BEFORE THE REGIONAL FORESTER OF REGION
FOUR OF THE UNITED STATES FOREST SERVICE
In Re: Appeal of Decision Notice
& Finding of No Significant Impact
For the Seven Mile Spruce Beetle Infestation,
Seven Mile Salvage Timber Sale
on the Fishlake National Forest
UTAH ENVIRONMENTAL CONGRESS Bryan Bird, Forest Conservation Council National Forest Protection Alliance APPELLANTS DATED this _____ day of _______________, 2000 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 Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale. 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 185 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 Seven Mile Spruce Beetle Infestation, Seven Mile Salvage Timber Sale Project Area. Our collective membership includes professional photograph 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 Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale.
In addition, UEC, FCC and NFPA members are taxpayers that are required to pay for the activities discussed within the EA and accompanying Decision Memo. 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 Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale. 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 Decision Memo and FONSI 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 a reasonable range of alternatives and 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), and the Administrative Procedures Act (APA).
The Appellants desire and will request relief in the form of a remand of the Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale and FONSI signed by District Ranger Jeanne Higgins on September 26, 2000.
Statement of Facts The project falls within management areas 4A, 4B and 6B. These management areas have an emphasis on fish habitat improvement, the habitat needs of one or more management indicator species, and intensive range management respectively. According to the EA the "Proposed treatments are designed to be beneficial to the habitat needs of management indicator species, such as deer, elk, goshawk and cavity nesting birds."3 The EA also states "The primary reasons of the treatment are to maintain and improve wildlife habitat."4
The timber sale is described within the EA as one that will generate revenue and economic benefits for both the Forest Service and the local economy.5 A prescribed fire alternative was considered, but dismissed from further consideration on economic grounds.6 The EA fails to provide the public with a break down of costs and revenues generated from the Seven Mile Project, making detailed feedback regarding the economic impacts of the project impossible.
According to the Fishlake National Forest, the Seven Mile Project is adjacent to the UM Plateau-Mt. Terrill Roadless Area.7 The appellants have demonstrated, and will demonstrate again in the arguments to follow, that in fact the project falls in part within the UM Plateau-Mt. Terrill Roadless Area.
Arguments The Forest Service Handbook states clearly that the purpose and intent of alternatives is to "ensure that the range of alternatives does not foreclose prematurely any option that might protect, restore, and enhance the environment."10 While the EA describes several potential environmental problems with both prescribed burning and mechanical treatment, the above regulation states that "any" option that "might protect, restore, and enhance the environment" be considered as an alternative. The Fishlake National Forest failed to analyze these alternatives in detail because "It would be difficult to burn the large green boles of the Englemann (sic) spruce trees."11 Difficult is not the same as impossible and is not beyond detailed consideration under the mandate spelled out within the Forest Service Handbook.
NEPA is also clear with regards to the need to study in detail all reasonable alternatives. NEPA requires that all federal agencies "rigorously explore and objectively evaluate all reasonable alternatives."12 While the reasonable range of alternatives may include those considered but dismissed from detailed consideration according to CEQ, the separate requirement to "rigorously explore and objectively evaluate all reasonable alternatives" calls for more detailed analysis than those alternatives dismissed by the agency did within the EA.
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."14
The CEQ has discussed the procedures an agency must follow when responding to comments, especially when an issue or concern has been raised about an agencies methodology or failure to consider a reasonable alternative. "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."15 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."16
Both the UEC and the FCC supplied the Fishlake National Forest with specific concerns regarding issues surrounding the proposed Seven Mile Project. The UEC raised concerns about the failure of the Fishlake National Forest to recognize a portion of the project as a roadless area as it had done under its earlier RARE II inventory. The FCC specifically challenged the integrity of the Fishlake National Forest's economic analysis of the impacts of the project. In both cases the agency failed to provide a "substantive and meaningful" response as required by NEPA and the CEQ.
First, with regards to the UEC's concern about the presence of roadless lands within the project area, the UEC provided a detailed map of the results of its roadless area survey conducted in 1999 on the Fishlake National Forest and provided photographs of the "road" the Fishlake National Forest was using as a boundary for its latest validated survey of RARE II areas. We have provided a copy of the same photographs, along with additional photographs, and a map of the UEC's roadless area survey results in Appendices A & B.
