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BEFORE THE REGIONAL FORESTER OF REGION FOUR OF THE UNITED STATES FOREST SERVICE In Re Appeal of Decision Notices and Environmental Assessments for the revision of Allotment Management Plans and authorization to continue grazing on 36 cattle allotments and 6 sheep allotments on the Fishlake National Forest. UTAH ENVIRONMENTAL CONGRESS APPELLANTS APPEAL NO. ______ INTRODUCTION STATEMENT OF FACTS ARGUMENTS REQUEST FOR RELIEF DATED this ___ day of ________ 2000. By _________________________
Craig Axford, Program Director Introduction NOTICE IS HEREBY GIVEN that the Utah Environmental Congress hereby appeal pursuant to 36 CFR 215.7 to the Regional Forester of Region Four, from the Decision Notices for the 36 Cattle Allotments and 6 Sheep Allotments Environmental Assessments issued by Rob Mrowka, Forest Supervisor of the Fishlake National Forest on January 26, 2000. The Utah Environmental Congress (UEC) is a non-profit organization dedicated to maintaining, protecting and restoring the native ecosystems of Utah. The UEC has an organizational interest in the proper and lawful management of Utah's national forests, including the Fishlake National Forest. UEC's members participate in a wide range of recreational activities on the Fishlake National Forest, including the more than 600,000 acres impacted by this action. The UEC represents more than 150 individual members, 10 organizations and 13 businesses. The organizations which are a member of the UEC represent more than 30,000 additional individuals, many of whom have visited the Fishlake National Forest or have a direct interest in its management. The UEC claims standing to participate in the public land decision-making process on the grounds that it has been involved in forest management for more than a year. Its members have hiked, fished, hunted and photographed the Fishlake National Forest, including areas impacted by the renewal of Allotment Management Plans discussed within the EAs. UEC members include professional photographic businesses and freelance photographers that make their living in part by photographing Utah's national forests, including the Fishlake. The impacts associated with the renewal of these Allotment Management Plans detract from the beauty and biodiversity that makes these lands appealing to both professional photographers and UEC members that recreate within the affected area. In addition, UEC's members are taxpayers that are required to subsidize the grazing activities discussed within the EAs and accompanying Decision Notices. The irretrievable commitment of resources associated with this subsidy is also borne by the American People as a whole. The UEC claims partial ownership in the public lands covered by this decision and consequently has legal standing to participate in the process and challenge those decisions it finds unacceptable. The decision to renew the 42 Allotment Management Plans and authorize continued grazing on the associated allotments significantly affects the appellants for the reason that the appellant is a conservation group whose members regularly engage in diverse forms of recreation and in other uses of the Fishlake National Forest. The proposed action will degrade critical wildlife habitat and adversely affect the members' recreational use and enjoyment of the area. The UEC has participated in the comment process for the 36 cattle allotments and 6 sheep allotments covered in the Environmental Assessments prepared by the Fishlake National Forest. In addition, we have commented on and participated in meetings with the Fishlake National Forest regarding a variety of other projects on that national forest and have spent considerable time and resources surveying the resources contained within the boundaries of the Fishlake National Forest. The UEC is appealing the Decision Notice and FONSI on the grounds that the decisions are legally indefensible. The UEC believes the Fishlake National Forest violated the National Environmental Policy Act (NEPA) by failing to provide a reasonable range of alternatives, including a no action alternative. In addition, the UEC believes the Fishlake National Forest failed to fully analyze the cumulative effects associated with the proposed action and violated NEPA by failing to complete an EIS on a proposal that clearly has significant impact on the human environment. The UEC is also appealing the Decision Notices and FONSI on the grounds that the Fishlake National Forest has violated the National Forest Management Act (NFMA) by failing to maintain adequate inventories of the Management Indicator Species, including threatened and endangered species, as required by that law. The Fishlake National Forest is also failing to monitor and protect water quality within the affected area as required by NFMA and the Clean Water Act. The Decision Notice