Roland C. Dubois and Restore: The North Woods v. United States Department of Agriculture, and Loon Mountain Recreation Corporation

The defendant-intervenor Loon Mountain Recreation Corporation (“Loon Corp.”) operates a ski resort in the White Mountain National Forest in Lincoln, New Hampshire. In order to expand its skiing facilities, Loon Corp. sought and received a permit to do so from the United States Forest Service. 1 Appellant Roland Dubois sued the Forest Service alleging violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., the Administrative Procedure Act, 5 U.S.C. § 501, et seq. (“APA”), and Executive Order 11,-990, 42 Fed.Reg. 26,961 (1977), reprinted as amended in 42 U.S.C.A. § 4321 (West 1994). Appellant RESTORE: The North Woods (“RESTORE”) intervened as a plaintiff claiming violations of the same statutes, and appellee Loon Corp. intervened as a defendant. Dubois and RESTORE (collectively referred to as “plaintiffs”) and the Forest Service filed cross-motions for summary judgment, and Loon moved to dismiss. The district court granted the Forest Service’s motion for summary judgment and denied the other motions. We affirm in part, reverse in part, and remand.

I. STATEMENT OF THE CASE

A. Facts

The White Mountain National Forest (“WMNF”) is a public resource managed by the United States Forest Service for a wide range of competing public uses and purposes, including “outdoor recreation, range, timber, watershed, ... wildlife and fish purposes,” 16 U.S.C. § 528 (1994), and skiing, 16 U.S.C. § 497(b) (1994). Pursuant to the National Forest Management Act of 1976, the Forest Service makes long-term plans to coordinate these competing uses, 16 U.S.C. § 1604(e)(1) (1994), and issues “special use” permits authorizing private recreational services on national forest land, 36 C.F.R. §§ 251.50-.65 (1995). The Forest Service’s exercise of its permitting authority is legally constrained by environmental considerations emanating, inter alia, from NEPA, the CWA, and Executive Order 11,990.

Loon Pond is located in the WMNF at an elevation of 2,400 feet. It has a surface area of 19 acres, with shallow areas around the perimeter and a central bowl 65 feet deep. It is unusual for its relatively pristine nature. There is virtually no human activity within the land it drains except skiing at the privately owned Loon Mountain Ski Area. New Hampshire Department of Environmental Services (“NHDES”) regulations classify Loon Pond as a Class A waterbody, protected by demanding water quality standards under a variety of criteria, see N.H.Code Admin. R. Env-Ws 432.03, and as an Outstanding Resource Water (“ORW’), protected against any measurable long-term degradation by the State’s anti-degradation rules, see id. 437.06; 40 C.F.R. § 131.12(a)(3) (1995). It ranks in the upper 95th percentile of all lakes and ponds in northern New England for low levels of phosphorus, which results in limited plant growth and therefore high water clarity and higher total biological production. The pond súpports a rich variety of life in its ecosystem. Loon Pond also constitutes a major source of drinking water for the town of Lincoln 1,600 feet below it. A dam across the outlet of the Pond regu *1278 lates the flow of water from the Pond to Lincoln’s municipal reservoir.

Loon Corp., defendant-intervenor herein, owns the Loon Mountain Ski Area, which has operated since the 1960s not far from Loon Pond. Prior to the permit revision that gave rise to this litigation, Loon Corp. held a special use permit to operate on 785 acres of WMNF land. That permit allowed Loon Corp. to draw water (“drawdown”) for snow-making from Loon Pond, as well as from the East Branch of the Pemigewasset River (“East Branch”) and from nearby Boyle Brook. In order to use water from Loon Pond, Loon Corp. also needed authorization from the Town of Lincoln and the State of New Hampshire. Beginning in 1974, Loon Corp. was authorized to pump snowmaking water from Loon Pond down to 18 inches below full level. 2 A 1988 amendment to this agreement permitted drawdown below the 18-inch level on a case-by-case basis. Combined uses by Lincoln and Loon Corp. during the period governed by these agreements typically caused four- to six-foot fluctuations in the level of Loon Pond.

