Petition For Review of Agency Action, Civil No. 2:23-cv-00893

Case 2:23-cv-00893-DBB Document 2 Filed 12/11/23 PageID.
2 Page 1 of 62
Megan J. Houdeshel (#12429)

Ashley M. Walker (#15762)
DORSEY & WHITNEY LLP
111 S. Main Street, Suite 2100
Salt Lake City, UT 84111
Telephone: (801) 933-7360
Facsimile: (801) 933-7373
[email protected]
[email protected]
Michael Drysdale (MN Bar #0257606)

DORSEY & WHITNEY LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Telephone: (612) 340-2600
Facsimile: (612) 340-2868
[email protected]
Subject to admission pro hac vice
Shawn E. Draney (#4026)

Scott H. Martin (#7750)
Dani N. Cepernich (#14051)
SNOW CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Post Office Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs Salt Lake City Corporation,

Sandy City Corporation, and Metropolitan Water District of Salt Lake & Sandy
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SALT LAKE CITY CORPORATION; PETITION FOR REVIEW OF AGENCY

SANDY CITY CORPORATION; and ACTION
METROPOLITAN WATER DISTRICT OF
SALT LAKE & SANDY, Civil No. 2:23-cv-00893
Plaintiffs, Judge David Barlow

Case 2:23-cv-00893-DBB Document 2 Filed 12/11/23 PageID.3 Page 2 of 62
vs.
GLORIA M. SHEPHERD; IVAN

MARRERO; FEDERAL HIGHWAY
ADMINISTRATION; MARY
FARNSWORTH; UNITED STATES
FOREST SERVICE; CARLOS
BRACERAS; TERIANNE S. NEWELL;
UTAH DEPARTMENT OF
TRANSPORTATION,
Defendants.
INTRODUCTION
1. This case involves the Federal Defendants’ (as identified below in Paragraphs 21–
28) failure to address the water resource and other environmental impacts of several proposed
transportation improvements approved for implementation in Little Cottonwood Canyon, Utah,
collectively named by the Federal Defendants as the “S.R. 210: Wasatch Boulevard through Town
of Alta Project.”
2. At issue are the Federal Defendants’ uninformed and unlawful approvals of a
system of enhanced bus service and tolling on State Road 210 (“S.R. 210”); physical
improvements on S.R. 210, including road widening, trailhead improvements, avalanche
mitigation systems, and parking changes; and construction of a gondola and supporting facilities
to provide a non-road means of accessing the Alta and Snowbird ski resorts at the upper end of
Little Cottonwood Canyon (collectively, the “Project”).
3. At certain times during the winter, S.R. 210 becomes a bottleneck. S.R. 210 backs
up when there is too much traffic in and near Little Cottonwood Canyon going up to the ski resorts
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and trailheads along the way, and/or when travel is disrupted by avalanche risk, avalanche control,
and avalanches. Occasional traffic issues also arise at other times of the year.
4. The Federal Defendants describe the purpose of the project (“Project Purpose”) as
“improve[ing] the transportation-related commuter, recreation, and tourism experiences for all
users of S.R. 210 through transportation improvements that improve roadway safety, reliability,
and mobility on S.R. 210.” See UTAH, UTAH DEP’T OF TRANSP., FINAL ENVIRONMENTAL IMPACT
STATEMENT AND SECTIONS 4(F)/6(F) EVALUATION FOR LITTLE COTTONWOOD CANYON, S.R. 210:
WASATCH BOULEVARD THROUGH THE TOWN OF ALTA IN COTTONWOOD HEIGHTS, SANDY, AND THE
TOWN OF ALTA, SALT LAKE COUNTY, at 1-7 (Sept. 2022) [hereinafter FEIS].1
5. The Federal Defendants have decided to spend over $1 billion on the Project to
attempt to solve the S.R. 210 transit issues and achieve the Project Purpose. The largest share of
this money (>$730 million) would be spent on the gondola. Collectively, the Project would not
only attempt to debottleneck S.R. 210 during the periods when it presently backs up, but the Project
would also increase overall summer and winter use throughout Little Cottonwood Canyon.
Increased traffic in Little Cottonwood Canyon would have a large array of environmental impacts,
including increased risks to water quality; increased demands on limited water supplies; visual,
noise, and other impacts to wilderness and other protected properties throughout Little Cottonwood
Canyon; increased traffic congestion and accompanying air quality reduction in the roadway
network leading to the base of the canyon; cumulative impacts; and significant economic and
environmental justice effects.
1
The FEIS documents are available at Little Cottonwood Canyon, Final EIS, UTAH DEP’T OF
TRANSP., https://littlecottonwoodeis.udot.utah.gov/final-eis/ (last visited Dec. 8, 2023).
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6. In essence, the Federal Defendants analyzed the S.R. 210 bottleneck and related
transit issues in Little Cottonwood Canyon as if S.R. 210 was a regular road through a nondescript
setting and the proposed improvements were run-of-the mill enhancements to that road. In fact,
S.R. 210 is a narrow passage between federal wilderness areas, and the entirety of Little
Cottonwood Canyon is a critical drinking water source protection area for the Salt Lake
Metropolitan area. S.R. 210 is also interconnected with other local roads and facilities that are
significantly impacted by modifications to S.R. 210. S.R. 210 only accounts for 54% of the traffic
leading to Little Cottonwood Canyon. Notably, the EIS completely disregarded S.R. 209 and in
essence ignored 46% of the traffic impacts the Project will bring. Federal Defendants in some cases
diminished, and in other cases completely ignored, this critical context to the Project, in violation
of the law.
7. This lawsuit challenges two agency actions taken in a Record of Decision (“ROD”)
dated June 29, 2023, and published in the Federal Register on July 14, 2023, following the
preparation of the FEIS. See UTAH, UTAH DEP’T OF TRANSP., RECORD OF DECISION: LITTLE
COTTONWOOD CANYON, S.R. 210: WASATCH BOULEVARD THROUGH THE TOWN OF ALTA IN
COTTONWOOD HEIGHTS, SANDY, AND THE TOWN OF ALTA, SALT LAKE COUNTY (June 2023)
[hereinafter ROD];2 see also Notice of Availability of the Record of Decision for the Little
Cottonwood Canyon Project in Utah and Final Federal Agency Actions, 88 Fed. Reg. 45268 (Jul.
14, 2023). The first is the Federal Defendants’ decision to approve the collection of actions
described as “Enhanced Bus Service Alternative.” The second is the Federal Defendants’ adoption
of “Gondola Alternative B,” which commits the Federal Defendants to implement the gondola.
2
The ROD documents are available at Little Cottonwood Canyon, Record of Decision, UTAH
DEP’T OF TRANSP., https://littlecottonwoodeis.udot.utah.gov/record-of-decision/ (last visited Dec.
8, 2023).
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8. Plaintiffs also further challenge the decision of the Federal Defendant United States
Forest Service (“USFS”) to rely on the FEIS in making future approvals related to the Project.
9. In the FEIS and in issuing the ROD, Federal Defendants made numerous legal and
factual errors. These include:
 The erroneous conclusion that water resources are adequate and/or available for
the increased usage of Little Cottonwood Canyon that the Project will cause;
 The erroneous conclusion that the Project and its impacts pose de minimis risks to
water quality in Little Cottonwood Canyon, which is a critical drinking water
supply source for the Salt Lake Metropolitan area;
 The failure to even evaluate the visual and noise impacts of the Project on the
adjacent Twin Peaks and Lone Peak Wilderness Areas;
 The failure to evaluate, avoid, and mitigate Project impacts to other public
resources in Little Cottonwood Canyon;
 The failure to adequately evaluate the greenhouse gas emissions caused by the
Project or to evaluate in any way the effects of a changing climate on the need for
and operation of the Project;
 The complete disregard for traffic impacts on S.R. 209 and, thereby, the failure to
analyze the effects of the Project on existing and future congestion issues in Sandy
City and neighboring communities directly intertwined with a proposed base
station and parking garage at the mouth of Little Cottonwood Canyon;
 The failure to adequately consider the economic and environmental justice effects
of the Project;
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 The failure to evaluate the indirect and cumulative effects of the Project on nearby
Big Cottonwood Canyon (another drinking water source protection area for the
Salt Lake Metropolitan Area) and other nearby resources outside of Little
Cottonwood Canyon; and,
 The failure to develop Gondola Alternative B in sufficient detail that the Federal
Defendants could rationally select this alternative and other federal agencies could
give required approvals.
10. In finalizing the EIS and issuing the ROD notwithstanding these errors, the Federal
Defendants failed to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq.—our nation’s charter for environmental protection—by failing to sufficiently
analyze impacts of the Project. The impacts of the Project on water quality and quantity, the effects
of climate change on the future need for and operation of the Project, the effects of the Project on
adjacent federal wilderness areas, the impacts of the Project on congestion in and around Sandy
City, the indirect and cumulative impacts of the Project on Big Cottonwood Canyon and other
canyons in the area, and the environmental justice impacts of the Project were not analyzed or
addressed consistent with NEPA. The Federal Defendants’ approval of Gondola Alternative B also
was improper because it lacked details related to the costs, ownership, and operation of the
gondola. Additionally, the analysis of gondola ridership versus driving in the canyon was not
adequately developed sufficient for Federal Defendants to understand whether the gondola fits the
Project Purpose.
11. Defendant USFS also failed to comply with substantive requirements of the
Wilderness Act of 1964, 16 U.S.C. §§ 1131–1136 (the “Wilderness Act”), specifically Section
4(b), by adopting the analysis of Project in the FEIS without considering the impacts to the
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wilderness character of the Twin Peaks and Lone Peak Wilderness Areas and without evaluating
measures to avoid, reduce, or mitigate such impacts.
12. Federal Defendants failed to comply with Section 4(f) of the Transportation Act of
1966, Pub. L. 89-670, 80 Stat. 931 (1966) (codified as amended at 49 U.S.C. § 303 and 23 U.S.C.
§ 138), by failing to avoid and minimize impacts to sensitive public resources, specifically lands
protected as a drinking water source and adjacent wilderness areas affected by the Project.
13. Accordingly, Federal Defendants’ approvals in the ROD violated NEPA, the
Wilderness Act, the Transportation Act of 1966, and the Administrative Procedure Act (“APA”),
5 U.S.C. § 701 et seq.
JURISDICTION AND VENUE
14. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal
question), 1346 (United States as a defendant), 1361 (officers as defendants), 2201 (declaratory
relief), and 2202 (injunctive relief).
15. Plaintiffs’ claims arise under the judicial review provision of the APA, 5 U.S.C.
§§ 701–706.
16. An actual and present controversy exists between the parties within the meaning of
the Declaratory Judgment Act, 28 U.S.C. § 2201.
17. Venue is proper in this judicial district under 28 U.S.C. § 1391 and 5 U.S.C. § 703
because the Project’s affected areas lie entirely within the Central Division of the District of Utah
and most of the acts and omissions giving rise to the Plaintiff’s claims occurred in Salt Lake
County, State of Utah.
PARTIES
18. Plaintiff Salt Lake City Corporation (“SLC”) is a Utah municipality. SLC, acting
by and through its Department of Public Utilities, is responsible for a wide array of public services
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in the Salt Lake Metropolitan area, including but not limited to providing safe drinking water and
water for other uses for more than 365,000 residents, businesses and commerce, institutions, the
State Capitol, and regionally critical facilities, such as the intermountain region’s Level 1 Trauma
Center hospital and the Huntsman Cancer Institute at the University of Utah. SLC is the largest
retail water supplier in the State of Utah, serving water to the eastern portion of the growing
Wasatch Front, including in Salt Lake City and portions of Millcreek City, Holladay City,
Cottonwood Heights City, and other communities in Salt Lake County. See Salt Lake City Public
Utilities, Water Quality, SALT LAKE CITY (last visited Dec. 7, 2023).3 The SLC drinking water
system is comprised of a vast array of water infrastructure, including several water treatment plants
and a large and complex water distribution system. This water infrastructure is designed around,
and reliant on, the high quality of water within the canyon streams of the Central Wasatch
Mountains, including Little Cottonwood Creek. SLC is regulated as a Public Water System
pursuant to the federal and state Safe Drinking Water Acts. SLC also provides wastewater
collection and treatment, stormwater collection and treatment, and flood control in Salt Lake City,
and is regulated pursuant to the federal Clean Water Act and the Utah Water Quality Act. SLC
holds the majority of the water rights in the Central Wasatch Mountains, including in the Little
and Big Cottonwood watersheds, which are put to beneficial use across SLC’s service area in the
Salt Lake Valley in accordance with Utah statutory requirements. SLC also has jurisdictional
authority in the Central Wasatch Mountain watersheds, including in Little Cottonwood Canyon,
to regulate activities to avoid pollution of these critical drinking water sources and to mitigate the
risks of drinking water contamination and adverse public health impacts. SLC has, for the last 120
3
The Salt Lake City sources and service territory map can be accessed by clicking on the “Map
of SLC Drinking Water Sources and Service Area” drop down at
https://www.slc.gov/utilities/water-quality/.
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plus years, proactively conducted watershed protection activities to ensure a reliable water supply
and healthy environment. All development within these mountain watersheds is reliant on water
supply permits obtained from SLC that allow the use of SLC’s water rights. SLC, the Salt Lake
City Mayor, and the Salt Lake City Council have established policies and ordinances that limit the
use of SLC’s water rights from these watersheds so that SLC will continue to have reliable and
clean sources of water to serve its large water service area in the Salt Lake Valley.
19. Plaintiff Sandy City Corporation (“Sandy City”) is a Utah Municipality. Sandy City
is responsible for a wide array of public services in the Sandy metropolitan area, including but not
limited to transportation, traffic enforcement, and public safety to and from Little Cottonwood
Canyon on public roads in Sandy City. In addition, Sandy City, through its Department of Public
Utilities, provides safe drinking water and water for other uses for more than 100,000 residents,
businesses and commerce, institutions, and critical facilities. Sandy City water rights constitute
between 30% and 46% of the Little Cottonwood Creek surface flow, depending on creek flow
rates. At times, Little Cottonwood Creek water meets the majority of Sandy City’s needs. Little
Cottonwood Creek surface water reaches Sandy City homes, business, and public facilities within
a very short time span—at times within 4 to 8 hours—which underscores the need to protect the
Little Cottonwood Creek watershed from pollution so that public health is protected. Sandy City’s
Little Cottonwood Creek water is treated at, and delivered from, the Little Cottonwood Water
Treatment Plant (“LCWTP”). Sandy City is regulated as a Public Water System pursuant to the
federal and state Safe Drinking Water Acts. Sandy City also provides stormwater collection,
treatment, and flood control, and is regulated pursuant to the federal Clean Water Act and the Utah
Water Quality Act. Sandy City has shared source watershed protection jurisdiction over Little
Cottonwood Canyon, to regulate activities to avoid pollution or degradation of these critical
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sources of drinking water. Sandy City supports and relies upon its partners, including SLC and
Metropolitan Water District of Salt Lake & Sandy (“MWDSLS”) for active watershed
management and source protection of Little Cottonwood Canyon.
20. Plaintiff MWDSLS is a Metropolitan Water District, a form of Special District,
governed by Utah Code Title 17B, Chapters 1 and 2a, particularly Title 17B, Chapter 2a, Part 6.
MWDSLS is an independent political subdivision of the State of Utah. MWDSLS provides an on-
demand, supplemental, wholesale, treated water supply to its two member cities, SLC and Sandy
City. On average MWDSLS provides approximately half of the Sandy City water supply, and
approximately one third of the SLC water supply. MWDSLS’s water makes up a significant and
critical portion of the water supply for approximately 450,000 Salt Lake County residents and
supplies redundancy and resiliency to over a million users in the metropolitan area. MWDSLS
built, owns, and operates the LCWTP where it collects, treats, and delivers a wholesale water
supply for SLC and Sandy. The LCWTP is located at the mouth of Little Cottonwood Canyon. It
is the facility where Little Cottonwood water is treated and delivered to the public. Its water
treatment operations are directly affected by the activities, conditions, and water supply of Little
Cottonwood Canyon.
21. Defendant Gloria M. Shepherd is sued in her official capacity as the Executive
Director the Federal Highway Administration (“FHWA”). In this capacity she is responsible for
overseeing all federal highway and street programs.
22. Defendant Ivan Marrero is sued in his official capacity as the Division
Administrator for the Utah Division of the FHWA. In this capacity he is responsible for overseeing
federal highway and road projects within the state of Utah, including the Project at issue here.
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23. Defendant United States FHWA is a Federal agency within the United States
Department of Transportation that is directly responsible for carrying out the Department’s
obligations under statutes and regulations governing federally funded transportation projects,
including compliance with NEPA, the Transportation Act of 1966, and the Wilderness Act.
24. Defendant Mary Farnsworth is sued in her official capacity as the Regional Forester
for the USFS Intermountain Region.
25. Defendant USFS is a federal agency within the United States Department of
Agriculture that is directly responsible for carrying out the Department’s obligations to comply
with NEPA and the Wilderness Act for lands under its jurisdiction, including lands in the Uinta-
Wasatch-Cache National Forest.
26. Defendant Carlos Braceras is sued in his official capacity as the Executive Director
of the Utah Department of Transportation (“UDOT”). In this capacity, he is responsible for
administration, operations, and activities of UDOT.
27. Defendant Terianne S. Newell is sued in her official capacity as Deputy Director of
UDOT. In this capacity, she is responsible for implementing responsibilities delegated by the
FHWA to UDOT with respect to the Project, including signing the ROD that is the subject of this
Petition.
28. Defendant UDOT is a Utah State Agency that has been delegated responsibilities
of the FHWA with respect to the Project, including evaluating whether certain activities are
categorically excluded from the requirements of NEPA and implementation of the NEPA review
process for surface transportation projects within the state of Utah pursuant to 23 U.S.C. §§ 326
and 327 and Utah Code § 72-6-120. Pursuant to Utah Code § 72-1-207, the State of Utah has
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waived its Eleventh Amendment sovereign immunity with respect to this work generally, and the
Project in particular.
LEGAL BACKGROUND
I. The Federal Transportation Project Process
29. The Project is asserted by UDOT and FHWA to be a federally funded highway
project.
30. Federal law imposes extensive procedural requirements on federally funded
highway projects. See generally 23 U.S.C. §§ 101–611.
31. Project proponents must provide the Secretary of Transportation with sufficient
information for the Secretary to evaluate the Project. Id. § 109(a). Federal law also allows relevant
authorities to agree on funding and power sharing, id. § 109(b)–(c); requires proponents and
regulators to assess (among other things) reliability and value during the planning and design
phase, see, e.g., id. § 106(e)–(f); and generally imposes oversight, reporting, and other obligations
on project proponents and participants, see id. § 106(f)–(j); see also, e.g., id. §§ 107, 114, 116
(imposing other requirements on federally funded highway projects).
32. Federal law requires compliance with NEPA before construction of a federal
highway project begins. See generally id. § 139.
33. Federal law also requires that the Secretary of Transportation identify and involve
other stakeholders and develop a coordination plan to ensure compliance for projects for which
NEPA requires an environmental impact statement. Id.
34. Federal statutes additionally permit federal authorities to “assign” (and allows
states to “assume”) “the responsibilities of the Secretary [of Transportation] with respect to one or
more highway projects within the State under [NEPA].” 23 U.S.C. § 327(a)(2)(A).
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35. Such responsibilities may include “all or part of the responsibilities of the Secretary
for environmental review, consultation, or other action required under any Federal environmental
law pertaining to the review or approval of a project.” Id. § 327(a)(2)(B)(ii).
36. If a state assumes the Secretary of Transportation’s responsibilities under NEPA,
federal law requires that the state follow “the same procedural and substantive requirements as
would apply if that responsibility were carried out by the Secretary.” Id. § 327(a)(2)(C).
37. UDOT has ratified a memorandum of understanding with the Department of
Transportation in which UDOT has assumed the Department of Transportation’s responsibilities
under NEPA. See generally Mem. of Understanding Between Fed. Highway Admin. & Utah Dep’t
of Transp. Concerning State of Utah’s Participation in the Surface Transp. Project Delivery
Program Pursuant to 23 U.S.C. 327, Fed. Highway Admin. & Utah Dep’t Transp. (Jan. 17, 2017),
as amended and updated on May 26, 2022.4 Consequently, UDOT is responsible for ensuring that
the Project complies with NEPA, and UDOT is a “federal defendant” for purposes of judicial
review of the Project under the Administrative Procedure Act.
II. The National Environmental Policy Act
38. NEPA establishes a national policy to “encourage productive and enjoyable
harmony between man and his environment” and to “promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the health and welfare of man.”
42 U.S.C. § 4321.
39. Pursuant to NEPA, the White House Council on Environmental Quality (“CEQ”)
oversees other federal agencies’ implementation of NEPA, including by issuing regulations and
other guidance addressing NEPA procedures and prescribing, among other things, what must be
4
https://drive.google.com/file/d/12Jna5-hBJOQIcIqJ4sFLV0_JRSp_LmKF/view (last visited
Dec. 7, 2023).
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included in an environmental impact statement. See NEPA Title II, 42 U.S.C. §§4342–4344;
40 C.F.R. Parts 1500–1508. CEQ’s NEPA regulations, which were first promulgated in 1978 and
have since been updated periodically, are binding on all federal agencies. See 40 C.F.R.
§1500.3(a); see also generally 43 Fed. Reg. 25230 (June 9, 1978). However, many federal
agencies, such as the FHWA, may and have adopted their own NEPA regulations to
“supplement” the CEQ NEPA regulations. See 23 C.F.R. Part 771; see also 40 C.F.R. §1500.6.
40. NEPA aims to achieve these goals by requiring federal agencies to identify and take
a “hard look” at the environmental impacts of their proposed actions and consider a reasonable
range of alternatives before taking, authorizing, or funding “major Federal actions significantly
affecting the quality of the human environment.” See Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 348 (1989) (citing 42 U.S.C. § 4332(C)). Specifically, NEPA and its
regulations require that, when a federal agency plans to undertake, authorize, or fund an action that
will likely “significantly affect[] the quality of the human environment,” it must prepare a detailed
environmental impact statement. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3. The EIS must detail:
(i) the environmental impact of the proposed action, (ii) any adverse
environmental effects which cannot be avoided should the proposal
be implemented, (iii) alternatives to the proposed action, (iv) the
relationship between local short-term uses of man’s environment
and the maintenance and enhancement of long-term productivity,
and (v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
42 U.S.C. § 4332(2)(C); see also 40 C.F.R. Part 1502. It must also discuss “[p]ossible conflicts
between the proposed action and the objectives of Federal, regional, State, Tribal, and local land
use plans, policies and controls for the area concern,” “[m]eans to mitigate adverse environmental
impacts,” and “[n]atural or depletable resource requirements and conservation potential of various
alternatives and mitigation measures.” 40 C.F.R. § 1502.15(a).
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41. The scope of the “environmental effects,” or “environmental consequences,” that
must be evaluated in an EIS includes “changes to the human environment from the proposed action
or alternatives that are reasonably foreseeable,” and the “direct effects,” “indirect effects,” and
“cumulative effects” of the same. See 40 C.F.R. § 1508.1(g). Notwithstanding various temporary
changes in the regulations, the inclusion of indirect and cumulative effects has long been a part of
the CEQ’s NEPA regulations. See 43 Fed. Reg. 25230, 25244 (June 9, 1978) (defining “cumulative
impact” in § 1508.7, and “effects” in § 1508.8 as including “indirect effects, which are caused by
the action and are later in time or farther removed in distances, but are still reasonably foreseeable”
and “may include growth inducing effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and related effects on air and water and other
natural systems”). Likewise, the United States Supreme Court has long held that NEPA requires
taking a “hard look” at all environmental effects, including indirect effects. See Marsh v. Oregon
Nat. Res. Council, 490 U.S. 360, 373–74 (1989); see also Kleppe v. Sierra Club, 427 U.S. 390,
410 (1976) (holding, even before adoption of the 1978 regulations, that NEPA requires
consideration of “cumulative or synergistic environmental impacts[s]”). Further, NEPA
regulations promulgated by FHWA have, since their 1987 inception, included analyses of
cumulative effects as part of NEPA analyses, even during and after regulatory changes made
during the last presidential administration. See 52 Fed. Reg. 32660 (Aug. 28, 1987); 83 Fed. Reg.
54480 (Oct. 29, 2018).
42. “Cumulative effects” are:
effects on the environment that result from the incremental effects

