BEFORE THE REGIONAL FORESTER OF REGION
FOUR OF THE UNITED STATES FOREST SERVICE
In Re: Appeal of Record of Decision UTAH ENVIRONMENTAL CONGRESS Bryan Bird, Forest Conservation Council National Forest Protection Alliance APPELLANTS DATED this _____ day of _______________, 2001
By ___________________________________ Introduction The UEC, FCC and NFPA are non-profit organizations dedicated to maintaining, protecting, and restoring the native ecosystems of Utah and the United States. The UEC, FCC and NFPA have an organizational interest in the proper and lawful management of Utah's national forests, including the Fishlake National Forest. UEC, FCC and NFPA members, staff, and board members participate in a wide range of recreational activities on the Fishlake National Forest, including the area in and surrounding the Monroe Mountain Ecosystem Restoration Project. In addition, the UEC has paid individuals to visit the Fishlake National Forest in an effort to determine the roadless areas that still remain intact on the forest. This survey was completed in the fall of 1999. The UEC is also a member of NFPA
The UEC represents more than 200 members, 9 organizations, and 20 businesses. The organizations that are currently a member of the UEC represent more than 30,000 additional individuals, many of whom have visited the Fishlake National Forest and have a direct interest in its management.
The UEC, FCC and NFPA claim standing to participate in the public land decision-making process on the grounds that they have been involved in forest management issues since their founding. Our members have hiked, fished, hunted and photographed the Fishlake National Forest, including the Monroe Mountain Ecosystem Restoration Project Area. Our collective membership includes professional photographic businesses and freelance photographers that make their living in part by photographing Utah's national forests, including the Fishlake National Forest. The impacts associated with this decision detract from the beauty and biodiversity that makes these lands appealing to both professional photographers and our members that recreate within the vicinity of the Monroe Mountain Ecosystem Restoration Project
In addition, UEC, FCC and NFPA members are taxpayers that are required to pay for the activities discussed within the EIS and accompanying Record of Decision. The irretrievable commitment of financial resources associated with this project is also borne by the American people as a whole. The UEC, FCC and NFPA claim partial ownership in the public lands covered by this decision and consequently have legal standing to participate in the process and challenge those decisions they find unacceptable.
The Appellants have participated in the comment process for the Monroe Mountain Ecosystem Restoration Project. In addition, the Appellants have commented and participated in numerous meetings and discussions with the Fishlake National Forest and other national forests across the state of Utah and the nation. The UEC has also committed a great deal of financial resources and time to last summer's roadless area survey conducted by the UEC on the Fishlake National Forest.
The Appellants are appealing the Record of Decision and accompanying EIS on the grounds that the decision is legally indefensible. The Appellants believe the Fishlake National Forest violated the National Environmental Policy Act (NEPA) by failing to provide an adequate cumulative effects analysis. In addition, the Appellants believe the Fishlake National Forest violated the National Forest Management Act (NFMA), the Multiple Use and Sustained Yield Act (MUSYA), the Administrative Procedures Act (APA), the Endangered Species Act (ESA), and the Wilderness Act.
The Appellants desire and will request relief in the form of a remand of the Monroe Mountain Ecosystem Restoration Project Record of Decision and accompanying EIS signed by Fishlake National Forest Supervisor Rob Mrowka on December 8, 2000.
Statement of Facts The Project Area contains a variety of plant and wildlife species. Among the species known or suspected to occur within the Project Area are: Bonneville cutthroat trout, boreal toad, peregrine falcon, bald eagle, Southwest willow flycatcher, spotted bat, Western big-eared bat, northern goshawk, mule deer, Rocky Mountain elk, flammulated owl, three-toed woodpecker, mountain lion, black bear, bobcat and a variety of neotropical migratory birds.3
Several of the creeks within the Project Area are also known to support recreational fish species. These streams are: Box Creek, Greenwich Creek, Monroe Creek, and Manning Creek. Manning Creek is known to sustain a population of the sensitive Bonneville cutthroat trout.4
Fully 92% of the Project Area is within management area 4B. This management area is to be managed as "habitat for management indicator species." The goal for this management area is "to emphasize the habitat needs of one or more wildlife management indicator species and increase species richness and diversity."5 The remaining 8% of lands within the Project Area are to be managed for livestock (MA 6B), fish habitat (MA 4A), big game winter range (MA 5A), wood fiber production (MA 7B), and improved watershed condition (MA 9F).6
Arguments In its response to this concern contained within Appendix 7 of the FEIS and mailed to the public with the ROD, the Fishlake National Forest states "Revalidation of the portions of IRA's located within the Project Area that could be affected by the proposed activities was conducted in January, 2000 using the criteria contained in the Draft-Planning Desk Guide for Roadless Area Inventory and Evaluation, Intermountain Region, updated May 20, 1998." The response continues "As a result of this inventory update, roadless area boundaries for the Project Area have been modified to reflect existing conditions. The FEIS fully considered the IRA's within the project boundary."7
In its comments dated August 8, 2000 regarding the FEIS the UEC attached an Appendix with maps documenting the results of its own roadless area inventory for the portion of the Fishlake National Forest affected by the Monroe Mountain Project. The UEC specifically drew the Fishlake National Forest's attention to the UEC's "Box Creek Unit." The UEC stated in its comments that the Box Creek Unit "includes virtually the entire Dairies Unite included in maps published" within the Monroe Mountain Ecosystem Restoration Project FEIS.8
The Fishlake National Forest's response to this concern and other specific points of concern regarding roadless areas were not specifically addressed within the response to comments contained within Appendix 7. The UEC had requested and received a copy of the Roadless Area Validation for the Project Area and surrounding landscape earlier in the year, however that document also failed to deal with the UEC's specific concerns and in large part gave rise to them.
NEPA requires any federal agency preparing an EA or EIS to consider each comment it receives and respond to issues raised by the commenter(s). Among the possible responses to public concerns expressed through the commenting process are "Supplement, improve, or modify its analyses" or "Make factual corrections."9
In the event that the agency feels that the comments do not warrant further agency action, the agency must "Explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response."10 Simply stating that it has done a revalidation following Region 4 guidelines without addressing the specific concerns the UEC had regarding possible roadless land within the Dairies Unit and other parts of the Project Area does not rise to the level of explanation required by NEPA as indicated above. While the Fishlake National Forest cites the authority of the Intermountain Region Desk Guide, it gives no reasons behind its decision to ignore the UEC's specific concerns.
