Trout Slope Appeal     

October 13, 2000

Introduction
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 Trout Slope East Timber Project on the Ashley National Forest signed by Forest Supervisor Bert Kulesza on August 22, 2000.

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 Ashley National Forest. UEC, FCC and NFPA members, staff, and board members participate in a wide range of recreational activities on the Ashley National Forest, including the area in and surrounding the Trout Slope East project. In addition, the UEC has paid individuals to visit the Ashley in an effort to determine the roadless areas that still remain intact on the Ashley National Forest. This survey will be completed during the fall of 2000. The UEC is also a member of NFPA

The UEC represents more than 160 members, 9 organizations, and 18 businesses. The organizations that are currently a member of the UEC represent more than 30,000 additional individuals, many of whom have visited the Ashley National Forest and have a direct interest in its management. The FCC has members throughout the United States many of whom have visited the Ashley National Forest and also have an interest in its management. The NFPA is a national coalition of organizations working to preserve our national forest resources. Many of the members of the organizations that belong to NFPA have also visited the Ashley National Forest and have an interest in its management. The UEC is a member of NFPA.

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 Ashley National Forest, including the Trout Slope East Timber 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 Ashley 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 Trout Slope East Timber 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 Trout Slope East Timber Project. In addition, the Appellants have commented and participated in numerous meetings and discussions with the Ashley 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 this summer's roadless area survey being conducted by the UEC on the Ashley 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 Ashley 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 Ashley National Forest violated the National Forest Management Act (NFMA), the Endangered Species Act (ESA), 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 Trout Slope East Timber Project Record of Decision and accompanying EIS signed by Forest Supervisor Burt Kulesza on August 22, 2000.

Statement of Facts
The Trout Slope East Timber Project will involve the logging of approximately 1200 acres of lodgepole pine stands resulting in the removal of approximately 9 MMBF worth of dead trees from the Ashley National Forest. According to the Record of Decision signed by Forest Supervisor Bert Kulesza no new roads will be constructed and "existing open system roads will be used and maintained during logging activity." Nine miles of existing non-system roads currently closed to the public will also be used to access timber.

According to the EIS prepared for the Trout Slope East Timber Project "an average of 49% of the mature lodgepole pine in sampled stands in the project area" was killed by a pine beetle epidemic in the 1980s. This has provided the opportunity for the Forest Service to develop this project, which was developed with the primary purpose of supplying timber to the logging industry.

The Project Area includes four subwatersheds; the Oaks Park subwatershed, East Park subwatershed, Eagle Creek subwatershed, and Spring Creek subwatershed. The vast majority of activity would involve the first two subwatersheds listed above. The West Fork drainage basin, a part of the East Park subwatershed, will see no logging activity resulting from the Trout Slope East Timber Project as a result of possible impacts to soils and water quality.

The Project Area is within the historic range of the threatened Canada lynx and other rare species such as wolverine and pine marten. In addition, the area is home to the mountain lion, black bear, deer, elk, three-toed woodpecker, northern goshawk and numerous other native wildlife. The Project Area is also home to the Colorado River cutthroat trout, which has been petitioned for listing under the Endangered Species Act (ESA) and is also a Forest Service Sensitive Species.

Roughly 68% of the Project Area (12,750 acres) was documented as roadless during the 1983 roadless area survey. Since that time the area has become roaded in order to facilitate logging throughout the 1980s. In preparation for the Ashley National Forest Plan revision process the Forest Service re-inventoried the area in 1999 and determined the area to no longer be roadless.

Arguments
The ensuing arguments will demonstrate that the Ashley National Forest has violated numerous federal land management statutes including the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Endangered Species Act (ESA), the Multiple Use and Sustained Yield Act (MUSYA), and the Administrative Procedures Act (APA).

1. The Ashley National Forest fails to meet the mandate of the National Environmental Policy Act.

   1. The Ashley National Forest fails to provide a reasonable range of alternatives:
      

      With the exception of the No Action Alternative all of the alternatives considered by the Ashley National Forest involve logging. In its comments on the Draft EIS submitted to the Ashley National Forest on August 30 of 1999 the UEC specifically requested that a "prescribed/natural fire alternative" be considered. We made this request in the context of what we felt was a lack of a reasonable range of alternatives.

      NEPA refers to alternatives as "the heart of the environmental impact statement." Furthermore, NEPA regulations as interpreted by the CEQ state that an environmental impact statement must "rigorously explore and objectively evaluate all reasonable alternatives." The Forest Service Handbook is equally clear on the need for a reasonable range of alternatives. It states that the purpose and intent of alternatives are to "ensure that the range of alternatives does not foreclose prematurely any option that might protect, restore, and enhance the environment."

      In its explanation of why prescribed or natural fire was not considered in detail the Ashley National Forest states "Current fire management policy requires an appropriate management response (including suppression) on all wildfires, however, the current forest plan does not allow for landscape scale wildfires. The controlled application of prescribed fire for fuel reduction (or patch size manipulation) under present conditions would require extensive and costly mechanical pre-treatment. The use of fire would also not permit utilization and recovery of economic value of the wood product, a primary objective of this proposal."

