* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 16 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

STEVEN M. HANNON,

Plaintiff-Appellant,

v. PETER L. CLARK, in his official capacity as Supervisor of the Arapahoe/Roosevelt National Forest and responsible officer for the Loveland Ski Area Revised Master Development Plan Final EIS and the Decision Memo for Clear Creek Skiing Corporation Lift No. 9; UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE; CLEAR CREEK SKIING CORPORATION, a Colorado corporation, Defendants-Appellees. No. 02-1348 (D.C. No. 98-K-1766) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Procedural History In 1995, defendant United States Department of Agri culture, Forest Service (Forest Service), as part of the 1995 Loveland Ski Areas Revised Master Development Plan Final EIS (FEIS), approved a surfa ce ski lift to transport one to two skiers at a time to the upper reaches of the Lo veland Basin Ski Area near the crest of the Continental Divide. That area is home to a narrow land bridge across the Continental Divide which connects roadless area s north and south of Interstate 70 and is the only route for many terrestrial wildl ife species to cross I-70. In 1998, after realizing that the demand for extrem e skiing had increased and that snowboarders could not easily use a surfac e lift, the owner and operator of the ski area, defendant Clear Creek Skiing Corpo ration (CCSC), submitted to the Forest Service a design proposal for a new quadchairlift. The new lift (lift #9) would be larger, carry more people per hour, and be located closer to the narrowest part of the land bridge than the previously approve d surface lift. After doing some additional study, but without prep aring a supplemental environmental impact statement, the Forest Service approved the expanded lift,-3-

and construction began in the summer of 1998. Whil e hiking in the area that fall, plaintiff Steven Hannon observed the ongoing construction. In September 1998, after an unsuccessful attempt to secure a temporaryrestraining order and a preliminary injunction, plaintiff brought suit in f ederal court challenging the Forest Service’s approval of the construction and o peration of lift #9. Plaintiff specifically alleged that the sight and sound of th e lift’s operation would disturb the wildlife traveling the land bridge. The lift h as since been constructed and is in operation. In November of 2000, after personally visiting the site, the district court issued a fifty-three page opinion ultimately conclu ding that, because the administrative record contained no written analysis of the impact of lift #9 on wildlife, the court could not determine whether that issue had been given appropriate consideration by the Forest Service andthus whether there was compliance with the National Environmental Policy A ct of 1969 (NEPA), 42 U.S.C. §§ 4321–4370d, and its implementing regulati ons. Specifically, the court noted “[t]here is nothing in the record that provid es any kind of written analysis of the fact that the top of the ski lift is, in fact, highly visible. There is also nothing pertaining to any analysis of this fact in terms of impact and significance of any impact to the wildlife using the critically importa nt land bridge.” Aplees’ Supp.-4-

App. at 300. The court accordingly remanded the ca se to the Forest Service for further administrative proceedings. In March 2001, the Forest Service issued its decisi on on remand stating that the Service had “completed further analysis of the impacts, and their significance, associated with the visibility and audibility of Lo veland’s Lift #9 to wildlife using the land bridge over I-70” and had determined that a supplement to the FEIS was not warranted. Id. at 305. Describing itself as “constrained” by the fact of the Forest Service’s reevaluation and the fact that the Service had adequately addressed the visibility issue, the district court declined to “second-guess the decision made” and affirmed the decision on remand, refusing to order the dismantling or modification of lift #9 in its present form. Id. at 472. This appeal followed. On appeal, plaintiff argues that the district courterred in its initial remand to the Forest Service, contending that the court in stead should have enforced a Forest Service decisional memo and ordered a supple mental EIS. Plaintiff further contends that the Forest Service was improperly com mitted to the building of lift #9 from the outset, that the revised opinions of th e Forest Service and the Fish and Wildlife Service after remand should be disregarded , and that, pursuant to the Endangered Species Act, the Forest Service and the Fish and Wildlife Service should be required to conference formally.-5-

