Brief of Amicus Curiae - i

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Sean T. Malone OR Bar # 084060

Attorney at Law 

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

seanmalone8@hotmail.com

Ph. 303-859-0403

Attorney for Proposed Amicus Curiae

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

BARK, an Oregon non-profit corporation,

FRIENDS OF MOUNT HOOD, an Oregon 

non-profit corporation, NORTHWEST 

ENVIRONMENTAL DEFENSE CENTER, 

an Oregon non-profit corporation, THE SIERRA 

CLUB, a California non-profit corporation,

Plaintiffs,

v.

LISA NORTHROP, Forest Supervisor 

of the Mt. Hood National Forest, BILL 

WESTBROOK, Zigzag District Ranger, KENT 

CONNAUGHTON, Regional Forester for 

Region 6, and the UNITED STATES FOREST 

SERVICE, a federal agency; WILLIAM 

STELLE, Regional Administrator of the West 

Coast Region, and the NATIONAL MARINE 

FISHERIES SERVICE, a federal agency,

 Defendants,

RLK AND COMPANY, an Oregon corporation,

 Defendant-Intervenor.

 

Case No. 3:13-cv-00828-AA

BRIEF OF AMICUS CURIAE

 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 1 of 25
Brief of Amicus Curiae - ii

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

TABLE OF CONTENTS

INTERESTS OF AMICUS CURIAE............................................................................................. 1

BACKGROUND ............................................................................................................................ 2

ARGUMENT.................................................................................................................................. 4

I. Public participation and full disclosure of environmental effects are important actionforcing mechanisms of NEPA that are implicated in the current case........................................ 4

II. The Forest Service failed to prepare environmental analysis under the National 

Environmental Policy Act upon acceptance of the Master Development Plan and amendment 

of the Special Use Permit............................................................................................................ 5

A. Disclosure of environmental effects and public participation are not meaningfully 

implemented without NEPA analysis...................................................................................... 5

B. The Forest Service’s acceptance of the Timberline Master Development Plan and 

amendment of the Special Use Permit was final agency action .............................................. 6

C. The Forest Service’s acceptance of the Master Development Plan and amendment of the 

Special Use Permit triggers National Environmental Policy Act review.............................. 11

III. The Forest Service should prepare an Environmental Impact Statement for the bike 

facility project because it may result in significant environmental effects............................... 15

A. An Environmental Impact Statement is required because the Project may have 

significant environmental effects according to a single significance factor or a combination 

of significance factors under the National Environmental Policy Act .................................. 15

1. The Project may be significant because of controversial environmental impacts...... 16

2. The Project may be significant because the possible effects on the human 

environment are highly uncertain or involve unique or unknown risks ............................ 18

3. The Project may be significant because the Project may adversely affect LCR 

steelhead............................................................................................................................. 20

CONCLUSION............................................................................................................................. 20

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 2 of 25
Brief of Amicus Curiae - iii

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

TABLE OF AUTHORITIES

Cases

Ark Initiative v. U.S. Forest Serv., 

Case No. 06-02418-WDM-MJW, 2010 U.S. Dist. LEXIS 94921 (D. Colo. 2010).......... 8, 9, 10

Barnes v. U.S. Dep’t of Transp., 

655 F.3d 1124 (9th Cir. 2011)................................................................................................... 19

Bennett v. Spear, 

520 U.S. 154 (1997).................................................................................................................... 6

Blue Mountains Biodiversity Proj. v. Blackwood, 

161 F3d 1208 (9th Cir. 1998).................................................................................................... 15

Cascadia Wildlands v. U.S. Forest Serv., 

937 F.Supp. 2d 1271 (D. Or. 2013)............................................................................... 15, 16, 20

Drakes Bay Oyster Co. v. Salazar, 

921 F.Supp.2d 972 (N.D. Cal. 2013), aff’d on other grounds, Drakes Bay Oyster Co. v. Jewell, 

729 F.3d 967 (9th Cir. 2013)....................................................................................................... 7

Earth Island Inst. v. U.S. Forest Serv., 

442 F.3d 1147 (9th Cir. 2006)..................................................................................................... 4

Envtl. Ethics v. U.S. Forest Serv., 

451 F.3d 1005 (9th Cir. 2006)................................................................................................... 20

FCC v. Fox Television Stations, Inc., 

556 U.S. 502 (2009).................................................................................................................. 13

Friends of Mt. Hood v. U.S. Forest Service, 

Case No. 97-1787-KI, 2000 U.S. Dist. LEXIS 18309 (D. Or. Dec. 15, 2000)........................... 6

Grand Canyon Trust v. U.S. Bureau of Reclamation, 

691 F.3d 1008 (9th Cir. 2012)................................................................................................... 12

Idaho Sporting Congress v. Rittenhouse, 

305 F.3d 957 (9th Cir. 2002)....................................................................................................... 4

Klamath-Siskiyou v. BLM, 

387 F.3d 989 (9th Cir. 2004)....................................................................................................... 4

Nat’l Parks & Conservation Ass’n v. Babbitt, 

241 F.3d 722 (9th Cir. 2001)............................................................................................... 16, 18

Native Ecosystems Council v. U.S. Forest Serv., 

428 F.3d 1233 (9th Cir. 2005)..................................................................................................... 4

North American Wild Sheep v. U.S. Dept. of Agriculture, 

681 F.2d 1172 (9th Cir. 1982)..................................................................................................... 4

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 

117 F.3d 1520 (9th Cir. 1997)................................................................................................... 16