      The Forest Service Handbook quoted above states that no option can prematurely be foreclosed "that might protect, restore, and enhance the environment." It does not provide exceptions for those options the national forest deems to be expensive, nor does it state options that preclude the "utilization and recovery of economic value", even if good for the forest, should not receive detailed consideration. As we will show later in these arguments, both of the action alternatives considered lose money and thus can be considered "costly" from the point of view of the taxpayer. Therefore cost cannot be used as an excuse not to consider prescribed fire.

      The EIS states that "The project area has experienced a low annual fire occurrence over the past several decades. This is primarily due to low fuel loads, high elevation, and the wetting rains which accompany afternoon thunderstorms that frequent the area during the summer months." The EIS goes on to state that the area is best classified currently as a Fuel Model 8 and states "Fuel Model 8 is characterized by slow burning ground fires with low flame lengths, although the fire may encounter an occasional 'jackpot' or heavy fuel concentration that can flare up. Only under severe weather conditions involving high temperatures, low humidity, and (or) high winds do the fuels pose a fire hazard."

      Given the above description of the current fuel loads within the Project Area, it is not at all clear why "extensive and costly mechanical treatment" would be necessary prior to conducting a prescribed burn. It appears that a prescribed fire ignited under the right weather conditions could easily be managed. However, as the Record of Decision makes clear, forest health was never a consideration when deciding what alternatives to consider. "It is, as many would point out, a proposal to salvage long-standing dead trees to recover their remaining economic value."

      It is clear that prescribed fire is an option worthy of consideration. The Ashley National Forest gives no indication it considered the positive environmental consequences of fire within this particular forest ecosystem. It is equally clear that the Ashley National Forest was interested solely in considering alternatives that would result in a commercial timber sale. This failure to consider a reasonable range of alternatives is a clear violation of NEPA.

   2. The Ashley National Forest failed to adequately address the economic and social impacts of the decision as required by NEPA, NFMA and MUYSA.
      The Forest Service Manual lists several laws that require the Forest Service to conduct both economic and social analyses when considering significant actions. Among the laws cited within the Forest Service Manual are: the National Environmental Policy Act (NEPA), the Multiple Use and Sustained Yield Act of 1960 (MUYSA), and the National Forest Management Act of 1976 (NFMA).

      NEPA requires the consideration of the economic impacts of a proposed action be considered within an EIS. "All agencies of the Federal Government shall-(B)identify and develop methods and procedures, in consultation with the Council of Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations." NEPA also requires the disclosure of "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." The Forest Service Manual states the NEPA requirements for an economic and social analysis very clearly. "This act requires identification and analysis of economic and social impacts of proposed agency actions."

      According to the EIS for the Trout Slope East Timber Project "The economic and socio-economic analysis focuses on employment and income linked to timber management activities analyzed in the project area." The EIS continues "This analysis does not include an economic efficiency analysis of benefits or costs on non-market values such as those relating to wildlife habitat, hazard fuel reduction or visual opportunities. Those difficult-to-quantify values are described in the Affected Environment; the effects to them are documented in the section on Environmental Consequences."

      While the impacts to the scenic values and wildlife habitat are addressed in portions of the EIS, the EIS is silent on the economic implications of these potential impacts. As stated above, NEPA mandates that "presently unquantified environmental amenities" and "any irreversible and irretrievable commitments of resources" be disclosed within the EIS. This includes "economic and technical considerations." We do not consider wildlife habitat or visual opportunities "non-market values." There is an irretrievable commitment of resources associated with the loss of wildlife viewing opportunities, hunting and fishing opportunities, and other recreational opportunities on the Ashley National Forest that received no consideration within the EIS.

      According to the Forest Service's own figures recreational activity generated $6.8 billion in economic benefits to the nation in 1993. This is expected to roughly double within the next 50 years. Furthermore, the Forest Service estimates that by this year the recreation associated with our national forest lands, including hunting and fishing, would be contributing 31.4 times more income within the nation's economy, and 38.1 times more jobs than logging on national forests. Given these figures, it is difficult to understand how the Ashley National Forest could refer to wildlife habitat and visual opportunities as "non-market values" when according to the Forest Service's own documents these values contribute more to the economy than logging.

      This failure also amounts to a violation of MUYSA. The Forest Service Manual interprets the mandate of MUYSA as follows: "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." Given the amount of benefits derived from maintaining wildlife habitat and recreational opportunities on our national forests, it is inconceivable to us how the Forest Service can argue the economic analysis provided within the Trout Slope East Timber Project EIS considers the "greatest good over time."

      The EIS also failed to disclose all of the costs associated with this timber project. In the charts found on page 69 of the EIS and the Economic Analysis found in Appendix A of the EIS the Ashley National Forest indicates that the Trout Slope East Timber Project, under both action alternatives, will generate more revenues than it would costs. However, nowhere within the EIS is any mention made of the required 25% payment to counties.

      Based on the revenues projected for Alternative 3 local counties would receive approximately$348,750. When this figure is added to the costs associated with this alternative it would lose $121,000. In the case of Alternative 4, the selected alternative, payments to local counties would amount to $198,000 and it would lose $108,910. The public is not informed of these costs, and is led to believe that both action alternatives will generate a profit. This is clearly not the case.