of the action when added to the effects of other past, present, and
reasonably foreseeable actions regardless of what agency (Federal
or non-Federal) or person undertakes such other actions. Cumulative
effects can result from individually minor but collectively
significant actions taking place over a period of time.
15
See 40 C.F.R. § 1508.1(g)(3). In addition, the definition of “effects” includes
ecological . . ., aesthetic, historic, cultural, economic, social, or

health, whether direct, indirect, or cumulative. Effects may also
include those resulting from actions which may have both beneficial
and detrimental effects, even if on balance the agency believes that
the effects will be beneficial.
See 40 C.F.R. § 1508.1(g)(4). Among the various types of indirect and cumulative impacts that
must be considered, “[t]he impact of [greenhouse gas] emissions on climate change is precisely
the kind of [] impacts analysis that NEPA requires agencies to conduct.” Diné Citizens Against
Ruining Our Env't v. Haaland, 59 F.4th 1016, 1035 (10th Cir. 2023) (citation omitted). Relatedly,
“NEPA [also] requires an evaluation of the impact of climate change on a project.” See
AquAlliance v. United States Bureau of Reclamation, 287 F. Supp. 3d 969, 1028 (E.D. Cal. 2018).
43. Prior to and during the development of an EIS, NEPA requires a robust public
engagement, comment, response, and revision process. At the outset, the lead agency for a project
works with the public to determine the scope of the project, alternatives, and the environmental
review by publishing in the Federal Register a Notice of Intent to Prepare an EIS (“NOI”), which
describes the proposed action’s purpose and need, preliminary description, alternatives to be
considered, and expected impacts, and invites public comments on environmental issues. See 40
C.F.R. § 1501.9(d), (e). An agency may “not define the project so narrowly that it foreclose[s] a
reasonable consideration of alternatives.” Davis v. Mineta, 302 F.3d 1104, 1119 (10th Cir. 2002)
(overruled on other grounds by Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276,
1281–82 (10th Cir. 2016)).
44. After public scoping comments, the lead agency prepares a Draft EIS that analyzes
direct, indirect, and cumulative impacts of the proposed action and alternatives. See 40 C.F.R.
§ 1502.9. The agency publishes the Draft EIS in the Federal Register and invites public comment.
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See 40 C.F.R. Part 1503. The agency must consider, respond to, and, as appropriate, revise the
Draft EIS before issuing a Final EIS and ROD. See 40 C.F.R. § 1503.4.
45. NEPA “requires agencies preparing environmental impact statements to consider
and respond to the comments of other agencies,” and while the lead federal agencies need not
agree with those comments, “it is also true that a reviewing court may properly be skeptical as to
whether an EIS’s conclusions have a substantial basis in fact if the responsible agency has
apparently ignored the conflicting views of other agencies having pertinent expertise.” Davis, 302
F.3d at 1123 (citations and internal quotation marks omitted). This concern is heightened when the
commenting agency is also a cooperating agency in the NEPA process.
III. The Wilderness Act
46. The Federal Wilderness Act, specifically Section 4(b), mandates that the wilderness
character of any federally designated wilderness area be preserved and that wilderness areas “shall
be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and
historical use.” See 16 U.S.C § 1133(b).
47. The duty to ensure compliance with Wilderness Act requirements falls upon all
federal agencies and their agents acting in and around wilderness areas, but it is specifically also
the responsibility of the federal agency managing the surface of the wilderness areas—in this case,
the USFS.
48. As part of the impacts analysis under NEPA, the specific impacts to the wilderness
character of affected wilderness areas must be analyzed. See Izaak Walton League of Am. v.
Kimbell, 516 F. Supp. 2d 982, 987–90 (D. Minn. 2007); Greater Yellowstone Coal. v. United States
Forest Serv., 12 F. Supp. 3d 1268, 1275–79 (D. Idaho 2014).
49. The Utah Wilderness Act of 1984, 98 P.L. 428, 98 Stat. 1657, is the federal
legislation by which Congress designated many federal lands in Utah as wilderness areas,
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including the Twin Peaks Wilderness area at issue here, which abuts the UDOT-managed road up
Little Cottonwood Canyon, over which the gondola would run.
50. Section 303 of the Utah Wilderness Act states that “[t]he fact that nonwilderness
activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude
such activities or uses up to the boundary of the wilderness area.” Id. (emphasis added) (“Buffer
Zone Provision”). Notably, the Endangered American Wilderness Act of 1978, Pub. L. 95-237, 92
Stat. 40 (1978), which created the Lone Peak Wilderness Area, does not contain the Buffer Zone
Provision.
51. Many state Wilderness Acts have similar language precluding the establishment of
buffer zones, including Nevada, Washington, and Wyoming. See Nevada Wilderness Protection
Act of 1989, Pub. L. No. 101-195, § 7, 103 Stat. 1784, 1787–88 (1989) (“Congress does not intend
that the designation of wilderness areas in the State of Nevada implies the creation of protective
perimeters or buffer zones around each wilderness area.”); Washington State Wilderness Act of
1984, Pub. L. No. 98-339, § 9, 98 Stat. 299, 305 (1984) (same); Wyoming Wilderness Act of 1984,
Pub. L. No. 98-550, § 504, 98 Stat. 2807, 2813 (1984) (same).
52. Where it applies, the analysis of impact to wilderness areas under NEPA is not
precluded by the inclusion of a Buffer Zone Provision in a state’s Wilderness Act. Indeed, courts
have held that there is a duty under the Wilderness Act to examine the impacts of activities outside
of the boundaries of a wilderness area that may affect the wilderness, and any Buffer Zone
Provision is limited to its express terms. See Izaak Walton League, 516 F. Supp. 2d at 987–90;
Greater Yellowstone Coalition, 12 F. Supp. 3d at 1275–79. As a result, federal agencies analyzing
proposed projects adjacent to wilderness areas must consider the noise and visual impacts, along
18
with other impacts, of the proposals on the wilderness, and make reasoned judgments as to the
extent such impacts can be avoided, reduced, or mitigated.
IV. The Transportation Act of 1966
53. The Transportation Act of 1966 effectuates the Federal Government’s policy that
“special effort should be made to preserve the natural beauty of the countryside and public park
and recreation lands, wildlife and waterfowl refuges and historic sites.” 49 U.S.C. § 303(a).
54. Consequently, Section 4(f) of the Transportation Act of 1966, as amended, provides
that if a transportation program or project “requir[es] the use of publicly owned land of a public
park, recreation area, or wildlife and waterfowl refuge . . . , or land of an historic site” and the
property is “of national, State, or local significance,” the project may only proceed if “there is no
prudent and feasible alternative,” and “the program or project includes all possible planning to
minimize harm to the [property] . . . resulting from the use.” Id. § 303(c).
55. Courts take a broad view of what constitutes Section 4(f)-protected land, in part
due to the Transportation Act’s explicit policy “that special effort should be made to preserve the
natural beauty of the countryside” and other protected properties. Stewart Park & Res. Coal., Inc.
v. Slater, 352 F.3d 545, 555 (2d Cir. 2003).
56. Similarly, courts “broadly” construe “use” under the Transportation Act, see
Honolulutraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1227 (9th Cir. 2014), and regulations
make clear that use may be “constructive” as well as overtly physical, see 23 C.F.R. § 774.17.
57. The most common type of use occurs when “land is permanently incorporated
into a transportation facility.” Id.
58. “Constructive use,” however, occurs when “the transportation project does not
incorporate land from a Section 4(f) property, but the project’s proximity impacts are so severe
19
that the protected activities, features, or attributes that qualify the property for protection under
Section 4(f) are substantially impaired.” See 23 C.F.R. § 774.15(a).
59. The government must evaluate constructive use in light of: (1) “the current
activities, features, or attributes of the property which qualify for protection under Section 4(f) and
which may be sensitive to proximity impacts”; (2) the net “proximity impacts of the proposed
project” accounting for any mitigation; and (3) “[c]onsultation on the foregoing identification and
analysis, with the official(s) with jurisdiction over the Section 4(f) property.” Id. § 774.15(d).
60. Regulations presume constructive use when “[t]he proximity of the proposed
project substantially impairs esthetic features or attributes of a property protected by Section 4(f),
where such features or attributes are considered important contributing elements to the value of
the property,” among other things. Id. § 774.15(e).
61. The government may not “use” Section 4(f) property, physically or constructively,
if there is a “reasonable and prudent alternative.” 49 U.S.C. § 303(c). And even if no reasonable
and prudent alternative exists, the government may only pursue the alternative that “causes the
least harm.” 23 C.F.R. § 774.17.
62. In ascertaining the alternative that “causes the least harm,” the government must
consider:
(i) [t]he ability to mitigate adverse impacts to each Section 4(f)

property (including any measures that result in benefits to the
property); (ii) [t]he relative severity of the remaining harm, after
mitigation, to the protected activities, attributes, or features that
qualify each Section 4(f) property for protection; (iii) [t]he relative
significance of each Section 4(f) property; (iv) [t]he views of the
official(s) with jurisdiction over each Section 4(f) property; (v) [t]he
degree to which each alternative meets the purpose and need for the
project; (vi) [a]fter reasonable mitigation, the magnitude of any
adverse impacts to resources not protected by Section 4(f); and (vii)
[s]ubstantial differences in costs among the alternatives.
23 C.F.R. § 774.3(c)(1).
20
63. The Transportation Act does exempt certain uses from its requirements, but only if
that use is de minimis. 49 U.S.C. § 303(d).
64. 63. A use is de minimis only if the use will have no adverse effect on the protected
properties at issue. Id.
V. Environmental Justice
65. In 1994, President Clinton signed Executive Order 12898, requiring that
each Federal agency shall make achieving environmental justice

