Before the United States Forest Service
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BEFORE THE UNITED STATES FOREST SERVICE OFFICE OF THE CHIEF
NOTICE OF APPEAL
Of the Record of Decision for the Final Environmental Impact Statement for the Revised Land and Resource Plan for the National Forests in Alabama
Filed on behalf of Wild South, the Alabama Wilderness Alliance, the Southern Appalachian Forest Coalition, Appalachian Voices, Sierra Club (Alabama Chapter), The Wilderness Society, and WildLaw.
Filed by WildLaw, as counsel for all appealing parties.
Ray Vaughan WildLaw 8116 Old Federal Road, Suite C Montgomery, Alabama 36117 (334) 396-4729 (334) 396-9076 (fax) [email protected] www.wildlaw.org USDA Forest Service Attn: NFS-EMC Staff (Barbara Timberlake) Stop Code 1104 1400 Independence Avenue, SW Washington, D.C. 20250-1104
Pursuant to 36 C.F.R. part 217, we are filing this Notice of Appeal of the Record of Decision by Regional Forester Robert Jacobs for the Final Environmental Impact Statement for the Revised Land and Resource Plan for the National Forests in Alabama. The ROD was signed on January 15, 2004, and the official Notice of Availability for the FEIS and Plan was published in the Federal Register on January 30, 2004, 69 Fed. Reg. 4512 (Jan. 30, 2004). Thus, the 90-day appeal period runs through April 29, 2004.
Under 36 C.F.R. § 217.9(b), we submit the following:
(1) This document is a Notice of Appeal filed pursuant to 36 CFR part 217;
(2) The names, addresses, and telephone numbers of the appellants:
Wild South P.O. Box 117 Moulton, AL 35650 (256) 974-6166
Alabama Wilderness Alliance P.O. Box 117 Moulton, AL 35650
Southern Appalachian Forest Coalition 46 Haywood Street, Suite 323 Asheville, NC 28801 (828) 252-9223
Appalachian Voices 703 West King Street Suite 105 Boone, NC 28607 (828) 262-1500
Sierra Club, Alabama Chapter 12701 Union Church Drive Grand Bay, AL 36541
The Wilderness Society Eastern Forest Action Center 45 Bromfield Street, 11th Floor
2 Boston, MA 02108
WildLaw 8116 Old Federal Road, Suite C Montgomery, AL 36117 (334) 396-4729
(3) The requesters object to the decision of Regional Forester Robert Jacobs for the Final Environmental Impact Statement for the Revised Land and Resource Plan for the National Forests in Alabama.
(4) Record of Decision for the Final Environmental Impact Statement for the Revised Land and Resource Plan for the National Forests in Alabama, made by Regional Forester Robert Jacobs.
(5) Identify specifically that portion of the decision or decision document to which the requester objects. See discussion and arguments below.
(6) State the reasons for objecting, including issues of fact, law, regulation, or policy, and, if applicable, specifically how the decision violates law, regulation, or policy. See discussion and arguments below.
(7) Identify the specific change(s) in the decision that the appellants seek. See conclusion.
ISSUES
The new Revised Land and Resource Plan and the Final Environmental Impact Statement for the Revised Land and Resource Plan for the National Forests in Alabama have a number of problems and violations of law.
1. Wilderness and Roadless Areas: No additional wilderness areas were recommended. a. The Inventory of Roadless Areas Violates the APA and NEPA. b. The Failure to Disclose and Consider Impacts on Areas Arbitrarily Dropped from the Roadless Inventory Violates NEPA. c. Regional Guidance as Implemented by the Forest Violated the APA. i. The 2,500 Acre Semi-Primitive Core ii. Many of the Roads Deemed “Improved” Are Actually Not Passable By Any Vehicle. d. Failure to Verify Inventory Decisions. e. Improper Consideration of “Sights and Sounds.” f. Improper Consideration of Boundaries in the Inventory Process. g. Lack of Consistency in Roadless Inventories In the Southern Region. h. The Evaluations of Roadless Areas Are Inadequate and the Recommendations for Wilderness Study Areas Are Arbitrary and Capricious
3 i. The Consideration of Alternatives Violates NEPA. j. Descriptions of Areas. i. Additions to Existing Wilderness. ii. New Stand-Alone Wilderness Areas. iii. Areas that Must be Added to the Roadless Inventory. The Final Plan specifically states that our suggestions and information on areas that should have been added to the Roadless Inventory were NEVER analyzed at all, in complete violation of NEPA k. Using boilerplate language to “analyze” and reject area after area as proposed wilderness is arbitrary and not NEPA compliance. Using boilerplate language to “analyze” and reject area after area as proposed wilderness is arbitrary and not NEPA compliance. It is not enough to make “conclusory” or “perfunctory references” to cumulative impacts or to continue to use the same boilerplate language throughout the EIS. Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298-99 (D.C. Cir. 1988). Cumulative effects analysis requires “some quantified or detailed information. . .” Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372, 1379 (9th Cir. 1998). “General statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Id. at 1380. l. General inconsistencies and errors in the application of the Region’s roadless criteria for these areas: i. The core areas of solitude were undervalued and significant acreage of semi-primitive lands were discounted or omitted. ii. Semiprimitive motorized (SPM) areas were not considered in the analysis. iii. Primitive roads and the use of closed roads were not considered when determining the semi-primitive core areas. Both “type and use of roads” were to be considered in the analysis, according to Regional guidance emphasized in the April 17, 1995 letter to Forest Supervisor m. The Final Plan specifically states that our suggestions and information on Brushy Fork and Mayfield Creek areas were NEVER analyzed at all, in complete violation of NEPA. n. Regional Guidance on the Roadless Inventory did not comply with FSH 1909.12, Chapter 7.1. “Improved Road” is not defined anywhere, and its use to exclude areas from the Roadless Inventory was arbitrary and capricious. o. Regional Guidance on Roadless Inventory (to the extent it was valid) was not followed. Improved road is defined as passable by a car, but impassable roads used to disqualify areas. p. Roads Analysis Report (Dec. 2002) only considered only Level 3, 4 and 5 roads, but the Roadless inventory used lesser roads (Level 1 and 2) to knock areas out. This is inconsistent and arbitrary. q. Forest Service improperly used wilderness recommendation evaluation criteria to exclude areas from the Roadless Inventory; this is using Step Two (Wilderness Evaluation) to decide Step One (Roadless Inventory).
4 r. Using boilerplate language to “analyze” and reject area after area as proposed wilderness is arbitrary and not NEPA compliance. s. Did not follow guidance and FSH in rejecting Mayfield Creek and Brushy Fork as roadless areas. t. Rejection of our Alternative W was cursory and arbitrary and capricious. u. Appendix C: Evaluation of Roadless Areas has NO ANALYSIS whatsoever on Brushy Fork or Mayfield Creek (Reed Brake Expansion), both areas we provided extensive and detailed information on. v. Management Prescription 12.C not assigned to any roadless area or other area. w. The Plan did not comply with the Alabama Wilderness Act of 1988 (officially named the “Sipsey Wild and Scenic River and Alabama Addition Act of 1988. x. The Roadless Rule was not adequately discussed and no documentation on how the Plan will comply with it. y. Yet, the Plan admits the need for significant new wilderness acreage in the National Forests in Alabama, and failing to provide for that need was arbitrary and capricious.
2. Wild and Scenic Rivers a. Analysis for rejecting Brushy Fork as Wild and Scenic nonexistent, thus making that rejection arbitrary and capricious. b. This lack of information and analysis has serious California v. Block type problems, making the Plan’s decisions on potential wild and scenic rivers arbitrary and capricious.
3. A number of new goals, objectives and standards added for oil and gas leasing and minerals development without opportunity for public notice and comment. a. Inclusion of new goals, objectives and standards in the revised plan without giving the public notice of those goals, objectives and standards and an opportunity to comment violates NEPA and the APA. b. Placing oil and gas development above all other uses (“Management Prescriptions, Management Area Direction, and Forest-wide Direction are subject to outstanding and reserved mineral rights.” Standard FW-157.) is a violation of NFMA and the MUSYA. c. None of these new goals, objectives or standards were subject to public notice, review and comment, and none of them underwent ANY NEPA analysis. d. ALL alternatives had exactly the same area of the Forests open to mineral exploration and development = 92.2%. This is a clear NEPA violation. e. The FEIS specifically references and discusses Executive Order 13212, (Actions to Expedite Energy-Related Projects) of May 18, 2001, which was NEVER mentioned in the DEIS. This is a NEPA and APA violation f. The FEIS requires that, for limitations placed on the surface activities of drilling by the Forest Service, those limitations will be “considered consistent with the lease rights granted, provided they do not require relocation of proposed operations by more than 200 meters, require that the operations be sited off the leasehold, or prohibit new surface disturbing operations for a period in excess of 60 days in any lease year.” FEIS at 3-63. These
5 limitations severely restrict the agency from preventing damage to surface or aquatic resources when permitting drilling operations; they prevent serious use of directional drilling. NONE of this was in the DEIS, and thus, none of it was subject to public notice, review and comment. There is NO NEPA analysis for these limitations, either. g. The FEIS has an entire appendix devoted to the limitations and stipulations to be placed on oil and gas drilling and minerals development. AL FEIS Appendix I.) None of that was in the DEIS, thus none of it was subject to public notice, review and comment, in violation of NEPA and the APA.
4. Old Growth: section was beefed up with more narrative, maps of “potential old growth” (meaning merely maps of areas not suitable for timber production), and a few tables. (Final Plan at 2-39 through 2-47.) NONE of this was in the draft Plan or DEIS, so it thus was not available for public notice, review and comment in violation of NEPA and the APA. a. As in the Draft Plan, the old growth section has only one goal and one objective, but no standards. (Draft Plan at 2-34, and Final Plan at 2-41.) The goal is Afuzzy@ and does not protect all existing old growth, as it allows Afuture old growth@ to meet the goal. This is not good enough. All old growth and potential future old growth must be mapped and explicitly protected. Only the Jefferson mapped existing old growth. b. Alabama Plan did not follow Regional Old Growth Guidance. c. The Lack of management standards for old growth is odd in that one of the MAJOR issues identified by the agency for the plan revision was “Old Growth.” The Final Plan states it this way:
“3. Old Growth: The issue surrounding old growth has several facets, including: (1) how much old growth is desired, (2) where should old growth occur, and (3) how should old growth be managed?” (Final AL Plan at 1-6.)
Why state that “how should old growth be managed?” is an issue in the plan revision and then have the Revised Plan have absolutely nothing on how old growth should be managed? This lack of analysis and goals, objectives and standards for old growth is arbitrary and capricious. d. The sole objective in the old growth section is: AComplete field verification of possible existing old growth areas in our current inventory, and map small and medium patches.@ (Draft Plan at 2-34; Final Plan at 2-41.) This field work for the inventory should have already been done and be part of the information for the public and decisionmaker to review in the Plan/DEIS. Without it, there can be no NEPA compliance. e. The old growth section should have an objective of retaining all existing old growth. The old growth section should have standards, such as: (1) no harvesting will be done anywhere until the old growth field inventory survey is done, (2) no cutting existing old growth trees or patches and (3) leaving
6 buffers around all old growth stands or patches. We requested that these standards be added to the final plan, but no response or change was made. f. Other revised plans in the Southern Appalachians that were done in conjunction with the Alabama revised plan all have standards for old growth. Alabama plan should also. It is arbitrary and capricious to leave old growth standards out for Alabama when they were included for the Chattahoochee- Oconee, Jefferson, Cherokee, and Sumter final plans.
5. Rejection of Quentin Bass information. The Response to Comments spends just over two pages rejecting Quentin Bass’s information. (FEIS Appendix J, at J-87 through J-89.) a. The response in the AL Plan is a canned, boilerplate response in that it talks about how ruffed grouse need dense early successional habitat. Ruffed Grouse aren’t in Alabama’s National Forests. As stated elsewhere in the FEIS Appendix J, “A ruffed grouse reintroduction was also attempted, but failed, due to edge of range complications.” (FEIS Appendix J, at J-69.) b. The Forest Service rejects Quentin Bass’s material and conclusions, because they were not peer-reviewed. “Unlike the scientific literature used and cited during planning, the specialist’s analysis has not been through the rigorous process of peer review, critique, and publication in mainstream scientific journals.” (FEIS Appendix J, at J- 88.) Yet, elsewhere, the Forest Service defends its use of non-peer-reviewed information when questioned about the adequacy of their viability analysis. “Although formal peer review of completed viability evaluations were [sic] not conducted, elements of external review and adjustment were incorporated throughout the viability evaluation process.” (FEIS Appendix J, at J-77.) Trying to have it both ways is arbitrary and capricious and a violation of NEPA. c. The Historical Evidence From The Forest Service’s Own Records. d. The Information Unearthed In These Historic Agency Records Is Significant. e. The Forest Service’s Failure to Disclose Its Own Historic Information And Related Analysis Violated NEPA. i. The Forest Service Did Not Adequately Disclose Or Fairly Discuss This Information. ii. The Forest Service Must Address the Uncertainties and Risks Of Its Approaches To Forest Succession and Prescribed Fire. iii. The EIS Failed To Disclose Or Respond To The Opposing Evidence and Analysis Of The Agency's Own Expert and Supporting Experts. iv. The Forest Service Failed To Develop A Reasonable Range Of Alternatives That Reflected These Historical Records And Supporting Materials. v. Mere Consideration of these Historical Records Does Not Meet NEPA Requirements, Nor Do The Agency’s Other Responses To Comments Meet The Law. f. The Failure To Disclose The Historical Records and Studies Violated The NFMA.
7 g. The Failure To Disclose The Historical Records and Analysis Violated The Data Quality Act.
6. MIS and PETS: The Final Plan rejects calls for broader use of Management Indicator Species. a. Failure to adopt an adequate set of MIS is a violation of NFMA and NEPA. b. Failure to meet viability requirements. c. Failure to consider a range of alternatives on MIS is a violation of NFMA and NEPA. d. No aquatic species are designated as MIS, thus leaving impacts from sediment and other aquatic stresses basically unmonitored from a species viability standpoint. This is a violation of NFMA and NEPA. e. The Forest Service defends its use of non-peer-reviewed information when questioned about the adequacy of their viability analysis. “Although formal peer review of completed viability evaluations were [sic] not conducted, elements of external review and adjustment were incorporated throughout the viability evaluation process.” (FEIS Appendix J, at J-77.) But, elsewhere, the agency rejects information provided by commenters (including us) that had not gone through the peer-review process. “Unlike the scientific literature used and cited during planning, the specialist’s analysis has not been through the rigorous process of peer review, critique, and publication in mainstream scientific journals.” (FEIS Appendix J, at J- 88.) The agency cannot have it both ways; either non-peer-reviewed information can be used to inform the decision or it cannot. f. Plan admits that viability requirements will be “met” through habitat surrogates and direct monitoring of only PETS species, and then only when really needed. Monitoring of individual MIS species will apparently not occur. This is a violation of NFMA. g. Failing to provide a rational explanation for eliminating species as MIS violates NFMA. h. PETS: i. Plan says that PETS will be the fine filter and thus rejects monitoring of MIS. But the Plan provides virtually nothing for PETS and their monitoring. The acronym “PETS” appears in the Plan only four times, with one of those being in “Appendix B: Acronyms.” The one and only mention of monitoring for PETS is in “Appendix F: Monitoring Summary Table” and says only, “Various methods will be used as appropriate to the species or species group. Refer to PETS Species Inventory and Monitoring Handbook.” (AL Plan Appendix F at F-8.) Nowhere in the Plan or the FEIS is there a statement of what monitoring will or will not be done; there is nothing for the public to review and comment on. The Monitoring Handbook can be changed any time without public notice and comment. ii. This is an attempt by the agency to circumvent both NEPA and NFMA. By tiering PETS monitoring to a document that can be changed at a whim without public notice and comment, they do not
8 take a “hard look” at the consequences of their monitoring methods and do not provide the public and the decision maker with the information required to know what will happen. iii. Yet, the Plan admits that many PETS species have big viability concerns. Full surveys for PETS can be done successfully and not hinder projects. The Final Environmental Impact Statement for the Talladega National Forest “Forest Health and RCW Initiative” (March 2004) is a 19,000-acre, five-year project. Yet, every area in that 19,000 acres was surveyed for PETS by highly-qualified personnel.
7. Restoration. a. The Summary for the Final Plan directly states, “Some of the best silvicultural sites that are currently accessible could be managed to provide a supply of high-quality sawtimber.” (Summary at 3.) We and the public through the media are being told by the agency that this Plan ends the commercial extractive purposes on these forests and focuses them on restoration. The above statement in the Summary is directly contrary to that restoration message and goal. b. Our comments that timber harvesting should be limited to restoration and forest health purposes and not allowed just for its own sake, as suggested in the Summary, was not responded to. c. Having general timber harvesting standards in a plan that claims to be a restoration plan is arbitrary and capricious.
8. Roads. a. The Plan rejects illegally suggestions to have goals, objectives and standards for road, closure, removal and obliteration. b. “A forest-scale roads analysis has been completed to inform the decision as required in FSM 7712.” This was not made available to the public for review at the DEIS stage. No further mention of FSM 7712 occurs in the Plan or FEIS, and there is no roads analysis in the Plan or FEIS. c. Roads Analysis was not done with any public input. Federal Register for Roads Analysis required public input. d. All alternatives have exactly the same number of miles of roads; this means there were no alternatives at all on roads. How did the roads analysis inform the analysis if there was never any change in the alternatives? Why is none of it included in the Plan and FEIS. e. Roads Analysis Report (Dec. 2002) only considered only Level 3, 4 and 5 roads, but the Roadless inventory used lesser roads (Level 1 and 2) to knock areas out. This is inconsistent and arbitrary.
9. Issues specific to the Bankhead National Forest: a. Logging in Historic Districts: “Logging activities would only take place within National Register Districts when the logging enhances the district.” (FEIS Appendix J, at J-165.) This should not be allowed.
9 b. Mining with “a Controlled Surface Use stipulation” will be allowed in Cultural/Heritage Areas, Prescription 4.E.1. (AL Final Plan at 3-17.) This should not be allowed. c. Failure to follow the Bankhead Heritage Management Plan. Entire response to comments based on the Heritage Management Plan is:
“The Bankhead Heritage Management Plan is still in draft. As written, the Bankhead Heritage Management Plan requires hiring seven additional archeologists and a budget of $450,000 for the Bankhead alone. A commitment of people and resources is beyond the scope of the Land Management Plan.” (AL FEIS Appendix J, at J-123.)
d. Coal mining leases are authorized for the first time (FW-165, Final Plan at 2- 66), all without any mention of coal mining in the Draft Plan. This violates NEPA and the APA.
10. NHPA Violations a. The Plan does not require that the Forest Service survey the forests for heritage resources as required by § 110 of the NHPA. Comments requesting the agency to do this were summarily dismissed in violation of NEPA. b. It is hard to tell how much of each forest has been surveyed, other that from off-hand statements in various places. c. There are NO requirements in the Plan for surveys of heritage resources at the forest level for any forest. In the Plan’s Monitoring Summary Table, Appendix F, only project-level surveys are required.
11. NEPA Violations. a. EIS not readable. NEPA requires that an EIS be "readable." b. Inserting significant new things in the Final that were not in the Draft, thus frustrating public notice and comment on those things. c. Lack of Cumulative Impacts Analysis. i. No cumulative impacts analysis is in the FEIS for the approved oil and gas exploration, drilling and production. ii. No cumulative impacts analysis for approval of coal mining in the Bankhead. d. Failure to Consider Reasonable Alternatives. i. Reasonable alternatives not considered: 1. Alternative C. a. The “Healthy Forests Initiative” was used to justify rejecting Alt. C. That is not NEPA compliance b. Reasons given for rejecting Alternative C are reasons for not adopting it, not for refusing to consider and analyze it, in violation of NEPA 2. Alternative W. 3. Putting some or all roadless areas in prescription 12.C.
10 4. Bankhead as a National Recreation Area. No alternative considered this despite it being identified as a major issue (Issue #16). (AL Summary at 24, Table 13.) 5. All alternatives have exactly the same area open to mineral exploitation, 92.2%. (AL Summary at 23, Table 13.) No alternative considers less area for mineral exploitation. 6. No alternative for managing more old growth. All alternatives had the exact same amount of old growth provided; even though, the agency has no idea how much old growth is actually out there, because they have never surveyed for it. 7. No alternative for reducing road density. All alternatives had exactly the same roads mileage. (AL Summary at 23, Table 12.) 8. No alternative with more wild and scenic river miles. Refused to even consider Brushy Fork in the Bankhead as a potential wild and scenic river, despite significant public interest and comments on doing that. 9. No alternative with more MIS and PETS species. All alternatives have same MIS and PETS. e. Failure to Consider Direct and Indirect Effects and Impacts. i. Bankhead coal mining approved without ANY analysis of impacts. ii. No impacts analysis is in the FEIS for the approved oil and gas exploration, drilling and production in the Conecuh and other forests. f. Failure to consider materials submitted or information: i. Numerous Scientific Experts of Viability and MIS ii. Quentin Bass material. iii. The Lynch and Clark Study and other Related Studies iv. Mel Warren’s comments. v. Agency experts’ comments vi. Site-specific information on Brushy Fork and Mayfield Creek. vii. Information on Brushy Fork W&SR. g. Failure to utilize agency expertise i. Standards and other requirements drafted by AL NF staff rejected with no explanations. (old growth standards, monitoring for PETS, etc.) ii. Did not include open Longleaf areas with grassy understory as “early successional habitat” despite their experts saying it should be included. Thus, they overstate the need for logging to create “early successional habitat” when mature Longleaf stands also create that habitat. iii. Quentin Bass and his material. h. Failure to explain decisions i. Lack of standards (old growth, etc.) ii. Inclusion of standards with no explanation (oil/gas/mining) iii. Rejections of staff experts’ suggestions.
12. New oil and gas and mining standards added without public notice, review and comment. New goals, objectives and standards added; basically, the whole section
11 has been rewritten. The Revised Plan permits coal mining operations on the National Forests in Alabama for the first time. The word “coal” does not appear anywhere in the Draft Plan. Neither the DEIS or FEIS discuss impacts from coal mining anywhere. Does not comply with 36 C.F.R. § 228.102, which requires: (1) identifying alternatives, including that of not allowing leasing (§228.102(c)(2)); (2) project the type/amount of post-easing activity that is reasonably foreseeable (§228.102(c)(3)); and (3) analyze the reasonable foreseeable impacts of post-leasing activity (§228.102(c)(4)).
13. Monitoring Problems. Shortcomings: a. For all MIS birds (excluding RCW), monitoring will be only by “Breeding Bird Survey occurrence trends for the species compared to available habitats.” (Final Plan Appendix F at F-2 – F-3.) Nothing shows that breeding bird surveys have scientific validity; no analysis under NEPA to show this. b. Fish communities and other aquatics will only be monitored by tracking “changes in physical and chemical habitat quality within at least 3 representative reaches of each physiographic province and/or river basin.” (Final Plan, Appendix F, at F-5.) Three streams that are impacted by management activities will also be monitored and compared to the three representative reaches, but this leaves the vast bulk of the Forests unmonitored. Also, the monitoring only must occur “At least 3 sequential years within each 10 year period” and the reporting interval is “as available.” Thus, they can wait until seven years of management occur before they ever bother to do aquatics monitoring at all. This is arbitrary and capricious and violates NEPA and NFMA. c. “Trends” in the amount of air pollutants and their effects on forest ecosystems will be measured “Once in a 10 year period.” (Final Plan Appendix F at F-5.) How will the agency get a “trends” from a one time measurement during the planning period? What are the current conditions and baselines? No NEPA analysis and clearly arbitrary and capricious.
14. Riparian and SMZ issues. a. Riparian standards allow riparian areas to be changed on a project-specific basis; this is an end-run around the legal requirement for amending the plan when changing the area of a prescription. This will allow them to avoid NEPA compliance when making these changes. (AL Plan at 3-63.) b. They have not calculated how many acres the riparian prescription takes out of the acres “suitable” for logging. Thus, they included these unsuitable acres in the estimate of suitable acres forest-wise and thus inflated the number of suitable acres. This is not NFMA compliance.
15. Failure to Consider Comments Adequately. a. The sending of comments to the Content Analysis Team in Salt Lake City, Utah meant that the comments were not analyzed and responded to by agency personnel who have knowledge or familiarity with the subject matter—the
12 management of these National Forests. The responses to comments did not adequately respond as NEPA requires. b. Specific instances of Failure to Respond to Comments. These show how the CAT failed to cover forest-specific issues and comments: i. Alternative W. ii. Alternative C. iii. Brushy Fork and Mayfield Creek as roadless areas. iv. Brushy Fork as a W&SR. v. We requested that standards for old growth be added to the final plan, but no response or change was made. vi. Quentin Bass material. vii. The Lynch and Clark Study and other Related Studies viii. Comments of eminent scientists in the region. ix. Mel Warren’s comments. x. Agency Personnel. xi. MIS. xii. PETS monitoring. xiii. FWS and our comments on greater buffers needed for protection of mussels. xiv. Need for goals, objectives and standards for road closure, removal and obliteration. xv. Failed to respond to comments of renown scientists on PETS and MIS monitoring. Agency cannot ignore the comments of reputable scientists. Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1479-82 (W.D. Wa. 1992), aff'd Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993). xvi. Failed to respond to EPA comments. EPA commented:
“EPA is concerned about the fact that the preferred alternative currently allocated no acres to watershed restoration. At a minimum, it is recommend that the Forest Service partner with state and local agencies to assist with restoration of these waters, particularly those water bodies where the Forest Service may also be a contributor to the impairment or is a significant land-holder in these watersheds (e.g., Town Creek, Upper Bear Creek, West Flint Creek, Middle Choccolocco Creek).” (EPA Comment Letter at 3.)
In response, the Forest Service claimed, “No listed impaired water bodies are within any of the Forest Service’s proclamation boundaries, and those impaired water bodies within shared watersheds are listed as impaired for reasons other than Forest Service activities.” (AL FEIS Appendix J at J-45.) In fact, West Flint Creek is listed impaired due to siltation, which is a pollutant that comes off Forest Service lands.
16. Economics Problems.
13 a. The Plan and FEIS do not comply with the NFMA and NEPA requirements to identify and consider economic issues and impacts. Further, there is no consideration of alternatives related to what little economics impacts discussion there is in the Plan and FEIS. As shown by the comments of Dr. Robin Gottfried, Professor of Economics at the University of the South, the economics analysis in the Plan and DEIS and FEIS are totally inadequate. Moreover, the wilderness supply and demand analysis is so inadequate as to be meaningless and is a clear violation of NEPA and NFMA. b. The Plan and FEIS do not present a rigorous economic analysis of the various alternatives provided in the document. c. The Determination of Timber Resource Land Suitability and the Determination of the Allowable Sale Quantity Are Both Arbitrary and Capricious i. The Determination of Suitable Lands Fails to Meet the Requirements of the National Forest Management Act 1. Physical and Biological Conditions 2. Transportation Requirements 3. Costs and Returns 4. Designation of Management Prescriptions By Alternative in Spectrum 5. Negative Present Net Value Areas 6. The Planning Horizon and Long Term Sustained Yield 7. Effects on Suitability and ASQ ii. The Determination of Suitable Lands Fails to Meet Requirements Under Forest Service Handbook Direction iii. The Process and Criteria for Determination of Suitable Lands Varies Considerably Across the Southern Region in the Five Revised Forest Plans iv. The Benchmarks Fail to Define a Range of Alternatives v. Modeling Harvest on Unsuitable Lands Introduced Error to the Suitability Determination vi. Data Used Was Insufficient to Calculate Costs and Revenues vii. Failure to Adequately Respond to Comments Under NEPA viii. Remedy Sought d. The Determination of Economic Effects is Arbitrary and Capricious i. Failure to Analyze Actual Revenue Sharing ii. Failure to Consider Non-Timber Priced Benefits and Non-Priced Benefits iii. Remedy Sought
14 DETAILED DISCUSSION OF ISSUES
INTRODUCTION
While the new revised management Plan for the National Forests in Alabama adds some valuable and useful things (such as the emphasis on restoration and good sections on special use permits), there are far too many significant and serious flaws and legal problems with the revised Plan. The lack of standards for old growth protection and for road closures/obliteration are incredible oversights, especially when the other plans released for the Region on the same day have such standards. The emphasis on restoration of natural forest types is undermined by allowing the very same types of irresponsible and unsustainable logging that caused the need for restoration. The total lack of protection for the few remaining bits of wild places is unacceptable.
We regret that this appeal had to be filed, but we hope that the Forest Service will take this as an opportunity to finally engage the most interested members of the public in an honest and professional conversation about how to fix these problems and make this management plan what it should be for all the uses and needs of these special Forests.
1. Wilderness and Roadless Areas:
No additional wilderness areas were recommended. During the forest planning process, the Forest Service must evaluate and consider roadless areas for recommendation as potential wilderness areas. 36 C.F.R. § 219.17(a). These areas may then be considered by Congress for their inclusion in the National Wilderness Preservation System, as provided by the Wilderness Act. 16 U.S.C. § 1131, et seq. The regulation suggests a two-step process, describing areas subject to evaluation in (a)(1) and providing significant issues for evaluation in (a)(2). Id. The Forest Service Handbook provides further guidelines for this two-step process of inventory and evaluation of roadless areas. FSH 1909.12, Ch. 7.
The roadless inventory and evaluation for the Plan revision are arbitrary and capricious and violate the APA, NEPA and the NFMA regulation. Areas which meet the roadless criteria were arbitrarily dropped from the roadless inventory. Although many of these areas are slated for active management, the FEIS never considers the effects on these areas, in violation of NEPA.
The evaluations of the areas which were included in the inventory (see FEIS, Appendix C) are inadequate under NEPA. Further, the wilderness recommendations are arbitrary. The entire inventory and evaluation process runs contrary to clear Congressional intent for the inclusion of deserving wild areas in the Wilderness System and limits Congress’ opportunity to consider these special areas.
15 Moreover, the FEIS does not offer an adequate range of alternatives for wilderness and fails to seriously consider a maximum wilderness alternative, both violations of NEPA. The FEIS also fails to accurately disclose the agency’s management plans for inventoried roadless areas not recommended for wilderness. The Forest Service should fully protect these areas by complying with the Roadless Area Conservation Rule.
The Inventory of Roadless Areas Violates the APA, the Forest Service Handbook and NEPA.
The inventory required for Plan revisions was initiated as a part of the Southern Appalachian Assessment. Much of the work was done before the SAA was released, although the Region viewed the SAA inventory as tentative and expected the forests to further verify inventory decisions in finalizing the inventory required for the revised forest plans. The National Forests in Alabama never verified the inventory it submitted for the SAA.
Although the FSH provides clear criteria for roadless areas, in 1994 and 1995 the Southern Region issued several guidance letters regarding the inventories. Regional guidance misquoted and misinterpreted the Wilderness Act and the FSH, creating more stringent criteria for roadless areas than the criteria found in the Act and the FSH. The Region erroneously directed the forests to rely almost exclusively on “solitude,” and on the ROS semi-primitive criteria to quantify solitude, to determine whether an area qualified as roadless. Thus, the Forest ignored other wilderness values. Numerous areas which meet the roadless criteria in the FSH and which meet the statutory definition of wilderness, as stated in the Wilderness Act and as interpreted by Congress, were excluded from the inventory. Regional guidance interpreting the Wilderness Act and the FSH essentially changed the substantive requirements for roadless areas through an agency guidance letter, in violation of the APA.
The Region and the Forest also used the “sights and sounds” criteria to exclude areas from the inventory. Congress has discredited and clearly rejected the “sights and sounds” criteria. Even according to the FSH, “sights and sounds” should not be considered at the inventory stage.
Wild South, WildLaw, SAFC and their members are on record objecting to the unlawful criteria and methods used in the roadless area inventory, to the arbitrary exclusion of areas from the roadless inventory, and to the boundaries drawn for inventoried roadless areas. Appellants commented at every stage of the roadless inventory. When the SAA inventory was being reviewed for incorporation into the plan revision process, the Southern Appalachian Forest Coalition, The Wilderness Society, and the Southern Environmental Law Center submitted comments to the Forest Service objecting to the “Inadequacy of National Forest Roadless Area Inventory in the Southern Appalachians”.1
1 SAFC, TWS and SELC letter of 10/3/97.
16 The more stringent requirements created by the Region also run contrary to the clear intent of Congress to preserve Eastern wilderness. In 1975, Congress recognized an “urgent need to identify, study, designate and preserve areas” in the eastern United States “for addition to the NWPS. Pub. L. 93-622(2)(a)(1) (1975) (commonly referred to as the Eastern Wilderness Act of 1975). The Act designated several wilderness areas in the East, including the 3,600 acre Ellicott Rock Wilderness Area and the 2,570 acre Gee Creek Wilderness Area. Pub. L. 93-622(3)(a)(8), (9). Congress further found “it is in the national interest that these and similar areas in the eastern half of the United States be promptly designated as wilderness within the National Wilderness Preservation System, in order to preserve such areas as an enduring resource of wilderness which shall be managed to promote and perpetuate the wilderness character of the land and its specific values of solitude, physical and mental challenge, scientific study, inspiration, and primitive recreation for the benefit of all the American people of present and future generations.” Pub. L. 93-622(2)(b) (emphasis added).
The Eastern Wilderness Act serves as an example of eastern areas Congress found to meet the definition of wilderness. In the Endangered Wilderness Act of 1978, Congress stressed that “many areas” of National Forest land have “high value as wilderness” and “meet all statutory criteria for suitability as wilderness. . . but are not adequately protected. . .” Endangered Wilderness Act of 1978, Pub. L. 95-237(1)(a)(1), (2) (1978). Among the lands “immediately threatened” by “uses inconsistent with the protection, maintenance, restoration, and enhancement of their wilderness character” are “lands not being adequately protected or fully studied for wilderness suitability by the agency responsible for their administration.” Pub. L. 95-237(1)(a)(4).
As discussed below, during hearings on the Endangered Wilderness Act, Congress criticized Forest Service’s restrictive interpretation of the definition of wilderness, especially the “sights and sounds” criteria. These acts show that Congress wants the Forest Service, especially the eastern regions, to “promptly” protect these wild areas by making wilderness recommendations to Congress. The Southern Region and the National Forests in Alabama in particular have failed to do so. Further, the Forest Service has ignored Congress’ interpretation of the definition of “wilderness,” despite numerous examples of areas which qualify as wilderness in these and other acts designating wilderness areas and despite Congressional criticism of the agency’s erroneous, overly-restrictive interpretation.
As mentioned above, the Forest also failed to “ground-truth” its inventory decisions, especially its evaluation of “solitude” and the identification of “improved” roads in areas proposed for inclusion in the inventory. Thus, numerous areas which clearly met even the unlawfully stringent criteria issued by the Region were erroneously and arbitrarily dropped from the roadless inventory. The Forest ignored the numerous comments of Appellants and others pointing out these clear errors.
Areas wrongly excluded from the inventory were never considered for a wilderness recommendation, despite the statement that these areas could be considered. This is included in Regional Design Criteria; may be included also in a letter from region;
17 I’ll look. Further, the FEIS failed to disclose and discuss the effects of the Plan on these wild areas, in violation of NEPA.
The Forest Service must reopen its roadless inventory and reconsider areas wrongly excluded from the inventory. We enclose a list of areas which meet the roadless criteria and which must be included in the inventory.
The Failure to Disclose and Consider Impacts on Areas Arbitrarily Dropped from the Roadless Inventory Violates NEPA.
In many cases areas (or parts of areas) which meet the roadless criteria are slated for active management inconsistent with their roadless values and their value for outstanding backcountry recreation. The public identified these areas, documented their value for solitude and backcountry recreation, and urged the agency to include them in the inventory. The agency even promised that it would pay special attention to areas identified by the public but left out of the inventory in allocating management prescriptions and in other Plan decisions, recognizing the “unique characteristics and deserve special attention. . .” Estill to Kirby, Oct. 22, 1998, at 1. Yet these areas are nowhere identified in the FEIS or the Plan. The failure to reveal and consider the impacts of the Plan on these areas violates NEPA.
Regional Guidance as Implemented by the Forest Violated the APA.
Agency interpretations of statutes must be reasonable. Although the agency interpretation is entitled to deference, it will be overturned when it is inaccurate. The Region’s interpretation of the term “solitude” in the Wilderness Act is not accurate and essentially seeks to create new substantive requirements for roadless areas without complying with the APA’s rulemaking process and without public notice and comment. It is clear the Forests applied Regional criteria to the roadless inventory. Thus Regional guidance and the roadless inventory are void.
The Wilderness Act defines “wilderness” as follows:
“A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act [16 USCS § § 1131 et seq.] an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may
18 also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.” 16 U.S.C. § 1131(c).
The Forest Service Handbook 1909.12, Chapter 7 “Wilderness Evaluation” describes the process for “identifying and evaluating potential wilderness in the National Forest System.”2 According to Section 7.11, “[r]oadless areas qualify for placement on the inventory of potential wilderness if, in addition to meeting the statutory definition of wilderness,3 they meet one or more of the following criteria:”
1. They contain 5,000 acres or more 2. They contain less than 5,000 acres but are manageable as wilderness, are self- contained ecosystems such as islands, or are contiguous to existing wilderness or roadless areas. 3. They do not contain improved roads, except as permitted in areas east of the 100th meridian (where the threshold of ½ mile of improved roads per 1,000 acres applies).
Section 7.11b describes criteria for roadless areas in the east, “recognizing that much, if not all the land, shows some signs of human activity and modification.” All of the criteria in these two sections serve to expand, not shrink, the potential acreage in the roadless area inventory by allowing a certain amount of development to occur. Even criterion 7.11b(4)—which states “consider the relationship of the area to sources of noise, air and water pollution, as well as unsightly conditions…”— recognizes that a certain amount of disturbance may occur nearby and does not necessarily limit or define a boundary to potential acreage.
The FSH provides the generally accepted criteria for roadless areas in the East. See, e.g., Forest Service Roadless Area Conservation DEIS, Volume 1, Glossary at G-6 (“For roadless areas in the eastern United States, see FSH 1909.12, Chapter 7.11b.”).
Several times Regional guidance misquoted the Wilderness Act to require “solitude and a primitive and unconfined type of recreation.” (emphasis added). Joslin to SAA Supervisors, April 17, 1995, at 1; Joslin to Supervisors, May 19, 1995, at 6. In practice, the agency adopted this incorrect definition of wilderness. The May 1995 letter was supposed to consolidate previous guidance into one authoritative document, which made this misstatement all the more damaging.
Rene Voss of the Georgia Chapter of the Sierra Club wrote to the Ecosystems Management Staff in the Washington office of the Forest Service regarding this erroneous direction and received a reply from the Southern Region. The Region claimed that, despite this twice-repeated “typing error,” the overall direction of the letter did not suggest that an area must provide both of these values. Joslin to Voss, Jan. 12, 1996 at 2. The Region also claimed that by copying the forests on the letter it was rectifying this “typographical error.” This mistake was never corrected, however. The forests continued to require that areas provide solitude and primitive and unconfined
2 All quotes in this section, unless otherwise noted, are from the FSH 1909.12,7. 3
19 recreation, as evidenced by the repeated use of “solitude and” in the Response to Comments on the DEIS for the Revised LMRP.
As a result of this mistake, the Region and the forests focused on “solitude” (and the road density requirement) as the two main criteria for roadless areas. The Region instructed forests to use the ROS semi-primitive criteria to quantify solitude and never discussed the “primitive and unconfined recreation” element. As a result the forests never considered the many outstanding opportunities for this type of backcountry recreation provided by many areas left out of the inventory.
The FSH provides that this type of recreation includes “camping, hunting, fishing, mountain climbing, ski touring, canoeing, boating, river rafting, backpacking, hiking, riding, photography, and other outdoor activities.” FSH 1909.12-7.21(3). There are many outstanding opportunities for this type of backcountry recreation outside of the core of semi-primitive acres, as the region defines it under ROS. “For example, many beautiful miles of the Appalachian Trail traverse the steep 2,344 acre Thunder Ridge Wilderness on the Jefferson National Forest and offer outstanding backcountry recreation, even though not an acre of this designated wilderness (that was recommended last decade by the Forest Service) is inventoried as “semi-primitive” under ROS.” SAFC, TWC, SELC to Glickman, Oct. 3, 1997.
The 2,500 Acre Semi-Primitive Core
Not only did the Region focus exclusively on solitude as a requirement, but the Region instructed the forests to use the ROS semi-primitive non-motorized (SPNM) criteria to quantify solitude. Joslin to Supervisors, Oct. 25, 1994, attachment at 6. Although the Region made clear that the ROS criteria were supposed to be used as a “screen” and a “guide,” in many cases Forest planners used the ROS criteria as an absolute requirement. See Joslin, May 19, 1995, attachment at 6. The Region recognized that “the criteria used for identifying roadless areas are different than the rationale in identifying areas for a “semi-primitive” management emphasis.” Joslin to Loesel, Aug. 9, 1995, at 5. The forests were to use their own professional judgment and knowledge of the area to determine whether the area provided solitude. Joslin, May 19, 1995, attachment at 6. However, Forest planners often used the ROS criteria as a minimum requirement, without exercising their judgment to determine whether the area provided opportunities for solitude.
The application of ROS guidance has gone far beyond its intended purpose. As stated in a letter to Secretary Glickman (with copies to the Chief, the Regional Forester and others) by Southern Appalachian Forest Coalition, The Wilderness Society, and Southern Environmental Law Center on October 3, 1974:
However, the ROS “semi-primitive core” has been used far beyond its intended purposes and limits; the result has been that many areas fully qualified as roadless were arbitrarily dropped. To begin with the Regional
4 SAFC, TWS and SELC letter of 10/3/97.
20 Forester originally instructed that these cores were desirable, not essential. Yet many planners viewed them as strict requirements and dismissed many tracts as not roadless because the cores did not have “sufficient” acres or a “suitable” shape – even where the areas dropped passed the requirements for naturalness and road density found in the Forest Service Handbook.
Moreover, contrary to national guidelines for ROS, planners in the Southern Appalachian region pulled back to semi-primitive boundaries a half-mile from closed roads that receive limited or no vehicle use and do not intrude on backcountry recreationists. As a result, semi-primitive cores were frequently underestimated in size and shape. Hence, it became doubly arbitrary to delete areas because cores had insufficient acres of nonsuitable shapes.
Furthermore, despite repeated requests, the forest Service has failed to document that in the heavily forested and rugged Southern Appalachians that the half-mile pullback from a road for semi-primitive acres is essential to provide for solitude and backcountry recreation. Indeed, the one agency study in the region that we located and submitted to the Forest Service failed to support this key assumption about a half-mile pullback. (Moreover, the use of the half-mile pull-back from roads has resulted in inadequate and unmanageable boundaries for many inventoried roadless areas.)
Despite these serious flaws, the Forest Service deleted many areas that otherwise qualified as roadless due solely to the claimed absence of adequate semi-primitive “cores.” On the Chattahoochee National Forest, for example, the Forest Service failed to identify the following areas as roadless for this reason: Grassy Mountain, Moccasin Creek, Three Forks, Duncan Ridge, Horse Gap, Windy Gap and others.
Indeed, in many instances, the Forest Service deleted areas as roadless for lack of adequate solitude or backcountry recreation even though existing forest plans expressly direct for those areas to provide semi-primitive solitude and recreation. Examples include Lynn Camp Creek on Jefferson National Forest; Iron Mountain on the Cherokee National Forest; Moccasin Creek on the Chattahoochee National Forest, and others. In fact there is an area (an 2,000 acre extension to Ellicott Wilderness on the Sumter National Forest in South Carolina) that the Forest Service previously studied and recommended for wilderness designation that they now find is not roadless, despite the complete lack of any roading or logging since he previous study.