      The UEC raised economic concerns regarding the Trout Slope East Timber Project throughout its comments on this project. On the final page of comments submitted by the UEC on August 30, 1999 we close our comments by stating "We are not convinced that the project will turn a profit as stated in the economic analysis, and believe the long term environmental consequences of the proposed action hold numerous costs to both the taxpayer and the environment." Furthermore, in her comments to the Ashley National Forest dated August 30, 1999, Denise Boggs, UEC's Executive Director, made the following request: "The economic analysis in the FEIS should clearly demonstrate all costs associated with road building and without for comparative purposes." The Ashley has failed to meet this request and has violated NEPA by failing to disclose to the public the true irretrievable commitment of resources associated with this project.

      Finally, because the Trout Slope East Timber Project clearly does not generate a profit under any of the action alternatives considered, in spite of claims to the contrary within the EIS, the Ashley National Forest is violating the law as interpreted by the courts. The courts have ruled that in a Forest Plan, the range of alternatives considered "must include an alternative which contemplates timber harvesting at a profitable level even if that level requires reducing current timber production levels." While the Trout Slope East Timber Project is not a Forest Plan, it is safe to assume that the courts obviously intend for profitable timber sale alternatives to be considered. We would argue that no sale could be both large enough to generate a profit and in compliance with the Forest Plan because the area is already exceeding or fast approaching its allowable estimated clearcut area in every drainage within the project area. Given the inability to offer an alternative that would generate a profit and be in compliance with the Forest Plan, the Ashley National Forest has failed to comply with the law on several fronts. First, it failed to provide a reasonable range of alternatives by failing to provide a profitable alternative; second, it failed to provide an accurate economic analysis by telling the public it had produced two profitable action alternatives; and third, it failed to meet the mandate of NEPA and NFMA by producing a proposal solely for timber interests that could not possibly comply simultaneously with both its Forest Plan and the courts interpretation of NEPA.

   3. The Ashley National Forest violates the intent of NEPA:
      In its Declaration of Purpose for the National Environmental Policy Act Congress was very clear on its intent in passing NEPA. "To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." NEPA goes on to recognize "the critical importance of restoring and maintaining environmental quality" and goes on to state that "In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may-(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment that supports diversity and variety of individual choice."

      The Project Area for the Trout Slope East Timber Project is, according to the EIS, in very poor condition. Much of the native wildlife that historically inhabited the area is either gone or fast disappearing. The Forest Service has failed the mandate of NEPA in the past by clearcutting much of the project area and further fragmenting existing habitat through the construction of roads. Living in "harmony" with the environment and promoting "efforts which will prevent or eliminate damage to the environment and biosphere" have clearly not been a priority in the past. Based on the Record of Decision for this project we can safely say they are not a priority in the present either.

      Forest Supervisor Bert Kulesza stated in the Record of Decision "I do not want to package this project as something it is not. This Decision is not being promoted as an effort to achieve pure 'ecosystem management.' It has also never been suggested that salvaging dead trees in the area would substantially reduce fuel loads, promote forest health, or make some meaningful difference in the area's resistance to insects or disease. It is, as many would point out, a proposal to salvage long-standing dead trees to recover their remaining economic value." In other words, the Forest Service is going into a heavily logged area where many native species have disappeared or are in the process of disappearing purely for economic reasons. Where in NEPA, MUSYA or NFMA is the Forest Service mandated to pursue logging for purely economic reasons, or even requested to do so?

      According to the Trout Slope East Timber Project EIS "Much of the remaining forest occurs in small patches, which have reduced value for forest wildlife because of pervasive edge effects, low population carrying capacity per patch and susceptibility to catastrophic disturbance and extinction (Franklin and Forman 1987, Wilcove 1987)." The EIS concludes that pine marten once inhabited the area, but are likely gone now, that boreal owl may still be present within the area, that northern goshawk still nest within the area, that wolverine historically lived within the area and that unconfirmed sightings still occur from time to time, and that Canada lynx were "likely" in the project area historically.

      Furthermore, the EIS states "The Trout Slope East project area is dominated by lodgepole pine and mixed lodgepole/Engelmann spruce/subalpine fir stands. Due to the high percentage of beetle-killed trees in the project area, most stands with a mature tree component also have large amounts of coarse woody debris and a dense understory of young trees. Such stands fit the definition of 'gap phase forests'., and therefore provide both foraging and denning habitat for lynx." The EIS goes on to conclude "Although the project area includes many of the structural and compositional elements needed for lynx habitat, the quality of that habitat is somewhat compromised by high levels of human activity, the presence of competing predators such as cougars and coyotes, and extensive habitat fragmentation due to recent clearcutting."

      The Record of Decision cites a paradigm described by Yaffee in a 1999 paper. The ROD states "The paradigm and context of this decision most closely resembles that of 'environmentally sensitive multiple use'." The Record of Decision then quotes Yaffee's definition of 'environmentally sensitive multiple use'. "Environmentally sensitive multiple-use management aims at satisfying a diverse set of human needs and values, but it is acknowledged that this can only be achieved over the long term by being more sensitive to the limits of ecological systems." It is important to note that Yaffee refers to a "diverse set of human needs." It is not clear how Yaffee can be used to justify this project when the only "human needs" considered are those needs associated with the timber industry. The needs of other human groups that utilize the forest for a variety of purposes do not receive attention in spite of the substantial contribution other human activities make to the economy.