In addition to being used as a source of water for snowmaking, Loon Pond has been the repository for disposal of water after it is pumped through the snowmaking system. 3 This includes water that originally came from Loon Pond, as well as water that originated in the East Branch or in Boyle Brook. Approximately 250,000 gallons of East Branch water have been transferred into Loon Pond each year in this manner. Obviously the water discharged into Loon Pond contains at least the same pollutants that were present in the intake water. Evidence in the record indicates that intake water taken from the East Branch contains bacteria, other aquatic organisms such as Giardia lambía, phosphorus, turbidity and heat. Evidence was also introduced in court, but not available prior to the issuance of the Environmental Impact Statement (“EIS”), that oil and grease were present in the discharge water, although their source was disputed.

In 1986, Loon Corp. applied to the Forest Service for an amendment to its special use permit to allow expansion of its facilities within the WMNF. Pursuant to NEPA, 42 U.S.C. § 4382, the Service developed a draft EIS, and a supplement to the draft. Responding to criticism of the adequacy of those documents, the Forest Service issued a revised draft EIS (“RDEIS”), which was published for public comment. The RDEIS set forth five alternatives to meet the perceived demand for additional alpine skiing. All five were located at the Loon Mountain site. 4

Many individuals and groups, including both plaintiffs, filed comments pointing out various environmental problems with each alternative that involved expanding the ski area. One lengthy comment from the U.S. Environmental Protection Agency (“EPA”) expressed its concern that the use of Loon Pond for snowmaking purposes would “use Loon Pond like a cistern” instead of treating it “with care” because it is “acknowledged to be one of the rare high altitude ponds of its size in the White Mountains.” Joint Appendix (“JA”), vol. II, Response to Public Comment on RDEIS at A-78. Other eommen-ters suggested that Loon Corp. be required to build artificial water storage ponds, in order to eliminate the problem of depleting Loon Pond when withdrawing water for snowmaking as well as the problem of adding pollutants to Loon Pond when discharging water into the Pond after use.

*1279 During the EIS process, Ron Buso, a hydrologist for the WMNF, expressed concern to another Forest Service hydrologist that the proposed drawdown of Loon Pond by twenty feet was likely to have a severe impact on the Pond. He explained that natural snowmelt in New Hampshire is extremely acidic and that, as a result of the planned drawdown, a substantial amount of acidic snowmelt would remain in Loon Pond, increasing the Pond’s acidity by a factor of two to three times what it would be without the planned drawdown. Without the drawdown, Loon Pond would be relatively full in the spring, and much of the snowmelt from surrounding higher elevations would glide over the surface of the Pond and down the mountain without significantly mixing with other Loon Pond water. According to Buso and a number of scientists whose affidavits were submitted to the district court, the increase in the Pond’s acidity due to the planned drawdown would change the chemistry of the Pond, cause toxic metals to be released from the sediment, and kill naturally occurring organisms.

Without addressing the issues raised in the Buso memorandum or in the comments suggesting artificial storage ponds, the Forest Service prepared a Final EIS (“FEIS”). The FEIS added a sixth alternative, also on the Loon Mountain site. The new alternative provided for expansion of Loon Corp.’s permit area by 581 acres and for the construction of one new lift and approximately 70 acres of new ski trails, changes designed to accommodate 3,200 additional skiers per day (from the current 5,800 per day). The Forest Service deemed Alternative 6 as the preferred alternative. Under it, Loon Corp. would more than double the amount of water used for snowmaking, from 67 million gallons per year to 138 million gallons. Seventeen million gallons of the increase would be drawn from the East Branch, and 54 million gallons from Loon Pond. In addition, Loon Corp. was authorized to draw the Pond down for snowmaking by fifteen feet, compared to the current eighteen inches. The Forest Service assumed that the Town of Lincoln would need up to an additional five feet of Pond water, making a total of twenty feet that the Pond was expected to be drawn down each year. This would constitute approximately 63% of the Pond’s water. In March 1993, the Forest Service published a Record of Decision (ROD) adopting Alternative 6.

