Appeal of Breckenridge Ski Area Peak 6 expansion

STATEMENT OF REASONS IN SUPPORT OF APPEAL

This appeal is being submitted to protest and refute the Forest Service’s decision to approve an expansion of Breckenridge Ski Area (BSR) onto Peak 6 and to ask for reversal or modification of the approved action. In the following sections, we will show that this approval: 1) violates the Forest Plan and the Endangered Species Act with regard to protection of lynx; 2) does not meet the purpose and need for the project; 3) violates the National Environmental Policy Act; and 4) violates Forest Plan direction on scenery. We feel the information included will show that the approval of this project is arbitrary and capricious and not consistent with the agency authority.

I. THE PROPOSED ACTION WOULD HARM LYNX, IN CONTRADICTION TO

MANAGEMENT DIRECTION AND THE ENDANGERED SPECIES ACT.

A. THE PROPOSED ACTION WOULD BE HARMFUL TO LYNX. There is no question

that implementing the Peak 6 expansion of Breckenridge Ski Resort would be harmful to lynx. See

“Effects Summary” at Final Environmental Impact Statement (FEIS) 3-258, 3-259.

A sizable block of solid forest exists on the north side of the current BSR permit boundary. Id. at 3-

225. With the expansion, about 81 acres of lynx habitat would be permanently converted to non-

habitat, due to cutting of ski runs. Id. at 3-259. Furthermore,

There would also be a loss of ski season [diurnal security habitat – DSH] resulting from

increased skier presence in and adjacent to developed ski terrain. Alternative 2 would

further impair diurnal, winter ski season, habitat connectivity across the ski area and

through the BSR portion of the LAU.

Ibid.

Connectivity is very important, as noted in the FEIS:

Because of the patchy, discontinuous distribution of lynx habitat in the Southern

Rockies Ecosystem, maintaining landscape-level habitat connectivity may be

paramount to maintaining a viable population.

FEIS at 3-215.

The east side of the Ten Mile Range, including the project area, is part of this connectivity:

It is likely that the east slope of the Tenmile Range has been or could be used by lynx as

a movement corridor and any such landscape level movement would almost certainly

extend through the ski area.

FEIS at 3-220, RTC-73.

While there is currently some level of impairment to connectivity across the ski area (ibid.), the

approved runs for the Peak 6 lift would greatly exacerbate this by severely fragmenting a large

block of “winter habitat”. See FEIS Figure 26.

The proposed action would affect 80.9 acres of lynx habitat, permanently converting virtually all of

it into non-habitat. Final Biological Assessment (BA) at 59-60. But overall, the loss of habitat will

greatly exceed the 81 acres converted to non-habitat:

Total habitat loss from direct and indirect effects within the immediate project area

totals approximately 340 acres within the Peak 6 development area.

Fish and Wildlife Service Biological Opinion (BO; FEIS Appendix G) at 8.

Snowshoe hare, lynx’ favorite prey, would decline with the development of ski runs (id. at 3-262)

or even be eliminated within the project area (BO at 14). The FWS notes the importance of

conserving hare habitat:

The [FWS] considers the retention of high quality snowshoe hare habitat in core areas

to be essential to lynx conservation.

FWS, 2008 at 71. The Southern Rockies is a provisional core area. Id. at 29, 65. The Peaks 5 and 6

DSH block has “relatively high… snowshoe hare track abundance”. FEIS at 3-225.

The approved expansion is expected to make a sizable habitat unavailable to lynx, or at least make

it more difficult to establish and maintain a home range:

We anticipate that during the winter, the expansion of ski area operations, terrain

development, and skier presence will isolate the northern portion of the east slope of the

Tenmile range, and will likely result in a barrier to lynx movement of an individual

occupying a home range within the action area. The barrier effect may prevent a lynx

from accessing high quality foraging patches north of the BSR's permit boundary.

BO at 10.

Since lynx are using the southern portion of the Ten Mile Range for at least a seasonal part of a

home range (FEIS at 3-220), implementing the proposed action would reduce the possibility of

further home range establishment.

B. MITIGATION WOULD NOT BE EFFECTIVE. One of the mitigation measures for lynx is

as follows:

BSR will establish a continuous line of bumblebee rope (yellow and black rope) along

the left side of the Peak 6 trail pod collector trail to discourage skiers from exiting the

ski area boundary and skiing through the trees north and east of the developed terrain to

the Siberian Loop of the Nordic system.

Peak 6 Project Record of Decision (ROD) at 7.

However, this measure is not likely to be effective enough to prevent adverse impacts to “lynx security and foraging habitat”, nor to prevent hare from being displaced. See BO at 8, 10, and FEIS at 3-262. Skiing of the intertrail islands is likely to “eliminate DSH effectiveness of the entire 340-acre Peak 6 project area below treeline during the ski season”. BA at 62. The loss of DSH “could further impair lynx habitat connectivity across the ski area during the ski season”. Ibid.

Also, some skier use in the area described in the quote above would occur because access would be

allowed through “designated Forest Service access points”. ROD at 7-8. Though these points would

be above timberline (ibid.), some use would likely occur in the area of lynx diurnal security habitat.

See FEIS at 3-262. The effects could extend into the 356 acres of undisturbed habitat that would

remain on the north of the ski area special use permit boundary. BO at 8.

Another mitigation measure is for Vail Resorts, Inc., the parent company of BSR, to establish a

fund that would be allocated as follows:

$100,000 for road decommissioning projects approved in the WRNF Travel

Management Plan, and $100,000 for completion of the WRNF lynx/recreation study.

The remaining $100,000 would be used for general lynx related studies, education,

habitat improvement projects, etc.

ROD at 8.

While expenditure of this money may result in some positive future impacts, it would not at all

alleviate the impacts caused by the Peak 6 expansion. After all, lynx don’t den, forage, or find

diurnal security in money – they find it in habitat, including the habitat that would be fragmented

and destroyed by the Peak 6 expansion.

It is frequently mentioned that mountain pine beetle (MPB) mortality will further impair DSH,

connectivity, and the ability of lynx to establish and maintain a home range. See, e. g., FEIS at 3-

224, 3-229. However, areas with MPB mortality are expected to return to a forested condition,

meaning they will once again become lynx habitat. FEIS at 3-231. The ski runs, on the other hand,

would become permanent non-habitat for lynx. Id. at 259, BO at 8. Also, “[m]ost of the Peak 6

project area consists of spruce-fir habitat that will not be affected by MPB.” FEIS at 3-219. Lynx

are more likely to use spruce-fir forests. See FWS, 2008, at 31.

C. THE APPROVED PROJECT VIOLATES THE ENDANGERED SPECIES ACT. The

U.S. Forest Service (“USFS”) seeks to allow Breckenridge Ski Resort (“BSR”) to expand into the

Peak 6 area, home to the Canada Lynx (“lynx”), a federally listed species under the Endangered

Species Act (“ESA”). The USFS’s decision violates the purposes and multiple provisions of the

ESA. The USFS violated the ESA when it: (1) allowed actions that are contrary to the provisions of

the Southern Rockies Lynx Management Direction (SRLMD); (2) allowed actions constituting the

take of the lynx without a valid Incidental Take Statement (“ITS”); and (3) failed to reinitiate

consultation when new information arose.

1. Purpose of the Endangered Species Act. The purpose of the ESA is to provide a means to conserve the ecosystems that endangered and threatened species depend on. 16 U.S.C. § 1531(b). The ESA states that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” Id. at § 1531(c)(1). The USFS failed to fulfill its duty to conserve the ecosystems that the lynx depends on when it chose to allow BSR to expand into Peak 6. Its actions harm the lynx by permanently converting 81 acres of lynx habitat to non-habitat (FEIS at 3-259); indirectly decreasing lynx habitat by 340 acres (FEIS at G-8); impairing connectivity that is paramount to maintaining a viable population of lynx (FEIS 3-215); and lowering snowshoe hare populations that are essential to lynx conservation (FWS, 2008 at 71). See more detailed discussion in subsections A and B above.

2. Lynx Listing Under The ESA And Subsequent Forest Plan Amendment. The Secretary is required to determine whether a species is endangered or threatened because of any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;(B) overutilization for commercial, recreational, scientific, or educational purposes;(C) disease or predation;(D) the inadequacy of existing regulatory mechanisms; or(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. §§ 1533(1)(A)-(E).

The Secretary determined that the single factor affecting the lynx in the contiguous U.S. was the inadequacy of existing regulatory mechanisms, specifically those in National Forest Land and Resource Management Plans. 65 Fed Reg 16052, March 24, 2000. The U.S. Fish and Wildlife Service (“FWS”) determined that “current U.S. Forest Service Land and Resource Management Plans include programs, practices, and activities within the authority and jurisdiction of Federal land management agencies that may threaten lynx or lynx habitat.” Ibid.

As a result of this finding, the USFS developed the SRLMD, which amended forest plans in the Southern Rockies, including the White River National Forest involved in this case, in order to conserve the species. SRLMD ROD at 5. The SRLMD outlines the objectives, standards, and guidelines that must be met within all forest plans in the Southern Rockies. See Generally SRLMD ROD at Attachment 1. Ironically, the Forest Service seeks to amend this regulatory mechanism that was put in place to protect the lynx and, in essence, return to the old programs, practices, and activities that put the lynx at risk in the first place.

3. Standard of Review. The Administrative Procedure Act (“APA”) governs judicial review of agency decisions where the statute governing the decision is silent as to the standard of judicial review, such as NFMA. 5 U.S.C. § 704. Courts are required to hold unlawful and set aside agency actions or decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s decision is arbitrary and capricious under the APA if the agency “has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983)). An agency decision will also be set aside as arbitrary and capricious if it is unsupported by “substantial evidence.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994) (citing Ass’n of Data Processing v. Bd. of Governors, 745 F.2d 677, 683 (D.C. Cir. 1984).

4. The Forest Service has Violated Section 9 of the ESA Because the Incidental Take Statement is Invalid. If significant new information becomes available concerning lynx, the USFS must reinitiate consultation with the FWS to obtain a new ITS or it will violate Section 9 of the ESA with this project. The ITS is invalid because it does not contain sufficient monitoring requirements to set a clear standard for what events or information would trigger reinitiation of consultation, does not contain any reasonable and prudent measures for the protection of the lynx, and does not require the USFS to follow any terms or conditions to keep the ITS valid. FEIS at G-12 to 15.

Section 9 of the ESA prohibits the taking of listed species within the U.S. 16 U.S.C. § 1538(a)(1)(B). If, through consultation with the action agency, the FWS determines that an incidental taking will occur that will not jeopardize the continued existence of the species or result in adverse modification of critical habitat, then it must issue an ITS that authorizes the action. 16 U.S.C. § 1536(b)(4). The ITS must: (1) specify the impact of the incidental taking of the species; (2) specify the reasonable and prudent measures that the FWS considers necessary or appropriate to minimize such impact; (3) set forth terms and conditions that must be complied with by the Federal agency or applicant (including, but not limited to, reporting requirements); and (4) specify the procedures to be used when an individual of the species is taken. 16 U.S.C. §§ 1536(b)(4); 50 C.F.R. 402.14(i).

In order to monitor the impacts of the incidental take, the Federal agency must report the progress of the action and its impact on the species to the FWS as specified in the Incidental Take Statement. 50 C.F.R. § 402.14(i)(3). If during the course of the agency action, the extent of the incidental taking is exceeded, the Federal agency must reinitiate consultation immediately. 50 C.F.R. § 402.14(i)(4).

Congress intended that numerical figures be given to monitor the impacts of incidental take where possible. H.R.Rep. No. 97-567, at 27 (1982). If, however, the FWS chooses to employ a non-numerical surrogate, the surrogate must not be so general that the applicant or the action agency cannot gauge its level of compliance. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010); Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife, Bureau of Land Management, 273 F.3d 1229, 1249 (9th Cir. 2001). In Wild Fish Conservancy, the FWS set a cap on the number of bull trout that could be taken as a result of a fish hatchery project. 628 F.3d at 531. However, the FWS only required that the hatchery monitor and report the number and types of fish caught in the hatchery’s water intake system. Id. The ITS was invalid because it failed to establish a meaningful trigger to reinitiate consultation as there was no clear standard. Id. at 532. In Arizona Cattle Growers’ Ass’n, the FWS used ecological conditions as the non-numerical surrogate for monitoring the taking of various fish species. 273 F.3d at 1249. However, because the FWS could not rationalize the link between the conditions and taking of the species, the ITS was rendered invalid. Id.