also failed to substantively and thoughtfully address concerns raised by the public during the public comment period on the Draft EAs in violation of 36 CFR 215. The Appellant desires and will request relief in the form of a remand of the 36 cattle allotment and 6 sheep allotment AMP renewal and continued grazing authorization Decision Notices and EAs signed by Fishlake National Forest Supervisor Rob Mrowka on January 26, 2000. Statement of Facts The proposed renewal of Allotment Management Plans (AMP) and authorization for continued grazing affects 629,727 acres in the case of cattle and 61,015 acres covered by the six sheep allotments. According to the EAs all four Ranger Districts containing the 42 allotments analyzed contain streams and/or water bodies identified on the Utah State list of 303(d) waters. In addition, both EAs state "TEPS (threatened, endangered, proposed and sensitive) species and habitat may occur in the Project Area. Occupied habitat for TEPS wildlife include northern goshawk, peregrine falcon, southwestern willow flycatcher, Mexican spotted owl, Utah prairie dog, Bonneville cutthroat trout, and Colorado cutthroat trout." Both EAs go on to state "Occupied habitat for TEPS plants include Arizona willow, Barneby woody aster, Bicknell milkvetch, Tushar paintbrush, creeping draba, Nevada willowherb, Elsinore buckwheat, little penstemon, Ward beardtongue, Beaver Mountain groundsel, Maguire campion, Sevier townsendia, Bicknell thelesperma, San Rafael cactus, Winkler cactus, and Wonderland alice-flower." The project area also contains "Critical winter range and critical fawning areas" for mule deer. Among the streams and water bodies containing the sensitive Bonneville cutthroat trout are Sam Stowe Creek, Manning Meadows Reservoir, Manning Creek, Lake Creek, South Creek, Birch Creek, Briggs Creek, Pine Creek, South Fork North Creek and North Fork North Creek. The Colorado cutthroat trout exists in Sand Creek, UM Creek and the Fremont River. Of all these creeks and water bodies macroinvertebrate surveys have only been conducted on three creeks and all results were below Forest Plan standards. Of the streambank conditions described within both EAs only one streambank is listed as being in "excellent" condition. Eight streambanks were listed as being in "unsatisfactory" condition, one as "functioning at risk", two as "fair to poor", two as "fair", three as "fair to good", two as "stable", seven as "satisfactory", one as "fair to satisfactory", four as "good" and seven as "stable." The variety of adjectives used to describe these streambanks demonstrates how subjective these determinations are. The cattle EA admits "Of the 36 cattle allotments analyzed, 17 were identified as having unsatisfactory conditions with respect to watershed integrity or pertaining to water quality issues." In spite of this fact the proposed action for both the sheep and cattle allotments proposes no change in the number of AUMs allowed on these allotments. Under both current conditions and the proposed action 54,000 AUMs would be allowed on the 36 cattle allotments and 3,700 AUMs would be permitted on the 6 sheep allotments. Only three alternatives were considered in each EA and only two were considered in detail. These alternatives included the no grazing alternative and the proposed action. In both EAs developed for this proposal the no action alternative was dismissed from detailed analysis, a violation of NEPA. Arguments The ensuing arguments will demonstrate that the Fishlake National Forest has violated numerous federal land management statutes, including the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Endangered Species Act (ESA), the Clean Water Act (CWA) and the Administrative Procedures Act (APA).
As stated in the Statement of Facts on the previous page, the Fishlake National Forest considered only two alternatives in detail, the "No Grazing Alternative" and the "Proposed Action." Among the 15 comments received by the Fishlake National Forest regarding the draft EAs four drew attention to the failure of the Fishlake to provide a reasonable range of alternatives. In their response to concerns raised by the public about the range of alternatives considered the Fishlake National Forest states "this alternative (the No Grazing Alternative) is also not consistent with the Forest Plan direction, due to the emphasis for livestock grazing in management areas throughout the Forest (659,000 acres within the 1.5 million-acre Forest) and the heavy dependence on agriculture and range commodity outputs." (Page 5, Response to Comments 30 Day Notice and Comment Period, May 7, 1999). In other words, only the proposed action is a viable alternative in spite of the fact that eliminating grazing is considered in detail. This statement effectively forecloses consideration of any alternative other than the proposed action. This is a