIS concluded, “most of the

anecdotal information reviewed for this analysis suggests that winter backcountry

use is high and growing, and that the trend is likely to persist. Some incremental
2

 The 1999 EIS referred to three reports based on (1) trailhead interviews

during the winters of 1993 and 1994 conducted by the Forest Service and the

University of Utah; (2) observations by WPG; and (3) an independent survey. ER

96–97. Interpreting this information, the Forest Service identified the most

heavily used trailheads and areas by backcountry users. ER 98–102, 110. The

Forest Service also identified higher backcountry use on weekends. ER 110–11.

-20-

shifts in the types and patterns of backcountry recreation other than heli-skiing

may have occurred but cannot be reliably documented.” ER 590–91. 

Accordingly, the EIS adopted the 1999 EIS’s analysis of backcountry usage

patterns, while allowing for an overall increase in usage. ER 591.2

 In response to public comments on the absence of hard data, the Forest

Service concluded the “updated but still largely qualitative information on other

backcountry use in the permit area considered in this analysis is sufficient for

public disclosure and informed decision making.” ER 680. “[T]he Forest Service

acknowledges that the backcountry sees relatively high levels of recreation use,

[and] such use is likely to increase over time . . . . However, the EIS provides

adequate information to make the decision at hand and is consistent with the

requirements of NEPA.” ER 680. Although the Forest Service acknowledged

backcountry use had increased since the 1999 EIS, the Forest Service concluded

with regard to safety, “[n]o new circumstances or information has developed since

the 1999 analysis that would alter the[] conclusions” from the 1999 EIS. ER 572,

573. Thus the Forest Service specifically considered whether its data was

sufficient and concluded that it was.
-21-

The information the Forest Service gathered supports its conclusion that

additional data was unnecessary to its decision. In particular, the Forest Service

concluded that if it “anticipated that heli-skiing would be curtailed at some

specific level of backcountry use, more and better data might be relevant.” ER

680; see also ER 703 (noting further “study might be appropriate if the Forest

Plan directs that recreation use be capped at certain levels, or if agency direction

requires some uses to be given preference over others”). Given the Forest

Service’s goal of balancing recreational opportunities, the qualitative information

it obtained—specifically that non-motorized backcountry use was increasing and

was heaviest in areas nearest to population centers and on weekends—enabled it

to craft permit terms to minimize conflict between user groups. For example, the

Forest Service considered alternatives and adopted permit terms limiting WPG

operations in the most heavily used area on weekends.

In short, the information the Forest Service gathered was sufficient to

“sharply defin[e] the issues and provid[e] a clear basis for choice among options.” 

40 C.F.R. § 1502.14. 

b. Safety

The EIS discussed the risks and benefits of WPG’s explosives use and

determined any risk was minimal. The information gathered in the EIS and

incorporated from the 1999 EIS supports the conclusion that WPG’s operations

present minimal risk beyond the general risk presented by increased backcountry
-22-

use. ER 148; see also ER 80–81 (noting “the probability of accidents and injuries

involving backcountry recreationists increases with the number of people

involved,” simply because all backcountry users risk triggering avalanches). 

First, the Forest Service described the risk presented by WPG’s operations. 

WPG uses explosives only to test for slope stability; WPG does not use

explosives to trigger avalanches or control avalanche slide paths. ER 118–119,

685. Furthermore, WPG uses explosives only when all other measures of slope

stability have proven inconclusive. ER 118. Using this approach, WPG triggers

very few avalanches. ER 118, 130. 

Second, the Forest Service imposed additional restrictions on WPG to

minimize the risk to others from any potential avalanches. WPG must conduct

testing before 9:00 a.m. or as early as practical, fly over the area before testing,

and test only when visibility is at least .5 miles. ER 121, 147, 566, 684, 700. 

These measures have been effective at mitigating any safety hazard: WPG in its

more than thirty years of operation has never released an avalanche that injured

another recreationist; nor have any injuries been associated with WPG’s

explosives use, even as backcountry use has increased. ER 572–73. 

Finally, the Forest Service recognized WPG’s positive impact on avalanche

safety through input to the Utah Avalanche Forecasting Center, the provision of

guides trained in avalanche risk to relatively inexperienced skiers, contributions

to other organizations’ avalanche control work, and rescue assistance. ER 149. 
-23-

The Forest Service concluded WPG’s “efforts serve not only to make WPG’s

operation as safe as possible, but to help minimize the avalanche risk to all other

users of the Wasatch backcountry.” ER 119. Eliminating explosives use would

involve “removal of one tool used to safeguard helicopter skiers, as well as those

sharing terrain with them, from avalanches; and some decrease in the quality of

the slope stability information WPG provides to the resorts, UDOT, and UAFC.” 