The CEQ has discussed the procedures an agency must follow when responding to comments. "An agency is not under an obligation to issue a lengthy reiteration of its methodology for any portion of an EIS if the only comment addressing the methodology is a simple complaint that the EIS methodology is inadequate. But agencies must respond to comments, however brief, which are specific in their criticism of agency methodology." The CEQ uses as an example a comment that specifically questions an agency's "computational technique." In such a case the CEQ states "then the agency would have to respond in a substantive and meaningful way to such a comment."11
The Appellant Forest Conservation Council (FCC) also offered specific criticism regarding the contents of the FEIS. Specifically the FCC criticized the Fishlake National Forest's economic analysis. "As with other projects planned on the National Forests of Utah and throughout Region 4, the Forest Service has failed to complete an economic analysis of the Monroe Mountain Timber Sale that provides the public with a full and fair accounting of net economic benefits." The FCC then went on to comment that "The dollar value of undisturbed forest or standing timber should have been calculated and used in the analysis of economic costs associated with the Monroe Mountain Timber Sale."12
The Fishlake National Forest responds to the FCC in part by playing semantic games. The response states in part "The analysis is the restoration project and not the 'Monroe Mountain Timber Sale' as mentioned in your letter. There is no Monroe Mountain Timber Sale."13 While this project may not be called a "timber sale" because of the other components of the project, it was surely obvious which project the FCC was referring to. Be that as it may, the Fishlake National Forest concludes its argument in defense of its economic analysis by stating "Consideration of other 'ecosystem services' mentioned in you (sic) letter at the project level is inappropriate."14
The Appellants will show why it was not "inappropriate" in the following arguments. For the purposes of this section, we will only point out that the response to the FCC's concerns was neither "substantive" nor "meaningful." As a member of the interested public the FCC is entitled to a "fair accounting" of the costs associated with a project being proposed by a public agency that impacts public lands. In spite of the Fishlake National Forest's claim to the contrary, it did not consider all the costs and benefits within the scope of the Monroe Mountain Ecosystem Restoration Project. Indeed, the public has still not been told whether or not the project will be carried out under a stewardship contract or through a more traditional timber sale with the agency carrying out the prescribed fire and other treatments, let alone been informed of all the costs and benefits associated with the project.
The MUYSA defines multiple use as follows; "'Multiple use' means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people."17 The MUYSA goes on in the same section to use terms like "judicious use" and "harmonious and coordinated management of the various resources." It is clear that the Congress did not intend to give preference to one use over another, and intended for all the values contained within the national forest system to be given consideration.
The Forest Service Manual makes it clear that the MUYSA is one of the acts that create a requirement for economic and social analyses in projects such as the Monroe Mountain Ecosystem Restoration Project. "This act [MUYSA] sets forth guiding principles for managing the resources of the National Forest System. The direction to manage these resources for the greatest good over time necessitates the use of economic and social analysis in determining management of the National Forest System."18 Clearly what is in the interest of the American people, both economically and socially, cannot be assessed without thorough economic and social analysis.
NEPA provides similar guidance on this question. "To asses the adequacy of compliance with section 102(2)(B) of the Act the statement shall, when a cost-benefit analysis is prepared, discuss the relationship between that analysis and any analyses of unquantified environmental impacts, values, and amenities."19 This refutes the statement made in response to the FCC's comments that "Consideration of other 'ecosystem services' mentioned in your letter at the project level is inappropriate."20 It also adds weight to the Appellants' contention made earlier that this response was itself inadequate and violated both the letter and the spirit of NEPA.
According to the U.S. Department of Labor as of 1997 recreation, tourism, ecological research, fishing and hunting related jobs outnumbered wood products related jobs by at least 6:1. The total number of jobs associated with forest protection outnumbered logging and other wood product related jobs by nearly 25,000. Between 1988 and 1996 forest protection jobs grew at a rate of 62% while logging jobs increased at a rate of only 22%.21
With such a tremendous value to Utah's economy and society as a whole being generated by these non extractive types of activities, it seems prudent to evaluate the impacts and trade offs associated with using the forest for logging purposes that may jeopardize or compete with non-extractive services. Even if the Forest Service for some reason feels the trade offs are worthwhile in the long-term, they must disclose those reasons through a fair and comprehensive analysis within the EIS. Given the MUYSA requirement to manage the national forest for the good of the American people as a whole, it is irresponsible, not to mention a violation of the act, not to conduct sufficient analysis to determine what the benefits to the American people are under each alternative being considered.
The FEIS for the Monroe Mountain Ecosystem Restoration Project states "The existing conditions in the Project Area are the result of past disturbances including wildfire, insect and disease infestation, livestock grazing, timber harvest, and fire suppression." The FEIS continues "As a consequence of fire suppression and heavy grazing by cattle and sheep, many plant communities in the Project Area have changed, or are changing, to lands dominated by woody or conifer species (Jackson et al. 1998)."23
As the FEIS begins its look at the cumulative effects to "Wildlife Resources" it picks up on the theme outlined in the quotes above. "Because of the absence of historical fire in the ecosystem, combined with ungulate grazing since the settlement of the local area, habitat components have been in a trend toward climax vegetative conditions. As vegetative communities reach climax conditions, many areas are decreasing in species diversity, richness, and abundance."24
Just three pages further along in the FEIS the Fishlake National Forest makes the following statement that seems to contradict the earlier statements cited above. "Continued livestock grazing in the Project Area and throughout Monroe Mountain according to established grazing plans, is not anticipated to contribute to the risk of impacting MIS."25 The Draft EIS, however, stated "Livestock grazing does continue to contribute to a decrease in infiltration and increased erosion and sedimentation of the streams within the Project Area."26 Presumably this affect of continued grazing would have some impact on diversity.