In addition to providing photographs and maps, the UEC pointed out to the Fishlake National Forest that it was failing to follow the guidelines that were being used to determine the present condition of roadless areas under its jurisdiction.17 In its response to the UEC's concerns the Fishlake National Forest states that Forest Road #1240, which marks the southern and eastern boundary between the project area and the UM-Mt. Terrill Roadless area as defined by the Fishlake National Forest, "had been mechanically constructed and had received periodic maintenance." In addition, the Fishlake claimed Forest Road #1240 was on their maps as "a Level 2 road."18
The Fishlake National Forest's Land and Resource Management Plan defines a Level 2 Road as "a road open for limited passage of traffic but not normally suitable for passenger cars."19 In the report outlining the reasoning behind the roadless area validation that made Forest Road #1240 a boundary road that eliminated 331 acres of the UM-Mt. Terrill Roadless Area containing two of the Seven Mile Project cutting units it states "A portion of this road (FR #1240) has been closed to the public through the use of signing." In other words, the road is not "open for limited passage of traffic" and thus is not a Level 2 road as the Fishlake National Forest claims.
The validation report goes on to repeat the claim made in the EA that Forest Road #1240 has been constructed and received "periodic maintenance." None of the photographs provided in Appendix A of this appeal provide any evidence of either maintenance or construction. In fact, picture three shows the road overgrown with grass and not even appropriate for four-wheel drive or ATV use, let alone the standard passenger vehicles a Level 2 Road is "not normally suitable for."
The Draft Intermountain Region Planning Desk Guide for Roadless Area Inventory and Evaluation uses the Forest Service Handbook definition of a roadless area. "Roadless Area - Literally an area without any improved roads maintained for travel by standard passenger type vehicles."20 What is an improved road? "Improved road - A travel route for standard passenger vehicles which has been mechanically constructed during its life and which has been maintained to where the road is still usable and features of mechanical construction are still substantially noticeable." The definition of Improved Road goes on to state that an Improved Road is "A road currently closed but maintained for future use (e.g. level 1) and which still exhibits substantially noticeable evidence of man's work (e.g. road prism, cut/fill slopes, etc.)..."21 Furthermore, the recently released National Forest System Road Management Strategy defines a road as "A motor vehicle travelway over 50 inches wide, unless classified and managed as a trail."22 Based on the photographic evidence provided Forest Road #1240 clearly fails to meet this definition of a road as well.
In addition to concerns about the UM-Mt. Terrill Roadless Area the UEC provided a map of its Sheep Creek Roadless Area which includes the two northern most cutting units. The question of whether or not this area qualified as roadless was completely ignored in the response to comments provided by the Fishlake National Forest.
With regards to the roadless issue raised by the UEC, the Fishlake National Forest did not provide a "substantive and meaningful" response in violation of NEPA, ignored the definitions of a roadless area provided in the Desk Guide ostensibly used in the revalidation of past inventories, and the definition of a Level 2 Road provided in its Forest Plan in violation of NFMA. Based on the photographic evidence provided in Appendix A the Fishlake National Forest has also clearly acted in an arbitrary and capricious manner in violation of the APA. The Fishlake National Forest also ignored completely concerns about the possibility that the two northern cutting units also fall within a roadless area. Such willful disregard for procedure is an affront to the Forest Service's integrity as an agency and must not be allowed to stand.
Now with regards to the economic issues raised by the FCC, the Fishlake National Forest received substantive comments documenting a number of economic benefits received by maintaining intact forest ecosystems that are not utilized to produce timber. Among the statistics cited by the FCC was the fact that "recreation, tourism, ecological research, fishing, and hunting outnumber wood products jobs by at least 6:1" in Utah.23 The FCC's comments go on to state that "there were 30,555 jobs associated with forest protection and 5,481 associated with logging and wood products manufacturing" within the state of Utah, and that between 1988 and 1996 forest protection jobs grew at a rate of 62%, while wood products jobs increased by 22%."24
The FCC also pointed out to the Fishlake National Forest that "In addition, the Seven Mile Spruce Beetle Infestation Timber Sale will create adverse competition for private land loggers...." The FCC comments go on to point out that "There are 3 million acres of commercial timberlands managed by private landowners in Utah (18%)."25 The potential for economic impacts to private landowners that sell timber was ignored within the EA.