Propriety of Remand With respect to a district court’s decision to rema nd in the first instance, we have said that “[i]f the agency has failed to provi de a reasoned explanation for its action, or if limitations in the administrative rec ord make it impossible to conclude the action was the product of reasoned decisionmaking, the reviewing court may supplement the record or remand the case to the age ncy for further proceedings.” Olenhouse v. Commodity Credit Corp. , 42 F.3d 1560, 1575 (10th Cir. 1994) (emphasis added). “A court’s judgment as to whethe r the record before it needs further explanation in order for the court to under stand and properly evaluate the agency’s action is a determination that lies within the discretion of the court.” Taiwan Semiconductor Indus. Ass’n v. Int’l Trade Comm’n , 266 F.3d 1339, 1344 (Fed. Cir. 2001). We therefore review the districtcourt’s decision to remand this matter to the Forest Service for abuse of discretio n and find none. As the district court found, there was nothing in t he administrative record provided for the court’s initial review which compr ehensibly addressed the visibility and audibility issues of lift #9 from th e land bridge atop the Continental Divide. While, as plaintiff points out, there were references in the record to the sight and sound issues, there was no comprehensive analysis of the impact of those factors on the wildlife from the Forest Service. T he court was thus unable to1 Plaintiff argues that the Forest Service has forfei ted its right to the usual

deference accorded agency action because of what he terms were “misrepresentations” in the initial court review pr ocess. Plaintiff does not cite any authority for this proposition, and we have fou nd no case refusing to accord deference to an agency decision simply because ther e has been a remand for further fact finding. Cf. Chevron U.S.A., Inc. v. NRDC , Inc. , 467 U.S. 837, 863 (1984) (refusing to withhold deference where agencyhad, from time to time, changed its interpretation of a statutory term). -6- conclude whether the Forest Service’s approval of the lift was the product of reasoned decisionmaking. Remand was the proper cou rse. Forest Service Pre-Disposition Plaintiff argues that the judgment of the district court was incorrect because the Forest Service was committed from the outset to allowing CCSC to build lift #9 and that, after the remand, it simply abandoned earlier requirements for mitigation of the sight and sound impacts from the lift. On appeal, our review is the same as that of the district court with no part icular deference given that court. Olenhouse , 42 F.3d at 1580. Thus, under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, we will “hold unlawful and set a side agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). While we give the agency’s decision “a presumption of regularity,” we must still engage in a “thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 415 (1971). 1-7-

Plaintiff’s complaint alleged that the actions of t he Forest Service were in derogation of NEPA. Our role in this circumstance is limited: “once an agency has made a decision subject to NEPA’s procedural re quirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.” Strycker’s Bay Neighborhood Council, Inc. v. Karlan , 444 U.S. 223, 227-28 (1980) (quotation omitted). “It is well-settled that the judiciary’s role in the NEPA context is merely to ensure that the federal agency takes a hard lookat the environmental consequences of its actions.” Middle Rio Grande Conservancy Dist. v. Norton , 294 F.3d 1220, 1225 (10th Cir. 2002). NEPA was notdesigned to ensure decisions that members of a reviewing court “would have reached had they been members of the decisionmaking unit of the agency,” Vermont Yankee Nuclear Power Corp. v. NRDC , Inc. , 435 U.S. 519, 558 (1978), nor is it the function of such a court to substitute its judgment for that of the agency, Overton Park , 401 U.S. at 416. Given this standard, we agree with th e district court that the Forest Service has complied with the mandate of the remand order and has demonstrated that it has taken a “hard look,” see Middle Rio Grande , 294 F.3d at 1225, at the environmental consequences of the placement of lift#9.-8-