part of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority
populations and low-income populations in the United States.
Exec. Order No. 12,898, § 1–101, 59 Fed. Reg. 7629 (Feb. 16, 1994) (“EO 12898”). EO 12898 is
still in effect today.
66. The Department of Transportation and FHWA have likewise long imposed
environmental justice obligations upon themselves, pursuant to EO 12898.
67. In 2011, the FHWA issued a Memorandum providing guidance on Environmental
Justice and NEPA, which directs that FHWA NEPA documents should include: “a discussion of
major proactive efforts to ensure meaningful opportunities for public participation including
activities to increase low-income and minority participation;” “the views of the affected
population(s) about the project and any proposed mitigation;” “what steps are being taken to
resolve any controversy that exists;” and “the degree to which the affected groups of minority
and/or low-income populations have been involved in the decision-making process related to the
alternative selection, impact analysis and mitigation.” See Memorandum, Guidance on
Environmental Justice and NEPA, U.S. Dep’t of Trans’n, Fed. Highway Admin. (Dec. 16, 2011).5
5
https://www.environment.fhwa.dot.gov/env_topics/ej/guidance_ejustice-nepa.aspx (last visited
December 7, 2023).
21
68. In 2012, the FHWA issued Order 6640.23A, which established policies and
procedures for FHWA to use in complying with EO 12898. See U.S. Fed. Highway Admin.,
FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (June 14, 2012) [hereinafter FHWA Order 6640.23A].6
These include directing the FHWA to evaluate “whether a particular program, policy, or activity
will have disproportionately high and adverse effects on minority and low-income populations,”
and “take into account mitigation and enhancement measures and potential offsetting benefits to
the affected minority and/or low-income populations.” See id.
69. In May 2021, the Department of Transportation issued Order 5610.2(c), the Final
Department of Transportation Environmental Justice Order, which is an update to its earlier
Environmental Justice Order (Departmental Order 5610.2(a)), which was published on April 15,
1997. See U.S. Fed. Highway Admin., FHWA Order 6640.23A, FHWA Actions to Address
Environmental Justice in Minority Populations and Low -Income Populations (June 14, 2012)
[hereinafter FHWA Order 6640.23A].7 The 2021 Order states that “[c]ompliance with Executive
Order 12898 is an ongoing [Department of Transportation] responsibility” and declares that it is
the Department of Transportation’s “policy to administer and monitor its operations and decision-
making to ensure that nondiscrimination and the prevention of disproportionately high and adverse
effects are an integral part of its programs, policies, and activities.” Id.
6
http://www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm?_gl=1*4ymg6c*_ga*MTEyO
TgyMTg3MC4xNjk1ODQ2Njg3*_ga_VW1SFWJKBB*MTcwMTgxOTgzNy4xMi4xLjE3MDE
4MjAyNzAuMC4wLjA (last visited Dec. 7, 2023).
7
http://www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm?_gl=1*4ymg6c*_ga*MTEyO
TgyMTg3MC4xNjk1ODQ2Njg3*_ga_VW1SFWJKBB*MTcwMTgxOTgzNy4xMi4xLjE3MDE
4MjAyNzAuMC4wLjA (last visited Dec. 7, 2023).
22
70. While EO 12898 and the FHWA and Department of Transportation orders do not
in and of themselves create private rights of action, courts allow “challenges to environmental-
justice analyses under NEPA and the APA.” See Standing Rock Sioux Tribe v. U.S. Army Corps
of Eng’rs, 255 F. Supp. 3d 101, 136 (D.D.C. 2017) (citing Cmtys. Against Runway Expansion, Inc.
v. F.A.A., 355 F.3d 678, 689 (D.C. Cir. 2004)) (holding that an environmental justice claim was
“properly before this court because it arises under NEPA and the APA” and is “properly subject
to arbitrary and capricious review under the APA”), aff’d in part, rev’d in part, Standing Rock
Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039 (D.C. Cir. 2021) (affirming the
district court’s finding that the Army Corps’ NEPA analysis was inadequate and must be remanded
and the pipeline easement at issue must be vacated, but reversing the district court’s order to shut
down and empty the pipeline pending a new EIS). A federal agency’s environmental justice
analysis must be something more robust than a “bare bones conclusion.” Id. at 138–40 (holding
that it was arbitrary and capricious for the Army Corps to use a 0.5 mile buffer for its
environmental justice analysis in an [environmental assessment] and to only consider the
environmental justice impacts caused by the proposed Project’s construction while ignoring certain
environmental justice impacts (oil spill) that might occur during operations).
VI. The Administrative Procedure Act
71. The APA provides a right to judicial review for any “person suffering legal wrong
because of agency action.” 5 U.S.C. § 702. Actions that are reviewable under the APA include
final agency actions “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.
72. Under the APA, a reviewing court shall “hold unlawful and set aside agency action
. . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
23
FACTUAL BACKGROUND
I. Congestion in Little Cottonwood Canyon
73. Little Cottonwood Canyon is in the Uinta-Wasatch-Cache National Forest and is
home to two internationally recognized ski resorts, Alta and Snowbird, as well as two National
Wilderness Areas, Twin Peaks Wilderness to the north and Lone Peak Wilderness to the south.
The canyon is used extensively for outdoor recreation and also supports habitat for native wildlife
communities and native plants. Little Cottonwood Canyon receives about 2.1 million visitors per
year. See FEIS, at 1-5. Transportation in and out of Little Cottonwood Canyon is limited to S.R.
210. S.R. 210 in the canyon is supplied by three primary feeder roads: (1) S.R. 210 from the north,
carrying approximately 54% of the volume before it turns east into the canyon; (2) S.R. 209,
carrying 40% from the south until S.R. 209 merges with S.R. 210; and (3) Wasatch Boulevard,
carrying another 6% from the south. Several smaller surface streets in Sandy City come into play
as travelers seek to find the moment-to-moment best option among the three feeder roads.
74. Parking in Little Cottonwood Canyon is provided at the two ski resorts, at certain
trailheads, and at the park-and-ride lots at the base of the canyon. Limited parking in designated
areas has resulted in roadside parking in various areas throughout the canyon.
75. Users of S.R. 210 experience decreased mobility in winter during the morning and
afternoon peak travel periods related to visits to the ski resorts. Winter peak periods are tied to
the opening and closing times of the ski areas.
76. Concerns related to safety also exist for S.R. 210, resulting from avalanche hazards
and traffic delays caused by avalanche mitigation work. Road closures for avalanche mitigation
can cause travel delays in the canyon, which in turn can cause traffic to back up to the
neighborhoods at the entrance of the canyon. This is of particular sensitivity as it relates to
emergency response, as response times can be delayed in urgent situations due to the congestion.
24
77. Prior to the initiation of the NEPA process, UDOT, the Utah Transit Authority, and
other agencies and organizations conducted studies on traffic, parking, transit use, and avalanche
impacts within Little Cottonwood Canyon and along S.R. 210 as part of the Mountain Accord. The
Mountain Accord brought together various interests to create a sustainable plan for preserving the
Central Wasatch Mountains, inclusive of short- and long-term transportation recommendations.
78. The general recommendations from the Mountain Accord process included
increasing transit service in winter and summer, formalizing parking to designated areas, making
improvements for avalanche safety, improving bicycle and pedestrian facilities, making
operational traffic improvements, and considering tolling. UDOT considered these
recommendations as it developed a preliminary purpose of and need for the S.R. 210 project.
Nothing comparable to Gondola Alternative B is included in the Mountain Accord.
79. UDOT also considered the Wasatch Front Regional Council’s (“WFRC”) 2015–
2040 Wasatch Front Regional Transportation Plan, the Cottonwood Heights General Plan, and the
Wasatch Boulevard Master Plan, all of which identified needs for transportation improvements in
the area.
80. In 2017, the Utah legislature passed Senate Bill 277, Highway General Obligation
Bonds Authorization, which included funding for transportation projects that “have a significant
economic development impact associated with recreation and tourism within the state” and that
“address significant needs for congestion mitigation.” FEIS, at 1-6. The Utah Transportation
Commission—the group charged with prioritizing projects—identified Little Cottonwood Canyon
as a top-priority area due to its high recreation use and economic benefit from tourism to the state.
25
81. With authorization under Senate Bill 277 and in anticipation of receiving
substantial federal funding, UDOT initiated the NEPA process to identify and evaluate alternatives
to improve transportation for S.R. 210 and near Little Cottonwood Canyon.
II. Environmental Resources in Little Cottonwood Canyon
82. Little Cottonwood Canyon is located in the Central Wasatch Mountains, which
have long been an environmental oasis above an arid valley with a now-booming metropolis. Little
Cottonwood Canyon is home to towering, largely undisturbed mountains; the forests of the Uinta-
Wasatch-Cache National Forest; the Twin Peaks Wilderness and Lone Peak Wilderness areas;
diverse native vegetation; native wildlife and their habitat; and an array of water resources and
riparian areas, including reservoirs, lakes, ponds, wetlands, and Little Cottonwood Creek and its
tributaries—a protected drinking water source for the valley below.
83. The Little Cottonwood Creek watershed, along with the nearby Big Cottonwood
Canyon, City Creek Canyon, and Parleys Canyon watersheds, is a congressionally designated
source of the drinking water supply managed by SLC, and SLC is regulated as a Public Water
System pursuant to the federal and state Safe Drinking Water Acts. See Salt Lake City Dep’t of
Pub. Util., Little Cottonwood Canyon Draft Environmental Impact Statement Salt Lake City
Comments, Comment ID 13339, at 4 (Aug. 30, 2021) [hereinafter SLC DEIS Comment Letter];
see also Salt Lake City Dep’t of Pub. Util., Salt Lake City Comments for the FINAL Little
Cottonwood Canyon Environmental Impact Statement (August 2022), Comment ID 38624, at 2
(Oct. 17, 2022) [hereinafter SLC FEIS Comment Letter].8 Approximately 60% of the drinking
8
UTAH DEP’T OF TRANSP., RECORD OF DECISION: LITTLE COTTONWOOD CANYON, S.R. 210:
WASATCH BOULEVARD THROUGH THE TOWN OF ALTA IN COTTONWOOD HEIGHTS, SANDY, AND THE
TOWN OF ALTA, SALT LAKE COUNTY, APP’X A3: REPRODUCTION OF MAILED COMMENTS
RECEIVED AS EMAIL ATTACHMENTS, at A3-256 (June 2023),
https://littlecottonwoodeis.udot.utah.gov/wp-content/uploads/2023/07/LCC-ROD-AppA3.pdf
26
water supply managed by SLC comes from these four canyons. See Drinking Water 101, SALT
LAKE CITY PUBLIC UTILITIES.9 In addition, SLC holds the majority of the water rights in the Central
Wasatch Mountains, including approximately 70% of water rights to Little Cottonwood Creek.
See SLC DEIS Comment Letter, at 2 (Aug. 30, 2021). The other approximately 30% of Little
Cottonwood Creek water rights are held by Sandy City. Id.
84. Little Cottonwood Canyon plays a unique role in the delivery of water throughout
the Salt Lake Metropolitan Area, because Little Cottonwood Creek water is gravity-fed directly
into the LCWTP, which supplies water throughout much of the Salt Lake Valley without the need
for pressurization. This makes Little Cottonwood Creek water especially valuable for system-wide
redundancy, resiliency, and rapid response.
85. Effective and efficient operation of Plaintiffs’ drinking water infrastructure, and the
protection of public health, is reliant on the high incoming quality of water from within the canyon
streams, including Little Cottonwood Creek. Because of the high quality of the source waters,
water from near the tops of the canyons reaches the end-users’ taps in less than 24 hours, with
minimal treatment needed as compared to many of our nation’s drinking water supplies. See
Drinking Water 101, SALT LAKE CITY PUBLIC UTILITIES; see also SLC FEIS Comment Letter, at
2. This rapid delivery from source to user is highly valuable to efficient water supply management,
but it also means Plaintiffs’ water infrastructure operators have less time to detect and respond to
variations in water quality that might compromise human health and welfare. Id.
86. As a drinking water source, Little Cottonwood Canyon is no ordinary watershed. It
is subject to an array of federal and state drinking water regulatory standards and protections for
drinking water that go above and beyond Clean Water Act regulations for non-drinking uses of
9
https://www.slc.gov/utilities/watershed/ (last visited Dec. 8, 2023).
27
waters, pursuant to the Utah Safe Drinking Water Act and the federal Safe Drinking Water Act.
These laws and regulations impose numeric standards for specific contaminants of concern to
protect human health, as well as narrative standards or aesthetic quality standards for drinking
water, and anti-degradation standards to protect high-quality water. See generally UTAH ADMIN.
CODE r. 309-200 (Utah drinking water standards), r. 317-2 (standards for quality for waters of the
State); see also FEIS, at 12-1–12-9. As the operator of a Public Water System, SLC is responsible
for protecting Little Cottonwood as a source of drinking water supply, and SLC has extra-
jurisdictional authority in the Central Wasatch Mountain watersheds, including in Little
Cottonwood Canyon, to regulate activities to avoid pollution of these critical sources of drinking
water. See UTAH ADMIN. CODE § 10-8-15; UTAH CODE r. 309-600-12. Part of this state-imposed
responsibility includes developing and implementing a drinking water source protection plan,
which plan must (and does) identify sources of contamination, include drinking water source
protection zones around drinking water sources, and designate types of new construction projects
that are restricted within zones of protection. See generally UTAH ADMIN. CODE r. 309-605 (Utah
drinking water source protection rules); see also FEIS, at 12-1–12-9. The same is true for SLC’s
other drinking water sources, such as Big Cottonwood Canyon. See FEIS, at 12-4.
87. Pursuant to these obligations, SLC ordinances set standards and conditions for
water use; make certain acts unlawful (such as swimming or bathing in waters within Little
Cottonwood, and generally bringing dogs into the canyon); and restrict certain activities such as
dog ownership and disposal of garbage and sewage for canyon residents. See Salt Lake City
Ordinance 17.04 (Watershed Areas).10
10
https://codelibrary.amlegal.com/codes/saltlakecityut/latest/saltlakecity_ut/0-0-0-57639 (last
visited Dec. 8, 2023).
28
88. The Salt Lake Valley Health Department similarly (and jointly) regulates activities,
uses, and occupancy within protected watersheds, including Little Cottonwood. See Salt Lake
Valley Health Department Health Regulation 14 (Watershed Regulations).11
89. Stringent local source water protection ordinances and regulations are implemented
in other parts of the country, although the specific forms vary according to the specific needs of
the region.12 Indeed, many jurisdictions prohibit all human use of watershed protection areas out