The Fishlake National Forest responded to the concerns raised by the FCC by stating "We feel that the adverse external economic costs of logging, the ecosystem service value of standing forest and the opportunity costs of the logging program including the value of uses forgone on areas logged plus the benefits associated with alternative uses of timber sale funds would not have a significant effect on the outcome of this economic analysis."26 The FCC clearly demonstrated that at least some of the economic benefits of not logging public lands had been quantified and is significant. It is the Appellants belief that the outcome of the economic analysis would have demonstrated significance had these benefits to the economy received more attention than they did within the EA. The response provided to the FCC within the EA was not "substantive and meaningful" as required by NEPA.
The FCC warned the Fishlake National Forest in its comments that the Forest Service must manage its timber resources "to maximize net public benefits." The Multiple Use and Sustained Yield Act (MUYSA) states "In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas."27 MUYSA goes on to define "multiple use" as "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...and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output."28
The Forest Service Handbook and Forest Service Manual state clearly the importance of conducting adequate economic and social analysis when planning a project. "Fully consider the impacts of Forest Service proposed actions on the physical, biological, social, and economic aspects of the human environment."29 The Forest Service Handbook states unambiguously "Economic and social analyses are integral parts of Forest Service planning and decision-making"30 and according to the Forest Service Manual "Cost effectiveness. Requires agency to design a timber sale program where benefits equal or exceed costs over time."31
The Forest Service Handbook also describes the intent behind the use of terms such as "economic efficiency." "Economic efficiency is a term used to describe how well inputs are used to achieve outputs when all inputs (activities) and all outputs (including market and non-market) are identified and valued. All costs and all benefits to society are included; amounts of each output are not pre-established but are produced in amounts that maximize net public benefits."32
In its response to the FCC's economic concerns the Fishlake National Forest claims "These values (i.e. external economic costs of logging, ecosystem service value of standing timber and values forgone on areas that are logged), as described, are difficult to assign a value for and these values may not represent the correct ones since the values are largely undefined."33 These values are not "undefined." It is difficult to know what the Fishlake means by the "correct" values given the requirement discussed above that "all costs and benefits to society" be included when the economic efficiency of a project is being considered, "including market and non-market" values. If the economic analysis prepared for this project had indeed carefully examined all such values there would be no need to worry about whether or not the "correct" values were analyzed.
Much of the analysis the Forest Service should be doing has been done by other state and federal agencies. The U.S. Fish and Wildlife Service has prepared a national survey of fishing, hunting and other wildlife recreational activities.34 The U.S. Fish and Wildlife Service has also prepared a detailed economic report on the economic impacts of hunting for the International Association of Fish and Wildlife Agencies35 and the Utah Division of Wildlife Resources has produced a detailed study of public attitudes regarding wildlife management in Utah that sheds a great deal of light on the social values of the public the Forest Service is supposed to be serving.36
Given the sensitivity of other agencies to the economic and social impacts associated with wildlife management, it seems odd that the Fishlake National Forest is not even sure it can determine and analyze the "correct" values. Once again, the Fishlake National Forest's response is less than "substantive and meaningful" and thus violates the mandate of NEPA. In addition, by failing to take a hard look at the economic and social values in question, the Fishlake National Forest has violated NEPA and its own regulations governing the preparation of economic analyses and has failed to ensure that the resources are being managed for the greatest good of the American People in violation of the Multiple Use and Sustained Yield Act and Forest Service policy.
The Forest Service Handbook makes it clear that when a proposal involves a roadless area, the Forest Service must prepare an EIS. Among the three types of actions that trigger the requirement for an EIS are "Proposals that would substantially alter the undeveloped character of an inventoried roadless area of 5,000 acres or more (FSH 1909.12). Examples include: a). constructing roads and harvesting timber in a 56,000 acre inventoried roadless area where the proposed road and harvest units impact 3,000 acres in only one part of the roadless area."38
The Appellants have demonstrated in the arguments above, and through the evidence contained in the attached appendices, that the area is in fact still a part of the UM-Mt. Terrill Roadless Area and the so called "revalidation" of this portion of the roadless area meets none of the criteria spelled out by the Regional Office or within the Fishlake National Forest Plan. Thus, an EIS is required and the FONSI is in violation of NEPA.