In our case, the FWS provides no meaningful trigger for reinitiating consultation in its ITS and thus is invalid. FEIS at G-12 to 15. The ITS lists the amount of take anticipated as one lynx. Id. at 13. However, the ITS provides for no direct monitoring of the lynx. Ibid. Instead, the ITS requires the monitoring of snowshoe hare, the lynx’s main food source. Id. at 14. In this monitoring requirement, the FWS states that “through direct and indirect effects of the proposed action, snowshoe hares use within the project area, and the undeveloped timbered acres within the permit boundary, will effectively be eliminated.” Ibid.; emphasis added.

This monitoring requirement is thus meaningless because it requires monitoring of a species whose use of the area is expected to be eliminated. Also, it does not specify any sort of baseline measure that would trigger the need for reinitiating consultation as required by the ESA. Ibid. It requires the action agency to monitor the elimination of the snowshoe hare but does not say whether the entire elimination of the snowshoe hare would constitute the trigger for reinitiating consultation. Ibid. Nowhere in the ITS does the FWS give a clear standard or meaningful trigger for reinitiating consultation, nor does it show how collecting the data about the snowshoe hare will show when the amount of take is exceeded and reinitiation of consultation is required. Ibid. The USFS must reinitiate consultation with the FWS to receive a valid ITS for this project or it will violate section 9 of the ESA.

Taken as a whole, the ITS for the Breckenridge Expansion project is inadequate. There are no meaningful monitoring measures that would trigger reinitiation of consultation under the ESA; the FWS provides no reasonable or prudent measures to lessen the impacts of the project on the lynx or its prey; and there are no terms or conditions that must be complied with to keep the ITS valid. See FEIS at G-13. Essentially, the USFS can go forward with the project without any responsibility for the lynx under the ITS. While the FWS is the agency responsible for issuing the ITS, the USFS is responsible for ensuring that its actions comply with the law. This includes obtaining a valid ITS for a project, like this one, that will result in the taking of the lynx. To comply with section 9 of the ESA, the USFS must reinitiate consultation with the FWS to receive a valid ITS for this project.

5. The Forest Service Is Required to Reinitiate Consultation Because of New Information. The ESA requires reinitiation of consultation under section 7 of the ESA when “new information reveals

effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. 402.16. New information has been revealed in this case that requires the USFS to reinitiate consultation. HYPERLINK "http://summitcountyvoice.com/2012/09/17/biodiversity-saving-lynx-in-summit-county/" http://summitcountyvoice.com/2012/09/17/biodiversity-saving-lynx-in-summit-county/.

Based on the September 17, 2012 article in the Summit County Voice, “Biodiversity: Saving Lynx in Summit County,” a new assessment done by the USFS shows that cumulative effects in the area may be approaching or exceeding impact thresholds. Ibid. Ashley Nettles, a Dillon District Biologist, said that as a result of this new assessment, the USFS may have to say no to certain projects where they have said yes to everything previously. Ibid. This assessment needs to be available to the public, as it seems to contain new information pertinent to the Peak 6 expansion. The USFS must reinitiate ESA section 7 consultation with the FWS as a result of this new information.

D. THE APPROVED PROJECT VIOLATES THE NATIONAL FOREST MANAGEMENT ACT. The National Forest Management Act (NFMA) requires the formulation of management plans for each national forest unit. 16 USC 1604. The applicable plan for the Peak 6 area, for the White River National Forest, has been illegally amended by the Peak 6 ROD. The plan amendment was incorrectly determined to be not significant. And even with the plan amendment rescinding a standard in the Southern Rockies Lynx Management Direction (SRLMD), the project still violates other parts of the SRLMD.

We re-incorporate section C 3 here for the standard of legal review.

1. The Forest Service’s Decision To Waive Standard ALL S1’s Applicability In This Project Is Arbitrary and Capricious. The USFS’s decision to waive Standard ALL S1’s applicability in this project is arbitrary and capricious because it is not supported by substantial evidence, runs counter to the evidence in the FEIS, and goes against important standards set in the SRLMD.

SRLMD Standard ALL S1 says that “[n]ew or expanded permanent developments and vegetation management projects must maintain habitat connectivity in an LAU and/or linkage area.” SRLMD ROD at Attachment 1-1. The USFS’s explanation for the waiver of this standard as it applies to the expansion of BSR is that

habitat connectivity is not maintained under current conditions, and this Standard is currently unable to be met in the future, with or without further development at BSR.

ROD at 7. This statement runs counter to the evidence provided in the FEIS and is not supported by substantial evidence.

The FEIS shows that connectivity exists in the proposed action area. FEIS at 3-259, 3-220. It states that “[a]lternative 2 would further impair diurnal, winter ski season, habitat connectivity across the ski area and through the BSR portion of the LAU.” FEIS at 3-259. If habitat connectivity did not exist, there would be none to further impair. And while the habitat connectivity is currently impaired in the area, it is not severed:

It is likely that the east slope of the Tenmile Range has been or could be used by lynx as a movement corridor and any such landscape level movement would almost certainly extend through the ski area. However, there is some level of impaired habitat connectivity for lynx across the ski area, which impairs habitat through this portion of the LAU. Developed BSR terrain may impair the ability of some lynx to move across the ski area during the day (during the 7.5 hours per day that skiers and patrol present widespread human presence/activity on the ski area) during the winter ski season (mid-November to mid-April, 5.25 months), adversely affecting habitat effectiveness and connectivity through the middle portion of the Tenmile Range. Such lynx movements would likely occur during the 16.5 nocturnal and crepuscular hours of each day when lynx are most active. However, lynx can be active at any time of the day and lynx have been observed on active BSR ski terrain during operating hours.

Id. at 3-220. The FEIS admits that the effects on habitat connectivity are not limited to the BSR expansion area, but will extend onto adjacent National Forest Service lands. Id. at 3-259.

Indeed, several sightings on and near the ski area indicate that the east slope of the Ten Mile Range

could be used as at least the seasonal portion of a home range. FEIS at 3-220.

The difference between impairment and total removal of connectivity was noted by the Fish and

Wildlife Service in its comments on the Draft EIS. See Department of Interior Letter, dated August

2, 2011, at 2, in FEIS Appendix F. The Forest Service response uses much of the quote from FEIS

3-220 reproduced above, again emphasizing that the connectivity within the Swan River LAU is

impaired, but not severed. See FEIS RTC-72.

The Forest Service admits that there is “potential for habitat connectivity to increase in the long

term”. FEIS at D-3. Specifically:

Habitat conditions will improve as post-epidemic forests succeed to stands supporting

more abundant lynx prey populations.

Id. at 3-231. If habitat connectivity is not maintained under current conditions, then a waiver of Standard ALL S1 would not be necessary because cutting down these trees would not violate the standard. The USFS’s attempt to waive this standard is proof that it believes habitat connectivity exists in the proposed action area. Similarly, the fact that an ITS was required in this project and it is projected that a lynx will be killed as a result of the clear-cutting for ski runs shows that the habitat involved has connectivity. FEIS at G-12 to 15. Because the evidence shows that habitat connectivity exists in the BSR expansion area, the USFS’s decision is arbitrary and capricious.

The FEIS also shows the potential for habitat connectivity to increase in the long term. Id. at 3-231. The USFS relies heavily on the mountain pine beetle (“MPB”) epidemic as their explanation for denying this. FEIS at D-3. However, the FEIS states that there is potential for habitat connectivity to increase in the long term when the area recovers from the MPB. Id. at D-3, D-4. This area will recover in 30-40 years to become year-round lynx habitat. FEIS at G-13. Because the BSR

expansion area also contains the potential for improved habitat connectivity and there is no substantial evidence to show that the area will not recover from the MPB, the USFS’s decision is arbitrary and capricious.

The waiver of ALL S1 also cannot be upheld because the FEIS admits that the Swan River LAU for the lynx already has an excess of unsuitable lynx habitat (37.86% vs. the 30% Forest Plan threshold). FEIS at 3-261 and G-5.. Yet, the USFS now wants to permanently destroy 81 acres of potential lynx habitat and indirectly decrease lynx habitat by 340 acres. FEIS 3-259, G-8. Because ski runs are permanent and will not return to a forested condition, cutting them would reduce the chances of improved connectivity as the forest recovers from the MPB.

Given that the east side of the Ten Mile Range currently supports some level of connectivity (even

if impaired), and that it likely will support an improved level in the future (with forest recovery after

MPB), how is it “not a reasonable requirement” to require that any development maintain

connectivity? (See FEIS at D-3.) If it is not reasonable in this case, when would it ever be

reasonable? Why does this standard even exist if it will not be applied in cases where a project or

activity would certifiably reduce connectivity?

In short, the agency’s rationale for amending the Forest Plan to eliminate Standard All S1 is

indefensible. Amending the plan, which in turn allows the Peak 6 expansion to proceed, would

make it more difficult to restore connectivity on the east slope of the Ten Mile Range, and thus

harm lynx now, and also in the future by preventing recovery of habitat.

The USFS’s waiver of the SRLMD Standard ALL S1 for this project is arbitrary and capricious because its explanation runs counter to the evidence in the FEIS and is not supported by substantial evidence. Current and potential improved habitat connectivity exists in the action area, contrary to the USFS’s assertions. There is no evidence to show that the area will not improve from the MPB. The USFS needs to choose an alternative that complies with the SRLMD Standard ALL S1 or make changes to the chosen alternative to comply.

2. The Forest Plan Amendment Is Significant. The Forest Service Handbook lays out the four criteria for determining significance of a proposed amendment: (1) the timing of the proposed change relative to the expiration or next scheduled revision of the forest plan; (2) the location and size of the area involved in the change compared to the overall planning area; (3) the long-term significance of the project relative to the goals and objectives of the forest plan; and (4) the impact of the amendment on management prescription (whether the change applies only to a specific situation or whether it will likely affect future decisions as well). FSH 1909.12 § 5.32(3)(a)-(d). Criteria 3 and 4 are implicated with this amendment.

The USFS offers an explanation for factor 3 that runs counter to the evidence before the agency. They state:

Long-term goods and services within the LAU would, in time, recover from the MPB epidemic potentially allowing more appropriate applicability of Standard ALL S1. This amendment would not alter the long-term relationship between levels of goods and services projected by the Forest Plan.

FEIS at D-4. However, clear cutting ski runs on Peak 6 would clearly alter the long-term relationship between the levels of goods and services projected by the Forest Plan by decreasing lynx habitat connectivity, and by preventing recovery of this connectivity. Reducing habitat connectivity and the chances for future habitat recovery of a threatened species is a significant impact. The Forest Plan and SRLMD call for no more than 30% of the habitat for lynx to be unsuitable, while 41% is already unsuitable. Plan at 2-19, SRLMD at ROD Attachment 1-3. The FEIS is clear that habitat connectivity, while impaired, still exists in the area, as is discussed above. (See also FEIS at 3-220.) Clear cutting ski runs in an area that holds the potential for future improved habitat clearly would move further away from meeting the plan’s standard of maintaining 70% suitable habitat for lynx within the LAU.

According to the USFS, because the habitat in this LAU is already degraded, there is no problem with making it worse. That explanation is implausible, and combined with the evidence on the record that contradicts the USFS’s explanation that the amendment would not alter the long-term relationship between levels of goods and services projected by the Forest Plan, it is arbitrary and capricious.

For factor 4, the amendment purports to limit its effect to the Breckenridge expansion project only. ROD at 7. However, such a decision only lends itself to similar decisions in the future. If a forest supervisor can amend out an individual project from a forest plan standard every time a project comes in conflict with the plan, then there is simply no purpose of having said standard or any standard. Forest supervisors cannot be allowed to use this loophole to simply avoid compliance with important wildlife standards and conservation laws.

3. The Proposed Project Violates the Southern Rockies Lynx Management Direction Despite the Waiver of Standard ALL S1. The proposed project violates objectives and guidelines of the SRLMD other than the Standard ALL S1 that the USFS attempted to waive. These sections include Objective HU O1, Guideline HU G1, and Guideline HU G3.

Objective HU O1 of the SRLMD is to “[m]aintain the lynx’s natural competitive advantage over other predators in deep snow, by discouraging the expansion of snow-compacting activities in lynx habitat.” SRLMD ROD at Attachment 1-6, Forest Plan at 1-9. This project does the exact opposite of this objective - it encourages and directly causes snow compaction by permanently converting 81 acres of lynx habitat to ski runs, where snow is always compacted during the ski season.