of concern for protecting the purity of drinking water resources. In that respect, the users of Little
Cottonwood and other area canyons have been fortunate that, to date, Plaintiffs have been able to
allow multiple uses of these resources while simultaneously maintaining water supplies and
quality. This has required constant vigilance.
90. In addition to these local and state drinking water source protections, the USFS also
bears responsibility for watershed protections. Because Little Cottonwood Canyon is a critical and
protected drinking water source, the USFS’s primary management goal for Little Cottonwood
Canyon is protection of the long-term culinary water supply, and Congress has directed the USFS
to administer the designated watersheds in cooperation with SLC for the purpose of storing,
conserving, and protecting drinking water from pollution. See U.S. FOREST SERVICE, REVISED
FOREST PLAN WASATCH-CACHE NATIONAL FOREST (Feb. 2003);13 see also FEIS, at 12-1–12-3 and
12-45–12-50.
11
https://slco.org/globalassets/1-site-files/health/regs/watershed.pdf (last visited Dec. 8 , 2023).
12
See Basic information about Source Water Protection, U.S. ENVT’L PROT. AGENCY (last updated
March 14, 2023), https://www.epa.gov/sourcewaterprotection/basic-information-about-source-
water-protection (last visited Dec. 7, 2023) (providing examples of source water protections
measures).
13
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5347083.pdf (last visited Dec.
8, 2023).
29
91. The most significant risks to the water resources in Little Cottonwood and nearby
watersheds include overuse and increasing development of the watershed, which are greatly
exacerbated by the impacts of climate change, including drought and wildfire. See SLC FEIS
Comment Letter, at 1. The reliance on current and future water supplies by 450,000 people
underscores the critical need for careful evaluation of any potential impacts of the proposed Project
on the water resources.
92. Little Cottonwood Canyon already receives more than 2 million visitors and 1
million vehicle trips per year and is utilized year-round. See FEIS, at 20-3. Winter visitors enjoy
skiing at the two resorts and dispersed throughout the backcountry, snowshoeing, and ice climbing.
Summer visitors enjoy hiking, cycling, rock climbing, fishing, camping, picnicking, and scenic
driving. See id. The number of visitors and the amount of development in Little Cottonwood
Canyon is likely to grow as a result of the proposed gondola.
93. All development within these mountain watersheds is reliant on water supply
permits obtained from SLC that allow the use of SLC’s water rights. Because of SLC’s significant
water rights holdings in Little Cottonwood Canyon, it is the primary provider of raw water in the
canyon through contracts with the resorts and the Town of Alta. SLC cannot expand the quantity
or geographic areas associated with these contracts, and there are no additional water rights that
can be developed. See SLC DEIS Comment Letter, at 5; see also Salt Lake City Ordinance
17.04.020.
94. In addition to being a protected drinking water source, Little Cottonwood Canyon
is home to two federally designated National Wilderness Areas—the Lone Peak Wilderness
(30,088 acres) and the Twin Peaks Wilderness (11,796 acres)—that are destinations for many
hikers, backcountry skiers, rock climbers, fishers, mountaineers, and outdoor enthusiasts seeking
30
the solitude of the wilderness. These two wilderness areas contain rugged terrain, complex geology
with exposed granite rocky ridges, picturesque high-mountain lakes and reservoirs, a mix of open
cirques and dense forests, high peaks soaring above 11,000 feet, and breathtaking views.14 As with
other USFS wilderness areas, the Lone Peak and Twin Peaks Wilderness Areas are generally
closed to motor vehicles, mechanized equipment, hang gliders, and bicycles in order to preserve
and protect the physical and aesthetic environment, in addition to the above-discussed drinking
watershed protections enforced by SLC and others. Importantly, the statutes creating the two
wilderness areas did create limited exceptions for motorized access and otherwise-prohibited
facilities as might be necessary to preserve and protect these areas as drinking water sources.
See, e.g., Section 2(i) of the Endangered American Wilderness Act of 1987.
III. Development of the Project
A. Scoping and Development of Purpose and Need
95. On March 9, 2018, the FHWA, on behalf of UDOT, published a NOI to prepare an
EIS for proposed transportation improvements in and near Little Cottonwood Canyon. 83 Fed.
Reg. 10545 (Mar. 9, 2018).
96. In response to scoping comments received and by defining the purpose of and need
for improvements to S.R. 210, the FHWA, on behalf of UDOT, published a revised NOI in 2019.
84 Fed. Reg. 7967 (Mar. 5, 2019). UDOT revised the scope of the EIS to include: (1) taking no
action; (2) adopting one or more alternatives involving multiple, combined actions, including
Transportation System Management, enhancing safety and improving mobility through avalanche
14
See Lone Peak Wilderness Area, U.S. FOREST SERVICE,
https://www.fs.usda.gov/detail/uwcnf/about-forest/districts/?cid=fsem_035453 (last visited Dec.
7, 2023); see Twin Peaks Wilderness Area, U.S. FOREST SERVICE,
https://www.fs.usda.gov/detail/uwcnf/about-forest/districts/?cid=fsem_035482 (last visited Dec.
7, 2023).
31
mitigation, improving designated parking at existing trailheads, and/or road improvements to S.R.
210 on Wasatch Boulevard; or (3) other alternatives if identified during the EIS process.
97. In October 2019, UDOT released its Draft Purpose and Need Chapter, defining the
purpose of and need for the S.R. 210 Project. UT DEP’T OF TRANSP., DRAFT PURPOSE AND NEED
CHAPTER – LITTLE COTTONWOOD CANYON ENVIRONMENTAL IMPACT STATEMENT, WASATCH
BOULEVARD TO ALTA, (Oct. 30, 2019).15 Simultaneously, UDOT released a Draft Alternatives
Development and Screening Methodology and Preliminary Concept Report, describing the
alternatives development and screening process to be used for the Little Cottonwood EIS. UT
DEP’T OF TRANSP., DRAFT ALTERNATIVES DEVELOPMENT AND SCREENING METHODOLOGY AND
PRELIMINARY CONCEPT REPORT – LITTLE COTTONWOOD CANYON ENVIRONMENTAL IMPACT
STATEMENT, WASATCH BOULEVARD TO ALTA (Oct. 30, 2019). 16
98. Based on the comments received, UDOT prepared a revised Draft Purpose and
Need Chapter. UT DEP’T OF TRANSP., DRAFT PURPOSE AND NEED CHAPTER – LITTLE
COTTONWOOD CANYON ENVIRONMENTAL IMPACT STATEMENT, WASATCH BOULEVARD TO ALTA,
(May 4, 2020) [hereinafter “2020 Draft Purpose and Need Chapter”].17 UDOT also released a
revised Draft Alternatives Development and Screening Methodology and Preliminary Concept
Report, identifying two new alternatives. UT DEP’T OF TRANSP., DRAFT ALTERNATIVES
DEVELOPMENT AND SCREENING METHODOLOGY AND PRELIMINARY CONCEPT REPORT – LITTLE
15
https://littlecottonwoodeis.udot.utah.gov/wp-content/uploads/2020/05/Little-Cottonwood-EIS-
Chapter-1-Purpose-and-Need-4-Nov-19.pdf (last visited Dec. 8, 2023).
16
https://littlecottonwoodeis.udot.utah.gov/wp-content/uploads/2020/05/Little-Cottonwood-EIS-
Screening-Methodology-Report-4-Nov-19.pdf (last visited Dec. 8, 2023).
17
https://littlecottonwoodeis.udot.utah.gov/wp-content/uploads/2020/05/Little_Cottonwood_EIS
_Chapter_1_ Purpose_and_Need_May_2020.pdf (last visited Dec. 8, 2023).
32
COTTONWOOD CANYON ENVIRONMENTAL IMPACT STATEMENT, WASATCH BOULEVARD TO ALTA,
(May 4, 2020).18
99. In this 2020 Draft Purpose and Need Chapter, UDOT described the purpose of the
Project as follows: to “improve the transportation-related commuter, recreation, and tourism
experiences for all users of S.R. 210 through transportation improvements that improve roadway
safety, reliability, and mobility on S.R. 210.” See UTAH DEP’T OF TRANSP., DRAFT
ENVIRONMENTAL IMPACT STATEMENT AND SECTIONS 4(F)/6(F) EVALUATION FOR LITTLE
COTTONWOOD CANYON, S.R. 210: WASATCH BOULEVARD THROUGH THE TOWN OF ALTA IN
COTTONWOOD HEIGHTS, SANDY, AND THE TOWN OF ALTA, SALT LAKE COUNTY, at 1-9 (June 2021)
(emphasis added) [hereinafter Draft EIS or DEIS].19 However, UDOT then went on to explain that
the needs for the Project generally relate to decreased mobility during wintertime travel to and
from the ski areas, safety concerns associated with avalanche mitigation, and limited parking at
trailheads and ski areas, which does not match up with the Project Purpose to improve tourism
experiences for “all users of S.R. 210” but instead focuses only on wintertime ski uses in Little
Cottonwood Canyon. See id. at 1-10.
B. Plaintiffs’ Participation in the Project Analysis
100. As a municipality with jurisdiction in the area of the Project, SLC agreed to be a
cooperating agency for the NEPA process. See 40 C.F.R. § 1501.8(a). As a cooperating agency,
SLC engaged in the NEPA process as soon as was practicable and provided comments during each
stage of the NEPA process.
18
https://littlecottonwoodeis.udot.utah.gov/wp-content/uploads/2020/05/Little_Cottonwood-
EIS_Screening_Methodology_Report_May_2020.pdf (last visited Dec. 8, 2023).
19
The DEIS documents are available at Little Cottonwood Canyon, Draft EIS, UTAH DEP’T OF
TRANSP., https://littlecottonwoodeis.udot.utah.gov/draft-eis/ (last visited Dec. 8, 2023).
33
101. All of the Plaintiffs provided comments during the scoping period and on the
Purpose and Need and Draft Alternatives and Screening Methodology documents. See Salt Lake
City Department of Public Utilities Scoping Comments for the Little Cottonwood Canyon
Environmental Impact Statement (May 4, 2018), Comment ID 435; Salt Lake City Department of
Public Utilities Comments on Notice of Intent to Revise Scope of the Little Cottonwood EIS (June
14, 2019), Comment ID 730; Salt Lake City Department of Public Utilities Comments for the Little
Cottonwood Canyon EIS Draft Purpose and Need and Draft Alternatives and Screening
Methodology (Dec. 13, 2019), Comment ID 316; Metropolitan Water District of Salt Lake & Sandy
Comments for the Little Cottonwood Canyon EIS Draft Purpose and Need and Draft Alternatives
Screening Methodology (Dec. 13, 2019), Comment ID 4510; Sandy City Public Utilities Comment
Letter (July 8, 2020), Comment ID 5036; Salt Lake City Comments Draft Alternatives
Development and Screening Report, Little Cottonwood Canyon Environmental Impact Statement
SR 210 – Wasatch Boulevard to Alta, June 8, 2020 (July 3, 2020), Comment ID 2547.
102. Plaintiffs’ comments in the early stages requested that protection of the drinking
water supply be included in the Project’s Purpose and Need statement. Plaintiffs contended that
this would align with the history of public land management strategy in the region, current land
use plans, and current permitting that guides the water quality stewardship in Little Cottonwood
Canyon. SLC also requested recognition of its legal jurisdiction and regulatory obligations to state
and federal agencies as a Public Water Supplier.
103. SLC requested that the Level 1 Screening Criteria for the development of the
alternatives include protection of drinking water sources and impacts to the federal Safe Drinking
Water Act and the state of Utah Safe Drinking Water Act. SLC also requested that impacts on the
34
federal Clean Water Act be elevated to the Level 1 Screening Criteria, and include analysis of
impacts against other sections of the Clean Water Act in addition to Section 404.
104. In developing alternatives, SLC asked that UDOT include in the screening criteria
impacts of project alternatives on SLC’s ability to put its water rights to beneficial use. Plaintiffs
additionally asked that UDOT include analysis of whether alternatives would impact current water
infrastructure. SLC noted that impacts to water quality could result in direct and indirect impacts
to the integrity of water infrastructure, which could lead to significant costs to the public if such
infrastructure were degraded.
105. SLC consistently voiced concerns about alternatives impacting the operations and
management of the watershed. Increased access and use and changes in recreational use and land
use patterns will have a significant impact to the management of the watershed. SLC requested
that the EIS process analyze whether and how the alternatives will impact visitation and recreation
demand.
106. SLC also submitted a number of comments recommending that the impacts of
climate change on the natural environment and recreational use of the area be analyzed and
considered as part of the development of long-term transportation and transit solutions. SLC noted
that climate models demonstrate a possible rise in the rain and snow elevation and a corresponding
rise in minimum snowpack elevations during the timeline of the Project, which could impact the
existing winter peak strain on mobility within Little Cottonwood Canyon.
107. Because the models indicate that the Wasatch watershed can expect a drier future
with reduced streamflow, which reduced flows will inevitably impact water quality, SLC again
emphasized in its comments that water resources and supply should be elevated to a primary, not
secondary, purpose.
35
108. With respect to the specific alternatives being developed, SLC again raised
concerns about how each alternative would impact water supply and water quality, inclusive of
stormwater impacts, impacts from spills, ecological and riparian impacts from use of snow sheds,
and impacts from the construction necessary of each of the alternatives.
109. The Draft EIS was released in June 2021.
110. The primary alternatives carried forward for detailed study in the Draft EIS
included the No-Action Alternative, the Enhanced Bus Service Alternative, the Enhanced Bus
Service in Peak-period Shoulder Lane Alternative, Gondola Alternative A (Starting at Canyon
Entrance), Gondola Alternative B (Starting at La Caille), and the Cog Rail Alternative (Starting at
La Caille). Sub-alternatives considered included improvements to Wasatch Boulevard, mobility
hubs, avalanche mitigation, trailhead parking, and no winter parking.
111. Plaintiffs submitted letters containing comments on the Draft EIS in August 2021.
See SLC DEIS Comment Letter, supra; Metropolitan Water District of Salt Lake & Sandy
Comments for the Little Cottonwood Canyon Draft EIS (August 30, 2021), Comment ID 13338;
Sandy City Administration Comment Letter (Sept. 3, 2021), Comment ID 13316.
112. SLC noted concern that the preferred alternatives did not fit the stated purpose.
Specifically, the alternatives selected for detailed study do not stop in areas other than the ski
resorts, and they do not address safety, reliability, and mobility for all users. Rather, they only
focus on a select group of users: skiers and snowboarders using the Alta and Snowbird ski resorts.
113. SLC also commented that the problems the preferred alternatives seek to solve are
too narrowly defined and limit the range of alternatives for consideration. SLC urged a more
holistic approach to solve problems and address impacts not only within Little Cottonwood
Canyon, but also in the adjacent canyons and areas. SLC requested that the Purpose and Need
36
Chapter reflect the need to solve the issue of limited parking at trailheads and ski resorts and to
resolve decreased mobility along Wasatch Boulevard and in adjacent neighborhoods.
114. SLC voiced concern that the analysis of the two preferred alternatives did not
incorporate summer impacts to the watershed, as summer use is outside the purpose and need and
scope of the Project, and requested that the cumulative, direct, and indirect impacts stemming from
the summer use of the preferred alternatives be analyzed.