In addition, the absence of monitoring data to be discussed later in this appeal makes it impossible for the Forest Service to back up its claim of beneficial benefits to wildlife, particularly management indicator species for which a portion of the project area is supposed to be managed to benefit. In criteria set forth above that determine significance, projects that may be beneficial on balance, still may require an EIS. Furthermore, the absence of monitoring data is a violation of NFMA, thus triggering the tenth criteria spelled out under 40 CFR 1508.27(b) that deals with violations of federal law that would occur if the action were carried out. The action is also highly controversial due to the economic impacts of this type of project (not adequately analyzed within the EA) and the presence of an inventoried roadless area. The FONSI is thus legally indefensible.
The cumulative effects analysis provided within the EA is severely deficient. The first issue addressed within the EA's cumulative effects analysis deals with adjacent private lands. The cumulative effects analysis for this issue deals solely with the impacts of the proposed project on these adjacent lands, and does not address the impacts of recent logging activity on these private lands to the adjacent national forest resources.
With regards to TES species, the cumulative effects analysis is silent on the impact that logging within adjacent private lands and other surrounding portions of the national forest has had, or may have had on these species. The EA reaches the conclusion that "Many of the activities in the area have been occurring over the past 80 years and therefore any sensitive species which occur in the area would be accustomed to these types of disturbances."40 No scientific evidence or monitoring data is provided to support the idea that wildlife become "accustomed" to logging or other activities over time.
Cumulative impacts to MIS are not discussed, in spite of the fact a significant portion of the project area is supposed to be managed for their benefit under the Fishlake National Forest Plan. "Approximately 35% of the treatment area is within Management Area 4B." The EA states that in Management Area 4B "Management emphasis is on the habitat needs of one or more management indicator species. The goal is to optimize habitat capability, and thus numbers of species. Investments in other compatible resource uses may occur but will be secondary to habitat requirements. Where conflicts occur, wildlife is favored."41
Given this requirement under the Fishlake National Forest LRMP, the Fishlake National Forest must provide evidence through its cumulative effects analysis that no negative effects will occur to MIS within the project area, or outside of the project area as a result of activities taking place within it. Deer and Elk are mentioned within the EA, but the cumulative effects of logging throughout the area and over the past 80 years to these species are not discussed. The EA states that a spring and accompanying riparian area is located just to the west of the southern most cutting unit.42 Nowhere does the EA discuss the cumulative impacts to the riparian guild listed within the the Forest Plan as an MIS.
The TES portion of the cumulative effects analysis does not mention the impacts of grazing, recreation, fire suppression or other past, present or reasonably foreseeable actions on these species. Grazing, recreation, and road and trail use are mentioned at the end of the Watershed Values section and within the description of the General Environment, but the "proposed activities should not contribute to the impacts that these activities are having on the Project Area watersheds."43 The EA states that no watershed problems were documented within the project area within a Watershed Report that was recently prepared by the Forest Hydrologist, but the EA provides no evidence that would support the claim that this project, when combined with other past projects, grazing, and recreation would have absolutely no cumulative effects on watersheds.
The project lies largely within the Niotche Creek Cattle Allotment. According to a recent EA prepared by the Fishlake National Forest in an effort to renew grazing within the Niotche Creek Allotment and other allotments on the forest, the Fishlake National Forest states that riparian areas within the Niotche Creek Allotment are "functioning at risk."44 This makes the cumulative effects of other activities pertinent when combined with this project, especially in light of the fact that the riparian guild is supposed to be used as an indicator for the overall ecological condition of the forest.
There is absolutely no data provided within the EA regarding the cumulative effects of the project when combined with other activities on soils within the project area. The public is told that "Additional soils information can be found in the soils report located in the project file." Does the soils report deal with site-specific issues relevant to the project area or is it a general description of soil conditions across the forest? We suspect the latter making it an ineffective tool for evaluating cumulative impacts to the area in question. What soils information that is provided is within the General Environment section, and not contained within a separate cumulative effects analysis.
The USDA Inspector General's Office reports that the Forest Service generally is doing a poor job conducting adequate cumulative effects analyses. "Cumulative effects analyses for 10 of 12 environmental assessments reviewed were either incomplete or not permformed." The report continues "Without these cumulative effects analyses, Forest Service cannot support its conclusion that the cumulative impact of its actions (e.g. timber sales) will not have a significant impact on environmental resources in the project area."45
Among the failures documented by the Inspector General's Office were failures to "include analyses of Forest Service's and private land owners' past, present, and near future actions within or adjoining the applicable project area." In addition, some Ranger Districts included an analysis that "addressed soil and water, but did not address wildlife and fisheries habitat, visual quality or heritage resource sites."46 These failures are remarkably similar to the ones we are seeing within the Seven Mile Project EA.