Guideline HU G1 states that “[w]hen developing or expanding ski areas, provisions should be made for adequately sized inter-trail islands that include coarse woody debris, so winter snowshoe hare habitat is maintained.” Id. at Attachment 1-7. Given the increased and high level of human use in the expansion area, the intertrail islands in the Peak 6 pod would not maintain hare habitat, as is discussed in sections I A and B above.

Guideline HU G3 states that “[r]ecreational development and recreational operational uses should be planned to provide for lynx movement and to maintain the effectiveness of lynx habitat.” Ibid.; Forest Plan at 2-22. Under the Forest Plan,

The intent of the guidelines must be met. . . . The NEPA document must show how the intent of the guideline is met, or how progress is made towards the conditions described in the guidelines.

Forest Plan at 2-17. The USFS tries to say that because of certain design and planning considerations incorporated into Alternative 2, the agency is action is consistent with this guideline. However, as discussed previously, the proposed project would reduce: habitat effectiveness, lynx movement across the ski area, and the ability of the lynx to establish a home range. FEIS at 3-215, 3-259, G-8. The design of this project would permanently convert 81 acres of lynx habitat to non-habitat. Id. at 3-259.

CONCLUSION. The USFS’s decision to amend the SRLMD and its determination that it was a non-significant amendment are arbitrary and capricious because it is inconsistent with applicable law, regulations, and guidelines, and therefore must be set aside. Alternative 2 violates the SRLMD and must be disqualified as the proposed alternative. The USFS must reinitiate ESA section 7 consultation because it is acting under an invalid ITS, and there is new information that affects the lynx and Peak 6 expansion.

II. FOREST SERVICE APPROVAL OF THE PROSED ACTION VIOLATES THE NATIONAL ENVIRONMENTAL POLICY ACT.

A. INTRODUCTION. The Forest Service is attempting to address Breckenridge Ski Resort’s (BSR) crowding issue by expanding the resort onto Peak 6. See generally Final Environmental Impact Statement (FEIS). The National Environmental Policy Act (NEPA) requires the Forest Service to fully explore major federal actions significantly affecting the environment, such as this action, in an Environmental Impact Statement (EIS). 42 U.S.C. § 4332. An EIS is required to specify the underlying purpose and need for the government action and then fully explore all reasonable alternatives that may fulfill that purpose and need. 40 C.F.R. §§ 1502.13, 1502.14. Here the Forest Service failed to comply with these requirements when it 1) explored, and ultimately selected, an alternative that does not meet the purpose and need; 2) drafted the purpose and need too narrowly; and 3) only considered alternatives that included the construction of new ski lifts.

The Forest Service identified seven purpose and need statements relevant to this project. FEIS at 1-6. The first four identify the real underlying purposes for this action:Purpose #1 – Better accommodation of current daily visitation levels.Purpose #2 – Reduced skier congestion on BSR’s existing Intermediate and Advanced-Intermediate terrain network and associated lifts.Purpose #3 – Reduced waiting time for lifts at BSR.Purpose #4 – Efficient dispersal of Intermediate and Advanced-Intermediate skiers across the entire skiable terrain network.

Id. Purposes #5 and 6 identify possible solutions and specific actions to underlying problems:Purpose #5 – Additional lift-served terrain to accommodate the existing terrain distribution deficit.Purpose #6 – Additional hike-to access servicing advanced ability levels.

Id. And Purpose #7 identifies a need that will come after the potential solutions of 5 and 6 are implemented:Purpose #7 – Sufficient infrastructure in pods to serve guests. Id.

These purposes, if valid, would seem to set up an expansion of BSR perfectly because only expansion could satisfy all seven. However, as will be discussed further, these purposes have proven impossible to fulfill through expansion because the mountains adjacent to the existing operating area at BSR, including Peak 6, do not hold the intermediate terrain that would be required.

The Forest Service then selected two alternatives to explore, in addition to the no-action alternative. FEIS at 2-1 to 2-57. Alternative 2 explores a two-lift expansion onto Peak 6 that would permanently destroy 81 acres of lynx habitat to make new ski runs. FEIS at 2-2 to 2-9. Alternative 3 explores a one-lift expansion onto Peak 6 (Peak 6 1/2) that would also require the clear-cutting of trees in lynx habitat, as well as watershed and soil damaging changes to existing BSR terrain. FEIS at 3-352 et seq. No alternative was considered that involved improving existing BSR terrain and infrastructure without also expanding the resort.

See section III below for more detail on how the approved alternative does not meet the purpose and need for the project.

B. STANDARD OF REVIEW. As the centerpiece of environmental regulation in the United States, NEPA requires federal agencies to consider the likely environmental impacts of a preferred course of action as well as reasonable alternatives. See 42 U.S.C. § 4331(b); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). “By focusing both agency and public attention on the environmental effects of proposed actions, NEPA facilitates informed decision making by agencies and allows the political process to check those decisions.” Id.

The Administrative Procedure Act (“APA”) governs judicial review of agency decisions where the statute governing the decision is silent as to the standard of judicial review, such as NEPA. 5 U.S.C. § 704. Courts are required to hold unlawful and set aside agency actions or decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency decision is arbitrary and capricious when it runs counter to the factual evidence before the agency. Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1165 (10th Cir. 1999). For NEPA cases under the APA, a “rule of reason” is used in analyzing agency decisions. City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th Cir. 1997).

NEPA and the Council on Environmental Quality Regulations require the Forest Service to study in detail all “reasonable alternatives” when preparing an EIS. 42 U.S.C. §§ 4332(2)(C)(iii) and (E), 40 C.F.R. §§ 1502.1, 1502.14(a); Dombeck, 185 F.3d at 1174-75. The “rule of reason” guides both the choice of alternatives as well as the extent to which the EIS must discuss each alternative. City of Carmel-By-The-Sea, 123 F.3d at 1142.

C. THE FOREST SERVICE UNREASONABLY EXPLORED AND SELECTED AN ALTERNATIVE THAT DOES NOT MEET THE PROJECT’S STATED PURPOSE. Agency-proposed alternatives are unreasonable if they do not achieve their intended purpose. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). When an agency’s intended purpose “is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.” City of Angoon v. Hodel, 803 F.2d 11016, 1021 (9th Cir. 1986) (emphasis added). It follows logically that an unreasonably proposed alternative is an unreasonable selected alternative. The Peak 6 Project’s intended purpose is to better accommodate current daily visitation levels, reduce skier congestion on existing intermediate terrain, reduce lift wait times, and disperse intermediate skiers more efficiently across the entire skiable terrain. The Service’s selected alternative is unreasonable because: 1) it would not better accommodate current daily visitation levels; 2) it would not reduce skier congestion on BSR’s existing intermediate terrain network; 3) it will not reduce wait time for lifts at BSR; and, 4) it would not disperse intermediate skiers more efficiently across the entire skiable terrain.

The proposed terrain is not suitable for intermediate skiers because it will not have snowmaking, it is not graded and groomed, and it consists mainly of advanced-degree sloping. FEIS at RTC-95; ROD at Appendix-2 (grooming plan does not exist); (RTC-16, response to question 1.23). See section III A below for more details. Exposed high-terrain slopes lacking snowmaking—like the proposed Peak 6 terrain—are unsuitable for intermediate skiers due to obstacles, thin snow and early season conditions. Grading and grooming are necessary to maintain intermediate level slopes because they remove boulders, tree stumps, willows, bushes, and other obstacles. While all of BSR’s existing intermediate runs are graded, only one part of one trail, below tree line on Peak 6, will be graded. FEIS at 2-4; FEIS at Figure 3. Further, there are no plans to groom any of the new Peak 6 terrain. (ROD at Appendix-2). While traditionally intermediate runs cannot exceed 40 percent, the largest parcel of designated terrain on Peak 6 is advanced with a 52 percent slope. RTC-16, response to question 1.23.

The Forest Service’s selected alternative is unreasonable because it will not better accommodate current daily visitation levels (Purpose #1). The agency maintains that Purpose #1 is met through the development of 550 acres of terrain and two new lifts. FEIS at 2-16. Since the majority of visitors to BSR are below advanced level skiers (FEIS 3-40), the new Peak 6 terrain is too difficult and would not suit their needs. Further, by expanding its advanced terrain, BSR can reasonably expect to attract more advanced skiers, resulting in higher, less manageable visitation levels. Because the new terrain is unsuitable for intermediate skiers, it is wholly unreasonable to expect that the Peak 6 expansion would better accommodate current daily visitation levels.

The agency’s selected alternative is unreasonable because it will not reduce skier congestion on BSR’s existing intermediate terrain network (Purpose #2), nor will it disperse intermediate skiers more efficiently across the entire skiable terrain (Purpose #4). While the Service argues that Purposes #2 and #4 are met through the development of new terrain and lifts, it is unreasonable to expect that intermediate skiers will depart existing familiar and suitable intermediate trails to negotiate Peak 6’s advanced terrain. The undesirability of Peak 6 among intermediate skiers thus would not reduce congestion or disperse intermediate skiers across BSR.

The Service’s selected alternative is unreasonable because it will not reduce wait times for lifts at BSR (Purpose #3). The Service contests that Purpose #3 is met through the construction of two new lifts; however, their own projections reveal that on peak visitation days, when reduction in wait

times is most needed, the approved alternative would provide no relief. FEIS at 3-73, 74. Even on non-peak days there would be no decreases on six of eleven lifts. Id. The addition of Peak 6 terrain would also add crowds to an already crowded Independence Chair due to advanced skier use in accessing Peak 6.

To conclude, the Service’s selected alternative would not better accommodate current daily visitation levels, would not reduce skier congestion on existing terrain, would not reduce wait time for lifts, and would not disperse intermediate skiers more efficiently across the terrain; therefore, it is unreasonable.

D. THE FOREST SERVICE DRAFTED AN UNREASONABLY NARROW PURPOSE AND NEED STATEMENT. An agency has “the responsibility for defining the objectives of an action and then providing legitimate consideration to alternatives that fall between the obvious extremes.” Dombeck, 185 F.3d at 1175. An agency is precluded from defining a project’s purposes in terms so unreasonably narrow they can be accomplished by only one alternative. Davis v. Mineta, 302 F.3d 1104, 1119-20 (10th Cir. 2002); Dombeck, 185 F.3d at 1174-75; Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666-67 (7th Cir. 1997); Busey, 938 F.2d at 196. The Service narrowly defined the Peak 6 Project’s purpose as providing additional lift-serve and hike-to access. In doing so, the Service violated NEPA by constricting the set of potential reasonable alternatives to only those involving the construction of chair lifts and an overall expansion of the resort.

In Davis v. Mineta, the Tenth Circuit held that if the true purpose of a project is to ease traffic congestion in a certain area, an agency’s stated purpose in drafting an EIS cannot be so narrow as to extend a particular road over a particular river. Davis, 302 F.3d at 1119. Similarly in Simmons v. U.S. Army Corps of Engineers, the court ruled as too narrow, a project purpose aimed at developing a single-source of water to supply two townships when in fact the goal of the project was to supply the two townships with water. 120 F.3d at 670. The court reasoned that “by focusing on the single-source idea, the Army Corps of Engineers never looked at an entire category of reasonable alternatives and thereby ruined its environmental impact statement.” Id.

Conversely in Colorado Environmental Coalition v. Dombeck, a case involving the proposed ski-resort expansion, the court deemed reasonable a purpose and need statement that focused on “providing high quality recreational experiences” and “enhance[ing] the quality of skiing opportunities.” 185 F.3d at 1178. Such objectives substantially met the recreation development objectives of the Forest Plan and were not unreasonably narrow as to require specific means of achieving the purpose and need. Id. at 1176. In Friends of Southeast’s Future v. Morrison, the court deemed reasonable a purpose that read: “1) to implement Forest Plan direction for the Project Area; 2) to help meet market demand for timber in Southeast Alaska; 3) to move toward the desired future condition for the Project Area by harvesting mature stands of suitable timber and replacing them with faster growing, managed stands of second growth timber, capable of long-term timber production…” 153 F.3d 1059, 1066 (9th Cir. 1998). By framing the purpose statement in broad enough terms, the Forest Service could evaluate a wide range of action alternatives. Id.

The Forest Service too narrowly defined the purposes of the Peak 6 Project. Purpose #5 is to “provide additional lift-served terrain to accommodate the existing terrain distribution deficit.” FEIS at 2-16. This purpose specifically narrows purposes two and four and essentially ensures that the only alternatives that would fulfill it would include an expansion of BSR’s chairlift network.