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 3 of 25
Brief of Amicus Curiae - iv

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Ocean Advocates v. U.S. Army Corps of Eng’rs, 

402 F.3d 846 (9th Cir. 2004)..................................................................................................... 15

Okanogan Highlands Alliance v. Williams, 

236 F.3d 468 (9th Cir. 2000)..................................................................................................... 18

Oregon Wild v. Bureau of Land Mgmt, 

Case No. 14-0110-AA, 2015 U.S. Dist. LEXIS 32584, *32 (March 14, 2015)........................ 16

Robertson v. Methow Valley Citizens Council, 

490 U.S. 332 (1989).................................................................................................................... 4

S. Fork Band Council of W. Shoshone v. U.S. DOI,

588 F.3d 718 (9th Cir. 2009)..................................................................................................... 18

Western Montana., Inc. v. Austin, 

Case No 13-282-M-DWM, 2015 U.S. Dist. LEXIS 61244 (D. Mont. May 11, 2015)............... 7

Statutes

42 U.S.C. § 4332(2)(C)........................................................................................................... 11, 15

Regulations

36 C.F.R. § 220.6(d)(10)............................................................................................................... 16

36 C.F.R. § 251.54(e)(6)............................................................................................................... 13

40 C.F.R. § 1508.18(b)(2)............................................................................................................. 12

40 C.F.R. § 1508.27...................................................................................................................... 17

40 C.F.R. § 1508.27(b) ................................................................................................................. 18

40 C.F.R. § 1508.27(b)(5)............................................................................................................. 21

40 C.F.R. § 1508.27(b)(9)............................................................................................................. 23

40 C.F.R. 1508.23......................................................................................................................... 13

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 4 of 25
Brief of Amicus Curiae - 1

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Mazamas respectfully submits this amicus curiae brief in support of the Motion for 

Summary Judgment and Combined Response/Reply filed by Plaintiffs BARK et al. See ECF 

No. 118, 156.

INTERESTS OF AMICUS CURIAE

Before the Court are issues of significant interest to the Mazamas because they implicate 

the long-term planning and use of a resource central to the Mazamas’ foundation and continual 

use. The Mt. Hood summit hosted the founding of Mazamas in 1894, and, ever since, Mazamas 

have had a “significant stake in the future of the mountain and its historical and natural 

environs.” Declaration of John Rettig (Rettig Decl.), ¶2. The south side of Mt. Hood “could be 

considered Mazamas’ ‘home’ in many ways.” Id. With such a significant stake in development 

on Mt. Hood, Mazamas are eager to engage with recreational users, ski area operators, the Forest 

Service, and other users both informally and under the formal public participation and disclosure 

goals of the National Environmental Policy Act (NEPA). With the Master Development Plan

(MDP) in question, however, no formal process of gathering public input was required, and, 

therefore, the MDP does not reflect a shared public vision for the south side of Mt. Hood. NEPA 

analysis, including programmatic NEPA analysis, is an important tool that brings together the 

many stakeholders for their input in the long-term uses and development of Mt. Hood. In 

particular, programmatic NEPA analysis allows for informed decision-making as it concerns 

proposed alternatives, cumulative effects of various proposals, and public involvement for 

actions in a particular locale, such as the development areas on the south side of Mt. Hood.

“The Mazamas’ mission is to promote mountaineering through education, climbing, 

hiking, fellowship, safety, and the protection of mountain environments.” Id. at ¶ 3. To 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 5 of 25
Brief of Amicus Curiae - 2

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

implement that mission, the Mazamas “organize some of the largest and highest quality climbing 

and hiking programs in the Northwest, helping more than 16,000 people a year to experience the 

pristine beauty of the Pacific Northwest and other regions.” Id. The Mazamas were “involved in 

the transition of the Cascade Forest Reserve into what we now know as Mt. Hood National 

Forest,” id. at 4, and “have many times in the past participated in the planning process on Mt. 

Hood, notably in 1964 for the Wilderness Act, in 1977 and 1989 regarding the Timberline

Palmer lift improvements, and in 1998 regarding Meadows parking expansion.” Id. Mazamas 

does not limit its participation to large matters: “[m]any other more minor proposals received our 

scrutiny and comments on a monthly basis. The issues we addressed have been both those that 

directly affected our access to alpine areas for our outdoor activities, and also those that had little 

or no bearing on our access but did affect the mountain environment that we are committed to 

protect.” Id. “The Mazamas’ future on Mt. Hood tomorrow depends upon our vigilance today 

of development activities, and our continued participation in planning processes.” Id. at 5. 

Despite participating extensively in past projects and long-term planning on Mt. Hood, the 

Mazamas and the public have simply not been involved in this planning process. The MDP for 

Timberline was accepted by the USFS without any process to consider alternatives, incorporate 

public input, or disclose the cumulative environmental impacts of the proposed developments. 

The disposition of this case is, therefore, of significant interest to the Mazamas and the public. 

BACKGROUND

Mt. Hood is an iconic environmental and recreational asset to Oregonians and the 

Mazamas. Balancing Mt. Hood’s outstanding recreational opportunities with environmental 

protection rests upon implementation of federal environmental laws requiring public 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 6 of 25
Brief of Amicus Curiae - 3

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

participation and disclosure of environmental impacts. See Kern v. BLM, 284 F.3d 1062, 1066 

(9th Cir. 2002) (NEPA requires federal agencies “to consider every significant aspect of the 

environmental impact of a proposed action” and “ensure that the agency will inform the public 

that it has indeed considered environmental concerns in its decisionmaking process.”). Mazamas 

have routinely engaged with the Forest Service on matters affecting Mt. Hood to advance 

recreational and conservation efforts. Public participation and candid disclosure of 

environmental impacts are inherently valuable to Mazamas and their continued use of Mt. Hood.