The failure of the Fishlake National Forest to provide any detailed cumulative affects analysis for MIS species under its jurisdiction combined with the failure to address other past, present and reasonably foreseeable actions (i.e. grazing and recreation) is a serious violation of NEPA. This violation is compounded by the lack of monitoring documented later within this appeal.
As will be amply demonstrated by the Appellants in the arguments regarding NFMA violations, the Fishlake National Forest has failed to monitor MIS or TES species, develop population trend data, or otherwise gather necessary information needed to insure wildlife populations remain viable and diversity is protected. The EA repeatedly states that the proposed project is good for wildlife, but provides absolutely no data that backs up the Fishlake National Forest's claim. Nowhere does the EA discuss current scientific literature supporting the claim that MIS and TES species will either not be adversely impacted or that their status will improve. The public is apparently expected to take this claim on faith.
The only documentation provided within the BE for this project that demonstrates the Fishlake National Forest made some effort to evaluate the condition of sensitive species that actually or may occur within the project area is a reference to a search of a Nature Conservancy Database for TEPS species. The BE states "The search showed that none of these species occurs in the proposed sale area."49 This contradicts the claim within the EA that "Sensitive species including; the Spotted bat, Western big-eared bat, Flammulated owl, Three-toed woodpecker and Northern goshawk may occur in this area." The EA then proceeds to state that suitable habitat for all these species exists within the area.50
This begs the question, is the Nature Conservancy Database wrong or is the Fishlake National Forest wrong to claim suitable habitat exists and sensitive species "may" exist in the area? It is obvious that no one has actually taken the time to visit the area to determine the presence of these species. It is equally obvious that the claim this project is intended to benefit MIS and TES species is dubious given the lack of attention to these species' current status and well being.
The claim that this project is intended to "improve wildlife habitat and increase diversity" is further brought into question by the statement within the list of mitigation measures that "monitoring" for TES species "will occur" only "during harvest operations" and "three to five years following treatment."51 Why is the Fishlake National Forest not requiring monitoring during project planning and layout to determine what wildlife resources exist in the area? The mitigation measures are silent on what the Forest Service will do should TES species be found during project implementation. Will logging be halted either temporarily or permanently to avoid jeopardizing the viability of the species found?
The lack of monitoring and scientific data to support the claim that this type of project benefits, together with the inadequacy of the mitigation measures make it impossible to test the claim that this project will benefit wildlife. The absence of baseline data regarding what MIS and TES species exist in the area prior to logging will also make it impossible to determine if, in fact, the project achieved the goal of improving habitat. The failure to demonstrate that the purpose and need will be met, or prove it was met after implementation, is a flagrant violation of NEPA.
This apparent ignorance of the definitions spelled out within the Forest Plan and willful disregard for the guidelines currently being used for inventory revalidation purposes is a clear violation of NFMA.53 The public must have confidence that the agency will at least consistently follow its own definitions and procedures, and it is clear that the Fishlake National Forest has done neither in this case.
As discussed above, more than a third of the project area is within Management Area 4B. According to the Fishlake National Forest Plan there are numerous management requirements within the 4B Management Area that received little to no discussion within the EA. To maintain visual quality the Fishlake National Forest will "Design and implement management activities to blend with the natural landscape."54 Nowhere within the list of mitigation measures is there any discussion of what the Fishlake National Forest will do to maintain visual quality to "blend with the natural landscape."
With regards to wildlife, within management area 4B the Fishlake National Forest will "Maintain at least 80% of the habitat requirements for " management indicator species. In the case of species that are "commonly hunted, fished, or trapped [Fishlake National Forest] will follow species priorities established by UDWR." These priorities are not discussed anywhere within the EA. For commonly hunted, fished and trapped species the Fishlake National Forest will "maintain at least 90 percent of the habitat needed to support population goals for each species."55 The lack of discussion on this point, and regarding MIS in general, when combined with the lack of monitoring discussed later in this appeal, makes compliance with this provision of the Forest Plan impossible to determine, let alone plan for.