Providing additional lift-served terrain is a possible solution to an underlying problem, not a purpose. The real purpose is the need to reduce lift wait times and provide better distribution for intermediate and advanced intermediate skiers. Similarly, Purpose #6 is to provide “additional hike-to access servicing advanced ability levels.” This purpose also essentially ensures that the only alternatives that would fulfill it would include an expansion of BSR’s existing footprint. Providing additional hike-to access is also a solution to a problem, not a purpose.

Like Simmons, where the USACE only considered single-source alternatives, the USFS’s purposes were narrowly tailored to consider only alternatives involving the construction of chairlifts. Like Davis, if the National Forest Management Act requires that White River National Forest remain accessible for a variety of uses, the project purpose cannot be so narrow as to provide additional lift-served access to parts of BSR, nor to provide additional hike-to access for skiers of advanced ability levels. See WRNF 2002 LRMP. Like Davis, BSR’s real purpose is broadly to ease congestion on its slopes, not to do so in a particular way.

Unlike Dombeck, where the USFS’s purpose and need statement were reasonably broad, the Peak 6 Project purpose was narrowly tailored to providing “lift-served” terrain and “hike-to access for advanced skiers,” not Dombeck’s more reasonable objectives of “providing high quality recreational experiences” or “enhance[ing] the quality of skiing opportunities.” While the objectives in Dombeck can be achieved though a variety of means, the Peak 6 objectives are specific means to achieving the real goal of easing skier congestion and improving the recreational experience at BSR.

Unlike Friends, where the USFS properly framed the purpose in broad enough terms, the Peak 6 Project purpose was framed so narrowly that the Forest Service only considered three alternatives, all, with the exception of the required “no action” alternative, involving the construction of chair-lifts.

To conclude, the Forest Service was unreasonable when it so narrowly tailored the purpose and need statement that only alternatives which involved the expansion of BSR could meet it.

E. THE SERVICE FAILED TO CONSIDER AN ADEQUATE RANGE OF ALTERNATIVES. At the heart of every NEPA analysis is the requirement that agencies “rigorously explore” all reasonable alternatives—those that are practical or feasible from a technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant. 40 C.F.R. § 1502.14; 46 Fed. Reg. 18026 (March 23, 1981); Richardson, 565 F.3d at 708. The Service’s selected alternatives all involved the construction of new chair-lifts and expansion of the BSR. FEIS at 1-15. It was unreasonable for the Forest Service to exclude alternatives involving only improvements to existing terrain and infrastructure.

Alternatives can still be reasonable even if they do not offer a complete solution to the identified need. Davis, 302 F.3d at 1122; Natural Resources Defense Council v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972). In Davis, the Department of Transportation unreasonably failed to consider specific road expansion and mass transit system alternatives that alone would not have fulfilled the applicant’s entire desire to improve traffic in a major metropolitan area. 302 F.3d at 1122.

Similarly in Morton, which revolved around a NEPA analysis for oil and gas leases, the court recognized that “[i]f an alternative would result in supplying only part of the energy that the lease sale would yield, then its use might possibly reduce the scope of the lease sale program and thus alleviate a significant portion of the environmental harm attendant on offshore drilling.” 458 F.2d at 836.

Here, the Forest Service violated NEPA when it failed to consider alternatives that did not include the construction of new ski lifts. An alternative consisting exclusively of upgrading existing lifts, constructing new lifts within the current resort footprint, and improving existing terrain would meet most of the purposes listed in the EIS, specifically those purposes that were not too narrowly tailored: it would likely reduce lift wait times, better accommodate existing visitation levels, reduce congestion on intermediate and advanced intermediate terrain and associated lifts, and more efficiently distribute intermediate and advanced intermediate users. FEIS at 1-6. See also section II for further elaboration. Additionally, Purpose 7, aimed at bolstering BSR’s existing infrastructure, could be met in part with previously approved facilities such as the proposed Peak 7 restaurant. Ibid.

The Forest Service may argue that alternative 3 properly considered improving existing terrain and lifts to meet the purpose and need. FEIS at 2-9. However, meeting the purpose and need solely with improvements on the existing mountain is not listed as one of the issues being addressed in alternative 3 (ibid.), even though this issue was raised by many commenters in scoping. See, e.g., scoping comments of Rocky Smith et al, dated February 11, 2008, at 1-5.

Instead, Alternative 3 proposes a new lift (“Peak 6 1/2”) and an associated new terrain network. FEIS at 2-9 to 2-15. It also proposes various actions that would cause seriously adverse impacts to watersheds and soils. FEIS at 3-352 et seq., and Smith et al Comments, id., at 12-16. Because Alternative 3 includes the construction of a new lift and associated terrain network and other various actions that would cause seriously adverse impacts to watersheds and soils, it does not adequately explore the alternative of improving existing lifts and terrain without expanding the resort into important lynx habitat. While perhaps undesirable to BSR, a fourth alternative that adequately explores this option is practical and feasible from a technical, economic, and common sense standpoint. It should have been included in the NEPA analysis for this project.

CONCLUSION. The Forest Service violated NEPA when it: 1) explored, and ultimately selected, an alternative that does not meet the purpose and need; 2) drafted the purpose and need too narrowly; and 3) only considered alternatives that included the construction of new ski lifts. The Forest Service must analyze at least one additional alternative that would meet all or most of the stated purpose and need without installing new lifts and runs at BSR.

III. THE APPROVED PROJECT FAILS TO MEET THE STATED PURPOSE AND NEED.

This section provides more detail on how the approved alternative fails to meet the purpose and need for the Peak 6 project.

On a busy day at Breckenridge, the lifts and slopes which service our intermediate and advanced-intermediate skier are crowded. Many of the appellants who have skied BSR for 10-30 years can

vouch for this. BSR maintains: “the majority of BSR’s market is Intermediate ability level skiers” (FEIS 3-41); and, “[t]his analysis indicates a shortage of Beginner, Intermediate and Advanced-Intermediate terrain.” (FEIS at 1-6.). We agree that BSR sometimes has a crowding problem on its intermediate and advanced intermediate slopes, but we disagree that the proposed Peak 6 expansion is the solution and that it meets the Purpose and Need. The terrain on Peak 6 is not at all comparable to intermediate and advanced intermediate terrain found elsewhere at BSR and what the BSR intermediate customers have come to expect.

A. WHAT A BSR INTERMEDIATE AND ADVANCED INTERMEDIATE SKIER EXPECTS IS NOT WHAT PEAK 6 OFFERS Throughout the U.S. and from these appellants’ experience of skiing at Vail, Keystone, Breckenridge, Steamboat, Crested Butte and hundreds of others, you can always count on the fact that all intermediate (blue square) and advanced intermediate (blue square - black diamond or two blue squares) runs are groomed. Intermediate and advanced intermediate skiers desire groomed slopes because they do not yet have the skills to ski the more technical and challenging un-groomed terrain. They do not have the ability to ski around protruding rocks, bushes, and stumps. Intermediate skiers are accustomed to the graded, corduroy-like surface found on groomed snow. At BSR, and when the Purpose and Need was published in the scoping document of 2008, an intermediate skier will find that every advanced intermediate and intermediate ski slope is groomed daily. This has been the case for many, many years.

1. All BSR Intermediate and Advanced Intermediate Slopes have Snowmaking. A key deficiency of the Peak 6 proposal in regards to not meeting the purpose and need as scoped in 2008, is that at BSR, all advanced intermediate and intermediate and beginner terrain includes snowmaking. A run without snowmaking cannot be guaranteed to be opened by Christmas week and remain open through March in order to truly have an impact on the overcrowding. THERE WILL BE NO SNOWMAKING ON PEAK 6 (FEIS at RTC-95, 3-344). Thus the approved action would not meet the Purpose and Need. BSR can feel confident that all their existing intermediate terrain will most likely be groomed and open for their busiest few weeks of the winter – Christmas (which marks the beginning of their Core Season), Martin Luther King Weekend and President’s Day weekend - largely because of the extensive snowmaking. There is little snowmaking on any of the existing higher terrain at BSR, which is comparable to Peak 6. All of the higher terrain is rated expert because natural shallow ungroomed snow will never be appropriate for an intermediate skier. For much of the Core Season of December and January, this terrain is either closed or is challenging skiing due to obstacles, thin snow and early season conditions. Expert skiers will instead ski the lower terrain and thus add to the crowding problem on the intermediate slopes.

Grooming and snowmaking are a big attraction for beginner and intermediate skiers (the majority of BSR’s market). Expecting the terrain on Peak 6, which has neither of those, to alleviate crowding is unrealistic, and once again, falls short of the stated purpose and need.

2. All BSR Intermediate and advanced intermediate slopes are graded and groomed. The Forest Service states that it will review BSR’s Winter Operating Plan in the future to address, “to the greatest extent practicable”, the grooming of intermediate terrain. (ROD at Appendix-2) In other words, a grooming plan does not currently exist. All of the existing intermediate/advanced intermediate slopes at BSR have been previously graded in the summer. Almost all of the slopes NOT graded at BSR are rated advanced or expert (black diamond or double black diamond or most difficult). On Peak 6, grading would only occur on part of one trail below treeline in the proposed Peak 6 pod. See FEIS at 2-4 and Figure 3. Grading the remaining slopes is essential for grooming and for an intermediate skiing experience because it removes obstacles such as boulders, tree stumps, willows, bushes etc. This in turn helps to minimize the expense of snowmaking since eliminating these obstacles means less artificial snow is needed in order to start grooming. In addition, grooming machines or ‘snowcats’ can’t groom terrain until there is adequate snow coverage. Artificial snow is the key to the success of grooming. When snowcats do groom shallow snow, you tend to be left with a slope filled with protruding rocks, scree fields, and bushes. This is not at all what an intermediate skier is accustomed to at most major ski resorts in the U.S., and particularly at BSR. More than likely, that intermediate run would be closed to the public until it received adequate snow cover. An intermediate skier at BSR has always expected groomed, graded, well covered and maintained terrain. PEAK 6 WOULD OFFER NONE OF THE ABOVE. Despite FEIS p. 2-4 showing 182 acres of intermediate terrain and 62 acres of advanced intermediate terrain, this FEIS did not include any proposals for grooming or snowmaking for any of these slopes, and only limited grading, as discussed above. Therefore these areas will not be usable for intermediate and advanced intermediate skiers, contrary to the project’s stated purpose and need.

3. Intermediate skiers would find skiing on peak 6 dangerous without snowmaking and grading. As discussed above, no snowmaking is proposed for Peak 6. Snowmaking is expensive and it is our understanding that in order to pump water all the way over to Peak 6, numerous infrastructure upgrades would first need to occur. Issues with water storage and additional capacity needs will have to be addressed. Without snowmaking, it is highly unlikely that the Peak 6 terrain will be groomed for the intermediate skier for much of the ‘Core Season’ which begins December 20th. No grading is proposed for any of the terrain above treeline (FEIS 3-399). Without grading, snowcats aren’t going to groom the rocky, shallow snowpack through the undulating terrain of Peak 6 throughout much of the Core Season. BSR would have to wait for adequate snow coverage which

typically for this higher terrain isn’t until late January. It is hard to imagine an intermediate skier navigating through ungroomed rocky terrain across a series of undulating mini bowls with rock gardens and willows. Almost every single non-graded slope at BSR is rated expert; therefore, it makes no sense to claim that the non-graded slopes of Peak 6 will be intermediate. The upper pitches of the supposed intermediate terrain on Peak 6 are notoriously rocky, especially the east face and the south shoulder. Just to the south of the lift is a scree and boulder field that never is completely covered. A few inches of new snow just barely covering these rocks would be incredibly dangerous for an intermediate skier who does not expect this. There was no mention in the FEIS of any snowcover or snow depth studies of the Peak 6 area, despite this being imperative for an intermediate skiing experience, especially without snowmaking. Ironically, backcountry skiers have found that the chance of hitting rocks actually gets worse as you ski lower on Peak 6. Even in the best of winters, these frequent rock gardens on the lower bowls are just barely covered until February. Much of this area is also dense willows and bushes, especially the lower intermediate terrain below Peak 6 ½. An intermediate skier won’t last long in this high alpine rugged terrain. It’s not at all comparable to a graded and groomed slope with snowmaking. The proposed use of Peak 6 as an intermediate and advanced intermediate area is not safe or practical for these skiers.

