Nov 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1473. Appealed from the U.S. District Court for the District of Colorado. Plaintiffs-Appellants Ark Initiative, et al appeal from the district court's judgment in favor of the Defendants-Appellees, the U.S. Forest Service and its Chief. The district court upheld the Defendants' acceptance of the 2003 Master Development Plan (MDP), as well as a National Environmental Policy Act (NEPA) analysis, and decisions concerning the 2006 Snowmass Ski Improvements Project (Improvements Project). On appeal, Plaintiffs argue that the Defendants violated NEPA by approving the project without examining certain cumulative effects -- namely, effects on water resources, endangered fish, forest habitats, and "other resources." The Defendants counter that Plaintiffs have failed to exhaust these claims, given a significantly different argument on appeal, but that, in any event, NEPA does not require a Federal agency to examine the cumulative effects of its proposed action with those of an unrelated proposal where the proposed action will not affect the resource concerns pressed by the Plaintiffs. The Appeals Court affirmed the district court decision "based upon a failure to exhaust."
The Appeals Court said, "In order to exhaust administrative remedies, claims cannot be 'only vaguely and cryptically referred to, if at all, during the administrative appeal.' See Kleissler v. U.S. Forest Service, 183 F.3d 196, 203 (3d Cir. 1999). In fact, '[c]laims not properly raised before an agency are waived, unless the problems underlying the claim are "obvious," or otherwise brought to the agency's attention.' See Forest Guardians, 495 F.3d at 1170. In their administrative appeal, Plaintiffs exhausted the water depletion issue, but not the other issues presented here, specifically: 'impacts to wildlife . . . air quality, water quality, litter, solid waste generation, visual quality, and so on.'" Finally the Appeals Court said, "Because the issues on appeal either have not been properly exhausted before the agency or preserved before the district court, the district court's judgment is affirmed."
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