clear violation of both the spirit and the letter of NEPA. The Fishlake National Forest similarly justifies its decision to not consider in detail a "No Action" alternative. In the same document quoted above the Fishlake National Forest states that "For the purpose of developing or revising AMP's for active grazing allotments with grazing permits in force, the No-Action alternative required by CEQ is no change from the current management, not a No-Grazing alternative." (Ibid, emphasis added). The Fishlake goes on to explain that "Both the sheep and cattle EAs conclude that the No Action (no change) alternative ...is not compliant with Forest Plan standards and guidelines, and therefore could not be carried forward as a viable alternative." (Ibid) In spite of the above statement that the No Action alternative is in fact the "no change" alternative discussed in the EAs and in the Fishlake's response to the public, the Fishlake National Forest states in the Decision Notices for both the sheep and cattle allotments that "The No Action alternative was considered in detail in the EA. Under this alternative, no permits with term status would be issued to allow grazing of livestock." (Emphasis added). The decision-maker and the ID team clearly had different views as to whether in fact the No Action alternative was the no grazing alternative. The EAs clearly state that the No Action alternative "will not receive further detailed study in this analysis." The Council on Environmental Quality and NEPA are clear on the requirement that a No-Action Alternative be included and fully analyzed in an EA or EIS. Question #3 in the CEQ's Forty Most Asked Questions Concerning CEQ's NEPA Regulations reads "No-Action Alternative. What does the "no action" alternative include? If an agency is under a court order or legislative command to act, must the EIS address the "no action" alternative?" In answering this question the CEQ states "...the 'no action' alternative may be thought of in terms of continuing with the present course of action (which it is in this case according to the Fishlake National Forest) until the action is changed. Consequently, projected impacts of alternative management schemes would be compared in the EIS to those impacts projected for the existing plan. In this case, alternatives would include management plans of both greater and lesser intensity, especially greater and lesser levels of resource development." (Emphasis added) The CEQ concludes its answer to question 3 by stating "In light of the above, it is difficult to think of a situation where it would not be appropriate to address a "no action" alternative. Accordingly, regulations require the analysis of the no action alternative even if the agency is under a court order or legislative command to act. This analysis provides a benchmark, enabling decisionmakers to compare the magnitude of environmental effects of the action alternatives. It is also an example of a reasonable alternative outside the jurisdiction of the agency which must be analyzed. Section 1502.14 (c). Inclusion of such an analysis in the EIS is necessary to inform the Congress, the public, and the President as intended by NEPA. Section 1500.1(a)."(Emphasis added) Though the Fishlake National Forest is not under a court order or legislative command in this case, they are interpreting the Forest Plan as requiring action and using it as an excuse not to provide a "No Action" alternative. It is clear that CEQ regulations and NEPA require its inclusion as a "benchmark" against which other alternatives can be compared regardless of whether or not it can actually be implemented. CEQ also refers to the need for alternatives that are of both a "greater and lesser intensity" than the current management practices reflected in the no action alternative. Because the Fishlake claims the no grazing alternative violates its Forest Plan and the proposed action leaves the AUMs unchanged, the Forest is also in violation of this requirement which goes to the heart of the "reasonable range of alternatives" stipulation contained within NEPA. While the above statement refers repeatedly to environmental impact statements, the courts are clear that "Consideration of alternatives is critical to the goals of NEPA even where a proposed action does not trigger the EIS process. This is reflected in the structure of the statute: while an EIS must also include alternatives to the proposed action, 42 U.S.C. 4332 (2) (C) (iii) (1982), the consideration of alternatives requirement is contained in a separate subsection of the statute and therefore constitutes an independent requirement." Bob Marshall Alliance v. Hodel, 852 F. 2d 1223, 1228-29 (9th Cir. 1988). The Fishlake National Forest has clearly violated the law with regards to both the lack of analysis given to a "No Action" alternative and reasonable range of alternatives.