115. As in comments submitted during the earlier stages of environmental review,
Plaintiffs again noted their jurisdiction and legal requirements to provide clean, safe water to the
public, and identified concerns that such jurisdictional oversight and legal requirements were not
sufficiently taken into account in the analysis of the preferred alternatives in the Draft EIS.
116. Plaintiffs commented that the Draft EIS did not thoroughly address connected
actions of the preferred alternatives and therefore fail to meet the rigor of the NEPA process.
117. Plaintiffs also commented that the Draft EIS did not thoroughly analyze direct,
indirect, or cumulative impacts of the preferred alternatives. SLC raised concerns that the Draft
EIS did not address the limited water resources available within Little Cottonwood Canyon to
handle increased capacity, nor did it acknowledge SLC’s obligations associated with those
resources.
118. Plaintiffs again raised a number of comments relating to the availability of water
resources and impacts to water quality, citing SLC’s legal jurisdiction and authority to manage
waters within the watershed and Plaintiffs’ legal requirements to provide clean, safe water to the
public. MWDSLS and Sandy City supported and echoed all SLC’s concerns regarding drinking
water quality and quantity.
37
119. In addition, Sandy City highlighted the need for the Federal Defendants to examine
the traffic impacts of the Project on S.R. 209, Wasatch Boulevard, and Sandy City neighborhood
streets. Sandy City observed that the Federal Defendants were focused only on the 54% of the
traffic that travels on S.R. 210, thus ignoring the 46% of the volume that currently travels S.R. 209
and Wasatch Boulevard as well as the interrelationships among the various local roads within
Sandy City jurisdiction.
IV. The Final Little Cottonwood Canyon EIS and Record of Decision
120. On August 31, 2022, UDOT released the FEIS for the Project.
121. The selected Gondola Alternative B Alternative would require significant new and
imposing physical infrastructure through the entire length of Little Cottonwood Canyon. The
gondola component alone would require over 8.5 miles of cable with the construction of 22
gondola towers, ranging from 131 to 262 feet tall. FEIS, at 2-107. The Gondola Alternative B
option also requires the construction of a base station, one station at each of the ski resort stops,
and two angle stations—one sited at the Little Cottonwood Canyon park-and-ride lot at the
entrance to Little Cottonwood Canyon, and a second sited adjacent to S.R. 210, west of the Tanners
Flat Campground. FEIS, at 2-104. The gondola would move approximately 30 gondola cabins per
hour, with an assumed capacity of approximately 35 people per cabin. FEIS, at 2-89.
122. In October 2022, the Plaintiffs submitted comments on the FEIS, reiterating the
same concerns they had expressed in prior comments. See SLC FEIS Comment Letter, supra;
Metropolitan Water District of Salt Lake & Sandy Comments for the Little Cottonwood Canyon
Final EIS (October 17, 2022), Comment ID 35705; Sandy City Administration Comment on Little
Cottonwood Final EIS (Oct. 17, 2022), Comment ID 38628. Namely, Plaintiffs expressed concerns
that the FEIS lacks adequate and accurate analysis of: water supply; water quality; impacts on
38
adjacent wilderness; climate change impacts; the traffic issues associated with S.R. 209 Wasatch
Boulevard, Sandy City neighborhood streets; and cumulative and indirect impacts.
123. On July 14, 2023, UDOT published a Notice of Availability of the Record of
Decision for Little Cottonwood Canyon Project in Utah and Final Federal Agency Actions. See 88
Fed. Reg. 45268 (July 14, 2023).
124. Appendix A of the ROD contains responses to public comments on the FEIS. These
responses and the ROD itself fail to meaningfully address the deficiencies in the FEIS that the
Plaintiffs pointed out in their October 2022 comment letters and prior comment letters.
125. In the FEIS, UDOT maintained the same statement of purpose and need as
developed in the 2020 Draft Purpose and Need Chapter. See FEIS, at 1-7, 1-8. The purpose of
improving mobility for “all users” is not met by the combined selection of Enhanced Bus Service
and Gondola Alternative B, because a gondola that only stops at the two ski resorts in Little
Cottonwood Canyon completely ignores uses in the canyon that do not involve skiing, and does
nothing to improve summer time traffic concerns at trailheads and climbing locations. In fact, the
Enhanced Bus Service implementation would cease as soon as the gondola is constructed, making
the likelihood of serving other uses even more remote. See ROD at 88. These issues were raised
in comments throughout the process and dismissed by the Federal Defendants.
126. Additionally, by approving implementation of the Gondola Alternative B as a
solution to the stated purpose and need, Federal Defendants did not and could not analyze whether
the Enhanced Bus Service alternative alone could satisfy the purpose and need without the
gondola. In fact, the gondola may just lead to increased overall use of the canyon, without reducing
cars on the road, thereby exacerbating all of the impacts of the Project set forth in more detail
herein. The Federal Defendants cannot estimate the inducement of using the gondola instead of
39
driving on S.R. 210 without explaining the economics of the interplay between a toll on the road
and the cost of riding the gondola. It may be the case that riding the gondola will be so cost
prohibitive that it only serves the highest economic class of users in the canyon, and therefore does
very little to nothing to improve overall mobility in the canyon.
127. By narrowly defining the Purpose and Need Statement throughout the process, the
Federal Defendants selected an alternative that does not meet the stated purpose—to improve
mobility for all users. The Gondola Alternative B is simply not developed enough to meet any
reasonable purpose, let alone the Project Purpose, when the analysis lacks details such as cost of
riding, the impact of tolls, and development of incentives to eliminate cars on the road.
A. Errors and Lack of Analysis of Water Supply Impacts.
128. The Final EIS is largely silent about the ways in which the Project would require
additional water resources within Little Cottonwood Canyon. The FEIS failed to acknowledge the
limitations to additional future water demand in the canyon because the ski resorts and other water
users in Little Cottonwood Canyon do not have their own water rights. The FEIS did not
adequately identify SLC as the holder of the water rights that are relied upon by the ski resorts,
and it therefore neglected to connect that induced usage and growth pressures associated with the
Project would naturally increase water demand, ultimately impacting the water resources available
to the public served by SLC.
129. UDOT relied on a single statement from a representative of Salt Lake County
Service Area #3, which manages drinking water and sewer usage for Snowbird Ski Resort in Little
Cottonwood Canyon. The representative’s statement provided that “contracted water use is 34%
of the total available amount, and sewer use is about 6%,” and therefore, the representative
believed that there is enough water and sewer capacity to accommodate increased use associated
with the primary alternatives. FEIS, at 32-202. This statement was specific only to Snowbird Ski
40
Resort needing to expand facilities to support an increased number of users. It was not a
commentary on the adequacy of supply generally in Little Cottonwood Canyon. Yet, UDOT relied
on this statement to determine that the preferred alternative would not cause impacts to available
water supply. In addition, the statement fails to reflect that the sole water source for Salt Lake
County Service Area #3 is provided by SLC under an interruptible water supply agreement that is
based on the water rights SLC holds. Per the agreement, SLC may reduce the amount of water
available in times of water shortage affecting the SLC water service area. Per Salt Lake City
ordinance, SLC is prohibited from expanding the amount of water and geographical boundary
associated with the water supply agreement between SLC and Salt Lake County Service Area #3.
130. The FEIS failed to identify water resource impacts specific to Alta Ski Resort. Alta
Ski Resort has its own surplus water supply agreement with SLC with a ceiling established for
water use that, per SLC ordinance and policy, cannot be exceeded. Furthermore, as SLC pointed
out in exchanges with UDOT, the Service Area #3 representative was not knowledgeable about
current water constraints or increased water needs associated with the Project. These comments by
SLC were ignored by UDOT.
131. The FEIS did not give any consideration to year-round increased water needs
throughout the rest of Little Cottonwood Canyon, such as at the enhanced trailheads, including
those needs for fire suppression, bathrooms, or culinary sources of water. The FEIS also did not
evaluate the water necessary for fire suppression at the snow sheds other than to say that UDOT
would work with SLC to supply such water. Water resources may not be available to support
additional new infrastructure and increased visitation due to physical and legal limitations of the
resource. As previously noted, SLC holds most of the water rights in the Little Cottonwood Creek
watershed and, because water in this area is already a limited resource and SLC policies prohibit
41
expanding the quantity or geographic area associated with these water rights, there are no
additional water rights that can be developed.
132. The FEIS did not evaluate how growth in the canyon caused by the Project would
create additional demand for water and interfere with the needs of the current and future needs of
the public within SLC’s water service area.
B. Lack of Analysis of Water Quality Impacts from the Project.
133. The FEIS dismissed concerns about water quality, characterizing such impacts as
de minimis. FEIS, at 12-36. The FEIS does not appear to have considered how an impact that is de
minimis in the context of an ordinary watershed is potentially much more significant in the context
of a drinking water source protection area. The SLC watershed area within Little Cottonwood
Canyon is protected under federal law, state law, and municipal ordinance. Impacts to this area are
more significant and should be given more weight.
134. The FEIS relies on use of a water quality model called the Stochastic Empirical
Loading and Dilution Model, developed by the U.S. Geological Survey in cooperation with the
FHWA, to estimate the effects of the Project alternatives on the water quality of Little Cottonwood
Creek. This model relies on stormwater quality data from roadways, i.e. run-off water from
pavement, and is therefore more appropriate for use when evaluating roadway water quality
impacts. It is not designed to evaluate water quality impacts from other types of construction,
including construction of a gondola.
135. The modeling inputs and screening criteria relied upon in the FEIS are not tailored
to the special requirements of drinking water source protection in the watershed. Moreover, this
model does not take into account the proximity of the proposed infrastructure to Little Cottonwood
Creek or potential wetlands. The modeling relied upon in the FEIS is insufficient to adequately
analyze the potential water quality impacts for the Project.
42
136. The FEIS does not analyze other foreseeable potential impacts to water quality,
such as spills, accidents, or concentration of new industrialized uses in and around Little
Cottonwood Creek. In response to related comments, UDOT stated that the “gondola systems are
not anticipated to generate pollutants,” and in response to Plaintiffs’ concerns, secondary
containment with leak-detection monitors has been included for the fuel storage necessary for the
gondola’s backup power generators. FEIS, at 32-174.
137. The La Caille base terminal is a component of the Preferred Alternative selected.
Due to its location, the terminal would direct a significant amount of commercial and private
automobile traffic near the intake of the MWDSLS water treatment plant that treats Little
Cottonwood Creek water for SLC’s and Sandy City’s water service areas. Siting a commercial-
style development in this area near the intake could impact the quality of the water being treated,
affecting the water treatment processes and the ability of the plant to deliver safe drinking water.
138. The FEIS does not satisfactorily analyze these concerns. It relies only on the
Stochastic Empirical Loading and Dilution Model results to support the conclusion that the
modeling found “de minimis differences between the No-Action Alternative and the five primary
action alternatives” and thus, “any alternative should not affect treatment processes or . . . [the]
ability to deliver safe drinking water.” FEIS, at 32-174. However, the water quality monitoring
focused solely on run-off from S.R. 210 and did not consider the increased traffic in and around
the gondola base station.
C. Lack of Analysis of Impacts of Project on Adjacent Wilderness
139. The FEIS does not include any analysis of visual and noise impacts of the Project
on the adjacent Twin Peaks and Lone Peak Wilderness Areas. In omitting such evaluation, the
Federal Defendants relied on the Buffer Zone Provision of the Utah Wilderness Act of 1984.
43
140. The fact that the Utah Wilderness Act states that activities outside of a wilderness
area cannot be precluded on the basis of impacts observed within the wilderness area does not in
turn mean that such impacts cannot be considered, or can be ignored, by a project proponent during
the NEPA process. The Utah Wilderness Act does not exempt actions affecting wilderness from
NEPA review.
141. In addition, by its plain terms the Buffer Zone Provision only prohibits visual and
noise impacts from being the sole reason for rejecting boundary area activities or uses. It does not
exempt agencies from analyzing such impacts altogether, from rejecting projects that, as here, have
visual impacts in combination with other impacts, or from considering measures to mitigate visual
and noise impacts in project design and implementation.
142. The Federal Defendants were capable of evaluating the visual and noise impacts of
the Project where they chose to. The FEIS notes that the key observation point (“KOP”) selection
process did include a review of KOP locations along certain trails adjacent to these wilderness
areas, including Red Pine Trail, in order to assess impacts on views from the USFS managed trails.
FEIS, at 17-8. In reliance on their misinterpretation of the Buffer Zone Provision (and apparent
misunderstanding that the Buffer Zone Provision even applies to the Lone Peak Wilderness), the
Federal Defendants conducted no similar analysis for the Twin Peaks or Lone Peak Wilderness
Areas.
143. Importantly, on April 23, 2021, the USFS published a notice in the Federal Register
stating that “[t]he Forest Service intends to use the EIS to make its decision for the NFS lands it
administers.” 86 Fed. Reg. 21683, 21684 (Apr. 23, 2021). The USFS further stated that,
[a]s stated in all three NOIs, the project may require FHWA to
appropriate NFS lands and transfer such lands to the UDOT, which
would be in the form of a non-exclusive right-of-way for highway
purposes. UDOT will make a decision for project activities on lands
44
that will be appropriated by FHWA at the time of implementation