      The above quote by Yaffee also makes reference to the need to be "more sensitive to the limits of ecological systems." Given the descriptions of the Trout Slope East Project Area environment cited above, it is hard to see how a project where the primary focus is the economic value of the timber meets this requirement. It is interesting to note that when the decision was made to complete an EIS for this project, the scoping letter did not state, as Supervisor Kulesza implies, that from the beginning this project's primary objective was to retrieve the economic values of the dead trees within the Project Area. "The objectives of this project are to improve ecosystem function by improving forest structure and pattern characteristics. Treatments are proposed that will recover wood products, reduce fuel loads, salvage the dead component to prevent a likely future forest condition of blown down and jackstrawed timber, improve long term scenic quality along primary access routes and at popular recreation sites while protecting the integrity of the productive land base." While the recovery of wood products is certainly listed as a result, it is not mentioned as an objective. The goal, as stated above, is to "improve ecosystem function." What has changed to make economics the primary focus of this project?

      This project alters the existing conditions on the ground even more drastically than what currently exists. While clearcutting has been dropped from the selected alternative, it does absolutely nothing to improve forest health according to the Record of Decision. Within a complex forest ecosystem such as this, no management action can be viewed as neutral in its effects, especially when past impacts have had such a dramatic impact on wildlife and forest conditions within the area. Given NEPA's mandate to "promote efforts which will prevent or eliminate damage to the environment" it is impossible to reconcile this project with NEPA if the primary intent is to recover the economic value of the dead trees and not create a condition more compatible with the continued existence of rare and/or vanishing native wildlife. Given the fragile nature of conditions on the ground, deference should be given to native wildlife and not the supposed economic advantages of selling publicly owned timber at a loss.

   4. The Ashley National Forest failed to prepare an adequate Cumulative Effects Analysis:
      Among the many concerns raised by the UEC in earlier comments regarding this project was "the role clearcutting and road construction can play in increasing, not decreasing, the risk of wildfires." While clearcutting has been eliminated under the decision, it is a past activity worthy of analysis according to NEPA.

      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 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." The past practice of clearcutting, and the likely continuation of this practice into the future, makes the impact on fire risk of these activities an issue, especially when combined with the Trout Slope East Timber Project.

      In our comments on the DEIS the UEC cited a Forest Service document that demonstrates the risk of fire associated with logging and the associated road construction. "Logging and logging roads open the forest canopy and increase the temperature of the air, the ground and the forest fuels, which accelerate the rate of burning of surface fires. Logging and logging roads open the forest canopy and lower humidity of forest fuels, which increases the flammability of forest fuels and critically influences the behavior of wildland fires. Logging and logging roads open the forest canopy and may cause rapid and intense fire spread."

      In its response to these concerns the Ashley National Forest dismisses them stating "Openings created by clearcuts and roads may have accelerated the windthrow, but the dead trees would have fallen due to natural events regardless of these activities. Past management practices aside, and from a fire/fuels perspective, the question is how to manage current and projected fuel loads in order to mitigate the potential fire hazard." Not mentioned in response to this concern, however, is the potential for future actions that would further open up stands, thus exacerbating the risk of forest fires. "Salvage would also reduce the build up of large fuels and facilitate options for future management including timber stand improvement of the residual overstory and thinning of the understory."

      Government research on the impacts of this type of management when it comes to increased fire risk demonstrates that the type of activities the Ashley National Forest seems likely to pursue in the future increase the fire risk.

      ".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 trees 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 an 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)."

      While the General Technical Report cited above deals with eastern Washington and Oregon, weather conditions in those areas are not significantly different from those in the Trout Slope East Project Area. The Trout Slope Timber Project EIS did not address the risk associated with the burning of large slash piles, and made no mention of the potential impact on fire risk associated with reasonably foreseeable actions such as "improvement of the residual overstory and thinning of the understory." The technical report makes clear that increased fire risk is not limited to clearcutting, but is also associated with "thinning, and other tree-removal activities." The potential future risk of fire associated with past, present, and future activities needed to be addressed, but was not dealt with adequately.

      As for the argument made by the Ashley National Forest that the dead trees would have eventually fallen down anyway, this statement ignores the role dead trees play in providing habitat for a variety of wildlife species. The EIS, as pointed out earlier, states that conditions in many of the stands provide ideal denning habitat for any Canada lynx that may remain within the area. In addition, boreal owls and three toed woodpeckers still exist within the Trout Slope East Project Area. The argument made by the Ashley National Forest also ignores the role of fallen trees and/or fire in nutrient cycling. Logging cannot be seen as a replacement for the role fire and fallen trees play in rebuilding a forest ecosystem after an event such as the beetle kill of the 1980s.