The Fishlake's environmental assessment admits "livestock grazing is the greatest contributor" to "increased erosion and sedimentation to the streams." (Page 4-43). The EAs go on to state "The sloughing and collapse of stream banks caused by improper livestock grazing is probably the greatest effect livestock can have on fish populations. Elimination of vegetation and caving in of stream banks are among the principal factors contributing to the decline of native trout in western streams." (Page 4-44, emphasis added). Given that these significant impacts will continue to occur across such a large area under the decisions, an EIS should have been written to more fully evaluate the consequences of the proposed action. The courts have ruled that NEPA requires a "detailed analysis of local geographic conditions necessary for the decision-maker to determine what course of action is appropriate under the circumstances." NRDC v. Morton's, 388 F. Supp. 829 (D.D.C) aff d 527 F. 2d 1386 (D.C. Cir. 1976), cert. Denied, 427 U.S. 913 (1976). Given the amount of land covered in the EAs it was impossible to provide either the decision maker or the public a "detailed analysis of local geographic conditions." Furthermore, "the decision-maker [must] consider all of the specific and particular consequences of his actions." Id. "The crucial point is that the specific environmental effects of the permits issued, and to be issued, in each district be assessed." Id. The current analysis does not break down the impacts of the proposed action by watershed, vegetation type, soil conditions or even Ranger District. The cumulative effects of the proposed actions are not and cannot be analyzed within an EA. Instead, the decisions rely upon EAs that make general assumptions about conditions and impacts spread over more than 690,000 acres. While admitting that many allotments are in poor condition, the decisions fail to adjust grazing levels, or even consider adjustments in grazing levels, on any of those allotments, thus failing to adequately address the cumulative effects of the proposed action. In making a determination regarding whether or not to prepare an EIS NEPA requires an agency to consider, among other things, the "intensity" of the proposed action. In evaluating intensity to determine its significance the CEQ regulations at section 1508.27(7) tell agencies to consider whether "the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or breaking it down into small component parts." While individually the impact of grazing on each given allotment may be deemed insignificant, when viewed on the scale of more than 690,000 acres and involving more than 57,000 AUMs its impact is significant in terms of the environmental, social and economic consequences of the action. The Fishlake National Forest is attempting to determine grazing policy on nearly half of the Forest for the next 10 years (the life of the permits to be renewed) without carefully considering the full consequences of this action, thus violating NEPA. Given the scope of the impacts to wildlife, watersheds and the economy (both local and regional) the Fishlake National Forest cannot avoid its obligation to complete an EIS on this proposal.
NEPA defines "Cumulative impact" as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future action regardless of what agency (Federal or non-Federal) or person undertakes such actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." (40 CFR 1508.7). While the EAs mention the future use of fire, timber harvest, road construction and increased recreation within the cumulative effects area (CEA), they fail to analyze the cumulative impact of these actions when combined with grazing and completely ignore the role grazing plays in fuel loading, loss of aspen habitat and increased risk of catastrophic fire or beetle infestations. The EAs conclude "Little information is available on the effects of "proper use" by livestock." (Page 4-11). The EAs outline "Some of the ways in which cattle (and sheep) grazing can affect wildlife or their habitats" but fail to reach any strong conclusions about the impacts of grazing within the CEA and consistently state that there will be no significant impact on the human environment without providing any evidence to support that conclusion. The UEC raised concerns within its comments about the impact continued grazing at current levels could have on wildlife, aquatic species and TES plant and animal species. The Fishlake National Forest did incorporate by reference documents that dealt with the overall effects of livestock grazing on both wildlife and aquatic species. While these documents provided an analysis of the impacts grazing has had on the environment within both the Dixie and Fishlake National Forests, it did not provide detailed sight specific cumulative effects data on the allotments dealt with within the EAs. These documents also assumed that grazing, if within the Forest Service's vague definition of "proper use", did not have a significant effect. However, the public and the decision-maker was not provided with adequate scientific information or site specific cumulative effects analyses to make a determination of what "proper use" might be on each allotment. The UEC will show through arguments regarding the Fishlake's blatant disregard for the National Forest Management Act that information necessary for an effective cumulative effects analysis has not been gathered for this proposal. Given the fact that these EAs deal with grazing over nearly half the Forest during the next ten years the Fishlake National Forest has failed to analyze adequately the "past, present, and reasonably foreseeable" impacts of its decision, a blatant violation of NEPA.