of those activities. A Forest Service decision will apply to project
activities, if any, that occur on NFS lands that are not appropriated
by FHWA at the time of implementation of those activities.
Id. at 21683–84.
144. The FEIS identifies the following approvals that may be needed from the USFS:
 Federal Land Right-of-way Transfer (Federal Highway Administration and

USDA Forest Service);
 Easement and/or Special-use Permit (USDA Forest Service);
 Forest Plan Amendment (USDA Forest Service); and
 Contract for Removal of Merchantable Timber (USDA Forest Service)
FEIS, at S-29.
145. The USFS did not object to or contest the erroneous interpretations of the Buffer
Zone Provision articulated in the FEIS.
D. Lack of Analysis of Climate Change Impacts of the Project and On the

Project
146. The FEIS fails to analyze the Project’s climate change impacts. It also fails to
analyze the impacts that a changing climate will have on the Project that will, in turn, impact the
surrounding environment and communities.
147. The FEIS contains no mention of climate change or drought in its water resources
section, nor its ecosystem resources chapter, nor its indirect effects chapter, nor mitigation
measures chapter, and no substantive discussion of climate change in the cumulative impacts
section.
148. The FEIS does contain, within the Air Quality chapter, a brief quantitative
comparison of the greenhouse gas (“GHG”) emissions expected to result from the Project as
compared to each alternative. See FEIS, at 10-26. But the FEIS fails to analyze and cursorily
45
dismisses the climate impacts of these emissions of the Project, stating that it is too “difficult to
isolate and understand the impacts of GHG emissions for a particular transportation project.” See
id. The FEIS additionally states that carbon dioxide-equivalent (“CO2e”) “emissions are expected
to be marginally lower for bus service compared to gondola service, and CO2e emissions with
both the bus service and gondola service are expected to be lower than with the cog rail service.”
Id. The FEIS also puts CO2e emissions for each of the alternatives into purported “context” by
stating that the estimated emissions “are far below EPA’s mandatory reporting threshold for
stationary sources . . . and far below EPA’s threshold to trigger permitting requirements for major
stationary sources.” Id. EPA reporting thresholds for stationary sources have no bearing on
transportation emissions, nor obligations under NEPA to analyze a project’s environmental
impacts, including greenhouse gas emissions and climate change impacts. Such comparative
analysis shows only that there are other large sources of emissions; it does not support a conclusion
that the Project’s emissions are inconsequential.
149. The FEIS also asserts that “[a]ll of the action alternatives would have lower CO2e
emissions than the No-Action Alternative, resulting in a reduction in GHG emissions.” Id. This
assertion fails to square with the FEIS’s acknowledgment that a potential indirect effect of the
Project is that it will simply push travelers to “visit other ski resorts that are not accessed via roads
with restrictions,” primarily S.R. 190 in Big Cottonwood Canyon, and that this “could increase
congestion” on S.R. 190 and down-canyon roads leading to S.R. 190. See id. at 20-9, 20-20–20-
23. This effective acknowledgement that the Project may shift cars and associated emissions from
one road to another undercuts the conclusion that the Project lowers GHG emissions.
150. Further, the FEIS’s financial modeling fails to adequately project the pricing of
gondola tickets, which is an essential factor in determining how well-utilized the gondola will be
46
as compared to personal vehicles. As noted in SLC’s FEIS Comment letter, the cost of the gondola
is likely underestimated, given inflation and supply chain issues, and the per person price of a
roundtrip gondola ticket would likely have an influence on whether the capacity of 1,000 people
per hour would be achieved. Without a pricing structure modeled to determine feasibility, it is
unclear if the selected option would substantially increase mobility within the Project area. See
SLC FEIS Comment Letter, at 3. Therefore, any conclusions that build off unsubstantiated
assumptions about gondola utilization are likewise unsubstantiated, including the FEIS’s
conclusions about the Project’s emissions.
151. The FEIS also fails to analyze the impacts that a changing climate will have on the
Project that will, in turn, impact the surrounding environment and communities. For example, the
FEIS fails to analyze how more extreme weather events in the future that may cause flooding,
avalanches, or fires that could damage the Project’s infrastructure and how that damaged
infrastructure may damage the surrounding environment. Nor does the FEIS consider how climate
change may impact the Project and its “affected environment” such that the proposed project no
longer serves its intended purpose. To the extent that a warmer climate reduces snowfall and/or
the duration of the skiing season, the need for the Project may be correspondingly reduced.
Congestion issues may be resolvable with the Enhanced Bus Service Alternative alone, eliminating
the need or cost-justification for the gondola. The FEIS does not consider these issues in any way.
152. The FEIS is likewise silent about how drought and climate change may impact
water supply for the Project and the region’s drinking water. The Project may be severely impacted
if there is insufficient water to support current levels of use of Little Cottonwood Canyon, much
less increased use induced by the Project. In addition, insufficient or overdrawn quantities of water
can significantly impact water quality. See SLC FEIS Comment Letter, at 1–2; see also PUD No.
47
1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 719 (1994) (recognizing that “water quantity is closely
related to water quality”). Therefore, any water quality analysis of the FEIS is incomplete without
examining water quantity and without examining the potential for diminishing and impaired water
resources under a changing climate.
E. Failure to Address Traffic and Other Impacts of the Project on S.R. 209,
Wasatch Boulevard, and Sandy City Neighborhoods.
153. Sandy City observed in comments on both the Draft EIS and FEIS that the Federal
Defendants were directing all their analysis and Project design to address 54% of the traffic flow
into the canyon. Sandy City also noted that the Project would include a 2,500 stall parking structure
in Sandy City in a geographically, geologically, and environmentally constrained location, and the
structure would likely have significant unstudied impacts on usage of and impacts from traffic on
S.R. 209, Wasatch Boulevard, and Sandy City neighborhoods. In multiple meetings with Sandy
City, UDOT’s general response was to assert that issues on S.R. 209, Wasatch Boulevard, and
Sandy City neighborhoods would be addressed in unspecified future transportation projects.
154. Aside from the inadequacy of deferring resolution of such issues to an
undetermined future, the FEIS lacks any analysis of the immediate impacts of the Project on those
roads and neighborhoods. The FEIS thus omits discussion of clear direct and indirect impacts of
the Project in the immediate Project area. The EIS recommended widening S.R. 210 to a five-lane
cross-section from Big Cottonwood Canyon to the proposed gondola base station. It did not
analyze S.R. 209 nor propose any needed improvements. Given that a five-lane cross section is
recommended for 54% of the projected trips, it is problematic not to analyze the infrastructure
needed for the other 46% of traffic entering the canyon. In spot locations from Highland Drive to
the mouth of Little Cottonwood Canyon, S.R. 209 is currently two lanes at its narrowest cross-
section. There are multiple horizontal and vertical curves that need to be analyzed for safety and
48
improvement, and frontage improvements for pedestrian safety and storm water drainage are
needed
F. Lack of Analysis of Induced Impacts in Big Cottonwood Canyon and