      The EIS touches upon the question of nutrient cycling, but admits there is little data that documents the impact of actions such as the one being proposed by the Ashley National Forest in this case. "They [natural forest ecosystems] are usually stable and resilient over long periods of time and relative to these periods are only temporarily altered by fire, windthrow and other types of natural disturbance. The effects of disturbance associated with management activity such as harvest have yet to be extensively studied (Pritchett and Fisher 1987)." Given the extent of logging that has taken place across the Ashley National Forest within lodgepole pine stands over the years, it is troubling to learn that the Forest Service still has not collected data regarding the impacts of "management activity such as harvest." How many timber sales need to be authorized and carried out in critical wildlife habitat and watersheds before this data will be available? Why is the Forest Service proposing to move ahead with a sale for primarily economic reasons in the absence of such data?

      The EIS goes on to state "Because of the relative infertility of quartzite and shale parent materials there is a greater dependence on the organic component of the soil nutrients. This organic component or layer is typically the surface four to six inches of topsoil and contains most of the biological components of the living and dead plant material, fungi, insects, and microorganisms that contribute to the nutrient cycling of the soil." Fully 99% of the affected area under the selected alternative is within landtype trout slope 1 (TS1). Landtype TS1 is described as including the Uinta Mountain Quartzite and Red Pine Shale common throughout the area. These are the very types of conditions described above for which there is a "greater dependence on the organic component of the soil nutrients."

      The EIS also states "Depending on the soil type and moisture content it may take as little as four to six passes on a roadway or skid trail to reduce the pore space in the top few inches of soil depth. Additional studies have shown that as skidder passes increase, the compaction depth increases extending down 12 to 15 inches (Froehlich and others, 1980.)" In spite of the absence of data described in the EIS, the abundance of a landtype dependent on organic matter for nutrient cycling within the project area, and the small number of passes that might lead to soil compaction and a reduction in pore space, the Cumulative Effects Analysis for the soils section of chapter four concludes that for the selected alternative "the risk for detrimental soil impacts will drop." That is, the effects will drop below what they would have been under alternative three. Conclusive evidence that they are sufficiently low so as to not have a detrimental effect on soils and the forest environment is not provided.

      The risk obviously does not drop from that seen under the No Action Alternative. It is important to note here that the Ashley National Forest acknowledges that even under the No Action Alternative "There will continue to be some erosion and growth losses from non-vegetated and compacted areas such as old firelines, a few skid trails, landings, and burned slash piles. But they will return to pre-harvest conditions over time." It is clear there is a serious lack of data when it comes to the impacts to soils heavily dependent upon a continuing reliable source of organic material for nutrients, and that past skid trails created as a result of past logging activities are, in many cases, failing to recover. How then can the Ashley National Forest say with any degree of certainty that past skid trails, lands, and burn sites will sufficiently recover in time? How much time will it take? It is obvious that the true cumulative effects of past and presently proposed actions are not clearly understood in this case.

      The Ashley National Forest also failed to adequately consider the cumulative effects of the Trout Slope East Timber Project when it comes to a critical prey species for the Canada lynx, the snowshoe hare. The EIS states that "Snowshoe hares do occur throughout project area, but survey data suggest hare densities are somewhat lower there than elsewhere on the Vernal Ranger District. Snow tracking surveys conducted in 1992, 1993 and 1994 found an average of 1.58 hares per mile of transect along the North East Park Road, compared to the District-wide average of 8.76 hares/mile."

      Unfortunately the Ashley National Forest is not using the most reliable method to determine hare density within the project area. According to a technical report prepared by the Forest Service, trapping data and pellet count data tend to be more reliable determiners of hare density than track counts. "Hare habitat use patterns have been measured by estimates of density (from trapping or from pellet counts;e.g.,Litvaitis et al. 1985b; Krebs et al. 1987; Eaton 1995), direct estimates of relative use (from trapping or radio telemetry locations of marked hares; e.g., Dolbeer and Clark of 1975; Ferron and Ouellet 1992), and indirect estimates of relative use (from browsing intensity or hare tracks; e.g., Monthey 1986; Rogowitz 1988). Of these, density estimates are the most informative, because they can indicate amplitude of change through time or magnitude of difference among habitats."

      In addition, it is possible that the snowshoe hare was experiencing a population decline resulting from the regular population cycles that occur in hare populations at the time the track count cited in the EIS was conducted (1992-94). According to data provided in the same technical report cited above, snowshoe hare harvest data gathered from 1975-1996 showed Utah's snowshoe hare population tended to experience a 12 year population cycle that peaked in 1978 and 1990. The Utah hare population experienced a three to five fold difference in density during this twelve year cycle. This means that at the time the track counts were being collected in the Trout Slope East Project Area the population was likely just beginning to recover from its cyclical crash.

      The Ashley National Forest drew the conclusion that low track counts along a major forest road after a possible snowshoe hare population crash (no attention was given to hare population cycles in the EIS) was an indication that Canada lynx were unlikely to utilize the Project Area. "If lynx are still present in the Uinta Mountains, it is unclear whether or not the project area would receive much use until more of the existing clearcuts have regenerated to suitable conditions for snowshoe hares." Again, this conclusion and the data it was based upon amounts to an inadequate cumulative effects analysis on the part of the Ashley National Forest. More attention should have been paid to snowshoe hare biology given that it is the primary prey for a threatened species.