ER 168. Although the Forest Service “recognize[d] that explosives testing has

undesireable side effects,” it allowed WPG up to 300 charges per year “to retain

the cited benefits while capping the risks at current levels.” ER 168. 

This discussion of explosives use “articulate[s] a rational connection

between the facts found and the decision” to permit WPG limited explosives use. 

Olenhouse, 42 F.3d at 1574.

c. Noise

Lastly, the Forest Service also adequately identified and evaluated the noise

generated by WPG’s operations. The EIS identified WPG’s noise impact as the

most commonly reported complaint among other backcountry users and ranked

alternatives in terms of potential for noise generation. ER 532–34, 569. The

Forest Service identified the number of helicopters in operation as the major

factor affecting noise generation and incorporated the analysis of the 1999 EIS

concluding that noise levels are highest in close proximity to a helicopter and

when a backcountry user is present in the same drainage as a helicopter. ER 116,
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569, 581. The Forest Service concluded “the degree of impact depends on several

factors, including: spatial and temporal proximity to the helicopter, the type and

location of the other recreational activities occurring, the sensitivity of the people

involved.” ER 621. We think this constitutes sufficient information to evaluate

the noise impact of the WPG permitting decision.

Particularly, the Forest Service recognized permit restrictions as a means of

mitigating noise and reducing conflicts with other backcountry users related to

noise. The Forest Service recognized that noise impacts vary by “the type of heliski permit restrictions in place (e.g., structured restrictions resulting in more

predicatable, more localized, and more intensive impacts v. flexible restrictions

associated with less predictable, more widespread, less intensive impacts).” ER

621. “[S]ome level of impact on other recreationists is unavoidable, but the terms

of the heli-ski permit provide the means of managing these impacts.” ER 569. 

The Forest Service also recognized that WPG had managed to reduce

conflicts with other users under terms of the 2000 permit. ER 569, 598. 

Accordingly, the Forest Service continued to apply permit terms allowing other

backcountry users to avoid WPG’s operations if they so desired and to require

WPG to “notify the public of its operating plans a day in advance” through the

Utah Avalanche Center recorded information line and website, WPG’s website,

and the Wasatch-Cache National Forest website. ER 624, 701. WPG also must
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avoid flying through passes and along ridges occupied by other users when

possible. ER 623, 701.

SOC argues the Forest Service’s decision was arbitrary and capricious

because it did not have the benefit of empirical data mapping noise distribution in

the permit area and did not have the benefit of comments from other federal

agencies with expertise relating to aircraft noise. We agree with the Forest

Service that “[w]hile more information could be collected on any particular issue,

the EIS provides a sufficient basis for making an informed decision, taking into

account how noise impacts might vary by alternative.” ER 683. 

The Forest Service was not required to base its decision on a conclusion

that some particular level of noise was either acceptable or unacceptable. Cf.

Nat’l Parks & Conservation Ass’n v. Fed. Aviation Admin., 998 F.2d 1523, 1533

(10th Cir. 1993) (finding agency failure to develop evidence arbitrary and

capricious when agency was required to determine whether noise would

significantly impact parks users’ recreational experiences). Instead, the Forest

Service was required to meet the mandates of its forest plans by providing quality

helicopter skiing opportunities “while seeking to minimize conflicts between heliskiing and other winter recreational uses.” ER 521. To address this problem, the

Forest Service identified an effective means of minimizing conflict by giving

other users means to avoid WPG operations by imposing permit restrictions that

make predictable WPG’s operations and consequent noise impacts. Additional
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empirical data would not assist the Forest Service in “sharply defining the issues

and providing a clear basis for choice among options” for minimizing user

conflict. 40 C.F.R. § 1502.14.

* * *

In sum, the Forest Service’s EIS fully disclosed and considered the impact

of its decision to issue a special use permit to WPG. “Our objective is not to ‘fly

speck’ the [EIS], but rather, to make a pragmatic judgment whether the [EIS]’s

form, content and preparation foster both informed decision-making and informed

public participation.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024,

1035 (10th Cir. 2001) (quotation omitted). The NEPA process in this case,

including extensive public comment, considered a variety of options and yielded a

number of reasonable restrictions on WPG’s operations designed to minimize

conflict among forest users. This is all NEPA requires.

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of the district court.