The Forest Plan goes on to state that where deer and elk are present "maintain, along 75 percent of all arterial and collector road edges, cover that hides 90 percent of an adult standing deer or elk from human view at a distance of 200 feet from the road."56 We are told in the EA that deer and elk will benefit from the proposed action, so presumably they are present. Hiding cover receives no attention, however, so we can't be sure this requirement will be complied with either. Again, mitigation measures are silent on this point.
Finally, the Forest Plan also directs the Fishlake National Forest to "Manage road use to provide for habitat needs of management indicator species, including road closures and area closures, and to maintain habitat effectiveness."57 The EA states that a half mile of temporary road may be constructed, but no discussion occurs within the EA regarding the impacts roads within the area, existing or proposed, would have on MIS habitat requirements.
While the EA states that the project is good for MIS wildlife, it provides no detailed cumulative effects analysis, other scientific evidence, or monitoring to support the claim. Mitigation measures listed do not mention the above requirements for Management Area 4B and provide no assurance that those requirements will be met. The Fishlake National Forest has failed to demonstrate in any meaningful way how it will comply with its Forest Plan within this area, not to mention how exactly MIS will benefit from the project.
The Fishlake National Forest's LRMP mandates that management indicator species (MIS) be monitored periodically. In the case of the Bonneville cutthroat trout the Fishlake National Forest is supposed to monitor at least one stream per year. 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
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. A review of TES plant monitoring data reveals that of the 17 plants that have been monitored only six have received any monitoring in the last five years. The threatened winkler cactus monitoring data amounted to only unconfirmed sightings and the threatened last chance townsendia monitoring data dated back to the mid 1980s. The endangered San Rafael cactus was last monitored in 1998 with no previous monitoring on record. Remember that the Forest Plan for the Fishlake National Forest requires that threatened and endangered plants be monitored on an annual basis.
For fish there is not only a paucity of data, but no monitoring data at all. There are 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. Monitoring for the sensitive spotted frog, a species currently being considered for listing under the ESA, amounts to the same type of two page description that the two native cutthroat trout species receive. Again, the Forest Plan requires that at least one stream per year be monitored for Bonneville cutthroat trout, but there is no evidence that the Fishlake has actively monitored a single stream for either Bonneville or Colorado cutthroat trout during the entire life of its Forest Plan.
No data regarding the peregrine falcon , until recently a threatened species, has been received by the UEC. In addition, no monitoring was provided regarding 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. No annual, five year, or 10 year monitoring reports have been generated by the Fishlake National Forest.
Among other MIS listed within the Fishlake National Forest Plan are the riparian dependent guild and sage nesters.61 In response to its FOIA requesting MIS monitoring data 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.62
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 EA claims "Proposed treatments are designed to be beneficial to the habitat needs of management indicator species, such as deer, elk, goshawk and cavity nesting birds" and that "The primary reasons of the treatment are to maintain and improve wildlife habitat"63
the absence of monitoring data will make any determination of success in reaching these objectives impossible.
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 management decisions without such data, and can only guess at the impacts of proposed 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 Seven Mile Project.
The records provided to the UEC by the Fishlake National Forest speak for themselves. Nowhere within the documents received by the UEC was there a single population trend analysis or monitoring report. The required monitoring has not taken place and the law has been ignored for the entire life of the existing Forest Plan. The Regional Office must intervene and require the Fishlake National Forest to begin collecting required data and determining the status of the species under its jurisdiction before proceeding with the Seven Mile Project or any other planned project.
This failure makes it impossible to have any faith in the BE/BA completed to determine possible impacts to threatened, endangered, and sensitive species. As stated within the arguments regarding NEPA violations, the Fishlake National Forest relied on a Nature Conservancy database to determine the presence of TEPS species within the project area. None were found during that search. The EA does state that at least the potential exists for some sensitive species to occur, however. In addition, in a letter contained within the BA received by the Forest Service from James G. Guymon, Regional Supervisor for the Utah Division of Wildlife Resources, a list of possible species that rely on the area is provided leading us to the conclusion that it is at least possible, if not probable, that the Nature Conservancy database relied on is inaccurate.