4. Lack of grooming on Peak 6 is incompatible with an intermediate skier’s experience. Numerous comments were given to the Forest Service about grooming. If the purpose of this expansion is to reduce crowding on intermediate terrain, then BSR must groom Peak 6. Every major ski resort in North America grooms their intermediate terrain daily to insure safety and convenience for intermediate skiers. BSR’s intermediate slopes and lower lifts are the most crowded earlier in the Core Season when the expert terrain, which relies on natural snowcover, is often not open or in poor condition, so then expert skiers crowd the intermediate lifts and terrain. To meet the Purpose and Need, it is imperative that Peak 6 is groomed and open for the intermediate skiers for the Core Season. This will not be the case—again falling short of meeting the purpose and need. Rather than commit to a comprehensive snowmaking and grooming plan BSR informed the public at the summer, 2011 site visit that it might groom the narrow concave southeast gully, which has about enough room for only two or three skiers to descend simultaneously. Rock piles border both sides of this gully for most of the winter. But the FEIS offered no verification that even this small gully would be groomed. But let’s just envision that if BSR sticks to its promise and does indeed just groom that narrow concave gully. Can you imagine the safety issues of a six person chair unloading dozens and dozens of intermediate skiers, so excited to ski Peak 6, and all of them jammed onto one tiny strip of snow? How does that aid dispersion? How is that safe? How is this solving the crowding problem? Another big grooming puzzle of Peak 6 is how BSR will groom avalanche debris. All of the lift -served intermediate and advanced intermediate terrain is located just below active avalanche terrain as well as a deep continuous cornice.

When these slopes do slide, an intermediate skier will get off the lift and have to ski down through avalanche debris. We asked the Forest Service how this would be managed. Avalanche debris will travel into the intermediate terrain. Cornice chunks will break off and tumble into the intermediate terrain. How would this be groomed? Appellants asked this question: “How will intermediate skiers handle skiing over avalanche debris or churned up snow after a small slide?” and here was the answer: “At this time, BSR plans to create a track similar to what currently exists off the north side of the T-Bar towards Peak 7.” FEIS at FTC-49.

This answer is inadequate and does not answer the question. The FEIS answer has nothing to do with the Peak 6 scenario as described. The track on the north side of the T-Bar is not underneath a cornice nor does it cross avalanche paths. In addition, the track the Forest Service is referring to is on a relatively flat pitch not at all similar to the slopes which this question pertains to on Peak 6, where it is a relatively steep traverse underneath a massive cornice, and across and also on the descent through avalanche paths. BSR has never had intermediate terrain located within avalanche paths. Sometimes BSR expert skiers will have to ski through avalanche debris, which is challenging and dangerous for even the most experienced expert skier. Avalanche debris is never groomed at BSR unless it is at the bottom of the run where the terrain is flat. It is hard to imagine that intermediate skiers, who are only used to groomed runs, will now have to dodge cornice chunks or avalanche debris. We asked how avalanche debris will be groomed because BSR has never groomed avalanche debris on a steep pitch. The only time avalanche debris is groomed is if it’s at the bottom of a slope where the terrain is flat. The questions on grooming seems to be one that the Forest Service is quite content to have no concrete answers for until after this proposed action has been approved. In response to one of these grooming questions, the Forest Service replied “[t]he approximate amount of grooming may be determined in the Winter Operating Plan that the Forest Service will review.” FEIS at RTC-48. This response is inadequate since it is clear that grooming is central to the ability of intermediate skiers to utilize this terrain, as discussed throughout this appeal section. Similarly, in the ROD at Appendix A-2, a Project Design Criterion states:

Address the purpose and need and guest expectations regarding grooming of Intermediate ability level terrain on Peak 6 to the greatest extent practicable.

That answer is vague at best and evasive at worse because it doesn’t require any measures to be applied that would meet the purpose and need to satisfy the needs of intermediate skiers. Essentially, this FEIS is saying that BSR doesn’t have to include a grooming report for Peak 6, until after the Proposed Action is approved. If this terrain isn’t going to be consistently groomed starting in Christmas, it doesn’t serve its stated purpose to disperse intermediate skiers, especially when the intermediate lifts and slopes are often the most crowded during the earlier half of the Core Season.

5. With no grooming or snowmaking, Peak 6 will not help for the majority of Design Days. The

purpose of Peak 6 is to help alleviate crowding on the other groomed intermediate slopes and lifts

for those 25 Design Days (FEIS 3-30) where the skier numbers are 16,000 or higher. Please refer to

the Traffic report (FEIS 3-112) where you will find that 60 percent of those heavy traffic days in

2009/10, 13 days total, occurred between December 19 and January 31st.

Peak 6, like the rest of the upper terrain at BSR which does not contain snowmaking on an average

winter, will not be fully operational for some of the busiest days in Breckenridge – December 19-

January 31st. We have already pointed out that grooming high altitude, ungraded terrain of only

natural snow is just not feasible until there is adequate snow coverage which for the majority of

BSR’s upper alpine bowls is not adequate until late January.

If the majority of the Design Days or even half of them occur between December 20th and January

31st, as the Traffic Study suggests, the terrain on Peak 6, almost identical to the black diamond

terrain found on the T-Bar and Imperial Express, is likely to be ungroomed and at best, only

partially open due to low snow coverage. Because of these poor conditions, many of the expert

skiers prefer to use the lower intermediate terrain through much of an average January, since

snowcover is poor on the upper bowls and runs and thus they in turn will crowd the already

crowded intermediate lifts and runs. Peak 6 will only exacerbate, not help, this problem. This will

not fulfill the Purpose and Need for that critical time period in December and January when more

intermediate terrain is needed the most. This falls short of the part of the purpose and need that

calls for “efficient dispersal of intermediate and advanced intermediate skiers across the entire

skiing terrain network”. (FEIS at 1-6.)

Sadly, for 70 percent of the Core Season, where the average daily skier visits is roughly 9000, Peak

6 is a waste and won’t be needed. And when Peak 6 will be needed the most, between December

20th –January 31st, it is highly unlikely that the natural, ungroomed and shallow snow conditions of

Peak 6 would help disperse intermediate skiers and reduce crowds.

6. Conclusion. Peak 6 terrain is not at all comparable to the rest of the intermediate or advanced intermediate terrain at BSR. No snowmaking and no graded slopes means grooming will be either impossible or delayed until too far into the Core Season to actually meet the Purpose and Need.

B. SINCE 2008 SCOPING, BSR AND USFS CHANGED THE CRITERIA FOR DETERMINING WHAT CONSTITUTES INTERMEDIATE AND ADVANCED INTERMEDIATE TO BETTER SUIT THE PURPOSE AND NEED OF PEAK 6. Once again, BSR’s stated Purpose and Need for this project is not consistent with its true goals in developing Peak 6. In the 2008 scoping period, BSR said it needed to increase the terrain for the skier ability levels of intermediate and advanced intermediate to satisfy their growing market share of that skier. See January 16, 2008 Scoping Letter at 2. To anyone in the industry or even a rank and file skier, advanced intermediate and intermediate terrain, in 2008 when this proposal was first scoped, has always been found on the lower terrain of

Peaks 8, 9, and 10. which is groomed, graded and served by snowmaking. In addition all of these slopes shared a similar slope grade difficulty ranging from 25-45 percent. FEIS at 1-12. When this proposal was first introduced in 2008, BSR trail maps and other ski resorts used a blue square/black diamond or ‘more difficult’ to describe the skier ability level for an advanced intermediate skier. A blue square on a map was used to describe the skier ability level of Intermediate or ‘more difficult.’ Please refer to the 2009 BSR ski trail map (identical map for 2006-2009) link below which shows BSR using these symbols and language to describe advanced intermediate and intermediate ski runs. HYPERLINK "http://graphics8.nytimes.com/images/2007/12/02/travel/SkiGuides/Breckenridge/Breckenridge.pdf" http://graphics8.nytimes.com/images/2007/12/02/travel/SkiGuides/Breckenridge/Breckenridge.pdf All of these intermediate and advanced intermediate slopes were groomed and graded, and they benefited from snowmaking. All of these slopes, before 2010, did match the industry standards of the steepness of the slope matching that skier’s ability level. But then, the FEIS at RTC-15 suddenly switched BSR’s definition of intermediate and advanced intermediate. Now these slopes were allowed to be much steeper than they were in 2008. We discuss this in more detail below.

With the release of the DEIS, in Table 1-1 (DEIS 1-6) we also discovered that a new category was born for the advanced intermediate skier ability level. For the first time ever it was given a black diamond symbol AND it included above treeline ‘bowl skiing’. This new application as to what constitutes an intermediate or advanced intermediate slope helped BSR achieve their ‘Purpose and Need’ but it is not at all what the existing conditions, as dictated by the 2008 industry standards, were in 2008 when the scoping process had begun.

1. Industry Standards for skier ability levels of Intermediate and Advanced Intermediate Terrain in 2008. In 2011, after three years of requests, the DEIS (1-11), released the slope percent grade guidelines for BSR. Vail Resorts, owner of 4 Colorado ski resorts, says it uses the following guidelines: For more difficult, the slope grade ranged between 25-45 percent; most difficult ranged between 45-55 percent; and anything over 55 percent was double black diamond or expert. In 2008 “more difficult” was intermediate and advanced intermediate and “most difficult” was advanced. Note that BSR does not differentiate between intermediate and advanced intermediate. See also FEIS at 1-12. Other sources are in agreement with all of the above but did limit intermediate terrain to a maximum of 40 percent. Refer to: HYPERLINK "http://en.wikipedia.org/wiki/Alpine_skiing" http://en.wikipedia.org/wiki/Alpine_skiing which supports BSR above; it does add that intermediate terrain starts at 25% BUT ENDS AT 40%. They cited the USFS as a reference for this information. See footnote 3. Another source, “Resorts Management and Operations” by Robert Christie Mill at page 37 says “the U. S. Forest Service suggests that beginners have a 15 to 25 percent slope gradient, intermediate skiers have a 25 to 40 percent slope gradient, and advances skiers have a slope gradient of greater than 40 percent.” Below this paragraph, Mill displays Table 2-1 (Ted Farwell,

The Concept of Balance, Ski Area Design Analysis) which goes into more detail and states that advanced intermediate is a 34-45% slope gradient. In addition, these sources state that if a resort chooses to not include advanced intermediate, then intermediate would end at 40 percent and advanced (black diamond) is the 40-55 percent range. Loveland, Monarch, A-Basin do not have an advanced intermediate skier ability level. However, BSR, as relied on in the FEIS, did not differentiate slope grades between intermediate and advanced intermediate and instead lumped them together as 25-45%.

2. Maximum Slope Grade for Intermediate Runs at BSR in 2008 was 40 percent or less. Despite BSR not revealing the slope grade differences between intermediate and advanced intermediate, we were able to determine that in 2008, all but one of their intermediate slopes never exceeded 40 percent. First we wrote down the name of every intermediate ski run at BSR which we obtained from this BSR Trail Map before 2010: HYPERLINK "http://graphics8.nytimes.com/images/2007/12/02/travel/SkiGuides/Breckenridge/Breckenridge.pdf" http://graphics8.nytimes.com/images/2007/12/02/travel/SkiGuides/Breckenridge/Breckenridge.pdf

These trails are: Upper Lehman, Briar Rose, Cashier, Bonanza, Columbia, Sundown, Lower American, Gold King, Volunteer, Four O’Clock, Springmeir, Crescendo, Northstar, Dukes Run Lower (or Dukes Run Access), Claimjumper, Lower Forget-Me-Not (Lower Peak 7 Road), Pioneer, Swan City, Wirepatch, Lincoln Meadows, Angels Rest and Monte Cristo.) Then we took all those above intermediate ski runs and compared them to all the same names of these slopes found in the following document gained through FOIA. This document lists the name of every ski run and access roads at BSR and then lists the slope grade – maximum and average – for all of these runs. (NOTE – DO NOT refer to the skier ability levels on the far right side of this FOIA document/spreadsheet since all those skier ability levels are not compatible with the trail map above. The BSR Trail Map above is what the public would agree with as the existing intermediate and advanced intermediate runs when scoping began.)( HYPERLINK "ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf" ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf

What we found, after comparing the names of the these 22 intermediate runs from the trail map to the same named runs on this spreadsheet, was almost all of these slopes never exceeded a maximum slope grade of 40 percent. In fact, quite a few intermediate runs were in the lower maximum range of 25-35%. Sundown was the only intermediate run that did exceed 40 percent (43 percent), and this was for a short distance. Also, the width of this trail is wider than most. The average slope grade for the groomed Sundown was 13-26 percent which is a sharp decrease from its maximum.

