                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 16 2003
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    STEVEN M. HANNON,

               Plaintiff-Appellant,

    v.                                                 No. 02-1348
                                                   (D.C. No. 98-K-1766)
    PETER L. CLARK, in his official                      (D. Colo.)
    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.


                           ORDER AND JUDGMENT           *




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




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Procedural History

      In 1995, defendant United States Department of Agriculture, Forest Service

(Forest Service), as part of the 1995 Loveland Ski Areas Revised Master

Development Plan Final EIS (FEIS), approved a surface ski lift to transport one to

two skiers at a time to the upper reaches of the Loveland 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 areas north and south of Interstate

70 and is the only route for many terrestrial wildlife species to cross I-70.

      In 1998, after realizing that the demand for extreme skiing had increased

and that snowboarders could not easily use a surface lift, the owner and operator

of the ski area, defendant Clear Creek Skiing Corporation (CCSC), submitted to

the Forest Service a design proposal for a new quad chairlift. 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 approved surface lift.

      After doing some additional study, but without preparing a supplemental

environmental impact statement, the Forest Service approved the expanded lift,


                                          -2-
and construction began in the summer of 1998. While hiking in the area that fall,

plaintiff Steven Hannon observed the ongoing construction. In September 1998,

after an unsuccessful attempt to secure a temporary restraining order and a

preliminary injunction, plaintiff brought suit in federal court challenging the

Forest Service’s approval of the construction and operation of lift #9. Plaintiff

specifically alleged that the sight and sound of the lift’s operation would disturb

the wildlife traveling the land bridge. The lift has 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 concluding 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 and thus whether there was

compliance with the National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. §§ 4321–4370d, and its implementing regulations. Specifically, the court

noted “[t]here is nothing in the record that provides 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 important land bridge.” Aplees’ Supp.




                                           -3-
App. at 300. The court accordingly remanded the case to the Forest Service for

further administrative proceedings.

       In March 2001, the Forest Service issued its decision on remand stating that

the Service had “completed further analysis of the impacts, and their significance,

associated with the visibility and audibility of Loveland’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 court erred in its initial remand

to the Forest Service, contending that the court instead should have enforced a

Forest Service decisional memo and ordered a supplemental EIS. Plaintiff further

contends that the Forest Service was improperly committed to the building of lift

#9 from the outset, that the revised opinions of the 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.


                                             -4-
Propriety of Remand

      With respect to a district court’s decision to remand in the first instance, we

have said that “[i]f the agency has failed to provide a reasoned explanation for its

action, or if limitations in the administrative record 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 agency for further proceedings.”

Olenhouse v. Commodity Credit Corp.     , 42 F.3d 1560, 1575 (10th Cir. 1994)

(emphasis added). “A court’s judgment as to whether the record before it needs

further explanation in order for the court to understand 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 district court’s decision to remand this

matter to the Forest Service for abuse of discretion and find none.

      As the district court found, there was nothing in the administrative record

provided for the court’s initial review which comprehensibly addressed the

visibility and audibility issues of lift #9 from the 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. The court was thus unable to




                                           -5-
conclude whether the Forest Service’s approval of the lift was the product of

reasoned decisionmaking. Remand was the proper course.

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 particular 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 aside 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




1
       Plaintiff argues that the Forest Service has forfeited its right to the usual
deference accorded agency action because of what he terms were
“misrepresentations” in the initial court review process. Plaintiff does not cite
any authority for this proposition, and we have found no case refusing to accord
deference to an agency decision simply because there 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 agency had, from time to time,
changed its interpretation of a statutory term).

                                          -6-
       Plaintiff’s complaint alleged that the actions of the 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 requirements, 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 look at the environmental

consequences of its actions.”      Middle Rio Grande Conservancy Dist. v. Norton     ,

294 F.3d 1220, 1225 (10th Cir. 2002). NEPA was not designed 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 the 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.




                                             -7-
      After the remand order, Dennis G. Lowry, a forest wildlife biologist

attached to the Arapahoe and Roosevelt National Forests 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 discussed 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 information, the Forest

Service decided that a supplement to the EIS was not necessary. The rationale for

that decision was based on the following conclusions:

      Human activities, not the view of objects such as ski lifts, pose the
      greatest potential impact to wildlife movement on the 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 accessing this area
      using the lift remain below and move away from wildlife that may be
      traveling in the most likely route on the land bridge.

      Wind of sufficient force and direction to mask human 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 winter due to Lift #9.

                                          -8-
       The [Lowry] report also estimated that the effects–individually and
       collectively–to wildlife and habitat due to the lift do not significantly
       contribute to impacts that exist or that are foreseeable 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 with the district court that the

Forest Service has adequately considered the environmental 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 gloss 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 arrived at the same conclusion after

remand that it did initially does not, by itself, demonstrate 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 Fish and Wildlife Service

had determined, well before the remand, that the visibility and audibility of lift #9


                                            -9-
were significant for environmental purposes and that they should not now be

allowed to change their opinions. We agree with the district court that this

argument is basically an attempt to get the court to 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 Pursuant to the Endangered
Species Act

      Plaintiff finally submits that, because the lynx has now been listed as

threatened, the Fish and Wildlife Service is required to issue a biological opinion

after formal conferencing. Because plaintiff did not raise this issue until his

response brief after the remand decision, the district court properly refused to

consider it, as do we.

Summary

      In conclusion, we hold that the district court’s decision to remand this

matter to the Forest Service was not an abuse of discretion. We further conclude


2
       Plaintiff contends that this report should not have been part of the
administrative record. His motion to strike the report was denied by the district
court. Contrary to plaintiff’s position, the Forest Service was well within its
authority to consider all reliable scientific studies including one submitted by its
co-defendant. See Friends of the Earth v. Hintz , 800 F.2d 822, 834-35 (9th Cir.
1986).

                                         -10-
that the action of the Forest Service in response to the remand order was not

arbitrary, capricious, an abuse of discretion, or otherwise unlawful. In compliance

with the remand order, the agency provided a thorough 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




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