Finally, the Forest Service has consistently overlooked the plain language of the Wilderness Act that areas qualify if they have “outstanding opportunities for solitude or a primitive and unconfined type of recreation”. Section 2(c). There are many outstanding opportunities for backcountry recreation outside of the core of semi-primitive acres, as the region defines it
21 under ROS. For example, many beautiful miles of the Appalachian Trail traverse the steep 2,344 acre Thunder Ridge Wilderness on the Jefferson National Forest and offer outstanding backcountry recreation, even though not an acre of this designated wilderness (that was recommended last decade by the Forest Service) is inventoried as “semi-primitive” under ROS.
The agency excluded many areas that otherwise qualified as roadless due solely to the claimed absence of adequate semi-primitive “cores.” On the National Forests in Alabama, for example, the Forest Service failed to identify Brushy Fork as roadless for this reason.
Application of the 2,500 acre semi-primitive core to wilderness additions was especially egregious. This appears to be an erroneous interpretation of Regional guidance related to the road density requirements for possible additions to existing areas. Joslin to Supervisors, May 19, 1995, attachment at 4. Other additions were never included in the inventory for this reason, including the Sipsey Headwaters.
Regional guidance also made clear that “close consideration” must be given when the SP core caused RARE II areas and areas larger than 5,000 acres to fall out of the inventory. Joslin, May 19, 1995 attachment at 6.
Also, according to wilderness historian Doug Scott, of Campaign for America’s Wilderness, a perceived lack of “solitude,” if used to constrain the size of areas to be evaluated for wilderness (in agency land use planning analyses) constitutes the use of erroneous criteria that pose the danger of unfairly misleading the public or even of preempting the prerogatives of Congress.
Many of the Roads Deemed “Improved” Are Actually Not Passable By Any Vehicle.
Road density was the second main criteria used by the FS. The FSH provides that roadless areas in the East may contain ½ mile of improved road for each 1,000 acres. FSH 1909.12-7.11(b)(5). The Wilderness Act itself does not require this limit on roads. An “improved road” is a road “maintained for travel by standard passenger-type vehicles. . .” FSH 1909.12-7.11(3). Regional guidance further provided that an improved road “has a definable, constructed cross-section, is properly drained. . . and is useable by most vehicle types.” Joslin, May 19, 1995, attachment at 9.
For Maintenance Level 1 and 2 roads, “the actual condition of the road are what make the determination as to whether or not it is an ‘improved’ or ‘unimproved’ road.” Joslin, May 19, 1995, attachment at 9 (emphasis in original). These roads are unimproved if they are not “currently being maintained” for use. Id.
The Forest Service wrongly assumed that all system roads were “improved roads.” The FSH and Regional guidance make clear that system road is not synonymous with improved road and that an on-the-ground determination must be made. See also
22 Joslin to Loesel, Aug. 9, 1995, at 3 (forests will “ground-truth” determination of “improved” road).
The Forest Service never verified its determinations. As the Forest admitted, the “first decision” regarding an area proposed for inclusion in the roadless inventory was made “based solely on road density.” This work was done “in-office,” not in the field.
The accuracy of these determinations is especially questionable because at the time the Forest submitted the inventory to the SAA, the forest-wide Roads Analysis was not complete. Thus, even at the “in-office” level, the Forest was not working with the most up-to-date information. Further, it is arbitrary that the forest-wide Roads Analysis prepared for the plan revision does not consider ML 1 and 2 roads, but these roads were considered in the roadless inventory and were used as a basis for excluding areas from the inventory. Many of these roads are not maintained and should be permanently closed.
These erroneous determinations may have resulted from inconsistent and improper Regional guidance on the definition of “improved road.” Despite the Region’s clear direction that the actual conditions determined whether the road was improved or not, the Region also issued guidance which deviated from the FSH definitions.
According to the Region, ML 1 and 2 roads may be “improved” even if they are passable only by high-clearance vehicles. We disagree that “standard passenger-type vehicles” includes high-clearance vehicles such as pickup trucks and 4x4s. See id.
The Region also ignored the FSH requirement that improved roads must be “maintained” for use. Regional guidance allowed roads to be listed as “improved” if “the long-term intent is to open the road and maintain its use” or if “there is scheduled maintenance” for the road. Joslin, May 19, 1995, attachment at 10. This does not meet the requirement that a road must be “maintained” for use. Moreover, this ignores the massive backlog in road maintenance. Regardless of whether there is a maintenance schedule for the road, and regardless of the long-term intent for the road, it is likely that an impassible road will never be repaired. This is why the FSH requires that the road currently be maintained and why some of the Regional guidance quite correctly instructs that the actual condition of the road is the determining factor. The Region’s more expansive definition is unfounded.
The definition of improved road used by the Jefferson National Forest is more consistent with the FSH and should have been used by all the forests. “If a car could drive down” the road, the Jefferson called it improved. Hugh Irwin to John Ramey, Feb. 28, 1995 at 1. If the road was not passable by “a sedan-type vehicle” then it was “unimproved.”
Failure to Verify Inventory Decisions.
The Regional Forester was clear that the inventories used in the Southern Appalachian Assessment are not complete “in terms of what is required for the
23 revision of Land and Resource Management Plans.” Id. at 2. The Regional Forester recognized that the inventories may “require additional ground-truthing, boundary adjustments, and the addition of other areas. . .” Id. at 2. Further “ground-truthing” to identify “improved” roads was supposed to continue. Id. at 3. In most cases this additional, necessary work to meet the requirements for Plan revision simply did not occur. Inventory decisions simply were not verified on the ground.
Further, it appears that on the National Forests in Alabama decisions made in the roadless inventory were never revisited. Despite our objections at every stage of the roadless inventory process, the agency suggests that there were no significant new issues or concerns identified during the public process for the initial roadless inventory. It appears that the Forest Service did little or no work to verify the accuracy of its roadless inventory after it submitted the tentative inventory to the Region for use in the SAA.
Improper Consideration of “Sights and Sounds.”
Above and beyond the ROS semi-primitive core requirements in the roadless inventory, forests eliminated areas from the inventory based on “sights and sounds” Regional guidance instructed the forests to “locate boundaries so as to shield the area from the external sights and sounds of civilization.” Joslin, May 19, 1995, attachment at 7. This letter included numerous instructions regarding the delineation of boundaries that was not appropriate at the inventory stage and creates requirements for “manageability” that does not reflect Congressional intent.
Again, from the SAFC, TWS, and SELC letter of October 3, 1997:
In many instances across the region, the Forest Service dropped areas that fully met the requirements for road density, naturalness and other criteria because “sights and sounds” from outside the boundaries could be perceived by users within the area. For example, they rejected the Flats Mountain area that is a logical extension to Citico Creek Wilderness on the Cherokee National Forest and cited the sounds of recreation from a lake outside the area.
On the Jefferson National Forest, they also rejected the 5,000 acre Wilson Mountain area and pointed to the sights and sounds of a railroad, houses and highway in a valley on one side of the area.
In relying on this reason to eliminate areas even from study, the Forest Service acts contrary to long-standing direction from Congress.
From Doug Scott’s paper5:
“ . . . when some agencies misapplied this aspect of the Wilderness Act to assert that outside sights and sounds led them to judge lands not qualified for
5 Doug Scott. 2003. Ibid
24 wilderness, Senator Frank Church (D-ID), who had been the floor manager when the Senate debated and passed the Act, reminded them of Sen. Murray’s definitive explanation at a Senate hearing:
The Wilderness Act calls for the designation of suitable wild lands which are of wilderness “character.” This term “wilderness character” applies only to the immediate land involved itself, not to influences upon it from outside areas. This point was specified precisely in an early amendment to the wilderness bill. * * * What [Sen. Murray’s 1960] amendment6 made clear is that the suitability of each acre of possible wilderness is to be ascertained on the basis of that wilderness entity, not on the basis of insubstantial outside influences. Sights and sounds from outside the boundary do not invalidate a wilderness designation or make threshold exclusions necessary, as a matter of law.7
Although the intent of Congress is clear, the agency persisted in using the erroneous sights and sounds criteria. During Subcommittee Hearings for the 1978 Endangered American Wilderness Act:
“ . . . many areas, including the Lone Peak [outside Salt Lake City] …, received lower wilderness quality ratings because the Forest Service implemented a “sights and sounds” doctrine which subtracted points in areas where the sights and sounds of nearby cities (often many miles away) could be perceived from anywhere within the area. This eliminated many areas near population centers and has denied a potential nearby high quality wilderness experience to many metropolitan residents, and is inconsistent with Congress’ goal of creating parks and locating wilderness areas in close proximity to population centers. The committee is therefore in emphatic support of the Administration’s decision to immediately discontinue this “sights and sounds” doctrine.8
During Senate hearings on the Endangered American Wilderness Act, Dr. M. Rupert Cutler, the Assistant Secretary of Agriculture, assured the Senator Pete Domenici (R-NM) that:
6 In July 1960, Senator James Murray (D-MT), introduced a new revision of the Wilderness Bill he had earlier introduced. Senator Murray was the lead sponsor and the chairman of the committee handling the bill; his stated intent is definitive legislative history. In introducing his revised version of his own bill, he carefully explained to the Senate a key word change: ‘In the opening sentence of the bill change the word “environment” (line 9) to “character”. . . The word “character” is substituted because “environment” might be taken to mean the surroundings of the wilderness rather than the wilderness entity’. Doug Scott at 11, citing S. 3809, 86th Congress. 7 Scott at 11-12, citing Preservation of Wilderness Areas, Hearings before the Subcommittee on Public Lands, Committee on Interior and Insular Affairs, U.S. Senate, on S. 2453 and Related Wilderness Bills, May 5, 1972, page 59, emphasis added. 8 Scott at 12, citing House Report 95-540, 95th Congress, July 27, 1977, page 5.
25 there is no reference in the Wilderness Act to criteria for wilderness that includes such things as the sights, sounds, and smells of civilization which is a set of criteria which has been misapplied to wilderness areas.9
Similarly the agency ignores the purpose of legislation such as the 1975 Eastern [Areas] Wilderness Act that aimed at the preservation of wilderness close to population centers. This act featured Congressional finding of the “urgent need” to find, study and include eastern areas as wilderness. Hence the use of outside “sights and sounds” to delete areas from the roadless inventory is especially inappropriate in the east.
Congress has in the past often placed wilderness boundaries right up to roads and other human development without the use of a setback or buffer. See Scott at 9- 10, 12-13. Clearly not every acre of a wilderness area must be isolated from human disturbance and protected from human sights and sounds. Congress clearly rejected the use of buffers around wilderness areas and instead often provides for buffers within the boundary of the area. Scott at 9. This also shows that it is improper to shrink the roadless areas with setbacks from roads.
Improper Consideration of Boundaries in the Inventory Process. Not only did the Forest Service use the wrong criteria for determining boundaries of areas proposed for inclusion in the inventory, but considerations of boundaries and manageability are not part of the roadless inventory but rather are properly considered in the evaluation process (Step 2). The FSH and Regional guidance on roadless inventories make clear that inventory and evaluation are two separate steps. FSH 1909.12-7.1 & 7.2. “At this point [inventory process], the objective is not to determine if a particular area should be recommended for wilderness – that comes later in the planning process – but only if an area should be included on the roadless area list for future consideration as wilderness.” Robert C. Joslin, Regional Forester, to Forest Supervisors, Oct. 25, 1994, at 4 (attached).
Moreover, these boundary issues are more properly considered in the wilderness evaluations, “Step 2” of the process. The Region was “concerned that the location of a boundary could cause an area to fall out of the inventory.” Robert C. Joslin, Regional Forester, to James E. Loesel, Aug. 9, 1995, at 5 (attached). The Region emphasized that the purpose of the inventory is not to identify the exact location of the boundaries.” Id. The “exact location of the boundaries will be addressed when the Forests evaluate the roadless areas for their manageability.” Id. The Region wanted to “ensure” that it is “not just the location of a boundary that causes an area to fall out of the inventory.” Id. However, this is exactly what happened to numerous areas.
Lack of Consistency in Roadless Inventories In the Southern Region.
9 Scott at 12, citing Endangered American Wilderness Act of 1977, Hearings before the Subcommittee on Parks and Recreation of the Committee on Energy and Natural Resources, United States Senate on S. 1180, September 19 & 20, 1977, Publication No. 95-88, Committee on Energy and Natural Resources, page 41.
26 Criteria for delineation of roadless areas for the SAA inventory was not consistent across the region. This resulted in the “biased, inconsistent inventory” the Region supposedly wanted to avoid. Robert C. Joslin, Regional Forester, to James E. Loesel, Aug. 9, 1995, at 3 (attached). At least one forest (Sumter) used a computer generated “core area” criterion that eschewed a topography-based, common sense approach and instead employed a highly exclusive computer driven methodology. This effected an arbitrary and premature delimiting of roadless areas on the Andrew Pickens District of Sumter NF that was not consistent with other methods employed in the region. The Southern Region suggested this process was an “appropriate one to develop a starting point for the inventory.” Robert C. Joslin, Regional Forester, to James E. Loesel, Aug. 9, 1995, at 4.
Regional guidance was also inconsistent. The Region initially stated flatly that the ROS semi-primitive non-motorized class should be used to determine “solitude.” Joslin to Supervisors, Oct. 25, 1994, attachment at 6. Later guidance directed forests to use the ROS semi-primitive motorized class as well as the SPNM class. Joslin to Supervisors, May 19, 1995, at 6. It is doubtful the forests adjusted their inventories following the May 1995 guidance.
The Forests also defined “improved” roads very differently, as seen by the agency’s assumption that all system roads were improved, compared to the Jefferson’s correct interpretation that improved roads must be useable by sedan-type vehicles.
Areas Which Must Be Included In the Roadless Inventory.
The Final Plan specifically states that our suggestions and information on new areas for the Roadless Inventory were NEVER analyzed at all, in complete violation of NEPA. The areas in Alabama Mountain Treasures were repeatedly submitted to the agency, but the Forest Service ignored those suggestions completely.
We specifically provided information to the Forest Service on additional roadless areas and why they should be included in the inventory. The Final Plan specifically states that our suggestions and information on Brushy Fork and Mayfield Creek areas were NEVER analyzed at all, in complete violation of NEPA. “The non-roadless Brushy Creek Area was not assigned wilderness study or a wilderness friendly prescription in any of the alternatives.” (FEIS Appendix J, at J-30.) “The non-roadless Mayfield Creek Expansion of Reed Brake was not assigned wilderness or wilderness friendly prescriptions in any of the alternatives.” (FEIS Appendix J, at J-31.) “Neither the roadless analysis conducted in 1995 nor the revision in 1997 found the Brushy Lake Area or the Mayfield Addition to Reed Brake to meet the roadless inventory criteria. This analysis may be reviewed as part of the project record.” (FEIS Appendix J, at J-112.)
27 Regional Guidance on the Roadless Inventory did not comply with FSH 1909.12, Chapter 7.1. “Improved Road” is not defined anywhere, and its use to exclude areas from the Roadless Inventory is arbitrary and capricious.
Regional Guidance on Roadless Inventory (to the extent it was valid) was not followed. Improved road is defined as passable by a car, but impassable roads used to disqualify areas.
Roads Analysis Report (Dec. 2002) only considered only Level 3, 4 and 5 roads, but the Roadless inventory used lesser roads (Level 1 and 2) to knock areas out. This is inconsistent and arbitrary.
The Forest Service improperly used wilderness recommendation evaluation criteria to exclude areas from the Roadless Inventory; this is using Step Two (Wilderness Evaluation) to decide Step One (Roadless Inventory). Having an area in the roadless inventory has tremendous legal implications; most importantly, it is the roadless inventory where lands considered for possible designation as wilderness under the Wilderness Act get that consideration. The Forest Service Handbook (FSH) 1909.12 Chapter 7 details the administrative process for potential wilderness recommendation, “This chapter describes the process for identifying and evaluating potential wilderness in the National Forest System.” FSH 1909.12 Chapter 7, Introduction. The FSH continues, “The first step in the evaluation of potential wilderness is to identify and inventory all roadless, undeveloped areas that satisfy the definition of wilderness found in section 2 of the 1964 Wilderness Act.” FSH 1909.12, 7.1. Chapter 7 requires that the inventory of potential wilderness include all roadless lands which meet the minimum qualifications for wilderness designation. FSH, 1909.12, ch. 7, 7.11. Areas outside the agency’s roadless inventory rarely get considered for wilderness designation.
The Roadless Rule, 36 C.F.R. § 294.12 Subpart B “Protection of Inventoried Roadless Areas”, provides legal protections for all areas in the roadless inventory for future possible agency actions. The roadless review process includes three general steps: 1.) Update the inventory and identify roadless lands; 2.) Evaluate roadless areas for their wilderness values; and 3.) Recommend in the Forest Plan certain roadless areas, if any for wilderness designation by Congress.
Forty years after Congress expressed intent to “secure for the American people of present and future generations the benefits of an enduring resource of wilderness” (16 U.S.C. § 1131(a)), we remain at step one of the administrative process for wilderness recommendation – i.e. the Inventory. The Forest Service has promulgated rules, issued adjudicative decisions, and drafted guidance documents refining the step-one inventory process. However, the Forest Service continues to arbitrarily change or fail to follow its rules so that it may achieve other goals. As the Forest Service unilaterally implements its own arbitrary policy for America’s public lands, Congress’ vision remains unfulfilled.
To justify the exclusion of areas such as Brushy Fork and Mayfield Creek, the Forest Service engaged in an illegal use of the Step Two Evaluation criteria in the Step
28 One Inventory stage. The Forest Service illegally excluded these areas from the roadless inventory without required public process; and the Forest Service ignored its own criteria to identify roadless areas. In order to accomplish each, the Forest Service changed the rules by which it is supposed to delineate roadless areas in order to make the results fit what it wanted to do.
On its face, 36 C.F.R. § 219.17 requires in plain, clear language that inventories be carried out through the Forest Plan revision process: “Unless otherwise provided by law, roadless areas within the National Forest System shall be evaluated and considered for recommendation as potential wilderness areas during the forest planning process….” (emphasis added). The regulation later provides that “other essentially roadless area may be subject to evaluation at the discretion of the Forest Supervisor.” 36 C.F.R. § 219.17 (a)(1)(i). This latter statement clearly empowers the Forest Supervisor to add roadless lands that were not included in an earlier inventory: it does NOT authorize the Forest Supervisor to drop previously inventoried lands.
The regulation states in entirety: “Unless otherwise provided by law, roadless areas within the National Forest System shall be evaluated and considered for recommendation as potential wilderness areas during the forest planning process, as provided in paragraphs (a)(1) and (a)(2) of this section.” 36 C.F.R. § 219.17(a) (emphasis added). Paragraph (a)(1) combined with its sub-part, (a)(I)(i), states:
“During analysis of the management situation, the following areas shall be subject to evaluation: (i) Roadless areas including those previously inventoried in the second roadless area review and evaluation (RARE II), in a unit plan, or in a forest plan, which remain essentially roadless and undeveloped, and which have not yet been designated as wilderness or for nonwilderness uses by law. In addition, other essentially roadless areas may be subject to evaluation at the discretion of the Forest Supervisor.”
Upon close examination, the FSH three-step procedural structure fits flawlessly with the structure of the regulation it implements, which demands that “roadless areas within the National Forest System shall be evaluated and considered for recommendation [corresponding to FSH 1909.12 Chapter 7 stage two and stage three respectively] as potential wilderness areas during the forest planning process.” 36 C.F.R. § 219.17. Stage two and stage three of the Forest Service’s wilderness review process, therefore, may occur only as a part of the Forest Plan revision process. And since the regulation clearly demands that “previously inventoried” areas “shall be subject to evaluation,” previously identified potential wilderness areas “which remain essentially roadless and undeveloped,” cannot be dropped from the inventory prior to the Forest Plan revision process.
According to the Forest Service’s three-step approach, as outlined at FSH 1909.12 Chapter 7, evaluation of potential wilderness does not occur until step two of the agency’s wilderness recommendation process. In order to remain “subject to evaluation,” as 36 C.F.R. § 219.17(a)(1) requires, “previously inventoried” potential wilderness must
29 be managed to maintain its wilderness potential at least until the evaluation stage. Therefore, “previously inventoried” potential wilderness areas, “which remain essentially roadless and undeveloped,” cannot be dropped at stage one, i.e. during the inventory process. The law requires that they remain “subject to” stage two evaluation.
Therefore according to its own rules and procedures, which interpret the regulation, the Forest Service may not remove previously inventoried potential wilderness areas or exclude qualifying roadless areas prior to the Forest Plan revision process: they must remain “subject to evaluation” during stage two of the agency’s wilderness recommendation process. 36 C.F.R. § 219.17(a)(1). Nonetheless, in preparation for this Plan revision, the Forest Service refused to consider areas, including a RARE II Area (Brushy Fork) as part of the Roadless Inventory, based not on Stage One Inventory analysis but on Stage Two Evaluation analysis; that was clearly improper and arbitrary.
36 C.F.R. § 219.17(2) emphasizes the need for public participation in the evaluation process: “For each area subject to evaluation under paragraph (a)(1) of this section, the determination of the significant resource issues, which in turn affect the detail and scope of evaluation required by the Forest Service, shall be developed with public participation.” (emphasis added). Roadless areas previously inventoried as potential wilderness are among the areas which shall remain “subject to evaluation under paragraph (a)(1).” Therefore, 36 C.F.R. § 219.17(2) requires public involvement in the determination of significant resource issues for all previously inventoried potential wilderness areas.
Regulations and agency rules both require public participation in the process of identifying roadless lands for inclusion on the inventory of potential wilderness. Previously inventoried potential wilderness must remain “subject to” evaluation for recommendation as potential wilderness, i.e. stage two of the FSH three-step process. The evaluation process is to occur as a part of the Forest Plan revision process, which is designed to include a level of public participation recognizing the exceptional public interest in this issue. Rather than involve the public in the evaluation of these previously inventoried lands, the Forest Service excluded the public by arbitrary excluding areas such as Brushy Fork and Mayfield Creek prior to inception of Forest Plan revision process and without notifying anyone of the intent to change the rules. APA doctrine, NEPA, and NFMA’s planning process all demand otherwise.
Had the Forest Service involved the public in their inventory analysis effort, its results might accurately reflect on-the-ground reality. Disturbingly, however, the Forest Service not only avoided an appropriate level of public participation, but also never confirmed its inventory analysis effort with on-the-ground information. As a result, the Roadless Inventory effort, which was achieved through illegal process as explained above, fails to correspond to Forest Service criteria for designating inventory areas. That failure derives from the fact that the Forest Service did not confirm its efforts with on- the-ground information as well as the fact that the Forest Service misapplied its criteria to achieve its own agenda. “Agencies are under an obligation to follow their own
30 regulations, procedures, and precedents, or provide a rational explanation for their departure.” Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1165 (10th Cir 2002).
Using boilerplate language to “analyze” and reject area after area as proposed wilderness is arbitrary and not NEPA compliance. It is not enough to make “conclusory” or “perfunctory references” to cumulative impacts or to continue to use the same boilerplate language throughout the EIS. Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298-99 (D.C. Cir. 1988). Cumulative effects analysis requires “some quantified or detailed information. . .” Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372, 1379 (9th Cir. 1998). “General statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Id. at 1380.
The Forest Service did not follow guidance and the FSH in rejecting Mayfield Creek and Brushy Fork as roadless areas. As stated in the Response to Comments:
“Since the ROS Book states that semi-primitive areas contain at least 2,500 acres (unless they are contiguous to primitive class lands), this 2,500-acre minimum size can be used as a screen to evaluate areas identified and mapped by either the forest or the public. This 2,500-acre screen does not apply to additions to existing wildernesses.
“However, it is important to recognize that this 2,500-acre semi-primitive ‘core’ size is not an absolute minimum. It is only a screen and as such is only used as a guide. Some areas above or below this size may or may not provide solitude. For these areas, look closely at topography, proximity to type and use of roads, population centers and other sights and sounds of human activity to determine if solitude and primitive and unconfined recreation could be experienced. This is a professional judgment based on knowledge of the area.” (AL FEIS Appendix J at J-113.)
This “professional judgment” was never applied to Mayfield Creek and Brushy Fork and their unique landscape features that provide quiet even close to roads.
Rejection of our Alternative W was cursory. The FEIS Appendix J, at J-30 states:
“2-5. Public Concern: The Forest Service should consider the Alabama Wilderness Alliance’s Alternative W.
“Response: Every roadless area was evaluated for potential wilderness study status. In addition to the roadless areas, the Thompson Creek Area of the Bankhead National Forest and the Rebecca Mountain Area of the Talladega Ranger District were considered for wilderness study status in Alternative E. The Dugger Mountain Expansion Area was considered for wilderness study status in Alternative G. These non-roadless were considered due to the known
31 strong interest of some citizens. Wilderness advocates agree there is not enough wilderness in Alabama, but this is not unique to wilderness. All National Forest resources are limited. The difficulty is application of the appropriate allocations towards the various demands.”
Appendix C: Evaluation of Roadless Areas has NO ANALYSIS whatsoever on Brushy Fork or Mayfield Creek (Reed Brake Expansion), both areas we provided extensive and detailed information on.
Appendix C has nothing on areas that were not in the 1997 Roadless Area Inventory. It also has nothing on suggested areas, and nothing on areas that were actually suggested as wilderness in other alternatives (Rebecca Mountain and Bear Bay).
Management Prescription 12.C was not assigned to any roadless area or other area. The agency gave only a cursory rejection of this suggestion by us. (FEIS Appendix J, at J-101-102.) This is a failure to consider a viable alternative and a failure to respond to comments as required by NEPA and CEQ regulations.
The Plan did not comply with the Alabama Wilderness Act of 1988 (officially named the “Sipsey Wild and Scenic River and Alabama Addition Act of 1988”), which stated:
“(b) DETERMINATIONS. -- On the basis of such review, the Congress hereby determines and directs that --
“….
“(2) with respect to the National Forest System lands in the State of Alabama which were reviewed by the Department of Agriculture in the second roadless area review and evaluation (RARE II) and those lands referred to in subsection (d), that review and evaluation or reference shall be deemed for the purposes of the initial land management plans required for such lands by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976, to be adequate consideration of the suitability of such lands for inclusion in the National Wilderness Preservation System and the Department of Agriculture shall not be required to review the wilderness option prior to the revision of the plan, but shall review the wilderness option when the plans are revised, which revision will ordinarily occur on a ten- year cycle, or at least every fifteen years, unless, prior to such time the Secretary finds that conditions in a unit have significantly changed;”
Section 202, 100 P.L. 547; 102 Stat. 2736 (Oct. 28, 1998). That law required the agency to “review the wilderness option prior to the revision of the plan” for all RARE II areas, but that was not done for this plan revision.
32 The 2001 Roadless Rule was not adequately discussed in the Plan and FEIS, and there is absolutely no documentation on how the Plan will comply with it. Only the Jefferson Plan has something on this (Jefferson Final Plan at 3-311-13.) The Roadless Rule is briefly discussed in Alabama Plan at 3-32 and FEIS at 3-406 and 3-408. The Forest Service claims that 97% of all roadless areas are in prescriptions that protect their roadless characteristics (only part of Cheaha B (412 acres) would not be), and thus, they claim that the Roadless Rule would have no application, except for possibly Cheaha B. In reality 91% of roadless areas do not comply with the Roadless Rule, because prescription 12.A allows temporary roads and 12.A also allows logging and salvage. The prescription roadless areas are in allows “vegetation management” which could include logging. This shows that the claims of meeting the Roadless Rule do not meet the reality and why they should have considered our claim that these areas should be in 12.C.
On January 12, 2001, the Forest Service adopted the Roadless Area Conservation Final Rule (“Roadless Rule”), following the most extensive public involvement in the history of federal rulemaking. 66 Fed. Reg. 3243 (January 12, 2001). The Roadless Rule was developed “to protect and conserve inventoried roadless areas on National Forest System lands.” Id. at 3244. The Roadless Rule applies to 58.5 million acres of inventoried roadless areas, roughly one-third of all National Forest System lands. Id. at 3245. The Rule prohibits road construction, reconstruction, and logging within inventoried roadless areas on National Forest System lands, except in very limited circumstances. 36 C.F.R. §§ 294.12-13.
The Roadless Rule was initially to take effect on March 13, 2001. 66 Fed. Reg. at 3244. On January 20, 2001, however, President Bush “issued an order postponing by sixty days the effective date of all the prior administration’s regulations and rules not yet promulgated.” 66 Fed. Reg. 7702. “The effective date of the Roadless Rule was thus postponed until May 12, 2001.” Id.
Opponents of the Roadless Rule filed lawsuits in five different federal district courts to challenge the Rule. The Kootenai Tribe, the State of Idaho, and other private and county plaintiffs filed suit in Idaho in January, 2001. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1106 (9th Cir. 2002). The Idaho plaintiffs moved for a preliminary injunction against implementation of the Roadless Rule, before the Rule took effect. Id. A number of environmental groups intervened as defendants, on the side of the Forest Service, to defend the legality of the Roadless Rule. Id. In May, 2001, District Judge Lodge granted the plaintiffs’ motion for preliminary injunction, and enjoined implementation of the Roadless Rule. Id. at 1107. The intervening environmental groups appealed, but not the Forest Service. Id.
On December 12, 2002, the United States Court of Appeals for the Ninth Circuit reversed the district court’s decision, allowing the Roadless Rule to go into effect. Kootenai Tribe, 313 F.3d 1094. The Ninth Circuit found that the Forest Service fully complied with NEPA in developing and promulgating the Roadless Rule. Overall, the Ninth Circuit held that the Forest Service process for the Roadless Rule “abided the general statutory requirements of NEPA.” Id. at 1126. While the Ninth Circuit’s ruling
33 was in the context of a preliminary injunction, the decision still represents the law of the case and demonstrates the legality of the Roadless Rule. See 18B Wright & Miller, Federal Practice & Procedure § 4478.5 (2002) (“A fully considered appellate ruling on an issue of law made on a preliminary injunction appeal . . . does become the law of the case for further proceedings in the trial court on remand and in any subsequent appeal.”).
Despite the Ninth Circuit’s decision in Kootenai Tribe, the Forest Service’s position in the Plan and FEIS is that the Roadless Rule has been enjoined and is not in effect. (AL FEIS at 3-406.) In Wyoming v. U.S. Department of Agriculture, the State of Wyoming challenged the Roadless Rule, and a number of environmental organizations again intervened on the side of the Forest Service to defend the Rule. 277 F.Supp.2d 1197, 1203-04 (D. Wy. 2003). In a decision that directly conflicts with the Ninth Circuit decision, District Judge Brimmer found that the Forest Service violated NEPA and the Wilderness Act in promulgating the Roadless Rule. Id. at 1239. The Wyoming decision, however, is not binding within the Eleventh Circuit, where the decision maker for this Plan is. See e.g., Holland v. National Mining Ass’n, 309 F.3d 808 (D.C. Cir. 2002); Northwest Forest Resource Council v. Dombeck, 107 F.3d 897 (D.C. Cir. 1997) (A decision of the courts of one Circuit is not binding on the court of other Circuits). As with the Idaho case, the intervening environmental groups have appealed the Wyoming decision to the United States Court of Appeals for the Tenth Circuit, but the Forest Service has again chosen not to appeal.
In summary, the National Forests in Alabama are located within the Eleventh Circuit. A lower level court in a different Circuit has determined that the Forest Service violated the law in developing the Roadless Rule, in a decision that directly conflicts with a Ninth Circuit decision and is currently being appealed. The Wyoming decision is not binding on the National Forests in Alabama, and the Forest Service must instead follow the Roadless Rule in adopting this Plan.
This lack of new wilderness recommendations is even more nonsensical when the Plan admits the need for significant new wilderness acreage in the National Forests in Alabama. “Participation rates and trends in wilderness indicate a continued increase in visitation to wilderness, climbing an estimated 171% by year 2050.” (AL FEIS Appendix C at C-29.) “Alabama contains approximately 1.43% of the land area of the United States. However, Alabama has only 0.04% of the National Wilderness Preservation System. This indicates an apparent under representation of wilderness.” (AL FEIS Appendix C at C-30.)
The Plan and FEIS for the National Forests in Alabama share many problems with the plans and FEISs for the other southern Appalachian forests being revised together with Alabama’s. Thus, much of the discussion in this section will cover all the draft plans and how they interact with the Alabama plan and the common failings in all the plans.
34 The plans and FEISs show a pronounced misread of the intent and provisions of the Wilderness Act that amounts to a prejudice against wilderness recommendations. This misinterpretation includes the guidance coordinating roadless inventory and wilderness evaluation put out by the region during the Southern Appalachian Assessment and during the planning process.
Inadequate Wilderness Recommendations
Lack of Clear Criteria for Determination of Wilderness Recommendations
Like many of the issues in the plan revision process wilderness and roadless issues were coordinated from a regional perspective for consistency in approach and coordination of efforts. However, the plan recommendations show a lack of follow- through by the region and the forests.
The region’s “Goals/Design Criteria for Developing the “Rolling Alternative" (3/13/2000 version – last available version) specified that: “For the initial development of the rolling alternative, most of the inventoried roadless areas adjacent to, or connected with, existing Wilderness areas (Wilderness Additions) should contain preliminary recommendations for Wilderness to enlarge existing Wilderness Areas and consolidate their boundaries.” It further states that: “Throughout the development of the rolling alternative, all of the inventoried roadless areas will be considered and evaluated for wilderness recommendations using the potential wilderness criteria.”
There was adequate follow through with the first part of this guidance with additions getting acceptable consideration for wilderness recommendations. However, there has been a clear bias against consideration of stand alone areas for wilderness recommendations. Recommendations were made (as early as Fall 1999 in the “rolling alternative” process) well before roadless evaluations were accomplished, prejudicing the NEPA process for arriving at a preferred alternative. Recommendations for “stand alone” wilderness were insufficient to meet wilderness need and demand even at the preliminary stage.
The final version of Alternative I showed a reduction in recommendations for wilderness additions across the region—in some cases, a marked reduction. Wilderness recommendations for stand alone areas also diminished even further. The lack of a logical rationale or justification for low wilderness recommendations, especially in light of obvious increases in wilderness demand, raises questions about the criteria and process used for stand alone determinations.
Recommendations were made (as early as Fall 1999 in the “rolling alternative” process) well before roadless evaluations were accomplished. Can you please indicate the rationale for this process and justifications for recommendations? This prejudging of wilderness recommendations demonstrates evidence of arbitrary and premature determinations that could have prejudiced the NEPA process for arriving at a viable preferred alternative.
35 Aside from guidance on wilderness additions we are not aware of any criteria developed or consistent direction provided to the forests to determine which roadless areas would or would not be recommended for wilderness in various alternatives. There is no apparent rationale in the plans and DEIS for selection of wilderness recommendations, particularly for stand-alone areas. Can you please show what criteria were used for these determinations and also please show any analyses used to determine the criteria?
There were never any criteria developed for why roadless areas would or would not be recommended for wilderness recommendations in various alternatives. There is an inadequate range of alternatives for wilderness recommendations in the alternatives and there is no rationale for the selection of wilderness recommendations in the draft plans. The roadless evaluations for the National Forests in Alabama (see discussion below)(as with the Chattahoochee/Oconee) are clearly incomplete in the DEIS and FEIS and failed to incorporate relevant information (e.g. existence of old growth and petitions on road density) provided by the public. It also appears that the wilderness evaluations are not related to the actual recommendations in any meaningful way.
Yet decisions were supposedly based in the draft on this inadequate and incomplete information. No stand-alone wilderness recommendations were made for Chattahoochee/Oconee, Sumter, or Alabama National Forests. Only one stand-alone wilderness recommendation was made for Cherokee. Only two stand-alone roadless areas are recommended for wilderness on the Jefferson National Forest out of 17 stand- alone roadless areas on the forest (an additional non-inventoried area is recommended for wilderness). While we unreservedly endorse and encourage the recommendation of all of these areas for wilderness, they are TOTALLY inadequate.
There are only four stand-alone wilderness recommendations in all the Southern Appalachian forests undergoing revision, and there is a clear prejudice against wilderness recommendations in the plans. The Southern Forest Resource Assessment projects tremendous increases in “backcountry” type recreation categories (SFRA 2002), much of which wilderness management would do the best job of providing.
In sum, there are now only 4 stand-alone wilderness recommendations in all the Southern Appalachian forests undergoing revision, a clear indication of prejudice against wilderness recommendations in the plans. Also, recommendations for stand alone wilderness areas that appeared in “rolling alternative” versions of Alternative I (Mountaintown and Kelly Ridge on the Chattahoochee, and Bee Cove on the Sumter) were removed from Alternative I after the public was told by forest planners that there would be no changes in wilderness recommendations, and after we had received assurances from the Regional Office that Alternative I would not “roll” any more prior to release of the DEIS. Can you please provide us with documentation to substantiate the rationale, analysis, and criteria behind these changes?
36 The FEIS Fails to Adequately Address Wilderness Capability, Availability and Need
The Forest Service Handbook10 requires planners to evaluate capability (Section 7.21), availability (Section7.22), and need (Section 7.23). The FEIS fails to adequately address capability, availability, and need as specified in the Handbook. While sections of Appendix C list factors that relate to capability, availability, and need there is no rationale evident that relates the factors listed to the decision for recommending or not recommending the areas for wilderness.
In Particular, the FEIS Fails to Adequately Address Wilderness Need
The Southern Forest Resource Assessment projects tremendous increases in many types of “backcountry” and nature oriented recreation categories. Also of significance is the key finding that:
The outdoor recreation supply potentials of public land will depend on policy evolution. On southern national forests, greater protection of roadless lands is likely, while at the same time recreation is increasingly finding its way to the tops of the priority lists of national forest managers. These trends are not as yet linked, but they should be by explicit policies.11
Wilderness management would do the best job of providing opportunities for this type of recreation. Yet the plans pointedly fail to deal with wilderness demand in the future (see discussion below on the Wilderness Supply/Demand analysis performed for the Cherokee, Chattahoochee/Oconee, Sumter, and Alabama forests found in their process papers but not documented in the FEIS). Increases in wilderness visitation (171% increase region-wide) are acknowledged in a Table of recreation activities included in the FEIS.12,13 However, it is important to note that the category cited in the FEIS: “visit wilderness or primitive area” is a broad category compared to most of the other categories that also show dramatic increases. Thus wilderness demand would be greater than implied under the discussion of recreation demand. There can be no doubt that some of the other categories that also show dramatic increases (including backpacking - 171% increase, view/photograph nature – 86% increase, view natural vegetation – 86% increase, day hiking – 94% increase, etc.) will also be partially or primarily in wilderness.
These figures clearly establish a trend of increasing demand for wilderness in this burgeoning region. These clear indications of increasing wilderness demand were disregarded by agency planners and were inadequately addressed in the FEIS. The failure to address increases in wilderness demand trends shows a disregard for provisions in the
10 FSH 1909.12. Land and Resource Management Planning Handbook. 11 Cordell, H. Ken and Michael Tarrant. 2002. Southern Forest Resource Assessment. Socio-6 Technical Report. 12 Cordell, H. Ken. 1999. Outdoor Recreation in American Life, A National Assessment of Demand and Supply Trends. 13 Overdevest and Cordell. 2001. National Forest Recreation Realignment Report.
37 Handbook that directs planners to specifically address wilderness need. The failure to adequately address wilderness need parallels the injudicious discrimination against recommendations for stand alone wilderness noted above. In our view this raises legitimate questions about a possible pattern of prejudice against wilderness in this FEIS.
The Handbook directs planners to:
Determine the need for an area to be designated as wilderness through an analysis of the degree to which it contributes to the local and national distribution of wilderness. There should be clear evidence of current or future public need for additional designated wilderness in the general area under consideration. … Deal with “need” on a national basis and evaluate such factors as the geographic distribution of areas, representation of landforms, and ecosystems, and the presence of wildlife expected to be visible in a wilderness environment. 14
Instead of directly addressing the question of wilderness need, the FEIS uses canned language apparently from the region that lays down a barrage of point/counterpoint effects that seem to vaguely argue: “best not recommend more wilderness because while there are benefits, this would take away roads and other uses.” Many of the disadvantages mentioned for wilderness designation are unsubstantiated and illogical. Listing issues that are directly related to the decision to be made would be clearer and more useful.
The FEIS documents existing wilderness within ecological sections and subsections as though any wilderness designation within these broad geographical areas necessarily satisfies representation. Yet the Jefferson and Sumter plans reveal this remarkable fact:
Cordell (1999) calculated the ratio of wilderness to ecoregion area to determine representation of wilderness. Province M221 contains .6% of the National Wilderness Preservation System (NWPS) area and 2.3% of the total land area in the Continental United States area, yielding a ratio of .26. A ratio of at least 1 would be considered adequate representation. This indicates that Province M221 is currently underrepresented in the NWPS and thus underprotected.
The Jefferson National Forest uses the lack of wilderness designation within an ecological subsection as rationale for recommending wilderness for the Cave Springs area. This seems an appropriate response to address the “need” for ecological representation. However, we question the rationale for not directly addressing the above quoted under-representation within Province M221. It is clear that the recommended wilderness areas on the Jefferson only address the under-representation to a limited extent.
14 FSH 1909.12. Land and Resource Management Planning Handbook. 7.23.
38 It should also be pointed out that M221 covers most of the national forests undergoing revision. As such it is a regional issue that should have been addressed in a regionally coordinated manner. The paucity of wilderness recommendations throughout the region, particularly the fact that only 4 stand-alone areas are recommended for wilderness, demonstrates that this has not been addressed on a regional basis. Alabama’s National Forests, portions of Chattahoochee/Oconee National Forest, and portions of Sumter National Forests lie outside Province M221. However, it is clear that wilderness representations in these areas would be even more under-represented than in M221. We ask that relative representation of wilderness areas by ecological province, section, and subsection be documented for all the forests.
While also quoting this information for M221, Sumter does not make any use of it or address it in any way. The Cherokee, Chattahoochee/Oconee, and Alabama National Forests do not reveal this very relevant and critical information on need.
There is a clear failure in the FEIS, revealed in the examples above, to document and fully explain to the public information that shows wilderness need. Where this information is documented in the FEIS there is also the equally disturbing failure to address this information in the context of decisions made regarding wilderness recommendations.
The FEIS acknowledges that: “Additional acreage for wilderness study would potentially increase the carrying capacity and allow for user impacts to be dispersed across a larger area, providing an increase in wilderness visitor satisfaction.” However, nowhere is visitor impact on wilderness resources itself mentioned as a rationale for additional wilderness recommendations. No where is it addressed how the demand that is documented in the FEIS will be addressed. There is an underlying theme within the FEIS making the argument that wilderness-type recreation can be accomplished in “backcountry prescriptions”. However, there is no analysis or justification for this in the FEIS.
Wilderness Serves More Purposes Than Just Recreation Values.
Within the discussion of wilderness evaluation and analysis in the FEIS there is a clear presumption that wilderness designation is for recreation alone. This is a false assumption that flies in the face of the purposes of the Wilderness Act. The purposes of wilderness preservation are spelled out by Congress in the 1964 Wilderness Act:
In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by
39 Congress as "wilderness areas", and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness; and no Federal lands shall be designated as "wilderness areas" except as provided for in this Act or by a subsequent Act. (The Wilderness Act 1964)
As Doug Scott says in his paper (Solitude, “Sights & Sounds” and the Wilderness Act: What Can Qualify for Designation as Wilderness?) 15:
The overarching purpose of preserving wilderness areas “for the use and enjoyment of the American people” embraces many off-site uses and benefits. Nothing in the Wilderness Act makes recreation of any greater or lesser importance or priority than any of the many other uses, values, and benefits for which wilderness is preserved. The Wilderness Act’s fundamental instruction to the federal agencies managing wilderness areas specifies: Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.16 Most if not all of those broader values would be lost or degraded if wildlands that could be preserved as wilderness were instead developed or opened to incompatible forms of recreation such as ORVs and other motorized or mechanical forms of transportation. The almost exclusive focus on recreation issues in the roadless/wilderness discussion and the prejudice against wilderness apparent in the FEIS makes the FEIS analysis inadequate and contrary to provisions in the Wilderness Act, NEPA, and NFMA law and regulation.
Americans Value Preserving Wilderness for More than Recreation Values.
The American people understand the multiple use, multiple benefit purpose for which areas of their federal lands are preserved by their elected representatives as wilderness. This is documented in public opinion research.
