Symbiosis or Antagonism? The Relationship Between the Forest Service and the Ski Industry When Developing Forest Lands Since 1986

Introduction

Many ski resorts in America are constructed atop national forests which, are under the jurisdiction of the Forest Service. The construction and maintenance of a ski resort within such forests raises questions of habitat fragmentation, water use, and greenhouse gas pollution, among other environmental concerns. Accordingly, ski resorts must obtain permits from the Forest Service to ensure that environmental concerns of their operations are addressed. In the past few decades, climate change and environmental sustainability have increasingly arisen at the forefront of principles guiding public policy decision calculus and legislation in response to criticism by environmentalists. How have the United States Forest Service permit-issue processes evolved over time to address such concerns?

 The History of the US Forest Service’s Land Permits

  To answer this question, we must first explore the history of the Forest Service’s permit issuance process, which requires an understanding of the Forest Service more broadly. The National Forests were established under the Transfer Act of 1905, which transferred forest reserves authorized in the 1897 Organic Act from the jurisdiction of the Department of the Interior to the Department of Agriculture. The Organic Act intended to protect the forests with the explicit intention of protecting water and timber supply in the face of public pressure to utilize forest reserves for mineral exploration. In creating the Forest Service, the Transfer Act reaffirmed this commitment by permitting all uses of forests delineated in the Organic Act so long as they were not destructive to the forests and added the responsibility of protecting the forests from fires. The first chief of the Department of Agriculture’s Forest Service, Gifford Pinchot, focused on one use of the forests in particular- productive use. As James Briggs describes in his article, this organizational philosophy postulated that “…all forest resources were for use, subject only to sustainability. The land was to be put to its most productive use and not to be devoted to the temporary benefit of individuals or companies.” Any Forest Service land to be utilized for purposes apart from commercial timber sales, forage grazing, or occupancy was considered a “special use,” which required obtaining a permit. Throughout the early 20th century, the Forest Service passively managed its lands, but the demands of a post-world-war two economy necessitated an adoption of a multiple-use philosophy. A multiple-use philosophy recognizes that the forests have various purposes and can be managed to utilize their productive and recreational features. The Multiple-Use Sustained Yield Act of 1960 formally encoded a multiple-use philosophy into Forest Service policy and expanded the purposes of the Forest Service. As identified by Wayne McKinzie in his 1993 article, this act necessitated that the Forest Service manage their forests for “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”

      

Still, under this policy, the developments of ski resorts were considered a special use, which created legal questions about granting permits. The Forest Service possessed the authority to issue permits for the recreational use of land for up to eighty acres, but the acreage of most ski resorts exceeded this. To circumvent this, the Forest Service fashioned a dual-permit system which issued a developer two permits; one that covered the eighty or less acres of forest land where the most exhaustive development would occur, and a second permit that covered any additional acreage which had to be renewed each year. The second permit, known as an annual permit, had no statutory basis, meaning that the Department of Agriculture’s Forest Service regulations did not provide for such permits. The source of authority for the annual permits was their mention in the Forest Service Manual, which identified a broad schema for their usage.

        This dual-permit system’s legality was challenged in court and was deemed as cumbersome by developers. Accordingly, the Forest Service gained the specific authority to grant permits for ski resorts with the 1986 passage of the National Forest Ski Area Permit Act as congress sought to more efficiently uphold the multiple-use land policy and support ski developers. This act enabled the Forest Service to issue permits with a maximum term of forty years and provided the Forest Service to either renew or cancel such permits after their granted term. The Forest Service can deny proposals, according to the Forest Service Manual, that are “inconsistent with Forest land and resource management plans, are in conflict with other forest management objectives, or applicable Federal statues or regulations, or can reasonably be accommodated on non-Forest Service system lands.” Assuming none of these conditions are met, and the Forest Service approves, the proposal must then undergo an additional review of its master plan, operating plan, and engineering design. Then it must pass a site-specific study and demonstrate compliance with pertinent federal environmental regulations, most notably those necessitated by the 1970 National Environmental Policy Act. In particular, the Forest Service faced targeted pressure from the environmental movement that engendered the passage of NEPA and had already begun to modify its management plans accordingly. However, in 1973 the Forest Service implemented more specified multiple-use plans after admitting their shortcomings in upholding NEPA’S requirements.