In comments submitted to the Fishlake National Forest on the DEIS prepared for this project the UEC pointed out that grazing must clearly be having a significant impact on the local environment. "Finally, the DEIS repeatedly lumps livestock together with wild ungulates using statement like 'grazing by wildlife and livestock' potentially leading the public to believe that elk and deer are as much a problem as cattle and sheep. According to the DEIS there are only 700 elk within the project area in the Project Area and deer numbers are declining (Page I-14). Livestock numbers, by comparison, total '1,340 cow/calf pairs and 1,600 sheep" (Page III-7)."27
Given the clear disparity between cattle and sheep and elk populations within the Project Area and surrounding landscape, and the fact that deer populations are declining, it is difficult to understand the contradictory statements regarding the current impact of domestic livestock on the area. Obviously livestock are a past, present, and foreseeable activity that is impacting vegetation, wildlife, and water quality across the landscape. Clearly there presence has and will continue to contribute to the spread of woody vegetation throughout the Project Area, thus contributing to fuel loading into the future, thus contributing to the risk of wildfire.
The lack of monitoring on the Fishlake National Forest, a subject of later arguments regarding NFMA violations in this appeal, also brings the adequacy of the cumulative effects analysis into question. The Fishlake National Forest cannot hope to accurately assess the potential impacts of any action without monitoring data.
There are several glaring examples of inadequate monitoring admitted to within the FEIS. The description of existing conditions for streams within the Project Area is perhaps the most blatant example. The following statements reflect the lack of data: "Fisheries information on lower Box Creek is limited"; "File data on the South Fork of Box Creek is only a cursory stream survey sheet and work sheet from 1970"; "There is little information about fisheries in Greenwich Creek"28
For riparian areas within the Project Area the Fishlake National Forest makes a similarly damning admission with regards to monitoring. "Although riparian areas are not a major percentage of the Project Area, the scarcity of these key areas increases the importance and value of the few and limited existing riparian areas. Based on observations, many of the riparian and wetland areas within the Project Area are not currently in 'proper functioning condition', however a total PFC assessment has not been completed for this area."
A cumulative effects analysis that relies on outdated data, simple observation, or subjectively reached judgments regarding the impacts of a given project on an ecosystem cannot be trusted. Conclusions regarding impacts to wildlife, plants, water quality and soils that have no supporting monitoring data to back them up amount to guess work. Cumulative effects analyses are supposed to use the best available data, including data about the area in question. It is not intended to be a mere recitation of scientific papers or habitat descriptions void of any information regarding the existing conditions within the area.
The first stated purpose for this project, to "restore the abundance of aspen ecosystems", is an oft stated reason provided for projects such as the Monroe Mountain Ecosystem Restoration Project. The EIS states "Existing conditions indicate that more than 50% of the aspen ecosystems are at risk in the Monroe Mountain area and will not be sustainable without intervention."30 Unfortunately the project proposes to restore disturbances such as fire without dealing with grazing by "both livestock and wildlife" that is in large part responsible for the lack of fire through the consumption of fine fuels.
As stated earlier, the DEIS originally pointed out that in fact livestock outnumbered elk by a considerable amount, and deer herds are declining on Monroe Mountain. This puts most, or at least a disproportionate amount of the blame for changes in the vegetation community squarely on the backs of domestic livestock. Yet the Fishlake National Forest refuses to do anything about the impacts of grazing beyond removing livestock until aspen have reached a certain height.
The result will inevitably be an eventual return to the very conditions the project is intended to correct. While conditions might improve in some areas in the short-term, livestock will continue to remove fine fuels, predators that prey on deer and elk will continue to be hunted in the name of livestock protection, and aspen will continue to decline. The Appellants do not oppose fire. It is a natural process critical to maintaining a forest ecosystem. But burning and cutting a forest in the name of forest health while simultaneously ignoring the problems created by introduced livestock is futile if the goal is true restoration.
The second purpose for the project is to "work towards improving watershed conditions that favor long-term improvement of riparian areas and water quality." The EIS describes the current condition within the project area as having "been affected by activities such as roads, recreation, grazing, and timber harvest, especially where the activity causes degradation to the riparian and lakeshore areas." The EIS continues, "This has been especially true in the Box and Manning Creek sub-watersheds, where poor water quality in Barney, Manning Meadows, and Lower Box Creek Reservoirs has led the State to list them as impaired waterbodies on the 303 (d) list."31
The EIS points out that beaver dams are no longer in use, for undisclosed reasons, and as pointed out earlier that riparian area monitoring data is lacking. These conditions should raise a number of red flags. While the project is described as an "Ecosystem Restoration Project", the failure to look at the big picture makes restoration impossible. The project intends to fix, at least in part, problems created by roads, recreation, logging and grazing with more logging, fire and herbicides. Grazing will ultimately return at current levels and recreation will continue unchecked across much of the landscape. Indeed the Fishlake National Forest is encouraging ATV jamborees that only lead to increases in recreational activity as more people become exposed to the forest through these events. Again, logging and fire alone will do nothing to increase water quality within the Project Area.
The third purpose for the project, to "reduce the risk of large, intense episodes of wildland fire in the mixed conifer/aspen stands", will also not be met in the long-term, and again, grazing when combined with logging and roads is the primary reason.
According to the EIS "Fire plays a significant role in maintaining and rejuvenating aspen ecosystems." The EIS continues, "The lack of fire and other disturbances are contributing to the decline of aspen ecosystems."32 While this project will reintroduce fire within roadless areas, and will only log outside of IRAs, the EIS fails to acknowledge the role logging plays in increasing the risk of wildfire. The following statement contained within a recently published technical report shows that the government is well aware of the fire risk logging creates.