As pointed out earlier, the Fishlake National Forest received feedback from several interested members of the public regarding the inadequacy of its alternatives. Its response to those concerns failed to justify the Fishlake National Forest's decision not to consider additional alternatives not considered by the agency. Among comments received from the public were "The UEC is also troubled by the failure of the EA to provide the public with a reasonable range of alternatives." "Given that removal of grazing is not an option under multiple use policy, that really only leaves the proposed action of grazing as it has been done. I suggest at least one alternative that would provide benefits and costs of altering livestock numbers, season of use, and perhaps class of livestock in reference to the sheep allotments." (Wildlife Management Institute) In addition, the Fishlake National Forest received credible feedback from several parties regarding the inadequacy of its analyses, and also failed to adequately respond to those concerns. "There are no specific data on range condition with existing sampling variances provided so that the reader can evaluate if range condition is improving or deteriorating." (Wildlife Management Institute.) "I strongly suggest that for the sites with low to fair to poor conditions that more information be provided in the text so that the reader can make a better judgment as to the affected environment." (Ibid). The Utah Wildlife Federation also stated in its comments "It appears to us that the Environmental Assessment is also flawed because it fails to consider the reality of the existing situation and the impacts from the proposed projects for ecosystem management." (Utah Wildlife Federation) "The UEC is troubled by the apparent lack of attention given to the impacts of the proposed action on threatened, endangered, proposed, and sensitive plant species (TEPS)." (UEC comments). The Fishlake National Forest has violated items 1, 2 and 3 listed above with its failure to adequately address and consider the concerns raised with regards to the adequacy of it range of alternatives and its analyses.
The Fishlake National Forest provides a list of MIS and TES species existing within the areas impacted by the decision to continue cattle and sheep grazing on the 42 allotments discussed in the EAs. The Fishlake National Forest failed to develop a biological evaluation (BE) for the proposed action to determine whether or not grazing on the 42 allotments in question would affect the "maintenance of viable populations" within the allotments. The Forest Service Manual states that the purpose of a BE is "To ensure that Forest Service actions do not contribute to the loss of viability of any native or desired non-native plant or contribute to animal species or trends toward Federal listing of any species." (FSM 2672.41) The Forest Service Manual goes on to state that BEs are intended "To comply with the requirements of the Endangered Species Act that actions of Federal agencies not jeopardize or adversely modify critical habitat of Federally listed species."(Ibid). In early March the UEC contacted David R. Grider, Range Specialist on the Dixie National Forest and a member of the ID Team. Among the documents the UEC requested at that time was a copy of the Biological Evaluation and Assessment referred to in the EAs. In his response to the UEC regarding this request dated March 23, 1999 Mr. Grider states "The Biological Assessment (BA) for Threatened, Endangered, and Proposed Species for Livestock Grazing on the Fishlake National Forest has not yet been prepared. A BA is prepared based upon the selected alternative. We are currently in the process of performing a content analysis of comments received during the 30 day Notice and Comment Period for information useful in determining a selected alternative. This is referenced in the EA at pages 4-14, 4-15, and 4-18 where the reader is directed, 'For a full disclosure of environmental effects, resulting from the selected alternative, on threatened, endangered and proposed species, please refer to the Biological Assessment...'. When a selected alternative is made by the Responsible Officer(s), then a BA will be complete." A BA/BE is not intended to be "complete" upon the selection of an alternative, but prior to the selection of an alternative, or even the writing of a draft EA or EIS, so that the ID team will have all the information they need "to ensure that threatened, endangered, proposed, and sensitive species receive full consideration in the decision making process." (FSM 2672.41). "Conduct biological evaluations as part of the environmental analysis process. Informal consultation with the FWS or the NMFS in the early project planning stages provides the best opportunity for the formulation of project or program alternatives that will not have an adverse effect on listed or proposed species or their habitat." (FSM 2671.44, emphasis added). The fact that the Forest Service admits in writing it had not completed the biological evaluation process after completion of the draft EAs, and the fact that the draft EAs were ultimately adopted as the final decision with very little change, demonstrates the failure to conduct the evaluation. The Decision Notices signed by Forest Supervisor Mrowka state "A Biological Assessment for effects on Threatened, Endangered, and Proposed species has been prepared and is included in the project record." This assessment was prepared in response to the "selected alternative" after the decision was made according to the Forest Service, and was not used to determine the effects of the various alternatives on TES species prior to reaching a decision as the FSM clearly intends. Furthermore, the Fishlake National Forest has failed to demonstrate evidence of contact with the USFWS through a BA. Because a BE/BA is not attached as a separate document and signed by a trained biologist or botanist the Forest Service has failed to document the conclusions reached in the EAs. For all practical purposes the Fishlake cannot claim to have prepared a BE/BA at all, a clear violation of Forest Service standards and the mandate of NFMA. A biological evaluation cannot be considered synonymous with the impacts of the EAs' selected alternatives as the Fishlake National Forest apparently intends.