The current development proposal for a lift-assisted mountain bike facility at Timberline 

Lodge includes a 17-mile trail network and a separate 0.2-acre skills park. AR-27736. Trails 

will cross perennial and ephemeral stream channels, NMFS-737, and sedimentation to streams 

would be measured in tons per year, NMFS-763-64. The development contains three elements, 

including (1) construction, (2) long-term maintenance and operation, and (3) watershed 

restoration activities. NMFS 734. Of significant concern to the Mazamas is the third 

development component because past restoration efforts have proved to be far less successful

than anticipated.

1

See FS 2nd Supp 291-310, FS 2nd Supp 702-721, AR-21069-21091. Because 

the MDP submitted by the RLK in 2009 outlined plans for multiple developments over the next

10 years in an area that is struggling to maintain its environmental integrity, it is important for 

the public and the Mazamas to have their voices heard and incorporated into the MDP.

 

1 To be clear, the Mazamas believes mountain biking is an appropriate use of public lands, and 

many members own mountain bikes and are interested in seeing more developed opportunities 

for mountain biking on the Mt. Hood National Forest.

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 7 of 25
Brief of Amicus Curiae - 4

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

ARGUMENT

I. Public participation and full disclosure of environmental effects are important actionforcing mechanisms of NEPA that are implicated in the current case

Under NEPA, “[t]he sweeping policy goals announced in § 101 are [] realized through a 

set of ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental 

consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); 

California v. Block, 690 F.2d 753, 776 (9th Cir. 1982) (“NEPA’s central requirement is that 

agencies must take a ‘hard look’ at the environmental consequences of its proposed action”) 

(emphasis in original). The public may submit comments on projects, apprising the agency of 

possible environmental impacts, and NEPA’s hard look requirement puts the onus on the agency 

to fully disclose environmental impacts. For the courts, “the task is to ensure that the agency has 

taken a ‘hard look’ at the potential environmental consequences of the proposed action.” 

Klamath-Siskiyou v. BLM, 387 F.3d 989, 993 (9th Cir. 2004). 

A hard look includes “considering all foreseeable direct and indirect impacts.” Idaho 

Sporting Congress v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002). “A hard look should [also] 

involve a discussion of adverse impacts that does not improperly minimize negative side 

effects.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006) (citing 

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1241 (9th Cir. 2005)); North 

American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1178, 1179 (9th Cir. 1982)

(hard look entails addressing “certain crucial factors, consideration of which was essential to a 

truly informed decision whether or not to prepare an EIS.”). The Forest Service “must 

‘undertake a thorough environmental analysis before concluding that no significant 

environmental impact exists.’” Native Ecosystems Council, 428 F.3d at 1239. Because the longCase 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 8 of 25
Brief of Amicus Curiae - 5

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

term planning and use of Mt. Hood implicates a variety of different stakeholders and interests, 

the Mazamas believes that public participation and the requisite “hard look” are necessary to 

arrive at a truly informed decision about development plans on the south side of Mt. Hood.

II. The Forest Service failed to prepare environmental analysis under the National 

Environmental Policy Act upon acceptance of the Master Development Plan and 

amendment of the Special Use Permit

A. Disclosure of environmental effects and public participation are not meaningfully 

implemented without NEPA analysis

Given the wide assortment of recreational users and other interested stakeholders on Mt. 

Hood, the Mazamas advocates for full disclosure and public participation permitted under federal 

law when proposals implicate the environmental, cultural, and recreational resources of Mt. 

Hood. It is important to recall the context at issue here. Ski areas operate on national forest 

lands at the pleasure of the public. Indeed, the Special Use Permit (SUP) at issue contains a 

clause reserving the Forest Service’s right to terminate the permit if it is in the “public interest.” 

AR-9894. Expansion of the existing facilities on public lands with a “public building of national 

significance” (AR-10859) should carry with it the full disclosure and participation afforded 

under the law. Visitors to the south side of Mt. Hood include the full spectrum and panoply of 

forest users, including skiers, hikers, climbers, cyclists, climbers, berry pickers, wildflower and 

wildlife viewers, and visitors to the historic lodge, to name just a few. Therefore, for such a 

significant recreational, social, cultural, and environmental resource, disclosure of environmental 

effects and public participation must be meaningfully addressed, and NEPA ensures that these 

paramount considerations will be pursued through its action-forcing mechanisms.

In the context of this case, programmatic NEPA analysis provides the necessary 

framework to fully disclose environmental effects and engage the many stakeholders. Once that 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 9 of 25
Brief of Amicus Curiae - 6

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

framework is laid, then site-specific impacts can be evaluated for site-specific development. See 

Friends of Mt. Hood v. U.S. Forest Service, Case No. CV 97-1787-KI, 2000 U.S. Dist. LEXIS 

18309 (D. Or. Dec. 15, 2000) (“When a programmatic EIS is prepared, site-specific impact need 

not be fully evaluated until a critical decision has been made to act on site development.”). 

Issues raised by the National Ski Area Association (NSAA) in their amicus brief (ECF No. 142-

1) appear to minimize the role of and importance of NEPA in matters affecting public lands and 

significant natural resources, including the Mt. Hood National Forest. Mazamas believes that 

public participation and the “hard look” are inherently valuable, not just for the members and 

supporters of Mazamas, but for all users of public lands.