Between the BE and BA there is only one citation regarding monitoring in the references. That reference is to the Northern three-toed woodpecker inventory protocal, and not to actual monitoring data. According to the Forest Service Manual the objectives of a BE are to "1. 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; 2. 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; 3. To provide a process and standard by which to ensure that threatened, proposed, and sensitive species receive full consideration in the decision making process."64 The Appellants would be curious to learn how looking up TEPS species on a data base that claims no TEPS species exist in the area without actually going into the field or documenting the conclusion through existing scientific and current inventory data contributes to "full consideration in the decision making process." We also question the "process and standard" being applied by the Fishlake National Forest that causes the Fishlake National Forest to report "suitable habitat" exists for a variety of sensitive species within the EA, then turn around and rely heavily on a Nature Conservancy database that claims the opposite is true in reaching a determination of no adverse effect. What is especially troubling, not to mention illegal, is the absence of any references to site specific data within either the BE or BA.
In its defense of significant lapses in monitoring both MIS and TEPS species in the case of Sierra Club v. Martin the Forest Service apparently attempted to argue that it essentially did not need to monitor TEPS species. Instead it could rely on MIS monitoring to determine the overall condition of habitat, and by association somehow divine the condition of TEPS species. The judge disagreed. "Defendants respond that these requirements of monitoring population trends are limited to MIS species. While the requirements of monitoring population trends is limited to Management Indicator Species by 36 C.F.R. § 219.19(a)(6), the requirements of 36 C.F.R. § 219.12 requiring 'current inventory data' and 36 C.F.R § 219.26 requiring 'quantitative data' have no such limitation."65
In January of 1999 the USDA Office of the Inspector General determined that the lack of monitoring and a lack of adequate administrative control over environmental documents brought environmental analyses into serious question. "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. 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 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.
The Biological Evaluation prepared for the Seven Mile Project does not provide any monitoring data to support its claims that there will be "no direct adverse effect" for any of the sensitive species that are likely to occur or may occur within the area. Among the mitigation measures "recommended" for the area is the suggestion that the Fishlake National Forest "Monitor this area for sensitive species during the spring, summer and fall and record information regarding location, habitat use, behavior, reproduction, and dates of occupancy."68 This BE was prepared more than three years ago, and no monitoring appears to have occurred since. The EA does state that "Monitoring for TES species will occur," but it will occur during and after project implementation, too late to determine what species are present in the area and what the impacts will be.69
In the Inspector General's Report the authors found that in at least one Ranger District examined, the Biological Evaluation stated "Physical destruction or habitat alteration will be avoided by conducting a site specific survey of suitable habitat areas during the project layout phases for each planned activity and dropping occupied sites from the project." The report continued, "None of these surveys had been performed at the time of our review."70
Given the paucity of monitoring data, it does not appear that TES or MIS monitoring has occurred on the Fishlake National Forest during past projects, leading to serious doubt about the willingness or ability of the forest to conduct monitoring on this project. In addition, the monitoring provided for under the mitigation measures will only take place "following treatment and during harvest operations", not during project layout as in the case described above. Any species or impacts that are discovered may be found too late to do any good.
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, animals, soil, water, air, and other environmental factors within such ecosystems."72
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. It should be obvious that an understanding of diversity cannot be gleaned from a database created by someone else, or from documents that provide a general description of the conditions across a massive landscape. When it comes to wildlife, the references in the back of the EA only mention the BE and BA. As discussed earlier, the references in those documents do not cite a single inventory or population trend study done by the Fishlake National Forest or anyone else. More research appears to have been done on the spruce beetle than most of the plants and animals that live within the project area combined. Spruce beetles and tree stumps do not make for a diverse forest. NFMA and the American people demand more.
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."74
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 none at all. Impacts to soil resources will not be extensive, but we don't know why. The project is good for MIS, but we are given no data to support the claim. Indeed, MIS are ignored throughout the cumulative effects analysis. There can be no explanation without data, and there can be no data without some fieldwork on the part of the Fishlake National Forest. It appears that this work has either not been done or lost. Even where monitoring data is approaching ten or more years in age, the data is not used to explain the conclusion that there will be no adverse impacts to TES species or management indicator species.
The agency also acted arbitrarily and capriciously when it chose to disregard impacts such as grazing, recreation and logging on adjacent private lands when reaching its conclusion that everything would turn out for the better when it came to MIS and TES species. In spite of the fact that the law clearly demands a careful review of all past, present, and reasonably foreseeable actions, the impacts of these activities were dismissed as being minimal and thus requiring no further discussion. Again, no evidence was provided to support the claim.