Neighborhoods at the Mouth of the Both Canyons.
155. As SLC pointed out in its FEIS Comments and Draft EIS comments, visitation and
transportation in the tri-Canyon area of Millcreek Canyon, Big Cottonwood Canyon, and Little
Cottonwood Canyon is inherently linked, and changes in one canyon will have impacts to visitation
and transportation in the others. See SLC FEIS Comment Letter,, at 2; SLC DEIS Comment Letter,
at 3, 5–6. The FEIS fails to adequately analyze the impacts that the Project would cause on the
other canyons and surrounding neighborhoods, particularly with respect to traffic, safety, water
quality, air quality, and GHG emissions.
156. As noted, the FEIS acknowledges that a potential indirect effect of the Project is
that it will simply push travelers to “visit other ski resorts that are not accessed via roads with
restrictions,” primarily into S.R. 190 in Big Cottonwood Canyon. Rather than analyze the impacts
of such a shift, the FEIS summarily concludes that “UDOT would likely implement a toll or a ban
on single-occupant vehicles on [S.R. 190] as well, so both S.R. 190 and S.R. 210 would have
similar congestion-management policies.” See FEIS, at 20-9.
157. This discussion of Big Cottonwood Canyon is deficient for multiple reasons. First,
it is speculative to assert that UDOT “would likely” implement a toll or single-occupant-vehicles
ban in S.R. 190. Even if UDOT did implement those measures, the FEIS does not explain or
analyze the associated air quality and GHG impacts. The FEIS effectively acknowledges that
Project may simply shift cars around from one road to another in the region, rather than reducing
vehicle miles travelled, and it fails to account for this in calculating associated vehicle air emissions
and GHG emissions. This undercuts the accuracy of the FEIS’s conclusion that “[a]ll of the action
49
alternatives would have lower CO2e emissions than the No-Action Alternative, resulting in a
reduction in GHG emissions.” See id., at 10-26.
158. Second, the FEIS also fails to analyze how shifting cars from Little Cottonwood
Canyon into Big Cottonwood Canyon will impact water quality. SLC’s Big Cottonwood Water
Treatment Plant sits at the mouth of Big Cottonwood Canyon. Big Cottonwood, like Little
Cottonwood, is a protected source of drinking water. As such, any degradation of the Big
Cottonwood watershed has serious implications for the quality of the drinking water managed by
Plaintiffs, the legal obligations that Plaintiffs must meet, and the costs involved in drinking water
treatment that will be borne by ratepayers, similar to impacts on the quality of the Little
Cottonwood watershed.
159. Third, the FEIS fails to sufficiently consider that the Project will require visitors
of Little Cottonwood Canyon to drive through neighborhoods at the base of the canyon to reach
transit modules. This gap in analysis fails to meet the part of the Project’s purpose and need that
identifies the need to also solve the issue of decreased mobility on Wasatch Boulevard resulting
from canyon commuter traffic.
G. Lack of Analysis of Environmental Justice Impacts.
160. The FEIS and ROD tout the economic benefits of the Project while failing to
analyze many of the induced costs or the disproportionate impacts of the costs that will be borne
by disadvantaged communities who are unable to enjoy any direct benefits the gondola might
provide. See SLC FEIS Comment Letter, at 4.
161. The gondola is projected to cost $730 million. The ROD and FEIS fail to explain
how this will be paid for. Further, the gondola is designed for riders to access two high-cost ski
resorts at the top of Little Cottonwood Canyon, with no stops along the canyon until it reaches the
resorts. Therefore, the gondola does not directly address mobility, access, safety, or reliable
50
transportation for all users; it is primarily designed for a select group of users accessing the two
high-cost ski resorts. See SLC DEIS Comment Letter, at 3. Moreover, the ROD and FEIS also fail
to analyze how much the cost might be for a ticket to ride the gondola. See SLC FEIS Comment
Letters, at 3. So, to the extent that any members of the public wish to ride the gondola for the
scenic experience or to access the top of Little Cottonwood Canyon without purchasing a ski resort
ticket, there is no analysis of whether a gondola ticket is within the economic reach of many
members of the public, particularly economically disadvantaged families.
162. To the extent any significant share of the $730 million in gondola costs will be
borne by the general public, the possibility that such cost could be shouldered equally by
economically disadvantaged communities within the Salt Lake Valley (through tax initiatives, car
registration fees, or bonds) creates an unjustified and disproportionate impact on such communities
who may never be able to take advantage of the gondola.
163. Further, as noted in SLC’s FEIS comment letter, the FEIS and ROD fail to analyze
indirect costs related to water resource and quality protections that would need to increase due to
construction, operation, and increased recreation impacts. See SLC FEIS Comment Letter, at 3–4.
These costs would likely become the burden of the public and SLC water rate-payers, which will
disproportionately burden economically disadvantaged communities. For instance, SLC actively
funds USFS summer seasonal staff, Unified Police Department Canyon Patrol staff, and nonprofit
partner staff, which provides a cumulative positive impact on mitigating the impacts of recreation
on drinking water source quality in the watershed. SLC also funds restroom capital and operation
and maintenance (“O&M”) projects and the abatement of noxious weeds within Little Cottonwood
Canyon. See id. While the FEIS includes the costs of the gondola’s direct O&M costs, it fails to
include the additional costs to entities that bear the impacts and associated costs of increased
51
recreation management needs and drinking water protection. The FEIS should have, but did not,
analyze the extent to which costs such as increased cost to treat public drinking water due to
increased pollution may disproportionately impact low-income communities.
164. The FEIS does contain a cursory analysis of environmental justice impacts, but it
too narrowly defines the geographic scope and types of impacts examined in such analysis, as
pointed out in SLC’s FEIS Comment Letter. See id., at 4. The FEIS’s environmental justice impact
analysis area is focused on an area within 0.25 miles of S.R. 210 from Fort Union Boulevard to
the town of Alta and includes proposed mobility hubs at the gravel pit and the park-and-ride lot at
9400 South and Highland Drive. See FEIS Section 5.1. Although the FEIS analyzes the
environmental justice impact on communities within this limited geographic area, it does not
analyze the equity and fairness impacts on all communities who will bear the burden of the direct
and indirect costs of the gondola and higher drinking water costs.
H. Inadequate Analysis of Transportation Act Section 4(f) Properties and

Omission of Properties from Section 4(f) Protection.
165. The Forest Service and UDOT determined that numerous properties qualified as
Section 4(f) properties, including the Alpenbock Loop Trail, Alpenbock Spur Trail, and Grit Mill
Connector Trail, and the Little Cottonwood Canyon Climbing Historic District. See FEIS, at, at
26-26–26-57.
166. In summary fashion, UDOT determined that the Project’s impacts with respect to
each of these properties would be de minimis. Id.
167. Numerous commenters protested UDOT’s analysis with respect to these
properties, see, e.g., FEIS at 32-73, 32-131–32-133, 32-215–32-217, but UDOT dismissed these
concerns without meaningful analysis or support in the record.
52
168. In addition, UDOT did not evaluate whether the Twin Peaks or Lone Peak
Wilderness Areas, or areas designated for protection as drinking water sources, qualified for
protection under Section 4(f), and therefore did not evaluate whether the constructive and actual
uses of these properties by the Project posed greater than de minimis impacts, triggering the
statutory obligation to avoid, minimize, and mitigate impacts.
CLAIMS FOR RELIEF
First Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Water Supply
Impacts of the Project
169. Each and every allegation set forth in this complaint is incorporated herein by
reference.
170. NEPA requires federal agencies to take a hard look at the direct, indirect, and
cumulative environmental consequences of their actions. See 42 U.S.C. § 4332; 40 C.F.R.
§ 1508.1(g). NEPA regulations expressly require examination of impacts on “[n]atural or
depletable resource requirements and conservation potential of various alternatives and mitigation
measures,” as well as “[p]ossible conflicts between the proposed action and the objectives of
Federal, regional, State, Tribal, and local land use plans, policies and controls for the area
concern.” 40 C.F.R. § 1502.15(a). Thus, pursuant to NEPA, Federal Defendants were required to
take a hard look at direct, indirect, and cumulative impacts of authorizing the Project on the
critically protected watershed of Little Cottonwood Canyon. 40 C.F.R. § 1508.25(c).
171. The Project, individually and when combined with other past, present, and
reasonably foreseeable future actions, has potentially significant direct, indirect, and cumulative
impacts to the availability and quality of the water supply within the entire watershed. In spite of
this, Federal Defendants did not adequately analyze impacts to the water supply in the area
associated with the Project. Instead, Federal Defendants relied on a single statement related to
53
water use and sewer use at Snowbird Ski Resort, inflating that to declare that all water supply
concerns throughout the entirety of Little Cottonwood Canyon would be satisfied.
172. The Federal Defendants failed to take a hard look at the direct, indirect, and
cumulative impacts to water supplies associated with the Project. As a result, their decisions to
selecting the Enhanced Bus Service Alternative and Gondola Alternative B were “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of NEPA
and the APA. 5 U.S.C. §§ 706(1), (2)(A).
Second Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Water Quality
Impacts of the Project
reference.
174. NEPA obligates federal agencies to prepare an EIS for “major federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Whether a
proposed action “significantly” impacts the environment is determined by considering “context
and intensity.” 40 C.F.R. § 1508.27.
175. In concluding that the water quality impacts of the Project would be insignificant,
the Federal Defendants used an inapplicable model and failed to adequately consider the special
protections applicable in Little Cottonwood Canyon and special sensitivity necessary for
protecting a public water supply.
176. Because the Federal Defendants failed to take a hard look at the direct, indirect, and
cumulative impacts to water quality associated with the Project, their decision in selecting the
Enhanced Bus Service Alternative and Gondola Alternative B were “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,” in violation of NEPA and the APA.
5 U.S.C. §§ 706(1), (2)(A).
54
Third Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Impacts of the
Project on Wilderness Areas in Little Cottonwood Canyon
reference.
178. NEPA has, since its inception, required federal agencies to take a hard look at the
environmental consequences of their actions, including the direct, indirect, and cumulative impacts
of the Project. See 42 U.S.C. § 4332; 40 C.F.R. § 1508.1(g); 43 Fed. Reg. at 25244; Marsh, 490
U.S. at 371–74; Kleppe, 427 U.S. at 410; see also 52 Fed. Reg. 32660 (FHWA NEPA regulations);
83 Fed. Reg. 54480 (same). This includes a hard look at impacts to nearby wilderness areas. Izaak
Walton League, 516 F. Supp. 2d at 987–90; Greater Yellowstone Coalition, 12 F. Supp. 3d at
1275–79.
179. Relying on misinterpretations of the applicability and scope of Buffer Zone
Provision in Section 303 of the Utah Wilderness Act, the Federal Defendants did not analyze any
impacts of the Project on the surrounding Twin Peaks and Lone Peak Wilderness Areas. Indeed
no analysis was performed to understand the visual impacts of the gondola or the noise impacts of
the gondola, including additional noise from the significant increase in users of the canyon.
180. The Federal Defendants’ failure to engage in the analysis of impacts on the
Wilderness Areas is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law,” and is, therefore, in violation of the NEPA regulations and the APA. 5 U.S.C.
§§ 706(1), (2)(A).
Fourth Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Impacts of the
Project on Climate Change and the Impacts of Climate Change on the Project
reference.
55
182. Among the various types of indirect and cumulative impacts that must be
considered, “[t]he impact of [GHG] emissions on climate change is precisely the kind of [] impacts
analysis that NEPA requires agencies to conduct.’” Diné Citizens Against Ruining Our Env’t, 59
F.4th at 1035 (citation omitted). Relatedly, “NEPA [also] requires an evaluation of the impact of
climate change on a project.” See AquAlliance, 287 F. Supp. 3d at 1028.
183. The FEIS fails to substantively and adequately analyze the Project’s climate change
impacts. It also fails to analyze the impacts that a changing climate will have on the Project that
will, in turn, impact the surrounding environment and communities.
184. These failures were “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” in violation of NEPA and the APA. 5 U.S.C. §§ 706(1), (2)(A).
Fifth Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at Effects of the Project on
S.R. 209, Wasatch Boulevard, adjoining Sandy City Local Streets
reference.
186. The Federal Defendants failed to analyze the impacts of the Project on S.R. 209,
Wasatch Boulevard, and Sandy City neighborhood streets, notwithstanding the fact that these
arterial and surface streets carry nearly half the traffic entering Little Cottonwood Canyon. The
Federal Defendants also failed to analyze the impacts of important Project infrastructure, such as
the proposed 2,500 stall parking structure in Sandy City, on these roads and the surrounding Sandy
City neighborhoods.
187. By excluding meaningful analysis of the direct and indirect traffic and other effects
of the Project on S.R. 209, Wasatch Boulevard and Sandy City neighborhoods, the FEIS and ROD
56
are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in
violation of NEPA regulations and the APA. 5 U.S.C. §§ 706(1), (2)(A).
Sixth Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Cumulative Effects of
the Project on Big Cottonwood Canyon and Other Resources
reference.
189. The Federal Defendants make brief references to potential ripple effects of the
Project on Big Cottonwood Canyon and other adjacent areas, but the FEIS fails to include serious
analysis. This lack of analysis is problematic under NEPA because, as the FEIS itself alludes, there
is little doubt that the Project will affect usage of Big Cottonwood Canyon and other nearby
canyons.
190. By excluding meaningful analysis of effects on Big Cottonwood Canyon, other
canyons, and affected communities, the FEIS skews the overall Project impacts, making the
environmental consequences and indirect effects analysis “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” in violation of NEPA regulations and the
APA. 5 U.S.C. §§ 706(1), (2)(A).
Seventh Claim for Relief