B. The Forest Service’s acceptance of the Timberline Master Development Plan and 

amendment of the Special Use Permit was final agency action

Under the Supreme Court’s decision in Bennett v. Spear, 520 U.S. 154, 177-178 (1997), 

the Forest Service’s acceptance of the MDP and amendment of the SUP is final agency action 

pursuant to the Administrative Procedure Act (APA). The two necessary criteria for final agency 

action are that (1) “the action must mark the ‘consummation’ of the agency’s decision making 

process – it must not be of a merely tentative or interlocutory nature”; and (2) “the action must 

be one by which ‘rights or obligations have been determined,’ or from which ‘legal 

consequences will flow.’” Id. (quotations omitted). Here, the Forest Service’s acceptance of the 

MDP and amendment of the SUP satisfies both criteria under Bennett.

The Forest Service’s acceptance of the MDP and amendment of the SUP constituted the 

consummation of the agency decision making because it expanded the scope of development that 

may occur at Timberline. AR-9885. It set the stage for what development was possible at 

Timberline. In other words, without the act of accepting the MDP and amending the SUP, the 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 10 of 25
Brief of Amicus Curiae - 7

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

proposed bike facility could not have moved forward.2 Regardless of whether the bike facility 

needs subsequent authorization to be constructed, including the bike facility in the MDP and 

SUP was the end of the agency’s authorization as to what facilities or development could 

potentially be included in future development at Timberline. 

In Western Montana., Inc. v. Austin, Case No. 13-282-M-DWM, 2015 U.S. Dist. LEXIS 

61244 (D. Mont. May 11, 2015), the District Court of Montana considered whether the Forest 

Service’s denial of a SUP for a ski area development was arbitrary and capricious. The court 

concluded that the denial constituted final agency action. Id. at 18-19. Here, the Forest Service 

accepted the MDP and amended the SUP, but argues that there was no final agency action. If 

Western Montana recognizes that the denial of a SUP represents final agency action, then it 

follows that an amendment of an SUP is also final agency action. See Drakes Bay Oyster Co. v. 

Salazar, 921 F.Supp.2d 972, 984, 987 (N.D. Cal. 2013), aff’d on other grounds, Drakes Bay 

Oyster Co. v. Jewell, 729 F.3d 967 (9th Cir. 2013) (decision not to issue special use permit 

constitutes “agency action”; courts may review whether the agency “properly considered the 

promulgated factors”). If the shoe were on the other foot and the MDP was not accepted and the 

SUP amendment was denied, then it is likely that RLK would argue that the denial was final 

agency action, as was the case in Western Montana.

In authorizing the various facilities, the Forest Service determined legal rights and 

obligations because the Forest Service changed the permissible scope of the possible facilities 

and development at Timberline. Without that authorization, a particular development could 

 

2

From the Mazamas’ perspective, the issue is not with the bike facility itself, but rather that the 

bike facility project moved forward under an MDP that was accepted without formal public input 

or environmental review. 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 11 of 25
Brief of Amicus Curiae - 8

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

never proceed to fruition. In Bennett, the Supreme Court determined that a Biological Opinion 

and Incidental Take Statement determined legal rights and obligations because it “alter[ed] the 

legal regime to which the action agency is subject, authorizing it to take the endangered species 

if (but only if) it complies with the prescribed conditions.” Id. at 178. Here, the acceptance of 

the MDP and amendment of the SUP altered the legal regime because it allows permissible 

facilities and development that would otherwise not be permitted at Timberline. In the absence 

of MDP acceptance and SUP amendment, there would exist no authority to approve particular 

facilities or development. Therefore, MDP acceptance and SUP amendment determined legal 

rights and obligations.

The NSAA cites to Ark Initiative v. U.S. Forest Serv., Case No. 06-cv-02418-WDMMJW, 2010 U.S. Dist. LEXIS 94921 (D. Colo. 2010), for the widespread proposition that MDPs 

do not represent final agency action. ECF No. 142-1 at 16-17. The NSAA’s reliance on Ark 

Initiative is misplaced for several reasons. First, the 1991 MDP in Ark Initiative did undergo 

NEPA analysis with a full EIS. See Ark Initiative, 2010 U.S. Dist. LEXIS 94921, at * 3 (“In 

1994, acting on the submitted MDP, the forest Service issued a Final Environmental Impact 

Statement (‘1994 EIS’), which compared a number of alternatives for development pursuant to 

the MDP, including a no action alternative.”). Importantly, that NEPA analysis resulted in 

approval of only a limited portion of the development activities proposed in the 1991 MDP. Id.

(“In March 1994, the Forest Service issued a Record of Decision ... approving portions of the 

MDP based on the 1994 EIS”; and “[t]he 1994 ROD also disapproved of some options of the 

1991 MDP and did not authorize these proposed activities.”). Here, on the other hand, the public 

was not able to weigh-in on the MDP to advocate for or against some or all of the development 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 12 of 25
Brief of Amicus Curiae - 9

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

proposals. As a result, all of the proposed development proposals were approved. In other 

words, whatever was proposed for the MDP ultimately became part of the MDP, which defined 

the allowable scope of activities from the beginning.

Second, at issue in Ark Initiative was the mere amendment of an MDP. See id. at 5 (“In 

2003, Aspen Skiing sought to amend the 1994 MDP by submitting a master plan amendment to 

the Forest Service”). The plaintiffs in Ark Initiative argued that the amendment, not the 

wholesale replacement, of the MDP triggered NEPA review. Here, on the other hand, the facts 

are distinct because the Forest Service accepted a new MDP (instead of an amendment to an 

existing MDP) and amended the SUP. Therefore, Ark Initiative is factually distinguishable.

