Utah Environmental Congress
BEFORE THE REGIONAL FORESTER OF REGION
FOUR OF THE UNITED STATES FOREST SERVICE
In Re Appeal of Decision Notice
and Environmental Impact Statement
for the Pretty Tree Bench
Vegetation Project Prescribed Burn
on the Dixie National Forest.
UTAH ENVIRONMENTAL CONGRESS ESCALANTE WILDERNESS PROJECT JAN ALLISON APPELLANTS APPEAL NO.________
INTRODUCTION
STATEMENT OF FACTS
ARGUMENTS
REQUEST FOR RELIEF
DATED this ____ day of ___________ 2000.
By __________________________________ Introduction The UEC and EWP are non-profit organizations dedicated to maintaining, protecting and restoring the native ecosystems of Utah. The UEC and EWP have an organizational interest in the proper and lawful management of Utah's national forests, including the Dixie National Forest. UEC and EWP members, staff and board members participate in a wide range of recreational activities on the Dixie National Forest, including the area in and surrounding the Pretty Tree Bench Vegetation Project.
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 Dixie National Forest or have a direct interest in its management. UEC's organizational members include the EWP.
Jan Allison claims standing on the grounds that she is a resident of Escalante, UT, has hiked and recreated within the Pretty Tree Bench area, and commented on the Draft EIS prepared by the Dixie National Forest. As a resident of the area most directly impacted by this decision, Jan has a special interest in how the Dixie National Forest is managed.
The UEC and EWP claim standing to participate in the public land decision-making process on the grounds that they have been involved in forest management since their founding. Our members have hiked, fished, hunted and photographed the Dixie National Forest, including the Pretty Tree Bench area impacted by this decision. UEC members include professional photographic businesses and freelance photographers that make their living in part by photographing Utah's national forests, including the Dixie. The impacts associated with this decision detract from the beauty and biodiversity that makes these lands appealing to both professional photographers and UEC members that recreate within the vicinity of Pretty Tree Bench.
In addition, UEC's members, EWP staff and board members, and Jan Allison are taxpayers that are required to pay for the activities discussed within the EIS and accompanying Decision Notice. The irretrievable commitment of financial resources associated with this project is also borne by the American people as a whole. The UEC, EWP and Jan Allison claim 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 treat the Pretty Tree Bench area through a prescribed burn significantly affects the appellants for the reason that the appellants area conservation groups and individuals who individually or through their membership regularly engage in diverse forms of recreation and in other uses of the Dixie National Forest. The proposed action will degrade critical wildlife habitat and will adversely effect the appellants recreational use and enjoyment of the area.
The UEC, EWP and Jan Allison have participated in the comment process for the Pretty Tree Bench Vegetation Project prepared by the Dixie National Forest. In addition, the Appellants have commented on and participated in numerous meetings and discussions with the Dixie National Forest and other national forests across the state of Utah. The UEC has also committed a great deal of time and resources to this summer's survey of roadless areas contained within the Dixie National Forest. The EWP has assissted the UEC in preparing for this survey.
The Appellants are appealing the Decision Notice regarding the Pretty Tree Bench Vegetation Project Prescribed burn on the grounds that the decision is legally indefensible. The Appellants believe the Dixie National Forest violated the National Environmental Policy Act (NEPA) by failing to provide the public with an adequate cumulative effects analysis. In addition, the Appellants believe the Dixie National Forest violated the National Forest Management Act (NFMA) and the Endangered Species Act (ESA).
The Appellants desire and will request relief in the form of a remand of the Pretty Tree Bench Vegetation Project Prescribed Burn Decision Notice and accompanying EIS signed by Dixie National Forest Supervisor Mary Wagner on March 10, 2000.
Statement of Facts The Decision Notice and accompanying EIS describe the Purpose and Need for the Proposed Action as "to provide appropriate levels of prescribed fire and other management actions to create healthier vegetation conditions, enhance elk and deer winter range, reduce ground and ladder fuels, create a young stand structure and reduce stand densities within the pinyon pine/juniper stands."
Among the vegetative communities that will be treated to accomplish the stated Purpose and Need of the project are sagebrush, gambel oak, pinyon/juniper, Ponderosa pine, mixed conifer and aspen. In each case fire exclusion, grazing and/or fuel loading are the stated reason for the need to treat these vegetation communities.
Among the wildlife species listed within the EIS as living or possibly living on or near the project area are mule deer, elk, Merrian's turkey, northern goshawk, three toed woodpecker, northern flicker, flammulated owl and peregrine falcon. While all of these species receive at least some attention within the EIS, others known to be present within the Analysis Area such as the Aquarius paintbrush do not.