"...intensive forest management annually produces high fuel loadings associated with logging residues. As a by-product of clearcutting, thinning, and other tree-removal activities, activity fuels create both short and long-term fire hazards to ecosystems. The potential rate of spread and intensity of fires associated with recently cut logging residues is high (see for example, Anderson 1982, Maxwell and Ward 1976), especially the first year or two as the material decays. High fire-behavior hazards associated with the residues can extend, however, for many years depending on the tree species (Olson and Fahnestock 1955). Even though these hazards diminish, their influence on fire behavior can linger for up to 30 years in the dry forest ecosystems of eastern Washington and Oregon. Disposal of logging residue using prescribed fires, the most common approach, also has an associated high risk of escaped wildfire (Deeming 1990). The link between slash fires and escaped wildfires has a history of large conflagrations for Washington and Oregon (Agee 1989, Deeming 1990)."33
The situation on Monroe Mountain, as with much of the lands managed by the Forest Service, has been created through mismanagement. Grazing has reduced fine fuels that used to carry cool burns through the understory. Logging has resulted in numerous roads and openings, thus exposing the forest to the drying effects of wind and increased solar radiation. This situation can be corrected, but only with time if the Forest Service is willing to address the problems created by grazing and fire suppression directly, and not through additional logging projects that will at best, only temporarily create the conditions hoped for. The failure to address these issues head on here amounts to a failure to achieve the stated Purpose and Need for this project.
The fourth goal of the Monroe Mountain Ecosystem Restoration Project is to "Reduce the potential of epidemic level spruce beetle outbreaks in spruce/fir stands."34 The FEIS contains a map on page III-41 that documents the historic presence of aspen on Monroe Mountain and compares it with the current condition. While the Appellants are suspicious of the Fishlake National Forest's assessment of historic aspen stands spread almost totally throughout the Project Area, we will accept it for the purposes of making our point here.
The FEIS claims that it has been approximately 113 years since a significant fire was allowed to burn within the Project Area.35 It was also approximately 115 years ago that livestock began to come onto the mountain in significant numbers and predator control became a major focus of local ranchers and landowners. It should be obvious to all concerned that the spread of conifer into aspen stands was triggered by the combination of grazing, fire suppression and other management activities associated with these practices. Unfortunately we have not learned our lesson and are proposing no significant changes in management. We are responding to mismanagement with more management in the hopes that sooner or later we can get it right.
Spruce beetles are a naturally occurring phenomenon on the Fishlake National Forest and other surrounding national forest lands. It should come as no surprise that when management activities lead to an increase spruce/fir density that spruce beetle "epidemics" will eventually follow. Again, the Fishlake National Forest has failed to address the root causes behind the problem they claim a desire to correct. Logging and fire as spruce beetle control agents will ultimately fail if the conditions that allow mixed conifer communities to flourish are not dealt with.
The fifth goal listed within the FEIS is to "Contribute to the restoration of the grass/forb ecosystem to improve habitat for wildlife and livestock."36 As stated earlier in the appeal, fully 92% of the Project Area is in management area 4B that is to be managed for the benefit of management indicator species. Among the MIS listed in the Fishlake National Forest Plan are deer and elk, the two MIS that stand to benefit the most from increased forage production.
The Appellants also pointed out earlier that cows and sheep within the area currently outnumber elk, and the deer herd is declining. No numbers regarding the current size of the deer herd is provided. Given the fact that cattle and sheep tend to move off an area much slower than deer and elk, and tend to graze together in larger numbers, it is obvious to the Appellants at least that livestock grazing is having a significant impact on the forage production within the Project Area.
Indeed, the Fishlake National Forest's own documents show that between vegetation and riparian areas, the conditions for all of the allotments contained within the Project Area never exceeds "good." For the Monument-Glenwood Sheep Allotment located in the Monument Peak Treatment Unit riparian and key upland habitat is listed as "good." For the Hunts Lake Sheep Allotment, however, riparian habitat is listed as "poor" and key uplands as "good."37
Within the Koosharem Cattle Allotment, located within the Indian Peak Treatment Unit and Dairies Treatment Unit riparian areas are said to be "functioning at risk" while key uplands are listed as "good." The same conditions apply to riparian habitat and key uplands on the Manning Creek Cattle Allotment located in the Manning Meadows Unit.38
For an area of more than 50,000 acres with only approximately 700 elk and shrinking deer populations one would think that riparian and range habitat would be in better shape. We strongly suspect that the reason the rangelands within the Project Area have not improved is due to excessive livestock grazing. Again, forage production for wildlife may improve in the short-term, but will diminish with time as cattle and sheep continue to high-grade the best grasses and forbs on Monroe Mountain. Sage will eventually reestablish itself as grass and forb competition becomes less of a problem, and fine fuels will continue to be consumed limiting the potential for fire to maintain a relatively open condition beneath stands of aspen, spruce and fir. The Fishlake National Forest has missed a golden opportunity to truly restore this ecosystem for the benefit of the MIS and other wildlife that 92% of the area is supposedly managed to benefit. Again, the Purpose and Need will not be met due to continued livestock grazing.
The final goal of the project as described within the Purpose and Need section of the FEIS is to "Provide timber products to support local economy, while performing ecosystem restoration."39 The Appellants have already argued that the economic analysis prepared for this project was inadequate in that it failed to analyze the economic benefits of maintaining the forest in an unlogged condition that preserves the integrity of roadless areas and maintains wildlife habitat for the diversity of species that currently rely on the area for survival.
While the logging industry may benefit, the American taxpayers, including local citizens suffer. When all of the costs associated with this project are analyzed, including the payment to counties, only alternatives two and three generate a profit for the Forest Service and therefore for the public landowner. This is assuming that all the costs associated with this operation had been analyzed, which they have not (see arguments on economics above). The selected alternative under the National Forest Timber Sale Program would lose more than $11,000 when payment to counties is factored into the equation.
There is no payment to the local counties under the Stewardship End Result Contracting Demonstration Project that is also an option. The Fishlake National Forest has determined the financial benefits associated with this method of carrying out the project using five criteria used to determine the "best value" of the work to be done. The FEIS states "There are several possible criteria that would be used to assess best value: 1) past performance of contractors, 2) proposed quality (the contractor's description of how the work will be done or mandated), 3) demonstration of preference for rural community labor and benefits, 4) experience with needed technologies or equipment, 4) and development of quality control plan."40
Because it is not clear which of these "possible" criteria were applied, or even if the Monroe Mountain Restoration Project will be done through stewardship contracting, it is impossible to determine if in fact this project will be beneficial to the local timber industry and the local economy at large. It is interesting that in spite of the fact that more than 90% of the Project Area is to be managed for the benefit of MIS none of the criteria even mention the protection of wildlife resources. In addition, none of the criteria address possible impacts to recreation or watersheds, two aspects of forest management that play an important part in the local economy.