Third, when summarizing the holding in Ark Initiative, the NSAA appears to conflate the 

issues of final agency action for purposes of review under the APA and action sufficient to 

trigger review under NEPA.3 See ECF No. 142-1 at 16-17. For example, the NSAA argues that 

“the [MDP] at issue does not contain any binding decisions or commitments that would have an 

immediate impact on the physical environment[.]” Id. The issue of binding decisions or 

commitments implicates the issue of final agency action, whereas the reference to the impact on 

the physical environment implicates whether there is sufficient environmental impact to trigger 

NEPA review. Because the issues of final agency action and agency action sufficient to trigger 

NEPA are distinct, this Court should be cautious in its reading of Ark Initiative.

Fourth, the court in Ark Initiative expressly limited its ruling to the facts of that case, 

stating: “Although I do not by my ruling suggest that all amendments to master plans should not 

be considered a final agency action, under the circumstances presented here I conclude that the 

 

3

To be fair, this conflation stems from the Ark Initiative court’s conflation of these two issues. 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 13 of 25
Brief of Amicus Curiae - 10

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Forest Service’s action is not final.” Ark Initiative, 2010 U.S. Dist. LEXIS 94921, at * 17. This 

Court should not accept the NSAA’s invitation to broadly apply the holding in Ark Initiative. 

Ark Initiative, therefore, should be limited to its unique facts, as suggested by the court.

Finally, the NSAA cites to Ark Initiative for the argument that “the acceptance of [MDP] 

in no way guarantees that all elements represented ... will be approved in the future....” Id. at 

16. Regardless of whether a project, once authorized, is ever ultimately completed is separate 

from the issue of whether a decision represents final agency action. The important point is that 

MDP acceptance and SUP amendment define the allowable scope of the future development at 

Timberline, which not only determines rights and obligations but also represents the final word 

on what site-specific facilities or development may proceed.

The NSAA also argues that “[t]he Forest Service does not authorize an MDP,” ECF No. 

142-1 at 6, and that “the Forest Service did not take any position on the elements of the MDP,” 

id. at 17. However, the NSAA plainly admits that the Forest Service “‘accepts’ [the MDP] if it 

deems it appropriate.” Id. at 6 (emphasis added). There is no significant difference between the 

Forest Service authorizing an MDP and the Forest Service accepting an MDP that the Forest 

Service deems appropriate. The NSAA’s argument is simply semantics. Under either wording, 

the Forest Service stamps the MDP with its official imprimatur. Though subsequent site-specific 

projects may still be authorized under the umbrella of the MDP, acceptance of the MDP and 

amendment of the SUP was the consummation of the agency’s decision-making process and it

determined legal rights and obligations. Therefore, the Forest Service engaged in final agency 

action that is reviewable under the APA.

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 14 of 25
Brief of Amicus Curiae - 11

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

C. The Forest Service’s acceptance of the Master Development Plan and amendment 

of the Special Use Permit triggers National Environmental Policy Act review

NEPA mandates the preparation of an Environmental Assessment or an Environmental 

Impact Statement (EIS) for major federal actions significantly affecting the quality of the human 

environment. 42 U.S.C. § 4332(2)(C). Importantly, “major federal actions” are not limited to 

ground disturbing events. Instead, NEPA is implicated when there is an “[a]doption of formal 

plans, such as official documents ... approved by federal agencies which guide or prescribe 

alternative uses of Federal resources, upon which the agency actions will be based.” 40 C.F.R. §

1508.18(b)(2). Here, each component is satisfied for the MDP acceptance and SUP amendment. 

First, the MDP and SUP are “formal plans” that identify the allowable scope of the development 

at the ski area. AR 9885. Second, it is undisputed that the MDP entails the use of federal 

resources. Third, because the MDP acceptance and SUP amendment set forth the allowable 

scope of development at the ski area, subsequent site-specific projects will be based upon the 

new MDP and amended SUP.

For acceptance and amendment, the Forest Service followed its special uses screening 

criteria at 36 C.F.R. § 251.54. AR-11260. Under the screening procedure, those proposals that 

meet the screening criteria are subject to NEPA compliance. 36 C.F.R. § 251.54(e)(6). Only

those proposals that the agency determines that RLK cannot demonstrate technical or economic 

feasibility, or for which there is no entity willing to accept responsibility for adherence to 

specific terms and conditions, do not constitute “agency proposal[s] as defined in 40 CFR 

1508.23,” and, therefore, are not subject to NEPA. Id. Here, the Forest Service evaluated 

RLK’s MDP pursuant to the screening criteria and made no determination of infeasibility or 

unaccountability. Accordingly, the NEPA process was triggered for acceptance and amendment. 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 15 of 25
Brief of Amicus Curiae - 12

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

The NSAA also cites to Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 

1008, 1022 (9th Cir. 2012), for the proposition that NEPA is “not triggered by the preparation 

and submittal of ‘routine and required’ report documents.” ECF No. 142-1 at 13. Here, the

MDP does not resemble the annual operating plans at issue in Grand Canyon Trust. Such annual 

operating plans are issued yearly, and they merely describe “the operation of the [Glen Canyon] 

Dam for the preceding year ‘and the projected year operations undertaken pursuant to the [Grand 