The agency was especially arbitrary and capricious in its handling of the roadless question. Its explanation, provided in its response to comments, definitely rises to the level of implausible in the extreme. It uses as a boundary road a road that shows no evidence of construction or maintenance, has obviously been closed for years if not decades (see photo of road with grass growing as thick on the road as in the surrounding field, Appendix A), and defines the road as a level 2 road when its own Forest Plan defines a level two road as being open. The EA and roadless area validation both state the road is closed. The Appellants believe they have demonstrated beyond any doubt that the Fishlake National Forest has violated the APA.
Request for Relief Due to the failure to adequately monitor the MIS and TES species resources within its jurisdiction, the Fishlake National Forest cannot proceed with the planned Seven Mile Salvage Timber Sale. Due to the absence of adequate monitoring and scientific data we also ask that all other timber sales or proposals that are currently under consideration be placed on hold. The Fishlake National Forest has failed to demonstrate either the ability or the will to adequately monitor the resources on the forest. Without adequate, up to date monitoring, no project proposed on the Fishlake National Forest can be within the law.
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 develop 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 younger than five years old for most TES plants, and the absence of any monitoring data for such species as 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
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
By ___________________________________
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 Decision Notice for the Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale on the Fishlake National Forest signed by Richfied District Ranger Jeanne M. Higgins on September 26, 2000 and published in the Richfied Reaper on November 1, 2000.
The Seven Mile Spruce Beetle Infestation Project, Seven Mile Salvage Timber Sale (hereafter referred to as the Seven Mile Project) occurs at between 10,100 and 10,500 feet in elevation.1 According to the EA prepared for the project "The average age of the stand is approximately 200 year old with an average diameter in the 16-20 inch range."2 The Seven Mile Project is intended to prevent the increase of spruce beetles within the stands that would be logged. The project was originally categorically excluded. An EA was prepared in response to the Heartwood decision that found the Forest Service was abusing its discretion through excessive use of categorical exclusions with regards to timber sales.
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), and the Administrative Procedures Act (APA).
The Fishlake National Forest considered only two alternatives with regards to the Seven Mile Project, the No Action Alternative (Alternative A) and the Proposed Action (Alternative B). A prescribed fire alternative and other non-commercial alternatives were considered by the ID team but they were "eliminated from further consideration since" they were "not an economical viable."8 The EA claims that these alternatives also fail to meet the Purpose and Need of the project.9
NEPA requires any federal agency preparing an EA or EIS to consider each comment it receives and respond to issues raised by the public. Among the possible responses to public concerns expressed through the commenting process are "Supplement, improve, or modify its analyses" or "Make factual corrections."13
Among the factors that must be considered when determining whether or not an action is "significant" enough to trigger the need for an EIS are: "(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial."; "(4) The degree to which the effect on the quality of the human environment are likely to be highly controversial"; "(5) The degree to which the possible effects on the human environments are highly uncertain or involve unique or unknown risks"; "(7) Whether the action is related to other actions with individually insignificant actions but cumulatively significant impacts"; and (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment."37
"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."39
NEPA requires the inclusion of a statement describing "the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action."47 The EA states that one of the two purposes and needs for this project is to "Manage the wildlife habitat of the area to maintain or improve wildlife habitat and to increase diversity."48 This appears to be in response to the management prescriptions set forth in the Forest Plan for management areas 4A and 4B.
As stated above, the Fishlake National Forest's Land and Resource Management Plan defines a Level 2 Road as a "Road open for limited passage of traffic but not normally suitable for passenger cars."52 The revalidation of the UM-Mt. Terrill Roadless Area boundaries provided by the Fishlake National Forest to the UEC states that Forest Road #1240 is a boundary road and "is a level two road that is 2.9 miles long." The map provided by the Fishlake National Forest clearly shows that the road is closed and our photographs clearly show the road is neither passable, nor constructed and maintained.
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 Also, "population trends of the management indicator species will be monitored and relationships to habitat changes determined."59
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 quantitative data making possible the evaluation of diversity in terms of its prior and present condition."71
The APA requires all agency actions to conform with general standards of regularity and rationality. The courts will overturn agency decisions that are "arbitrary, capricious, or an abuse of discretion."73
Due to the violations of federal law and regulations cited above, the Appellants request a full remand of the Seven Mile Project EA, Decision Notice and accompanying FONSI signed by Richfield District Ranger Jeanne Higgins on September 26, 2000.
Paul Brouha, Associate Chief, Forest Service
George Frampton, CEQ
Dinah Bear, CEQ