These failures to fully disclose the criteria, or to even select either the stewardship contract method or timber sale method of carrying out the project is a serious violation of NEPA and MUSYA and makes it impossible to determine if the goal expressed within the Purpose and Need will be met.
The Code of Federal Regulations make it clear that the intent of roadless area inventories is to determine which areas meet the minimum qualifications for wilderness designation. This inventory is to be carried out through the forest planning revision process and not piecemeal within individual project analyses. "Unless otherwise provided by law, roadless areas within the National Forest System shall be evaluated and considered for recommendation as potential wilderness areas during the forest planning process..."41
The Code of Federal Regulations goes on to state "In addition, other essentially roadless area may be subject to evaluation at the discretion of the Forest Supervisor."42 This statement, however, clearly refers to lands that are roadless and were not included within an earlier inventory, and not to roadless lands the Forest Supervisor intends to drop.
In addition, there is not only the expectation, but also the requirement that the Forest Service will involve the public in any reinventory process. "For each area subject to evaluation under paragraph (a)(1) of this section, the determination of the significant resource issues, which in turn affect the detail and scope of evaluation required by the Forest Service, shall be developed with public participation."43
The Intermountain Region Planning Desk Guide that the Fishlake National Forest claims to be following in carrying out this revalidation effort echoes the above federal regulations and clearly states why public participation is necessary. "Experience has shown that the public, other federal agencies (particularly land management agencies such as the BLM), and state and local governments are strongly interested in roadless inventory. Considering this, it is important to provide meaningful opportunities for public input. Furthermore, disposition of lands adjoining the National Forest can affect the identification of roadless areas on the Forests." While the Desk Guide follows this statement up by saying an EA or EIS is not required prior to carrying out the inventory, the introduction to the Desk Guide makes clear that the guide was created to aid in inventorying lands in preparation for forest planning revision, not site-specific projects.44
The Desk Guide adds additional emphasis to the need for public involvement latter in the document when it states "Changes from past inventories, such as variances in acreage or locations, will be noted and explained during public review."45 Since the UEC had to request a copy of the validation, it appears the public at large has not been informed of these changes or given an opportunity to comment.
In making the case that an EA or EIS is not required with regards to the inventory itself the Regional Offices cites 7 C.F.R. 1b. This regulation states categorical exclusions are appropriate when "Inventories, research activities, and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity", (emphasis added).
The Fishlake National Forest is essentially amending its Forest Plan through individual project EAs and EIS' however. By changing roadless area boundaries through the revalidation process the Fishlake National Forest is permanently redrawing the map when it comes to future wilderness, a process that is only supposed to take place when the Forest Plan is revised and wilderness recommendations are submitted to the Secretary of Agriculture and ultimately to Congress.
The Fishlake has never, to our knowledge, announced to the public, the BLM, or any local or state government agency or official its intent to amend its IRA boundaries through individual project analyses. The Purpose and Need section of the Monroe Mountain Ecosystem Restoration Project makes no reference to the need to amend roadless boundaries. In fact, even the maps submitted to the Washington Office of the Forest Service in preparation for the Roadless Area Conservation EIS did not reflect any of the changes we are currently witnessing as a result of the Fishlake's revalidation efforts.46
The proposed project would result in the construction of both permanent and temporary roads within previously inventoried IRAs now dropped as a result of the revalidation process, in spite of the fact that the Roadless Conservation FEIS map cited above includes these areas as roadless areas protected from such activity. The Fishlake National Forest is carrying out inventory work that should be integrated into either a revised Forest Plan or a Forest Plan amendment. Sneaking a reinventory of roadless areas through the back door by implementing the results of their revalidation through individual project analyses is a violation of the Wilderness Act. Roadless inventories are carried out solely for the purpose of determining what lands still contain real or potential wilderness qualities. By foregoing future potential wilderness designation without announcing to the public that is their intent, the Fishlake National Forest has violated NEPA as well.
The FEIS states the "Revalidation of the portions of these IRA's that could be affected by the proposed activities was conducted in January, 2000", a time of year not conducive to actual on the ground research of what exists in the way of roads or other impacts.47 Clearly those preparing the revalidation relied solely on existing records, maps and other data that could be found within the office, and did little to no fieldwork in preparing the revalidation of the existing roadless areas.
This is disturbing because in one case the Fishlake National Forest used what is shown on their travel map as a pack trail as a new boundary for their roadless area. In fact, this pack trail (The Nielson Canyon Pack Trail) goes right through the southern portion of what is referred to on the Fishlake National Forest's own travel map as area "C", "National Forest areas closed yearlong to all motorized vehicles."48 Now how could an area closed all year to "all motorized vehicles" have a pack trail turn into a road and thus become a boundary for a roadless area?
In anticipation of these types of questionable changes to the IRA boundaries, the UEC requested a copy of the revalidation done for the Monroe Mountain Ecosystem Restoration Project. In this "validation" the Fishlake National Forest offers the following explanation of why a pack trial is now a road. "Included in area K of Signal Peak inventoried roadless area is a constructed road in Nielson Canyon that is managed as a foot and horse trail but is a 4WD trail."49 Now how exactly is a trail that is "managed as a foot and horse trail" become a legitimate 4WD trail, especially when located in an area closed to all motorized recreation?
The Fishlake National Forest goes on to make the claim that "The evidence of construction is substantially noticeable." Whether they mean as a foot and horse trail or a four-wheel drive trail is anybody's guess. They also state "It is recommended that area Ks area (sic) be deleted from the roadless inventory and further evaluated under the President's Roadless Initiative."50 Based on the map cited above within volume 2 of the Roadless Area Conservation EIS, if it was further evaluated it was left in the roadless areas covered by the President's Roadless Initiative.
Within the original Marysvale Peak Roadless Area the Fishlake National Forest uses the Big Table Road (located on the south end of the Project Area and labeled #154) as a boundary road and eliminates from its original inventory everything between the Big Table Road and the Dry Creek Road (#070).51 This amounts to approximately 2,690 acres of inventoried roadless land.