As a mitigation measure to blunt the adverse environmental impact on Loon Pond, the Forest Service required Loon Corp. to pump water from the East Branch to Loon Pond in December and May of each year if the Pond was not otherwise full at those times. In its FEIS, the Forest Service recognized that the East Branch is a relatively unprotected Class B waterway under New Hampshire law, and that transfer of East Branch water to Loon Pond, a protected Class A waterbody and Outstanding Resource Water under state and federal law, would introduce pollutants into the Pond. Accordingly, it specified that this transfer of East Branch water could not occur if it ex-eéeded certain levels of turbidity, bacteria, or oil and grease. Neither the FEIS nor the ROD set any limits, however, on the level of non-bacterial organisms such as Giardia lam-bía or on pollutants such as phosphorus that may be present in the transferred water. Nor did the FEIS indicate an alternative means of refilling Loon Pond—with clean water—if conditions were such that the transfer of East Branch water would exceed the specified levels. 5 It did, however, provide a series of restrictions and monitoring requirements for water levels and water quality, including daily testing of the transferred water for turbidity, bacteria, and oil and grease. 6

*1280 Dubois and RESTORE appealed the ROD to the Regional Forester and, thereafter, to the Chief of the Forest Service. These appeals were denied. On March 16, 1994, the Forest Service issued a special use permit to Loon Corp., implementing the decision described in the ROD.

B. Proceedings Below

Plaintiff Dubois filed a complaint in the United States District Court for the District of Columbia, 7 challenging the Forest Service’s approval of the Loon Mountain expansion project. He made three arguments. 8 First, he argued that the Forest Service actions violated the CWA because they would lead to violations of state water quality standards which, he asserted, have the effect of federal law because they were approved by the federal EPA. Second, he argued that the Forest Service violated both NEPA and Executive Order 11,990 by failing to consider alternatives to the use of Loon Pond and failing to develop adequate mitigation measures. Finally, he argued that the Forest Service violated the CWA, 33 U.S.C. § 1311, by failing to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before approving Loon Corp.’s expansion plans, which entailed removing water from the East Branch, using it to pressurize and prevent freezing in its- snowmaking equipment, and then discharging the used water into Loon Pond. According to Dubois, an NPDES permit was required in order for Loon Corp. to discharge pollutants into Loon Pond, including the discharge from Loon Corp.’s snowmaking equipment.

Plaintiff RESTORE, a membership organization, intervened on behalf of its members to challenge the project. RESTORE first reiterated Dubois’ claim that an NPDES permit was required. In addition, RESTORE claimed that the Forest Service violated NEPA by failing to prepare a Supplemental EIS after it developed Alternative 6 as the preferred alternative. According to RESTORE, this new alternative, not specifically mentioned in the previously published draft EIS or RDEIS, contained substantial changes to the proposed action that are relevant to environmental concerns, which required a supplemental EIS under NEPA and relevant implementing regulations. Finally, RESTORE claimed that a supplemental EIS was required because the Forest Service’s Final EIS failed to “rigorously explore and objectively evaluate all reasonable alternatives” that are capable of meeting the stated goals of the project, as required by 40 C.E.R. § 1502.14 (1995). According to RESTORE, the asserted goal of meeting skier demand could have been met by expanding ski areas other than Loon, in particular, ski areas located outside the White Mountain National Forest.

The parties cross-moved for summary judgment. Loon Corp. intervened, and moved to dismiss on the ground that both plaintiffs lacked standing. The district court denied Loon Corp.’s motion to dismiss, granted summary' judgment for the Forest Service, and denied the plaintiffs’ cross-motions for summary judgment.

II. DUBOIS’STANDING 9

The ingredients of standing are imprecise and not easily susceptible to concrete definitions or mechanical applications. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). In order to have standing to sue, a plaintiff must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

Standing consists of both a constitutional aspect and a prudential aspect. The constitutional dimension derives from the requirement that federal courts can act only upon a *1281 justiciable case or controversy. U.S. Const. art. III. If a party lacks Article III standing to bring a matter before the court,, the court lacks subject matter jurisdiction to decide the merits of the underlying ease. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596,' 607-08, 107 L.Ed.2d 603 (1990).

To satisfy the constitutional component of standing, a plaintiff must have suffered an “injury in fact,” i.e., an invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). That injury must be “concrete and particularized”; the latter term means the injury must be personal to the plaintiff. Id. at 560 & n. 1, 112 S.Ct. at 2136 & n. 1. It may be shared by many others, United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687-88, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973), but may not be common to everyone, see Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The injury must also be “actual or imminent, not conjectural or hypothetical,” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136 (quotation omitted), and it must be “distinct and palpable,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206. The latter requirement may be satisfied by environmental or aesthetic injuries. See SCRAP, 412 U.S. at 686, 93 S.Ct. at 2415; Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). The injury need not be “significant”; a “small” stake in the outcome will suffice, if it is “direct.” SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. at 2417 n. 14. In addition, the injury must be fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. 10 Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136.