The most extensive polling about wilderness is done by the research arm of the U.S. Forest Service. This polling asked large scientific samples of the American public to rank the various values and benefits of wilderness preservation. The results consistently show that by overwhelming majorities the public ranks many non-recreational benefits of wilderness as of highest importance to them. These benefits include:
15 Doug Scott. 2003. “Solitude, “Sights & Sounds” and the Wilderness Act: What Can Qualify for Designation as Wilderness?”. Campaign for America’s Wilderness. 16 16 U.S.C. 1133(b).
40 Ecosystem services – Wilderness areas provide clean water, clean air, wildlife habitat, and scenic beauty for those viewing them from outside their boundaries Legacy value – Knowing that future generations will have wilderness areas is very important to Americans, who feel this is one important way that we are fulfilling our generation’s duty to pass on the American heritage to the future Existence value – Simply knowing that wilderness areas still exist, with no expectation of ever themselves visiting these lands
All of these values rank higher in priority for the American people than “providing recreation opportunities” as benefits of preserving wilderness. 17 [All, including recreation, rank as extremely, very, or moderately important to more than 90 percent of respondents in the Forest Service’s 2000-2001 polling results from a very large sample of 5,239 Americans nationwide. In the same polling, the American people overwhelming favor protecting more wilderness.]
Congress Intended Wilderness Preservation to Serve Many Values.
Throughout the eight years of debate leading to enactment of the Wilderness Act, its authors expressed their intent that wilderness areas serve a wide array of uses and values, not just recreation. In its formal report to the full U.S. Senate, the committee that produced the Act explained: “lands devoted to wilderness … are truly multiple-use lands.”
They provide watershed protection and clear, pure water for users below them.
They provide game which, if it could be produced at all, would cost tens of millions of dollars to maintain, propagate, and produce in artificial facilities. Scientists testify that some species cannot exist except in wilderness.
Under the provisions of the [Act], areas of the wilderness system will continue to supply forage for domestic livestock.
And they supply the recreational, scenic, scientific, educational, conservation, and historical use values to which [the Act] directs emphasis in future management of the wilderness preservation system.18
17 These and related poll results are shown in detail in A Mandate to Protect America’s Wilderness: A Comprehensive Review of Recent Public Opinion Research, Campaign for America’s Wilderness, January 2003, page 32-34, see: http://leaveitwild.org/reports/polling_report_exec_summary.html. That report provides contact information for these and many other results from the Forest Service’s “National Survey on Recreation and the Environment.” 18 Establishing a National Wilderness Preservation System for the Permanent Good of the Whole People, and for Other Purposes, Senate Report 88-109, filed April 3, 1963 by Sen. Frank Church (D-ID) on behalf of Sen. Clinton Anderson (D-NM), to accompany S. 4, page 15.
41 The Senate report lays out five pages of in-depth detail about these many values and uses, concluding by quoting President Theodore Roosevelt’s first annual message to Congress on December 3, 1901:
Some at least of the forest reserves should afford perpetual protection to the native fauna and flora, safe havens of refuges to our rapidly diminishing wild animals of the large kinds, and free camping grounds for the ever-increasing numbers of the men and women who have learned to find rest, health, and recreation in the splendid forests and flower-clad meadows of our mountains.19
Wilderness areas preserve land and ecosystem; these offer many values. As Howard Zahniser (who catalyzed the drafting of the Wilderness Act) testified at the first Senate hearing, in 1957: “Wilderness is a character that land has. It is not a special use.”20
The 1975 Eastern Wilderness Areas Act is one of many that have designated additional wilderness areas.21 This law, too, expressly notes that the goal of Congress is to “promote and perpetuate the wilderness character of the land” in order to provide an array of values, of which recreation is just one. In this Act, Congress:
finds and declares that it is in the national interest that these and similar areas in the eastern half of the United States be promptly designated as wilderness within the National Wilderness Preservation System, in order to preserve such areas as an enduring resource of wilderness which shall be managed to promote and perpetuate the wilderness character of the land and its specific values of solitude, physical and mental challenge, scientific study, inspiration, and primitive recreation for the benefit of all the American people of present and future generations.22
Nevertheless, even where other values are mentioned as relevant to wilderness recommendation, there is a profound failure to apply the clear precedents available for a more expansive appreciation of wilderness. Both the Jefferson and Sumter plans have this remarkable admission in the FEIS:
19 Establishing a National Wilderness Preservation System for the Permanent Good of the Whole People, and for Other Purposes, Senate Report 88-109 to accompany S. 4 (88th Congress, 1st Session), April 3, 1963, page 20. 20 Statement of Howard Zahniser, National Wilderness Preservation Act, Hearings before the Committee on Interior and Insular Affairs, United States Senate on S. 1176 (85th Congress, 1st Session), June 19-20, 1957, page 158. 21 Public Law 93-622, 88 Stat. 2096. This law—sometimes erroneously called the Eastern Wilderness Act (there is no U.S. statute with that name)—has additional provisions applying only to national forests in the East, South, and Midwest. These special provisions deal with unique circumstances concerning those particular national forests. National park and national wildlife refuge lands in these regions required no such special provisions. There is only one legal definition of wilderness—in the Wilderness Act—and this applies to the entire National Wilderness Preservation System. The history of this law and of the common mischaracterization of its name) are summarized in A Wilderness-Forever Future (see footnote 3 above), pages 24-25. 22 Subsection 2(b), Public Law 93-622.
42 Wilderness is valued for preserving representative natural ecosystems, diversity of landscapes and for research. Currently, at the forest scale, the Blue Ridge and Northern Ridge and Valley Sections and their respective subsections occurring within the Jefferson National Forest are represented by at least one of the 11 designated wildernesses (see Table W-5 in the Wilderness and Roadless discussion). The Cumberland Mountain Section/Black Mountains subsection occurs on the Clinch Ranger District and is currently unrepresented by wilderness. The North Fork of the Pound is the only inventoried Roadless Area within that section/subsection. At the regional/national scale, all of the forest’s designated wildernesses and inventoried roadless areas lie within the Province M221, Central Appalachian Broadleaf Forest-Coniferous Forest-Alpine Meadow. Cordell (1999) calculated the ratio of wilderness to ecoregion area to determine representation of wilderness. Province M221 contains .6% of the National Wilderness Preservation System (NWPS) area and 2.3% of the total land area in the Continental United States area, yielding a ratio of .26. A ratio of at least 1 would be considered adequate representation. This indicates that Province M221 is currently underrepresented in the NWPS and thus underprotected. (emphasis added)
Yet there is no attempt on the Sumter or Jefferson to address this lack of national representation in the Wilderness Preservation System (Jefferson does add a small area, Cave Springs, to address the lack of any wilderness designations in the Cumberland Mountain Section/Black Mountains subsection). The other forests fail totally to address this lack of ecological representation in the Wilderness Preservation System even though the above information applies to them also (the Ecological Section for Alabama and portions of Sumter and Chattahoochee/Oconee would differ but would offer even less ecological representation in wilderness). As requested above under 1.31 we ask that relative representation of wilderness areas by ecological province, section, and subsection be documented for all the forests.
The Plan Failed to Consider Additional Areas for Wilderness
The plan and FEIS also fail to consider non-inventoried roadless areas for possible wilderness recommendation as provided in the regional design criteria for the rolling alternative. Only the Jefferson demonstrated a serious consideration for additional areas, recommending one stand-alone area and 2 additions outside the roadless inventory based on special area and ecological section considerations.
Other areas nominated by the public and areas improperly excluded from the roadless inventory were barely mentioned in the plans and FEIS. The fact that the roadless inventory was faulty and inadequate (see Inadequacy of Roadless Inventory below) makes the consideration of additional areas more important. Again, the prejudice against wilderness that is demonstrated within the planning process is apparent. The process used by the forests appears to have eliminated areas from consideration for
43 wilderness recommendation, with areas being removed prematurely and inappropriately and with a reluctance to re-evaluate decisions made at earlier stages.
2. Inadequacy of Roadless Area Inventory
We are on record objecting to improper criteria and methods used in the roadless area inventory, to the improper exclusion of areas from the roadless inventory, and to the boundaries drawn for inventoried roadless areas. The inventory for Southern Appalachian national forests was initiated as a part of the Southern Appalachian Assessment with additional guidelines developed by the SAA team and the Southern Regional Office of the Forest Service to facilitate consistent application of the process.
The Southern Appalachian national forests are required to use the criteria in FSH 1909.12, Chapter 7.1 to conduct its roadless area inventory.
The Forest Service Handbook 1909.12, Chapter 7 “Wilderness Evaluation” describes the process for “identifying and evaluating potential wilderness in the National Forest System.”23 The FSH cites the authority for these criteria as being the Wilderness Act, the Eastern Wilderness [Areas] Act, 36 CFR 219.17, FSM 1923, and FSM 2320.
As described in FSH 1909.12 Chapter 7 and elsewhere,24 wilderness evaluation involves two discrete steps: roadless area inventory, and evaluation of inventoried roadless areas for wilderness potential. Section 7.1 provides specific criteria for the roadless inventory. Section 7.2 provides specific criteria for wilderness evaluation. This distinction is important.
According to Section 7.11, “[r]oadless areas qualify for placement on the inventory of potential wilderness if, in addition to meeting the statutory definition of wilderness,25 they meet one or more of the following criteria:”
4. They contain 5,000 acres or more 5. They contain less than 5,000 acres but are manageable as wilderness, are self- contained ecosystems such as islands, or are contiguous to existing wilderness or roadless areas. 6. They do not contain improved roads, except as permitted in areas east of the 100th meridian (where the threshold of ½ mile of improved roads per 1,000 acres applies).
Section 7.11b describes criteria for roadless areas in the east, “recognizing that much, if not all the land, shows some signs of human activity and modification.” All of the criteria in these two sections serve to expand, not shrink, the potential acreage in the roadless area inventory by allowing a certain amount of development to occur. Even criterion 7.11b(4)—which states “consider the relationship of the area to sources of noise,
23 All quotes in this section, unless otherwise noted, are from the FSH 1909.12,7. 24 See May 19, 1995 memo and attached Region 8 guidance 25
44 air and water pollution, as well as unsightly conditions…”— recognizes that a certain amount of disturbance may occur nearby and does not necessarily limit or define a boundary to potential acreage.
It is also important to note that FSH 1909.12, Chapter 7.1—INVENTORY OF POTENTIAL WILDERNESS—never mentions the word “solitude.” However, the term became the central focus of regional guidance for the roadless inventory in the Southern Appalachians. Please provide either statutory or regulatory basis for the use of “solitude” criteria to select or delimit delineation of potential wilderness roadless areas. It is our understanding that definitive considerations of solitude come into play only during the evaluation of the capability of a potential wilderness as described in FSH 1909.12, Chapter 7.2.
2.2. Restrictive regional guidance improperly eliminated areas from the roadless inventory.
A May 19, 1995 memo from Robert C. Joslin, R8 Regional Forester, with the subject “Inventories for Forest Plan Revisions” contains “Criteria For Inventorying Roadless Areas”26. It also directs the forests in the Southern Appalachians to use the criteria in FSH 1909.12, Chapter 7.1 for the roadless area inventory.
The document states:
During the Forest Plan Revision process, a re-inventory of roadless areas on the National Forests is required (36 CFR 219.7). Using the criteria identified in FSH 1909.12, Chapter 7, Section 7.1, a re-evaluation of all National Forest System lands for possible inclusion in the roadless area inventory must be completed, with public participation.
The guidance further states:
It is important to differentiate between the “inventory” of roadless areas (or potential wilderness areas) and the “evaluation” of those areas for possible wilderness recommendations. The “evaluation” criteria for wilderness is found in FSH 1909.12, Chapter 7, Section 7.2. At this point, the objective is not to determine if a particular area should be recommended for wilderness -- that only comes later in the planning process – but only if an area should be included in the inventory for future consideration as wilderness.
Finally, on page 4, under Section A. Criteria Application Guidelines:
Sections 7.11, 7.11a, and 7.11b of FSH 1909.12, WO Amendment 1909.12-92- 1, all apply to Forests in the Southern Region. Areas must meet all the listed
26 May 19, 1995 memo and attached Region 8 guidance.
45 criteria to be eligible for inclusion in the roadless area inventory. (This includes providing opportunities for solitude, etc.) Emphasis added.
Besides the brief reference above to solitude the 1995 criteria follow the FSH criteria closely until Section G (p. 6), at which point it makes a substantial departure. Section G refers to requirements in FSH 1909.12, 7.11b that a roadless area be “conducive to the perpetuation of wilderness values”. The guidance points out that one of these values mentioned in the 1964 Wilderness Act is “solitude” and enters into a discussion of how to evaluate “solitude” using the ROS-identified semi-primitive non- motorized areas. This is inappropriate, especially in light of the fact that nowhere in Section 7.1 does the word “solitude” occur. On pg. 5, the guidance states: “To meet roadless area inventory criteria, a 'core' of the roadless area must be manageable for conditions that would be classed as primitive or semi-primitive non-motorized.” However, the guidance goes on to state: “The 2,500-acre semi-primitive “core” size is not an absolute minimum or acreage requirement. It is a guide…The idea is to screen out “amoeba” shaped configurations that may meet the minimum acreage requirement, but could never be managed to provide the degree of solitude characteristic of wilderness” (emphasis added).
Also, according to wilderness historian Doug Scott, of Campaign for America’s Wilderness, a perceived lack of “solitude,” if used to constrain the size of areas to be evaluated for wilderness (in agency land use planning analyses) constitutes the use of erroneous criteria that pose the danger of unfairly misleading the public or even of preempting the prerogatives of Congress. Please clarify the use of considerations of “solitude” as a definitive criterion in the delineation of potential wilderness areas.
2.2.1 “ROS Semi-primitive core” was inappropriately used to eliminate areas from the roadless inventory
We are supportive of eliminating amoeba shaped or unmanageable areas. The application of ROS guidance, however, has gone far beyond the elimination of such areas. As stated in a letter to Secretary Glickman (with copies to the Chief, the Regional Forester and others) by Southern Appalachian Forest Coalition, The Wilderness Society, and Southern Environmental Law Center on October 3, 1997:
However, the ROS “semi-primitive core” has been used far beyond its intended purposes and limits; the result has been that many areas fully qualified as roadless were arbitrarily dropped. To begin with the Regional Forester originally instructed that these cores were desirable, not essential. Yet many planners viewed them as strict requirements and dismissed many tracts as not roadless because the cores did not have “sufficient” acres or a “suitable” shape – even where the areas dropped passed the requirements for naturalness and road density found in the Forest Service Handbook.
Moreover, contrary to national guidelines for ROS, planners in the Southern Appalachian region pulled back to semi-primitive boundaries a
46 half-mile from closed roads that receive limited or no vehicle use and do not intrude on backcountry recreationists. As a result, semi-primitive cores were frequently underestimated in size and shape. Hence, it became doubly arbitrary to delete areas because cores had insufficient acres of nonsuitable shapes.
Furthermore, despite repeated requests, the forest Service has failed to document that in the heavily forested and rugged Southern Appalachians that the half-mile pullback from a road for semi-primitive acres is essential to provide for solitude and backcountry recreation. Indeed, the one agency study in the region that we located and submitted to the Forest Service failed to support this key assumption about a half-mile pullback. (Moreover, the use of the half-mile pull-back from roads has resulted in inadequate and unmanageable boundaries for many inventoried roadless areas.)
Despite these serious flaws, the Forest Service deleted many areas that otherwise qualified as roadless due solely to the claimed absence of adequate semi-primitive “cores.” On the Chattahoochee National Forest, for example, the Forest Service failed to identify the following areas as roadless for this reason: Grassy Mountain, Moccasin Creek, Three Forks, Duncan Ridge, Horse Gap, Windy Gap and others.
Indeed, in many instances, the Forest Service deleted areas as roadless for lack of adequate solitude or backcountry recreation even though existing forest plans expressly direct for those areas to provide semi-primitive solitude and recreation. Examples include Lynn Camp Creek on Jefferson National Forest; Iron Mountain on the Cherokee National Forest; Moccasin Creek on the Chattahoochee National Forest, and others. In fact there is an area (an 2,000 acre extension to Ellicott Wilderness on the Sumter National Forest in South Carolina) that the Forest Service previously studied and recommended for wilderness designation that they now find is not roadless, despite the complete lack of any roading or logging since he previous study.
Finally, the Forest Service has consistently overlooked the plain language of the Wilderness Act that areas qualify if they have “outstanding opportunities for solitude or a primitive and unconfined type of recreation”. Section 2(c). There are many outstanding opportunities for backcountry recreation outside of the core of semi-primitive acres, as the region defines it under ROS. For example, many beautiful miles of the Appalachian Trail traverse the steep 2,344 acre Thunder Ridge Wilderness on the Jefferson National Forest and offer outstanding backcountry recreation, even though not an acre of this designated wilderness (that was recommended last decade by the Forest Service) is inventoried as “semi-primitive” under ROS.
2.2.2 “Sights and Sounds” was inappropriately used to eliminate areas from the roadless inventory
47 Above and beyond the ROS semi-primitive core requirements in the roadless inventory forests eliminated areas from the inventory based on “sights and sounds”. Again, from the SAFC, TWS, and SELC letter of October 3, 1997:
In many instances across the region, the Forest Service dropped areas that fully met the requirements for road density, naturalness and other criteria because “sights and sounds” from outside the boundaries could be perceived by users within the area. For example, they rejected the flats Mountain area that is a logical extension to Citico Creek Wilderness on the Cherokee national Forest and cited the sounds of recreation from a lake outside the area. On the Jefferson National Forest, they also rejected the 5,000 acre Wilson Mountain area and pointed to the sights and sounds of a railroad, houses and highway in a valley on one side of the area.
In relying on this reason to eliminate areas even from study, the Forest Service acts contrary to long-standing direction from Congress, as plainly expressed in [Subcommittee Hearings for] the 1978 Endangered American Wilderness Act:
Further, many areas, including the Lone Peak [outside Salt Lake City] …, received lower wilderness quality ratings because the Forest Service implemented a “sights and sounds” doctrine which subtracted points in areas where the sights and sounds of nearby cities (often many miles away) could be perceived from anywhere within the area. This eliminated many areas near population centers and has denied a potential nearby high quality wilderness experience to many metropolitan residents, and is inconsistent with Congress’ goal of creating parks and locating wilderness areas in close proximity to population centers. The committee is therefore in emphatic support of the Administration’s decision to immediately discontinue this “sights and sounds” doctrine.27
Similarly the agency ignores the purpose of legislation such as the 1975 Eastern [Areas] Wilderness Act that aimed at the preservation of wilderness close to population centers. This act featured Congressional finding of the “urgent need” to find, study and include eastern areas as wilderness. Hence the use of outside “sights and sounds” to delete areas from the roadless inventory is especially inappropriate in the east.
2.2.3 These additional more restrictive criteria imposed by the region for roadless inventory above and beyond regulation and Handbook Guidance are counter to the intent of the Wilderness Act
The additional criteria imposed by regional guidance on the roadless area inventory not only imposes criteria that are more restrictive than regulation and
27 House Report 95-540, 95th Congress, July 27, 1977, page 5.
48 Handbook guidance, but it runs counter to a history of intent expressed by Congress. From Doug Scott’s paper28:
In early versions of the bill that became the Wilderness Act, the wording of this phrase was slightly different: “areas … retaining their primeval environment and influence.”
In July 1960, Senator James Murray (D-MT), introduced a new revision of the Wilderness Bill he had earlier introduced.29 Senator Murray was the lead sponsor and the chairman of the committee handling the bill; his stated intent is definitive legislative history. In introducing his revised version of his own bill, he carefully explained to the Senate a key word change:
In the opening sentence of the bill change the word “environment” (line 9) to “character” and delete the words “recreational, scenic, scientific, educational, conservation, and historical.”
Explanation: These are amendments pending before the Interior Committee. The word “character” is substituted because “environment” might be taken to mean the surroundings of the wilderness rather than the wilderness entity.30
As Senator Murray’s explanation illustrates, the authors of the Wilderness Act took great care to document precise guidance on their legislative intent in choosing the words in the law. They did not want the qualification of land that might be designated as wilderness to be decided on the basis of the surrounding environment and any impacts from outside the boundary, even immediately outside the boundary. Rather, they specified that the test was the character of the wilderness entity itself.
Later, when some agencies misapplied this aspect of the Wilderness Act to assert that outside sights and sounds led them to judge lands not qualified for wilderness, Senator Frank Church (D-ID), who had been the floor manager when the Senate debated and passed the Act, reminded them of Sen. Murray’s definitive explanation at a Senate hearing:
The Wilderness Act calls for the designation of suitable wild lands which are of wilderness “character.” This term “wilderness character” applies only to the immediate land involved itself, not to influences upon it from outside areas. This point was specified precisely in an early amendment to the wilderness bill. * * * What
28 Doug Scott. 2003. Ibid 29 S. 3809, 86th Congress. Throughout its eight-year consideration by Congress, the legislation was commonly referred to as “the Wilderness Bill.” Sen. Murray’s explanations are prime documentation of the congressional intent behind the words of the final Act. 30 Ibid., emphasis added.
49 [Sen. Murray’s 1960] amendment made clear is that the suitability of each acre of possible wilderness is to be ascertained on the basis of that wilderness entity, not on the basis of insubstantial outside influences. Sights and sounds from outside the boundary do not invalidate a wilderness designation or make threshold exclusions necessary, as a matter of law.31
Despite Senator Church’s clarification, use of the erroneous sights and sounds criterion recurred. The issue came to a head during congressional action on the Endangered American Wilderness Act of 1978, sponsored by Representative Morris K. Udall (D-AZ) and Senator Church.32 Like Church, Udall had been involved in the enactment of the Wilderness Act [both were at President Lyndon Johnson’s side as he signed the Act] and was, in 1978, chairman of the House committee handling all wilderness legislation. In its formal report to the House of Representatives explaining the 1978 bill, Udall’s Committee on Interior and Insular Affairs discussed the Forest Service’s renewed use of the sights and sounds concept:
Testimony presented during nine days of Subcommittee hearings on H.R. 3454 repeated allegations that the Forest Service has been unduly restrictive in setting wilderness evaluation criteria which relied solely on the most stringent possible interpretation of the definition section (section 2(c)) of the Wilderness Act.
… many areas, including the Lone Peak and Sandia Mountain proposals33 in H.R. 3454, received lower wilderness quality ratings because the Forest Service implemented a “sights and sounds” doctrine which subtracted points in areas where the sights and sounds of nearby cities (often many miles away) could be perceived from anywhere within the area. This eliminated many areas near population centers and has denied a potential nearby high quality wilderness experience to many metropolitan residents, and is inconsistent with Congress[‘s] goal of creating parks and locating wilderness areas in close proximity to population centers. The committee is therefore in emphatic support of the Administration’s decision to immediately discontinue this “sights and sounds” doctrine.34
During Senate hearings on the Endangered American Wilderness Act, Dr. M. Rupert Cutler, the Assistant Secretary of Agriculture, assured the Senator Pete
31 Preservation of Wilderness Areas, Hearings before the Subcommittee on Public Lands, Committee on Interior and Insular Affairs, U.S. Senate, on S. 2453 and Related Wilderness Bills, May 5, 1972, page 59, emphasis added. 32 Public Law 95-237; February 24, 1978. 33 Areas subsequently designated as wilderness in the 1978 law. 34 House Report 95-540, 95th Congress, July 27, 1977, page 5, emphasis added.
50 Domenici (R-NM), who raised the same concern about agency views on the Sandia Mountain Wilderness proposal, that in relation to that area and all wilderness areas:
there is no reference in the Wilderness Act to criteria for wilderness that includes such things as the sights, sounds, and smells of civilization which is a set of criteria which has been misapplied to wilderness areas.35
2.2.4 Lack of Regional Consistency in Delineation of Potential Wilderness (Roadless Areas)
Criteria for delineation of roadless areas for the SAA inventory was not consistent across the region. At least one forest (Sumter) used a computer generated “core area” criterion that eschewed a topography-based, common sense approach and instead employed a highly exclusive computer driven methodology. This effected an arbitrary and premature delimiting of roadless areas on the Andrew Pickens District of Sumter NF that was not consistent with other methods employed in the region. The agency never cited the regulatory or statutory basis for the idiosyncratic delineation of roadless areas on the Andrew Pickens.
2.3 Other guidance also direct the Forest Service to use the FSH 1909.12,7.1 criteria for their roadless inventory.
Roadless Area Conservation DEIS. The Forest Service Roadless Area Conservation FEIS, Volume 1 glossary defines roadless areas as “Undeveloped areas that meet minimum criteria for wilderness consideration under the Wilderness Act. These are areas typically exceeding 5,000 acres that were inventoried during the agency’s formal Roadless Area Review and Evaluation (RARE II) process, and remain in a roadless condition through forest planning decisions. For roadless areas in the eastern United States, see FSH 1909.12, Chapter 7.11b.” (FEIS, Glossary, pg. G-6).
Eastern Wilderness Areas Act. The 1975 Eastern Wilderness Areas Act was created to mitigate the effects that the level of development and modification of lands in the eastern half of the country had on their suitability for inclusion in the Wilderness Preservation System. Congress recognized that western focused criteria automatically eliminated much of the east from consideration. Recognizing that lands in the east were likely to recover their wilderness characteristics with suitable management, and feeling that many eastern ecosystems were worth preserving, Congress passed the Eastern Wilderness Act. The intent of the Act was to create a set of criteria that recognized eastern conditions and were therefore less restrictive than those in the Wilderness Act, not more restrictive. As the Southern Appalachian
35 Endangered American Wilderness Act of 1977, Hearings before the Subcommittee on Parks and Recreation of the Committee on Energy and Natural Resources, United States Senate on S. 1180, September 19 & 20, 1977, Publication No. 95-88, Committee on Energy and Natural Resources, page 41.
51 national forests have applied criteria, it appears more difficult for roadless areas to qualify as suitable. This contradicts the intent, and the language, of the law.
Extensive comments from SAFC and SAFC member groups were submitted in response to the SAA roadless area inventory. When the SAA inventory was being reviewed for incorporation into the plan revision process, the Southern Appalachian Forest Coalition, The Wilderness Society, and the Southern Environmental Law Center submitted comments to the Forest Service objecting to the “Inadequacy of National Forest Roadless Area Inventory in the Southern Appalachians”.
3. Inadequate and Inaccurate Wilderness Evaluation
The region also developed guidance on wilderness evaluation that has influenced the assessment and recommendation of wilderness in the plans. Aspects of this guidance are apparent in the FEIS and FEIS Appendix C. The most egregious and fallacious aspects, the wilderness supply and demand analysis is not found or referred to in the FEIS. We are aware of process papers on the Alabama, Chattahoochee/Oconee, Cherokee, and Sumter National Forests that used this wilderness supply/demand analysis. Apparently, the planners on the Jefferson did not carry out this analysis. We requested that the region amend the guidance to remove this obviously flawed methodology, but the guidance has not been amended. The analysis is so flawed and misleading and the potential for it to be used to justify inappropriate decisions so great that we will address this aspect of the guidance even though it is not referred to in the FEIS.
In September of 1996 David Holland in the regional office circulated a memo to forest supervisors and to planning teams calling for development of a process to determine wilderness need or demand in forests in the Southern Region. This was an internal memo, but members of the public, including SAFC, were included in its distribution.
A workshop was held October 29 – 31, 1996 to develop “explanatory direction” for evaluation of potential wilderness in plan revisions. Members of the public attended, including representatives of TWS, Georgia Forest Watch, and SAFC. As follow-up to this workshop, comments were submitted by TWS, SAFC, and the Appalachian Trail Conference highlighting points that the conservation community felt needed to be addressed in the regional guidance.
The draft guidance on wilderness evaluation was issued February 4, 1997. The guidance was meant to supplement the direction given in FSH 1909.12 Land and Resource Management Planning Handbook, Chapter 4.19, Appendix C and Chapter 7.2 (“Evaluation of Potential Wilderness”). The document was directed to Forest Supervisors, but those who had commented on the guidance or attended the October workshop were also given the opportunity to comment. Comments were originally due by March 14, but this deadline was extended to March 31.
52 Numerous groups and individuals sent in comments to the guidance document. The regional office commented that the stack of comments were three or four inches high. We had a follow-up meeting with Eurial Turner, Deputy Regional Forester on July 14 to discuss some of our concerns with the wilderness evaluation criteria.
The final guidance was issued on July 22, 1997. It incorporated some of the suggestions that the conservation community had made. However, the guidance remained seriously flawed. In particular, the methods detailed in the guidance work toward underestimating wilderness demand while overestimating wilderness supply or capacity, creating a scenario during analysis that will tend to demonstrate that future wilderness designations are not needed. This bias has become especially evident in application of the analysis on Cherokee National Forest (1998) and Chattahoochee National Forest (2001). The wilderness capacity calculations are especially egregious, overestimating wilderness capacity by more than an order of magnitude.
We asked at several times during this process (see for example the 7/15/97 TWS letter) for another round of public comments because there were issues that we felt were not developed fully with public input. As we see the analysis from this guidance being carried out, the urgency of addressing the fallacies in the methodology becomes more apparent. The results of the analysis bear little relation to true wilderness capacity.
3.1 Supply/Demand Issues There were a number of issues addressed in the wilderness evaluation guidance. I will concentrate here on the supply and demand issues. The calculation of supply and demand is fairly complicated. I will touch on some of these technical issues, but I believe the real changes that would indicate a clear need for future wilderness are fairly common- sense aspects of the analysis. We would probably do well to concentrate on some of the key issues that will clearly make a difference in the supply/demand analysis.
3.1.1 Supply 1) One of the key issues that we stressed in 1996 and 1997 but remains in the final guidance is the calculation of wilderness capacity based on averaged values rather than peak values. A wilderness area generally will have high use only during a small portion of the year. However, wilderness capacity is computed over a long season (240 - 270 days) giving a capacity that is unrealistic for how wilderness is actually used. The calculation assumes that an equal number of visitors use the wilderness every day of the 240 – 270 day season. This is false even for extremely overused areas like Shining Rocks Wilderness. There would be days (bad weather, week days, etc.) when use would be very low. The area is overused because there are days (good weather, weekends, holidays) when use is extremely high. Capacity should be based on peak use; doing otherwise is arbitrary and capricious and without support. Calculating capacity, assuming that you can pack people into the area every day of a 240 - 270 day season is unrealistic and vastly overestimates the true capacity of an area and ignores the way wilderness is actually used. Most use occurs on weekend days with good weather between Spring and Fall. This critique applies to both methods of computing capacity discussed below in item 3.
53 2) A key part of the supply analysis that is profoundly troubling is the inclusion of calculations of “Other Unconfined Recreation Opportunities/Experiences”. We were successful in getting this portion changed so that it does not include primitive and semi-primitive lands in private ownership. However, the utility of this calculation remains an important issue. How this figure would be used is not clearly stated in the guidance. However, the presumption seems to be that these areas could supply the same recreation found in wilderness areas. The guidance should specifically state how these figures would be used. They should not be used as surrogates to supply demand for wilderness demand. Most wilderness users go to wilderness because it assures a type of experience that is not assured by other 3) Two methods of computing capacity are discussed in the guidance. Practical Maximum Capacity and Existing Condition Capacity. Both of these methods, as applied, grossly overestimate the capacity of existing wilderness. a) Practical Maximum Capacity: The basic assumption of this method is false. It assumes you can transport people to every part of a wilderness area irrespective of the terrain or presence or absence of trails. This “spread butter” approach with humans being the butter spread over wilderness is totally unrealistic because it ignores how people actually use wilderness areas. Given that PMC is a flawed method, the guidance also uses coefficients that make the capacity values higher by 4 times than a similar method used in the GW plan. Some of the coefficients used (Length of Stay and Pattern of Use) are also unrealistic and tend to inflate the capacity value (see 7/2/97 Pete Morton letter). Practical Maximum capacity is so unrealistic that it adds nothing to discussions of wilderness capacity. b) Existing Condition Capacity: This method has more potential for giving a realistic measure than Practical Maximum Capacity if it were computed realistically. It is based on the “Limits of Acceptable Change” (LAC) process that has been performed on some wilderness areas in the Southern Appalachians. The LAC process involves the public in setting limits on impacts to wilderness areas. In my experience (with several areas on Cherokee National Forest) it places some fairly realistic constraints on use of wilderness areas. It assumes that people primarily use wilderness areas along trail corridors and attempts to limit use to acceptable levels before resource damage to trails, campsites, trailheads and other resources occurs. However, its use in the wilderness guidance has built-in fallacies. i) First of all assuming that people can be packed into an area equally throughout a 210-240 day season vastly inflates the capacity. ii) Secondly, the method assumes that people can be lined up throughout the trail length in groups ½ mile apart. So, a five mile trail would be able to accommodate (without resource damage or degradation of solitude)
10 people/group X 2 groups/mile X 5 miles = 100 people per day!
This calculation vastly overestimates what a trail could accommodate without resource damage and loss of solitude and distorts what came out of the LAC process. The methodology comes up with results that are patently ridiculous.
54 As an example, the Chattahoochee version of the methodology estimates the yearly capacity for Cohutta Wilderness as over ¾ million people per year! (this is roughly the population of San Francisco). This “supply” in itself exceeds the calculated “demand” for all of the Chattahoochee. Never mind the fact that Cohutta is considered to have very high use by Forest Service analysis and documents and this current use is more than an order of magnitude below this calculated “capacity,” the Forest Service Limits of Acceptable Change process documented overuse of Cohutta at current levels.
We pointed out grave concerns in the methodology when it was being developed in 1996-1997. We have had numerous discussions and have written to the region objecting to the methodology SAFC December 14, 2001 memo to region; SAFC January 22, 2002 memo to region).
We were told by regional staff that the methodology would remain in the planning “process papers” to demonstrate the physical constraints on use. Cherokee still has their analysis posted on their web site. Staff at the regional office and the leader of the recreation team have acknowledged that the analysis is not realistic. However, the analysis for all the forests that performed it concludes with statements like: “The Cherokee National Forest has the capacity to support increased demand for wilderness for well after the year 2040 with the existing wilderness acreage base.” Jefferson National Forest has not performed the analysis; we have heard reports that they didn’t do it because they recognized it as not useful.
The LAC process did not assume that groups would be packed on a trail like this! In fact it would have been impossible under the LAC framework or in realistic situations to accommodate this use because the parking capacity for this many people is not provided for in LAC or in real life circumstances. Also the amount of resource damage with 100 people on a trail per day every day of 200+ days would have been unacceptable from numerous standpoints in the LAC process.
Campsite capacity is similarly skewed to provide a capacity that would dramatically degrade resources and solitude. The guidance also seriously errs by assuming there is no loss of solitude from interactions between campers and hikers. This could only occur if the last hikers of the day were the only campers. This is rarely the case since campers usually set up camp early in the day before hiking stops. To visualize the absurdity of these results, imagine camping on this trail and experiencing a parade of a significant portion of the hundred people during the day – not many people’s idea of wilderness solitude! It should also be noted that these capacity computations, which are based on methods in the SAA (S/C/E pp 160-162), use every day within a 200+ day season rather than the somewhat more realistic 28 weekends used in the SAA.
3.1.2 Demand 1) We were successful in getting the guidance to use regional wilderness demand trends rather than national trends (the South has greater growth in wilderness use than the nation as a whole). However, it is not clear where the Forests will get baseline data
55 for wilderness use projections. Local wilderness use data from the Recreation Inventory and Management (RIM) database is very inaccurate.
In theory, wilderness RIM data is based on the wilderness registration stations at the entrances to wilderness areas. When was the last time you saw one of these stations properly maintained, used, and monitored!?! I’ve asked a number of Forest Service staff, including Forest Supervisors, how they come up with RIM data in the absence of a functioning registration system. The answer I’ve gotten is that District Rangers “estimate” wilderness use based on observation of parking at trailheads. There is strong evidence that even these estimates are done sporadically. Baseline data for current wilderness demand should be based on accurate figures for current use and it is unclear from the guidance how this would be determined.
3.2 Other Issues Other issues in the wilderness evaluation guidance remain unacceptable. In particular, the way in which Solitude is overly identified with a semi-primitive core, encourages large pullbacks from roads. This problem originated in the roadless inventory process and is picked up in the wilderness evaluation guidance.
Biological values received considerable change during the development, but associating wilderness candidates with habitat for area sensitive species (e.g. bear is still weak. Overlay of bear habitat with wilderness candidates should be encouraged.
Challenge still emphasizes danger, risk, and life-threatening situations despite the lack of statutory or legal basis and our objections to characterizing challenge in this way. The Forest Service Handbook states: Challenge. Determine the degree to which the area offers visitors the opportunity to experience adventure, excitement, challenge, initiative, or self reliance. The most desirable area offers many outstanding opportunities for adventure and challenge.36 The regional guidance distorts this healthy focus on challenge. The guidance leads off its “challenge” example with this: “It is possible that one may encounter life-threatening situations but one does not expect them. It is possible that one may become lost. Level of personal risk increases as one gets further away from the edge of the wilderness toward the interior of the core area. More risk is associated with the core area than the transitional area.37 This guidance fundamentally misses the point of both the Wilderness Act and the Handbook. Some risk is involved in wilderness use but this has little to do with the challenge that wilderness users find; it is well documented that the danger and risk in driving to the area is greater than wilderness travel. The focus on life-threatening situations and risk as measures of challenge is silly and far removed from the reasons people visit wilderness areas. However, it is clear that the Forests have followed this guidance because they use this same ridiculous language in the roadless area evaluations. Tellingly, this attitude betrays much of the bias and bad light under which the plans have viewed and evaluated wilderness.
36 FSH 1909.12. Land and Resource Management Planning Handbook. 37 May 19, 1995 memo and attached Region 8 guidance
56 3.3 Need Documented in the FEIS is Inadequate The FEIS documentation for “Need” in the FEIS and FEIS Appendix C is very weak. The FEIS points to a study by H. Ken Cordell, 1999 (Outdoor Recreation in American Life, A National Assessment of Demand and Supply Trends) in its discussion of general recreation. This study projects regional increases in participation in recreation activities. This table shows wilderness oriented activities in addition to more developed activities. This study is again referred to in the wilderness discussion in the FEIS. However, under the discussion of Need in Appendix C this approach is abandoned. Instead, the FEIS and FEIS Appendix C documents various odd statistics that are difficult to relate to Wilderness Need or Demand.
Alabama and Chattahoochee/Oconee have no discussion of Need in Appendix C nor under the Wilderness/Roadless Section of the FEIS. The only discussion of Need or Demand is under the General Recreation Heading which only addresses current recreation uses and projected increases in recreation activities.
Cherokee documents for each roadless area the adjacent, nearby, and regional existing wilderness areas. It also documents the wilderness and roadless areas within the Ecological Sections and Subsections. It then documents the results of a study ranking preferences for recreation activities and management activities. The major cities within a 100, 200, and 250 mile radius are listed.
Jefferson has a very general discussion using Cordell’s projected increases in wilderness recreation activity “visit wilderness area”, documenting how many people this would mean in 2050. The non-user desire for wilderness is documented with figures from the Cordell study showing that a very large proportion of the public agree with protecting wilderness areas. There is then a discussion of representation by Ecological Section and subsection with the fact that the Sections/Subsections within the Jefferson are underrepresented.
Sumter is similar to the Jefferson except that it omits future wilderness area recreation activity projections and instead documents current wilderness participation rates and estimated users.
None of the FEISs relate the figures they use for wilderness need or demand to wilderness supply or connect these figures in any way to amounts of recommended wilderness in the preferred alternative or to the recommended wilderness in any of the alternatives. The FEIS totally fails to engage the requirements to address Need as directed in the Handbook.
4. Failure to Protect Roadless Areas
The FEIS fails to protect roadless areas as called for in the (1) Roadless Area Conservation Rule and in (2) regional commitments to protect roadless area values.
4.1. The Roadless Area Conservation Rule has been upheld as the law of the land.
57 The final Roadless Area Conservation Rule states:
“A road may not be constructed or reconstructed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.” and
“Timber may not be cut, sold, or removed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.”
In a strong move to uphold public opinion and a rule making process that involved the most public participation in history, the 9th U.S. Circuit Court of Appeals reinstated the U.S. Roadless Rule, thereby protecting all roadless areas on the Southern Appalachian national forests. The upholding of this rule codifies the lawful prohibitions proscribing the management actions proposed for many of the inventoried roadless areas, as outlined below. The upholding of this rule is a clear vindication of the right of citizens to have a voice in the conservation of the last remaining wild areas on their national forests.
How will the forests re-render the sections of the respective FEISs which outlined management direction inconsistent with the Rule? Will these sections be re-written or removed from the final plan? In what prescription(s) will the inventoried roadless areas be placed to ensure the protections codified in the rulemaking? Will there be a single, region-wide prescription used? If no, why? Will there be a single, region-wide standard used? Why? Or will the respective forests be responsible for proper implementation of the rule with appropriate prescriptions? In our view all inventoried roadless areas should be placed in a prescriptions commensurate with the protections afforded them by the Roadless Conservation Rule—either 1.B or at least a 12 C or 12 B. These prescriptions should be uniform and consistent across the region. (Idiosyncratic localizations of roadless prescriptions should be eliminated—example: the localized 12A on the Chattahoochee.) Roadless Character was also to have been maintained under assurances of “Regional Guidance” for these plan revisions.
4.2 The region’s “Goals/Design Criteria for Developing the “Rolling Alternative" (3/13/2000 version – last available version) states:
“With a few exceptions, those inventoried roadless areas not recommended for Wilderness would be in prescriptions that will retain their unroaded character and prohibit new road construction.”
The provisions under which roads and timber harvest would be allowed under the roadless rule are narrowly prescribed in the roadless area rule (e.g. road needed for public health and safety, prevent irreparable resource damage; timber harvest for TES species, restore ecosystem composition and structure, etc.). Examples given for exceptions to the regional guidance were also narrowly defined (road realignment for a classified road).
58 WE assume that roadless areas will be allocated to prescriptions that maintain their roadless character. However, the following discussion of inconsistencies in roadless area protection across the forests is retained to demonstrate the current sate of the drafts, which reflect not only a premature abandonment of the roadless rule but also a disturbing disregard for strong public sentiment that clearly favored maximum protection of roadless areas across the region.
The Plan opens the door to erosion of roadless values, placing inventoried roadless areas in prescriptions allowing road building and vegetation management, including timber harvest. The roadless and wilderness issue is one of the major issues identified as a regional issue for all the forest plans. However, the approach in the plans and FEISs to protecting roadless values is inconsistent and inadequate. Prescriptions have different objectives and standards and mean different things on different forests so that prescriptions protect roadless values to different degrees on different forests. The regional criteria for protecting roadless values seem to have gotten diluted and confused in the plans, and there seems to be a fundamental confusion within the plans about the objectives for protecting roadless values. Furthermore there seems to be a confusion of intent in the plans about whether they do intend to protect roadless values.
The FEIS for each forest is inconsistent in its own documentation of which prescriptions are considered compatible with maintaining roadless character. Alabama allocates roadless areas to 1B (Cheaha A and part of Cheaha B Addition 540 acres), 12B (Blue Mountain), 12A (Oakey Mountain), 4B1 (Reed Brake), and 7E2 (Part of Cheaha B). It considers all of these maintaining roadless character except 7E2. 416 acres of Cheaha B in 7E2 is considered to not maintain roadless character; this is 3% of roadless acres; 97% considered to maintain roadless character. But, in reality, the prescriptions assigned to most roadless areas do not protect their roadless values. For all the Forests except the Cherokee in Tennessee, the vast majority of roadless areas will not be protected according to the Roadless Rule. The following chart shows how much of the roadless areas acreage could be sacrificed under these new plans
Plan Prescriptions Allowing Road Building and Logging Roadless Allocations in new Southern Appalachian Forest Plans
Forest Inventoried Roadless acreage Acres in Rx less protective than Rule % Not Protected
Alabama 12,437 11,298 91.0%
Chattahoochee 63,661 55,198 86.71%
Cherokee 84,715 26,213 30.94%
Jefferson 152,310 120,983 79.43%
Sumter 6,139 5,308.6 86.48%
59 2. Wild and Scenic Rivers
Analysis for rejecting Brushy Fork as a potential Wild and Scenic River was nonexistent. Appendix D in the FEIS covers Wild and Scenic River review, and it is all of three pages long. It is totally unknown how the agency determined that Brushy Fork is not eligible and that Five Runs Creek is. No breakdown of the analysis process is given. There is no evidence that the team working on that issue ever even went out to look at the streams in question.