The road that was originally cherry stemmed into the roadless area, referred to as "long narrow appendage" within the validation, disappears long before the maps indicate it does, and has substantially recovered since its original construction (see photographs in Appendix A). The validation, however, determines that "The roads were constructed and are substantially noticeable."52 Because of the amount of land being dropped as roadless, and the fact that a good portion of the area will be logged, the removal of this area from the roadless inventory will have significant impacts on future recommendations for wilderness. Once again, the area was included within the Roadless Area Conservation FEIS maps.
To the east of the Marysvale Roadless Area is the Tibadore IRA. Here the Fishlake National Forest opted to lop off the entire top of the roadless area "Area H is the northern portion of the Tibadore inventoried roadless area and is a narrow appendage. Located within this narrow appendage are two harvest areas with access roads that extend from Forest Development Road 068."53 In preparation for its own roadless area inventory, the UEC received a copy from the Fishlake National Forest of its GIS roads and trails layer. The road in question does not appear on that GIS layer.
In addition, the timber sales mentioned above extend no more than a quarter mile west of road 068. In the validation, however, the Fishlake National Forest argues "The very northern portion of the appendage contains a constructed road that accessed another harvest area"54 In the fall of 1999 the UEC asked for additional GIS data from the Fishlake National Forest that included an updated timber sale GIS layer. While the timber sales located just off road 068 appear on that coverage, the harvest referred to in the validation (prepared just months after the UEC made its request for timber sale data) does not.
The validation for this area refers to a narrowing of the northern appendage to the Tibadore Roadless Area to around 2,500 feet between the northern most timber sales off road 068 and 071 to the west.55 Based on our measurements the narrowing is something closer to around 4,000 feet. Be that as it may, the Fishlake National Forest actually draws the new northern boundary for the Tibadore Roadless Area somewhere far south of the timber sales that account for the narrow gap referred to. This new boundary is south of the Project Area boundary making it impossible to determine exactly where it is drawn or why it is drawn there. This boundary appears to be arbitrary and capricious and opens a large part of the Willis Reservoir Unit up to logging.56
It is worth noting here that the topography of the area between the timber sales and road 071 is extremely steep and difficult to access. The area would be easy to manage as roadless in spite of the possibility of narrowness cited within the validation prepared by the Fishlake National Forest. If the public had been included in this process, as they should be, this obvious fact could have been pointed out to the Fishlake National Forest prior to reaching the point where it had to be pointed out in an appeal.
The Region Four Desk Guide referred to earlier in these arguments has something to say about how to deal with "appendages" such as the one dealt with so poorly in the case of the Tibadore Roadless Area. "Refinement of the GIS polygons. Clean up the polygons to remove areas which do not meet the intent of the roadless criteria. This might include narrow fingers, heavily roaded areas which create amoeba like polygons, and other appendages, intrusions, and extensions. This process requires professional judgment to consider the merits of each piece. Include the public in making these decisions and describe your rationale for excluding areas from the roadless inventory."57
The UEC provided the Fishlake National Forest with copies of the draft results of its inventory of roadless areas contained within that national forest. Among those areas of concern pointed out to the Fishlake National Forest was the UEC's Box Creek Unit. The Dairies Unit that would be heavily logged and otherwise treated according to the FEIS and ROD makes up almost this entire roadless area. The UEC received no response to our concerns regarding this area, or any other results of our roadless area inventory, other than to say that the validation was sufficient.
The Appellants are curious why the validation limited itself only to areas that had previously been inventoried. If in truth the intent of this "validation" is to verify what roadless resources still exist on the ground, why not do a complete reinventory of the Project Area? Under the existing validation prepared for this project a total of 11,435 acres of previously inventoried roadless land is lost. There was no attempt to find additional areas left out during the RARE II inventory, and there was no attempt to notify the public, or to our knowledge other federal or state agencies.
The Appellants have documented only some of the most egregious examples within this validation. Had the public been involved from the beginning, many problems no doubt could have been resolved. As pointed out in our appeal of the Seven Mile decision, the Fishlake National Forest is demonstrating a pattern of ignoring the public when it comes to redrawing the boundaries of its roadless areas, and we ask that the Regional Office immediately intervene.
According to monitoring data obtained by the UEC as a result of a FOIA request, the Fishlake National Forest has failed to meet the mandate of NFMA by falling well short of the monitoring requirements spelled out within its Forest Plan. Current inventory data for most MIS and TES species under its jurisdiction simply has not been maintained.
In the case of macroinvertebrates only five streams have been monitored since 1994, the total that should be monitored annually under the Forest Plan monitoring requirements. The FEIS states that for Box Creek "Fisheries information on lower Box Creek is limited." It goes on to say "Aquatic macroinvertebrate samples were collected at one station near the Forest boundary in 1995. The BCI was 67, which is considered poor, while diversity was in the low to good range."61 The Forest Plan's BCI standard is 75.
For the North Fork of Box Creek a macroinvertebrate survey was completed in 1999. There the sample produced "an average BCI of 69, which is below Forest Plan Standards of 75."62 The FEIS continues "There is little information about fisheries in Greenwich Creek. There is a qualitative survey report from 1970 and a stream work sheet from 1971" The FEIS concludes that "The 1971 survey rates this stream as good overall."63 The fact that the Fishlake is relying on monitoring data that is 30 years old when the Forest Plan, written in the mid eighties, requires annual habitat condition inventories for streams under the Fishlake National Forest's jurisdiction and annual fish surveys on at least one stream per year is most troubling.
What is perhaps even more troubling than the rarity with which macroinvertebrate surveys or habitat condition surveys appear to be done, is the fact that for fish there is not only a paucity of data, but no monitoring data at all. The information received by the UEC contained only two one page summaries describing the distribution and habitat requirements for the Colorado and Bonneville cutthroat trout and a seven page study published in the Great Basin Naturalist in 1997. No site specific data or monitoring results was provided, and the UEC has requested sensitive species monitoring data two years in a row now, and MIS monitoring data going back 10 years.
For the sensitive spotted frog, a species currently deemed worthy of listing under the ESA but precluded due to higher priorities, monitoring data amounts to the same kind of one page summary the two sensitive cutthroat trout species received. Given the rarity of this species, and the fact that a population has been identified within the Project Area, it seems appropriate to conduct more monitoring for this species than has been done so far.