Canyon Protection Act].’” Id. at 1013. In other words, in Grand Canyon Trust, the issue was 

what was occurring, not what was permissible. Here, the MDP identifies the allowable scope of 

development for a ten-year period, but, without NEPA, no public participation is required. The

one-year annual operating procedure at issue in Grand Canyon Trust, on the other hand, require, 

pursuant to statute, consultation “with members of the general public, including academics and 

scientists, environmental organizations, the recreation industry, and purchasers of Federal power 

generated by the Dam.” Id. at 1013. Regardless of the greater protections afforded under the 

one-year operating plan in Grand Canyon Trust than the ten-year MDP at issue here, the Ninth 

Circuit in Grand Canyon Trust determined that NEPA was not triggered because:

The time for an agency to give a hard look at environmental consequences ... should 

come in this context at the points where an agency establishes operating criteria for a 

dam, or embarks on some significant direction in operating policy, not merely when there 

is routine and required annual reporting.

 

Id. at 1022. The acceptance of the MDP and amendment of the SUP is just that: a document that 

sets the “direction in operating policy.” The MDP acceptance and SUP amendment identifies the 

allowable scope of operations. Therefore, while it is true that “routine and required” reporting 

documents do not trigger NEPA, the ten-year MDP at issue here is far from routine, contains no 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 16 of 25
Brief of Amicus Curiae - 13

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

requirement to consult with the public or other stakeholders absent NEPA review, and is plainly 

distinguishable from the annual operating plan at issue in Grand Canyon Trust. 

The NSAA next argues that, “as a policy matter in the years after the examples Plaintiffs 

identify, the Forest Service decided to treat MDPs as conceptual plans rather than as proposals 

for action that are subject to NEPA.” ECF No. 142-1 at 9. The NSAA is attempting to justify 

the agency’s change in policy by arguing that the Forest Service “provides the requisite 

‘awareness that [the agency] is changing position,’ ‘that there are good reasons for it, and that the 

agency believes it to be better, which the conscious change of course adequately indicates.’” Id. 

(citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). Reliance on Fox 

Television Stations, however, is misplaced. For the agency’s allegedly conscious change in 

position, the NSAA points to a litigation memorandum (AR-10881) prepared after resolution of 

the Ark Initiative case. That memorandum simply summarizes the limited holding in Ark 

Initiative, and refers to “key points.” At no point does the legal memorandum refer to an official 

change in position from past practices sufficient to satisfy the standard for an agency’s change in 

position, as articulated in Fox Television Stations, which requires that the agency is aware “it is 

changing position” and that there are “good reasons for the new policy.” Id. at 515. Here, 

satisfaction of that criteria is simply absent from the record. 

Along these same lines, the NSAA’s reliance on the legal memorandum highlights an 

internal inconsistency in the NSAA’s argument. On the one hand, the NSAA argues that prior 

MDPs were always accompanied by authorization of a site-specific project or on-the-ground 

activities, and that this was legally determinative of the issue whether to prepare NEPA. ECF 

No. 142-1 at 8. On the other hand, the NSAA argues that there was a conscious and articulated 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 17 of 25
Brief of Amicus Curiae - 14

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

change in the agency’s position under Fox Televisions Stations. Simply put, the NSAA cannot 

both argue that NEPA review occurred only when MDPs were accompanied by site-specific 

implementation and, at the same time, argue that there was a change in the agency’s policy to no 

longer require NEPA review for MDP acceptance and SUP amendment. 

In any event, the NSAA is incorrect that previous master planning on Mt. Hood subject to 

NEPA was always accompanied by site-specific authorizations. The NSAA asserts erroneously 

that the FEIS and ROD at issue in Friends of Mt. Hood “authorized action.” ECF No. 142-1 at 9. 

In fact, as the 1997 FEIS establishes, the Forest Service considered five alternatives for 

“conceptual development.” AR-5653. The decision would “conceptually authorize a new 

Master Plan for the [Meadows] Ski Area . . . .” Id. The agency made clear that 

“[i]mplementation [would] require additional site-specific environmental analyses pursuant to 

NEPA requirements.” Id. The NSAA’s argument to the contrary is misplaced.

Finally, if the Forest Service wanted to exclude MDP acceptance and SUP amendment 

from NEPA review, the appropriate avenue for doing so is to pursue notice and comment 

rulemaking to categorically exclude such matters. To illustrate this point, the Forest Service 

categorically excludes amendments to SUPs that involve only “administrative changes.” See 36 

C.F.R. § 220.6(d)(10) (“Amendment to or replacement of an existing special use authorization 

that involves only administrative changes and does not involve changes in the authorized 

facilities or increase in the scope or intensity of authorized activities, ....”). Here, however, the 

MDP acceptance and SUP amendment include the wholesale expansion of authorized uses, and, 

therefore, NEPA review should have been triggered.

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 18 of 25
Brief of Amicus Curiae - 15

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

III. The Forest Service should prepare an Environmental Impact Statement for the bike 

facility project because it may result in significant environmental effects

A. An Environmental Impact Statement is required because the Project may have 

significant environmental effects according to a single significance factor or a 

combination of significance factors under the National Environmental Policy Act

NEPA requires that all government agencies prepare an EIS when a proposed federal 

action may “significantly affect[ ] the quality of the human environment.” 42 U.S.C. § 

4332(2)(C). The requirement for an EIS is not reserved for those instances where environmental 

effects will occur. Instead, “the significant effect need not actually occur; it is sufficient to 

trigger the preparation of an EIS if a substantial question is raised ‘whether a project may have a 

significant effect on the environment.” Cascadia Wildlands v. U.S. Forest Serv., 937 F.Supp. 2d 

1271, 1280 (D. Or. 2013) (quoting Blue Mountains Biodiversity Proj. v. Blackwood, 161 F3d 

1208, 1212 (9th Cir. 1998)). 