The total cost associated with the NFMA/NEPA planning and prescribed burn Decision Notice is $871,875.00. This includes the full cost of the NFMA/NEPA planning which would need to be carried out even in the absence of other pending decisions regarding the Pretty Tree Bench Vegetation Project.
Arguments
The ensuing arguments will demonstrate that the Dixie National Forest has violated the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA) and the Endangered Species Act (ESA).
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."
In our comments regarding the Draft EIS submitted to the Dixie National Forest on June 24, 1999 the UEC raised real concerns about the presence of livestock within the Project Area, and the relationship of continued grazing to the problems the project is meant to address. Similarly, in earlier comments regarding this project submitted to the Dixie National Forest on March 30, 1999 the UEC cited research regarding the role grazing plays in fire suppression and fuel loading. Both the Draft EIS and the Final EIS dismissed these concerns as being beyond the scope of the project and failed completely to analyze the cumulative effects of continued livestock grazing on the area in spite of the fact it will continue into the foreseeable future.
While the Forest Service might be able to claim the continued use of the area for livestock grazing may be beyond the scope of the project, the cumulative effects of grazing within the area cannot be ignored and are clearly meant to be addressed according to NEPA. Even though grazing specifically is not being addressed within this particular EIS, it is a "past, present and reasonably foreseeable action" that when combined with the proposed action could have significant impacts.
In addition, grazing is commonly cited as a major cause of the conditions used to justify this project within the Purpose and Need portions of both the EIS and the Decision Notice. In their 1997 paper regarding the impacts of grazing on stand dynamics and soils in the West A. Joy Belsky and Dana M. Blumenthal conclude "Not only have cattle and sheep helped convert the original park-like forests into dense stands of less fire-tolerant tree species, but they have changed the physical environment by reducing fire frequencies, compacting soils, reducing water infiltration rates, and increasing erosion." A copy of the Belsky, Blumenthal paper is attached as Appendix A.
The EIS' analysis of the effects of the Proposed Action on wildlife species makes several assumptions that are not supported by any evidence provided within the EIS. The EIS assumes that pinyon/juniper communities dominate 60% more land than they have historically, yet provides no monitoring or research that would support this claim. Many scientists argue that pinyon/juniper communities have fluctuated historically across the West and have reached distributions very similar, or even larger, than what exists today.
The Purpose and Need for the Pretty Tree Bench Vegetation Project as described within the Final EIS is in part to "enhance elk and deer winter range..." This assumes that deer and elk populations will benefit from treatments such as those approved in the Decision Notice. As the following paragraph from the article attached as Appendix B shows, this is not only not necessarily the case, but many wildlife species suffer as a result of the types of treatments being proposed here.
"While some wildlife species benefit from a reduction in woodland
cover, other species may suffer (Buckman and Wolters 1987, Stevens 1987),
as demonstrated by the many pinyon-juniper reduction projects that have resulted
in less productive, rather than more productive, wildlife habitat (Stevens 1987).
Sedwick and Ryder (1987) found, for example, that while the chaining of trees
from a pinyon-juniper woodland in Colorado increased herbaceous production
by more than 700%, it significantly reduced site utilization by birds. As a result,
avifauna diversity was higher in woodlands than in chained sites. In contrast, the
authors found that small-mammal abundances were higher on the chained site.
Howard et al. (1987) found that mule deer showed increased use of cabled areas in
the spring and lagomorphs showed increased use of cabled areas in all seasons
except winter. Nevertheless, woodland clearance has generally shown few effects
on population sizes of big-game species such as deer and elk (Terrell and Spillett
1975, Skousen et al. 1989). As a consequence of these variable responses to pinyon-
juniper control, Gifford (1987) concluded that "blanket statements are obviously
out of place..."(p. 36).
As is documented in Appendix B, assumptions made about increased water infiltration into the soil where pinyon-juniper has been thinned or removed entirely are frequently unwarranted as well. In addition, there have been cases where treating pinyon-juniper stands has lead to increased success and establishment of cheatgrass and fireweed. Unfortunately the EIS reinforces the assumption regarding increased water infiltration and fails entirely to mention any increased risk of cheatgrass or other noxious weeds. Indeed, it is assumed that native grasses and forbs will only benefit as a result of treatment.
The EIS and accompanying Decision Notice have clearly failed to adequately analyze the cumulative effects of continued livestock grazing on the areas to be burnt. These effects include but are not limited to, increased fuel loading, the recovery of aspen and native grasses and forbs after treatment, contributions to fire suppression, possible increases in erosion above that which would occur in areas recovering without the presence of livestock and impacts to bird populations and other wildlife. This failure to take these cumulative effects into account or adequately address them amounts to a clear violation of NEPA.