Figure 1: Collier Canyon in the Bankhead National Forest is part of our proposed Brushy Fork Wild and Scenic River system, but it will not be protected by the Forest Service, because they decided without any analysis that it is not wild or scenic. Photo by Ray Vaughan.
Figure 2: Sougahoagdee Falls in the Bankhead National Forest in Alabama is also part of our proposed Brushy Fork Wild and Scenic River. Photo by Ray Vaughan.
The Alternative I map for the Conecuh shows Five Runs Creek as 2.C. Eligible for Scenic River status, but the Plan never discusses that nor makes it recommended. If
60 the suitability study needs further work, as the Plan hints, that needs to be more fully explained.
This lack of information and analysis has serious California v. Block type problems. Any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. California v. Block, 690 F.2d 753, 765 (9th Cir. 1982) (quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1284 (9th Cir. 1974)).
The legal arguments for the failings in the wilderness analysis also apply fully here to the failings in the wild and scenic river analysis and are full incorporated herein by reference.
61 3. Lots of new goals, objectives and standards added illegally for oil and gas leasing and minerals development.
Without public notice, review or opportunity to comment, the Final Plan added a number of significant and serious new goals, objectives and standards related to mining and oil and gas drilling. Some are very specific, such as “Applications for federal mineral leases, licenses, and permits are processed within 120 days.” (Objective 32.1) and “Operations proposed under outstanding and reserved mineral rights are processed within 60 days and 90 days, respectively.” (Objective 33.1).
The Plan clearly places oil and gas development above all other uses (“Management Prescriptions, Management Area Direction, and Forest-wide Direction are subject to outstanding and reserved mineral rights.” Standard FW-157.) This is a violation of the multiple use principles in the Multiple Use and Sustained Use Act (MUSYA).
None of these new goals, objectives or standards were subject to public notice, review and comment, and none of them underwent ANY NEPA analysis. (See NEPA section below.)
ALL alternatives had exactly the same area of the Forests open to mineral exploration and development = 92.2%. (FEIS, Table 2-16, page 2-26.) This violates NEPA, as discussed below in the NEPA section on the agency’s failure to consider an adequate range of alternatives. (See below.)
The FEIS specifically references and discusses Executive Order 13212, (Actions to Expedite Energy-Related Projects) of May 18, 2001, which was NEVER mentioned in the DEIS. See FEIS at 3-61. This is yet another instance of sandbagging the public by slipping significant new items into the Final Plan and FEIS that were never in the Draft Plan and DEIS for the public to review and comment on. Clearly, the Executive Order, which was issued in May 2001, could have easily been included in the Draft Plan, which was issued in February 2003. Similarly, all the mining and oil and gas drilling materials added into the Final Plan that were not in the Draft Plan were available to the agency when the Draft Plan was released, and there is no reason why the agency could not have include those items in the Draft Plan for public review and comment.
The FEIS also discusses the BLM’s RFD for the National Forests in Alabama. The FEIS states:
“The Forest Plan analyzes those areas of the Forest with leasing interest or mineral potential using the ‘Reasonable Foreseeable Development Scenario’ (RFD) developed by the BLM geologists. This study looked at the long term (10 years) potential for oil and gas development in the study area, and projected the number of wells they anticipated would be drilled during the 10-year period. Under the Revised Forest Plan, the BLM can proceed to issue oil and gas leases in
62 areas where the Plan makes both the availability and the consent decision. The Plan’s environmental analysis and documentation for federal oil and gas is more detailed than it is for other leasable minerals because of the two oil and gas lease decisions which are made in the Plan.” (FEIS at 3-62.)
It is important to note that this section of the FEIS plainly states that the Final Revised Plan is making final, implementatble decisions, referencing the “Plan’s environmental analysis and documentation for federal oil and gas,” but there is NO environmental analysis and documentation in the Plan for federal oil and gas leasing. The Plan consents to oil and gas leasing anywhere it is allowed under the plan, which is 92.2% of the Forests.
The FEIS requires that, for limitations placed on the surface activities of drilling by the Forest Service, those limitations will be “considered consistent with the lease rights granted, provided they do not require relocation of proposed operations by more than 200 meters, require that the operations be sited off the leasehold, or prohibit new surface disturbing operations for a period in excess of 60 days in any lease year.” (AL FEIS at 3-63.) These limitations severely restrict the agency from preventing damage to surface or aquatic resources when permitting drilling operations; they prevent serious use of directional drilling. NONE of this is in the Draft Plan and DEIS, and thus, none of it was subject to public notice, review and comment. There is NO NEPA analysis for these limitations, either.
The FEIS has an entire appendix devoted to the limitations and stipulations to be placed on oil and gas drilling and minerals development. (AL FEIS Appendix I.) None of that was in the DEIS and none of it was available for public review and comment, in complete violation of NEPA.
Most of the National Forests should be in category 1 and withdrawn from possible mineral leases and development. The draft Plan stated, “These lands have either been withdrawn from mineral entry administratively, by law or the Forest has determined that a prescription goal cannot be accomplished if the lands were open to mineral entry.” (AL Draft Plan at 2-49.) This statement was then dropped from the Final Plan, without explanation, but it is an admission that the Plan itself, through use of prescriptions, can limit the areas opened for mineral leasing. No law requires that most of the forests be open to mineral leasing.
Only 7% of the forests are placed in category 1. 86.4% of the 541,000 acres where the mineral rights are held by the public will be open to mineral leasing and full development under the standards in the Plan. Yet, the vast majority of the lands in these forests should be withdrawn from mineral entry, because a prescription goal cannot be accomplished if the lands are open to mineral entry. Since most of the lands in these forests are prescribed for restoration and/or recreation, it will be impossible to meet restoration and recreation goals in the midst of active mining. All lands prescribed for restoration or recreation should be placed in category 1 and withdrawn entirely from possible mineral leases, entry and development.
63 The Regional office overrode local decision-making on what is best for these forests. It is clear that local managers who know these forests best would indeed place most of the forests in category 1 and withdraw them entirely from mineral entry and leasing. But the regional and national offices took over (after the Draft Plan and after the comment period) and kept an Administration drive to mine and drill as much public land as possible viable for these lands that should never have such development. Overriding local knowledge and not having any support for such a decision is arbitrary and capricious. Failing to disclose this plan to push oil and gas drilling and coal mining without impacts analysis and without giving the public an opportunity to comment on it are clear NEPA violations. Failure to consider an alternative that opened less of the Forests to mineral leasing was also a clear and egregious NEPA violation.
64
4. Old Growth.
The old growth section of the Plan was beefed up with more narrative, maps of “potential old growth” (meaning merely maps of areas not suitable for timber production), and a few tables. (Final Plan at 2-39 through 2-47.) NONE of this was in the draft Plan or DEIS, so it thus was not available for public notice, review and comment.
As in the Draft Plan, the old growth section in the Final Plan has only one goal and one objective, but no standards. (AL Draft Plan at 2-34, and AL Final Plan at 2- 41.) The goal is Afuzzy@ and does not protect all existing old growth, as it allows Afuture old growth@ to meet the goal. This is not good enough. All old growth and potential future old growth must be mapped and explicitly protected. Only the Jefferson mapped existing old growth.
The Final Alabama Plan did not follow Regional Old Growth Guidance. In a regional guidance document dated February 7, 1995, entitled “Inventories for SAA/Forest Plan Revisions,” the Regional Office directed:
“The Following guidance clarifies some questions related to these [old growth] inventories:
“Suitable and unsuitable forest land that is not located within areas such as Wild and Scenic River corridors, Wildernesses, SIAs, RNAs, etc., [sic] and is less than 100 years in its age classification; should not be included in the inventory unless:
“● the area(s) represents communities not already represented by areas that are 100 years or older;
“● the area(s) contains a high level of characteristics that are mixed in, or next to, forest communities containing 100 plus aged trees; or
“● the area(s) have been recommended by private citizens, organizations, district employees, or State cooperators sometime in the past as having old growth forest characteristics.”
The Alabama Plan has none of this.
The lack of management standards for old growth is odd in that one of the MAJOR issues identified by the agency for the plan revision was “Old Growth.” The Final Plan states it this way:
65 “3. Old Growth: The issue surrounding old growth has several facets, including: (1) how much old growth is desired, (2) where should old growth occur, and (3) how should old growth be managed?” (Final AL Plan at 1-6.)
Why state that “how should old growth be managed?” is an issue in the plan revision and then have the Revised Plan have absolutely nothing on how old growth should be managed? This is clearly arbitrary and capricious.
The sole objective in the old growth section is: “Complete field verification of possible existing old growth areas in our current inventory, and map small and medium patches.” (AL Draft Plan at 2-34; AL Final Plan at 2-41.) This field work for the inventory should have already been done and be part of the information for the public and decisionmaker to review in the draft Plan and DEIS. Without it, there can be no NEPA compliance.
The DEIS and FEIS both stated, “All existing inventoried old growth would be protected, and there would be an adequate representation of old-growth patches of those communities found on national forest lands.” (AL DEIS at 2-11; AL FEIS at 2-11.) BUT there is no “existing inventory” of old growth, and there are no objectives and standards for maintaining that “adequate representation of old-growth patches.”
The Response to Comments states, “The ‘old growth network’ is provided for through a combination of the lands allocated to the old growth compatible management prescriptions, and a forest-wide standard that protects the ‘existing old growth’ found in the other management prescriptions.” (AL FEIS Appendix J at J-154.) This is disingenuous, at best, and an outright lie, at worst, because there is NO forest-wide standard that protects the “existing old growth.”
The old growth section should have an objective of retaining all existing old growth. The old growth section should have standards, such as: (1) no harvesting will be done anywhere until the old growth field inventory survey is done, (2) no cutting existing old growth trees or patches and (3) leaving buffers around all old growth stands or patches. We requested that these standards be added to the final plan, but no response or change was made. In a clear violation of NEPA and the APA, the Response to Comments is clearly nonresponsive to this specific comment we raised:
“7-49. Public Concern: The Forest Service should protect old growth forests.
“FOR BIODIVERSITY AND DIVERSE ECOSYSTEMS
“TO BENEFIT BEES, BIRDS, AND OTHER WILDLIFE, PLANTS, AND VALUED ELEMENTS
“FOR STUDY AND THE FUTURE
“BECAUSE THERE ARE FEW AREAS OF OLD GROWTH REMAINING
66 “BY ESTABLISHING STANDARDS TO IDENTIFY AND PROTECT OLD GROWTH PATCHES
“Response: See response to PC 7-48.
“7-50. Public Concern: The Forest Service should specify desired future conditions, objectives, and standards for all old growth in management prescriptions.
“Response: The old growth section in Chapter 2 of the Plan discusses management of old growth. The emphasis and DFC of the management prescriptions describe old growth compatibility.” (FEIS Appendix J, at J-148.)
The Plan claims that this Plan was developed in coordination with the plan revision of four other forests in the Southern Appalachians. The “joint Notice of Intent (NOI) was issued in the Federal Register August 1, 1996. This new NOI marked not only a new beginning for revising the Alabama Forest Plan, but also included the other four national forests in the Southern Appalachians, embarking us on an unprecedented process of coordination and cooperation.” (AL ROD at 15.)
Yet, on old growth, the Alabama Plan deviates significantly from all of the other four plans revised in the same process. The Chattahoochee-Oconee Final Plan has standards, and the Alabama should also. Chattahoochee-Oconee National Forests Final Plan at 2-17 – 2-18:
“STANDARDS
“FW-044 In 6th level HUCs with 1,000 acres or more of National Forest and less than 5 percent already allocated to old growth or old-growth compatible management, increase the old growth conservation to a total of 5 percent of the National Forest area by identifying additional small blocks of less than 100 acres. Once reserved, these blocks will be managed to protect their old growth characteristics during this Plan cycle.
“FW-045 Additional small old growth blocks are not required to be identified at 6th level hydrologic unit scale before vegetation management projects that would negatively affect meeting the old growth criteria occur at smaller scale, such as a sub-watershed or compartment, but incremental progress will be made toward the 6th level HUC old growth objective, if not already satisfied, by reserving an amount consistent with the proportion of the watershed included in the project area.
“FW-046 Where vegetation management projects that would negatively affect old growth characteristics are being proposed, and the oldest age class of the affected stands meets the minimum age for their particular old growth type, collect data
67 sufficient to determine if stands meet the four defining criterion for existing old growth. If so, give priority for old growth conservation in satisfying the small block objective during this Plan cycle.
“FW-047 The minimum old growth block size for tracking purposes is ten acres.
“FW-048 In reserving small blocks of future old growth, give first preference to those stands that most-nearly meet the criteria for existing old growth, then decreasing preference with increasing departure from the old growth criteria; that is, quality is more important than block size or distribution within the watershed.
“FW-049 In reserving small blocks in all ecological sections, first priority is given to stands meeting the four defining criteria for existing old growth in the Regional Old Growth Guidance.
“FW-050 In reserving small blocks in the Southern Ridge and Valley ecological section, the secondary priorities for additional representation are in the order of: (1) river floodplain hardwood, and (2) all others.
“FW-051 In reserving small blocks in the Southern Appalachian Piedmont ecological section (Oconee Ranger District), secondary priorities for additional representation are in the order of: (1) eastern riverfront forest or dry-xeric oak forest, woodland, savanna; (2) xeric pine and pine-oak forest; (3) dry mesic oak forest or mixed mesophytic; and (4) all others.
“FW-052 In reserving small blocks in the Southern Appalachian Piedmont ecological section portion of the Chattooga Ranger District, secondary priorities for additional representation are in the order of: (1) dry-xeric oak forest, woodland, savanna; (2) mixed mesophytic; (3) dry and dry-mesic oak-pine forest and (4) all others.
“FW-053 In reserving small blocks in the Blue Ridge Mountains ecological section, the secondary priorities for additional representation are in the order of: (1) river floodplain hardwood, (2) dry and dry-mesic oak-pine, (3) conifer- northern hardwood, and (4) all others.
“FW-054 In the Blue Ridge Mountains ecological section, except for old growth community types 22 (dry-xeric oak forest, woodland, and savanna) and 24 (xeric pine and pine-oak forest, woodland, and savanna), conserve each stand meeting the criteria for existing old growth by not implementing management actions that would result in obvious human-caused disturbance that conflicts with old growth characteristics.
“FW-055 Give priority consideration to meeting woodland restoration objectives in stands meeting the following criteria:
68 “• Located in the Blue Ridge Mountains ecological section “• Old growth types 22 (dry-xeric oak forest, woodland, and savanna) and 24 (xeric pine and pine-oak forest, woodland, and savanna) “• The oldest age class at least minimum old growth age. In achieving those objectives, leave conditions that meet the criteria for existing old growth in these types when compatible with the purpose and need for specific projects affecting these areas.”
Why does the Chattahoochee-Oconee Plan has such detailed standards for old growth and the Alabama has NONE? That is not reasonable decision making.
The Jefferson National Forest Final Plan has old growth standards. Indeed, the Jefferson Plan has an entire appendix on old growth (Jefferson Final Plan Appendix B). The Jefferson Plan has an old growth objective with specific acres of old growth, not speculation like the Alabama Plan.
“OBJECTIVE 13.01 Provide the following acres of each community type in an old growth or late-successional condition by the end of the decade:
Cherokee National Forest Final Plan also has an entire appendix devoted to old growth (Cherokee Final Plan Appendix D). The Cherokee Monitoring Plan (Cherokee Final Plan Appendix G) also includes monitoring tasks specifically related to surveying for old growth (Tasks 3.01, 3.02, and 3.04). The Alabama Plan has nothing like that. The Cherokee Plan also has a standard related to old growth that the Alabama Plan should have:
“FW-46: IDENTIFY OLD GROWTH PATCHES DURING PROJECT PLANNING USING CRITERIA OUTLINED IN GUIDANCE FOR CONSERVING AND RESTORING OLD-GROWTH FOREST COMMUNITIES ON NATIONAL FORESTS IN THE SOUTHERN REGION 1997. CONSIDER CONTRIBUTION OF IDENTIFIED PATCHES TO THE DISTRIBUTION AND ABUNDANCE OF THE OLD GROWTH COMMUNITY TYPE AND TO THE DESIRED CONDITION OF THE APPROPRIATE MANAGEMENT PRESCRIPTION DURING PROJECT ANALYSIS.” (Cherokee Final Plan at 38.)
69 Even the Sumter National Forest Plan has an old growth standard that is better than the no standards in the Alabama Plan. Sumter Final Plan at 2-11:
“Old Growth
“FW-33 Existing old growth as defined in “Old Growth Guidance for the Southern Region,” when encountered, will be managed to protect the old growth characteristics.”
The Forest failed to follow regional guidance on old growth. The Forest Service in 1997 published Guidance for Conserving and Restoring Old-Growth Forest Communities on National Forests in the Southern Region. Contained in this document are the following guidance/directions:
Page 2 Team Goals and Objectives – “Today, old-growth forests are limited in area and distribution on the southern landscape ------. For this reason, strategies addressing old-growth forest communities will primarily address restoration of existing second-growth forests to develop old-growth attributes over time. Also of importance are identifying existing old-growth forest communities and developing directions for these representative sites.”
Page 8/9 “In preparing to revise forest plans and prior to alternative development, a preliminary inventory of possible old growth will be conducted on the national forest to analyze the distribution and representation of possible old-growth communities. ------. The preliminary inventory process and screening criteria include: ------2. Include stands identified as old growth through past inventories or land management decisions. 3. Include areas allocated to old-growth management through past land management decisions. 4. Identify additional areas as possible old growth. ----. Since a final inventory of those forests containing old-growth characteristics will not be available for many years, an inventory of additional areas of possible old growth will be required as part of the current forest planning process ---. 5. Display the preliminary inventory information in both spatial and tabular format for all stands identified in the inventory by individual national forest and by ecological section. Make the inventory available for public review prior to the development of alternatives in the forest plan. “
Pages 11/12 “Determining Forest-Wide Old-Growth Issues. ----- National forests should actively seek public input and participation while addressing this issue. ---- Other Federal agencies, State agencies, non-governmental organizations, and academia must be included when developing issues and strategies for old-growth forests. After the public scooping process and following the issuance of the notice of intent to revise forest plans, the national forest will clarify and define the old-growth issues for each forest plan. The clarification should include land allocation concerns, biological values and requirements, and social values. Public involvement will be important in
70 determining the areas to be allocated to old growth in the forest plan alternatives and in developing the desired future conditions and objectives.
Pages 14/15 “Developing Directions for Old Growth in Forest Plans - National forest managers will consider a range of possible areas to be allocated to old growth through the forest plan alternatives and the NEPA process. The amount of land allocated will be based upon the issues developed during public scoping, the goals and objectives within each alternative, and the ecological capabilities of the planning area. ----Since very little old growth currently exists, managers will emphasize areas for developing or restoring old growth. This planning guidance includes developing a network of old-growth areas of varying sizes to provide for the distribution, linkages, and representation of all old-growth forest community types on national forest lands. - ----This process ---- will be open to the public. -----In addition, managers will identify the methods by which these goals, objectives, standards and guidelines relating to old growth will be monitored. ------The DFC description, objectives, and standards will be quantified in terms of measurable parameters (i.e. acres or proportion of an area). Maps will be included showing areas allocated to old-growth management. ------National forest managers will develop a network of old-growth areas of various sizes and will develop management prescriptions for these areas.”
Page 16 “ National forests in the Coastal Plains, Northern and Southern Cumberland Plateau, Southern Appalachian Piedmont, and Mississippi Alluvial Valley will, at a minimum, provide management direction for establishing a network of medium and small sized old-growth restoration ecological areas during forest plan revisions.”
Page 22 “Effects Analysis – In describing the effects of the different forest plan alternatives, the followings items should be addressed: (1) identify how old growth relates to other resources, and to social and economic issues; (2) for each alternative, identify those areas that, because of land allocations and prescriptions, will move toward an old-growth condition in the future (include such areas as Wildernesses, research natural areas, and special areas); and (3) disclose the effects on the old growth component and the old-growth restoration areas of each alternative. These effects should be quantified using acres as the unit of measurement.”
Page 16 “Forest Plan Monitoring – A long term, old-growth monitoring program should include the monitoring of management activities associated with old growth to determine if directions in the forest plan are being implemented as stated. -----. The implementation of this monitoring program will be challenging considering national forest budgets and workloads. Determining the status of old growth will take many years. National forests are encouraged to develop partnerships with researchers, other agencies, and public interests to implement the monitoring programs.” (Emphasis added.)
71 Plan and FEIS fails to comply with Old Growth Guidance
The FEIS treatment of old growth is not organized well and is confusing. It also does not address key elements of the regional old growth guidance38. A number of provisions have not been followed or have not been followed well. In particular under Developing Directions for Old Growth in Forest Plans, “National forest managers will develop a network of old-growth areas of various sizes and will develop management prescriptions for these areas”. The guidance further requires addressing the “representation”, “distribution”, and “linkage” of old-growth patches.
The OG issue seems to have been addressed very haphazardly. A few items in the OG guidance were latched onto, but many items seemed to be ignored. The plans do not use possible, future, and existing OG as outlined in the guidance. A real puzzle is “where the patches went”? They are mentioned, but the patches are the items that should have acreage figures and delineations. These are glaringly absent. The tables use acreages for possible OG, future OG, OG compatible prescriptions in a seemingly random manner instead of addressing the OG patches. None of the plans document these patches and this is a very clear direction from the guidance. The tables included in the plans and FEIS are confusing and don’t relate well to the guidance.
The forests have addressed establishing an old-growth network, but the treatment is so confusing that it is not possible for the public to discern what this old growth network would look like. No maps of the old growth network are provided although this would have been simple to display.
There is a fundamental lack of clarity in the discussion of old growth about what type of old growth is being discussed. The old growth guidance went to great pains to define several categories of old growth, in particular “existing old growth”, “possible old growth, and “future old growth”. The FEIS frequently discusses old growth or displays tables of old growth without revealing which category of old growth is being discussed. This makes following the discussion very difficult.
The Plan and FEIS fail to adequately address the development of a “network of old- growth areas”
This seems to be largely neglected by all the forests. Yet the Regional OG Guidance states: “A centerpiece of the regional guidance for conserving old-growth communities is a network of old-growth areas. Many of the concepts regarding this network of old-growth areas come from landscape ecology theories (Harris 1984, Hunter 1990, Vankat and others 1991). These theories relate to the effective patch size, the distribution of patches, across the landscape, the relationship of the patches to the adjacent forest matrix, and the relationship or connectivity of the patches.” (p. 15 OG Guidance).
38 1997. Guidance for Conserving and Restoring Old-Growth Forest Communities on National Forests in the Southern Region, USDA, Atlanta. Attachment 13.
72 While the plan and FEIS discuss creating an old growth network, nowhere is this network displayed or defined in a way that the public could judge its adequacy. The regional old growth direction is very clear on what constitutes the old growth network: it consists of large, medium, and small old growth patches. The large and medium patches are supposed to be delineated in the plans. However, it is fairly clear that they have not been delineated except as categories of prescriptions that are compatible with future old growth.
There are a number of ways to meet the regional old growth guidance for having a “network” of large, medium and small old growth patches. These “patches” do not need to be specifically allocated to a Management Prescription 6. Old growth management can be met in other management prescriptions as well. When all the compatible prescriptions were mapped out, along with a forest-wide standard to protect any stand that meets the criteria for “existing old growth” (which can include either stands currently inventoried or stands identified sometime in the future), a determination would be made as to whether or not this “old growth network” was adequate, or if other specific old growth allocations were needed to fill in any “gaps” in the “network”. In most cases, it was determined that the combination of the allocations of all the old growth compatible management prescriptions, along with the forest-wide standard on “existing old growth”, that the resultant “old growth network” was sufficient to address the old growth issue. But unlike the other Southern Appalachian plans, Alabama’s Plan has no forest-wide standard protecting existing old growth.
However, the plan fails to specify the nature of this network other than to specify the prescriptions that are judged to be compatible with “future old growth” and areas from the “possible old growth” inventory. However, there is no specification of large and medium patches as required in the Regional Old Growth Guidance. The lumping of future and possible old growth is insufficient as an old growth network. Possible old growth has no protection in the plan until and unless it is identified as existing old growth. Future old growth has no qualification as to what old growth status it currently has. There will be areas within future old growth that have been recently logged. The old growth network should give the public clear information on what areas are possible old growth as well as what areas have old growth protection into the future. Lumping future and possible old growth reveals only a future “potential network”. Possible old growth within prescriptions allowing logging may be cut in the future. Future old growth may be recently harvested stands that will take centuries to become existing old growth (by Regional OG Guidance criteria). Prescriptions for areas classified as future old growth may be changed in future management plans. The LMP does not establish an old growth network that can be evaluated by the public for current conditions and in terms of long- term commitment to old growth values as reflected in the Regional old growth guidance.
Future old growth is presented in the LMP and FEIS as a long-term decision. However, it is in fact a 10-15 year decision. The determination of an old growth network should be performed independently of prescription designation in recognition that it is a
73 longer term commitment if it is to make any sense in terms of the definition of old growth.
During the planning process the public has repeatedly expressed interest in capturing high quality old growth in the “old growth network” that will be old growth in the future. There is the obvious potential for a shell game where the best candidates for old growth are placed in the timber base while already cut over lands are put in “future old growth”. However, this issue is not addressed in the plan or FEIS. This issue should be addressed in the FEIS by displaying (in maps or Tables) how well the “future old growth network” captures “possible” (and where available) “existing” old growth. The FEIS provides no way for the public to make this assessment.
Most of the forests have performed work toward a “preliminary inventory of possible old-growth”, although many of the products detailed in the guidance that should be made available to the public have not been provided. There is also a lack of Goals and Objectives to carry out the field surveys and monitoring at the project level that is outlined in the old-growth guidance.
Large and medium OG patches are supposed to be organized around “possible old growth” identified in a plan inventory. The SAA did a preliminary inventory and the forest plans were supposed to refine this inventory for the planning process. CISC data is one of the sources of information for this inventory. However, a number of other factors were supposed to determine this inventory of “possible OG”, including public inventories. The Cherokee Forest Voices inventory on the Cherokee is not mentioned.
It is also significant that the large and medium patches are (according to the regional guidance) to be organized or built around this inventory of possible OG. This inventory of “possible” old growth (as a derivation relying solely on CISC data as opposed to many potential sources in the Guidance) is mentioned, but there is no discussion or analysis connecting this inventory to the allocation of “future old growth” or the old growth network. There seems to be no evidence or discussion in the plans or FEIS that this occurred.
On the contrary it is apparent that the special area allocation (e.g. 1A, 1B, 12A, 12B, 12C, etc) were taken as the de facto OG patches (or OG compatible prescriptions) with no provision for how this would be a “network” of future OG.
The Plan and FEIS inadequately addresses representation, distribution, and linkage of old-growth patches
There is some discussion of representation of forest types, but there is little substantive discussion on distribution. The discussion of representation within ecological sections as a surrogate for distribution is inadequate. The ecological sections are so large that it is not a reasonable scale to examine representation or distribution. An appropriate level of distribution would be at the Management Area level. The appropriateness of
74 Management Area level distribution was discussed extensively during development of the Guidance.
Nothing within the FEIS would lead the public to think that large and medium patches aside from prescription allocations have been specified, mapped, or analyzed. Further this lack of specificity in the “old growth network” leads one to doubt that “representation”, “distribution”, and “linkage” of old growth have been adequately addressed.
The plan addresses representation of future and possible OG within OG forest types cross-walked to CISC forest type. However, they do not discuss representation of forest communities within OG patches. This highlights the flaw in examining old growth only in terms of future and possible old growth rather than in examining representation of large and medium old growth patches. Possible old growth has no assured status in the plan and future old growth has unknown quality of old growth characteristics. Old growth of appropriate rare community types (e.g. Basic Mesic) is not discussed at all.
Small patches were envisioned in the Guidance to provide “connectivity”. There is little evidence in the plans that the small patches would be allocated in this way either at the plan or project level.
Prescription objectives, standards, and guidelines fail to address old growth
The regional guidance directs that there should be prescription specific standards: e.g. “The management prescriptions will specify the type of strategies for the areas allocated to old growth.” (p. 20 OG Guidance) Note that areas allocated to OG includes all areas considered large and medium patches – not just 6X prescriptions.
The response to comments states:
The national forests in the southern Appalachians are in different situations in terms of their old growth inventories of “existing old growth”, with some further along than others. Inventories from other groups/organizations can be presented to the Forests, but they still need to be verified that they meet the criteria for old growth as spelled out in the regional old growth guidance.
Since these inventories are generally at the stand level, they are not allocated to specific management prescriptions in the LMP. Instead it is recognized that these stands could occur in any management prescription allocation, and in order to protect those stands of existing old growth, a forestwide standard is included in the LMP to provide that protection. This standard applies to both those stands currently identified as existing old growth, as well as any stands that may be identified in the future as meeting the criteria for “existing old growth”. So even though the CNF may not have a completed inventory now, any project level evaluation will have to see if any of the stands proposed for management activities meet the old growth definition.
75 (AL FEIS Appendix J at J-152.)
Previous inventories have been presented to the Forest Service (SAFC letter from 1999 and Maps), but these are not documented in the plan and FEIS. There is also no acknowledgement that these surveys were incorporated as “possible old growth” as discussed in the Regional Old Growth Guidance. However there are no standards or guidelines nor any other guidance in the plan to guide the forest in how inventories from groups/organizations will be dealt with, how or when field verification will take place, or how these areas will be managed until field verification takes place.
The plan fails to describe Desired Future Conditions (DFCs) for old growth on the forest:
The regional OG guidance establishes a framework where project level planning for OG tiers to DFCs in the plan. The plan does not use prescription 6 and does not establish DFCs for old growth in other prescriptions (even those compatible with future old growth), nor does it establish old growth DFCs under Management Area direction, nor in the Forest-wide direction. The plan inappropriately avoids direction in the regional OG guidance. But there are several places in the Old Growth guidance that calls for DFCs in these places.
Monitoring and Evaluation fail to address old growth issues
Monitoring of OG is addressed (if at all) only very obliquely in all the plans. Yet the regional guidance calls for detailed monitoring of old growth at both the plan and project level. The plans seem to have ignored this requirement. See Forest Plan Monitoring (p. 22, OG Guidance), Field Inventory Monitoring (p. 26, OG Guidance), and Monitoring Old-Growth Forests (p. 27, OG Guidance). It is also not clear that the Information Management Guidance (p 27 – 28, OG Guidance) is being implemented by the Plans.
The Plan and FEIS fail to adequately address “existing old growth”
The only forest that documents “existing old-growth” is the Jefferson. The Jefferson has had an ongoing forest survey for OG since 1989. They state: “To date, over 50,000 acres of existing and/or potential existing old growth has been identified.” None of the other forests has an old-growth survey program.
The Forest Service has not recognized other inventories presented to them as “existing old-growth”. They haven’t recognized these independent surveys (survey data transmitted to FS 1999) as “possible old-growth” either. The old-growth guidance doesn’t require the FS to accept independent surveys as existing OG, but it doesn’t prevent their acceptance as existing OG either, particularly if the protocols and operational definitions in the OG Guidance are followed. The guidance states: “The information collected or verified (emphasis added) by Forest Service natural resource professionals will be used to make project-level decisions concerning old growth, to implement the forest plan, and to monitor and report forest-wide old growth. (p.23 OG Guidance).Clearly a forest has the discretion to accept independent surveys as existing OG. What verification would mean is not spelled out, but the FS should have a great deal of discretion in this from “verification” of methodology to replication of the survey.
The OG Guidance does require the FS to include these areas as possible OG and this has clearly not occurred where it has been provided. Inventories supplied by the public are listed as a source that should be used. “Utilize people … consult other inventories concerning possible old growth on national forest lands as appropriate (including information from other agencies and the public).” (p. 9 OG Guidance)
Further, the guidance requires the FS to “Display the preliminary inventory information … Make the inventory available for public review prior to the development of alternatives in the forest plan.
A purpose for the preliminary inventory is to ensure that management options related to possible old growth on national forests are identified, so the areas can be fully considered during forest plan revisions. Once these possible old-growth areas are identified in the preliminary inventory and until the revised forest plan is approved, the environmental analysis for project-level activities proposed within these areas will consider the effects the proposed action has on the area’s old-growth forest characteristics.” (p. 9-10 OG Guidance)
However, this preliminary inventory has not been displayed at the Draft or Final stages although this has repeatedly been requested. The amalgam of future and possible old growth is displayed in the Plan, but the fact that this is an amalgam prevents adequate review by the public. In fact the public has no way of evaluating whether previous inventories conducted by Wild Alabama/Wild South and SAFC are included in the inventory of possible old growth. Previous inventories presented to the Forest Service are not mentioned in the LMT or plan.
The plan has no old-growth DFCs for Management Areas
The Management Area would be the appropriate place for OG DFCs and distributional goals. This was discussed extensively at planning meetings during Plan Revision. There is no use of them for this. The Management Area concept is for the most part non-functional in the plans. The Cherokee makes the most use of MAs, but mostly for roads objectives. Prescription allocation by MA is displayed on the Cherokee, but no goals for OG are discussed. Some of the plans use MAs for descriptive purposes only; some have some DFC, objectives, and standards, but not relating to OG.
Prescription 6 (6A, 6B, 6C) is inadequately utilized for old growth allocations
77 The National Forests in Alabama do not use prescription 6 at all. OG “compatible prescriptions” are used to supply old growth, but only based on complete speculation and guesswork. However, the regional old growth direction clearly envisions 6 being the primary vehicle in the old growth network.
78 5. Rejection of Quentin Bass information.
The Response to Comments spends just over two pages rejecting Quentin Bass’s information submitted by the Appellants. (FEIS Appendix J, at J-87 through J-89.) The response in the AL Plan seems is a non-responsive, canned response in that it talks about how ruffed grouse need dense early successional habitat. Ruffed Grouse aren’t in Alabama’s National Forests. As stated elsewhere in the FEIS Appendix J, “A ruffed grouse reintroduction was also attempted, but failed, due to edge of range complications.” (FEIS Appendix J, at J-69.)
The Forest Service rejects Quentin Bass’s materials and conclusions, because they were not peer-reviewed. “Unlike the scientific literature used and cited during planning, the specialist’s analysis has not been through the rigorous process of peer review, critique, and publication in mainstream scientific journals.” (FEIS Appendix J, at J- 88.) Yet, elsewhere, the Forest Service defends its use of non-peer-reviewed information when questioned about the adequacy of their viability analysis. “Although formal peer review of completed viability evaluations were [sic] not conducted, elements of external review and adjustment were incorporated throughout the viability evaluation process.” (FEIS Appendix J, at J-77.) The agency cannot base its decision making on such a double standard; the agency cannot have it both ways. If materials must be peer- reviewed and published to be considered in the decision, then other materials must also be. Failure to be consistent in this matter of science is plainly arbitrary and capricious.
The Forest Service violated multiple laws by failing to disclose, discuss or address the agency’s own historical records and related analysis that indicate that the natural forests of the Southern Appalachians were permanent, uneven-aged forests that did not involve successional stages and that fires, both natural and anthropogenic, played a limited role in the these natural forests.
Over the last seven years, as a staff archeologist for the Cherokee National Forest, and specifically as a member of the Interdisciplinary Team for this revision of the Cherokee National Forest Land Management Plan ("Forest Plan"), Quentin R. Bass has compiled and summarized the Forest Service’s own historic records of inventory and acquisition for the lands that are now the forests in the Southern Appalachians, and the agency’s own ecological studies of these lands from the time of this acquisition. These records show that the natural forests of the Southern Appalachians were, and could be, permanent, uneven-aged forests that regenerate through gap-phase dynamics rather than through succession, and that fire has played a relatively minor role in the development of these forests. By any measure, these historic records provide significant information and valuable insights into the National Forests’ natural ecologic processes and the types of trees and forest cover these processes create, information and insights that have been confirmed by subsequent decades of biological and ecological research in the Southern Appalachians.
79 Since a common theme for alternatives in this Forest Plan revision process was to “restore natural resources and processes,” this historic information on those natural resources and processes, from the agency’s own records, compiled by the agency’s own archeologist, should have been prominently disclosed and thoroughly addressed in the FEIS. It was not. To the contrary, the Forest Service kept this information from the public because it contradicted the agency’s predetermined approach of “active management” of the hardwoods areas of the National Forests in Alabama as a successional forest and because it undermined the agency’s predetermined goal of burning as much acreage as possible under the dubious assertion that widespread burning was a common and natural ecologic process. The Forest Service’s failure to disclose and address its own historic records and the further information consistent with those records violated NEPA and other laws.
The Historical Evidence From The Forest Service’s Own Records.
The information that Mr. Bass rediscovered, compiled, and reported to the Forest Service came from the agency’s own voluminous records of inventory and acquisition for the lands that now are the National Forests in the Southeast. These records included detailed descriptions of the types and qualities of the trees growing on these lands from foresters who actually walked over most of the land and recorded what they saw, translation of these surveys into detailed site maps, and published ecological studies by the Forest Service foresters responsible for this work. Pursuant to his assignment as a member of the Cherokee Forest Plan Revision Interdisciplinary Team, Mr. Bass summarized this information in several thorough reports to the agency, including "The Forest Ecosystem and the Effects of Land Use Patterns in the Southern Appalachian Physiographic Province, Inclusive of the Cherokee National Forest," and "Land-Use Effects in the Southern Appalachian Mountains and the Conasauga River Drainage."
Because the Forest Service is well aware of the contents of these reports, for purposes of this appeal, they may be summarized as supporting the following fundamental points:
1. Permanent, Uneven-Age Forests. In general, the natural forests of the Southern Appalachians do not pass through successional stages such as early, middle, and late. To the contrary, the forests that existed prior to large-scale logging and other exploitation at the turn of the 20th century originally were a permanent, uneven- aged or “all age” forest; which reflected a state of dynamic equilibrium and maintained itself through single-tree falls or small disturbances, a process known as "gap phase reproduction;"
2. Diverse Trees And Canopies Determined By Permanent Site Characteristics, Not By Succession. The natural forest types of the Southern Appalachians and the resulting terrestrial and aquatic plant and animal species are determined by the permanent environmental characteristics of the land itself, not by successional changes over time. These natural forests therefore consisted of permanent canopy types that reflected the characteristics of each particular growing site, including
80 the slope, elevation, soil, and water quality and quantity (for example, the Forest Service documented 56 natural canopy types in the Southern Appalachians). As these qualities varied from site to site, the resulting forests were composed of mixed tree species that graded into numerous permanent canopy types across the landscape; and
3. Limited Role of Fire In These Natural Forests. Fire, both natural and aboriginal, generally was not a dominant force in shaping the moist natural forest ecosystems of Southern Appalachian forests (the majority of the forest and the focus of most silvicultural activity where large trees occurred). Fire played a role on dry ridges and south slopes, but these fires were limited by the increasingly moist conditions as fires burned down from the slopes. The Southern Appalachians did not have the large landscape fires that are typical of western national forests.
It should be noted that the historical information is consistent with ecological research and models that establish most Southern Appalachian forests are naturally uneven-aged with composition and structure dependent primarily on slope, aspect, elevation, soil, and water regimes. As noted by Dr. Jonathan Evans, Assistant Professor of Biology at the University of the South:
[Mr. Bass] argues that the Southern Appalachian forest are characterized by: 1) permanent, uneven-aged forests; 2) a diverse tree composition determined by site characteristics and not by succession following large scale disturbance events; 3) a spatially and temporally limited role for fire in determined structure and composition of most forest communities in the Southern Appalachians.
I concur with all three of these premises and moreover these ideas are by no means unique to [Mr. Bass] but indeed represent the prevailing paradigm that has been established by many important scientific studies conducted in this region over the last fifty years. [Mr. Bass’s] major contribution here is not that these ideas are new but that the Forest Service's own historical forest inventory data clearly supports what is essentially well established ecological theory.
Dr. Evans cited multiple sources in his letter, and numerous additional sources confirm these fundamental points.
Despite the obvious relevance of this information to multiple issues in the Forest Plan revision, the Forest Service did not make these reports available to the public or disclose and analyze this information in this Forest Plan Revision EIS. The only reason this information is available to the public is because Mr. Bass filed a disclosure with the Office of Special Counsel that placed this information into the public domain.
The Information Unearthed In These Historic Agency Records Is Significant.
81 The information brought to light from these historic forest service records concerning the underlying biology of the hardwood areas of the National Forests in Alabama and the limited role of fire in determining these hardwood forests plainly is significant and extremely relevant to sound planning under the National Forest Management Act and the National Environmental Policy Act.
The Forest Service’s Failure to Disclose Its Own Historic Information And Related Analysis Violated NEPA.
1. The Forest Service Did Not Adequately Disclose Or Fairly Discuss This Information.
The National Environmental Policy Act (“NEPA”) has two central purposes: first, to ensure agency decisionmakers consider accurate, high quality information about environmental impacts and, second, to make this information available to the public and to encourage public involvement in decisionmaking. 40 C.F.R. § 1500.1(b); 40 C.F.R. § 1500.2(b), (d); Robertson v. Methow Valley Citizen’s Council, 490 U.S. 332, 349 (1989); North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1540 (11th Cir. 1990); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443, 446-48 (4th Cir. 1996). “[P]ublic scrutiny” is “essential to implementing NEPA,” 40 C.F.R. § 1500.1(b), and a detailed EIS “serves as a springboard for public comment. . .”. North Buckhead Civic Ass’n, 903 F.2d at 1540.
An EIS must provide a full and fair discussion of significant environmental information and impacts to foster informed decisionmaking and public participation. 40 C.F.R. § 1502.1; see North Buckhead Civic Ass’n, 903 F.2d at 1540-41; Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). An EIS must provide a “close objective appraisal of the issues. . .” North Buckhead Civic Ass’n, 903 F.2d at 1546. Thus, an EIS must make an objective, reasoned analysis of the evidence before the agency and make that evidence available to all concerned. See id. at 1540-41, 1546; Hughes River, 81 F.3d at 446-48; Friends of Endangered Species, Inc. v. Jantzen, 760 F. 2d 976, 986 (9th Cir. 1985); Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1473, 1479 (W.D. Wash. 1992), aff’d, 998 F. 2d 699 (9th Cir. 1993).
The revised Forest Plans and EISs are hinged on the premises that the Southern Appalachian forests are successional forests and that natural fire played a large ecological role in determining these forests. The information compiled from the Forest Service’s own records which contradicts or undermines these premises is therefore highly significant and should have been disclosed to and analyzed for the public in the EIS. Rather than fostering informed decision-making and public participation, the EIS violated NEPA by sweeping these complex and troublesome issues under the rug. Seattle Audubon Soc’y, 798 F. Supp. at 1479. By failing adequately to disclose and address information plainly relevant to its decision, the Forest Service failed to take the required “hard look” at the environmental consequences of its actions. Hughes River, 81 F.3d at 443, 445-46; see Robertson, 490 U.S. at 350; Sierra Club v. U.S. Army Corps of
82 Engineers, 295 F.3d 1209, 1216 (11th Cir. 2002); North Buckhead Civic Ass’n, 903 F.2d at 1540-41.
2. The Forest Service Must Address the Uncertainties and Risks Of Its Approaches To Forest Succession and Prescribed Fire.
NEPA requires that the Forest Service address the uncertainties surrounding the evidence on which its management strategies rest and disclose the risks posed by the agency's proposed action. Otherwise, the EIS cannot serve its purpose of informing the decisionmaker and the public. Seattle Audubon Soc'y v. Espy, 998 F. 2d 699, 704 (9th Cir. 1993); Seattle Audubon Soc'y v. Moseley, 798 F. Supp. at 1478-79. In this Cherokee Forest Plan revision and EIS, not only is the Forest Service not addressing the uncertainties surrounding its management approach, the agency is failing even to disclose these uncertainties and the contrary evidence found in the agency's own historic records and related materials.