“If an agency moves forward without issuing an EIS, the agency must provide a 

‘convincing statement of reasons’ to support why the proposed project is not significant; this 

explanation is critical in demonstrating that the agency took the requisite ‘hard look’ at the 

potential environmental effects of a project.” Cascadia Wildlands, 937 F.Supp. 2d at 1280. In 

determining whether potential effects are significant, agencies and courts must evaluate their 

“context” and “intensity.” 40 C.F.R. § 1508.27. In assessing the intensity, or the ‘severity of the 

impact,’ courts and agencies should consider up to ten factors. 40 C.F.R. § 1508.27(b). A court 

may find a substantial risk of significant effect based on just one of these factors, Ocean 

Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2004), but this Court has 

previously found that, “when considered individually, several of the factors might not require an 

EIS. However, when considered together, they do.” Oregon Wild v. Bureau of Land Mgmt, 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 19 of 25
Brief of Amicus Curiae - 16

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Case No. 14-0110-AA, 2015 U.S. Dist. LEXIS 32584, *32 (March 14, 2015); Cascadia 

Wildlands, 937 F.supp.2d at 1283-84 (“when considered individually, none of these significant 

factors might require an EIS. However, when considered collectively, they do.”). Thus, while 

one factor may not be enough to show the potential for significant environmental impacts, 

several factors in the aggregate may be enough to require preparation of an EIS. 

Plaintiffs argued that an EIS must be prepared because (1) the Project may have 

environmental effects that are controversial, ECF No. 118 at 15 n 21, 17, 26, 27; (2) the possible 

effects on the human environment are highly uncertain or involve unique or unknown risks, id. at 

15 n 21, 16, 21; and (3) the Project may adversely affect an endangered or threatened species or 

its critical habitat, ECF No. 118 at 15, 21-22. Because the bar for preparation of an EIS is 

sufficiently low to allow for the possibility of significant effects, an EIS should be prepared 

under any single intensity factor or a combination of intensity factors.

1. The Project may be significant because of controversial environmental 

impacts

A project qualifies as likely to be highly controversial if a “substantial dispute exists as to 

[its] size, nature, or effect. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 

1536 (9th Cir. 1997). Mere public opposition to a proposal does not render it highly 

controversial. Id. Rather, a “substantial dispute exists when evidence, raised prior to the 

preparation of an EIS or FONSI casts a serious doubt upon the reasonableness of an agency’s 

conclusions.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001). 

Here, the Project is highly controversial because of the impacts on LCR steelhead. First, 

as an example of the substantial dispute as to the effect of the Project, the National Marine 

Fisheries Service (NMFS) changed its position from a letter of concurrence to a full biological 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 20 of 25
Brief of Amicus Curiae - 17

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

opinion. NMFS originally concurred with the Forest Service’s determination that the Project 

was not likely to adversely affect LCR steelhead, AR-23464-85, but then changed course to 

prepare a biological opinion, NMFS 727-99. In that biological opinion, NMFS identified 

adverse effects from the Project, NMFS 770, and issued an Incidental Take Statement 

authorizing the “take” of LCR steelhead. The agency’s change in position is evidence itself of 

controversy within the agency about the Project’s effects.

Moreover, hydrologist Jonathan Rhodes4found that “[e]levated sediment delivery also 

increases turbidity which degrades water quality and can adversely affect salmonids,” AR 29067, 

and the Forest Service concedes that sedimentation could result in catastrophic and chromic 

impacts: “Road-related landslides, surface erosion, and stream channel diversions often deliver 

large quantities of sediment to streams, both catastrophically during large storms and chronically 

during smaller runoff events.” AR 27802. This catastrophic and chronic sedimentation is 

compounded by the Project EA’s failure to properly assess the impacts of the project on erosion 

and sediment delivery. See AR-29052-59, 21070-72 (Rhodes’ comments, noting that project 

“fails to properly describe the nature of the proposed alternative with respect to levels of 

disturbance); 21073-75 (noting that the project fails to “properly describe the impacts of the 

proposed alternative on [Riparian Reserves] and their functionality); 21075-78 (Project fails to 

“properly assess the impacts of the proposed action on sediment delivery); 21079-80 (Project 

fails to “properly assess the impacts of the proposed action on stream-route connectivity and 

 

4

Jonathan Rhodes’ “professional experience includes more than 12 years at the Columbia River 

Inter-Tribal Fish Commission (CRITFC), where [he] served as Senior Scientist-Hydrologist. 

[Mr. Rhodes] also ha[s] more than eight years [of] experience working as an independent 

consultant for tribal, federal, state, county and city governments, universities, homeowners 

associations, and non-profit groups in eight western states. AR-21069

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 21 of 25
Brief of Amicus Curiae - 18

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

resulting effects on peak flows and stream network extension”); 21081-82 (Project’s “assessment 

of cumulative effects on aquatic resources is highly defective”). A professional hydrologists’ 

extensive report in the aforementioned citations disputing the size of the impacts constitutes 

evidence casting doubt on the reasonableness of the agency’s decision not to prepare an EIS.

2. The Project may be significant because the possible effects on the human 

environment are highly uncertain or involve unique or unknown risks

Plaintiffs argued that the Forest Service failed to properly consider “the degree to which 

the possible effects . . . are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 

1508.27(b)(5). “The purpose of an EIS is to obviate the need for speculation by insuring that 

available data are gathered and analyzed prior to the implementation of the proposed action.” 

