May the U.S Forest Service favor resort skiing as a recreational use of the national forest above other non-recreational and recreational uses?
Clearly, by forming a "partnership" with the ski industry, the Forest Service will compromise its duty to safeguard the national forest and to serve the public. This alliance will create a bias, whether actual or perceived, toward particular corporate actors and development of the forest for a particular type of use. Such a partnership will also undermine the public’s confidence in the Forest Service’s ability to approach its responsibilities in an objective fashion and thereby, will violate the law.
The National Environmental Policy Act (NEPA) requires a federal agency to inform itself and the public regarding the potential environmental consequences of a proposed action before it makes any decision relative to that proposal. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989) ‘("[NE PA] ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct"). Thus, unless the Forest Service approaches its decision making, including decisions which impact the ski industry, with a willingness to conduct a meaningful analysis of any proposals and to make a decision in light of that analysis (and not based on any previous commitments to or understandings with the applicant), the agency will violate NEPA. The creation of a partnership will undermine the Forest Service’s ability to approach its decision making as dictated by NEPA and will send a message to the public that the Forest Service will not undertake NEPA analysis with the requisite open mind.
Pursuant to its responsibility to manage the public lands for the benefit of the public, the Forest Service is required to put the public interest before the needs of an individual applicant. As the Forest Service Manual directs:
A permit shall not be granted simply to provide a commercial profit-making opportunity. The Forest Service is not required to accommodate a desire of an individual applicant. A real public service or other justification must be evident . . . to show at least that the use meets a public need (note 1).
Again, a "partnership" with the ski industry violates this directive, either in spirit or in actuality, by encouraging the Forest Service to cater to the economic needs of the ski industry.
The Congressional directive to the Forest Service is the Multiple-Use and Sustained-Yield Act of 1960, 16 U.S.C.A. 528-31, which commands the Forest Service to administer the forests for range, timber, watershed, wildlife, fish and outdoor recreation purposes and prevents the Forest Service from considering one of these uses at the expense of all others.
By creating a partnership and predisposing itself to the needs of the ski industry, the Forest Service will unlawfully stress commercial recreation over other uses of the forest and will improperly emphasize skiing over other uses.
Again, such a predisposition will impair the Forest Service’s decision making and will send to the public a message that the Forest Service has inappropriately favored corporate interests and the interests of one set of forest users over the needs of the forest and the rest of the public.
(note 1: Forest Service Manual 2710.3)
This article first appeared in Citizens Committee to Save Our Canyons (Winter 1998)
Scott Silver, Executive Director,
Wild Wilderness
248 NW Wilmington Avenue, Bend OR 97701
Phone (541) 385-5261 E-mail: ssilver@wildwilderness.org