2. The Ashley National Forest failed to meet the mandate of the Endangered Species Act.

   1. The Ashley National Forest violated the Canada Lynx Conservation Agreement between the U.S. Forest Service and U.S. Fish and Wildlife Service:
      On February 7, 2000, in anticipation of the listing of the Canada lynx as a threatened species the U.S. Forest Service and U.S. Fish and Wildlife Service entered into a conservation agreement intended to insure the continued survival of the Canada lynx. The Objective and Intent of the agreement is "to promote the conservation of the Canada lynx and its habitat on federal lands managed by the signatories."

      Within the Canada Lynx Conservation Agreement the Forest Service agreed not to approve any decision that was "likely to adversely affect the lynx." The agreement states the Forest Service will prepare an evaluation to determine possible impacts to the lynx and "If the evaluation indicates an activity is likely to adversely affect the lynx, the agency will not authorize the activity until plans are revised or amended as indicated in Part 2, or it has been determined that plans do not need to be amended or revised to incorporate additional measures for lynx."

      In a Biological Assessment prepared to determine the effects of Forest Plans for all 57 national forests within the 16 states where lynx are listed as threatened the U.S. Fish and Wildlife Service determined all 57 plans "may affect and are likely to adversely affect the lynx." This decision was "based on the not likely/likely to adversely affect standard of the Endangered Species Act." The U.S Fish and Wildlife Service recommended "amending or revising the Plans to incorporate conservation measures that would reduce or eliminate the identified adverse effects to lynx."

      In this case the Ashley National Forest determined that the Trout Slope East Timber Project "may affect, but is not likely to adversely affect" the Canada lynx. If this determination were legitimate, the Ashley National Forest could move ahead with this project and be in compliance with the Canada Lynx Conservation Agreement. We would argue, however, that the EIS clearly shows an adverse affect will occur under the selected alternative.

      We have already cited above inadequacy in the monitoring techniques used to determine the status of the snowshoe hare, the lynx's primary prey. The EIS makes it clear on several occasions that knowledge about the possible continued presence of lynx within the area is currently lacking. Hair samples must be collected for at least another two years in an on going effort to determine the possible presence of the species. Until that time the Forest Service should be operating on the assumption lynx do exist on the Ashley National Forest. Indeed, an analysis of trapping records and probable sightings makes the possibility of lynx still existing within the vicinity of the Trout Slope East Timber Project very real.

      The EIS states "There were 10 specimens of lynx that have been reliably traced to the Uinta Mountains, with collection dates ranging from 1916 to 1972 (Bates 1999)." The EIS goes on to say none of these lynx were taken within the project area, "However, there are also several track reports and sightings which are considered probable lynx observations, including one near East Park from around 1950 and one near Oaks Park from 1980 (McKay 1991)." A USDA General Technical Report also states there was a lynx trapped in Cache County, Utah as late as 1991. While Cache County is some distance from the project area, it demonstrates the very real possibility of lynx still existing in Utah as well the historic pattern of great gaps, often exceeding decades, between reliable sightings of lynx in Utah. The absence of any recent sightings should not be taken as evidence of the likely absence of lynx in the area.

      The EIS describes the project area as having a number of characteristics favored by both lynx and snowshoe hares. "Buskirk et al. (1999) suggested that snowshoe hare abundance should be high in both sapling stands and old 'gap phase' forests where tree mortality and snag loss created gaps in the canopy that allowed increased understory production. Gap-phase forest would also provide habitat for red squirrels, an alternate prey species used by lynx. Thus foraging habitat may be defined as either sapling or old forest structures with high densities of small diameter woody stems 1-3 meters tall." The EIS also states "The Trout Slope East project area is dominated by lodgepole pine and mixed lodgepole/Engelmann spruce/subalpine fir stands. Due to the high percentage of beetle-killed trees in the project area, most stands with a mature tree component also have large amounts of coarse woody debris and a dense understory of young trees. Such stands fit the definition of 'gap phase forests'., and therefore provide both foraging and denning habitat for lynx."

      It is difficult to reconcile the statement above with the conclusion in the EIS that dead tree only logging will result in "young forest structures" that "are also more likely to provide habitat for snowshoe hares immediately following harvest, so are more favorable for lynx than clearcut units would be." Once again, the EIS is comparing the impacts of the selected alternative to those under Alternative 3. The Ashley National Forest should be using the No Action Alternative as a baseline, and comparing impacts resulting from the decision to it.

      While the selected alternative is better than clearcutting, this does not translate into no impact on lynx or snowshoe hares. If, as the Ashley National Forest claims, 67% of the landscape consists of "gap-phase forests" that include numerous beetle killed trees, and that such conditions create excellent "foraging and denning habitat for lynx," how then can they conclude dead tree removal will improve conditions?

      The U.S. Fish and Wildlife Service's Final ESA Section 7 Consultation Handbook is clear on what proposals will result in a likely to adversely affect determination. "In the event the overall effect of the proposed action is beneficial to the listed species but also is likely to cause some adverse effects, then the proposed action 'is likely to adversely affect' the listed species." The EIS concludes that by dropping the West Fork drainage basing "potential loss of habitat effectiveness due to widespread disturbance" is reduced. The effects of "widespread disturbance" are not eliminated, however. Furthermore, the Record of Decision concedes "Timber harvest's relative contribution to the impacts on the project area isn't entirely known."

