[Federal Register Volume 75, Number 47 (Thursday, March 11, 2010)]
[Notices]
[Pages 11511-11512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5021]


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DEPARTMENT OF AGRICULTURE

Forest Service


Rogue River-Siskiyou National Forest; Mt. Ashland Ski Area 
Expansion, Jackson County, OR

ACTION: Notice of Intent to prepare a Supplemental Environmental Impact 
Statement to analyze and correct NFMA and NEPA violations found by the 
United States Court of Appeals for the Ninth Circuit in CV-05-03004-PA, 
to conditionally authorize expansion of the Mt. Ashland Ski Area.

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SUMMARY: In September 2004, the Forest Service issued a Record of 
Decision (ROD) for the Mt. Ashland Ski Area (MASA) expansion, selecting 
Alternative 2 with some modifications adopted from Alternative 6. The 
Forest Service received twenty-eight notices of appeal to the ROD. In 
December 2004, the Forest Service denied all administrative appeals to 
the ROD. In January 2005, Oregon Natural Resources Council (ONRC) filed 
suit against the Forest Service and Regional Forester Linda Goodman 
seeking declaratory and injunctive relief on the grounds that the MASA 
expansion project violated both the NEPA and the NFMA. On February 9, 
2007, after considering cross motions for summary judgment, a United 
States District Court entered summary judgment against ONRC. ONRC filed 
a timely notice of appeal to the Ninth Circuit Court of Appeals. Upon 
review, the Court of Appeals remanded the case to the district court 
and instructed it to promptly enjoin the MASA expansion project 
contemplated in the 2004 ROD until the Forest Service corrected the 
NFMA and NEPA violations found in Opinion CV-05-03004-PA.

DATES: Under 40 CFR 1502.9(c)(4), there is no formal scoping period for 
this action. The Draft Supplemental Environmental Impact Statement 
(SEIS) is expected March 2010 and the Final Supplemental Environmental 
Impact Statement is expected May 2010.

FOR FURTHER INFORMATION CONTACT: Steve Johnson, Siskiyou Mountains 
Ranger District, Rogue River-Siskiyou National Forest, 645 Washington 
Street, Ashland, Oregon, 97520, Telephone (541) 552-2900; FAX (541) 
552-2922.

SUPPLEMENTARY INFORMATION: The Court of Appeals identified several NFMA 
and NEPA claims, including failure to conduct a proper Biological 
Evaluation for the Pacific fisher that addresses the five steps 
referenced in the Land and Resource Management Plan (LRMP). The Court 
of Appeals found it necessary to understand the type of habitat the 
Pacific fisher requires for food, shelter and reproduction. A link 
between mapping of habitat and habitat needs must be made in order to 
use habitat as a proxy for population census. Potential impacts of 
displacing fisher and damaging habitat in the corridor between the 
Siskiyous and Southern cascades must be understood. Cumulative effects 
of foreseeable future projects on fisher habitat must be understood. 
The Court of Appeals also found failure to appropriately designate 
Riparian Reserve and Restricted Watershed land allocations and to 
properly analyze against LRMP standards and guidelines for soils. 
Landslide Hazard Zone 2 should have been designated as Riparian 
Reserve.

Purpose and Need for Action

    The purpose and need for this supplemental document is to analyze 
and correct specific violations identified by the Ninth Circuit Court 
of Appeals which will allow a determination on whether and to what 
extent analysis of supplemental information might alter the decision to 
allow ski area expansion. This action is needed to address the 
appropriateness of the previous decision and to be responsive to the 
Court of Appeals Opinion and district court injunction.

Responsible Official

    The Rogue River-Siskiyou and Klamath National Forests are jointly 
responsible for public land management of the Special Use Permit area. 
The Rogue River-Siskiyou National Forest has been authorized to make 
decisions regarding implementation of ski area expansion activities at 
Mt. Ashland under the terms of a February 4, 2004 Intra Agency 
Agreement (No. 03-IA-11061002-005), between the Klamath National Forest 
and the Rogue River-Siskiyou National Forest and renewed on May 12, 
2009 Intra Agency Agreement (09-IA-11061001-003).

Decision Framework

    The Forest Service will use the results of supplemental analysis to 
determine if and how the violations identified by the Ninth Circuit 
will affect the 2004 decision. The Forest Service will decide whether 
to withdraw the 2004 decision, or issue a new or supplemental decision. 
If a new or supplemental decision is issued following preparation of 
the Final Supplemental Environmental Impact Statement, that decision 
will be subject to appeal in accordance with 36 CFR 215.

Early Notice of Importance of Public Participation in Subsequent 
Environmental Review

    A Draft SEIS will be prepared for comment. Comments received on the 
Draft SEIS will be considered in the preparation of the Final SEIS. The 
Draft SEIS is now expected to be filed with the Environmental 
Protection Agency (EPA) and to be available for public review in March 
2010. The comment period on the Draft SEIS will be 45-days from the 
date EPA publishes the Notice of Availability in the Federal Register. 
At the end of the comment period on the Draft SETS, comments will be 
analyzed and considered by the Forest Service in preparing the Final 
SEIS. The Final SETS is scheduled to be completed by May 2010. The 
Forest Service believes it is important to give reviewers notice of 
several court rulings related to public participation in the 
environmental review process. First, reviewers of draft environmental 
impact statements must structure their participation in the 
environmental review of the proposal so that it is

[[Page 11512]]

meaningful and alerts an agency to the reviewers position and 
contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 
553 (1978). Also, environmental objections that could be raised at the 
draft environmental impact statement stage but that are not raised 
until after completion of the final environmental impact statement may 
be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 
1016, 1022 (9th Cir. 1986) and Wisconsin Heritages, Inc. v. Harris, 490 
F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, 
it is very important that those interested in this action participate 
by the close of the 45 day comment period so that substantive comments 
and objections are made available to the Forest Service at a time when 
it can meaningfully consider them and respond to them in the Final 
SETS. To assist the Forest Service in identifying and considering 
issues and concerns, comments on the Draft SEIS should be as specific 
as possible. It is also helpful if comments refer to specific pages or 
chapters of the draft statement. Comments may also address the adequacy 
of the draft environmental impact statement or the merits of the 
alternatives formulated and discussed in the statement. Reviewers may 
wish to refer to the Council on Environmental Quality Regulations for 
implementing the procedural provisions of the National Environmental 
Policy Act at 40 CFR 1503.3 in addressing these points. Comments 
received, including the names and address of those who comment, will be 
considered part of the public record on this proposal and will be 
available for public inspection.

    Authority: 40 CFR 508.22; 36 CFR 220.5.

    Dated: March 1, 2010.
Scott D. Conroy,
Forest Supervisor.
[FR Doc. 2010-5021 Filed 3-10-10; 8:45 am]
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