In 2008, when scoping began and the purpose and need was to add more intermediate terrain to help crowding, it was based on the fact that the overwhelming majority of BSR’s intermediate runs were

not only groomed, graded and had snowmaking, but also never exceeded a maximum grade of 40 percent.

3. In 2010, BSR eliminated the ‘advanced intermediate’ classification. In the FEIS at 1-11, there is a list of all the advanced intermediate runs at BSR which existed in 2008 when scoping began. These were all groomed slopes which benefited from snowmaking and were popular with skiers because they were slightly steeper than all the other intermediate runs at BSR. We were able to compare the names of these runs in the FEIS to the FOIA (link below) spreadsheet and find that the maximum slope grades for these runs ranged between 37-46 percent. This fits into the advanced intermediate slope grade standards as mentioned above. See: HYPERLINK "ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf" ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf In 2010, BSR eliminated the term “advanced intermediate” and switched all of these advanced intermediate runs to ‘black diamond’ or most difficult. The term advanced intermediate was eliminated from BSR trail maps. See map and link below:http://www.breckenridge.com/~/media/Breckenridge/Files/Maps/Breckenridge-Trail-Map-20112012.ashx We believe that the reason BSR switched all these advanced intermediate runs to advanced (most difficult) is because BSR realized AFTER the purpose and need had been scoped in 2008 that Peak 6, in fact, might not provide intermediate or advanced intermediate terrain. BSR and the Forest Service needed to re-define these skier ability levels BEFORE the DEIS was released so that Advanced Intermediate wasn’t limited to just being a groomed slope below treeline which is incompatible with Peak 6. But the fact remains that in 2008, when scoping began, at BSR and all other resorts in the U.S., advanced intermediate runs have always been a steeper version of groomed intermediate runs. The term advanced intermediate, though, eliminated from all existing runs at BSR, still had to be used in the DEIS since it was used in scoping, but now it has a new definition.

4. The FEIS Gives New Definitions for Skier Ability Levels Not Compatible with the original Purpose and Need for Peak 6. The Purpose and Need relies on BSR’s use of 2008 industry accepted standards and the skier ability levels given on the BSR ski trails map before 2010. But BSR, in 2010 changed its standards by eliminating the term advanced intermediate from its maps and calling it advanced. Now almost every run at BSR which exceeds a slope grade of 40 percent is called advanced, i. e., most difficult, and is designated with a black diamond. But in FEIS Table 1-1 (p. 1-6), in August, 2012, the term “advanced intermediate” is brought back to life, but now it claims that it is a black diamond and includes “traditional bowl skiing”. At FEIS 3-41, the Forest Service describes it as “the alpine bowls of Peaks 8, 9, and 10”. In 2008, there was not one advanced intermediate run that could be described as traditional bowl skiing. Of course, most of Peak 6 is ‘traditional bowl skiing’, and Table 1-1 is an attempt to now include in the definition of advanced intermediate what one would experience at Peak 6 – bowl skiing – even though when scoping began in 2008 not a single skier at BSR would find an advanced intermediate run in our high alpine bowls.

The FEIS at 1-12 tries to justify this new definition of advanced intermediate:

For the purposes of this analysis, the terrain ability levels and acreages have not changed since the project was scoped with the public. Furthermore, this FEIS applies a consistent slope analysis for both existing and proposed terrain. Therefore, the identified deficits of certain ability level capacities presented in the scoping notice are identical to what is presented in Table 1-1 and is analyzed in this FEIS.

The above assertion is not true, as the analysis does not address what has been changed in Table 1-1 – the skier ability levels – which are not at all compatible with what existed at scoping in 2008. Therefore, the slope analysis is also not consistent. An advanced intermediate skier in 2008 did not ski the same slopes as an advanced intermediate skier skiing the runs listed in the 2012 FEIS Table 1-1. To begin with, no ski resort in the U.S. has ever used a black diamond to designate advanced intermediate terrain. Black diamond runs at BSR has always been defined as the ‘most difficult’ ski runs. Expert terrain as labeled in Table 1-1, is also incompatible with what existed before scoping. In 2008, expert terrain was a double black diamond, ‘most difficult.’ Lastly, ‘low intermediate’ on Table 1-1 was not a term used in scoping in 2008 and most of the ‘low intermediate’ terrain on Table 1-1 is classified as intermediate on any of BSR trail maps. Also, in Table 1-1, the trail or terrain acreage for ‘advanced intermediate/black diamond” terrain is not compatible with scoping. The 175.7 acres in Table 1-1 for advanced intermediate are the same acreages of the 10 runs listed on FEIS 1-11, which in 2008 were all groomed, below treeline runs, all given the advanced intermediate, blue square/ black diamond ability level. Please refer to FOIA for the acreages of all those runs listed on FEIS 1-11. See: ( HYPERLINK "ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf" ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdf It is our contention that with this proposed action, many of the skier ability levels have been re-defined, but in particular and for the purpose of this analysis, the skier ability levels for intermediate and advanced intermediate and the acres of that ability level from 2008 have been re-written by the FS and BSR to suit the Purpose and Need for Peak 6. Suddenly advanced intermediate terrain includes bowl skiing which it never has before. Suddenly advanced intermediate terrain can include terrain that is NOT groomed and has no snowmaking. This fits in perfectly with what exists currently on Peak 6 – bowl skiing with no grooming or snowmaking proposed. But this doesn’t fit with what the original Purpose and Need which was to increase advanced intermediate terrain as it existed in 2008 in order to help crowding at BSR.

5. The Forest Service has adopted a radical new definition of terrain difficulty. In the FEIS Response to Comments, the Forest Service finally uses the skier ability level terminology and thus fully proves that it has adopted a new definition of terrain difficulty which is much different and totally at odds with the terrain and skier ability levels as proposed in 2008. Of course this new definition of what is intermediate or advanced intermediate fits in better with what exists at Peak 6. In response to comments the FEIS states:

For this analysis, the Forest Service based ability levels on the following: Intermediate ability level terrain ranges from 35-45 percent and Advanced-Intermediate ability level terrain ranges from 45-55 percent.

FEIS at RTC-15; emphasis added. This is a dramatic switch from the following statements on FEIS 1-12:

Vail Resorts uses the slope percent grade of mid 20 percent to mid 40 percent for More Difficult and mid 40 percent to mid 50 percent for Most Difficult terrain at the steepest pitch. Anything over the mid 50 percent grade generally would receive a double black diamond rating. Most of the re-classified trails that went to the More Difficult (single black diamond) rating are approximately mid 40 percent at the steepest pitch.

For the purposes of this analysis, the terrain ability levels and acreages have not changed since the project was scoped with the public.

Now Intermediate slopes are the equivalent of an advanced intermediate slope in 2008, and advanced intermediate slopes are the equivalent of a black or advanced slopes. Again, let’s just repeat that our analysis proves that with one exception, Intermediate terrain at BSR HAS NEVER EXCEEDED 40 percent, and Advanced Intermediate ability level has never exceeded 46 percent. We will prove below that the FEIS had to switch their slope grade ranges for intermediate and advanced intermediate because they realized that the terrain on Peak 6 wouldn’t meet the industry standards for these skier ability levels as existed in 2008.

6. All purported advanced intermediate terrain on Peak 6 exceeds a 50 percent maximum slope grade. With the release of the FEIS (Figure 6), the same ‘advanced intermediate’ terrain from the Figure 6 DEIS are now all switched from a blue square/black diamond to a black diamond. Now all 62 acres of advanced intermediate terrain off Peak 6 is re-labeled ‘black diamond’ terrain but still described as advanced intermediate in the legend of Figure 6’s map. See FEIS at 2-4. Two of the primary runs down from the lift are now black diamond and thus there is even less terrain for an intermediate skier to access from the top of the Peak 6 six person lift. In addition, with this change, now all of the terrain to the north of the Peak 6 lift is black diamond. Thus NONE of the terrain to the north meets the purpose and need. Both Town of Breckenridge and Board of County Commissioners commented on this issue (BOCC letter Appendix F, page 2 and 3; TOB letter, appendix F, #12 and 13), essentially stating that if the terrain to the north or the terrain accessed from the lift is not intermediate or advanced intermediate it should be removed from this proposal. In addition, this FEIS finally released the average and maximum slope grades for all these ‘advanced intermediate’ runs on Peak 6. Every one of those advanced intermediate runs on Peak 6

has maximum slope grades exceeding 50 percent! (RTC-15 and 16). In 2008, these runs would be considered advanced or expert and would never be called advanced intermediate. In fact, the average slope grades for two of these three runs were also abnormally high: 40 percent and 43 percent! (FEIS at RTC-15.) In 2008 the average slope grades for the advanced intermediate runs at BSR were between 22 and 28 percent. Thus the “advanced intermediate” runs on Peak 6 are very steep and should be classified as expert.

We believe that the three runs below treeline to the north are now only accessible if you are an advanced skier since now, in the FEIS, all of the terrain above it is advanced. It would be impractical and difficult for an intermediate skier to ski these runs to access these supposed intermediate, below-treeline runs, as these skiers would have to cut through the woods to get there. Please refer to Figure 14 in the FEIS for a better visual understanding of these three ski runs. These runs must be eliminated since it does not meet the purpose and need. 52 percent (121 of 235 acres) of the terrain accessed from the top of the lift is now advanced, including a large portion of the terrain closest to the unload station. This is contrary to the Purpose and Need to provide a substantial increase in intermediate terrain and thus alleviate crowding. We will also prove later that most of the intermediate terrain accessed from this 6-person chair is not intermediate.

7. Conclusion. With the release of the FEIS in 2012, it became evident that BSR, since the scoping process began in 2008, has re-defined intermediate and advanced intermediate terrain. Advanced Intermediate was given the black diamond symbol. This means that now Advanced intermediate terrain includes all the other comparable black diamond runs found in BSR which includes all of the high alpine bowl skiing at BSR that has always been black diamond, advanced and expert terrain. In addition, advanced intermediate was given maximum slope grades which can go as steep as 55 percent (RTC-15) which is a huge change from advanced intermediate in 2008 where it did not exceed 45 percent. Lastly, now intermediate slopes can go as high as 45 percent where in 2008 no intermediate terrain exceeded 40 percent. These new definitions of intermediate and advanced intermediate translate well into what currently exists at Peak 6 where much of the terrain is steeper than BSR and the Forest Service expected. This helps to justify expanding onto Peak 6. But this does not meet the Purpose and Need as scoped in 2008 when these skier ability levels had a completely different definition. As a result, these changes are a key demonstration that the FEIS is arbitrary and capricious on ski terrain classification.

C. THE MAJORITY OF PROPOSED INTERMEDIATE TERRAIN TO BE ACCESSED FROM THE PEAK 6 LIFT IS NOT INTERMEDIATE AND THUS DOES NOT MEET THE PURPOSE AND NEED.

There is already minimal ‘intermediate’ terrain in this final analysis on Peak 6, especially given the loss of the advanced intermediate terrain, and even what remains as intermediate is debatable. The FEIS (2-4) claims that the total acreage of intermediate terrain immediately accessed from the top of the lift on Peak 6 is 114 acres (182 total intermediate acres from top of lift minus 68 acres of intermediate terrain found below treeline equals 114 acres.) Our analysis suggests it is even less than that. We must repeat what we said in subsection B2, which was that at BSR intermediate ski runs never previously exceeded a 40 percent maximum slope grade.

1. The largest parcel of purported Intermediate terrain on Peak 6 contains a 52 percent slope. The Forest Service now states (RTC-16, response to question 1.23) that within Peak 6’s largest block of intermediate terrain to the south of the lift, in our estimation 80-90 acres, the intermediate skier will have to negotiate the upper half of this open bowl which is much steeper (52%) than your average intermediate terrain.

The slope angles measured in Area 2 ranged from 34 percent to 52 percent. The 52 percent was measured for approximately 200 feet above a location 100 feet south of the proposed power line. Below this sample point, the slope measured 40 percent. The four other points taken ranged from 34 percent to 45 percent.