3. The EIS Failed To Disclose Or Respond To The Opposing Evidence and Analysis Of The Agency's Own Expert and Supporting Experts.
NEPA requires the Forest Service to disclose and respond to the full range of responsible expert analysis of environmental effects. Hughes River, 81 F.2d at 445-46; Seattle Audubon Soc'y v. Moseley, 798 F. Supp. at 1479. Agencies “shall make every effort to disclose and discuss at appropriate points in the draft statement all major points of view on the environmental impacts of alternatives including the proposed action.” 40 C.F.R. § 1502.9(a). While the Forest Service ultimately may choose among expert views, it violates NEPA if it ignores reputable scientific criticism and analysis. Hughes River, 81 F.2d at 445-46; Seattle Audubon Soc'y v. Espy, 998 F.2d at 704. The Forest Service cannot ignore the evidence and analysis submitted by its own archeological expert, drawn from the agency's own historic records, and supported by multiple studies from independent experts.
Concerning forest succession, the agency’s historic records, showing the types of forests that existed when the lands were acquired, are facts that cannot be ignored. That these facts run counter to agency’s succession-based approach to management is an issue the agency must confront directly in the EIS, rather than omit it entirely, as this EIS does. Moreover, as Dr. Evans wrote, these historic facts are consistent with the ensuing decades of ecological research and theory, thereby providing further historic validation for the understanding that these forests in the Southern Appalachians are not successional forests at all.
Concerning the role of fire in shaping these forests and the level of fire that is “natural,” the Forest Service recognized that there is a controversy on these issues but then presented only one side of that controversy, the side that tends to support the agency’s preferred course of burning great swaths of the forest. This issue, especially the influence of Native Americans and fire, is squarely within the expertise of the agency’s own archeologist, as well as the numerous outside archeologists and other experts who
83 have found a much more limited use of and influence from anthropogenic fire. Rather than discussing and responding to this major point of view, this EIS violated NEPA by acting as if it did not exist.
4. The Forest Service Failed To Develop A Reasonable Range Of Alternatives That Reflected These Historical Records And Supporting Materials.
NEPA requires the Forest Service to "[r]igorously explore and objectively evaluate all reasonable alternatives" to the agency's proposed action. 40 C.F.R. § 1502.14(a). Adequate evaluation of alternatives "is the heart of the environmental impact statement." 40 C.F.R. § 1502.14; 42 U.S.C. § 4332(2)(C). The Forest Service’s own historical records suggest a reasonable alternative management regime that is quite different from alternatives presented in the EIS, particularly in view of the stated goals of restoring natural ecosystems and restoring fire to it natural role in these ecosystems. By underplaying the historic dominance of uneven-aged canopies and the outright ignoring the naturally insignificant role of fire in most forest types, the Forest Service failed to address reasonable alternatives to the agency's massive prescribed burns and widespread creation of early-successional habitat through even-aged management. The failure to consider a viable alternative renders an EIS inadequate. Dubois v. USDA, 102 F. 3d 1273, 1289 (1st Cir. 1996), cert. denied 521 U.S. 1119 (1997). These alternatives are also most consistent with NEPA’s intent that agency officials “take actions that protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c).
For example, Alternative C was rejected from detailed study and never seriously considered because the Forest Service decided frequent, significant disturbances over the next 10-50 years were necessary to maintain some forest communities. This decision was based on the premise that Southern Appalachian forests are naturally successional forests characterized by large, regular disturbances.39 The Forest Service must disclose and address the extensive evidence that this premise is erroneous, and consider alternatives that reflect this extensive evidence. Hughes River, 81 F.3d at 446-47; Kettle Range Conservation Group v. USFS, 148 F. Supp. 2d 1107 (E.D. Wash. 2001).
Moreover, the discussion and comparison of the effects of the management alternatives does not fully and fairly reveal the actual consequences to the natural ecosystem of the Southern Appalachian forests. Alternatives are compared in terms of successional habitats and the amount of early, mid, late and old successional forest created or maintained. The Forest Service used a model based on forest succession to predict the future condition of the forest and to consider the effects of alternatives. Alternatives are considered only in the context of their effect on the current, even-aged forest, without considering the real consequences to the natural Southern Appalachian ecosystem. The Forest Service must take a “hard look” at the environmental consequences of its actions. Robertson, 490 U.S. at 350; North Buckhead Civic Ass’n, 903 F.2d at 1540-41; Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1216
39 The Forest Service claims that frequent disturbances are necessary to satisfy the NFMA, MUSY and the ESA. The Forest Service offers no evidence to support this claim.
84 (11th Cir. 2002); Hughes River, 81 F.3d at 443. Moreover, the discussion of alternatives must “sharply defin[e] the issues and provide a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R. § 1502.14; North Buckhead Civic Ass’n, 903 F.2d at 1541.
The failure to consider a reasonable range of alternatives is especially evident on the issue of prescribed fire in hardwoods areas. The Forest Service violated NEPA by failing to consider alternatives that reflected the extremely limited role that fire likely played in shaping this forest, generally limited to drier ridges and high-elevation south facing slopes.
5. Mere Consideration Of This Historical Records Does Not Meet NEPA Requirements, Nor Do The Agency’s Other Responses To Comments Meet The Law.
The primary response to extensive comments on the draft EIS that made many of the arguments above was that the Forest Service did in fact consider this historical information and supporting analyses in formulating the Forest Plan. This response reflects a fundamental error concerning the Forest Service’s duties under NEPA. In addition to requiring that the information be available to and considered by the decisionmaker, NEPA requires that the information be available to the public and addressed publicly by the agency in the EIS. Hughes River; North Buckhead. “NEPA procedures must insure that environmental information is made available to public official and citizens before decisions are made…” 40 C.F.R. § 1500.1(b) (emphasis added). Thus, the Forest Service violated NEPA by failing to make the historic information, related analyses and the agency’s response be available to the public in the EIS.
Beyond this fundamental legal error, the agency asserts that (1) restoration is not legally required and the agency had other goals, and (2) a “synthesis of scientific literature” supports the agency’s view that Southern Appalachian forests depend on disturbance regimes, especially fire. AL FEIS Appendix J at J-89. As to the first point, whatever the law may or may not require, there can be no doubt that the Forest Service itself has adopted restoration as a primary goal of this Forest Plan Revision, especially with regard to the use of fire, and that the omitted historical and related information directly is significant for these purposes. As to the second point, what the EIS provided to the public was not a synthesis of the relevant literature, including this historical information, but a one-sided review of the literature that supported the agency’s preferred course of action. In all of these respects the EIS violated NEPA.
The Failure To Disclose The Historical Records and Studies Violated The NFMA.
The National Forest Management Act (NFMA) requires that, in the development of land management plans, the Forest Service must "use a systematic interdisciplinary approach" which integrates consideration of "physical, biological, economic, and other sciences." 16 U.S.C. § 1604(b). Further, NFMA regulation require that interdisciplinary
85 team must have access to and use "the best available data" on these scientific matters. 36 C.F.R. § 219.12(d). For the reasons set forth above, the failure of the Forest Service adequately to disclose, analyze, and address their own historical inventory, acquisition and ecological records violated NFMA as well as NEPA.
The Failure To Disclose The Historical Records and Analysis Violated The Data Quality Act.
The Data Quality Act provides that federal agencies utilize information meeting the highest standards of “quality, objectivity, utility and integrity” in all documents the agency disseminates or relies upon in its decision-making. See Treasury and General Government Appropriation Act for Fiscal Year 2001, Pub. L. No. 106-554, § 515 Appendix C, 114 Stat. 2763A-153 (2000) at § 515 B(2)(a).
The U.S. Office of Management and Budget published the Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (Guidelines)(Feb. 22, 2002), which requires the U.S. Forest Service to have, in place by October 1, 2002, regulations to implement the Data Quality Act of 2002 (“DQA”). See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication, 67 F.R. 8452, 8452 (Feb. 22, 2002). The U.S. Forest Service has implemented such rules, which are located at: http://www.ocio.usda.gov/irm/qi guide/index.html.
By excluding alternatives to large-scale controlled burning of the hardwood ecosystems and historical information bearing on other forestry management practices, the Plan revision and the FEIS are in violation of the DQA’s provisions safeguarding the quality, objectivity, utility, and integrity of information issued by agencies. See DQA, B(2)(a).
86 6. MIS and PETS
The Final Plan rejects calls for broader use of Management Indicator Species. There is no explanation or analysis for this significant change from the old plan.
The failure to adopt an adequate set of MIS is a violation of both NFMA and NEPA. Yet, the agency knows full well that these forests have many rare and declining species.
“Species viability evaluation for the Bankhead National Forest and Talladega Division of the Talladega National Forest included consideration of 1368 species of the Southern Appalachian ecoregion. Of these species, 149 on Bankhead, and 199 on Talladega Division from the Southern Appalachian ecoregion are considered rare and are known to occur on these management units. Species viability evaluation for the Conecuh National Forest, Tuskegee National Forest, and the Oakmulgee Division of the Talladega National Forest included consideration of 199 species of the Alabama Coastal Plain. Of these species, 115 on Conecuh, 17 on Tuskegee, and 40 on Oakmulgee Division from the Alabama Coastal Plain are considered rare and are known to occur on Conecuh National Forest, Tuskegee National Forest, and Oakmulgee Division of the Talladega National Forest.”
(AL FEIS at 3-292.)
In Wilkinson and Anderson's “Land and Resource Planning in the National Forests,” see pages 299-306, Wilkinson and Anderson conclude that since the regulations require that MIS “shall be selected because their population changes are believed to indicate the effects of management activities,” Forest Service planners must choose MIS designations that ensure adequate habitat for all (vertebrate) species is maintained for all major habitat types, “including water habitat.” They argue that not choosing any fish MIS on a particular National Forest is a violation of the statute and regulations. (See fn 1613 at page 303.)
The Committee of Scientists who drafted the 1982 NFMA regulations adopted the MIS requirement basically as a short-cut to meet the larger viability requirements; so failure to live up to MIS requirements also raises questions about the Forest Service’s ability to meet viability requirements.
Prior Forest Service appeal decisions require better MIS. The forest plan appeal decision for the Rio Grande National Forest Plan remanded the Plan to the agency to adopt MIS species where the FS had only designated habitat types. http://www.fs.fed.us/r2/projects/nepa/fp_appeal_decisions.htm
87 The Black Hills Forest Plan Revision was an instance where the agency failed to adopt aquatic MIS, and on appeal to the Chief, the Forest Service admitted they had to have such species. The Black Hills Appeal Decision held:
“Interim direction concerning MIS is being provided that requires one or more aquatic MIS be designated for analysis during the interim period. Although the Revised Plan lists Instream Fisheries Habitat as a management indicator, which is permissible according to FSM 2620, the regulations which address selection of MIS at CFR 219.19(a) display a clear intent that actual species are to be designated: ‘In order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species . . .’ Currently, no aquatic species are designated as MIS. The original LRMP, signed in 1983, designated brook trout as an MIS. Aquatic MIS should include both important exotic and native species in order to accurately represent the suite of aquatic environments and faunal assemblages that exist on the Forest”
(Chief’s Decision for Appeals #97-13-00-0085, #97-13-00-0120 and #97-13-00-0125 (October 12, 1999) (http://www.fs.fed.us/emc/applit/includes/woappdec/9713000085.htm).)
After the Chief’s decision, the Black Hills National Forest went through a painful amendment process after the appeal to designate such species. The examining the designation of aquatic MIS required by the appeal decision is at http://www.fs.fed.us/r2/blackhills/projects/planning/amend_2001/03_01_25_AquaMIS.p df. The changes adopted five aquatic species as MIS.
Species Diversity and Viability
NFMA Regulations call for Maintaining Viable Populations and Diversity
The National Forest Management Act Regulations call for maintaining viable populations of vertebrate species:
Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.40
40 36 C.F.R. 219.19.
88 It also addresses diversity under Section 219.26, Diversity and specifies inventories with quantitative data:
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. For each planning alternative, the interdisciplinary team shall consider how diversity will be affected by various mixes of resource outputs and uses, including proposed management practices.41
Forest Service Policy Calls for Identifying, Monitoring and Protecting Species with Viability Concern
The Chief, Forest Service, has issued overall direction42 for the management and recovery of threatened, endangered, and sensitive (TES) species to ensure compliance with law and policy. He has directed Regional Foresters to establish program to identify sensitive species occurring in the Regions and to provide special management emphasis that will ensure their viability and will preclude trends toward endangerment that would result in the need for Federal listing.
The Forest Service Manual defines viable populations43:
Viable Populations. A population that has the estimated numbers and distribution of reproductive individuals to ensure the continued existence of the species throughout its existing range (or range required to meet recovery for listed species) within the planning area.
The Manual specifies managing habitats for species but also places requirements to maintain viable populations of native species:
2670.12 - Secretary of Agriculture's Policy on Fish and Wildlife. Departmental Regulation 9500-4 directs the Forest Service to:
1. Manage "habitats for all existing native and desired nonnative plants, fish, and wildlife species in order to maintain at least viable populations of such species."
2. Conduct activities and programs "to assist in the identification and recovery of threatened and endangered plant and animal species."
41 36 C.F.R. 219.27(g). 42 FSM 2670. 43 FSM 2670.5 paragraph 22
89 3. Avoid actions "which may cause a species to become threatened or endangered." 2670.2 - Objectives.
2670.22 - Sensitive Species.
1. Develop and implement management practices to ensure that species do not become threatened or endangered because of Forest Service actions.
2. Maintain viable populations of all native and desired nonnative wildlife, fish, and plant species in habitats distributed throughout their geographic range on National Forest System lands.
3. Develop and implement management objectives for populations and/or habitat of sensitive species.
2670.32 - Sensitive Species.
1. Assist States in achieving their goals for conservation of endemic species.
2. As part of the National Environmental Policy Act process, review programs and activities, through a biological evaluation, to determine their potential effect on sensitive species.
3. Avoid or minimize impacts to species whose viability has been identified as a concern.
4. If impacts cannot be avoided, analyze the significance of potential adverse effects on the population or its habitat within the area of concern and on the species as a whole. (The line officer, with project approval authority, makes the decision to allow or disallow impact, but the decision must not result in loss of species viability or create significant trends toward Federal listing.)
5. Establish management objectives in cooperation with the States when projects on National Forest System lands may have a significant effect on sensitive species population numbers or distributions. Establish objectives for Federal candidate species, in cooperation with the FWS or NMFS and the States.
The USDA Forest Service defines sensitive species as those plant and animal species identified by a regional forester for which population viability is a concern, as evidenced by significant current or predicted downward trends in population numbers or density, or significant current or predicted downward trends in habitat capability that would reduce a species' existing distribution. Regional Foresters shall identify sensitive species occurring within the region. They shall examine the following sources as possible candidates for listing as sensitive species (Forest Service Manual Title 2600):
90 1. U.S. Fish and Wildlife Service or National Marine Fisheries Service candidates for federal listing (categories 1 and 2) under Federal Register Notice of Review. 2. State lists of endangered, threatened, rare, endemic, unique, or vanishing species, especially those listed as threatened under state law. 3. Other sources as appropriate in order to focus conservation management strategies and to avert the need for federal or state listing as a result of National Forest management activities.
The Plan that this LRMP Seeks to Replace Relies on A Coarse Filter MIS Program Supplemented By A Fine Filter TES Survey And Monitoring Program
There is within the NFMA regulations provision for selection of MIS as well: “[i]n order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species and the reasons for their selection will be stated.”44. These MIS have served as the primary “coarse filter’ not only in analysis of plans and comparison of alternatives but also in ongoing monitoring of plans.
The provisions above in the regulations and Manual have been interpreted and incorporated in previous plans to also include a robust species monitoring program that includes TES species. This has been the primary “fine filter” approach for assuring viability. While there remain within Policy and Procedures the provision to monitor TES species, this does not include all species (or even most species) that have viability concern. In particular monitoring of so called “locally rare” species is not addressed within the plan although many of these locally rare species clearly fall within the Manual provision to “Maintain viable populations of all native and desired nonnative wildlife, fish, and plant species in habitats distributed throughout their geographic range on National Forest System lands.”
The Final Plan and Final EIS attempt to set up an alternate approach that will not assure viability and does not satisfy regulation and policy
The viability analysis contained in the FEIS represents a major departure in approach to assuring species viability under NFMA regulations and Manual Direction. Rather than setting up a robust monitoring program as specified in the regulations that monitors management indicator species (MIS) and species at viability risk, the LMP marginalizes the MIS program and relies instead on a plan level analysis of general forest community habitat, successional habitat, rare community habitat, and old growth. It also relies on a plan level “viability analysis” for terrestrial and aquatic species. This approach is based on a region-wide effort of the Southern Appalachian Terrestrial and Aquatic Plant/Animal Issue Team to provide a combination of coarse and fine filter approaches for assuring viability. The process papers for this effort show that the coarse filters for terrestrial species were considered: (1) forest community type, (2) forest successional classes, (3) rare community types, and (4) old growth communities.
44 36 C.F.R. § 219.19(a)(1) (emphasis added)
91 Documents throughout the planning process outline a combination of coarse-filter and fine filter screens to assure viability in the plan revision. “Draft Regional Guidance on Wildlife, Fisheries, and Botanical Resources in Forest Planning – An Update”45 lays out in detail the steps to be taken in identifying “coarse-filter” habitat screens and gives the methodology for a “fine-filter” screen, including selection of species for the screen, and documentation of species habitat relationships. The guidance also outlines a process for “Public Involvement and Expert Review” of the development and analysis of coarse filter screens. The Guidance states: “The following processes described will be open throughout to public involvement. The public should have early input to the process of identifying the land cover elements to be addressed, the identification of the list of special species for planning emphasis, documenting species/habitat relationships, the grouping of species based on habitat associations, and the assessment of habitat conditions and trends.” The guidance further states: “Expert technical review of the species/habitat relationships and habitat associates is important in adding credibility to the information.” SAFC did in fact have considerable input into certain aspects of this process including identifying the land cover elements to be addressed and the identification of the list of special species for planning emphasis, and to a certain extent documenting species/habitat relationships and the grouping of species based on habitat associations. In fact SAFC participated directly in providing species information from an Ecoregion Assessment SAFC conducted with TNC and state Heritage Program scientists.46 SAFC also helped recruit scientists to provide input into certain steps in this process. However, the key process of assessing habitat conditions and trends, particularly assigning values to future abundance and future distribution, which occurred late in the planning process was not open to the public nor was it accessible to independent science review. SAFC offered to help recruit scientists to participate in such a review, but this offer was never accepted.
The process papers for the FWRBE Issues Team for Southern Appalachian plan revision also documents the strategy for addressing viability in plan revisions in Southern Appalachian forests. A memo47 to FWRBE Team members dated January 7, 1998 including minutes from a December 9-11/97 FWRBE Team meeting documents the plan for addressing viability in the plan revisions. The approach outlined uses a set of “coarse- filter” and “fine-filter” approaches to assuring viability. Coarse-filters included broad landcover and aquatic types and rare communities. A fine-filter screen was described that included species that were: Threatened, Endangered, Protected, Sensitive, Game, High Management/Public Interest, Locally Rare, Species with Demanding Habitat Requirements, and Keystone or Ecological Indicators. It also outlined how the coarse and fine filters would be used in plan alternative development in order to assure viability in the plans.
45 Draft Regional Guidance on Wildlife, Fisheries, and Botanical Resources in Forest Planning – An Update. December 13, 1996. 46 SAFC Memo to Glen Gaines and FWRBE Team Re:submissions to FWRBE species/habitat matrix. June 25, 1998 47 Southern Appalachian FWRBE Issues Team, Jan. 7, 1998, Memo to team members and minutes of 12/9-11/97 FWRBE team meeting.
92 This same process is outlined and expanded in a September 1999 “Process Record National Forests in the Southern Appalachians Development of Forest Plan Direction for Sustaining Terrestrial and Aquatic Habitats and Species Associations”48, 8/21/00 Southern Region paper on “Species Viability Assessment Process”49 and in a 10/09/00 “White Paper on managing for viable populations”50.
We agree with an approach that uses a combination of coarse and fine filters to assure viability. SAFC and its member groups participated in this process as long as the process was open and offered review and suggestions throughout to draft documents we were allowed access to. However, the combination of approaches used in the plan and FEIS fails to assure viability and does not meet the requirements of NFMA regulations and Forest Service direction for assuring viability.
However, we objected to two policy changes that occurred during this period that related directly to viability and seemed designed to undermine adequate provisions for viability. At the same time that the coarse-screen and fine-screen approach was outlined Region 8 substantially changed the definition of “Sensitive Species”. These species which are supposed to include species at viability risk have specific monitoring requirements under NFMA regulations. Hundreds of so called “Locally Rare” species were eliminated from the Sensitive Species category by this redefinition. The decision eliminated many species that were state Threatened and Endangered. Many of these species were disjunct species that were at high viability risk. (The F-ranks developed for the FEIS verifies that many of these “Locally Rare” species face high viability risk).
Although this policy decision was made outside a NEPA process, SAFC and SELC filed letters objecting to this significant change in policy without NEPA process and contrary to good science. The change in Designation Criteria and Status Definitions was announced in an undated draft notice.51 SAFC submitted a comment letter on 10/31/96 raising scientific issues with the change as well as raising implications of the plan viability analysis. SAFC and SELC submitted a letter52 to Regional Forester Robert Joslin dated November 21, 1996 expanding in detail on the scientific concerns with the changes in sensitive species definition. The letter also pointed out that the change in the Sensitive Species Program violated NFMA Regulations, NEPA Regulations, the stated purpose of the Sensitive Species Program, and threatened future violations of the Endangered Species Act.
SAFC continued to have grave concerns about the implications of this change in Sensitive Species, the large number of “Locally Rare” species at high viability risk and
48 Process Record National Forests in the Southern Appalachians Development of Forest Plan Direction for Sustaining Terrestrial and Aquatic Habitats and Species Associations. Southern Appalachian Terrestrial and Aquatic Plant/Animal Issue Team. September, 1999 49 Species Viability Assessment Process: Southern Region. Version 8/21/00. 50 White paper on managing for viable populations> Review Draft 10/09/00. 51 Southern Region Sensitive Species Revision. Draft. Approximate date 9/18/96 52 Letter to Robert C Joslin, Regional Forester Re: Proposed Regional Sensitive Species Program and List Changes. November 21, 1996.
93 whose viability remained unaddressed by any policy. We pointed out the potential for neglect of “Locally Rare” species both at the plan and project level. Letters to Gary Pierson who was heading the plan revision process for Southern Appalachian forests, as well as Glen Gaines and Mark Bosch on the FWRBE team highlighted these concerns and the implications for viability analysis in the plan revision process.
In October 2002 a Supplement was made to the Final Environmental Impact Statements for Vegetation Management of the Appalachian Mountains, Coastal Plain/Piedmont, and Ozark/Ouachita Mountains.53 The main purpose of the Supplement seemed to be to incorporate the Sensitive Species Policy as well as a Biological Evaluation Supplement to the FS Manual (and Handbook). A group of scientists wrote54 with concerns about changes to Biological Evaluations in Biological Supplement. Most of these same scientists as well as additional scientists wrote letter of comment55,56 to the draft supplement to the vegetation management EIS objecting especially to changes to the Biological Evaluation procedures and the changes in the Sensitive Species definition in Region 8. SAFC and SELC also objected to these changes in comments57,58 submitted May 6, 2002. The region stated in responses to comments that the Sensitive Species Policy and the Biological Evaluation Supplement to the FS Manual (and Handbook) were outside the scope of this decision although the Supplement to Vegetation Management EIS incorporated these decisions and these decisions had no NEPA process themselves.
The viability of “Locally Rare” species and implications for monitoring under plan revisions was a primary concern of SAFC, Cherokee Forest Voices, SELC and others who commented during all of the policy development above. These decisions are relevant now for the LMP because the changes outlined above, in conjunction with the LMP remove viability monitoring and protection for important species at viability risk, in particular the Locally Rare species.
We have supported a variety of coarse-screens and fine-screen approaches during the planning process to assure viability for species at viability risk. SAFC participated in good faith during the plan revision process in order to help facilitate bringing the best science possible to this issue. We have consistently maintained that a robust monitoring program of TES species is one of the best and most essential fine-filter approaches. The elimination of Locally Rare species from the Sensitive Species program and the changes
53 Supplement to the Final Environmental Impact Statement Vegetation Management in the Appalachian Mountains. October, 2002. 54 Comment letter to Elizabeth Estill, Regional Forester Re: Proposal to change the current procedures for conducting project-level biological evaluations (BEs) on national forests in Forest Service Region 8. Oct. 9, 2001. 55 Comment Letter to Robert Jacobs Re: Draft Supplement to the Vegetation Management EIS 56 Comments on the Draft Supplement to the Vegetation Management Environmental Impact Statement. April 22, 2002. 57 Comments to Robert Jacobs, Regional Forester Re: Draft Supplement to the VMEIS by SAFC and SAFC member groups including Cherokee Forest Voices. May 6, 2002 58 Comments to Robert Jacobs, Regional Forester Re: Draft Supplement to the VMEIS by Doug Ruley, SELC. May 6, 2002
94 in the Biological Evaluation procedure put this essential fine-filter screen for viability in jeopardy. The intention stated throughout the planning process of creating a fine-filter analysis for viability through detailed analysis of species relationship to habitat elements has failed to live up to its intended purpose, was never adequately vetted with expert panels, was never peer reviewed, and shut the public out of crucial stages.
In addition the gutting of the Management Indicator Species Program in this plan as discussed below trivializes the most important and legally required coarse-filter program. We do not believe that the combination of approaches used in the plan and FEIS assures viability nor meets the requirements of NFMA regulations and Forest Service direction for assuring viability. What the new approach does is add several layers of coarse screen approaches to estimate habitat for species, but it fails to establish adequate fine filter analysis of species at viability risk and removes essential fine filter approaches (monitoring provisions ) that previously existed.
Coarse Filters Used are inadequate to assure viability:
Forest Community Types
The FEIS performs detailed analysis of present and future conditions including acreage figures, only on major forest communities types. The forest community types used in the FEIS analysis are generalizations of forest types from the Region 8 Old- Growth Guidance59. The Cherokee FEIS used 9 forest community types (FEIS p. 157) to model effects of the alternatives in Spectrum. These forest community types are a primary input to SPECRUM to project future outcomes as the first step in the viability analysis. While useful for some purposes such as its original purpose of inventorying and representing old growth types, it was never intended as a metric for habitat for species viability. The Region 8 Old Growth Guidance prefaces the definitions of old growth community types: “The summary of scientific definitions provided in the following guidance are designed to help national forest managers describe the Desired Future Condition (DFC) of old growth in forest plans.”60
A separate classification of community types was used in a separate Inventorying and Monitoring Institute (IMI) effects analysis process. These two forest community classification systems served as the primary inputs for quantifying effects in the FEIS. However, both are far too simplistic to accurately reflect the subtle relationships between species at viability risk and their habitat needs. As early as the beginning of the 20th century as many as 56 forest community types were recognized for Southern Appalachian forests.61 More recent ecological classifications have recognized many more community
59 Forestry Report R8-FR 62. 1997. Guidance for Conserving and Restoring Old-Growth Forest Communities on National Forests in the Southern Region, USDA, Atlanta. 60 Forestry Report R8-FR 62. 1997. Ibid. 61 Ashe, William W. 1922a. Forest Types of the Appalachians and White Mountains Journal of the Elisha Mitchell Scientific Society, Vol. 37(3-4), Raleigh.
95 types62, 63. The community types used in the FEIS are gross generalizations of limited utility for analysis of viability for hundreds of species many with quite specific habitat requirements.
Forest Successional Classes
The inclusion of forest successional classes as a coarse filter for species viability implies that a mix of successional classes is the natural state of Southern Appalachian forests. The FEIS states:
“Forest age and related structure are key determining factors for presence, distribution, and abundance of a wide variety of wildlife. Some species depend on early-successional habitats, some depend on late-successional habitats, and others depend on a mix of both occurring within the landscape (Franklin 1988, Harris 1984, Hunter et al. 2001, Hunter 1988, Litvaitis 2001). These habitat conditions are also important as wintering and stopover habitats for migrating species (Kilgo 1999, Suthers 2000, Hunter et al. 2001). In order to support viability of diverse plant and animal populations and to support demand for game species, a variety of habitat types are needed within national forest landscapes.” (FEIS Chapter 3, p. 156)
This is not a valid conclusion given the significant ecological literature that most Southern Appalachian forests are uneven-aged forest that primarily regenerated through gap phase dynamics.64, 65, 66 The existence of contradictory documentation should have been at least acknowledged and discussed. The presence of successional forest documented in the FEIS is a relict of extensive logging at the turn of the 20th century and logging throughout the 20th century.
The regional FWRBE team providing guidance for viability had documentation67 that forests in the Southern Appalachians, particularly the mesic forests, before Euro- American land-use were naturally uneven-aged forests that provided habitat to all native species. This Forest Service documentation indicates that the simplistic notion of successional classes does not apply to natural forests in the Southern Appalachians, but it was ignored in the LMP and FEIS.
62 NatureServe. 2003. A Working Classification of Terrestrial Ecological Systems in the Coterminous United States. International Terrestrial Ecological Systems Classification. NatureServe, Arlington, VA. Attachment 14 63 Schafale, Michael P. and Alan S.Weakley. 1990. Classification of the Natural Communities of North Carolina, Third Approximation. North Carolina Natural Heritage Program Attachment 15 64 Runkle, James R. and Todd C. Yetter. 1987. Treefalls Revisited: Gap Dynamics in the Southern Appalachians. Ecology. 68(2):417-424. Attachment 16 65 Schafale and Weakley. 1990. Ibid. Attachment 15 66 Bass, Quentin. 2002. The Forest Ecosystem And The Effects Of Land Use In The Southern Appalachian Physiographic Province, Inclusive Of The Cherokee National Forest. Attachment 17 67 Bass. 2002. Ibid.
96 Furthermore, the planners had evidence that even more xeric forests were maintained by gap phase dynamics rather than major disturbances. Lynch and Clark68 presented evidence to the Forest Service that even more xeric forest such as oak forest depends on gap phase dynamics rather than successional dynamics to maintain forests. Lynch and Clark state: “Many periods of low fire importance occur(ing) at all sites with vegetation dominated by oak species indicate that fire as a disturbance agent is discontinuous across the history of these forest communities. At times fire likely played a role in facilitating the domination of oak in forest surrounding the sites. Fire may not be always necessary for maintaining and regenerating oak forests. Beckage (2000) showed that oak seedlings were able to regenerate and out-compete other species in small gaps located in the experimental forest of Coweeta LTER. Our results are consistent with this, suggesting that gaps resulting from ice damage, drought, wind throws, and insect damage might contribute to the maintenance of oak forests in the southern Appalachians”.
Lynch and Clarks’s research supports the fact that the level of disturbance at the end of the 19th century and the beginning of the 20th century was unprecedented, and the forests of the region are still undergoing succession in response to this un-natural level of disturbance.
While the plans implicitly acknowledge this unnatural condition of current forests within the documentation of current conditions, they present this information as justification for logging and creation of early-succession conditions throughout the forest. The more accurate disclosure that the forests are currently moving toward mature conditions where natural dynamics would create gaps in the forest for a variety of native species habitat is not disclosed.
Ecological research indicates that natural areas experience disturbance so that the landscape would have a characteristic patchiness in age and structure. “Species both dependent on and sensitive to disturbance would persist.”69 Studies indicates that mature Southern Appalachian forests experience naturally created canopy gaps at the rate of about 1% per year.70 Restoration of the forest to this natural steady-state condition where natural processes create a mix of habitat types is an alternative for providing habitat for native species. The artificially maintained successional model presented in the plans as the only real alternative for native species habitat would perpetuate the unnatural conditions currently present in the Southern Appalachian forests from past abuses by maintaining an even aged structure for much of the forest. This would create the need to generate early succession patches perpetually.
68 Jason A. Lynch and James S. Clark, Biology Department and Nicholas School of the Environment Duke University, Durham, NC. 2002. Fire and vegetation histories in the southern Appalachian Mountains: The historical importance of fire before and after European/American settlement. A report submitted to the George Washington & Jefferson National Forest, April 2002. 69 White, Peter S., Jonathan Harrod, Joan Walker, and Anke Jentsch. 2000. Disturbance, Scale, and Boundary in Wilderness Management. USDA Forest Service Proceedings. RMRS-P-15-Vol-2-2000. Attachment 18 70 Runkle and Yetter. 1987. Ibid
97 The alternative of restoring the forests of the region to their natural dynamics was not considered. A restoration plan relying heavily on allowing the forests to mature from the current unnatural structure was not adequately considered. The habitat created from natural gaps and disturbances due to expected forest dynamics was not considered. Indeed the modeling used in the effects analysis (Spectrum and the Forest Vegetation Simulator Model) is built on the assumptions of successional forests and is unable to model the natural dynamics of mixed-age Southern Appalachian forests. The FWRBE team was urged during the planning process to incorporate estimates of naturally generated disturbance patches for analysis. This was not done even though this is a significant factor (approximately 1% of the forest per year) especially in old growth or mature forest.
Indeed the plans specifically do not count patches less than 2 acres in size (even those generated through management activities). Disturbances less than 2 acres are classified according to forest adjacent to it and there is no provision for inventorying or monitoring natural disturbance gaps. Because the plans and FEIS fails to recognize natural elements of disturbance that provides “early-succession” species habitat, because the FEIS fails to estimate the amounts of this disturbance habitat that is naturally generated each year, and because the FEIS relies on successional forest modeling that doesn’t even attempt to model the natural dynamics of mixed- and all-age forests of the Southern Appalachians, the habitat projections in the plans are not accurate, the viability analysis based on these estimates is also in error, and the comparison of alternatives is misleading.
The FEIS acknowledges in numerous places that gap dynamics play an important role in providing habitat for numerous species. The FEIS and the response to comments ignores the fact that has been brought to the planners attention numerous times. Natural gaps occur in the forest and can be assessed by either inventory or estimation. By failing to address this natural dynamic that will predictably occur during implementation of the plan and adapting planned early succession to take account of this fact, the planners have failed to accurately disclose effects of the plan.
Rare Community Types
The Rare Community classification is useful for viability concern species. The Southern Appalachian Assessment finding is significant that: “Thirty-one rare community types were identified in the SAA area. These types are important for sustaining current populations of federally listed species and VC (viability concern) species. Almost 75 percent of the terrestrial rare plant and animal species and their associated habitats are found in one or more of the 31 rare communities, which occur on less than 1 percent of the SAA land area”.71 This is a good example of a coarse filter that captures a large number of rare occurrences within fairly broad categories. Paired with adequate fine filter approaches, this could be a part of a good plan for maintaining viable
71 Southern Appalachian Assessment, Terrestrial Technical Report. 1996. In Southern Appalachian Man and the Biosphere. The Southern Appalachian Assessment, Terrestrial Technical Report. Report 5 of 5. U. S. Department of Agriculture, Southern Region, Atlanta. p. 135).
98 populations of native species. However, without an adequate fine filter approach this filter is like carrying water in a leaky bucket – almost guaranteed to drop occurrences and species. What would be a good fine filter approach to pair with rare community protection? It’s important to note that 25% of viability concern species are not found in rare communities and many of those that are found in rare communities are not confined to rare communities. Identifying and protecting occurrences that fall on general forest areas outside rare communities is essential and there is inadequate provision for this in the final plans. See more discussion about this under “fine screens” below.
Old Growth Communities:
Objectives and standards do specify in the plans how existing old growth will be identified. The plan also identifies prescriptions that are compatible with “future old growth”. However, there is no identification of the relationship between existing old growth and possible old growth with future old growth. This is a crucial measure that would help gauge the quality of forest considered future old growth. If old growth is to be considered a coarse screen for ecosystem elements, there must be a way to relate the area allocated to future old growth in relation to the values for which the screen is being used.
It is possible (and likely) that areas allocated to future old growth are not good candidates for old growth. Some of these areas have been clearcut in the very recent past. Ideally, future old growth would contain a large proportion of existing old growth. The Forest Service inventory of possible old growth and old growth surveys performed by the public could be used to evaluate the degree that future old growth incorporates both confirmed and likely old growth areas. Without this analysis there is no way to evaluate the utility of old growth as a coarse filter. Does the screen capture ecosystem elements that represent or are close to real old growth? Or is it a screen that would only serve a meaningful role after a century or more of recovery and restoration?
The other element that needs to be clear in order to evaluate the role that old growth could play as a ecosystem coarse screen is the adequate mapping and display of the network of large, medium, and small old growth patches. Large and medium patches in the network of old-growth areas were supposed to be displayed in the plans, but this has not been displayed in the LMP or FEIS plans. Yet this mapping is essential to evaluate the role of the network as an ecosystem coarse filter and also to make intelligent choices for small patches at the project level.
Management Indicator Species
MIS are intended in the NFMA regulations as the primary coarse filter. In fact the regulations are very specific in direction on selection and monitoring of MIS. MIS are selected “to estimate the effects of each alternative on fish and wildlife populations”. It is a measure that MIS have been marginalized that they are barely addressed in the Biological section of the FEIS. They are mentioned in passing under other sections, but there is nothing to indicate that: (1) their choice reflects a deliberate selection of species to indicate viability, (2) there was an attempt to select MIS that
99 would in sum give indications of species viability trends, or (3) the species selected form a comprehensive approach for monitoring trends in viability.
The LMP and FEIS fails to expressly identify the existing native and desired non- native vertebrate species in the planning area for which each MIS have been selected. The LMP and FEIS fails to define the minimum number of reproductive individuals and relate this vital population data to the distribution of habitat for the provision of species interaction. The LMP and FEIS fails to include any species population data for establishing a current baseline from which to estimate the effects of alternatives, or to measure the very real effects of management activities once the plan is implemented at the project level. And the LMP fails to provide for the collection of actual project-level, or even forest-level population data.
Rather, the approach presented in the LMP is primarily to monitor acreage of managed habitat, termed “habitat elements” in the revised forest plans. The approach used in the LMP and FEIS attempts to predict viability and to satisfy viability requirements without ever collecting actual population data. Under this approach, in fact, MIS would not even be necessary because the focus is on counting the number of acres of managed habitat. However, monitoring simply the number of “managed” acres of a particular forest type does not satisfy the regulatory requirement for maintaining viable populations of native and desired non-native species. Specifically it fails to satisfy the Requirements under Section 219.26: 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. For each planning alternative, the interdisciplinary team shall consider how diversity will be affected by various mixes of resource outputs and uses, including proposed management practices.72
Fine Filter
Terrestrial Species Viability
The species viability analysis presented in Chapter 3 of the FEIS and in Appendix E was presented during the planning process as a fine filter approach for species viability. Indeed the Forest Service Research review of the analysis essentially categorized the analysis that was done as a coarse-filter approach: In the Southern Appalachian process, assumptions and relationships are very broadly stated. While use of such a coarse analysis process may be appropriate for a large-scale strategic look at this issue, confidence in the approach could be increased by conducting more detailed modeling of a small number of species.
The review also had suggestions for how a more detailed analysis could have been conducted:
72 36 C.F.R. 219.27(g).
100 The more detailed modeling would include a more explicit and detailed definition of assumptions. Results from the more detailed modeling could be compared to results from the coarser model to test or validate its results. More detailed modeling would typically involve taking outputs from a vegetation management scheduling model (such as SPECTRUM) and converting them to a spatially explicit landscape condition (using a landscape simulation model such as LANDIS), and then analyzing that landscape using a viability model (such as RAMAS) with parameters set for the target species. Less than a handful of studies have accomplished this type of analysis, but Gustafson and Thompson are currently working with forests on similar approaches.
The FEIS seems to back away from the claim that the viability analysis in Appendix E is a fine-filter screen. This is puzzling because throughout the FWRBE process these terms were often used as the framework for viability analysis. However, the methodology of the viability analysis clearly leaves the LMP and FEIS without provision for a forest-wide fine filter approach to assure species viability for species at risk. The Nature Conservancy and NatureServe define the coarse filter-fine filter approach as “A working hypothesis that assumes that conservation of multiple, viable examples of all coarse-filter targets (communities and ecological systems) will also conserve the majority of species (fine-filter targets). They further explain fine filter—“To ensure that the coarse-fine filter strategy adequately captures all viable, native species and ecological communities, ecoregional planning teams also target species that cannot be reliably conserved through the coarse-filter approach and may require individual attention through the fine filter approach. Wide-ranging, very rare, extremely localized, narrowly endemic, or keystone species are all likely to need fine-filter strategies.” 73
The viability analysis in the FEIS includes all species with viability concern, creating a database that includes Endangered, Threatened, Sensitive, and Locally Rare species, as well as birds of conservation concern (from US Fish and Wildlife), and declining species of high public interest. As such it would be a good database on which to base a fine-filter monitoring program.
The viability analysis presented in the plan consists of a five step process that iteratively relates the viability concern species to increasing levels of habitat and threat abstractions. The basic steps of this process include:
Step 1: In addition to Global and state ranks NatureServe gave the viability concern species “forest abundance ranks) (F ranks) mirroring the global and state ranking systems. The forests worked with NatureServe to fine tune these rankings.
Step 2: Species were associated individually with habitat elements (in some cases more than one habitat element), but only species that were confirmed present on the forest and
73 Groves, Craig, Laura Valutis, Diane Vosick, Betsy Neely, Kimberly Wheaton, Jerry Touval, Bruce Runnels, 2000, Designing a Geography of Hope: A Practitioner’s Handbook for Ecoregional Conservation Planning. Attachments 19A, 19B
101 considered rare on the forest - with an F rank from F1 through F3 (or unknown abundance) were evaluated. “Habitat Elements” on the forest were created that each species would be associated with. These habitat elements roughly correspond to categories of management direction in the final plans and to sections of effects analysis in the FEIS. NatureServe staff (and contractors) identified habitat relationships for all species of potential viability concern, linking each species to vegetation community types, successional stages, and habitat attributes. It was left to Forest Service biologists to assign species to one or more of the “habitat elements”. NatureServe staff reviewed these assignments and provided adjustments to the assignments.
Step 3: Each habitat element was evaluated in the FEIS with two variables: (1)future abundance (rated: rare, occasional, common) indicates the abundance of the habitat element on national forest land 50 years in the future if a particular alternative were selected and implemented. Future abundance was rated by FS staff based on spectrum runs and on “knowledge of Forest Service biologists”. (2) future distribution (rated poor, fair, good) is defined as the distribution of the associated habitat element in 50 years if the alternative were selected and implemented over that 50 year period. In contrast to the abundance variable it includes consideration of intermixed ownership patterns and conditions. Knowledge of Forest Service biologists was used to assign distribution values, based on interpretations of historical conditions supported by conservation literature, current conditions, and magnitude and direction of effects expected under each alternative.
Future distribution indicates the distribution of the habitat element if a particular alternative were selected and implemented. In contrast to future abundance, future distribution (rated: poor, fair, good) “includes consideration of intermixed ownership patterns and conditions, and their effects on movements and interactions of individuals among the suitable habitat patches found on national forest land”. Knowledge of Forest Service biologists was used to assign future distribution values, and a “historical reference condition” of pre-European settlement (1000 – 1700) was used.
It is important to note that the “habitat elements” are a different classification system from the community classifications used in the Spectrum analysis. They are also a different classification system from the one used in the Inventorying and Monitoring Institute Effects Analysis. As such they are not tied to any quantitative inventory of current conditions nor are they tied to any model of future acreage projections. Rather the Forest Service staff created the “future abundance” and “distribution” values assigned to each “habitat element” using their judgment of results from the Spectrum forest- community-type modeling described herein in Section 5.4.1.1. The Forest Service used no real quantitative data on the actual abundance and distribution of the “habitat elements” in the viability analysis.