The Pretty Tree Bench EIS focuses almost exclusively on jobs created in association with the timber sale aspect of the proposal, and benefits to hunting related recreational activities resulting from the assumption that deer, elk and turkey populations will benefit from the project. As we showed in our critique of the cumulative effects analysis provided above, it is by no means certain that deer, elk or turkey populations will increase as a result of this project. Even if populations did increase slightly, the Forest Service has not allowed for the possibility that the State of Utah may choose not to increase hunting opportunities.
In addition, the Forest Service should begin to acknowledge the tremendous economic benefit of "non-consumptive" activities such as bird and wildlife watching. The number of avifauna that could be lost as a result of the prescribed burns is tremendous (see Appendix A), yet nowhere in the economic analysis is the potential economic impact of this loss acknowledged.
Impacts to pollinator species were not analyzed either within the cumulative effects analysis or the economic analysis prepared for the EIS. The agriculture industry, as well as native flowers and trees, depend upon pollinators for their very survival. Neither the short or long term impacts to these species' were acknowledged.
The Forest Service made no effort to analyze the economic impacts resulting from possible changes in other recreational activity patterns within the area caused by the implementation of the Proposed Action. While impacts to recreation are discussed within the EIS, the economic component of these impacts was not analyzed and incorporated into the economic analysis provided. Financial losses or benefits experienced by the Forest Service and/or local communities created by changes in use patterns over the short and long term were not analyzed and are required where an economic analysis is prepared.
The UEC brought up the importance of regulating grazing activity more thoroughly upon completion of implementation of the Proposed Action. Unfortunately the Forest Service has chosen to ignore the benefits associated with removing livestock from treated areas for at least some period of time following treatment. The Forest Service must establish some standards that must be met before livestock are allowed to return to an area that has been burnt. Vegetation height and ground cover standards are essential if the area is to be assured of a quick and strong recovery following burning.
As it stands the Forest Service is making no changes to grazing practices within the treated areas. Livestock could be present within a burnt area within weeks after a burn, and will most certainly be present during the summer following treatment. Any fresh grasses and forbs that begin to establish themselves following treatment will be attractive to livestock, and recovery will be slowed or reversed due to their presence.
In addition, aspen stands that are burnt will be sending up fresh suckers following treatment. These are especially attractive to livestock, yet no effort was made to establish minimum height requirements before livestock are allowed to return to an aspen stand to graze.
The cumulative effects analysis failed to even analyze the possible impacts of livestock grazing on recovery speed or success. This oversight has lead to a failure on the Forest Service's part to provide adequate mitigation measures that remove livestock for a minimum period of time and/or until minimum vegetation condition standards are met following burning. This amounts to another failure to meet the mandate of NEPA.
Unfortunately the EIS failed to provide monitoring data regarding management indicator species (MIS) or threatened, endangered, proposed and sensitive species living within or potentially living within the analysis area. Data regarding song bird populations is completely missing from the EIS. This is troubling because, as stated above, significant reductions in avifauna activity has been documented in the past after treatments such as the one authorized within the Decision Notice.
In addition, no macroinvertebrate surveys are mentioned on any of the streams running through either the Project Area or the Analysis Area in spite of the fact that flow from both the Sand Creek and the Boulder Creek drainage supplies culinary water to local communities. This is also troubling because of the presence of the sensitive Colorado cutthroat trout in Durfey Creek. In addition, the Dixie National Forest Plan calls for resident trout to be used as indicators of water quality, but only the Colorado cutthroat trout in Durfey Creek receive any attention in the EIS' analysis of fishery conditions.
Our review of monitoring data received by the UEC as a result of a Freedom of Information Act (FOIA) request failed to turn up any evidence of macroinvertebrate surveys or fish surveys conducted by the Escalante Ranger District in spite of the fact that all monitoring data was specifically requested by the UEC in its FOIA request. The Forest Plan clearly states that resident trout shall be monitored annually through the use of gill netting, electro-shocking and creel census. If the Forest Service is relying on the Utah Division of Wildlife Resources (UDWR) for this information, it should be contained within their monitoring files.
The Forest Plan does specifically state that with regards to Merriam's turkey the Forest Service may rely on data gathered by UDWR through hunting success figures and sightings by what the Forest Plan refers to as "reliable persons." Again, however, no population estimates are provided within the EIS and no records were obtained by the UEC in spite of our specific FOIA requesting all monitoring data. It is clear that the Dixie National Forest either is not maintaining adequate records regarding these species, or is not conducting the monitoring needed to maintain required population and habitat data.
The United States Department of Agriculture (USDA) Office of Inspector General Evaluation Report found significant problems with Forest Service monitoring and management of monitoring information. While the report dealt specifically with the adequacy of Environmental Analyses (EA), its findings have direct relevance here. If the Forest Service cannot prepare adequate EA's that are designed to determine the need for an EIS, they cannot prepare adequate EIS's either.