Considering that the denial of use stipulations outlined in the Forest Service Manual are so broad, they provide Forest Service decision-makers a large amount of discretion that has increasingly been deferred to environmental interests since the NFSAPA provided no instruction on how to balance environmental concerns with recreational demand. This lack of explicit guidance, combined with the Forest Service’s eager acceptance of NEPA’s requirements, has placed a disproportionate emphasis on the NEPA’S Environmental Impact Statement evaluation (EIS) in the permit decision-making process. Wayne McKinzie describes in his 1993 article that the EIS has “…in large part replaced independent evaluation of a ski area proposal under the guidelines of the Forest Service Manual.” The permit application process often loses its momentum in this step, and the results of an EIS often directly influence the decision of a permit issuance. The EIS process itself has received criticism, as it is often time and money intensive, necessitates many drafts, and often results in an appeal. In addition to the NEPA, the standards imposed by legislation such as the Clean Water Act and Endangered Species Act have raised the environmental prerequisites necessary for the Forest Service to approve a permit.

         Moreover, until 1992, Forest Service decision-makers were advised to approve permits falling under the NSFAPA for “conforming uses” delineated by the forest plan for the area of land applied for. These conforming uses entailed those specifically identified by the forest plan but also uses that were not specifically accounted for yet were nonetheless compatible with other uses and did not expressly violate the forest plan. Then, in 1992, the Forest Service Manual was revised, and its guidelines no longer employed the language of “approve” but instead utilized “deny” and devoted an entire subsection to “Denial of Use” for permit approvals. Furthermore, the accompanying section on “Authorization of Use” did not provide as clear of guidance as to when to approve a permit application as its earlier predecessors. Thus, the Forest Service guidelines became more conservative as far as approvals and had a textual bias to deny permit applications.

          Therefore, the NFSAPA is considered to be unsuccessful in meeting its intended goal of supporting ski development and upholding the Forest Service’s multiple-use policy. However, it has since been modified to address some of its criticisms. The NFSAPA only granted the Forest Service the ability to grant permits for the activities of nordic and alpine skiing exclusively, and the entirety of ski resort operations are far more broad than that category. In 2011, the NFSAPA was amended by congress to allow further recreational uses of Forest Service lands including ziplines and mountain biking with the passage of the Ski Area Recreational Opportunity Enhancement Act.

            

Concluding Thoughts

The process of obtaining a permit to utilize forest lands and the framework with which the Forest Service utilizes to approve such permits for the development of a ski resort has thus evolved drastically across the span of a few decades. Beginning with a productive land-use philosophy that loosely sought to use the land for the collective good so long as it was sustainable with a non-specified special-use permit process, the Forest Service transitioned into a multiple-use philosophy that desired to capitalize on all potential uses of the land and continued the unspecified special-use permit under the dual-permit system. Within the dual permit system, the Forest Service was utilizing a confusing annual second permit which had no statutory basis and therefore no basis in official Department of Agriculture Forest Service regulations. The Forest Service then obtained the specific authority to grant permits for the specific purpose of skiing in line with its multiple-use philosophy, and with specific authority came specific regulation that has made the Forest Service markedly more conservative in approving permit applications. The permit issuance process of the past did not place the same weight of EIS evaluations on their final decisions, nor did those making such decisions feel compelled to utilize their discretion provided by broad guidelines in the interests of environmental conservation provoked by a newfound public awareness of the environment. All in all, it has become much more challenging to obtain a permit from the Forest Service to develop land for a ski resort, which has been reflected in ski industry trends. As Greg Peters writing for the National Forest Foundation in 2014, identifies, 82 ski resorts opened from the years of 1940 to 1960, 47 resorts opened in the 1970s, and 23 opened in the 1980s. However, less than two dozen ski resorts have opened up for business in the last two decades. In other words, the ski industry is stagnating. To rejuvenate the growth of the ski industry, the permit issuance process must be revisited to provide more explicit guidance as to how to balance recreational demand and environmental concern, as the current reliance on the 1970 NEPA procedure has not encouraged a symbiotic relationship between the Forest Service and the ski industry.

             In theory, the relationship between the ski industry and the Forest Service should be symbiotic: the ski industry seeks to develop land for recreation which upholds the multiple-use policy that has been long adopted by the Forest Service. However, the permit issuance process that has emerged out of several decades of environmental regulation and legal specification has created a sense of conservatism when approving land permits for ski resorts, thus rendering the relationship antagonistic.

Thank you to all those who assisted with the completion of this project and those who gave their permission to use their work.

Works Cited:

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