Step 4: Habitat element abundance and distribution were combined in the analysis to create one variable, “Likelihood of Habitat Limitation”, to indicate the likelihood that the habitat element would be limiting to populations of associated species. High, Moderate, and Low values were determined by combinations of abundance and distribution in a
102 matrix with “common” abundance and “good” distribution giving “Low Likelihood of Habitat Limitation” at one extreme and Rare abundance with poor distribution giving “High Likelihood of Habitat Limitation” at the other extreme.
Step 5: An additional matrix with “Likelihood of Habitat Element Limitation” on one axis and Species F Rank on the other axis gives “Viability Risk Ratings” for each species evaluated. Viability Risk Rankings range from “very high”, through “moderately high”, “moderate”, and “low”. These values are displayed and summarized in various tables in the FEIS and Appendix E.
One of the most striking things that emerges in following this very complex analysis is that a tier of at least 4 “expert judgments” (2 within step 3) were required for the final viability risk rankings. At least one of these “expert judgments” was informed by the Spectrum model (although the community classes within Spectrum have to be interpreted into the habitat elements), which is not designed to accurately model the real dynamics in Southern Appalachian forests. Only 2 of these “expert judgments” were primarily made by NatureServe scientists.
The species assignments and the methodology were originally supposed to be reviewed by a panel of scientists. The methodology for this type of analysis, which rests precariously on top of a tower of "expert judgments" and assumptions rather than hard data is constrained by its weakest link, and there are many weak links in this analysis.
F-ranks which the response to comments focuses on are indeed the most defensible part of this assessment. Once all the variables were assembled it is true that the final “viability risk” flows from mechanical combinations of the variables. However, assignment of Habitat Abundance values evaluated under every alternative after 50 years was made by Forest Service staff. Assignment of Habitat Distribution values under every alternative after 50 years was made by Forest Service staff. These assignments were not thoroughly reviewed and took place after the public was essentially shut out of this process. The extent of review of these assignments occurred on May 8, 2003 by 3 scientists from Forest Service Research. There was not a thorough review of the values assigned during the analysis. The group selected several species with which scientists are familiar and looked at specific input variables and viability risk results as presented in a Draft EIS. In general, results matched expectations based on basic knowledge of these species and their habitats.74
The dependence of the methodology on a series of judgments, in which any error would perpetuate through the analysis highlights the need for independent review. The limited review stated this clearly. Lack of obvious and periodic peer review at key points in the process can be seen as a weakness of the current analysis. Some aspects of the process, such as use of NatureServe and Heritage programs to provide species-based information, and review of Franks and habitat groupings by both national forest biologists and NatureServe, are good strokes that add credibility to the process. These elements should be highlighted. However, additional detailed peer reviews would
74 Report of Terrestrial Science Dialog; Process Paper dated 6/03/03.
103 improve credibility of the science foundation for the analysis. The brief review provided by this session cannot serve as a detailed scientific peer review.75
The results of the viability analysis fail to provide meaningful information to adequately evaluate viability of species at risk on National Forests. The identification of species at risk and the identification of factors that would play a role in viability of species is useful but fails to adequately evaluate viability. The report of the Forest Service Research review concluded: Because inputs and results are fairly coarse and results are generally as expected, the question was raised as to whether the process was valuable in revealing effects and informing a better decision. The answer is that the value of the analysis is in 1) defining the scope of the entire viability issue, 2) providing tracks by which key viability-related priorities are identified (habitats, species, management effects of concern), and 3) establishing patterns of risk that are useful in comparing alternatives. The look at individual species results also reinforced the recognition that other, non-habitat factors may have a large impact on viability, but are not incorporated into current assessments of risk (e.g., illegal harvest of ginseng), and that some habitat variables used in the risk assessment should be better supported with narrative descriptions of assumptions.76
However, most significantly, the analysis is clearly not a fine-filter approach. The FEIS states: “Because viability regulations focus on the role of habitat management in providing for species viability, habitat condition was the primary factor used to drive species viability evaluation.” (AL FEIS at 3-286 and AL FEIS Appendix F at F-4.) The viability analysis is at base a habitat analysis depending heavily on questionable habitat modeling and educated guesses – it’s another very coarse filter. The fact that species are associated with the habitat and with habitat risk elements through a series of “expert opinions” does not make it a fine-filter approach. Also of note is the fact that in evaluating future distribution of habitat in the analysis “historical reference condition” of pre-European settlement (1000 – 1700) was used. However, data presented by Quentin Bass to Cherokee NF and regional planners77 relative to detailed pre-European conditions is not referenced and not utilized.
Missing Fine Filter Approach:
The LMP fails to establish a needed fine filter approach that a good monitoring program would satisfy. Fine filter goals, objectives, and standards do address endangered and threatened species, especially for actions during projects. To a lesser extent surveys for sensitive species are provided for in association with projects. However, a Supplement to the FS Handbook and Manual on Biological Evaluations78 that the region finalized in 2002 provides considerable discretion about when surveys for TES will occur. No standards for surveys are found in the LMP so these handbook supplements
75 Report of Terrestrial Science Dialog; Process Paper dated 6/03/03. 76 Report of Terrestrial Science Dialog; Process Paper dated 6/03/03. 77 Bass, Quentin. 2002. Ibid. 78 Supplement to the Final Environmental Impact Statement Vegetation Management in the Appalachian Mountains. October, 2002.
104 would apply, and they allow the FS to avoid surveys when the database and habitat modeling (emphasis added) indicate that TES are unlikely to be located in the project area. Also hundreds of species were removed from the sensitive species category by the region in 1996 in a “redefinition of sensitive species” decision made outside NEPA.79 There are no current guidelines for the forests to address these so called “locally rare” species by looking for them in field surveys. Many of these species, especially disjunct species, have very high viability concerns – more so than many sensitive species. These species would only be addressed by the coarse filter viability analysis contained in the FEIS.
The “F” Rankings Could Serve As A Good Basis For Monitoring Species At Highest Viability Risk
The “F” rankings developed in the above “viability analysis” would give the basis for a fine-filter approach that could address the species at most viability risk. Standards for addressing TESLR (Threatened, Endangered, Sensitive, and Locally Rare) species through a fine filter approach should be established for the LMP. The viability analysis presented in the FEIS is of no practical use as a fine-filter or in assuring the viability of species on the forest. The methodology is so insensitive that it fails to even show any real difference between alternatives. The differences that are described in the FEIS are highly suspect because of the habitat models and tenuous series of expert judgments they are based on and because of discrepancies in these judgments when comparing different forest plans in the Southern Appalachians. However, the analysis does provide the building blocks for a good fine-filter monitoring program focused on the species in most need of monitoring. Setting goals, objectives, and standards for monitoring the TESLR species prioritized by F ranking is the fine filter approach needed to assure viability.
Looking at the Table of F rankings in the FEIS, a very large number of locally rare species have F rankings of F1 (1-5 occurrences) and F2 (6-20 occurrences). Managing these species with just a coarse filter approach is irresponsible and will invite extirpation of the species at viability risk. Even F3 (21-100 occurrences) species have too few occurrences to justify them being managed solely on the basis of habitat modeling. As it currently stands the final LMP can not credibly and rationally substantiate that they are assuring viability for locally rare species that (1) only have a handful of forest occurrences, (2) have no regional monitoring program in place that requires surveying for them, and (3) have no requirements in the plan for monitoring or surveys. The coarse- filter approach based on habitat, while somewhat useful, is inadequate to assure viability for these species at severe viability risk on the forest. The so called “viability analysis” in the FEIS is also based on broad categories of habitat, fails to provide the fine-filter approach these species need to assure viability, and ignores the stochastic effects that species at this level of viability risk face. The major stochastic threat that management actions would wipe out occurrences could easily be removed by adequate monitoring. An adequate species monitoring and survey program should be established in the plans based on F-rankings with goals, objectives, and standards to implement them as a strong fine-
79 Southern Region Sensitive Species Revision. Draft. Approximate date 9/18/96
105 filter approach to assuring viability. Habitat relationships should be treated as they are – theories that can be refined based on the monitoring and survey program.
Strategy for the viability analysis is not based on the best biology but is designed to get around Sierra Club v. Martin. Since the Eleventh Circuit ruled that the FS must comply with Plans, the planners led from the regional level are changing their plans so as to make them without enforceable standards. As the Eleventh Circuit held:
“‘courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.’ Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). Moreover, the Forest Service cannot ignore the requirements of the Forest Plan. As NFMA makes plain, ‘resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.’ 16 U.S.C. § 1604(i); see also Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (no deference due to agency interpretation that contradicts the regulation's plain language); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985) (reviewing court may remand a case to the agency ‘if the record before the agency does not support the agency action [or] if the agency has not considered all relevant factors ...’).”80
The plan and FEIS fail to comply with NEPA
There is no analysis and explanation or rational justification for including or excluding species in rare species monitoring programs. Even though the analysis in the FEIS shows that many of the locally rare species have very high viability concerns, there is no alternative that addresses monitoring of locally rare species. The rare species monitored are the same for all alternatives and these are not related to the viability rankings that the Forest Service documents in the FEIS.
Past regional decisions (made without a NEPA process) (1) to change the sensitive species definition to eliminate hundreds of species from coverage under the Sensitive Species provisions of NFMA regulations (creating “locally rare” species and (2) to change the biological evaluation procedures relating to surveying for TES species were clearly done to minimize FS duties, but NEPA requires alternatives. There are no alternatives that monitor locally rare species even though many have extreme viability concern (F1 and F2 ranking) by the Forest Service’s own analysis.
Moreover, members of SAFC and other appellants have been told for many years that this revised LRMP would address the Forest Service’s viability responsibilities for locally rare species. Prior Forest Service policy concerning locally rare species contained two important elements that have been eliminated from the LRMP revision process without any explanation or justification: 1) public and cooperating agency participation
80 Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir. 1999.
106 in the determination of locally rare species, and 2) analysis of impacts to locally rare species at the project level. A December 13, 1996, memorandum from the Regional Forester to the Forest Supervisors states:
Enclosure A contains the DRAFT updated planning guidance (including the Southern Appalachian example). This guidance is designed to meet our legal mandates under the Endangered Species Act (ESA); the current National Forest Management Act (NFMA) planning regulations (36 CFR 219) regarding the use of management indicators, providing habitat to support viable populations, and providing a diversity of plant and animal communities; and the National Environmental Policy Act (NEPA).
As stated, the updated planning guidance discusses incorporation of new criteria for sensitive species and locally rare species. However, until forests have the opportunity to address locally rare species in plan revisions, as discussed in the draft planning guidance, there is a need to provide interim guidance for these species. A draft of this interim guidance is provided in Enclosure B.81
The December 13, 1996, guidance, in fact, lays out the method for viability analysis that was used in the plan revision process. However, in regard to locally rare species, the guidance was not followed without any explanation or rationale. “Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departure.” Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1165 (10th Cir 2002).
In regard to locally rare species, the guidance states: “Decisions regarding the inclusion of species as locally rare will consider information obtained through public scoping and coordination between State heritage programs and State fish and wildlife agencies.”82 The public scoping and coordination, however, never occurred. As result, many sensitive species were arbitrarily reassigned locally rare classifications and their viability now is completely ignored in the revised LRMP.
Similarly, the guidance also directs Forest Service staff to disclose the effects of proposed projects on locally rare species occurrences present in project areas, and also address its continued presence on the forest in the project’s NEPA documentation.83 However, the final plan leaves the handing of locally rare species, including inventorying and monitoring for locally rare species to the
81 Robert C. Joslin, Regional Forester, USDA Forest Service, Southern Region, Memorandum File Code 2620/1920, December 13, 1996. 82 Id. at Enclosure A-2; see also Id. at Enclosure B. 83 Id. at Enclosure B.
107 discretion of the forest. In fact even the development of lists of locally rare species is left to the discretion of the forest. The LMP defines Locally rare84 as Species for which representation on the CNF is a concern. Development of a locally rare species list is at the discretion of the CNF and may be completed in cooperation with the state and other federal agencies as well as other interested groups, organizations, or individuals. Monitoring tasks that address TES species monitoring omit any mention or provision for locally rare species.
Analysis in the FEIS was done heavily dependent on “professional judgment” based on unsupported assumptions. There is no independent support for what they decided to do and the methodology is such that it could not be independently reproduced. There was no real peer review. There is no data supporting the decisions made – even where this would have been possible (e.g. using rare species occurrence data to verify assumptions going into the so called “viability analysis”. The decisions are thus arbitrary and capricious.
The Appellants provided a comment letter to the agency on the Draft Plan’s failure to assure viability of wildlife species and its failure to require appropriate MIS and monitoring for MIS. These eminent scientists specifically commented:
The Draft Plan and Draft EIS attempt to set up an alternate coarse and fine filter approach that will not assure viability and does not satisfy regulation and policy
The viability analysis contained in the Southern Appalachian draft plan EISs represents a major departure in approach to assuring species viability under NFMA regulations and Manual Direction. Rather than setting up a robust monitoring program as specified in the regulations that monitors management indicator species (MIS) and species at viability risk, the plans marginalize the MIS program and rely instead on a plan level analysis of general forest community habitat, successional habitat, rare community habitat, and old growth. It also relies on a plan level “viability analysis” for terrestrial and aquatic species. This approach is based on a region-wide effort of the Southern Appalachian Terrestrial and Aquatic Plant/Animal Issue Team to provide a combination of coarse and fine filter approaches for assuring viability. The process papers for this effort show that the coarse filters for terrestrial species were considered: (1) forest community type, (2) forest successional classes, (3) rare community types, and (4) old growth communities. The viability analysis for terrestrial and aquatic species was considered the “fine” filter.
We agree with an approach that uses a combination of coarse and fine filters to assure viability. However, we do not believe that the combination of approaches used in the plan and DEIS assures viability nor meet the
84 Cherokee LMP. Appendix B. p. 291.
108 requirements of NFMA regulations and Forest Service direction for assuring viability.85
The redefinition of Sensitive Species to eliminate Locally Rare species, the change in Biological Evaluation procedures to make PETS surveys optional based on habitat modeling, the trivialization of the MIS program in the LMP, and finally the viability analysis in the LMP that pretends to establish a framework that assures viability all seem to be a string of decisions made not to satisfy law, regulation, policy, and court decisions that would assure species viability. Rather these decisions appear to be made to avoid responsibilities under law, regulation, policy, and court decisions. The LMP is seeking to remedy the failure to conduct inventories by illegally making decisions (Sensitive Species definition and Biological Evaluation Procedure) outside NEPA that get rid of their responsibilities. They further narrow this monitoring responsibility by illegally trivializing the Management Indicator Species program in the LMP. The viability analysis is an arbitrary process (with a few sound scientific aspects, mainly the F-rankings) whose main assumptions and decisions have only a thin veneer of science. This faulty analysis is presented as a substitute for adequate monitoring to satisfy viability requirements. However, it is a transparent attempt to avoid law, regulation, policy, and court decisions. The rationale behind this chain of decisions is made obvious and put in context by the Sierra Club v Martin decision:
“It nonetheless maintains that its data, though devoid of any inventory information as to some PETS species, remain adequate to assess potential impact upon the species, forest-wide. The information which the Forest Service deems ‘adequate’ is in reality no information at all in terms of many of the PETS species. Since the agency's position is contrary to the clear language of the Plan and the statute, it is not entitled to deference.”
Sierra Club v. Martin, 168 F.3d 1, 5 (11th Cir. 1999).
No Range of Alternatives on MIS; Failure to Have Aquatic MIS
The new AL Plan failed to consider a range of alternatives on MIS, in violation of NEPA. No aquatic species are designated as MIS in any alternative, thus leaving impacts from sediment and other aquatic stresses basically unmonitored from a species viability standpoint.
Yet, the Forest Service admits that aquatics are especially sensitive to habitat changes:
“Over 80% of Alabama’s aquatic PETS and rare species are habitat specialists with high sensitivity to alteration in their habitat. These species and many other aquatic species are sensitive to alterations in such habitat parameters as structure, water quality, substrate, vegetation, flow, and the quality and quantity of interaction with the riparian zone.
85 Scientist letter to Cherokee NF on viability. July 3, 2003
109 “Water quality is a primary habitat factor. This composite includes consideration of dissolved oxygen, pH/alkalinity, chemical point source pollution, and eutrophication or nutrient status. Many PETS and rare aquatic species are specialized in their preference for a narrow range of pH, alkalinity, or other aspects of water chemistry. Most are sensitive to various forms of pollution including chemical contamination. Water quality is identified as a key habitat feature of potential concern in 18 watersheds associated with the National Forests in Alabama. Nine of these watersheds are within the Talladega National Forest, perhaps reflecting both the adaptation of many Appalachian species to the higher water quality of the region and the situation of several areas of severe off-Forest contamination.
“Sediment includes consideration of turbidity, bedload silts, and gross sedimentation. Sediment is identified as a key habitat feature of potential concern in 26 watersheds associated with the National Forests in Alabama. Ten of these watersheds are within the Bankhead National Forest. Sediment, and particularly the abundance of fine silts, is an important factor for over 50% of the species. A high proportion of mussels, snails, fish, and insects are specialized in their requirements for clear water and relatively silt-free coarse substrates.”
(AL FEIS at 3-178-79.)
The Forest Service admits that no aquatic MIS will be used; PETS will be “monitored” (maybe):
“Consequently, the effects of National Forest activities are of greatest concern when there is potential for alteration of the habitat conditions of greatest importance to the largest number of aquatic species. Such habitat conditions include water quality, flow, sediment, and habitat structure. In the past, management indicator species have been selected with the intention of using them as surrogates for monitoring habitat quality. The management indicator species concept has not been always been effective, however, due to the cyclic and patchy distribution of aquatic species. It has also been difficult to find species that are sensitive to management activities and found in widespread and sufficient abundance for repeatable sampling. For these reasons, a different approach will be undertaken whereby aquatic community composition and habitat quality will be monitored in addition to tracking individual at risk species. Studies have confirmed that there is an inter-relationship between habitat conditions and aquatic community diversity. Community-based indices such as the EPA’s macroinvertebrate rapid bio-assessment protocol and localized biotic integrity measures will be utilized in conjunction with monitoring of population trends of PETS and representative rare species.”
(AL FEIS at 3-180-81.)
110 The EPA also recommended that the new Plan have aquatic MIS. (EPA Comment Letter at 6 and 15.) “Given the magnitude of aquatic species diversity and the number of PETS species on the National Forest, why are there no designated aquatic management indicator species (MIS)? EPA recommends designation of one or more appropriate aquatic MIS for the National Forests or at least for watersheds that provide critical habitat for these species.” (EPA Comment Letter at 6.) These comments from a sister agency were summarily ignored.
The new Kisatchie and Florida National Forests Plans have aquatic MIS. The Kisatchie Plan has seven aquatic species to monitor three types of habitat:
“Swift-flowing — sand / gravel bottom “Brown madtom “Redfin darter “Louisiana pearlshell mussel
“Slow-flowing — silt / clay bottom “Pirate perch “Blackspotted topminnow
“Impoundments and ponds “Largemouth bass “Sunfish”
Kisatchie National Forest Plan at 5-19 (October 20, 1999).
The National Forests in Florida Plan has Largemouth Bass as an aquatic MIS. Florida National Forests Plan at 5-10 (February 1999).
The Response to Comments states:
“The revised plan (Monitoring Summary Table, revised Plan, Appendix F) indicates our intent to monitor fish communities as part of monitoring watershed condition. The revised plan also indicates our intent to monitor aquatic threatened and endangered species (Monitoring Summary Table, revised Plan, Appendix F).”
(FEIS Appendix J at J-81.)
But in the “Monitoring Summary Table” in Appendix F, fish communities and other aquatics will only be monitored by tracking “changes in physical and chemical habitat quality within at least 3 representative reaches of each physiographic province and/or river basin.” (Final Plan, Appendix F, at F-5.) Three streams that are impacted by management activities will also be monitored and compared to the three representative reaches, but this leaves the vast bulk of the Forests unmonitored. Also, the monitoring only must occur “At least 3 sequential years within each 10 year period” and the reporting interval is “as available.” Thus, they can wait until seven years of management
111 occur before they ever bother to do aquatics monitoring at all. This clearly does not comply with the monitoring requirements of NFMA, and is, on its face, arbitrary and capricious. Indeed, it is ludicrous to claim that this amounts to monitoring of fish and other aquatics.
Indeed, while still not doing everything required by NFMA, the new management plan for the Chattahoochee-Oconee National Forests (CONF) in Georgia, released the same day and the new Alabama plan, specifically require annual monitoring of selected waterways for “What is the status and trend in aquatic habitat conditions in relationship to aquatic communities?” “Conditions and trends in the overall health of streams” and “results of systematic stream fish community inventories, aquatic macro-invertebrate population surveys and/or rapid biological” will be monitored “annually.” (CONF Plan, Appendix G at G-7.) The CONF Plan also provides that for the monitoring question “What are the status and trends of federally-listed species and species with viability concerns on the forest,” “the Status and trends of selected aquatic biota” will be accomplished by “Stream biota inventories on selected streams” on an “Annual” basis. (CONF Plan, Appendix G at G-10.)
Why do the National Forests in Georgia get more aquatics monitoring than those in Alabama? The failure of the AL Plan to explain this difference or justify it is arbitrary and capricious.
The Forest Service defends its use of non-peer-reviewed information when questioned about the adequacy of their viability analysis. “Although formal peer review of completed viability evaluations were [sic] not conducted, elements of external review and adjustment were incorporated throughout the viability evaluation process.” (FEIS Appendix J, at J-77.) But, elsewhere, the agency rejects information provided by commenters (including us) that had not gone through the peer-review process. “Unlike the scientific literature used and cited during planning, the specialist’s analysis has not been through the rigorous process of peer review, critique, and publication in mainstream scientific journals.” (FEIS Appendix J, at J- 88.) The agency cannot have it both ways; either non-peer-reviewed information can be used to inform the decision or it cannot.
The new Plan admits that viability requirements will be “met” through habitat surrogates and direct monitoring of only PETS species, and then only when really needed. Monitoring of individual MIS species will not occur. See FEIS Appendix F, at F-16 (Bankhead), F-22 (Conecuh), F-29 (Oakmulgee), F-36 (Talladega), and F-42 (Tuskegee)(the exact same language is used for each forest):
“Planning for, and evaluation of, species viability for forest plan revision has focused primarily on providing desired abundance and distribution of habitat elements, in compliance with NFMA regulations. Risks to species viability can be much reduced by additional provisions present in existing law and policy. These include specific consideration of effects to federally listed threatened and endangered species, those proposed for such listing, and Regional Forester’s
112 Sensitive Species, in biological assessments and evaluations conducted as part of all national forest management decisions.”
This plainly violates 36 C.F.R. § 219,19(a)(6), which explicitly provides, “Population trends of the management indicator species will be monitored and relationships to habitat changes determined.” To comply with the plain language of 36 C.F.R. § 219.19, “[h]abitat trend data may not be used as a proxy for population inventories.” Forest Guardians v. United States Forest Serv., 180 F. Supp. 2d 1273, 1281 (D.N.M. 2001). The Forest Service must compile quantitative population data for the management indicator species, not just manage habitat for a hypothetical population. See Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999). In Utah Environmental Congress v. Zieroth, 190 F. Supp. 2d 1265 (D. Utah 2002), Judge Kimball agreed with all the analysis in Forest Guardians.
In Utah Environmental Congress v. Zieroth, 190 F. Supp. 2d 1265, 1271-72 (D. Utah 2002), the court there required MIS surveys for a specific project, holding:
“Although the Forest Service=s methodology is entitled to deference, its actions must be in accord with the governing regulations. Section 219.19 specifically states that ‘population trends of the management indicator species will be monitored and relationships to habitat changes determined.’ 36 C.F.R. ' 219.19(a)(6). Section 219.26 similarly requires the Forest Service to use quantitative data to measure a project's impact on forest diversity. In reviewing these regulations, the court agrees with the analysis of the Martin court:
“‘MIS are proxies used to measure the effects of management strategies on Forest Diversity; Section 219.19 requires that the Forest Service monitor their relationship to habitat changes. Section 219.26 requires the Forest Service to use quantitative inventory data to assess the Forest Plan's effects on diversity. If Section 219.19 mandates that MIS serve as the means through which to measure the Forest Plan's impact on diversity and Section 219.26 dictates that quantitative data be used to measure the Forest Plan's impact on diversity, then, taken together, the two regulations require the Forest Service to gather quantitative data on MIS and use it to measure the impact of habitat changes on the Forest=s diversity. To read the regulations otherwise would be to render one or the other meaningless . . .’
“Martin, 168 F.3d at 7. Similarly, in analyzing the applicable regulations, a district court in the Tenth Circuit has also recently found that >under this clear language, [the Forest Service] may not rely solely on habitat trend data as a proxy for population data or to extrapolate population
113 trends.= See Forest Guardians v. United States Forest Service, 180 F. Supp.2d 1273, 2001 WL 1705942 (D.N.M. Oct. 2, 2001). In reaching this conclusion, the Forest Guardians court recognized that ‘management indicator species represent a management short-cut . . . . Consequently, there is generally no reason to further short-cut the management monitoring process by relying on habitat trends to project management indicator species population data.’ Id.
“In this case, the Forest Service admits that population data has not been collected since 1991. Given this lack of data, there is no way for the Forest Service to meet the requirements in the regulations to analyze population trends. Therefore, the Forest Service’s approval of the Project without actual or trend population data is contrary to the governing regulations. Accordingly, Plaintiffs have met their burden for reversal of the Forest Service’s decision. See Martin, 168 F.3d at 4 (quoting Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986) (‘courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.’); Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (no deference due to agency interpretation that contradicts regulation=s plain language).”
While the implementing regulations technically apply to the Aformulation of Forest Plans rather than to specific projects proposed under already enacted Forest Plans,@ the Forest Service=s obligations under the Forest Plan Acontinue throughout the Plan=s existence.@ Sierra Club v. Martin, 168 F.3d 1, 6 (11th Cir. 1999) (citing 36 C.F.R. ' 219); see Inland Empire, 88 F.3d 754, at 760 n.6 (rejecting proposition that 36 C.F.R. ' 219.19 applies only to promulgation and management of forest plans and not to site-specific projects and reasoning that areas contained within National Forest boundaries would be covered by a forest plan and thus also would be governed by ' 219.19). The Forest Service must constantly monitor the Forest Plan=s impact, including the impact of specific management actions, on the forest environment so that compliance with the Forest Plan is achieved and any needed revisions to the Forest Plan are ascertained. See Martin, 168 F.3d at 6; 16 U.S.C. ' 1604(i)(site-specific management actions implemented by the Forest Service Amust be consistent with the Forest Plan@); Dombeck, 185 F.3d at 1168 (A[P]roposed projects must be consistent with the Forest Plan.@). Therefore, to avoid an absurd result, courts have concluded that the National Forest Management Act and the implementing regulations at issue apply to site-specific projects.
As held recently in Colorado Wild v. United States Forest Serv., 2004 U.S. Dist. LEXIS 1717, slip op. at 11-12 (D. Co. Jan. 30, 2004):
“These statements indicate that the Forest Service has not complied with the requirements of the regulations to collect population trend data for these six MIS. Although the Forest Service points to some quantitative population data that
114 has been collected for three of the bird species, the FEIS and the individual species' assessments note the particular shortcomings of these studies. In any event, these data are not population trend data for the SJNF or the Project as required by the regulations. The Forest Service also identifies a study containing American marten population data collected between 1992 and 1995. However, the purpose of this study was to obtain evidence of wolverines, and this portion of the species assessment specifically notes that no ‘Forest-wide or district surveys have been conducted for the marten’ on the SJNF. The Court finds that the data contained in this study is not the population trend data required by the regulations. Accordingly, the Court concludes, as a preliminary matter, that the Forest Service's approval of the Project without trend population data for the MIS is contrary to the governing regulations, and therefore Plaintiff is substantially likely to succeed on the merits of its first NFMA claim.” (Emphasis added.)
Failing to provide a rational explanation for eliminating species as MIS violates NFMA. 36 C.F.R. § 219.19(a)(1). For example, there is absolutely no explanation why the Flattened Musk Turtle was dropped as an MIS for the Bankhead.
MIS chosen were all common species. Under 36 C.F.R. § 219(a)(1), they are supposed to include “species with special habitat needs” and “threatened and endangered species.” The only T&E species chosen was RCW. All other species are common and none have special habitat needs. Choosing commons species makes the NFMA viability requirement meaningless, because no logging short of regional deforestation will adversely impact the viability of wide-spread, common species.
The Plan and FEIS claim that species chosen “should primarily reflect the effects of national forest management activities” (AL FEIS, Appendix B at B-84), but elsewhere, they claim that “Sedimentation is the leading contributor to water quality degradation within the watersheds with Forest Service ownership. Forestry and agricultural practices are the leading causes for erosion and thereby sedimentation” (AL Final Plan at 2-15), and “Sediment increases can adversely affect fish productivity and diversity (Alexander and Hansen, 1986), degrade drinking water and affect recreational values. There may be other cumulative impacts such as increases in water yield as a result of harvesting methods.” (AL FEIS Appendix B at B-43.) Therefore, management activities (especially logging and associated road work) in the Plan will impact streams through sedimentation and water yield. Yet, the Plan has NO MIS for reflecting the effects of those impacts from those activities
Plan plans to use breeding bird survey data as the ONLY data that will be used for monitoring the few birds species they pick as MIS. No site-specific data or monitoring will be done. Is breeding bird survey data valid and useable for this purpose? Nothing in the Plan or FEIS supports its validity.
Under 36 C.F.R. § 219(a)(1), the agency is supposed to include “species with special habitat needs” and “threatened and endangered species.” All the MIS chosen are common and none have special habitat needs. Choosing common species makes the
115 NFMA viability requirement meaningless, because no logging short of regional deforestation will adversely impact the viability of wide-spread, common species.
To not include ANY aquatic species as MIS is arbitrary in the extreme, especially when you know that Alabama has the most diverse aquatic ecosystems in the world and that the National Forests in Alabama are some of the last refuges for the rarest of those aquatic species, such as the Flattened Musk Turtle, the Blue Shiner and numerous listed mussel and snail species.
The Plan replaces MIS with “community level monitoring,” which the agency claims “reduces the variability inherent in looking at an individual species, and thus provides more accurate information on the status of the community and the health of aquatic systems.” (AL FEIS Appendix B at B-94.) No support, explanation or citations are given for this claim. Therefore, under standard NEPA case law, this claim is not legal and is arbitrary and capricious.
Even if that claim is true and correct, it is also true that such an approach that looks at the overall community could well miss the declining population of one or more of the rarer species in that community. Again, MIS methods of this type assume that rarer species are okay if common, generalist species are okay; there is no scientific support cited anywhere in the Plan or FEIS for such an assumption. This is like looking at overall wage and poverty levels in wealthy, heavily-white communities to determine if minorities are doing okay.
To meet NFMA requirements, the Plan must have MIS that do adequately provide for indicating management’s impacts and must have monitoring for all MIS species, or there is no point in having them. Plus, NFMA requires population data and trend analysis, which is impossible without actual data.
PETS:
The new Plan says that PETS will be the fine filter and thus rejects monitoring of MIS. But the Plan provides virtually nothing for PETS and their monitoring. The words “PETS” appears in the Plan only four times, with one of those being in “Appendix B: Acronyms.” The one and only mention of monitoring for PETS is in “Appendix F: Monitoring Summary Table” and says only, “Various methods will be used as appropriate to the species or species group. Refer to PETS Species Inventory and Monitoring Handbook.” (AL Plan Appendix F at F-8.) Nowhere in the Plan or the FEIS is there a statement of what monitoring will or will not be done; there is nothing for the public to review and comment on. The Monitoring Handbook can be changed any time without public notice and comment.
In Kern v. United States Bureau of Land Management, 284 F.3d 1062 (9th Cir. March 2002), the court held that an agency cannot tier to doc that is not a NEPA document itself. As the Ninth Circuit held, “tiering to a document that has not itself been subject to NEPA review is not permitted, for it circumvents the purpose of NEPA.”
116 Kern, 284 F.3d at 1074. In Kern, the court found that BLM unlawfully tiered its analyses to the Port Oxford Cedar Management Guidelines (the “Guidelines”). Id. While the Guidelines contained detailed analysis of the impact of the fungus at issue on Port Oxford Cedar, the Guidelines had not undergone any NEPA review of their own. The Ninth Circuit found that BLM could not lawfully tier to the Guidelines until it fulfilled its responsibility under NEPA to perform an analysis of the effects of the Fungus on the Port Oxford Cedar. Id.
This relegating PETS monitoring to a changeable document that has never been reviewed or commented on by the public is an attempt by the Forest Service to circumvent both NEPA and NFMA. By tiering PETS monitoring to a document that can be changed at a whim without public notice and comment, the Forest Service did not take a “hard look” at the consequences of their monitoring methods and did not provide the public and the decision maker with the information required to know what will or will not happen regarding monitoring. As for NEPA, this tiering was not mentioned in the Draft Plan, DEIS or DEIS Appendices at all, so not only was the tiered document not a NEPA document, the public was not given the opportunity to even know during the comment period that such an illegal plan was being proposed. .
On NFMA grounds , this tiering to another, changeable document circumvents the agency’s duty under 36 C.F.R. § 219.12(k), which provides:
“Monitoring and evaluation. At intervals established in the plan, implementation shall be evaluated on a sample basis to determine how well objectives have been met and how closely management standards and guidelines have been applied. Based upon this evaluation, the interdisciplinary team shall recommend to the Forest Supervisor such changes in management direction, revisions, or amendments to the forest plan as are deemed necessary.
“Monitoring requirements identified in the forest plan shall provide for-
“(1) A quantitative estimate of performance comparing outputs and services with those projected by the forest plan;
“(2) Documentation of the measured prescriptions and effects, including significant changes in productivity of the land; and
“(3) Documentation of costs associated with carrying out the planned management prescriptions as compared with costs estimated in the forest plan.
“(4) A description of the following monitoring activities:
“(i) The actions, effects, or resources to be measured, and the frequency of measurements;”
117 The sole section on monitoring PETS does not set forth the “actions, effects, or resources to be measured.” It merely refers monitoring to some other document that can be changed at will without public notice and comment. This clearly violated NFMA
Yet, the Plan admits that many PETS species have big viability concerns:
“Based on species viability analyses derived from indicators of watershed-wide habitat conditions, 115 out of 172 (67%) aquatic PETS and rare (PETS_R) species are at high risk for loss of viability in at least one watershed. Sixty-nine of these species are at risk in multiple watersheds. Thirty percent of the species are in the high-risk category, 47 percent are in the moderate risk category, and 23% are in the low risk category. Eighteen mussels, 15 fishes, 11 snails, 4 insects, 2 reptiles, 1 crayfish, and 1 amphibian fall within the highest risk category. Mollusks represent over 54% of the total number of high-risk species but only 37% of the total PETS and rare species. Mussels, snails, and fish have the largest proportions of their PETS and rare species ranking within the high levels of viability risk. Additionally, a substantial population imperilment risk adjustment was included for 35 PETS species: 12 fishes, 10 mussels, 9 insects, 2 crayfish, 1 snail, and 1 amphibian, thereby elevating their potential viability risks to high under outcome categories 4 and 5.”
(AL FEIS at 3-331.)
The new plan for the Chattahoochee-Oconee National Forests requires more monitoring of PETS than the Alabama plan does. In the CONF Plan, virtually every management prescription provides, “Systematic landscape surveys will be conducted periodically on a sample basis for population health and trends of PETS species.” (CONF Final Plan at 3-10, 3-15, 3-35, 3-38, 3-42, 3-45, 3-49, 3-55, 3-59, 3-68, 3-76, 3- 80, 3-84, 3-89, 3-93, 3-96, 3-106, 3-111, 3-116, 3-121, 3-124, 3-128, 3-133, 3-136, 3- 140, 3-147, 3-151, 3-155, 3-170, and 3-185.) The failure to require such systematic and periodic landscape surveys for PETS in the National Forests in Alabama is arbitrary can capricious.
Full surveys for PETS can be done successfully and not hinder projects. The Final Environmental Impact Statement for the Talladega National Forest “Forest Health and RCW Initiative” (March 2004) is a 19,000-acre, five-year project. Yet, every area in that 19,000 acres was surveyed for PETS by highly-qualified personnel. “Project level inventories were conducted to gather information on the presence or absence of protected species within the area affected by the project. All sites with project activities such as thinning or site preparation that could impact native plant populations were surveyed.” Talladega FEIS at 255. If such comprehensive PETS monitoring can be done for a 19,000-acre project, why can it not be done for other projects? The Final Plan and FEIS give absolutely no justification or even analysis on why PETS monitoring is gutted.
A strong Aquatic Conservation Strategy can fulfill federal agency duties to affirmatively conserve and recover protected species. An Aquatic Conservation Strategy
118 is also the only way to ensure consistent protections for the many threatened and endangered aquatic species in the Appalachians. Perhaps most importantly, a strong Aquatic Conservation Strategy would forestall the decline of more species and prevent the need to give them the protections of the ESA.
119 7. Restoration.
The Summary for the Final Plan directly states, “Some of the best silvicultural sites that are currently accessible could be managed to provide a supply of high-quality sawtimber.” (Summary at 3.) We and the public through the media are being told by the agency that this Plan ends the commercial extractive purposes on these forests and focuses them on restoration. The above statement in the Summary is directly contrary to that restoration message and goal.
Our comments that timber harvesting should be limited to restoration and forest health purposes and not allowed just for its own sake, as suggested in the Summary, was not responded to. The Response to Comments states:
“7-138. Public Concern: The Forest Service should only conduct timber harvest as incidental to actions for habitat restoration and forest health.
“Response: The revised Plan permits the use of various tools and site-specific analyses will determine which methods are appropriate for a particular project. Timber harvest is one of the tools available.” (FEIS Appendix J, at J-180.)
Chapter 4 of the Final Plan does not comply with NFMA or the implementing regulations. Nothing in Chapter 4 quantifies what goods and services will be produced from the implementation of the Plan. The language in Chapter 4 makes out as if the timber output will be negligible. “Forest products are generally by-products of management activities to meet other resource objectives, such as restoration, wildlife habitat management, and forest health improvement activities.” (AL Final Plan at 4-1.) The FEIS, on the other hand, 85.3 MMCF ASQ of timber in the first decade with 91.2 MMCF total timber output in the first decade. By the fifth decade the Forest will be producing 172.1 MMCF. (AL FEIS at 2-20.) Nowhere does the Plan or FEIS show how this level of volume will be strictly “by-products” of restoration goals and objectives or how restoration can provide such a high and stable level of timber.
The Plan states that the “management of forest vegetation focuses on restoring and maintaining healthy forest ecosystems.” (AL Final Plan at 4-1.) And yet the Plan continues the emphasis on “mosaic” management with its checkerboard cuts. Vague generalities make up the desired future condition section. “Many mussels, crawfish, and fish are common in the streams . . . .” (AL Final Plan at 4-2.) What species of mussels, crawfish, and fish? Unfortunately, this is never answered anywhere in the Plan or DEIS. This is significant because monitoring is supposed to determine whether desired conditions are resulting. (AL Final Plan at 5-1.) If the DFC is not objective and quantifiable, then how can monitoring occur?
120 8. Roads.
The Plan rejects suggestions to have goals, objectives and standards for road closure, removal and obliteration. The Response to Comments tersely states, “This concern is best addressed at a watershed or project decision scale rather than in forest planning. An interdisciplinary science-based roads analysis at the appropriate scale will be used to inform planners and decision makers of needed and unneeded roads and to recommend priorities.” (AL FEIS Appendix J, at J-98-99.)
No explanation of why a forest plan cannot have standards for how road closure and removal is handled at the “watershed or project decision scale” is provided. So, when watershed or project level decisions are being made about road closure and removal, there will be no standards in the Plan for those site-specific projects to tier to or use. Since a project “shall be consistent with the land management plans,” 16 U.S.C. § 1604(i), how will a district ranger make road closure and removal decisions “consistent” with the Plan if the Plan has no standards? To not have these standards in the Plan, where will the standards come from for individual projects? If the Plan does not have to have standards for roads, then why does the Plan have standards for anything? This is clearly not NEPA and NFMA compliance.
Temporary roads will increase in Alabama due to all the restoration work, but the plan has nothing about how to mitigate or offset that with decommissioning permanent roads.
The Final Plans states, “A forest-scale roads analysis has been completed to inform the decision as required in FSM 7712.” (AL FEIS Appendix J at J-94.) This analysis was not made available to the public for review at the Draft Plan and DEIS stage. No further mention of FSM 7712 occurs in the Final Plan or FEIS, and there is no roads analysis in the Final Plan or FEIS.
NEPA requirements must be fulfilled “before a decision that may have a significant adverse impact on the environment is made.” Nat'l Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001); see also 40 C.F.R. 1500.1(b), 1502.5, 1506.1.
Documents issued after the NEPA process cannot bring the EA into compliance with NEPA. “[U]nless a document has been publicly circulated and available for public comment, it does not satisfy NEPA’s EIS requirements.” Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir. 1983). “The adequacy of the environmental impact statement itself is to be judged solely by the information contained in that document. Documents not incorporated in the environmental impact statement by reference or contained in a supplemental environmental impact statement cannot be used to bolster an inadequate discussion in the environmental impact statement.” Village of False Pass v. Watt, 565 F. Supp. 1123, 1141 (D. Alaska 1983), aff'd, 735 F.2d 605 (9th Cir. 1984). See also Sierra Club v. Hodel, 848 F.2d 1068, 1096 (10th Cir. 1988) (refusing to “synthesize studies and
121 trial evidence” which the agency argued were “the functional equivalent of an EIS”; “The sufficiency of NEPA review must depend on the completeness of the studies themselves.”). As the First Circuit explained:
“Even the existence of supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot ‘bring into compliance with NEPA an EIS that by itself is inadequate.’ . . . Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well- reasoned.”
Dubois v. U.S. Dept. of Agriculture, 102F.3d1273, 1287 (1st Cir. 1996), cert. denied, 117S. Ct. 2510 (1997) (citations omitted). See also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980) (supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot “bring into compliance with NEPA an EIS that by itself is inadequate.”).
Any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. California v. Block, 690 F.2d 753, 765 (9th Cir. 1982) (quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1284 (9th Cir. 1974)).
The Roads Analysis for the Plan was not done with any public input. But the Federal Register announcement for the Roads Analysis required public input. Instead of providing a rigorous and complete analysis of road system issues and information on which to base decisions, the Roads Analysis Report (RAR) was not done for the National Forests in Alabama by the draft stage. The only mentions of a RAP in the entire draft Plan, DEIS and DEIS Appendices are two instances on page 3-427 in the DEIS, where it is stated each time, “Road density would be expected to decline on all districts due to an increase of roads identified for decommissioning from completed Roads Analysis Process’s.” This makes it clear that the RAP was not done yet for these Forests in time for public comment. This is not NEPA and NFMA compliance.
As noted in the report entitled Roads Analysis: Informing Decisions About Managing the National Forest Transportation System, roads analysis belongs on the left side of the NEPA triangle where it serves as information to inform the development of alternatives to address the issues under consideration. It is clear that the RAP should have been completed and available for public review and comment before the strategic road decisions were entered into the forest plan.
The Plan continues to ignore both the science and the economics regarding the management of the National Forest Transportation System. This is largely because it was not informed by a rigorous and adequate Roads Analysis Process (RAP) in compliance with the regulations of the Forest Transportation System Management Policy (36 C.F.R. § 212). Widespread local and national concerns with the adverse effects of roads and with the management and maintenance costs associated with the national forest road
122 system led to the adoption of the Forest Transportation System Management Policy in January 2001. The Forest Service Manual modified the implementation of this policy temporarily in December 2001 to provide direction for a brief transition period. The interim direction provides that all forests that have started the revision of their forest plans but will not complete the process by January 2002 must complete a roads analysis prior to adoption of the final revision (FSM 7712.15.2.b). It further provides that the manner in which the significant issues are addressed in the revision process must be informed by the results and findings of this roads analysis process (RAP) at the forest scale (FSM 7712.12a). While specific decisions concerning specific roads can be deferred to watershed or project level analyses, it is clear that the broader decisions of the plan as they relate to the road system—including resource allocation decisions that may require roads—were to be based on a rigorous analysis of the ecological, social, and economic constraints of constructing and maintaining roads. That was not done.