Violation of NEPA and the APA: Unlawful Approval of Project that Does Not Fit the
Purpose and Need of the Proposed Action
reference.
192. Under NEPA, an agency must consider any reasonable alternative that meets the
Project Purpose and Need, and may “not define the project so narrowly that it foreclose[s] a
reasonable consideration of alternatives.” Davis, 302 F.3d at 1119.
57
193. The Federal Defendants failed to consider the potential that the congestion issues
and mobility needs in Little Cottonwood Canyon could be satisfied sufficiently by the Enhanced
Bus Service Alternative as proposed, modified, and/or improved, particularly in light of the many
environmental issues created by the gondola, and by the effects of a changing climate on Little
Cottonwood Canyon.
194. Furthermore, the Federal Defendants inappropriately narrowed the needs of the
Project to focus on wintertime traffic issues related to visiting the ski resorts in Little Cottonwood
Canyon, thereby failing to achieve the stated purpose of the Project, which was to enhance mobility
for all canyon users.
195. The selection of the preferred alternative cannot be justified to fit the purpose and
need given the uncertainties around the cost of riding the gondola or the cost of the toll on S.R.
210 and whether either of those actions will induce changed behavior to improve mobility in Little
Cottonwood Canyon.
196. By excluding meaningful analysis of the ability of the Enhanced Bus Service
Alternative and variations thereof to satisfy the Project Purpose and Need without the gondola, the
Federal Defendants’ approval of the Project was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” in violation of NEPA and the APA. 5 U.S.C. §§ 706(1),
(2)(A).
Eighth Claim for Relief

Violation of NEPA and the APA: Failure to Take a Hard Look at the Environmental
Justice Impacts of the Project
reference.
198. Under Executive Order 12898, the FHWA Memorandum Guidance on
Environmental Justice and NEPA, FHWA Order 6640.23A and U.S. DOT issued Order 5610.2(c)
58
and its predecessors, the FHWA is required to analyze “whether a particular program, policy, or
activity will have disproportionately high and adverse effects on minority and low-income
populations,” and “take into account mitigation and enhancement measures and potential offsetting
benefits to the affected minority and/or low-income populations.” See FHWA Order 6640.23A.
The agency must also ensure that “prevention of disproportionately high and adverse effects are
an integral part of its programs, policies, and activities.” U.S. DOT Order 5610.2C. And the agency
must ensure and document meaningful opportunities for public participation for environmental
justice communities.
199. The FEIS and ROD promote the economic benefits of the gondola while failing to
analyze many of the induced costs and disproportionate impacts of the costs that will be borne by
disadvantaged communities who are unable to enjoy any direct benefits the gondola might provide.
As discussed, the FEIS and ROD fail to analyze the price of a gondola ticket and whether such
price might be affordable to low-income communities to be able to enjoy the benefits of riding the
gondola. The FEIS and ROD fail to analyze the cost of the gondola as well as induced increased
costs of water quality treatment, which are likely to be borne by the public and water ratepayers,
or how such increased costs will disproportionately impact low-income communities.
200. UDOT’s environmental justice analysis is an impermissible “bare bones
conclusion.” See Standing Rock Sioux Tribe, 255 F. Supp. 3d at 138–40. This renders the ROD
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in
violation of NEPA and the APA. 5 U.S.C. §§ 706(1), (2)(A).
Ninth Claim for Relief

Violation of Wilderness Act and the APA: Failure to Analyze and Mitigate the Effects of
the Project on Adjacent Wilderness Areas
reference.
59
202. In addition to its NEPA obligations, the USFS has a substantive duty to protect
Wilderness Areas within its jurisdiction from degradation.
203. Nevertheless, the USFS has decided to rely on the FEIS and its erroneous
interpretation of the Buffer Zone Provision in omitting consideration of visual and noise impacts
that the Project will inflict on the Twin Peaks and Lone Peak Wilderness Areas.
204. Although the USFS has not yet made specific approvals for the Project, and has
further stated that future USFS approvals for the Project must comply with NEPA, the USFS’s
adoption of the FEIS is a final agency action currently subject to judicial review under the APA.
This is because the erroneous interpretation of the Buffer Zone Provision is a question of law that
is not dependent on the future details of specific Project authorizations that may, or may not, be
sought from the USFS. The USFS duty to protect the Wilderness Areas exists affirmatively and
independently of whether and what specific additional USFS authorizations are sought. In fact, the
potential that USFS authorizations may not be sought from the USFS, notwithstanding the impacts
of the Project on the Wilderness Areas, coupled with the December 11, 2023 deadline for
challenges to the FEIS and ROD, compels a conclusion that the USFS’s reliance on erroneous
interpretation of the Buffer Zone Provision is presently reviewable.
205. USFS’s adoption of the erroneous interpretation of the Buffer Zone Provision has
led, or will lead, to its failure to discharge its affirmative duties under the Wilderness Act of 1964,
and is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in
violation of the Wilderness Act and the APA. 5 U.S.C. §§ 706(1), (2)(A).
Tenth Claim for Relief

Violation of the Transportation Act and the APA: Failure to Analyze, Reduce, and Avoid
the Effects of the Project on Protected Public Lands
reference.
60
207. The FEIS is deficient because it impermissibly excludes Section 4(f)-eligible
properties, including adjacent wilderness areas, the Uinta-Wasatch-Cache National Forest, and
lands protected as drinking water supply sources from its Section 4(f) analyses.
208. Beyond failing to include all eligible properties in its Section-4(f) analysis, the
analysis UDOT did conduct is deficient.
209. Specifically, UDOT’s determination that the Project would impose “no adverse
impact” or a “de minimis impact” on certain properties—including but not limited to the Little
Cottonwood Historic Climbing District and the Alpenbock Trail/Grit Mill Climbing
Opportunities—was conclusory and failed to adequately analyze the Project’s impacts.
210. By excluding meaningful analysis of Section 4(f)-eligible properties from the
avoidance, minimization, and mitigation requirements of Section 4(f), the FEIS and ROD for the
Project are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
in violation of NEPA and the APA, 5 U.S.C. §§ 706(1), (2)(A), and violate the substantive
requirements of Section 4(f) of the Transportation Act of 1966.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
A. Declare that Federal Defendants violated NEPA in authorizing the Project;
B. Declare that the USFS has violated the Wilderness Act of 1964 in relying on the
FEIS;
C. Declare that Federal Defendants violated the Transportation Act of 1966 in
authorizing the Project;
D. Vacate and remand the ROD and Federal Defendants’ approvals of the Project;
E. Enjoin the Federal Defendants from taking any further action to implement the
Project or authorize any additional component of the Project until it prepares a
61
supplemental EIS and new ROD that comply with NEPA, the Wilderness Act of
1964, the Transportation Act of 1966, and the APA.
F. Grant Plaintiffs their costs of litigation including reasonable attorneys’ fees; and
G. Grant Plaintiffs such additional and further relief as the Court deems just and
proper.
DATED this 11th day of December, 2023. DORSEY & WHITNEY LLP
By: /s/ Megan J. Houdeshel

Michael Drysdale
Megan J. Houdeshel
Ashley M. Walker
Attorneys for Plaintiffs Salt Lake City

Corporation, Sandy City, and Metropolitan
Water District of Salt Lake & Sandy
SNOW CHRISTENSEN & MARTINEAU
By: /s/ Scott H. Martin (with permission)

Shawn E. Draney
Scott H. Martin
Dani N. Cepernich
Attorneys for Plaintiffs Salt Lake City

Corporation, Sandy City, and Metropolitan
Water District of Salt Lake & Sandy
62

Petition For Review of Agency Action, Civil No. 2:23-cv-00893

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Petition For Review of Agency Action, Civil No. 2:23-cv-00893

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Case 2:23-cv-00893-DBB Document 2 Filed 12/11/23 PageID.

Megan J. Houdeshel (#12429)

Michael Drysdale (MN Bar #0257606)

Shawn E. Draney (#4026)

Attorneys for Plaintiffs Salt Lake City Corporation,

UNITED STATES DISTRICT COURT

SALT LAKE CITY CORPORATION; PETITION FOR REVIEW OF AGENCY

Plaintiffs, Judge David Barlow

GLORIA M. SHEPHERD; IVAN

transportation improvements approved for implementation in Little Cottonwood Canyon, Utah,

2. At issue are the Federal Defendants’ uninformed and unlawful approvals of a

improvements on S.R. 210, including road widening, trailhead improvements, avalanche

Little Cottonwood Canyon (collectively, the “Project”).

environmental justice effects.

factual errors. These include:

water quality in Little Cottonwood Canyon, which is a critical drinking water

supply source for the Salt Lake Metropolitan area;

adjacent Twin Peaks and Lone Peak Wilderness Areas;

resources in Little Cottonwood Canyon;

and operation of the Project;

City and neighboring communities directly intertwined with a proposed base

station and parking garage at the mouth of Little Cottonwood Canyon;

Cottonwood Canyon; and,

give required approvals.

§ 4321 et seq.—our nation’s charter for environmental protection—by failing to sufficiently

measures to avoid, reduce, or mitigate such impacts.

5 U.S.C. § 701 et seq.

JURISDICTION AND VENUE

relief), and 2202 (injunctive relief).

the Declaratory Judgment Act, 28 U.S.C. § 2201.

County, State of Utah.

Cottonwood Canyon, to regulate activities to avoid pollution or degradation of these critical

management and source protection of Little Cottonwood Canyon.

20. Plaintiff MWDSLS is a Metropolitan Water District, a form of Special District,

overseeing all federal highway and street programs.

for the USFS Intermountain Region.

Wasatch-Cache National Forest.

of the Utah Department of Transportation (“UDOT”). In this capacity, he is responsible for

administration, operations, and activities of UDOT.

I. The Federal Transportation Project Process

30. Federal law imposes extensive procedural requirements on federally funded

highway projects. See generally 23 U.S.C. §§ 101–611.

(imposing other requirements on federally funded highway projects).

highway project begins. See generally id. § 139.

NEPA requires an environmental impact statement. Id.

law pertaining to the review or approval of a project.” Id. § 327(a)(2)(B)(ii).

36. If a state assumes the Secretary of Transportation’s responsibilities under NEPA,

37. UDOT has ratified a memorandum of understanding with the Department of

Transportation in which UDOT has assumed the Department of Transportation’s responsibilities

review of the Project under the Administrative Procedure Act.

II. The National Environmental Policy Act

38. NEPA establishes a national policy to “encourage productive and enjoyable

alternatives and mitigation measures.” 40 C.F.R. § 1502.15(a).

41. The scope of the “environmental effects,” or “environmental consequences,” that

consideration of “cumulative or synergistic environmental impacts[s]”). Further, NEPA

54480 (Oct. 29, 2018).

42. “Cumulative effects” are:

effects on the environment that result from the incremental effects

See 40 C.F.R. § 1508.1(g)(3). In addition, the definition of “effects” includes

ecological . . ., aesthetic, historic, cultural, economic, social, or

1281–82 (10th Cir. 2016)).

45. NEPA “requires agencies preparing environmental impact statements to consider

commenting agency is also a cooperating agency in the NEPA process.