Macroinvertebrates are listed as management indicator species (MIS) because of their value in determining water quality. The Fishlake National Forest Land and Resource Management Plan (Forest Plan) mandates that macroinvertebrate surveys be conducted on 5 streams annually. Given the number of watersheds and percentage of the Forest covered by this decision, and the fact that the majority of streams have not been surveyed the Forest appears to be failing to meet this requirement. In addition, management practices are failing to bring streams up to standards in all but the two exceptions mentioned above. The Fishlake National Forest developed only one action alternative which, according to the response to public comments, is the only alternative that will comply with the Forest Plan. This alternative fails to decrease the number of livestock on the allotments in question from current levels in spite of the Forest Service's admission that current grazing practices are not in compliance with the Forest Plan. Among the problems addressed in the EAs is the fact that "Of the 36 cattle allotments analyzed, 17 were identified as having unsatisfactory conditions with respect to watershed integrity or pertaining to water quality issues." The failure of the majority of streams surveyed to meet Biotic Condition Index (BCI) standards for macroinvertebrates established by the Forest Plan is a symptom of these "unsatisfactory" conditions. In addition to macroinvertebrates the EAs indicate that Bonneville and Colorado Cutthroat trout, sensitive species, are present in several of the streams. The Forest Plan mandates that these fish populations be surveyed in at least 1 stream per year, but there is no indication in the EAs that these surveys are taking place annually as required. Monitoring data requested by the UEC in a Freedom of Information Act (FOIA) request in 1999 and received from the Fishlake National Forest also provided no evidence adequate monitoring of these species was taking place. The monitoring data provided to us by the Forest amounted to two pages of general information regarding these fish, their habitat and range and a scientific article on Bonneville Cutthroat trout published in Great Basin Naturalist in 1997. No survey information, let alone recent data, was provided. This apparent lack of monitoring amounts to a serious violation of monitoring requirements within the Forest Plan. The lack of monitoring with regards to water quality and aquatic species is extremely troubling because the EAs admit "The sloughing and collapse of stream banks caused by improper livestock grazing is probably the greatest effect livestock can have on fish populations. Elimination of vegetation and caving in of stream banks are among the principal factors contributing to the decline of native trout in western streams." (Page 4-44). In spite of this fact the Fishlake assures the public that no change in AUMs is necessary. Considering "limited people and funds to do monitoring of livestock management and inventorying site conditions" is available, it will be difficult if not impossible for the Fishlake National Forest to demonstrate the success of its proposed action in correcting the watershed/water quality concerns sited above. The EAs admit there have been no forest wide surveys for southwest willow flycatchers, northern goshawks, or Mexican spotted owls. In the case of the southwest willow flycatcher the EAs state that "Because so little is known about the taxonomy, abundance and distribution of southwestern willow flycatcher on the Fishlake National Forest, cumulative effects are unknown." (Page 4-18 and 4-14, emphasis added). The EAs document the impacts of cowbird parasitism on this endangered species and that southwestern willow flycatcher habitat exists across the CEA. Cowbird populations and distribution is also "unknown". The Decision Notices conclude the proposed action "may effect but is not likely to effect" southwest willow flycatcher populations in spite of the lack of data and the admittance that grazing contributes to habitat loss and cowbird parasitism, both of which have dramatic impacts on southwestern willow flycatchers. The conclusions reached within the EAs and Decision Notices regarding this endangered species clearly violates both the letter and intent of the Endangered Species Act (ESA) and NFMA. The Fishlake National Forest has demonstrated its failure to monitor MIS and TES species as mandated within its Forest Plan. It has failed in its EAs to demonstrate that, in spite of its lack of data and failure to bring macroinvertebrate surveys up to standards, its proposed action will in fact maintain or improve conditions within the 42 allotments. The Fishlake National Forest admits that current livestock management practices are failing to meet the standards and guidelines set forth in its Forest Plan, yet claims that the proposed action will meet those standards and guidelines despite the failure of the proposed actions to mandate changes in AUMs or grazing seasons. The Fishlake National Forest has demonstrated a clear disregard for the intent of both the ESA and NFMA and violated mandates set forth in both laws to monitor and maintain viable populations of MIS and TES species and consult early with the U.S. Fish and Wildlife Service. The Fishlake National Forest has failed to demonstrate that, in spite of a lack of funds to do adequate monitoring and mitigation, the proposed action represents a significant change in the current practices which are not meeting standards. This amounts to a failure on the part of the Fishlake to develop any alternative that meets Forest Plan standards and guidelines, a clear violation of NFMA.