All alternatives have exactly the same number of miles of roads; thus, as to roads, there were no alternatives at all. How did the roads analysis inform the analysis if there was never any change in the alternatives? Why is none of it included in the Plan and FEIS? This is another clear failure to comply with NEPA and review a reasonable range of alternatives and take a “hard look” at the consequences of this action.
The Roads Analysis Report (Dec. 2002) only considered only Level 3, 4 and 5 roads, but the Roadless inventory used lesser roads (Level 1 and 2) to knock areas out. This is inconsistent and arbitrary and capricious.
Even the agency’s own experts stated that road closure and obliteration should have been included, but these recommendations were ignored, in violation of NEPA, as set forth below. As stated by Mel Warren, one of the agency’s top aquatic scientists, in his comments on the draft Plan, “I may have missed it but why didn’t the aquatic folks (Forest level) emphasize road closure/obliteration as a means of improving stream quality? If they did, I did not see it; if they did not, I am puzzled.” Mel Warren, “Comments on draft plan revisions,” at page 4 (May 1, 2003).
123 9. Issues specific to the Bankhead National Forest:
Logging in Historic Districts: “Logging activities would only take place within National Register Districts when the logging enhances the district.” (FEIS Appendix J, at J-165.) What “enhances the district” means is never defined. There is no NEPA analysis at all on what the impacts from this “enhancement logging” could be.
Mining with “a Controlled Surface Use stipulation” will be allowed in Cultural/Heritage Areas, Prescription 4.E.1. (AL Final Plan at 3-17.) This suffers from numerous NEPA violations. An alternative that placed all 4.E.1 areas off limits to mineral extraction (either coal mining or oil and gas drilling) should have been considered. Mineral development is not compatible with protection of these unique and irreplaceable cultural and historic resources. Further, no analysis of the possible impacts to cultural and heritage resources was ever done. Also, none of the materials in the FEIS on coal mining were in the DEIS, so none of it was available for public notice, review and comment, in complete violation of NEPA.
Failure to follow the Bankhead Heritage Management Plan. The entire response to lengthy and detailed comments based on the Heritage Management Plan is:
“The Bankhead Heritage Management Plan is still in draft. As written, the Bankhead Heritage Management Plan requires hiring seven additional archeologists and a budget of $450,000 for the Bankhead alone. A commitment of people and resources is beyond the scope of the Land Management Plan.” (AL FEIS Appendix J, at J-123.)
Coal mining leases are authorized for the first time (FW-165, Final Plan at 2-66), all without any mention of coal mining in the Draft Plan. Any such mining would be by underground methods, unless a land exchange occurred first. “The Surface Mining Control and Reclamation Act of 1977 prohibits surface (strip) mining of coal on any Federal lands within the boundaries of any National Forest east of the 100th Meridian. Deposits of coal can only be mined by underground methods.” (FEIS at 3-60.)
124 10. NHPA Violations
The Plan does not require that the Forest Service survey the forests for heritage resources. Comments requesting the agency to do this were summarily dismissed:
“6-75. Public Concern: The Forest Service should survey and inventory all National Forest lands in Alabama.
“Response: Section 110 of the National Historic Preservation Act directs the Forest Service to inventory its lands for heritage resources.” (AL FEIS Appendix J, at J-132.)
It is hard to tell how much of each forest has been surveyed, other that from off- hand statements in various places. “The Conecuh District had a low site density, with approximately three-fifths of the district having been surveyed. Land adjustment activities on the Tuskegee will be relatively low, with the activities involving primarily acquisition. Approximately four-fifths of the Tuskegee District has been surveyed.” (AL FEIS at 3-437.)
There are NO requirements in the Plan for surveys of heritage resources at the forest level for any forest. In the Plan’s Monitoring Summary Table, Appendix F, only project-level surveys are required.
The HFPA § 110(a)(2) provides:
“Each Federal agency shall establish (unless exempted pursuant to Section 214) of this Act, in consultation with the Secretary, a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties. Such program shall ensure —
“(A) that historic properties under the jurisdiction or control of the agency, are identified, evaluated, and nominated to the National Register;”
16 U.S.C. § 470h-2(a). The Alabama Plan has not done or required this preservation program.
125 11. NEPA Violations.
“The ‘object of NEPA is to require federal agencies to consider environmental values when making decisions [and] the initial responsibility of the federal agency is to determine the extent of the environmental impact.’” Hill v. Boy, 144 F.3d 1446, 1449 (11th Cir. 1998) (quoting C.A.R.E. Now, Inc. v. Federal Aviation Admin., 844 F.2d 1569, 1572 (11th Cir. 1988)). “The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d, is not a substantive environmental statute which dictates a particular outcome if certain consequences exist. Instead, NEPA creates ‘a particular bureaucratic decisionmaking process.’” Sierra Club v. United States Corps of Eng'rs, 295 F.3d 1209, 1214 (11th Cir. 2002) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989)). Section 102(2) of NEPA, 42 U.S.C. § 4332(2)(C), contains a Congressional mandate that federal agencies consider the environmental impact, and potential alternatives, for every proposed “major Federal action significantly affecting the quality of the human environment.” It is an “action- forcing” provision designed to prevent agencies from acting on incomplete information and to “ensure[] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” United States Corps of Eng'rs, 295 F.3d at 1214 (quoting Robertson, 490 U.S. at 349). See also American Canoe v. White, 277 F. Supp. 2d 1244 (N.D. AL 2003).
A reviewing court must not “substitute its judgment for that of the agency” concerning the proposed action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Rather, a court must determine whether the decision was “based on a consideration of relevant factors” and whether “the agency has taken a ‘hard look’ at the environmental consequences of its proposed action.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). This standard, however, does not shield the agency from a “thorough, probing, in-depth review.” Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1473, 1476 (W.D. Wash. 1992) (quoting Citizens to Preserve Overton Park, 401 U.S. at 415). An agency seeking to justify its action may not offer a new explanation for the action, but must be judged on the rationale and record that led to the decision. City of Kansas City, Missouri v. Department of Hous. & Urban Dev., 287 U.S. App. D.C. 365, 923 F.2d 188, 192 (D.C. Cir. 1991) (“arbitrary and capricious review ... demands evidence of reasoned decisionmaking at the agency level; agency rationales developed for the first time during litigation do not serve as adequate substitutes”). See also National Wildlife Fed. v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1152 (W.D. Wash 2002).
Plan is not Readable
The AL Plan FEIS is not readable. NEPA requires that an EIS be “readable.” Oregon Environmental Council v. Kunzman, 817 F.2d 484, 493-94 (9th Cir. 1987); see 40 C.F.R. §§ 1500.4(e), 1502.8, 1502.10. To this end, an EIS must use “plain language,” be “clearly present[ed]” in a “clear format,” and must be “organized and written so as to be readily understandable by governmental decisionmakers and by interested non-
126 professional laypersons likely to be affected by actions taken under the EIS.” Kunzman, 817 F.2d at 494; 40 C.F.R. §§ 1500.4(e), 1502.8, 1502.10. An EIS serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it “must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.” Environmental Defense Fund v. Corps of Engineers, 348 F. Supp. 916, 933 (W.D. Miss. 1972). It cannot be composed of statements “too vague, too general and too conclusory.” Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972); Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973).
Inserting New Things into the Final Plan that were Not in the Draft Plan
Inserting significant new things in the Final that were not in the Draft are clear NEPA violations, thus frustrating public notice and comment on those things.
NEPA has two primary goals. The first goal is to ensure that a government agency carefully gathers and evaluates relevant information about the potential impact of a proposed agency action on the environment. Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1237 (10th Cir. 2002) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S. Ct. 1835, 104 L.Ed.2d 351 (1989)); see also 40 C.F.R. § 1500.1(b). The second goal is to ensure “that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process” thereby guaranteeing that public is involved in and aware of agency processes. Committee to Preserve Boomer Park v. Dept. of Transportation, 4 F.3d 1543, 1554 (10th Cir. 1993) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S. Ct. 2246, 2252 (1983)); see also 40 C.F.R. §§ 1500.1(b); 1500.2(d); 1506.6.
“Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency’s actual decision was informed and well- reasoned.” Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1287 (1st Cir. 1996), cert. denied sub nom. Loon Mountain Recreation Corp. v. Dubois, 117 S. Ct. 2510 (1997). Accord, Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980); City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142, 1161 (9th Cir. 1997).
As set forth in Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 782 (9th Cir. 1980):
“We have previously held that supporting studies need not be physically attached to the EIS and that they need only be available and accessible. Trout Unlimited v. Morton, 509 F.2d at 1284; Life of the Land v. Brinegar, 485 F.2d 460, 468-69 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1974). Although it may be that facts supporting the conclusions in the EIS were technically ‘available’ somewhere, the EIS gives no hints where to search or whether studies were in fact performed. Thus, the adequacy of the EIS must stand
127 or fall on its own supporting documentation. We conclude that the EIS fails to give decision makers who are removed from the initial decision sufficient data from which to draw their own conclusions about air, noise, and water pollution. See County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1370 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S. Ct. 1238, 55 L. Ed. 2d 764 (1978).”
Public availability is key. Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir. 1983) (“[U]nless a document has been publicly circulated and available for public comment, it does not satisfy NEPA’s EIS requirements.”); Dubois at 1287.
An EIS will be found to be in compliance with NEPA
“when its form, content, and preparation substantially (1) provide decision- makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information.”
Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d 1276, 1282-83 (9th Cir. 1974)(emphasis added).
Studies not in an EIS cannot cure an inadequacy since they would not be circulated for review and comment as required by NEPA. I-291 Why? Asso. v. Burns, 372 F. Supp. 223 (D. Conn. 1974), aff'd, 517 F.2d 1077 (2d Cir. 1975). In that case, the law supported the court’s refusal to treat the uncirculated and unreviewed noise and air quality studies as a supplemental EIS possibly curative of the defects in the original EIS. In Natural Resources Defense Council v. Morton, 337 F.Supp. 170 (D. D.C. 1972), the court was concerned with a proffered “addendum” or supplement to the EIS which had been declared inadequate by the court in Natural Resources Defense Council v. Morton, 337 F.Supp. 167, 172-173 (D. D.C. 1971), aff'd 458 F.2d 827:
“The Court believes that Section 4332(2)(C) of NEPA has not been complied with, since the addendum, which is essentially a draft statement, has not been submitted for comment and review by any other Federal agencies, nor have the comments and views of the ‘appropriate Federal, State, and local agencies’ been solicited with regard to this addendum. . . . As was explained by Government counsel, the normal procedure is to prepare the Final Impact Statement and to circulate this statement for comment and review by appropriate Federal, State, Local and other interested agencies. In the case at bar the original Final Impact Statement was circulated for comment and review, however, this statement did not contain the proper discussion of the alternatives as is required by NEPA. Following the decision of the Court of Appeals, the addendum, which included the required discussion of alternatives, was prepared by the Department of Interior. This addendum has to date never been circulated to other Federal agencies, nor has it been sent to the appropriate State and local agencies or other
128 parties who might be interested in the proposed lease sale. If this addendum is to be considered a part of the Final Impact Statement, then it must be subjected to the same comment and review procedures outlined by Section 4332(2)(C) of NEPA, as was required for the original Final Impact Statement which did not contain the addendum when it was first circulated…. While it is quite conceivable that none of the alternatives . . . are feasible at this time, this fact does not mean that those Federal, State and local agencies interested should not be given the opportunity to comment on the Addendum to the Final Impact Statement as required by Congress. Whether or not the comments will be valuable in the end is not the question before this Court. The Court must only determine whether the opportunity for comment as required by Section 4332(2)(C) was afforded. The Court finds that the opportunity was not afforded in this instance with respect to the addendum, which was an important part of the Final Impact Statement.”
In California v. Block, 690 F.2d 753, 770-71 (9th Cir. 1982), the court held:
“Given the limited public input opportunities attendant to the issuance of a final EIS, satisfying this directive requires an agency to circulate the Proposed Action, or an alternative that resembles the ultimate Proposed Action, for public comment prior to the issuance of the final EIS. This can normally be done in the initial draft EIS. If it is not and if the Proposed Action ultimately differs so dramatically from the alternatives canvassed in the draft EIS as to preclude ‘meaningful consideration’ by the public, section 1500.7(a) still requires the submission of the Proposed Action for public comment prior to the issuance of the final EIS. If this occurs, the circulation of a supplemental draft EIS describing the Proposed Action is the only means of satisfying this requirement.”
“We agree with the CEQ Guidelines' interpretation of NEPA's procedural requirements. NEPA's public comment procedures are at the heart of the NEPA review process. NEPA requires responsible opposing viewpoints to be included in the final EIS. 42 U.S.C. § 4332(2)(C) (1976); Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 121 (D.N.H. 1975). This reflects the paramount Congressional desire to internalize opposing viewpoints into the decision-making process to ensure that an agency is cognizant of all the environmental trade-offs that are implicit in a decision. See Andrus v. Sierra Club, 442 U.S. at 350; Appalachian Mountain Club, 394 F. Supp. at 121. To effectuate this aim, NEPA requires not merely public notice, but public participation in the evaluation of the environmental consequences of a major federal action. See Trout Unlimited, Inc., 509 F.2d at 1282.
“Failure to disclose a Proposed Action before the issuance of a final EIS can defeat this aim, at least when the Proposed Action differs radically from the alternatives mentioned in a draft EIS. Only at the stage when the draft EIS is circulated can the public and outside agencies have the opportunity to analyze a proposal and submit comment. No such right exists upon issuance of a final EIS. By refusing to disclose its Proposed Action until after all opportunity for
129 comment has passed, an agency insulates its decision-making process from public scrutiny. Such a result renders NEPA's procedures meaningless. See Appalachian Mountain Club, 394 F. Supp. at 121.”
A number of goals, objectives and standards added without public notice and comment. New goals, objectives and standards added for oil and gas exploration and drilling and for mining; basically, the whole section of the Draft Plan devoted to “minerals” was rewritten, all without public notice and opportunity for comment.
Goal 32 (Goal 30 in Draft Plan) was rewritten to require minerals and energy programs to be “in accordance with Washington Office policies”. New goals are 33 (exercise of private mineral rights will be respected) and 34 (manage geologic resources to provide multiple public benefits).
New standards are 32.1 (“Applications for federal mineral leases, licenses, and permits are processed within 120 days.”), 32.2 (“emphasize authorizations of minerals needed for environmental protection, public infrastructure, flood protection, erosion control, and watershed restoration”), and 33.1(“Operations proposed under outstanding and reserved mineral rights are processed within 60 days and 90 days, respectively.”)
Other new standards are also FW-157 through FW-168 (Final Plan at 2-65 – 2- 66). FW-157 requires that the exercise of mineral rights trumps everything else. FW-158 requires that all projects and all consideration of special designations include a review of the status of private mineral rights. FW-160 requires that other management avoid, minimize or mitigate effects on geologic resources.
FW-163 is the Regional Forester’s consent (i.e., final decision) “to lease those lands on the Forest, which have not been statutorily withdrawn, subject to standard lease terms.” Thus, FW-163 fully opens 585,394 Acres (87.9%) of the National Forests in Alabama to mineral leases. “For energy leasable minerals (oil, gas and coal), the Revised Forest Plan makes both the land availability decision and the decision to lease.” (FEIS at 3-59.)
FW-165 permits coal mining operations on the National Forests in Alabama for the first time. The word “coal” does not appear anywhere in the Draft Plan. Neither the DEIS or FEIS discuss impacts from coal mining anywhere, in complete violation of NEPA.
These additions of new goals, objectives and standards does not comply with 36 C.F.R. § 228.102, which requires: (1) identifying alternatives, including that of not allowing leasing (§228.102(c)(2)); (2) project the type/amount of post-easing activity that is reasonably foreseeable (§228.102(c)(3)); and (3) analyze the reasonable foreseeable impacts of post-leasing activity (§228.102(c)(4)).
Lack of Cumulative Impacts Analysis
130 The Final Plan also has a significant lack of cumulative impacts analysis. NEPA regulations require that the Forest Service “integrate the NEPA process with other planning at the earliest possible time. . . .” 40 C.F.R. § 1501.2. Many courts have recognized this means cumulative impacts analysis cannot be deferred. In Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), the Forest Service prepared an EA for a logging road, considering only the impacts of the road itself and ignoring the impacts of logging timber the road was designed to access. The Forest Service promised cumulative impacts would be considered in EAs or EISs prepared for individual timber sales. Id. at 760. The Ninth Circuit found this impermissible under NEPA. The court concluded that NEPA “cannot be fully served if consideration of the cumulative effects of successive, interdependent steps is delayed until after the first step has already been taken.” Id. The court stated that “consideration of cumulative impacts will serve little purpose if the road has already been built. Building the road swings the balance decidedly in favor of timber sales. . .” Id. The Ninth Circuit went on to state clearly in Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372 (9th Cir. 1998), that the Forest Service cannot “defer consideration of cumulative impacts to a future date. ‘NEPA requires consideration of the potential impact of an action before the action takes place.’” 137 F.3d at 1380 (quoting City of Tenakee Springs v. Clough, 915 F.2d at 1308, 1313 (9th Cir. 1990); see also Kern v. Oregon Natural Resources Council, 284 F.3d 1062, 1075 (9th Cir. 2002) (not appropriate to defer consideration of cumulative impacts when meaningful consideration can be given now).
The Forest Service may also argue that the impacts of the management activities proposed in the Plan are too far in the future and are too vague or uncertain to be considered in detail in the plan. The Forest Service made a similar argument without success in Thomas v. Peterson, where the court said the Forest Service “may not escape compliance with the regulations by proceeding with one action while characterizing the others as remote or speculative.” 753 F.2d at 760; see also Kern, 284 F.3d at 1072 (“we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’”). In one case where the court allowed the Forest Service to defer detailed cumulative effects analysis to the project level, the court still required the Forest Service to “analyze [cumulative] impacts, including possible synergistic effects from implementation of the Plan as a whole, before specific sales.” Resources Ltd. v. Robertson, 35 F.3d 1300, 1306. (9th Cir. 1994). The court recognized that “consideration of specific projects in isolation is insufficient to replace analysis of the impact of a program as a whole.” Id.
The FEISs for the Southeastern forest Plans can also be distinguished from some cases where courts found general analysis of cumulative impacts in a programmatic EIS sufficient. See, e.g., Northern Alaska Environmental Center v. Lujan, 961 F.2d 886 (9th Cir. 1992). The FEISs for the Southern Appalachian forests do make “critical decisions” on management of forest resources. Compare id at 891. While the Forest Service does retain some authority “to decide whether any activity would ultimately occur”, the forest Plan makes decisions about future management of the forest. In the Plan, the Forest Service commits to a particular, detailed course of forest management for the next 10-15 years. The actions contemplated by the forest Plan are not “hypothetical” actions.
131 Compare id. The Forest Service cannot deviate from the course set in the Plan without amending the Plan. Compare id. at 891. Future projects implement the Plan and must be consistent with the Plan.
In Kern v. United States Bureau of Land Management, 284 F.3d 1062 (9th Cir. March 2002), the Ninth Circuit held that there are required contents of a programmatic EIS; forecasting is necessary, and the agency cannot just defer to site-specific analysis. On cumulative impacts, the court found that cumulative impact analysis is very important and is required for EAs as well as EISs. As the court pointed out, there are at least 100 times as many EAs as EISs per year. Thus, all site-specific impacts must be addressed or there would be a “Tyranny of small decisions.” “If, as is the case here, there is no [cumulative impacts] analysis in the EIS, the scope of the required analysis in the EA is correspondingly increased.” 284 F. 3d at 1078.
In Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002), the Tenth Circuit invalidated a decision to construct a five-lane highway bisecting a park where no road currently existed. The court found that “the record establishes here that the defendants prejudged the NEPA issues. This prejudgment diminishes the deference owed to the federal defendants in our review of their decision to issue a FONSI rather than an EIS.” 302 F. 3d at 1112.
The Tenth Circuit also found the consideration of alternatives inadequate. “While it is true that defendants could reject alternatives that did not meet the purpose and need of the project, . . . they could not define the project so narrowly that it foreclosed a reasonable consideration of alternatives.” 302 F. 3d at 1119. In that case, the defendants did not consider possibility of combining alternatives, just as here, the Forest Service did not consider our Alternative W, which was a combining of a maximum wilderness protection plan with the restoration alternative proposed by the agency itself. “Summary treatment” of some rejected alternatives was not enough. “This discussion of alignment alternatives is so vague and non-specific as to be essentially meaningless.” 302 F. 3d at 1121.
The Tenth Circuit also found an inadequate analysis of impacts, which was “fatally flawed by its use of vague, unsupported conclusions and inadequate, incomplete analysis.” 302 F. 3d at 1110. Cumulative impacts were also not adequately discussed. . Under NEPA regulations, the Environmental Impact Statements (EISs) for each of the revised Southern Appalachian Forest Plans must discuss the cumulative impacts of proposed management activities. NEPA defines “cumulative impacts” as:
“the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions 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.”
132 40 C.F.R. § 1508.7.
Cumulative impacts analysis must consider together the impacts of the Plan and all other past, present and reasonably foreseeable actions planned by other federal and state agencies and activities on private land. Future impacts must be considered in the context of the current condition of the forest, given the ongoing effects of past forest management activities. Cumulative impacts analysis should recognize that the effect of proposed activities, when taken together, may be greater than the effect of each activity alone.
The Forest Service must analyze the “synergistic effects from implementation of the Plan as a whole. . .” Resources Ltd. v. Robertson, 35 F.3d 1300, 1306. (9th Cir. 1994). The EIS for the Forest Plan must “analyze the effects of various activities in combination.” Sierra Club v. USDA, 1995 U.S. Dist. LEXIS 21507, *35 (S.D. Ill. 1995), aff’d without opinion 1997 U.S. App. LEXIS 14635 (7th Cir. 1997). In Sierra Club, the court required the Forest Service to aggregate the effects of the timber program, the use of ATVs, and mineral extraction and determine “whether the sum of these incremental disturbances will create a significant detrimental effect.” Id. at *34-36.
The analysis of cumulative impacts should “equip a decision-maker to make an informed decision about alternative courses of action” and should be “useful to a decision-maker in deciding whether, or how, to alter the program to lessen cumulative impacts.” Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298-99 (D.C. Cir. 1988). The EIS must “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1.
It is not enough to make “conclusory” or “perfunctory references” to cumulative impacts or to continue to use the same boilerplate language throughout the EIS. Id. Cumulative effects analysis requires “some quantified or detailed information. . .” Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372, 1379 (9th Cir. 1998).
NEPA insures that “high quality” information is available to the public and decisionmakers. “Accurate scientific analysis. . .[is] essential to implementing NEPA.” 40 C.F.R. 1500.1(b). The FS must “insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements.” 40 C.F.R. § 1502.24. The ESA further requires that the agency use the best scientific information available when carrying out its obligations to consult with the FWS regarding impacts to T&E species. 16 U.S.C. § 1546(a)(2).
The agency cannot rely simply on “professional judgment” to conclude there will be no significant impacts to water resources. See Idaho Sporting Congress, 137 F.3d at 1150. The agency must provide the public with “a basis for evaluating the impact” of the Plan and must make the underlying data available. Id.
133 The agency is required to respond to public comments on draft EISs. 40 C.F.R. §1503.4. Agencies may respond in several ways, including by supplementing, improving or modifying the analysis, § 1503.4(a)(3) or by explaining why comments do not warrant further agency response, § 1503.4(a)(5).
NEPA regulations require that the FS “integrate the NEPA process with other planning at the earliest possible time. . .” 40 C.F.R. § 1501.2. Cumulative impacts analysis cannot be deferred to future studies at the project level. NEPA “cannot be fully served if consideration of the cumulative effects of successive, interdependent steps is delayed until after the first step has already been taken.” Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir. 1985); Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372 (9th Cir. 1998); see also Kern v. Oregon Natural Resources Council, 284 F.3d 1062, 1075 (9th Cir. 2002). It is not appropriate to defer consideration of cumulative impacts when meaningful consideration can be given now. Kern, 284 F.3d at 1072, 75; Thomas v. Peterson, 753 F.2d at 760. The revised plans for the Southern Appalachian forests make critical decisions about management of forest resources. The cumulative effects of the Plan and of management alternatives must be fully considered.
There was no cumulative impacts analysis is in the FEIS for the approved mining and oil and gas exploration, drilling and production allowed in the FEIS and Final Plan. The agency did note even change the analysis for sediment yields from the draft to the final to reflect these additions. That shows that no cumulative impacts analysis was done.
No cumulative impacts analysis for approval of coal mining in the Bankhead. Indeed, there is no analysis of any impacts, including direct impacts, on the coal mining approved under the Final Plan.
With respect to activities on private land, the Forest Service must acquire all the information it can and reveal this information in the EIS, with meaningful analysis. 40 C.F.R. § 1502.22(a); The Lands Council v. Vaught, 198 F. Supp.2d 1211, 1245-52 (E.D. Wash. 2002).
Water Resources and Aquatic Species
The FEIS purports to analyze the cumulative effects of all past, present and future Forest Service and private activities on aquatic species and water quality at the watershed level. However, the analysis considers only the effects of sediment yield on fish and fails to consider other impacts on water resources and the impacts on species other than fish.
By focusing only on the impact of sediment, the Forest Service fails to consider the cumulative impact of other effects on water and aquatic resources, including impacts to the soil resource, increased water yield, introduced species, over-harvest, point source pollution, temperature changes, and the impacts of nutrients and fecal coliform. These impacts are either assumed to be insignificant or it is assumed they are represented somehow by analogy in the sediment yield analysis. While sediment is a major contributor to water quality problems, these other parameters must also be considered.
134 The Forest Service offers no justification for its decision to exclude other impacts from the analysis of cumulative impacts. Because the combined impact of all these adverse effects can be greater than the impact of increased sediment alone, NEPA requires the Forest Service to consider them in the cumulative impacts analysis. The agency also failed to address this concern in the Response to Comments.
Further, the effects analysis is assumed, without justification or explanation, to be a valid measure of the adverse impact on species other than fish. The Forest Service asserts that “the effects of increased sediment on mussels and other species were not analyzed because of the lack of appropriate data.” (AL FEIS Appendix J at J-52-53.) The Forest Service does not explain why it elected not to even attempt to collect this data. Moreover, this response fails to explain why assumptions made regarding cumulative impacts on these species are not arbitrary and capricious.
The failure to collect data on freshwater mussel species is especially egregious, as mussels are the most at risk species group in North America and the Southeast harbors the most diverse populations of mussels on Earth. Conservation Assessment at 7; Forest Science in the South, USFS, Southern Research Station, 2003, at 30 (attached and incorporated by reference). General statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372, 1380 (9th Cir. 1998). The agency simply “fails to set forth or reference quantified or detailed information supporting the analysis.” The Lands Council v. Vaught, 198 F.Supp. 2d 1211, 1250 (E.D. Wash. 2002).
Cumulative impacts analysis is based on the process paper “Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses” and information in the Water Resources section of the FEIS. The FEISs for all the Southern Appalachian forests rely on this process paper. The FEIS purports to analyze the cumulative effects of all past, present and future Forest Service and private activities on aquatic species and water quality at the watershed level. However, the FEIS actually uses an index called the “Watershed Health Index” to mask potentially significant impacts.
The DEIS and FEIS both recognize that “the leading contributor to water quality degradation within the watersheds with Forest Service ownership is sedimentation. Forestry and agricultural practices are the leading causes for erosion and thereby sedimentation.” (AL DEIS at 3-27; AL FEIS at 3-27.). Any soil-disturbing activity or activity which alters existing vegetation can affect soils and degrade water quality. “The greatest amount of soil erosion across each National Forest in Alabama results primarily from permanent and temporary roads.” (AL DEIS at 3-12; AL FEIS at 3-12.) The DEIS acknowledges that a direct effect of implementation of the various alternatives is an increase in sediment yield from the watersheds as a result of activity related soil disturbance. (AL DEIS at 2-19; AL FEIS at 2-19.). The agency recognizes that the Riparian prescription and Forestwide Watershed Standards cannot eliminate all effects of management activities on aquatic habitat from the entire watershed. (AL DEIS at 3-177.)
135 Yet the FEIS contradicts itself, concluding that “[i]t is unlikely that any additional combination of forest activities would have a measurable positive or negative effect.” (AL FEIS at 3-45.) This conclusion is based on the Watershed Health Index (WHI), which is the sole means of cumulative impacts analysis for aquatic resources.
As described in the process paper, the Forest Service used “predicted sediment yield as the surrogate for determining cumulative impacts for water quality.” Sediment Yields and Cumulative Impacts for Water Quality and Associated Beneficial Uses at 4. The cumulative impacts analysis does not consider other potential impacts to water quality (changes in water yield, changes in water nutrients, etc.). Id.
The process paper explains that the Forest Service first used a sediment model to estimate current sediment loading in each watershed. Watersheds in the National Forests in Alabama are overloaded with sediment 851% to 6,528% of baseline sediment loads. The model then predicted the increase in sediment in each watershed caused by proposed Forest Service activities and probable activities on private land in the watershed. Sediment is predicted to increase by between 64% and 79% of current loads over the next decade. (AL DEIS at 2-19.)
The process paper acknowledges that the sediment model makes numerous assumptions. Id. at 23. For example, the model does not accept road segments longer than 1000 feet, so any road segment longer than 1000 feet was run through the model as a 1000 foot road segment. Id. The process paper even admits that the model’s predictions “will be, at best, within plus or minus 50 percent of the true value.” Id. Yet all analysis of the cumulative impacts of proposed Forest Service activities rests on the sediment model’s estimates of current conditions and the model’s predicted increase in sediment.
The Forest Service then used an endemic fish study to conclude that endemic fish can tolerate sediment loads up to a certain threshold without decreasing in abundance. Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses at 28. This conclusion was based on a statistical analysis of representative collections of endemic fish and sediment modeling. Using endemic fish as a surrogate for all other aquatic species, the Forest Service concluded that sediment increases below a certain threshold have little or no effect on overall watershed health. Id. at 29.
The process paper acknowledges its assumptions. The paper admits that representative fish collections technically should not be used to predict watershed health throughout the Southern Appalachians. Id. The method of fish collection was not uniform. Id. Also, it’s likely that “truly impacted watersheds” in the Blue Ridge and perhaps in other regions as well were not represented in the fish study. Id. In addition, the Forest Service assumes fish and other species (like freshwater mussels) are affected identically by sediment loading. The cumulative impacts analysis explained in the process paper does not actually consider the effects of increased sediment on freshwater mussels or other species. The fish collections may not adequately represent aquatic species which require low sediment levels. The fish collections and statistical analysis
136 should not be used to predict watershed health and cumulative impacts to aquatic species throughout the Southern Appalachians.
The paper asserts the sediment modeling and endemic fish study is the best information available. However, the paper also states that “many of the uncertainties and problems in the data outlined here could be reduced or eliminated by setting clear objectives and properly conducting a field study with standard sampling protocols.” Id., at 30. Concrete information on the effects of sediment increases on endemic species is obtainable. The Forest Service cannot justify moving forward with management activities which it admits will affect aquatic species without more definitive information. See Neighbors of Cuddy Mountain, 137 F.2d at 1380.
Sediment modeling and the endemic fish study were used to develop the Watershed Health Index (WHI). Based on the fish study’s conclusion that sediment increases below a certain threshold have no effect on watershed health, the WHI generalizes watershed health into three categories: below average, average and excellent. According to the WHI, projected sediment loads will not exceed these thresholds and therefore will not affect watershed health for any watershed under any alternative. (AL DEIS at 3-42.) Therefore, the Forest Service asserts, its proposed activities will not cause any significant cumulative impact.
The sediment model and endemic fish study depend on so many assumptions that even the conclusion that the projected sediment load will not exceed certain thresholds is questionable. Moreover, the WHI is itself incomplete and flawed.
In addition, the WHI was manipulated based on the percent of forested riparian land and the road density in the watershed. If the watershed is indexed as below average, but has a high percent of forested riparian land and a low road density, the watershed was upgraded to average, even though the water quality has not improved. Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses at 6.
The WHI may be adjusted based on local data from species inventories or monitoring. Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses at 7.
Even the process paper makes clear the WHI “should not be taken as absolutes but as a method that can describe the effects from a range of alternatives and suggest where a greater risk with respect to water quality and aquatic biota exists.” Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses (Process Paper) at 7. Yet the WHI does not break down the contribution of each proposed activity (logging, oil and gas development, etc.) to the projected increase in sediment in each watershed. The DEIS asserts there is no change in the WHI for any of the watersheds under any alternatives (except in one watershed under Alternative D). (AL DEIS at 3-45.) The WHI does not actually describe the effects of a range of alternatives but rather conceals the differences among alternatives. This is contrary to NEPA’s requirement that cumulative effects analysis be “useful to a decisionmaker in
137 deciding whether, or how, to alter a program to lessen cumulative impacts.” Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298-99 (D.C. Cir. 1988).
The WHI also fails to consider how sensitive, threatened and endangered fish and mussels may be affected by the projected increase in sediment. These species are often isolated in just a few tributaries and are vulnerable to local extinctions. The point of cumulative impacts analysis is to consider the combined impact of incremental effects. The Forest Service, however, relies on the notion that the incremental increases in sedimentation are insignificant at the watershed level. While an analysis of watershed health is crucial to accurately evaluating the effects of proposed activities, the effects of these activities on smaller scales cannot be ignored. As the Ninth Circuit recognized in a similar case, this analysis “does nothing to restore habitat over broad landscapes if it ignores the cumulative effect of individual projects on small tributaries within watersheds.” Pacific Coast Fed’n v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1036 (9th Cir. 2001). The watershed scale cannot be used to mask impacts to certain aquatic habitats or aquatic species. See id. The Forest Service must consider together all effects of future activities, both Forest Service and private activities.
The Forest Service simply cannot propose activities which increase sediment and then assert, with no analysis, that its activities have no effect at the watershed level, therefore there are no cumulative impacts.
We are especially concerned about the Tallaseehatchee and Choccolocco. The watersheds for these creeks should have heightened protection since the Forest Service owns the land around the headwaters. The surrounding land should be in management prescription 1 or 12.B, instead of management prescription 5 or 8. If the Forest Service affects around 1/5 of the watershed, then it becomes even MORE incumbent upon the Forest Service to protect the integrity of the stream. These two streams contain populations of the following: the fine-lined pocketbook; Alabama moccosinshell; Coosa Moccosinshell; Southern Clubshell; Southern Pigtoe; Triangular Kidneyshell Conrad; and the Lacy Elimia. If mussels are extremely sensitive to sedimentation and water quality, then even if these mussels are down stream from Forest Service ownership, the Forest Service’s actions have an effect on water quality.
The Forest Service has failed to truly consider the combined impact of projected sediment increases, as NEPA requires in cumulative impacts analysis. The Forest Service acknowledges streams are already loaded with sediment hundreds or even thousands of times baseline conditions. The Forest Service acknowledges that its proposed activities will increase the sediment load. Yet the Forest Service has not truly considered the impact of adding more sediment to already overloaded streams. The endemic fish study and Watershed Health Index are no substitute for this analysis.
We find that the conclusions of the WHI are bogus because the underlying analyses are fatally flawed with false assumptions, misinterpretations, and unsupported conclusions. Most of the shortcomings of the study are all stated clearly in the text; others are obvious but not acknowledged. It is troubling and jarring that the analysis
138 thereafter is touted as “best available science” after the authors disclose flaws that are so fundamental. Bad science is never “best available”.
The remaining facts
Stripped of its limitations, biases, assumptions, and unfounded conclusions, the remaining facts that matter are these: (a) streams in watersheds associated the National Forests in Alabama are overloaded with sediment--from 851% to 6,528% greater than natural/baseline sediment loads (we do not know the real status because the margin of error in the model is plus or minus 50% of the true value); (b) A portion of the current sediment load is attributable the Forest Service management activities (we do not know the total Forest Service contribution because the DEIS will not disclose the contribution from the existing Forest Service road system); (c) Activities associated with the proposed Plan will add to the already overload condition, as will new development activities on non-NFS lands (we don’t know how much because of the assumptions made regarding the implementation and efficacy of the riparian prescription and because of the margin of error); (d) The relative abundance of endemic species decreases sharply when modeled sediment load exceeds 500% (but it could be 250%, depending on the direction of the error); (e) Increased sediment load is not a good thing for aquatic habitat conditions (but we don’t know the status or abundance or distribution of those habitat conditions— certainly not as well as we know the status and distribution of early successional terrestrial habitat).
Based on the facts that we know, especially the fact that there is much we do not know, a reasonable person would conclude that more information is needed concerning cumulative effects before embarking on a course of action. The process paper even asserts that such concrete information on the effects of sediment increases is attainable (p. 30), but the DEIS favors ignoring the possibility and proceeds to categorically conclude the direct, indirect, and cumulative effects will not be significant. This conclusion is untenable. The Forest Service cannot justify moving forward with management activities which it admits will affect aquatic species without more definitive information. See Neighbors of Cuddy Mountain, 137 F.2d at 1380.
The watersheds are already affected by cumulative impacts. Those impacts are already adverse. The impacts of the proposed Plan will add to the degradation of the stream system, not lessen it. Habitat conditions for aquatic species will be worsened not improved.
Extinct, endangered, threatened, or vulnerable status is recognized for 28% of southern fishes and 73% of southern freshwater mussels. Other organisms dependent on aquatic systems—gastropods, crayfishes, and aquatic reptiles—show similar high levels of imperilment. These declines point to a pervasive degradation of southern watersheds and a failure to recognize the nature of land and water management interactions (Warren, et al., 2001). Watersheds in the Forests in proximity to the Forests contain many of these imperiled species. Yet, even with the imperiled status of the species and the pervasive degradation of watersheds, the DEIS would have us believe the health of these
139 watersheds is excellent or, at worst, average (signifying satisfactory). We think this is a gross misinterpretation of the data. The Forest Service acknowledges streams are already loaded with sediment hundreds or even thousands of times baseline conditions. The Forest Service acknowledges that its proposed activities will increase the sediment load. Yet the Forest Service has misrepresented the impact of adding more sediment to already overloaded streams with a Watershed Health Index that is itself incomplete, unsubstantiated, and erroneous.
We think that, at best, the health of some watersheds in the region is tenuous and that we should act quickly to identify those, forestall any further degradation, and reverse the trends. The minimum standards in the proposed Plan and its utter reliance on the Riparian prescription are not adequate to achieve this end. A concerted shift from the proposed Plan’s reliance on “hopeful” mitigation measures towards a plan aimed at preventing endangerment is needed to curb local extinction and other loss of biodiversity (Angermeier, 1995).
Such an ecologically integrated regional shift to guide vital conservation efforts and the development of watershed scale plans would provide a framework on which alternative actions could be built and through which those actions could be evaluated. The framework could take a variety of forms, but it would contain a list of criteria specific enough to guide the development of alternatives, broad enough to apply to a range of drainage sizes and structured enough to distinguish priority values and assess tradeoffs.
The criteria would be founded upon key principles of watershed function, ecosystem processes, and conservation biology. Among others, the following principles provide a foundation for the list of criteria that must be included in the revised plan: (Source: Frissell, CA, 1997, Ecological Principles. Pp. 96-115 in JE Williams, MP Dombeck, and CA Woods (eds.) Watershed Restoration: Principles and Practices. The American Fisheries Society, Bethesda, MD.)
1. Instream habitat conditions and biota are largely determined by processes occurring in the drainage basin and the riparian and floodplain areas cannot be manipulated independent of this context (Warren, 1979; Lisle, 1981; Frissell et al., 1986; Platts et al., 1989; Gregory et al., 1991; Schlosser, 1991).
2. Disturbances propagate downstream from headwater sources and along a river network, so that disturbances from multiple sources interact and can act in a cumulative or synergistic fashion (Leopold, 1980; Coats and Miller, 1981). Therefore, protection of sensitive headwater areas are critical to maintenance and recovery of aquatic habitats throughout the river system (Hicks et al., 1991; Moyle and Sato, 1991). Protection of remaining refuge patches and biological hotspots found throughout the river system must also be a priority.
3. Effective restoration treatments address the underlying processes of ecosystem deterioration and do not merely add structures or simply salvage the most degraded or most visibly damaged areas to achieve their goal (Platts and Nelson,
140 1985; Platts and Beschta, 1986; Elmore and Beschta, 1987; Frissell and Nawa, 1992). This requires comprehensive research and monitoring to diagnose causal mechanisms of ecosystem degradation and to evaluate the effectiveness of various treatments (Kelsey et al., 1981; Everest et al., 1986; Reeves et al., 1991).
4. Aquatic habitats are highly variable and patchy in space and time, even under natural conditions. Restoration must be directed not at producing homogeneous or generic conditions, but at restoring the temporal regimes and spatial diversity of the aquatic ecosystem (Poff and Ward, 1990; Sedell et al., 1990; Gregory et al., 1991; Scholsser, 1991) by affecting the processes that determine these patterns (Bravard et al., 1986, Amoros et al. 1987).
5. Maintenance and restoration of a well-dispersed network of habitat refugia, including headwater watersheds and relatively intact lower-river biological hotspots, is necessary to sustain current populations of sensitive aquatic species and to ensure that sources of colonists will persist to seed habitats which become available following natural recovery or restoration (Moyle and Sato, 1991). Restoration that secures and improves these habitats will have the greatest immediate effect on protecting and increasing fish populations.
6. The current distribution and life history patterns of sensitive species populations, largely governed by the nature and distribution of available habitat refugia in the basin, determine the ability of fish populations to respond to future changes in habitat (Neimi et al., 1990; Schlosser, 1990). Restoration that first secures existing refugia, then reestablishes similar and nearby habitat that requires little adjustment of life history patterns, is most likely to provide the kinds of habitat critical to existing populations. Restoration measures aimed at reestablishing habitats that have been lost, or are at great distance from existing centers of productivity and diversity, are likely to be colonized slowly, with delayed biological response. In some cases, many years or decades could be required for the evolution of life history types suited to such habitats (Warren and Liss, 1980).
7. Recovery of highly degrade and biotically impoverished watershed will be a long- term process—many decades or centuries (Hagans et al., 1986; Yount and Neimi, 1990; Neimi et al., 1990). Restoration in these areas is likely to prove unsuccessful and the results unpredictable in the near-term.
8. A principle function of restoration should be to identify and defuse existing threats that set up these otherwise relatively intact ecosystems for future damage. Time lags exist between disturbances of headwater slopes and impact to aquatic habitat in downstream areas (Kelsey et. al., 1981; Coats and Miller, 1981; Hagans et al., 1986; Frissell, 1991). This means that many habitats today functioning as refugia lie in watershed where slopes and headwaters have been damaged by human disturbances in recent decades, but have not yet experienced a major storm or similar catastrophic event that triggers the downstream cascade of impacts (e.g., formerly roadless watersheds partly penetrated by logging roads in the past
141 ten to twenty years). Once such an event occurs, the damage to the watershed and aquatic ecosystem is done and cannot be easily or rapidly reversed.
Preventive treatment is therefore far more feasible, successful and cost-effective than repair (Weaver et al., 1987; Reeves et al., 1991). Such watersheds have sometimes been referred to as “loaded guns”, where the aquatic species are fated to inexorable deterioration unless humans intervene in a focused way to remove potential sources of disturbance. Because roads are the single most persistent, preventable and often the largest source of slope erosion and downstream disturbance, the most effective intervention that has been widely identified is obliteration or relocation of road systems and reestablishment of natural drainage systems (Weaver et al., 1987).
9. Restoration should be focused where a minimal investment can secure the maintenance of the largest amount of high-quality habitat and diversity of aquatic species. With few exceptions, even the least disturbed basins have a road network and history of logging or other human disturbance that greatly magnify the risk of deterioration of aquatic habitats in the watershed. In other word, most currently functional aquatic refuges are imperiled by past, recent or proposed human disturbance. Focused restoration interventions on these sites, as well as changes in land management plans, will be necessary to ensure security of these key refuges (Moyle and Sato, 1991; Williams, 1991). A small investment in a watershed that still retains much of its natural integrity can secure far more critical resources and can far better safeguard the future of sensitive species, than a very expensive effort in a watershed that has already suffered severe and long- standing degradation.