No data regarding peregrine falcon, until recently listed as threatened, has been received by the UEC. In addition, no monitoring was provided for the Utah prairie dog, an endangered species. Bald eagle monitoring data was also absent from the material received by the UEC as a result of its FOIA request. The Fishlake National Forest has generated no annual, five-year, or 10 year monitoring reports either.
Among other MIS listed within the Fishlake National Forest Plan are the riparian dependent guild and sage nesters.64 In response to its FOIA requesting MIS monitoring data for the past 10 years the UEC received no monitoring data for either of these MIS guilds. At the time the Forest Plan was written in the mid 1980s the estimated population for both of these categories was stated to be "unknown", and apparently nothing has changed.65
The failure to monitor most of the MIS and other wildlife and plant resources under the Fishlake National Forest's jurisdiction is extremely disturbing. While the EIS claims among its goals the restoration of watersheds, riparian areas and improvement to wildlife habitat, the lack of monitoring data that could only assist in the crafting of strong proposals that would better achieve these goals leaves the Appellants suspicious of the Fishlake National Forest's true priorities.
We remind the Forest Service that the requirement to "obtain and keep current inventory appropriate for planning and managing the resources" within each national forest is not optional. The Forest Service has no means to determine the impacts of actions when monitoring has not taken place. The requirement to monitor "population trends of the management indicator species" and to determine the relationship between habitat changes and MIS population trends is written into the law and federal regulations for a reason. In the absence of any systematic effort to collect data and determine population trends, the Fishlake National Forest cannot legally move ahead with any proposal, let alone the Monroe Mountain Ecosystem Restoration Project.
In the Appellants December 2000 appeal of the Seven Mile Timber Salvage Sale the Appellants cited the January 1999 USDA Office of Inspector General report that determined the lack of monitoring and a lack of adequate administrative control over environmental documents brought environmental analyses into serious question. The report states "The Forest Service cannot rely on their environmental documents (i.e. environmental assessments, biological evaluations, decision notices and 'Findings of No Significant Impact') to provide assurance of compliance with environmental laws and regulations. This condition exists because the administrative controls over the preparation of environmental documents were not effective." The Inspector General concludes "As a result, (a) Forest Service's conclusions that actions would not have a significant effect on resources, threatened, endangered, and sensitive species, and the human environment were questionable, (b) all relevant data was not collected and presented to the public, and (c) the environment could be adversely effected."66
Among other problems addressed in the Inspector General's report cited above was the absence of site-specific surveys. "Site specific surveys for threatened, endangered, and sensitive species were either not performed or not documented..." The report continues, "This occurred because biologists were not aware that surveys were to be conducted or they lost their field survey notes."67 The lack of monitoring data on the Fishlake National Forest raises the possibility that a similar situation exists on that forest.
NFMA also directs the forest to develop plans that recognize "that the National Forests are ecosystems and their management for goods and services requires an awareness and consideration of the interrelationships among plants, animal, soil, water, air, and other environmental factors within such ecosystems."69
The "awareness and consideration" spoken of above, as well as the mention of "quantitative data" that enables an accurate evaluation of diversity makes it clear that the national forest must keep up with current scientific literature, maintain and develop accurate records of the resources on the forest, and give careful consideration to the impacts of past and present management practices on those resources based on the data they have gathered and/or reviewed. It is clear from the absence of any references to monitoring data, site specific or otherwise, that the Fishlake National Forest has not given careful consideration to diversity.
It is impossible to understand the "interrelationships" that exist on a forest if you don't even know what is out there to begin with. The Inspector General's report cited earlier raised serious questions about the lack of monitoring for threatened, endangered, and sensitive species, in addition to the lack of monitoring for management indicator species. This failure amounts to a violation of not only the NFMA, but the Endangered Species Act as well.
The Forest Service is prohibited by law from taking any action that might jeopardize the continued existence of any TES species. Without adequate monitoring data, it is impossible to make determinations of "no effect", or any effect for that matter. The Inspector General accurately pointed out that the lack of monitoring data brings every conclusion reached within environmental documents into question.
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."71
The failure to gather required monitoring data on a variety of species known to inhabit or potentially inhabit the Project Area makes it impossible for the agency to consider "an important aspect of the problem", namely the presence of management indicator species and threatened, endangered, and sensitive species.
In addition, Congress clearly intended for monitoring data to be maintained and kept current through the passage of NFMA. The very requirement that this data be gathered is a clear indication of Congress' intent for this monitoring data to be used in the decision making process. The requirement in NEPA that a cumulative effects analysis be conducted on each of the alternatives being considered also demonstrates the desire of Congress to have monitoring data and the latest scientific research used to determine impacts and mitigate them to the greatest extent possible. In the absence of adequate monitoring, it is impossible for the agency to carry out the will of Congress or to consider important aspects of the problem(s) in question.
With regards to many issues the agency did not so much offer an "implausible" explanation as offer any at all. There can be no explanation without data, and there can be no data without some fieldwork on the part of the Fishlake National Forest. The photographs and maps in the appendices show that the situation on the ground is very different than that described in the Roadless Area Validation and other documents. What explanation can there be, for example, when the Fishlake National Forest puts down in black in white that a boundary road is managed as a pack trail but simultaneously functions as a maintained 4WD road.
The agency also was arbitrary and capricious in its decision to largely ignore the impacts of grazing. The project will enhance the environment by correcting problems in large part created by domestic livestock, and will then return the livestock to the area within a few years of completion. The rational decision making required by the APA is not consistent with decisions that claim to address a problem while continuing to perpetuate the cause of the problem.
In conclusion, the Fishlake National Forest has acted in an arbitrary and capricious manner in its management of the resources under its jurisdiction as a whole. The failure to monitor, in spite of mandates written into its own Forest Plan, the willy nilly redrawing of roadless boundaries without consulting the public, and its previous history of failing to scope proposals before reaching a decision (i.e. ATV Jamboree 2000) demonstrate a pattern of reckless and arbitrary action. We urge the Regional Office once again to take this opportunity to intervene and impose some order on the management of this national forest.
