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Home My WebLink About2007 ltr frm Perkins Cole 022307 CCJ.lltMc~ Ole Robert A, Maynard PHONE: (208) 343-3434 FAX: (208) 343-3232 EMAIL: RMaynard@perkinscoie.com 251 East Front Street, Suite 400 Boise, ID 83702-7310 PHONE: 208,343,3434 FAX: 208,343,3232 www.perkinscoie.com February 23, 2007 ~ ~F~ I;-~r;~o~ II Ii SENT VIA U.S. MAIL AND EMAIL By----_'________i -....~....- ._..'h....._ ~......_.".,. ~,..._..J Marianne Dugan 259 E 5th Avenue Suite 200-D Eugene, OR 97401 Chris Winter Crag Law Center 917 S.W. Oak Street Suite 417 Portland, OR 97205 Re: February 9, 2007 Notice Letter Matter No. 57718-1 Dear Counsel: I am writing in response to your notice letter dated February 9, 2007 ("Letter") to explain why Mount Ashland Association ("MAA") believes that Sierra Club and Oregon Natural Resources Council Fund (collectively, "ONRC") have no basis to pursue the Clean Water Act litigation outlined in the Letter. Your argument in the Letter appears to be as follows: (1) Sections 40l(a) and 404 of the Clean Water Act, 33 U.S.c. ~~ 134l(a) and 1344, require that the State of Oregon certify that discharges from a federally authorized project in Oregon will meet water quality requirements; (2) MAA's work to implement the Mount Ashland Ski Area ("Ski Area") expansion project requires federal authorization; (3) the U. S. Forest Service ("Forest Service") has already provided MAA with the full federal authorization needed to implement the Ski Area expansion project by issuing its September 13,2004 Record of Decision regarding the expansion project ("ROD"); (4) MAA does not have a certification from the State of Oregon; so (5) the Forest Service ROD is unlawful. 91004-1200/LEGALI3031374,( ANCHORAGE. BEIJING. BEllEVUE ' BOISE, CHICAGO. DENVER, LOS ANGELES MENLO PARK. OLYMPIA, PHOENIX. PORTLAND. SAN FRANCISCO, SEATTLE, WASHINGTON, D,C. Perkins (oie LLP and Affiliates Marianne Dugan Chris Winter February 23, 2007 Page 2 Without entering into a full discussion of the issues raised, MAA would like to point out that your threatened claim is fatally defective in at least two fundamental ways. First, premise (3) above is incorrect and the threatened claim has no basis because the 2004 ROD is not a permit or license that, by itself, provides MAA with authorization to proceed with expansion activities on the ground that may be subject to Clean Water Act permit and section 40 I certification requirements. Instead, the ROD provides general, conditional approval of the MAA expansion project, with some modifications and extensive mitigation requirements to protect waters of the United States and other resources. See 2004 ROD with Attachments and Opinion and Order in Oregon Natural Resources Council Fund et al. v. Linda Goodman et al., Civil No. 05-3004-PA (Panner, J., February 9, 2007) ("Opinion"). In fact, the ROD explicitly stated that MAA would need further Forest Service and other applicable agency authorizations before proceeding with any expansion project construction ground-disturbing activity. ROD, pp. 45-46. The ROD provided: An operating plan is required and is updated annually prior to operations, and the operating plan includes authorization and scheduling of development activities.... Actual construction will not occur until the Forest Supervisor or delegated Responsible Official approves the operating plan. . .. State and local agencies have regulatory responsibilities for many activities and actions being authorized; these will be finalized during the design, construction, and operation phases of actual expansion. Licensed professionals are required to prepare the construction drawings for facilities, utilities, structures, parking areas, etc. These proposals will then be reviewed by the appropriate state or local agency departments of environmental quality, planning, building, or health. Approval by these agencies is a condition of the S[pecial] U[se] P[ermit] issued by the Forest Service. In summary, the ROD does not constitute final approval for MAA to begin Ski Area expansion project construction. Instead, the ROD foresees that ifthere will be work involving discharges into waters ofthe United States that are subject to Clean Water Act permit requirements, MAA will need to obtain further advance federal authorization and State certification for that work. In fact, in the coming weeks MAA intends to seek and obtain certification from the State of Oregon and a dredge and fill permit authorization under Section 404 of the Clean Water Act 91 004-1 200/LEGAL 13031374,1 Marianne Dugan Chris Winter February 23, 2007 Page 3 from the U.S. Army Corps of Engineers for work that may involve limited wetlands disturbance. MAA will proceed with expansion project activities that are subject to Clean Water Act permit and certification requirements only after review by the agencies and receiving any such authorizations that are needed. As recognized in your September 6, 2006 letter regarding alleged potential prospective Clean Water Act violations and reflected in our communications since, MAA has not yet proceeded with any expansion project construction work that may require Clean Water Act permit approval and certification. Instead, MAA has deferred commencement of such activities pending issuance of the ONRC v. Goodman Opinion as well as until such time as any needed additional authorizations are obtained. Two conclusions flow from these facts. First, contrary to your argument, the 2004 ROD provides no basis for a Clean Water Act claim. Second, neither the United States nor MAA has in any way otherwise violated the Clean Water Act. Your Letter constitutes nothing more than an entirely unnecessary warning that the United States and MAA should comply with the law when the appropriate time comes. The second fundamental flaw in your threatened claim is that it is barred by claim preclusion. Sierra Club and Oregon Natural Resources Council Fund filed a very similar action--the above referenced ONRC v. Goodman lawsuit. In that lawsuit, ONRC and other plaintiffs sought to establish that the Forest Service wrongfully approved the Ski Area expansion project in the 2004 ROD. Opinion, p. 2. In ONRC v. Goodman, ONRC focused on the National Environmental Policy Act of 1969, 42 U.S.C. ~ 4321-4370f("NEPA") and the National Forest Management Act, 16 U.S.C. ~~ 1600 et seq. ("NFMA"). However, the substance of the ONRC allegations and the aims in ONRC v. Goodman clearly encompassed those in the threatened action-a challenge against the 2004 ROD based upon alleged erosion and sediment impacts on water quality. Cf Complaint and Opinion in ONRC v. Goodman to Letter. On February 9,2007, the District Court granted plenary summary judgment to the United States and MAA and entered a Judgment in their favor. The Opinion was not lightly issued. Rather, after several months of consideration, the District Court issued a 36-page decision that examined the administrative record and the merits of the ONRC arguments in detail, including their arguments regarding erosion and sedimentation issues. See e.g. Opinion, pp. 30-35. Your Letter is dated the same day that the District Court issued its Opinion and Judgment. Although you now frame ONRC's threatened action in the form of a claim under the Clean Water Act instead of under NEP A and NFMA, the substance of the threatened action is indistinguishable. Moreover, you do not even attempt to demonstrate that ONRC could not have asserted their Clean Water Act claim in ONRC v. Goodman rather than holding it back until the District Court issued its Judgment. In these circumstances, res judicata principles apply and ONRC will be barred from pursuing their purportedly new claim. 9 1 004-1 200/LEGAL 13031374.1 Marianne Dugan Chris Winter February 23, 2007 Page 4 In closing, MAA requests that Sierra Club and Oregon Natural Resources Council Fund refrain from filing a legal action that has no basis and is barred by res judicata principles. Very truly yours, f4t1Mf (J, mlurtr.-J Robert A. Maynard cc: Bill Little, MAA \a Martha Bennett, City of Ashland Linda Duffy, Forest Service Steve Odell, AUSA 910Q4-1200/LEGAL 13031374,1