      The cumulative effects on Canada lynx of opening up additional roads within the project area to facilitate additional logging were not mentioned. The potential for displacement of possible lynx existing in the area due to ongoing logging and associated roads is very real. The statement below by the U.S. Fish and Wildlife Service demonstrates the indirect and direct impacts of roads on the Canada lynx.

      "Increasing human access into Canada lynx habitat has increased the vulnerability of Canada lynx to both legal and illegal harvest in areas that, historically, were relatively isolated from humans (Todd 1985; McKay 1991; Washington Department of Wildlife 1993; M. Hunter, pers. comm.. 1994). In the Uinta Mountains of Utah, most of the documented Canada lynx specimens were shot during deer hunting season in an area easily accessed by hunters (McKay 1991). In Washington, there is concern that human access may reduce the number of Canada lynx emigrating from British Columbia, further increasing the vulnerability of the remaining small population (Washington Department of Wildlife 1993). The high degree of access into Alberta's forests created by petroleum development and logging was suggested as an explanation for why Alberta produced a large proportion of the total Canadian lynx harvest in the 1970's and 1980's (Todd 1985.)"

      While the Ashley National Forest states that the roads opened and/or reconstructed to facilitate the decision will remain closed to public access, this does not guarantee the lynx will not be impacted by the action. "Even roads that are considered 'closed' will continue to be accessible to snowmobiles, thereby allowing access to higher elevation lynx habitat by humans and lynx competitors." With such a high density of roads already in existence within the area, and the proposal to even temporarily open up additional roads, the failure to adequately address the impacts of this action in the cumulative effects analysis amounts to a violation of both NFMA and the ESA.

      All of these facts lead us to the conclusion that "some adverse effects" to Canada lynx would occur making a "likely to adversely affect" determination a requirement. The fact that there is no information currently available about the status of the lynx within the area, the fact that snowshoe hare surveys have only been conducted through track counts along one road in the area (see concerns about snowshoe hare survey above), and the fact that the EIS failed to compare the impacts of the selected alternative to the baseline No Action Alternative in many cases all lead to the inevitable conclusion that some adverse impacts are inevitable. This is especially true given the Ashley National Forest's admission that 67% of the landscape involved is ideal denning and foraging habitat for lynx. It is simply not possible to remove 9MMBF of timber under these conditions without doing some harm to Canada lynx, a species that by all admissions is incredibly rare within the area if it is still present.

      The Canada Lynx Conservation Agreement was clear. If a likely to adversely affect ruling is warranted, which it is, then the action cannot go forward until sufficient changes have been made to the Forest Plan to mitigate the harm being done to lynx and its habitat. The failure to conclude an adverse affect was likely amounts to a violation of both the ESA and the Conservation Agreement.

   2. The Ashley National Forest violated provisions of the Endangered Species Act:
      While the failure to adequately protect the Canada lynx through compliance with the Conservation Agreement discussed above is a violation of the ESA in and of itself, the mandate of the ESA deserves some additional discussion.

      The ESA declares as its purpose "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such species." Congress has provided further direction to federal agencies to use all "methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." We feel that our discussion of regarding the Conservation Agreement provides ample evidence that all "methods and procedures necessary" have not been pursued. Furthermore, the arguments above also demonstrate that the conservation of lynx habitat will not be assured thus violating a primary objective of the ESA.

      The lack of any solid data short of trapping records and some sightings that demonstrate the status and viability of the Canada lynx within the project area also raises serious questions of compliance with the ESA. The duty of a Federal agency to "use the best scientific and commercial data available" may be violated if the agency fails to initiate feasible and necessary tests or studies. While the Forest Service has initiated a study to determine the likelihood of the lynx being present within the Ashley National Forest, these tests are taking place entirely on the north slope of the Uinta Mountains 12 miles northwest of the Trout Slope East project area. The final results of this survey will not be available for at least two years, and the courts have also ruled that if an agency initiates tests and studies and then acts prematurely before the results are known, it will be in violation of the ESA. Without knowing what the condition of the lynx population is within the area the agency is acting prematurely. At the very least the Ashley National Forest should await the results of the test being done on the north slope of the Uintas before moving ahead with the project.

3. The Ashley National Forest fails to meet the mandate of the National Forest Management Act.

   1. The Ashley National Forest failed to adequately consider or protect diversity in the Trout Slope East area ecosystem within the EIS and accompanying ROD:
      The NFMA requires the Forest Service to take the diversity of the resources it manages into account when making management decisions. "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."

      This statutory duty clearly requires protection of the entire biological community, not just one, or even a few species alone. Indeed, the imposition by this provision of such a broad and stringent duty to protect reflects on past management decisions made within the project area. The EIS refers to the "reduced value for wildlife" of the area due to past clearcutting and states that species such as the pine marten are likely gone from the area due to management decisions mostly carried out over the past 20 years after Congress mandated diversity be protected through the passage of NFMA.