Ibid. These numbers are staggering. An intermediate skier will have to negotiate a 52 percent slope grade for 200 feet, and then a 40 percent slope grade after that. If you compare it to the 2008 BSR intermediate terrain (nothing greater than 40 percent) none of this terrain would be called intermediate; in fact a 52% slope grade would not be classified as advanced intermediate. The Forest Service justifies this by saying, “It is important to note that for open bowl skiing, a maximum slope above the range should not necessarily increase the ability level classification.” This is a subjective, over confident, and perhaps even a dangerous, assumption. It also goes against information received through FOIA (see HYPERLINK "ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/" ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/)which stated that if a trail can only be accessed by a trail with a higher ability level, then the trail would need to match that higher ability level.” So if it is 52 percent above, which is a black advanced rating, then the terrain below, even if it’s not as steep, should also be classified as black. A 52 percent maximum slope grade does not fit the Purpose and Need for Peak 6 of increasing intermediate terrain to help crowding. Terrain classified as Intermediate terrain at BSR has never been on a slope this steep. This is not an intermediate ski run and does not fit the purpose and need.

2. The primary intermediate run from the top of the lift is not intermediate terrain. Please refer to Figure 6 on the FEIS and RTC-15 for this discussion. In RTC, it is referred to as Area 4. This is the primary parcel of intermediate terrain directly underneath the lift. It does not meet the 2008 standards of intermediate terrain. This run is far steeper than any intermediate run at BSR. According to the RTC-15, it has “has an average slope of approximately 39 percent and maximum slope of 46.” Even halfway down this run, it is still steep at 43 percent. An average of 39 percent is much steeper than the current average of BSR intermediate runs which fall into the mid-20 percent range. The FEIS did not release the total acres for this run, but we estimate it to be 20-25 acres. This run is clearly not comparable to an intermediate groomed run at BSR.

3. Four more intermediate slopes on Peak 6 exceed 40 percent. More concrete evidence on the substantial lack of intermediate terrain accessed from the top of the Peak 6 lift can be found at the FOIA link again: ( HYPERLINK "ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail

%20Specifications%20-%20Alternative%202.pdf" ftp://ftp2.fs.fed.us/incoming/r2/whiteriver/Peak6_FOIA/Recreation/9414_BSR%20Trail%20Specifications%20-%20Alternative%202.pdfFind on this spreadsheet the runs listed for Peak 6 and look at the maximum slope measurements for 4 ‘intermediate’ runs which are all above treeline and all exceed 44 percent – 6a-1u, 6a-2u, 6a-4u and 6a-5u. (There is no accompanying map for these runs in the FEIS.) With this FOIA document, we are given the acres of these runs. These four runs add up to 72.9 acres of so-called intermediate terrain accessed from the top of the lift where the maximum slope ranges from 44-48 percent and their average slope grade ranges from 29-40 percent—which should exclude them as true intermediate runs. At BSR, existing intermediate runs are at odds with these Peak 6 numbers. The average slope grades on intermediate runs at BSR are mainly between 17-25%. But on those four above treeline runs on Peak 6, the average slope grades were much higher than the rest of BSR – in the 30-35 percent range, with 6a-5u averaging 40 percent. Also in contrast to the rest of BSR, the maximum slope ranges of those runs on Peak 6 ranged from 44-48 percent. All of these runs should be classified as advanced intermediate. See FEIS 1-12. Currently at BSR there is only one intermediate run that exceeds 40 percent and the other existing intermediate runs are mostly in the mid-30 percent range for maximum slope grade percentage. On those four slopes of Peak 6, the maximum and the average slope grades are much steeper and thus the entire run is much steeper. All of these runs fall at the steeper end of Advanced Intermediate (2008) terrain as well. But unlike the advanced intermediate runs in 2008, which were all groomed, grooming is not proposed for Peak 6. These four runs on Peak 6 which are purported to be intermediate in difficulty, are not in fact intermediate and should not be rated as such. The FEIS and BSR could manipulate their skier ability levels again and call this area ‘advanced intermediate’ based on their slope grades in 2008, but this, like every other past advanced intermediate run, would then be switched to black diamond or advanced. The demand for Intermediate terrain is greater than advanced intermediate. “The majority of BSR’s market is Intermediate ability level skiers.” (FEIS 3-41). This is true for ski resorts across the U.S. where the largest market share of skiers is beginner and intermediate. One only has to get the Epic Mix numbers for the popular Colorado Chair, the Beaver Run Chair, or the Independence Chair, which all serve classic intermediate terrain, to prove this is true. In contrast, Falcon Chair, which used to offer the majority of the advanced intermediate terrain, is never as busy. There are 235 acres of terrain accessed from the top of the lift and only 114 acres of purported intermediate terrain accessed from the Peak 6 lift, and with the above loss of 70 acres, we are now down to only 42 acres of intermediate terrain from a six person lift. In other words, only 17 percent of the terrain from the top of the lift is intermediate! We do not know the acreage of the aforementioned 52 percent slope or the primary run under the lift since the FEIS did not give the acreage, but that, too, would detract from the 42 acres left of true intermediate terrain. Regardless, 42 acres of intermediate terrain is a miniscule portion of terrain for a 6-person chair that is intended to help give intermediate skiers room to spread out throughout the BSR footprint.

4. Conclusion. Peak 6 is not at all comparable to the rest of the intermediate terrain at BSR. Intermediate slopes at BSR with one exception, have never exceeded a maximum slope grade of 40 percent and have always been groomed and had snowmaking. With only 17 percent or 42 questionable acres left of intermediate terrain to be accessed from the top of the 6 person lift, we believe this is not enough acres to effectively help reduce crowding and disperse intermediate skiers throughout BSR or within the Peak 6 pod. The purpose and need would once again, not be met.

D. THE APPROVED PROJECT WOULD NOT MEET THE PURPOSE AND NEED FOR

REDUCING LIFT WAIT TIMES.

Trail densities, i. e., crowding occur on peak days, on average days during key egress periods, and

on new snow days in lift served, off-piste terrain. FEIS at 1-5, 3-55. The FEIS also includes wait

times as a component of the overall guest experience:

Parameters used to measure the quality of guest experience include peak day visitation,

lift-line wait times, and skier densities on trails.

Id. at 1-5.

Thus unsurprisingly, part of the purpose and need is to achieve a reduction in lift wait times. Id. at

1-6.

The wait times for lifts in the comparison pods, under existing conditions on design days, are not all

that high, as all except one are 10 minutes or less (FEIS at 3-38, 3-39), or 5-15 minutes (id. at 3-36).

While guests may not like waiting in line, these wait times are not unreasonable for high-use days at

a major ski resort.

In any case, analysis of lift wait times under the approved action (alternative 2) shows there would

be no decreases on design days for 6 of 11 lifts. Id. at 3- 73, 3-74. The other five lifts would have

slight decreases, except for Beaver Run Superchair, which would see a decrease from 10 to 5

minutes. Ibid. However, on days with 16,000 or more skiers, i. e., when crowding will occur,

It is assumed in the analysis that on days that exceed approximately 16,000 visitors,

guests would not experience a noticeable change from the existing conditions.

Id. at 3-72 and RTC-20.

On peak days, when BSR is the most crowded, current lift wait times are as long as 25 minutes. Id.

at 3-36. However, under the approved alternative, there would be no decrease at all on peak days.

Id. at 3-73, 3-74. In other words, the approved alternative would not provide any relief from long

lift wait times when such relief is most needed, and only minimal relief at times when it is pretty

strongly needed. And with two percent annual growth expected (id. at 3- 71), lift waiting times

would likely get worse over time.

At BSR, lift-line length is consistently listed as an important factor in guest satisfaction

(BSR customer satisfaction surveys conducted between the 2002/03 and 2009/10

seasons indicate consistently low scores for, among other things, “Lift Waits” and

“Trail Crowding.”).

Id. at 3-74. Thus with implementation of the approved alternative, many guests would still continue

to have a poorer than desired experience on peak and design days, and the approved would not

achieve the stated purpose and need.

Trail egress densities would improve on all but two of nine trails, but would remain at or above

reference density on all but one of these seven trails. Compare FEIS Table 3B-7 at 3-49 with Table

3B-19 at 3-80. And on the other two trails, current egress density is very low and well below

reference density, but would greatly increase and considerably exceed the reference density under

the approved alternative. Ibid.

The ROD acknowledges the concern with long lift lines and increased trail densities as daily

visitation rises, and states:

A visitation management measure is incorporated as a component of my decision to

develop strategies to manage daily visitation levels and preserve a positive experience

at BSR, and to the extent BSR can control, within the Town.

ROD at 11. However, the referenced measure only requires BSR and the Forest Service to meet

twice per year to “discuss means and methods of managing peak skier visitation”. Id. at 9. In other

words, there will be absolutely no requirement that BSR take any steps to limit use on peak days or

at any other times.

Reduction in lift wait times for intermediate skiers could likely be better achieved via upgrade of

existing lifts. The Forest Service admits this:

Previously-approved lift projects could meet the Purpose and Need statement that

pertains to lift line wait times across the mountain.

FEIS at RTC-22; see also id. at 3-97.

An upgrade of 6-Chair has been approved by not implemented. FEIS at A-2. This would increase

the uphill transportation from 1200 to 1600-2400 people per hour. Ibid. A new gondola and upgrade

of A-Lift on Peak 9 were previously approved. Id. at A-3. The latter would more than double the

uphill capacity of A-Lift. Ibid. The C-Chair could also be upgraded. See FEIS at 2-13. Notably,

both A- and C-Chairs serve intermediate terrain.

E. COMPARATIVE DATA IN CHAPTER 3 IS LIKE APPLES TO ORANGES.

We’ve just proven that with the data given, Peak 6 would not help to reduce lift wait times. But we

must also point out that much of these studies just aren’t applicable.

The problem is that the terrain and lifts existing at BSR that the FEIS chose to use in the Chapter 3

studies are true intermediate, below treeline, groomed, graded, and man-made snow-covered runs.

But Peak 6 is not at all similar terrain. It will not be groomed, it doesn’t have snowmaking, and

most of the terrain is now proven to be advanced. In addition, the comparison data should have

included the Independence Chair since the only way to access Peak 6 is via this already crowded

intermediate base area lift and this will in turn, add to crowded runs and longer lift wait times on

this popular chair.

The comparative data done in Chapter 3 is not at all adequate since Peak 6 terrain is nothing similar

to the lifts and terrain used in that analysis. To show a true comparison similar terrain and lifts

should have been compared, such as the Falcon Chair, E Chair, Super Connect, 6 chair and the T-

Bar which was not done because those lifts service expert terrain.

IV. APPROVAL OF THE PROPOSED ACTION VIOLATES FOREST PLAN DIRECTION

ON SCENERY. Part of the Desired Condition for management area 8.25, existing and potential

ski areas is:

Reasonable efforts are made to limit the visibility of structures, ski lifts, roads, utilities,

buildings, signs, and other man-made facilities by locating them behind landform

features or by screening them behind existing vegetation. Facilities are architecturally

designed to blend and harmonize with the national forest setting as seen from key

viewpoints.

Forest Plan at 3-80.

To help meet this desired condition, the Forest Plan has the following guideline:

Facilities are designed with an architectural theme intended to blend facilities to the

natural environment.

Id. at 3-81.

The proposed action includes three components that would be entirely above timberline: the top

terminal of the proposed Peak 6 lift, the patrol/warming hut, and 6200 feet of snowfencing. Since

there is no way to blend such facilities into the terrain, the proposed action would not meet the

above-quoted guideline, nor would it meet the low scenic integrity objective (SIO). FEIS at 3-143.

The SIO would not be met from any of the four critical viewpoints. Id. at 3-147 through 3-148.

Note that this SIO would not be met even with the application of project design criteria. Id. at 3-146

through 3-148.

The Forest Plan states the following regarding the application of guidelines:

A guideline is a preferred or advisable course of action or level of attainment.

Guidelines are designed to achieve desired conditions (goals). Deviation from a

guideline and the reasons for doing so are recorded in a project-level National

Environmental Policy Act (NEPA) document,,,

Forest Plan at 2-1.

In the main body of the FEIS and the ROD, we do not find an explanation of the reasons for why

the Forest Service believes it is appropriate to deviate from Plan guidelines protecting scenery. In

response to a comment on this issue, the Forest Service responded as follows:

No Forest Wide standards exist for scenery resources. Guidelines have been developed

to help direct projects to meet desired goals, and the project design has taken these

goals into account and has designed the projects to minimize impacts to visual resources

where possible. As defined on page 2-1 of the 2002 Forest Plan: “A guideline is a

preferred or advisable course of action or level of attainment. Guidelines are designed

to achieve desired conditions (goals). Deviation from a guideline and the reason for

doing so are recorded in a project level National Environmental Policy Act document; a

forest plan amendment is not required.”

FEIS at RTC-64.