The doctrine of standing also includes prudential concerns relating to the proper exercise of federal jurisdiction. Among these concerns is the requirement that “a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Allen, 468 U.S. at 751, 104 S.Ct. at 3324. In addition, as a general rule, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. at 2205. A membership organization constitutes an exception to this general rule: it may assert the claims of its members, provided that one or more of its members would satisfy the individual requirements for standing in his or her own right. 11 See UAW v. Brock, 477 U.S. 274, 281-82, 106 S.Ct. 2523, 2528-29, 91 L.Ed.2d 228 (1986).

The burden falls on the plaintiff “clearly to allege facts demonstrating that he is a proper. party to invoke” federal jurisdiction. Warth, 422 U.S. at 518, 95 S.Ct. at 2215. The plaintiff must “set forth reasonably definite factual allegations, either direct or inferential, regarding each material element needed to sustain standing.” United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992). “[E]aeh element must be supported in the same-way as any other matter on which the plaintiff bears the burden of proof, i.e., -with the manner and degree of evidence required at the successive stages of the litigation.” Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136. At the pleading stage, “general factual allegations of injury resulting from *1282 the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ ” Id. (quoting. Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990)).

The district court denied Loon Corp.’s motion to dismiss Dubois’ claims on standing grounds, relying on our precedent in Washington Legal Found, v. Massachusetts Bar Found., 993 F.2d 962, 971-72 (1st Cir.1993). In that case, we held that the court need not determine the standing of all plaintiffs if at least one plaintiff has standing to maintain each claim. The district court found that RESTORE had standing to bring all the claims at issue in this case, and, therefore, that the court could reach the merits of all claims without first addressing Dubois’ standing. We agree that RESTORE would have standing to raise, on behalf of its members, all the issues in dispute in this litigation. But the district court erred in concluding that it could therefore reach the merits of all claims, because the district court’s premise was incorrect: RESTORE did not, even at the 'district court level, raise the issues relating to Executive Order 11,990 and the state water quality standards, which only Dubois is pursuing here. The situation is not, therefore, analogous to Washington Legal Foundation; if Dubois has no standing, we cannot decide issues that RESTORE has never raised.

We find, however, that Dubois does satisfy all requirements for standing to litigate the claims he seeks to pursue on appeal. His second amended complaint 12 alleged that

[his] principal residence from 1959-1977 was in Lincoln, New Hampshire. [He] has returned to the Lincoln area at least once per year-and occasionally up to twelve or more times per year —since 1977. During these trips, [he] has visited relatives and friends, collected botanical samples for scientific analysis, and engaged in recreational activities in and around the WMNF and the Loon Mountain Ski Area. Plaintiffs interest in the environmental, recreational and aesthetic quality of the WMNF are and will be adversely affected by the Defendants’ actions challenged in this Complaint.

Second Amended Complaint, ¶ 5. The last sentence is rather conclusory, but the entire complaint, taken together with inferences reasonably drawn from its allegations, contains sufficient “reasonably definite factual allegations,” AVX, 962 F.2d at 115; to survive a motion to dismiss.

“We are mindful that, under the notice pleading requirements of the federal rules, the allegations of the complaint should be construed favorably to the complainant on a motion to dismiss.” Papex Int’l Brokers v. Chase Manhattan Bank, 821 F.2d 883, 886 (1st Cir.1987). Moreover, as noted supra, at the pleading stage, “we presumfe] that general allegations embrace those specific facts that are necessary to support the claim.” Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137 (quotation omitted). Further, the record reveals that the district court had adduced additional information during its consideration of the standing issue. See AVX, 962 F.2d at 114 n. 6 (appellate court considering standing issue went beyond the complaint “in a record-wide search for facts supporting” the claim of standing). Dubois’ local counsel represented to the court that Dubois continues to return “regularly,” at least annually, to his parents’ home in Lincoln; that he drinks the water from the “Town of Lincoln water supply that comes down from Loon Pond”; that he “walks those mountains” in the WMNF. Transcript of Hearing, June 14, 1995, at 7-9. The court *1283 expressed its understanding of Dubois’ standing allegations as follows:

Mr. Dubois’ injury in fact is he periodically comes back to the area and enjoys its natural beauty and will be injured by not being able to experience its natural beauty if the project is allowed to go forward? ... It’s not a case of someone who’s simply saying I’m an environmentalist and I want to protect the environment, which everybody presumably has an interest in doing. It’s somebody who says I’m back there a lot, I drink the water a lot, I’m up there in the woods a lot, and this is going to hurt me.