Both the State of Utah and the Forest Service rely heavily on monitoring to insure water quality is not being impaired. As indicated in earlier arguments, macroinvertebrate and fish surveys are not being done as frequently as the Forest Plan mandates. In addition, those macroinvertebrate surveys that have been done are below Forest Plan standards. Also, as pointed out earlier, 17 of the 36 cattle allotments have been identified as "having unsatisfactory conditions with respect to watershed integrity or pertaining to water quality issues." In their Questions and Answers on Antidegradation (EPA, 1985) the Environmental Protection Agency states "If a planned activity will foreseeably lower water quality to the extent that it no long is sufficient to protect and maintain the existing uses in that water body, such an activity is inconsistent with the EPA's antidegradation policy which requires that existing uses are to be maintained. In such circumstances the planned activity must be avoided or adequate mitigation or preventive measures must be taken to ensure that the existing uses and the water quality to protect them will be maintained." n addition, under 40 CFR 131.12 (a) (2), before any lowering of water quality occurs in high quality waters there must be: "1)a finding that it is necessary in order to accommodate economic or social development in the area in which the waters are located; 2) full satisfaction of all intergovernmental coordination and public participation provisions; and 3) assurance that the highest statutory and regulatory requirements and best management practices for pollutant controls are achieved... This provision is intended to provide relief only in a few extra-ordinary circumstances where the economic and social need for the activity clearly outweighs the benefit of maintaining water quality above that required for "fishable/swimmable" water, and the two cannot be achieved. The burden of demonstration on the individual proposing such activity is very high." (emphasis added). As demonstrated in our arguments regarding NEPA compliance the Fishlake National Forest has failed to fully satisfy the requirements listed in number two above. In addition, that the burden of proof to demonstrate number three above is "very high." The failure to conduct adequate monitoring, the failure of streams that have been monitored to meet standards, and the failure to conduct an adequate economic analysis that demonstrates the overriding benefit of the proposed action all show the burden of proof has not been met. Furthermore, the Forest Service readily admits that current management is not in compliance with Forest Plan standards and guidelines and fails to make significant changes to current management within the Decision Notices. All of these facts lead to the conclusion that the decisions are not in compliance with the Clean Water Act and that the Forest Service is not currently in compliance.
The Supreme Court has ruled that "Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.""Motor Vehicle Manufacturers''Ass'n V. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). n this case we have already shown the agency failed to consider important aspects of the problem by failing to conduct a BE/BA, failing to adequately monitor the resources affected by the decisions, failing to adequately address concerns raised by the public regarding the range of alternatives and failing to consider a benchmark "No Action" alternative as required by NEPA. In addition, the agency not only "offered an explanation for its decision that runs counter to the evidence before the agency" but directly contradicted itself in the explanations offered to the public regarding its choice of alternative. The Decision Notices state a "No Action" alternative was offered in the form of a "No Grazing" alternative while the EAs and response to public comments state the "No Grazing" alternative is not to be considered a no action alternative. The agency was clearly capricious in its cursory review of its own documents and explanations. There can be no argument that the Forest Service violated the APA. REQUEST FOR RELIEF Due to the violations of NEPA, the Fishlake Land and Resource Management Plan (Forest Plan), Forest Service Manual, NFMA, ESA, CWA and APA documented in this administrative appeal, the Appellants request a full remand of the Decision Notices, FONSI and EAs for the revision of Allotment Management Plans and authorization to continue grazing on 36 cattle allotments and 6 sheep allotments signed by Forest Supervisor Rob Mrowka on January 26, 2000. In addition, because the Fishlake National Forest readily admits current management practices cannot continue because they are in violation of their Forest Plan, the Appellants request that livestock grazing on the 42 allotments in question immediately cease until the Fishlake National Forest can demonstrate through a thorough analysis of the resources impacted by the above mentioned decisions that livestock management practices will be in compliance with the Fishlake National Forest Plan. Should the Forest Service decide to proceed with further analysis that develops alternatives consistent with Forest Plan standards and guidelines and other applicable laws and issues a subsequent decision on the 36 cattle allotments and 6 sheep allotments covered in these EAs, Decision Notices and FONSI, the Appellants request the following:
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