The agency acknowledges its requirement to state why deviations from forest plan guidelines are

approved, but does not do so. The scenery in the project area has already been highly altered by the

ski area and other development. Further degradation is not appropriate or necessary.

V. THE FEIS FAILS TO ADEQUATELY EVALUATE THE LOSS OF BACKCOUNTRY

SKIING. The ROD states the following concerning the loss of backcountry skiing from

implementing the Peak 6 expansion:

I firmly believe the WRNF, and more specific to local interests—the Summit County area, provides an abundant amount of backcountry skiing opportunities. The WRNF

Forest Plan clearly identified 8.25 Management Areas as appropriate for ski area development. The Selected Alternative is within the BSR SUP boundary and Management Area 8.25. I realize this is of little consequence to the people who currently use the Peak 6 terrain within BSR’s SUP boundary for backcountry skiing; nonetheless I am confident we (the WRNF) still provide ample opportunities for this type of recreation.

ROD at 14.

A. THE ABOVE STATEMENT IS FALSE. There are, in fact, minimal opportunities for the

type of backcountry recreation found on Peak 6 in the Upper Blue drainage area or even in Summit

County. There is no other terrain like Peak 6 in the Upper Blue (Farmers corner to Hoosier Pass or

the Breckenridge area). Nowhere else in Breckenridge can you park and hike under two hours and

find terrain like Peak 6, which holds good snow despite the infamous winds, and has less avalanche

danger than most of the remainder of the Ten Mile Range. Much of the other terrain above treeline

near Breckenridge is wind scoured or very steep and thus more susceptible to avalanches.

The Peak 6 runs range between 800-1500 feet in vertical drop which is longer than other above

treeline locations. Breckenridge backcountry skiers and riders are sometimes limited to using only

above treeline terrain for much of the winter. For many winters, the snowpack below treeline, up

until about March, can be “rotten”, or unsupportive and weak which makes the skiing on Peak 6 and

5 that much more valuable. There is also very little terrain below treeline because much of the forest

is too dense and where there are openings, the runs are often short and flat. The below treeline

skiing on Peaks 6 and 5 does provide some terrain (though eventually the forest thickens and skiers

usually skin back up to exit).

B. BACKCOUNTRY TERRAIN OF THE QUALITY FOUND ON PEAK 6 IS NEEDED.

The sport of backcountry skiing is growing. People can’t afford ski resorts anymore and are tired of

the crowds, the costs, and the inconveniences. Backcountry huts are booked throughout the winter.

Trailheads in Breckenridge are more and more crowded in the winter. BSR knows that 20 percent

of their visitors don’t ski at the resort (DEIS at 3-164), and we believe these folks are turning to

non-motorized winter activities more and more. The two Nordic centers in the Breckenridge area

see more visitors every year, in particular for snowshoeing. The Forest Service agrees that ski area

growth in the WRNF is relatively stagnant, and “more recently, the primary recreation growth now

occurs in the non-downhill skiing activities during the winter and in many of the summer

activities.” (WRNF TMP at 3-66).

C. QUALITY BACKCOUNTRY TERRAIN KEEPS DISAPPEARING AS SKI AREAS

EXPAND. In spite of the need for high quality backcountry ski terrain, available terrain keeps

shrinking. In the last 10-15 years, the following ski area expansions have eliminated good

backcountry terrain: Breckenridge (Peaks 7 and 8, and Snow White Bowls); A-Basin (Montezuma

Bowl); Keystone (Independence and Erickson Bowls); and Copper Mountain (Copper Bowl). See

FEIS at 3-103. As a result, it is difficult to find the type of backcountry terrain provided by the Peak

6 area, i. e., terrain that is accessible, has the right steepness, has relatively low avalanche danger,

and has connections to good runs in areas below timberline.

D. THE FEIS REFUSES TO ADDRESS THE CUMULATIVE LOSS OF BACKCOUNTRY

TERRAIN. In response to a request to examine the cumulative loss of quality backcountry terrain,

the agency replied as follows:

The Forest Service determined that conducting a site-specific backcountry terrain

analysis across Summit County was beyond the scope of this analysis and would be

subjective. In addition, the Forest Service did not want to attempt to classify terrain as

comparable to Peak 6 or not, as conditions constantly change. Therefore, the Forest

Service determined to focus the cumulative backcountry terrain analysis to ski area SUP

areas, where data exists and impacts can be quantified.

FEIS at RTC-55 and -56.

A scoping comment asked the Forest Service to consider additional parking for backcountry access

routes to the Peak 6 area, since the existing access would be cut off with addition of the Peak 6 area

to BSR. FEIS at C-6. The Forest Service response was, in relevant part:

Providing a trailhead for backcountry skiers is beyond the scope of this analysis as the

action alternatives are not driving additional backcountry use that would necessitate

trailhead parking.

Ibid. The assertion here is false. The backcountry users who previously visited Peak 6 are unlikely

to stop recreating altogether, and instead will shift their use to other areas.  The impact of this shift

and, ways to mitigate the loss of backcountry terrain on Peak 6 should be examined in the EIS.

Refusing to address the issue does not make it go away. Yet the agency insists that there is an

“abundant amount of backcountry skiing opportunities” (ROD at 14), even though there has been

no analysis beyond BSR’s boundaries. (See FEIS at RTC-55 and -56.). This violates NEPA and its

implementing regulations with regard to cumulative impacts. See 40 CFR 1508.25(a)(2).

In truth, there are many places to go downhill skiing in Summit County, i. e., three large areas and

one medium-sized area, but fewer and fewer places for quality backcountry skiing above timberline.

E. A COMPREHENSIVE STUDY OF THE AVAILABILITY AND ACCESSIBILITY OF

BACKCOUNTRY SKI TERRAIN IS NEEDED. It is time for the Forest Service to conduct an

in-depth winter travel management plan. For the last ten years, winter non-motorized user groups

have made this request within the following planning procedures: the WRNF Forest Plan, WRNF

Travel Management Plan, the Golden Horseshoe Recreation Plan, the Upper Blue Nordic Master

Plan, and most recently in comments regarding the Peak 6 Project. Repeatedly, non-motorized user

groups have asked the Forest Service to inventory all trails and acres for all winter travel uses from

snowmobiling to snowshoeing, Nordic centers to ski resorts, backcountry skiing to cross country

skiing. Without this data, neither the WRNF nor the backcountry skiing community can back up

these subjective statements that there is sufficient terrain for this activity (or not).

The loss of Peak 6 for backcountry skiers is much more significant than the WRNF and this FEIS

seem to realize. It is time for a winter travel management plan that inventories all trails and acreages

used by all winter user groups.

F. BACKCOUNTRY ACCESS GATE LOCATION MUST BE INCLUDED. Figure 5 of the

FEIS – a map of the existing conditions of BSR - includes all locations of backcountry access gates,

implying that this is part of the BSR SUP, but in the RTC, the FEIS claims that the specific location

of the access gate is “beyond the scope of this analysis”. FEIS at RTC-55. We believe that the

gate’s location is entirely within the scope of this analysis since it is still within the BSR SUP

boundary, and at least one new gate would be necessitated by the implementation of Peak 6 Project.

The location of this future gate will dictate what type of backcountry recreational experience will

occur. Thus the location of these gates is important to analyze in the EIS, since this is a major

cumulative and direct effect to backcountry skiing.

A gate located at the top of the Peak 6 lift, similar to the newest gate on Peak 7, would create a

dangerous and unpleasant backcountry skiing experience. A gate from the top of the Peak 6 lift

would give too much easy access for inexperienced skiers to head right into major avalanche terrain

to the north and west. Last winter on Peak 6, this created a dangerous scenario where inexperienced

skiers would exit this high gate and ski avalanche terrain from above while other skiers were below.

A major avalanche occurred on Peak 6 last winter due to this scenario. Many of these skiers last

winter did not carry avalanche safety gear or backcountry gear since it wasn’t considered to be

necessary because one could easily ski back inbounds to the resort.

A gate below treeline is a much more desirable scenario to protect a true backcountry skiing

experience. A lower elevation gate means that the skier would need the necessary gear to climb

higher, and would be more likely to have the avalanche gear and knowledge as well. A lower gate

would also reduce the number of folks entering this environmentally sensitive area.

Both Town of Breckenridge and BOCC (see appendix F) and others all asked for the BC gate to be

included in this analysis, yet this was denied. We believe that the gate’s location should have been

included in the FEIS since it is still within BSR’s SUP, and the issue of how Peak 6 could affect the

backcountry recreation experience is important. This gate must be located far below treeline to

ensure a safe and primitive backcountry experience.

APPEAL CONCLUSION. The Peak 6 Project as approved in the ROD is not in accordance with

law, regulation, management direction, or the stated purpose and need for the project. Thus the

approval of the Project is arbitrary and

capricious, and must be overturned.

REQUEST FOR RELIEF

Appellants ask for the following relief:

1. The Record of Decision for the Peak 6 Expansion must be rescinded.

2. If any expansion or upgrade of BSR terrain and/or facilities is pursued, it must be designed and

operated so as not to cause any adverse impact to lynx or its habitat.

3. The EIS must fully consider at least one alternative that would meet the purpose and need

without installing any new lifts or cutting new runs. A new draft EIS containing an analysis of this

(these) alternative(s) must be issued for public comment if any expansion of the footprint of BSR is

pursued.

4. Any approved project must substantially meet the purpose and need. All black diamond and

expert terrain in the Peak 6 pod must not be part of any expansion.

5. Any approved project must comply with the Forest Plan’s guidelines on scenery.

6. The EIS must contain an analysis of backcountry skiing opportunities in Summit County similar

to that now found on Peak 6, and state where backcountry access gates might be located if BSR is

expanded.

REFERENCES

FWS, 2008. Biological Opinion for Southern Rockies Lynx Amendment (also known as Southern

Rockies Lynx Management Direction). U. S. Fish and Wildlife Service, Colorado Field Office, July

25, 2008.

Mill, Robert Christie, 2012. Resorts Management and Operation. Third Edition, John Wiley and

Sons.

Ruediger, Bill, Jim Claar, Steve Gniadek, Bryon Holt, Lyle Lewis, Steve Mighton, Bob Naney,

Gary Patton, Tony Rinaldi, Joel Trick, Anne Vandehey, Fred Wahl, Nancy Warren, Dick Wenger,

and Al Williamson. 2000. Canada Lynx Conservation Assessment and Strategy. USDA Forest

Service, USDI Fish and Wildlife Service, USDI Bureau of Land Management, and USDI National

Park Service. Missoula, MT.

See also Record of Decision for Southern Rockies Lynx Management Direction: “Maintaining connectivity within and

between lynx subpopulations is an important consideration to maintain long-term persistence”. Id. at 4, quoting

Ruediger et al, 2000.

This habitat is ”relatively high quality foraging habitat… with a dense regenerating understory [which] would not be

affected” by mountain pine beetle. See BA at 65.

At FEIS p. 3- 230, 37.86 percent of the LAU is said to be unsuitable.

A careful review of BSR’s pre-2010 trail map reveals that only one of the twenty-two intermediate runs had a slope

exceeding an average grade of 40 percent. That one run, named Sundown, had a slope of 43 percent and only for a very

short distance. In fact, many intermediate runs were in the 25-35% range. See section III B below for more detail.

In Davis, the Department of Transportation’s stated purpose was in fact not so narrow. The court simply used such an

example in dicta to show an unreasonably narrow purpose statement. 302 F.3d at 1119.

Our calculations show that for those other 71 days, the average daily skier numbers are only 9183 skiers per day .

Here’s how we came up with that number: Out of the 1.6 million visitors in 2009/10, 1.2 million (75 percent) come

during the core season of 102 days. (FEIS 3-30). We know that there are 8 peak days of 18,500 (and higher) which

adds up to 148,000 skier visits. (FEIS at 3-31 ROD at 11 .)

We also know that 24 percent of the Core Season (25 days) have 16,000 visitors, (FEIS 3-30), 25 x 16,000 = 400,000.

Peak Days plus Design Days (148,000 plus 400,000) equals 548,000 skier visits in the Core Season on peak or design

days (31 days total). So non-peak and non-design days (71 days) there are 652,000 skier visits at BSR. This comes

out to an average of 9183 skiers a day for 70 percent of the Core Season.

This information was obtained via accessing the web pages for these ski areas.

Design days are for 16,000 visitors, currently experienced on about 24 percent of the core season. FEIS at 3-30.

The 6200 feet is the sum of the four proposed snowfence installations described at FEIS p. 3-144.

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