After the remand order, Dennis G. Lowry, a forest w ildlife biologist attached to the Arapahoe and Roosevelt National For ests and the Pawnee National Grassland, produced a report entitled “Reevaluation of Lift #9 and Effects to Wildlife on the Land Bridge over I-70 Highway.” In it, Lowry examined the winter wildlife use on the land bridge, he discusse d various factors that influence effects on wildlife, including human influences and weather-related influences, he specifically estimated the effects on wildlife due to the presence, operation, and use of lift #9, and he examined the effects of the lift on species that may use the land bridge both in the winter and in the snow-free months. After reviewing this report and other pertinent inf ormation, the Forest Service decided that a supplement to the EIS was no t necessary. The rationale for that decision was based on the following conclusion s: Human activities, not the view of objects such as s ki lifts, pose the greatest potential impact to wildlife movement on t he land bridge. Operation of Lift #9 and associated human activity are limited to those times of year and day when wildlife is least likely to be present. Effective mitigation measures insure that people ac cessing this area using the lift remain below and move away from wild life that may be traveling in the most likely route on the land brid ge. Wind of sufficient force and direction to mask huma n and lift generated sound is a feature of the land bridge 70% –80% of the time. Based on these considerations and others, the [Lowry] report estimated little to no direct or indirect impact to wildlife potentially occurring or traveling on the land bridge in winterdue to Lift #9.-9-

The [Lowry] report also estimated that the effects– individually and collectively–to wildlife and habitat due to the lif t do not significantly contribute to impacts that exist or that are forese eable in the future. Aplees’ Supp. App. at 305-06. While as a reviewing court we do not merely rubber-stamp the decisions of an agency, we agree w ith the district court that the Forest Service has adequately considered the enviro nmental and wildlife impact of the design and location of lift #9 pursuant to the remand order. Plaintiff’s argument that the Forest Service was improperly committed to the lift project from the outset is based largely on a remark made by the agency supervisor at an initial meeting with CCSC where he said “I want to make this work, get the chair approved, but don’t want to glo ss over.” R. Vol. III at 65. We find this an innocuous comment from the supervisor of an agency charged with developing the area under consideration as a recreational ski area. See id. at 318-19. Further, the size of the record convinces us that this issue was hardly “glossed over.” The mere fact that the agency arri ved at the same conclusion after remand that it did initially does not, by itself, d emonstrate bias or require a stricter standard of review. See City of Los Angeles v. United States Dep’t of Transp. , 165 F.3d 972, 977-78 (D.C. Cir. 1999). Revised Opinions of Agency Defendants After Remand Plaintiff argues that the Forest Service and the Fi sh and Wildlife Service had determined, well before the remand, that the vi sibility and audibility of lift #92 Plaintiff contends that this report should not have been part of the

administrative record. His motion to strike the re port was denied by the district court. Contrary to plaintiff’s position, the Fores t Service was well within its authority to consider all reliable scientific studi es including one submitted by its co-defendant. See Friends of the Earth v. Hintz , 800 F.2d 822, 834-35 (9th Cir. 1986). -10- were significant for environmental purposes and that they should not now be allowed to change their opinions. We agree with th e district court that this argument is basically an attempt to get the court t o substitute its judgment for that of the agency, a step we cannot take. Further, we do not find it inconsistent that, upon receiving more information in the form of the Lowry report and an additional report commissioned by defendant CCSC, 2 that agency opinions could reasonably have changed. Need for Agency Defendants to Conference Formally P ursuant to the Endangered Species Act Plaintiff finally submits that, because the lynx ha s now been listed as threatened, the Fish and Wildlife Service is requir ed to issue a biological opinion after formal conferencing. Because plaintiff did n ot raise this issue until his response brief after the remand decision, the distr ict court properly refused to consider it, as do we. Summary In conclusion, we hold that the district court’s de cision to remand this matter to the Forest Service was not an abuse of di scretion. We further conclude-11-

that the action of the Forest Service in response t o the remand order was not arbitrary, capricious, an abuse of discretion, or o therwise unlawful. In compliance with the remand order, the agency provided a thorou gh analysis of the sight and sound impacts of lift #9 on the relevant wildlife. Because the agency decision rests on a rational basis, it must be upheld. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 285-86 (1974). The judgment of the district court is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Chief Judge