      NFMA also recognizes that forest environments such as the Trout Slope East project area are valuable ecosystems in their own right. "Recognition 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." Such "awareness and consideration" are missing from the EIS.

      We have already discussed many of these gaps in "awareness" above. The Ashley National Forest did not conduct reliable surveys of the snowshoe hare population within the project area or elsewhere. They are not yet sure whether or not past activities have succeeded in eliminating the threatened Canada lynx from the area. In addition, there is an admission that many species "may exist" or "once existed" within the area, but there is an almost flippant attitude about the fact that many other species are vanishing or have vanished from the forest. The Ashley National Forest makes repeated statements such as the following comment regarding the likely extirpation of the wolverine from the area: "High levels of human activity, in combination with habitat fragmentation, may preclude occurrence of wolverine in the project area since it is typically associated with large tracts of remote forest." Instead of considering the "interrelationships" the wolverine may have had with other species in the area, and considering the possibility of enabling this species to return at some point in the future, the Ashley proposes a timber sale for purely economic reasons and seems to be arguing the habitat needed for this species is gone, so we might as well sell the timber and use the roads etc.

      Similarly with the pine marten, the Ashley National Forest dismisses the likelihood of its continued presence and fails to show through this decision any regard for the role this species played within the environment of the area. Boreal owls also appear to be becoming increasingly rare. Just to provide perspective, the area is now missing the wolf, the grizzly, probably the wolverine and pine marten, possibly the Canada lynx, losing the boreal owl, and has likely lost all pure strains of Colorado cutthroat trout. The area is by the Forest Service's own admission a patchwork quilt of clearcuts pieced together by a network of roads and the Forest Plan has already been violated in one subwatershed because past decisions put the forest over its allowed estimated clearcut area. How many pieces of the ecosystem does the Ashley National Forest think can be lost before the biodiversity of the area begins to completely unravel? The Ashley National Forest has clearly violated NFMA in its past decisions impacting the area, and has failed to show how this decision will have any positive effect on diversity or the ecosystem through this decision.

   2. The Ashley National Forest has failed to adequately monitor the resources under its jurisdiction as required by NFMA:
      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." In addition, "population trends of the management indicator species will be monitored and relationships to habitat changes determined."

      The Ashley National Forest Land and Resource Management Plan calls for periodic reports "summarizing monitoring results for a particular activity or practice." "Activity or practice" is defined under the plan as "a specific statement of what will be monitored." Under the Fish and Wildlife category included in the Forest Plan's Monitoring Plan periodic reports are supposed to be provided on the various wildlife resources listed either annually, every five years, or every decade.

      On May 30 of the this year the UEC submitted a Freedom of Information Act (FOIA) to the Forest Service requesting "all monitoring data gathered during the past 10 years" for Management Indicator Species on the Ashley National Forest and Utah's other five national forests. On August 18 the Ashley National Forest sent us monitoring data with a cover letter stating "Enclosed are 294 pages and 1 map of responsive documents provided by the Ashley NF." The letter concludes "The information provided in this mailing is complete for goshawks, lynx, sage grouse, red-naped sapsuckers, warbling vireos, song sparrows and Lincoln's sparrows." The UEC is then instructed to contact the Utah Division of Wildlife Resources for information on "white-tailed ptarmigan, elk, mule deer, golden eagle and sage grouse."

      No where in the 294 pages of data provided is there a single annual report, five year report, or ten year report for any of the MIS or sensitive species under the Ashley National Forest's jurisdiction. Without summaries of this data available to decision makers, it will be impossible to determine the impacts to these species of any of the activities or practices taking place on the forest. No effort has been made to summarize the data or interpret the data for use in the decision-making process. If such reports exist, they should have been provided to the UEC in the response to our FOIA request. Some monitoring reports were provided by other forests. This failure amounts to a clear violation of the Ashley National Forest Plan and is thus a clear violation of NFMA.

4. The Ashley National Forest failed to meet the mandate of the Administrative Procedures Act.

   1. The Ashley National Forest acted arbitrarily and capriciously in reaching its decision:
      

      The Administrative Procedures Act (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."

      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."

      The Ashley National Forest has failed to "consider an important aspect of the problem" by failing to adequately address the past and present impacts on diversity and the ecosystem resulting from logging, roads and other activities within the project area. In addition, the Ashley National Forest ignored information it was aware of when failing to list the payment to counties in its economic analysis, and totally failed to consider other economic benefits associated with the forest (i.e. recreation).

      The Ashley National Forest also "relied on factors which Congress has not intended it to consider" when making the decision to offer a timber sale for primarily economic reasons. While Congress intended this to be one factor in the decision-making process, it did not intend it to be the primary factor. Congress did intend for diversity, the ecosystem and other environmental concerns to be considered equally with, or even above economic considerations. The Record of Decision makes clear that these considerations did not rise to the level of being an "objective" in the eyes of the Forest Supervisor in spite of the fact that Congress requires decisions to be made in the context of overall ecosystem health and sustainability.

      In light of the above arguments and those made on previous pages of this appeal, the Appellants argue the Ashley National Forest has acted arbitrarily and capriciously and thus is in violation of the APA.