Request for Relief Due to the failure to adequately monitor the MIS and TES species resources within its jurisdiction, the Fishlake National Forest cannot legally proceed with the planned Monroe Mountain Ecosystem Restoration Project. As in the case of the Seven Mile Appeal filed late last year with the Regional Office, the Appellants request all timber sales and other activities currently in various stages of planning be halted until the legally required monitoring can be done thus assisting in proper planning as required by NEPA, NFMA, the ESA and other applicable laws and regulations.
As a result of these facts, and others contained within this appeal, the Appellants also request immediate intervention by the Regional Office in the management of the Fishlake National Forest. We request that the Regional Office intervene to force the development of a sound monitoring plan that will bring monitoring data up to date and be compiled within monitoring reports that adequately summarize the findings and make data more readily available to decision-makers. The absence of monitoring data for such species as the peregrine falcon, bald eagle, spotted frog and others demonstrates adequately the need for intervention. Such a state of affairs is both legally and morally indefensible.
The Appellants request that the Regional Office require the Fishlake National Forest to implement the recommendations contained within the USDA Office of Inspector General Evaluation Report (Report #08801-10-At). While these recommendations were made to the Washington Office, the Regional Office clearly has the power to intervene and begin implementing these recommendations on the Fishlake National Forest and throughout Region 4 as a whole should it be necessary.
The Appellants point out in the strongest possible terms that the Fishlake National Forest's failure to monitor the resources under its jurisdiction amounts to a wanton disregard for the resources it holds in trust for the American people. Without intervention to correct the current situation there will be a complete breakdown in trust with regards to the management of that forest. The consequences of such a breakdown should be clear to all concerned.
cc: Mike Dombeck, Chief, Forest Service
& Accompanying EIS
For the Monroe Mountain
Ecosystem Restoration Project
on the Fishlake National Forest
1817 South Main, Ste 9
Salt Lake City, UT 84115
Southeast Regional Office
P.O. Box 275268
Boca Raton, FL 33427-6268
P.O. Box 8264
Missoula, MT 59807
INTRODUCTION
STATEMENT OF FACTS
ARGUMENTS
REQUEST FOR RELIEF
Craig Axford, Program Director
Utah Environmental Congresss
1817 So. Main, Ste 9
Salt Lake City, UT 84115
(801)466-4055
on behalf of appellants.
NOTICE IS HEREBY GIVEN that the Utah Environmental Congresss (UEC), Forest Conservation Council (FCC), and the National Forest Protection Alliance (NFPA) appeal pursuant to 36 CFR § 215.7 to the Regional Forester of Region Four, from the Record of Decision for the Monroe Mountain Ecosystem Restoration Project on the Fishlake National Forest signed by Fishlake National Forest Supervisor Rob Mrowka on December 8, 2000.
The Monroe Mountain Ecosystem Restoration Project's Project Area covers approximately 50,000 acres, includes twelve watersheds within the Sevier River Basin, and includes five inventoried roadless areas (pre-validation).1 The selected alternative would result in the removal of roughly 8.7 million board feet of timber and would treat thousands of additional acres through the use of fire and other treatment methods.2
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 Multiple Use and Sustained Yield Act (MUYSA), the Administrative Procedures Act (APA), the Endangered Species Act (ESA), and the Wilderness Act.
In its comments regarding both the DEIS and FEIS the UEC indicated it had serious concerns regarding both the inclusion of roadless areas within the treatment units and the potential presence of roadless areas that had either been unidentified by the Forest Service or had boundaries that did not meet Region 4 criteria.
The Multiple Use and Sustained Yield Act (MUYSA) opens with the statement that "It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes."15 The MUYSA continues "The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forest for multiple use and sustained yield of the several products and services obtained there from. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas."16
"Cumulative impact" is "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonable foreseeable future action regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."22
According to the FEIS, the specific Purpose and Need for this project is to "Restore the abundance of aspen ecosystems where losses occurred because of changed disturbance regimes and increased ungulate pressure; Work towards improving watershed conditions that favor long-term improvement of riparian areas and water quality; Reduce the risk of large, intense episodes of wildland fire in the mixed conifer/aspen stands; Reduce the potential of epidemic level spruce beetle outbreaks in spruce/fir stands; Contribute to the restoration of the grass/forb ecosystems to improve habitat for wildlife and livestock" and; "Provide timber products to support local economy, while performing ecosystem restoration."29
In preparation for this, and other projects (see Seven Mile Timber Salvage Sale Appeal filed by Appellants on Dec. 13, 2000) the Fishlake National Forest has undertaken an effort to "revalidate" its roadless inventory. As a result of this revalidation effort, significant portions of inventoried roadless areas are being dropped through individual project environmental assessments and environmental impact statements.
The Appellants have provided in Appendix A a series of photographs documenting the condition on the ground of some of the roads and other impacts used as boundaries for the "revalidated" inventory. We will be referring to some of the areas included in the photographs throughout this section.
NFMA requires that "each Forest Supervisor shall obtain and keep current inventory data appropriate for planning and managing the resources under his or her administrative jurisdiction."58 The Fishlake National Forest's LRMP mandates that management indicator species (MIS) be monitored periodically. In the case of the Bonneville cutthroat trout, found in Manning Creek within the Project Area, the Fishlake National Forest is supposed to monitor at least one stream per year.59 In the case of threatened and endangered plant species vegetation surveys are to take place annually. Non-game species shall be monitored through plot census on an annual basis and macroinvertebrate surveys shall be conducted in five streams annually according to the LRMP. For threatened, endangered and sensitive wildlife visual reconnaissance will be conducted annually as well.60
The National Forest Management Act requires that diversity be taken into account in the forest planning process. "Forest planning shall provide for diversity of plant and animal communities and tree species consistent with the overall multiple use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include qualitative data making possible the evaluation of diversity in terms of its prior and present condition."68
The APA requires all agency actions to conform with general standards of regularity and rationality. The courts will overturn decisions that are "arbitrary and capricious, or an abuse of discretion."70
Due to the violations of federal law and regulations cited above, the Appellants request a full remand of the Monroe Mountain Ecosystem Restoration Project ROD and accompanying EIS signed by Forest Supervisor Rob Mrowka on December 8, 2000.
Paul Brouha, Associate Chief, Forest Service
Dinah Bear, CEQ