Id. at 8,12.

We think it useful to compare the facts here with those alleged in AVX, 962 F.2d at 116-17. In AVX, the plaintiff organization had simply made conclusory allegations that its “members have been and will continue to be harmed by the releases that [were] the subject of [that] litigation”; its “averment [had] no substance: the members [were] unidentified; their places of abode [were] not stated; the extent and frequency of any individual use of the affected resources [was] left open to surmise.” Id. This court in AVX pointed to the allegations in SCRAP, 412 U.S. 669, 93 S.Ct. 2405, as attenuated as they were, in which “there was a geographic nexus; all the association’s members resided in a single, defined metropolitan area, -directly affected by the challenged action.... In SCRAP, unlike [AVX], the claimed environmental injury was tied to the particular pursuits of particular persons.” AVX, 962 F.2d at 117.

The instant case, in contrast with AVX, presents a particular person, whose family home is located squarely within the geographical area allegedly directly affected by the proposed project, who visits the area regularly, who drinks the water which will allegedly be tainted by pollutants, and who will allegedly be deprived of his environmental, aesthetic and scientific interests in ways directly tied to the project he challenges. These are the types of interests which the Supreme Court has held-when asserted by an organization such as RESTORE on behalf of its members — satisfy the constitutional requirements for standing. See SCRAP, 412 U.S. at 685-87, 93 S.Ct. at 2415-16; Sierra Club v. Morton, 405 U.S. at 734-35 & n. 8, 92 S.Ct. at 1366 & n. 8; see also supra, note 10. There is certainly no reason why an organization would have standing to raise these interests on behalf of its members, but an individual such as Dubois would not have standing to raise the same interests on his own behalf.

Thus, with the degree of specificity necessary at the pleading stage, Dubois has articulated— directly and by inference-how his personal interests will be adversely affected by the Loon expansion proposal. 13 Finally, his injuries are “likely to be redressed” by the relief he has requested in the complaint: inter alia, an injunction against the project’s proceeding. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136.

As for the prudential standing requirements, there is no dispute that the violations and injuries alleged in the complaint are the sort that NEPA, the CWA, and the Executive Order were “specifically designed” to protect. See Lujan v. National Wildlife Federation, 497 U.S. at 886, 110 S.Ct. at 3187. Moreover, our discussion above related only to Dubois’ own legal rights and interests, not those of third parties. Accordingly, we find that Dubois has standing to litigate the claims he seeks to pursue on appeal.

III. STANDARD OF REVIEW

The district court’s order granting summary judgment is subject to de novo review. Borschow Hosp. and Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 14 (1st Cir. *1284 1996); Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir.1992). We independently weigh the merits of the summary judgment motions “without deference to the reasoning of the district court.” Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir.1994). Accordingly, we must reverse the court’s grant of summary judgment unless “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.CivJP. 56(c). In analyzing the issues, we will review the record in the light most favorable to the non-movants, and make all inferences in their favor. Borschow, 96 F.3d at 14; Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990).

It is well established that a reviewing court may not set aside administrative decisions “simply because the court is unhappy with the result reached.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc. (“NRDC”), 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978)). The fundamental policy questions are “appropriately resolved in Congress and in the state legislatures”; they “are not subject to reexamination in the federal courts under the guise of judicial review of agency action.” 14 Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219. Courts may set aside agency decisions “only for substantial procedural or substantive reasons as mandated by statute.” Id.

The applicable statutes here are NEPA and the CWA. NEPA requires that the agency take a “hard look” at the environmental consequences of a project before taking a major action. Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). It is the role of the courts on judicial review to ensure “that this legal duty is fulfilled.” Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985).

Congress, in enacting NEPA, meant “to insure a fully informed and well-considered decision.” Vermont Yankee, 435 U.S. at 558,