Nat’l Parks & Conservation Ass’n, 241 F.3d at 732-33. “[T]he hard look must be taken before, 

not after, the environmentally-threatening actions are put into effect.” Id. 

Here, the Project includes uncertain mitigation measures in an attempt to reduce the 

overall effect of the project. Despite the fact that mitigation is not to be used as a “substitute for 

preventing habitat degradation,” SUPP-1373 and AR-29050, the Forest Service nonetheless 

proposed uncertain mitigation measures. The agency’s allegation that adverse environmental 

effects would be “fully offset through project design measures” (AR 28086) or would 

“completely restore ... riparian reserves” (AR 29314) must be substantiated under NEPA. See S. 

Fork Band Council of W. Shoshone v. U.S. DOI, 588 F.3d 718, 727 (9th Cir. 2009) (“An 

essential component of a reasonably complete mitigation discussion is an assessment of whether 

the proposed mitigation measures can be effective”); Okanogan Highlands Alliance v. Williams, 

236 F.3d 468, 477 (9th Cir. 2000) (upholding an EIS where “[e]ach mitigating process was 

evaluated separately and given an effectiveness rating”). The Ninth Circuit has been clear that 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 22 of 25
Brief of Amicus Curiae - 19

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

“conclusory assertions” and the agency’s “word” should neither be accepted nor given 

“deference.” See Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1137 (9th Cir. 2011) (“In 

essence, the agencies would like this court to take their word for it and not question their 

conclusory assertions in the EA .... Their word, however, is not entitled to the significant 

deference that courts give [agency methodologies].”). 

The record contradicts the conclusory assertions of the agency that restoration would 

fully offset environmental impacts. Restoration in “areas at higher elevation with thin topsoil, 

short growing seasons, and low soil productivity” have “an extremely high rate of failure.” AR 

21071. Indeed, the record is replete with past restoration failures that call into question the 

agency’s restoration proposals here. See FS 2nd Supp 292-294 (describing the failure of prior 

restoration efforts on the Mt. Hood national forest); FS 2nd Supp 298, 300-303, 306, 307 

(photographs of prior restoration failures); FS 2nd Supp 702-721 (Assessment of Effectiveness 

of Restoration Activities Post-Implementation – Timberline Proposed Bike Park, by Jonathan 

Rhodes, Hydrologist). The Forest Service has not demonstrated that the restoration efforts 

proposed for this Project would not suffer the same fate as other such efforts. See AR-29047 

(“There are no reliable data indicating that BMPs consistently reduce the adverse effects of roads 

on aquatic resources to ecologically negligible levels, especially within the context of currently 

pervasive and aquatic degradation, as numerous scientific assessments, including those of the 

USFS, have repeatedly noted (Ziemer and Lisle, 1993; Espinosa et al., 1997; USFS and USBLM, 

1997; Beschta et al., 2004; GLEC, 2008).”).

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 23 of 25
Brief of Amicus Curiae - 20

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

3. The Project may be significant because the Project may adversely affect 

LCR steelhead

Plaintiffs also argued that an EIS should be required because of “[t]he degree to which 

the action may adversely affect an endangered or threatened species or its habitat that has been 

determined to be critical under the Endangered Species Act of 1973.” 40 C.F.R. § 

1508.27(b)(9). “Courts have held that ‘a project need not jeopardize the continued existence of a 

threatened or endangered species to have a ‘significant’ effect for the purposes of NEPA.” 

Cascadia Wildlands, 937 F.supp.2d at 1282. In Envtl. Ethics v. U.S. Forest Serv., 451 F.3d 

1005, 1012 (9th Cir. 2006), the Ninth Circuit recognized that species viability is the relevant 

standard for assessing a project under the Endangered Species Act, but the standard is adverse 

effects under NEPA.

Here, “[t]he Sandy River population of LCR steelhead shows very low abundance” and 

the population is precarious given that it is at “high risk of extinction. NMFS_748. The 

Biological Opinion issued by NMFS identified adverse effects to LCR steelhead, NMFS 770, 

and NMFS issued an incidental take statement. NMFS 773. Combined with the abovereferenced controversy and the uncertainty surrounding the efficacy of restoration activities, the 

record demonstrates that LCR steelhead, a listed a species, will be adversely affected. Therefore, 

according to any single significance factor or a combination of the significance factors, an EIS 

should be prepared to address the potential for significant environmental impacts.

CONCLUSION

Amicus Curiae Mazamas respectfully requests that this Court grant Plaintiffs’ motion for 

Summary Judgment. 

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 24 of 25
Brief of Amicus Curiae - 21

Bark, et al. v. Northrop et al.,

Case No. 3:13-cv-828-AA

Sean T. Malone, Attorney At Law

259 E. 5th Ave., Ste 200-G

Eugene OR 97401

Tel. (503) 525-2727

Respectfully submitted this 16th day of June 2015,

/s/ Sean Malone

SEAN MALONE (OR Bar #084060)

Attorney at Law

259 E.5th Ave, Ste200-G 

Eugene, OR 97401

Tel: (303) 859-0403

Fax: (650) 471-7366

seanmalone8@hotmail.com

CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2015, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system which will send notification of such filing to all parties. 

s/ Sean T. Malone

Sean T. Malone

 Attorney for Amicus Curiae

Case 3:13-cv-00828-AA Document 168 Filed 06/16/15 Page 25 of 25