The report found "The Forest Service cannot rely on their environmental documents 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. 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."
By failing to gather and/or provide necessary data regarding management indicator species the Dixie National Forest has demonstrated that they do not have the necessary data to demonstrate their claims in the EIS and Decision Notice that none of the species or resources discussed in the EIS will be harmed by the proposed action. This amounts to a complete failure to meet the mandate of NFMA. In addition, we will now show that this failure to adequately monitor the resources under the jurisdiction of the Dixie National Forest extends to threatened and endangered species.
In its biological assessment (BA) of impacts resulting from the proposed action to threatened, endangered and proposed species the following species were identified: Bald eagle, Mexican spotted owl, peregrine falcon, Southwestern willow flycatcher and Utah prairie dog.
The BA states that "No records exist which would indicate presence of federally-listed T&E wildlife or plant species, or of species proposed for listing." The Final EIS reached essentially the same conclusion on page 55 of Chapter 3.
In a letter to District Ranger Kevin Schulkoski dated June 30, 1999 the Regional Environmental Officer for the Department of Interior informed Ranger Schulkoski of the possible presence of the Aquarius paintbrush (Castilleja aquariensis) within "the vicinity of project activities." The letter goes on to request "Adherence to conditions detailed in the species' Conservation Plan should occur to ensure preservation of existing populations."
In addition, the Dixie National Forest has monitoring data showing that a population of Aquarius paintbrush does indeed exist at South Point in the northern section of the Analysis Area. The monitoring report, prepared for the Dixie National Forest by Joanne Stenten states "There may be substantial biological information on the Aquarius paintbrush to support the proposition to list it as an endangered or threatened species with the United States Fish and Wildlife Service." The report continues "According to the combined 1998 plot data, mortality is approximately three times greater than regeneration, which indicates that the Aquarius paintbrush is currently experiencing a downward trend." No mention is made anywhere within the EIS of this fact or of possible impacts to this candidate species, a clear violation of the ESA. The possible presence of this plant was also pointed out to the Forest Service in our original scoping comments.
By failing to address these concerns, and consult with the US Fish and Wildlife Service regarding possible impacts to this species, the Forest Service is potentially contributing to the eventual listing of this species. This violates the ESA as well as its own regulations. It also demonstrates a dangerous unfamiliarity by Dixie National Forest staff with their own monitoring data and an inattention to letters received warning them of the potential presence of this plant. What else may have been overlooked, assuming monitoring data exists at all?
Request for Relief In addition, the Appellants request that the Dixie National Forest be required to redo the EIS prepared for this project should they decide to move ahead with this project at some future date. In light of the fact that numerous potential cumulative effects were not analyzed, or were inadequately analyzed, and that information regarding the presence of a candidate species was completely ignored the Dixie must be required to redo their EIS.
1817 So. Main, Ste 9
Salt Lake City, UT 84115
P.O. Box 652
Escalante, UT 84726
P.O. Box 616
Escalante, UT 84726
Craig Axford, Program Director
Utah Environmental Congress
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 Congress (UEC), Escalante Wilderness Project (EWP) and Jan Allison hereby appeal pursuant to 36 CFR 215.7 to the Regional Forester of Region Four, from the Decision Notice for the Pretty Tree Bench Vegetation Project Prescribed Burn Decision Notice signed by Dixie National Forest Supervisor Mary Wagner on March 10, 2000.
The Pretty Tree Bench Vegetation Project Prescribed Burn (hereafter referred to as the
Prescribed Burn) will treat with fire between 11,650 and 12,300 acres. Included within the project area is approximately 4,500 acres of inventoried roadless areas that will be altered in some way by the proposed action.
The Dixie National Forest has failed to provide an adequate cumulative effects analysis within the EIS prepared for the Pretty Tree Bench Vegetation Project and the accompanying Decision Notice regarding the Prescribed Burn.
NEPA regulations do not automatically require the preparation of a cost-benefit analysis. However, if an agency chooses to prepare a cost-benefit analysis, the impact statement "shall...discuss the relationship between that (cost/benefit) analysis and any analyses of unquantified environmental impacts, values, and amenities."
The courts have ruled that an adequate discussion of mitigation measures is an important part of an EIS. "To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. The requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from, the language of the ACT and, more expressly, from CEQ's implementing regulations."
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." Also, "population trends of the management indicator species will be monitored and relationships to habitat changes determined."
Due to the violations of NEPA, the Forest Service Manual, NFMA and the ESA
documented in this administrative appeal, the Appellants request a full remand of the Decision Notice signed by Dixie National Forest Supervisor Mary Wagner on March 10, 2000.