10. New policies are needed to facilitate restoration of low-elevation floodplains, wetlands and other critical aquatic habitats. Many such areas are in private ownership, and a floodplain restoration policy will involve complex social and political dynamics. Nevertheless, pursuit should be a priority.
The proposed Plan, as written, does not fulfill the Forest Service’s legal obligations toward aquatic species
Timber Harvesting
The FEIS does not examine the effects of the timber program. The timber management section of the FEIS discusses only the alternative harvest levels and methods, without evaluating the environmental effects of the timber program for each alternative.
The problem with this approach is that under the various resource headings (water, soil, etc.), the FEIS does not reveal the effects of the timber program on the resource. Instead, the FEIS considers the effects of all management activities on the resource, without distinguishing the effects of the timber program. Certainly cumulative impacts analysis requires the Forest Service to consider the effects of all combined
142 activities on the resource. However, this approach prevents the public from understanding the environmental effects of proposed timber program and from comparing the alternative timber programs. This analysis does not provide a “clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14.
Even in the Fisheries and Aquatic Resources section the effects analysis glosses over the effects of the timber program on aquatic resources. Although the DEIS previously recognized that “vegetation management” causes sedimentation (AL DEIS at 3-34) and that sedimentation is one of the “biggest concerns” for aquatic habitats (AL DEIS at 3-185 through 3-234), the FEIS fails to make the link between the timber program and the effects of the revised plan on aquatic species. The FEIS discusses the connection between road building and maintenance and the quality of aquatic habitat, but fails to make the same connection for the timber program.
AWhere more than one vegetation management practice will be used in a vegetation type, the conditions under which each will be used shall be based upon thorough reviews of technical and scientific literature and practical experience, with appropriate evaluation of this knowledge for relevance to the specific vegetation and site conditions.@ 36 C.F.R. § 219.15. Nowhere in the Plan does the Forest Service identify when a vegetation management practice will be used on a specific vegetation type.
Chapter 4 does not comply with NFMA or the implementing regulations. Nothing in Chapter 4 quantifies what goods and services will be produced from the implementation of the Plan. The language in Chapter 4 makes out as if the timber output will be negligible. “Forest products are generally by-products of management activities to meet other resource objectives, such as restoration, wildlife habitat management, and forest health improvement activities.” (AL Final Plan at 4-1.) The FEIS, on the other hand, 85.3 MMCF ASQ of timber in the first decade with 91.2 MMCF total timber output in the first decade. By the fifth decade the Forest will be producing 172.1 MMCF. (AL FEIS at 2-20.) Nowhere does the Plan or FEIS show how this level of volume will be strictly “by-products” of restoration goals and objectives or how restoration can provide such a high and stable level of timber.
The Plan states that the “management of forest vegetation focuses on restoring and maintaining healthy forest ecosystems.” (AL Final Plan at 4-1.) And yet the Plan continues the emphasis on “mosaic” management with its checkerboard cuts. Vague generalities make up the desired future condition section. “Many mussels, crawfish, and fish are common in the streams . . . .” (AL Final Plan at 4-2.) What species of mussels, crawfish, and fish? Unfortunately, this is never answered anywhere in the Plan or DEIS. This is significant because monitoring is supposed to determine whether desired conditions are resulting. (AL Final Plan at 5-1.) If the DFC is not objective and quantifiable, then how can monitoring occur?
The entire Chapter 4 is canned, “paste-and-cut” language in violation of NFMA and NEPA. “Forest products are generally byproducts of management to meet other resource objectives (wildlife, old growth, forest health). All harvest methods are available
143 and are selected based on site-specific analysis and management objectives.” is a sentence in every management area description. See Al Final Plan at 4-1, 4-10, 4-14, and 4-18. Even the list of wildlife is virtually the same from the Bankhead to the Conecuh.
WE STRONGLY OPPOSE THE LEAVING OF ONLY TWO-FOUR LEAVE TREES IN AN EVEN-AGED STAND. Why only two to four? You spend 9 paragraphs discussing the necessity of snags and downed woody debris and the ecosystem dependent on them and then no discussion as to why only two to four snags are left.
On p. 2-9 of the Plan, the objectives for Goal 1 (Restoration Forestry) list the amount of acres of restoration logging and thinning that will occur over the life of the Plan for each management area. What these objectives do not do, and is not found anywhere in the FEIS or Plan, is specify what method of logging will be used to restore. There are no objective measurements or numbers of acres for clearcutting in restoration logging. The only indication of the methods of logging is in Appendix E to the FEIS. In a chart on p. E-8, you identify what kind of logging is allowed in different community types. This is neither a quantitative or qualitative standard for the methods of logging to accomplish the restoration of the community types.
Such vagueness is unacceptable and not in compliance with either NEPA (site- specific requirement) or NFMA. 16 U.S.C. § 1604(g). A MAJOR omission in the Plan is the failure to identify guidelines for each management prescription. The only management prescription that does have guidelines is 4.C. NFMA requires guidelines that protect resources. 16 U.S.C. '1604(g)(2). Your use of the word “standards” alone is insufficient and not in compliance with NFMA.
The Forest Service does not integrate the acreage amounts in Goal 1 with the management prescriptions. How will the acreage be distributed amongst the management prescriptions? This is significant because NFMA requires the Forest Service to “consider how diversity will be affected by various mixes of resource outputs and uses, including proposed management practices.” 36 C.F.R. ' 219.26. The Forest Service does not comply with this requirement in the Plan. It’s as if the Forest Service has gone up to me and said “I may kill you, maim you, beat you to a pulp, poison you, or leave you alone.” That’s a wide spectrum. What’s the likelihood of you killing me? Give me a percentage.
Appendix F to the Plan illustrates that there are no quantitative measures of silvicultural practices. Page F-18 is especially troubling. The elements for the monitoring questions are vague and general, more qualitative than quantitative. For example, “are appropriate harvest methods used on the Forest.” (Draft Plan, p. F-18). How will the forest planning staff answer this when the Plan does not have acreage amounts for each harvest method? It is not enough to have an ASQ. In addition, the Forest Service must be more clear and specific about the methods of logging to accomplish the ASQ. Under Goal 1, each management area will be cut a certain amount, i.e. 10,000 acres in the Bankhead will be restored and maintained. Theoretically, all of that logging can be clearcutting, according to Appendix E, p. E-8 of the DEIS. So, we know the ASQ for the forest; we know the maximum amount of acres that can be cut in
144 the Bankhead for the life of the Plan; and we know the methods of logging that are allowed for each community type. What we do not know is how the methods of logging will be apportioned. This is vital information and must be included in the next NEPA document in order for the public to be aware of what it is signing off on and so the Forest Service can craft an adequate monitoring plan.
Task #8 on p. F-2 of the Plan states that the silviculturalist will summarize acres of treatments by major community type, but there is nothing for the silviculturalist to use as a guide to analyze the acreage amounts.
Roads
There is no meaningful analysis of the effects of road construction and maintenance (or lack thereof), despite the recognition that roads cause sedimentation (AL DEIS 3-12) and sedimentation is one of the “biggest concerns” for aquatic habitats (AL DEIS 3-185 through 3-234). We do not even know how many roads will be built under Alternative I. (AL DEIS at 3-428.) Instead, the Forest Service assures the public that “very few roads will be need to be constructed.” If the agency had done the required NEPA analysis, you would be able to tell us how many new roads would be needed. Yet again the effects of sedimentation from these “guess” roads is folded into the WHI, which supposedly considers all cumulative effects of all activities. Because the effects of the timber program and associated road-building are considered under each resource heading, the public cannot identify the actual impacts of these activities and cannot compare alternatives based on the impacts of these programs.
Fire Management
The DEIS proposed a comprehensive program to reduce “hazardous fuels” on the National Forests in Alabama. (AL DEIS at 3-441-449.) These “hazardous fuels” include trees affected by insects or disease (oak decline, gypsy moth, southern pine beetle) and dead snags. (AL DEIS at 3-446.) “Fuels” also include live trees and shrubs. (AL DEIS at 6-20.)
The AL DEIS proposed to reduce fuel buildups with prescribed burns and “mechanical” treatments by cutting trees. (AL DEIS at 3-444.) The AL DEIS proposed to prescribe burn an average of 90,000 acres per year in the first decade of the Plan. (AL DEIS at 3-445.)
There is no meaningful analysis of the effects of this “fuels management” program in the draft or final EIS. The effects analysis only examines the fire aspect, without considering other consequences to forest habitat. Although the DEIS recognized that “fuels management” affects sedimentation (AL DEIS at 3-13) and sedimentation is one of the “biggest concerns” for aquatic habitat (AL DEIS 3-175 et al.), again there is no analysis of the cumulative impacts of fuels management and other activities outside the WHI. Because the WHI does not distinguish the effects of the fuel reduction program
145 from the effects of other activities, the public cannot compare alternative approaches to fuels reduction.
The AL FEIS corrected none of these problems.
Soils
By law, the Forest Service must monitor the effects of management practices to ensure sustained productivity. Land productivity is defined as a soil=s capacity to support plant growth as determined by some index of biomass accumulation. A significant change in productivity is defined as the minimum level of change in productivity is defined as the minimum level of reduced growth that is detectable using current technology.
Please identify what basis you have in stating that the construction of temporary roads results in little loss of soil productivity? (AL DEIS, p. 3-2.) How does this statement reconcile with your statement that the greatest amount of soil erosion across each National Forest in Alabama results primarily from permanent and temporary roads? (AL DEIS, p. 3-12.) The Final Plan and FEIS did not answer these questions.
What about the cumulative impact analysis of soil productivity? In the Bankhead and Talladega, you state that natural erosion levels are high because of the steep slopes and shallow soils. How does logging exacerbate this erosion? What is the factor of decrease in soil productivity? The Final Plan and FEIS never answered these questions.
How do you measure what area that roads occupy? (AL DEIS, p. 3-12.) Specifically, is this measurement limited to the actual road acreage? If I have a disease in 1% of my body, that=s still significant, and, more importantly, it affects the rest of my body. The disease may only be in my stomach or my lungs, but it affects my whole body. In like manner, roads effect more than the visible footprint on the ground. (See discussion of fragmentation.)
We are concerned about site preparation for the next fifteen years. We spend a great amount of time in the forests, and we see firsthand the trash left behind from a timber sale. Namely, the windrows and slash piles left. Timber operators leave behind the non-profitable trees. Not only is this visibly unappealing, but it fails to return nutrients back to the soil. What monitoring will be in place to ensure that the after- effects of the sales will comply with the Plan? The Final Plan and FEIS do not provide for it.
Alternative I has the highest level, or second highest, of soil impacts of all the alternatives in each of the management areas. (AL DEIS, p. 3-21.) We know little about nutrient cycling, long-term site productivity, and responses of other ecosystem components to pathogens and exotics. The slender underground threads of hundreds of species of mycorrhizal fungi weave complex networks among decaying litter, wood, and other organic materials, shunting some of these nutrients to the roots of trees. Individual
146 trees often depend on scores of mychorrhizal species, each with different ecological characteristics and responses to stress. How do clearcuts and the reduction of old growth stands affect the interactions of soil arthropods and fungi and their long-term consequences? Soil impacts, such as those prescribed in the Plan, alter these ecological relationships B to what degree? And are these irretrievable or irreversible effects?
An EIS for a forest plan is a programmatic EIS. Later, site-specific projects must also comply with NEPA and any NEPA documentation (EISs or EAs) for those projects will be “tiered” to the Forest Plan EIS. In past cases the Forest Service has argued that a programmatic EIS for a forest plan may defer detailed cumulative impacts analysis until an EA or EIS is prepared for site-specific projects. Although some courts have agreed with the Forest Service on this issue, we have a strong argument that NEPA requires the Forest Service to fully analyze cumulative impacts in the EIS for the forest plan.
NEPA regulations require that the Forest Service “integrate the NEPA process with other planning at the earliest possible time. . .” 40 C.F.R. § 1501.2. Many courts have recognized this means cumulative impacts analysis cannot be deferred. In Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), the Forest Service prepared an EA for a logging road, considering only the impacts of the road itself and ignoring the impacts of logging timber the road was designed to access. The Forest Service promised cumulative impacts would be considered in EAs or EISs prepared for individual timber sales. Id. at 760. The Ninth Circuit found this impermissible under NEPA. The court concluded that NEPA “cannot be fully served if consideration of the cumulative effects of successive, interdependent steps is delayed until after the first step has already been taken.” Id. The court stated that “consideration of cumulative impacts will serve little purpose if the road has already been built. Building the road swings the balance decidedly in favor of timber sales. . .” Id.
The Ninth Circuit went on to state clearly in Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372 (9th Cir. 1998), that the Forest Service cannot “defer consideration of cumulative impacts to a future date. ‘NEPA requires consideration of the potential impact of an action before the action takes place.’” 137 F.3d at 1380 (quoting City of Tenakee Springs v. Clough, 915 F.2d at 1308, 1313 (9th Cir. 1990); see also Kern v. Oregon Natural Resources Council, 284 F.3d 1062, 1075 (9th Cir. 2002) (not appropriate to defer consideration of cumulative impacts when meaningful consideration can be given now).
The Forest Service may also argue that the impacts of the management activities proposed in the Plan are too far in the future and are too vague or uncertain to be considered in detail in the plan. The Forest Service made a similar argument without success in Thomas v. Peterson, where the court said the Forest Service “may not escape compliance with the regulations by proceeding with one action while characterizing the others as remote or speculative.” 753 F.2d at 760; see also Kern, 284 F.3d at 1072 (“we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’”).
147 In one case where the court allowed the Forest Service to defer detailed cumulative effects analysis to the project level, the court still required the Forest Service to “analyze [cumulative] impacts, including possible synergistic effects from implementation of the Plan as a whole, before specific sales.” Resources Ltd. v. Robertson, 35 F.3d 1300, 1306. (9th Cir. 1994). The court recognized that “consideration of specific projects in isolation is insufficient to replace analysis of the impact of a program as a whole.” Id.
Our argument is that NEPA analysis must be integrated into planning as early as possible. 40 C.F.R. § 1501.2. NEPA analysis must be conducted before the action takes place. Neighbors of Cuddy Mountain v. U.S.F.S., 137 F.3d 1372, 1380 (9th Cir. 1998); Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir. 1985). Considering the cumulative impacts of all activities together in the Plan FEIS allows the Forest Service to assess the impacts of proposed management at the earliest possible time, before it commits to the Plan. Moreover, the forest Plan FEIS by its very definition has sufficient scope to consider forest-wide impacts and the cumulative impacts of all management activities. Moreover, because NEPA analysis for all future management will be tiered to the Plan FEIS, the Plan FEIS’ analysis must be complete.
The FEISs for the Southeastern forest Plans can also be distinguished from some cases where courts found general analysis of cumulative impacts in a programmatic EIS sufficient. See, e.g., Northern Alaska Environmental Center v. Lujan, 961 F.2d 886 (9th Cir. 1992). The FEISs for the Southern Appalachian forests do make “critical decisions” on management of forest resources. Compare id at 891. While the Forest Service does retain some authority “to decide whether any activity would ultimately occur”, the forest Plan makes decisions about future management of the forest. In the Plan, the Forest Service commits to a particular, detailed course of forest management for the next 10-15 years. The actions contemplated by the forest Plan are not “hypothetical” actions. Compare id. The Forest Service cannot deviate from the course set in the Plan without amending the Plan. Compare id. at 891. Future projects implement the Plan and must be consistent with the Plan.
The sending of comments to the Content Analysis Team in Salt Lake City, Utah meant that the comments were analyzed and responded to by agency personnel who have NO knowledge or familiarity with the subject matter—the management of these National Forests. The responses to comments did not adequately respond as NEPA requires.
“An EIS serves two purposes: (1) to provide decision makers with enough information to aid the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information.” Big Hole Ranchers Association, Inc. v. U.S. Forest Service, 686 F. Supp. 256, 260 (D. Mont. 1988). NEPA requires any federal agency preparing an EIS to consider each comment it receives and respond to issues raised by the commenter(s). To respond adequately, the agency may “[s]upplement, improve, or modify its analyses” or “[m]ake factual corrections.” 40 C.F.R. § 1503.4(a)(3)(4). If the agency finds the comments do not warrant further
148 agency action, the agency must nevertheless “[e]xplain 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.” 40 C.F.R. § 1503.4 (a)(5) (emphasis added). The Council on Environmental Quality (CEQ) has discussed the procedures an agency must follow when responding to comments: “An agency is not under an obligation to issue a lengthy reiteration of its methodology for any portion of an EIS if the only comment addressing the methodology is a simple complaint that the EIS methodology is inadequate. But agencies must respond to comments, however brief, which are specific in their criticism of agency methodology.” The CEQ uses as an example a comment that specifically questions an agency’s “computational technique.” In such a case the CEQ states “then the agency would have to respond in a substantive and meaningful way to such a comment.” Forty Most Asked Questions Concerning CEQ’s NEPA Regulations (Mar. 23, 1981).
Without having the responses to comment done by those agency personnel who know the places and issues involved in the National Forests in Alabama, the Forest Service is in violation of the APA and NEPA.
Failure to Consider an Adequate Range of Alternatives
There was a major failure to consider reasonable alternatives in the Alabama plan.
In Dubois V. U.S. Department of Agriculture, 102 F.3d 1273, 1286-87 (1st Cir. 1996), the First Circuit set forth:
“’One important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences’ of a proposed action. Robertson, 490 U.S. at 351. As one aspect of evaluating a proposed course of action under NEPA, the agency has a duty ‘to study all alternatives that appear reasonable and appropriate for study . . . , as well as significant alternatives suggested by other agencies or the public during the comment period.’ Roosevelt Campobello Int'l Park Comm'n v. United States EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (quotations omitted); Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 462 (1st Cir. 1989); City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 95 F.3d 892, 903 (9th Cir. 1996).
“As stated in the Council on Environmental Quality (‘CEQ’) regulations implementing NEPA, the consideration of alternatives is ‘the heart of the environmental impact statement.’ 40 C.F.R. § 1502.14. These implementing regulations are entitled to substantial deference. Robertson, 490 U.S. at 355 (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 60 L. Ed. 2d 943, 99 S. Ct. 2335 (1979)). The regulations require that the EIS ‘rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.’ 40 C.F.R. § 1502.14(a). It is ‘absolutely essential to the NEPA process that the
149 decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, a requirement that we have characterized as “the linchpin of the entire impact statement.”’ NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975) (citation omitted); see Silva v. Lynn, 482 F.2d at 1285; All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992) (holding that a thorough discussion of the alternatives is ‘imperative’). ‘The “existence of a viable but unexamined alternative renders an environmental impact statement inadequate.”’ Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1993) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)); see Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) (Even the existence of supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot ‘bring into compliance with NEPA an EIS that by itself is inadequate.’). Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well- reasoned. Grazing Fields Farm, 626 F.2d at 1072; see Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir. 1983).”
NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E); 40 CFR § 1508.9(b). The regulations and cases set high standards for an agency’s consideration of alternatives in a NEPA document and define the range of alternatives that must be considered. In this case, the FS violated NEPA by failing to “[r]igorously explore and objectively evaluate all reasonable alternatives” to the proposed action. 40 CFR § 1502.14(a) (emphasis added). See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1310 (9th Cir. 1990).
As set out in I-291 Why? Asso. v. Burns, 372 F. Supp. 223 (D. Conn. 1974), aff'd, 517 F.2d 1077 (2d Cir. 1975):
“The Second Circuit has built on Calvert Cliffs’ to read NEPA as demanding, as part of the aforementioned ‘thorough study and a detailed description of alternatives,’ that ‘consideration . . . must . . . be given to the feasibility and impact of the abandonment of the project.’ Monroe County Conservation Council v. Volpe, supra, 472 F.2d at 697, 698 (emphasis added). Mere ‘passing mention of possible alternatives to the proposed action . . . in . . . a conclusory and uninformative manner’ renders an EIS fatally inadequate. Id. at 697. In a similar vein, the First Circuit has indicated that in its discussion of alternatives ‘the agency must go beyond mere assertions and indicate its basis for them.’ Silva v. Lynn, supra, 482 F.2d at 1287.
“Even as to the alternatives it does discuss, the I-291 EIS falls far short -- on its face, as it were -- of the required "thorough study and . . . detailed
150 description." No reasoned decision could be made on the basis of the EIS that departure from the expected corridor is precluded by speculative development, that modernization of existing highways is too costly, that mass transit is too inflexible to serve public needs, or that abandonment of the project is impractical. These difficult judgments have been committed by NEPA to the informed discretion of the FHWA and ultimately the Secretary of Transportation -- yet rather than provide information, the EIS provides only ‘generalities and heavy- handed self-justifications.’ Brooks v. Volpe, 350 F.Supp. 269, 278 (W.D. Wash. 1972). The EIS treats the crucial decision to proceed with federal funding of I-291 not as an impending choice to be pondered, but as a foregone conclusion to be rationalized.”
An agency cannot reject an alternative just because they think it may not fully comply with current law. Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 814 (9th Cir. 1999). An agency cannot reject an alternative because it is “not within the jurisdiction of the lead agency” or outside the bounds of congressional authorization. 40 C.F.R. § 1502.14(c). An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable. A potential conflict with local or federal law does not necessarily render an alternative unreasonable, although such conflicts must be considered. Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA’s goals and policies. Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 48 Fed. Reg. 18,026, at Question 2b (March 23, 1981); accord Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972) (“The mere fact that an alternative requires legislative implementation does not automatically establish that it beyond the domain of what it required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decisionmakers in the legislative as well as executive branch.”); Muckleshoot, 177 F.3d at 814; City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986). Moreover, an agency may not decline to evaluate an alternative simply on the grounds that it is not a “complete solution” to the agency's goals. NRDC v. Morton, 458 F.2d at 836 (agency should not “disregard alternatives merely because they do not offer a complete solution to the problem.”); Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908, 933 (D. Or. 1977) (same).
In Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002), the Tenth Circuit rejected a decision for a full consideration of reasonable alternatives. On an alternative of early development of rapid transit, the government defendants insisted there was a lack of federal funding and technology meant this was infeasible. Court disagreed based on the facts presented.
Similarly, in Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002), the same court rejected a five-lane highway bisecting a park where no road currently exists, because the consideration of alternatives was inadequate. “While it is true that defendants could reject alternatives that did not meet the purpose and need of the project, . . . they could
151 not define the project so narrowly that it foreclosed a reasonable consideration of alternatives.” 302 F.3d at 1119. The defendants did not consider the possibility of combining alternatives, and “summary treatment” of some rejected alternatives was not enough. “This discussion of alignment alternatives is so vague and non-specific as to be essentially meaningless.” 302 F.3d at 1110. The court found that a mass transit alternative was not speculative. “There are no cost studies, cost/benefit analyses or other barriers advanced that would warrant a conclusion that mass transit alternatives are unreasonable, standing alone or in conjunction with other alternatives.” 302 F.3d at 1122.
Where there are alternatives to a project that would reduce its adverse environmental effects, those alternatives must be identified and discussed. An EIS must describe and assess alternatives to any proposal which, as is clearly true with regard to the project here, involves “unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. Section 4332(2)(e). Thus, in Town of Golden Beach v. District Engineer, U. S. Army Corps of Engineers, 1994 U.S. Dist. LEXIS 15832 at *23 (S.D. Fla. 1994), the District Court enjoined a beach “renourishment” project because the EA gave inadequate attention to alternatives that would better protect endangered species of sea turtles.
In National Wildlife Fed. v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1154 (W.D. Wash 2002), that court found:
“An agency may not reject a reasonable alternative because it is ‘not within the jurisdiction of the lead agency.’ 40 C.F.R. § 1502.14(c); see also Muckleshoot Indian Tribe, 177 F.3d at 814. An agency’s refusal to consider an alternative that would require some action beyond that of its congressional authorization is counter to NEPA's intent to provide options for both agencies and Congress. See Natural Res. Def. Council v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 836 (D.C. Cir. 1972) (‘The mere fact that an alternative requires legislative implementation does not automatically establish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decisionmakers in the legislative as well as the executive branch.’). The Corps’ argument that it did not fully consider the sediment reduction strategy due to a present lack of authority to implement such a strategy does not appear to be supported by the relevant NEPA regulations and caselaw.
“The Corps’ argument that sediment control strategies are not a complete solution to the ‘overall sedimentation problem’ fails for similar reasons. An agency may not ‘disregard alternatives merely because they do not offer a complete solution to the problem.’ NRDC v. Morton, 458 F.2d at 836.”
In ruling on a proposed four-lane highway in Montana, the court, through Mr. Justice Kennedy then writing for the Ninth Circuit, held the EIS defective for not
152 evaluating an improved two-lane road. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 784 (9th Cir. 1980).
There are a number of reasonable alternatives that were not considered by the Forest Service in developing this Final Plan and FEIS:
Alternative C. o The “Healthy Forests Initiative” was used to justify rejecting Alt. C. (AL FEIS at 2-5.)(“With respect to the agency’s ‘Healthy Forests Initiative’, a management emphasis of the agency is to change the situation where forests, overloaded with fuels, are vulnerable to severe wildland fires. Minimizing ‘human intervention’ would increase susceptibility of the forest to insect and disease outbreaks, which would create increased fuel- loading problems, and increase the risks to other resources and to adjacent private lands. Alternative C would not address these problems and areas of concern.”) The exact same language is in the other plans. (CONF FEIS at 2-10. Sumter FEIS at 2-6. Cherokee FEIS at 18-19. Jeff FEIS at 2-6.) o Reasons given for rejecting Alternative C are reasons for not adopting it, not for refusing to consider and analyze it. (See AL FEIS at 2-4 et seq.) Alternative W. Putting some or all roadless areas in prescription 12.C. Bankhead as a National Recreation Area. No alternative considered this despite it being identified as a major issue (Issue #16). (AL Summary at 24, Table 13.) All alternatives have exactly the same area open to mineral exploitation, 92.2%. (AL Summary at 23, Table 13.) No alternative considers less area for mineral exploitation. No alternative for managing more old growth. All alternatives had the exact same amount of old growth provided; even though, the agency has no idea how much old growth is actually out there, because they have never surveyed for it. No alternative for reducing road density. All alternatives had exactly the same roads mileage. (AL Summary at 23, Table 12.) No alternative with more wild and scenic river miles. Refused to even consider Brushy Fork in the Bankhead as a potential wild and scenic river, despite significant public interest and comments on doing that. Response to comments gave only a cursory rejection to this alternative, “Brushy Fork, Terrapin Creek, and Yellow River were not judged to have an outstandingly remarkable value.” (AL FEIS, Appendix J, at J-130.) No analysis at all. No alternative with more MIS and PETS species. All alternatives have same MIS and PETS. How can the same species monitor for the various impacts from very different management schemes?
Alternatives C, H, E and G Were Not Seriously Considered. Two alternatives identified during the planning process, Alternatives C and H, recommended all or most roadless acres for wilderness designation. These alternatives were preliminarily eliminated and were not considered in detail. AL DEIS, at 2-3 Alternative C emphasized resource management with minimal human intervention, managing the forest primarily
153 under Prescription 0. Comparison of Alternatives, www.southernregion.fs.fed.us/gwj/lrmp/maps/all_alts.htm (Aug. 14, 2002); Alternative Themes, New Alternatives, at 7, www.southernregion.fs.fed.us/gwj/lrmp/plandocs/990416_altthemes.html April 16, 1999). No land would be designated suitable for timber harvest. DEIS, at 2-3.
The DEIS also claimed it does not need to consider Alternative C in detail because Alternative C is similar to the Minimum Level Benchmark analyzed in Appendix B. (AL DEIS, at 2-4). However, the Plan does not consider the Benchmark as an option for management of the Alabama National Forests. The Benchmark is no substitute for detailed and complete analysis of a real alternative.
Alternative H, although prescribing generally active management, would also have classified all lands unsuitable for timber production. (AL DEIS, at 2-7.) The DEIS stated that the land allocations in Alternatives G and H are identical, and the only difference between the two alternatives is that lands suitable for timber production under G would be unsuitable under H. (AL DEIS, at 2-7.)
Alternative G would recommend most roadless areas (13,542 acres) for wilderness designation. (AL DEIS, at 2-23.) All remaining roadless areas would be managed consistently with the Roadless Area Conservation Rule, unlike in the chosen alternatives. (AL DEIS, at 3-374.) Also, under Alternative G, effects of native insects and diseases is “accepted.” (AL DEIS, at 2-10.)
Alternative E recommended 11,918 acres for wilderness designation. Alternative E accepted the impacts of insects and disease and did not contemplate an active fuel reduction program. (AL DEIS, at 2-10.)
The Forest Service did not seriously consider Alternatives C, H, E, and G. Alternatives C and H would end commercial logging on the National Forests in Alabama. At this time, the Forest Service is not seriously considering this approach. Nor is the Forest Service likely to seriously consider Alternatives C and G’s minimal management of insects, disease, and fire. These alternatives are such remote possibilities that they are simply not viable alternatives from the Forest Service’s perspective.
Alternative E was not seriously considered at all.
The Forest Service did not consider viable alternatives recommending more than just the roadless areas for wilderness designation. The Forest Service did not consider a range of wilderness recommendations as required by NEPA. The Forest Service “must, in fact, consider all the alternatives discussed in an EIS.” Forty Most Asked Questions, 46 Fed. Reg. 18026; see ale also 40 C.F.R. § 1505.1(e). In California v. Block, 690 F.2d at 765, all or nothing alternatives were considered points of reference, as opposed to “seriously considered” alternatives. Alternatives C, H, E, and G were not seriously considered and are not part of the range of alternatives actually considered. While the Forest Service offered a range of wilderness alternatives at the low end, there are no
154 legitimate alternatives recommending more than the 13,542 acres in the inadequate roadless inventory for wilderness designation. The Forest Service cannot justify its failure to consider a broad range of alternatives. Alternatives recommending more than that for wilderness designation are reasonable responses to the issues involved in the Forest Plan revisions.
No maximum wilderness alternative was even identified, let alone considered, as NEPA requires. Since at least 1996, we have repeatedly asked the agency to identify and consider a maximum wilderness alternative in the development and consideration of this plan revision. We have had numerous conversations with agency staff on this issue and have submitted numerous documents and field surveys in the administrative record that identified suitable areas for inclusion in such an alternative. Now, one last time, we set forth a detailed alternative that would give the National Forests in Alabama the wilderness protection they need and deserve: Alternative W as set forth in our comments and the accompanying maps (detailed maps at the same scale as the Forest Service alternative maps in the draft Plan and DEIS were enclosed on the CD-ROMs we submitted). Alternative W would have kept the same restoration and recreation management emphasis as the adopted Alternative I. but Alternative W had a maximum wilderness and wild and scenic river recommendations.
155 156
The Forest Service cannot justify its failure to consider a broad range of alternatives. The Forest Service identified 12 issues common to the five southeastern
157 National Forests revising their LRMPs. The Roadless Areas/Wilderness Management issue asked:
“Should any of the roadless areas on National Forest System lands be recommended for wilderness designation? For any roadless areas not recommended for wilderness, how should they be managed? How should areas that are recommended for wilderness designation be managed? How should the patterns and intensity of use, fire, and insects and disease be managed in the existing wilderness areas?”
(AL DEIS at 1-8.) Alternatives were supposedly developed to respond to this issue. (AL DEIS at 1-5.) But that response was clearly inadequate in that no maximum wilderness alternative was developed or considered. This issue contemplates a broad range of possible responses and is not a set, rigid goal. Yet the Plan and FEIS considers only a few limited options, which is not NEPA compliance. See Block, 690 F.2d at 769.
Furthermore, this limited range of alternatives implies that increased wilderness recommendations would compromise the timber program. Actually, relatively little logging now occurs or is proposed in roadless areas. Yet this skewed range of alternatives creates the impression that a trade-off is necessary, pitting logging and active management against wilderness and roadless protections in all or nothing alternatives.
By offering a severely limited and skewed range of alternatives for wilderness designation, the Forest Service has circumvented NEPA’s requirements that it consider all reasonable alternatives and make that information available to the public. The Forest Service must seriously consider a full range of alternatives, for example, recommending 0, 10, 30, 50, 70, 90, or 100 percent of roadless areas for wilderness designation, as recommended by the CEQ. Forty Most Asked Questions, 46 Fed. Reg. 18026.
As the CEQ suggests, this range must include an alternative recommending all or most roadless areas for wilderness designation. The Forest Service rejected Alternative C (all roadless areas recommended for wilderness), claiming it would not satisfy the NFMA, MUSYA, or ESA. (AL DEIS, at 2-5.) However, a reasonable alternative may not be rejected simply because it is outside the Forest Service’s jurisdiction or conflicts with existing law. See 40 C.F.R. § 1502.14(c); see, e.g., National Wildlife Fed’n v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143 (W.D. Wash. 2002) (Reasonable alternatives may not be rejected because they would require Congressional authorization or do not completely solve the problem):
“An agency may not reject a reasonable alternative because it is ‘not within the jurisdiction of the lead agency.’ 40 C.F.R. § 1502.14(c); see also Muckleshoot Indian Tribe, 177 F.3d at 814. An agency's refusal to consider an alternative that would require some action beyond that of its congressional authorization is counter to NEPA's intent to provide options for both agencies and Congress. See Natural Res. Def. Council v. Morton, 148 U.S. App. D.C. 5, 458 F.2d 827, 836 (D.C. Cir. 1972) (‘The mere fact that an alternative requires
158 legislative implementation does not automatically establish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decisionmakers in the legislative as well as the executive branch.’). The Corps' argument that it did not fully consider the sediment reduction strategy due to a present lack of authority to implement such a strategy does not appear to be supported by the relevant NEPA regulations and caselaw.”
Id, at 1154.
The Forest Service also claimed it did not need to consider Alternative C in detail because Alternative C is similar to the Minimum Level Benchmark analyzed in Appendix B. (AL DEIS, at 2-5.) However, the Forest Service did not consider the Benchmark as an option for management of the National Forests in Alabama. The Benchmark is no substitute for detailed and complete analysis of a real alternative.
The FEIS failed to consider a reasonable range of alternatives for the management of roadless areas not recommended for wilderness designation. The Forest Service also failed to consider a range of alternatives for managing roadless areas not recommended for wilderness. In particular, the Forest Service offered no range of options for management under Prescription 12.C.
There are key differences between each Backcountry prescription, so it is crucial that the Forest Service consider a range of alternatives for managing roadless areas under 12.C, the most protective. The backcountry prescriptions are progressively more restrictive of motorized use. Under Prescription 12.A, existing roads and ORV routes are kept open and temporary roads may be built. (AL Draft Plan at 3-67, 3-68.) In 12.B, existing roads are closed. (AL Draft Plan at 3-69, 3-70.)
In both 12.A and 12.B, although land is unsuitable for timber production, salvage harvest to remove trees affected by insects and disease, or to reduce the risk of fire, is permitted. (AL Draft Plan at 3-68, 3-69.) Prescription 12.B is unclear about whether temporary roads may be constructed. Although the LRMP states that “permanent and temporary construction is prohibited” in 12.B areas, it is not clear whether temporary roads may be constructed. (AL Draft Plan, at 3-69.)
Why does not the Alabama Plan have a 12.C prescription? In 12.C for other plans, on the other hand, salvage harvest is prohibited and no temporary roads may be constructed. (See Jefferson Draft Plan, at 3-183-84.)
These three prescriptions are not interchangeable. The Forest Service, however, did not consider a range of alternatives for backcountry management.
The Forest Service Failed to Consider Viable Alternatives on wilderness. The existence of a “viable but unexamined alternative” renders an EIS inadequate. Dubois v. USDA, 102 F.3d 1273, 1289 (1st Cir. 1996), cert. denied 521 U.S. 1119 (1997). The
159 Forest Service failed to consider an alternative recommending more the roadless inventory areas for wilderness designation. This violates NEPA in two ways. First, the Forest Service did not consider a range of alternatives, as discussed above. Second, an alternative recommending more than the few roadless areas in the inventory for wilderness is a reasonable alternative that was not considered.
The Forest Service also failed to consider a “middle-ground” alternative. This alternative would combine substantial wilderness recommendations and protection for all remaining roadless areas with a feasible timber program.
The reasoning behind not including Bankhead as a National Recreation Area, because of southern pine beetle infestations, is not comprehensive or persuasive. (AL DEIS, p. 2-7.) What are the requirements for such an area? How will SPB infestations affect the “show-place” characteristic? The draft Plan and DEIS never say and never set out the analysis required by NEPA.
These unexamined alternatives also avoid the adverse impacts of salvage logging and temporary road-building that may occur in roadless areas under the more permissive backcountry prescriptions 12.A and 12.B. The failure to consider an alternative may be more likely to render an EIS inadequate when the ignored alternative avoids adverse environmental impacts. See Dubois v. USDA, 102 F.3d at 1288.
Other reasonable and viable alternatives were never identified and examined, despite our having brought many of these alternatives to your attention years ago. No alternative was offered that gave options for managing roadless areas as 12.C., the most protective prescription. Acreage for old growth and potential old growth is the same for all alternatives; thus there are no alternatives at all for managing old growth. The mileage of roads is the same for all alternatives, so there is no alternative that examines reducing the extremely high road density on these forests or that shows where the best road obliteration opportunities (both in terms of ecological benefits and economic cost- benefits) are on these forests. All alternatives consider the exact same 931 acres for potential wild and scenic river designation. MIS and PETS are the same for all alternatives. How can the same sets of species monitor for totally different types of management? It is painfully obvious that the selection of PETS and MIS was done solely to get around Sierra Club v. Martin and to minimize Forest Service duties, but NEPA requires real alternatives.
Failure to Consider Direct and Indirect Effects
There was also a significant failure to consider direct and indirect effects and impacts. Bankhead coal mining was approved without ANY analysis of impacts. No impacts analysis is in the FEIS for the approved oil and gas exploration, drilling and production in the Conecuh and other forests.
FW-165 permits coal mining operations on the National Forests in Alabama for the first time. The word “coal” does not appear anywhere in the Draft Plan. Neither the
160 DEIS or FEIS discuss any impacts from coal mining anywhere, in complete violation of NEPA.
NEPA requirements must be fulfilled “before a decision that may have a significant adverse impact on the environment is made.” Nat'l Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001); see also 40 C.F.R. 1500.1(b), 1502.5, 1506.1.
Documents issued after the NEPA process cannot bring the EA into compliance with NEPA. “[U]nless a document has been publicly circulated and available for public comment, it does not satisfy NEPA's EIS requirements.” Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir. 1983). “The adequacy of the environmental impact statement itself is to be judged solely by the information contained in that document. Documents not incorporated in the environmental impact statement by reference or contained in a supplemental environmental impact statement cannot be used to bolster an inadequate discussion in the environmental impact statement.” Village of False Pass v. Watt, 565 F. Supp. 1123, 1141 (D. Alaska 1983), aff'd, 735 F.2d 605 (9th Cir. 1984). See also Sierra Club v. Hodel, 848 F.2d 1068, 1096 (10th Cir. 1988) (refusing to “synthesize studies and trial evidence” which the agency argued were “the functional equivalent of an EIS”; “The sufficiency of NEPA review must depend on the completeness of the studies themselves.”). As the First Circuit explained:
“Even the existence of supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot ‘bring into compliance with NEPA an EIS that by itself is inadequate.’ . . . Because of the importance of NEPA’s procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well- reasoned.”
Dubois v. U.S. Dept. of Agriculture, 102F.3d1273, 1287 (1st Cir. 1996), cert. denied, 117S. Ct.2510 (1997) (citations omitted). See also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980) (supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot “bring into compliance with NEPA an EIS that by itself is inadequate.”).
Any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. California v. Block, 690 F.2d 753, 765 (9th Cir. 1982) (quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1284 (9th Cir. 1974)).
As stated by the D.C. Circuit:
“The Commission's reliance on these ‘data’ to support its decision precludes effective judicial review in this case. While our task is not to review the evidence for the purpose of determining whether the Commission's decision is supported by ‘substantial evidence,’ application of the arbitrary and capricious
161 standard of review does require us to make a ‘searching and careful’ inquiry of the record in this case to ensure ‘both that the Commission had adequately considered all relevant factors * * * and that it has demonstrated a “rational connection between the facts found and the choice made.”’ See 189 U.S.App.D.C. at -- , 584 F.2d at 526, Supra. This we cannot do where, as here, the data relied on by the Commission in reaching its decision is not included in the administrative record and is not disclosed to the court. The reason is obvious, and has long been recognized: we simply cannot determine whether the final agency decision reflects the rational outcome of the agency's consideration of all relevant factors when we have no idea what factors or data were in fact considered by the agency. See Camp v. Pitts, supra; Overton Park, supra; Ohio Bell Telephone Co. v. Public Utilities Com'n, 301 U.S. 292, 57 S. Ct. 724, 81 L. Ed. 1093 (1937); Citizens Ass'n of Georgetown, Inc. v. Zoning Com'n of D.C., supra. We cannot, in other words, determine whether the agency action is arbitrary and capricious.
“Even where the reviewing court is informed of the specific information upon which reliance was placed, a barrier to effective judicial review remains: the absence of any adversarial comment among the parties. Our cases make clear the importance of such comment in allowing a court to review the action taken by the agency, as well as in facilitating informed agency decisionmaking itself. Thus we have required information in agency files or reports identified by the agency as relevant to the proceeding to be disclosed to the parties for adversarial comment. See Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C 308, 326-327, 486 F.2d 375, 393-394 (1973), Cert. denied, 417 U.S. 921, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974). Similarly, we have insisted that agencies set forth their thinking, and disclose their expert knowledge, in notices of proposed rulemaking. See Environmental Defense Fund, Inc. v. EPA, 179 U.S.App.D.C. 43, 52, 548 F.2d 998, 1007 (1976); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 439, 478 F.2d 615, 643 (1973). Such requirements not only ensure that parties to agency proceedings are afforded the opportunities guaranteed them by statute meaningfully to participate in those proceedings; they also provide a means by which a reviewing court, called upon to determine whether agency action is arbitrary and capricious, can secure needed guidance in the performance of this function from both the parties and the agency. See Portland Cement Ass'n v. Ruckelshaus, supra, 158 U.S.App.D.C. at 326-327, 486 F.2d at 393-394; International Harvester Co. v. Ruckelshaus, supra, 155 U.S.App.D.C. at 445, 478 F.2d at 649; Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S.App.D.C. 200, 208, 407 F.2d 330, 338 (1968). Cf. National Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688, 701 (2d Cir.), Cert. denied, 423 U.S. 827, 96 S. Ct. 44, 46 L. Ed. 2d 44 (1975). Indeed, if the substance or identity of the data upon which the agency has relied is permitted to remain hidden until judicial review, the courts may well find themselves called upon to resolve novel disputes as to the truth of what the agency thought it knew, disputes which should have been resolved either in the initial hearings before the agency or on reconsideration. From this perspective, our insistence that this information be revealed during the agency proceedings not only serves the interests of the parties and the court, but
162 also preserves the prerogatives of the agency to address in the first instance the questions of law and fact raised by its action.
“This is not to say that an agency may never rely on data in its files, or on public information, in reaching its decision. Rather, we hold only that the agency must either disclose the contents of what it relied upon or, in the case of publicly available information, specify what is involved in sufficient detail to allow for meaningful adversarial comment and judicial review. While such disclosure would ideally appear appropriate at the earliest stage of the agency proceeding, at the very least it is clear that it must come in the final decision so that reconsideration may be sought and judicial review meaningfully afforded. Consistent with the requirements of judicial review according to the Administrative Procedure Act, an agency decision based on ‘reliable data reposing in the Commission's files’ simply cannot withstand scrutiny.”
United States Lines, Inc. v. Federal Maritime Com., 584 F.2d 519, 533-35 (D.C. Cir. 1978).
Further, the information and data provided and used must be of good quality and not be mere speculation. Use of faulty and bad information is the same as “Garbage in, garbage out.” As stated in Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998):
“First, we find that the 1990 report alone does not satisfy NEPA's reporting and notice requirements because it fails to provide the public with a basis for evaluating the impact of the proposed sale. Since the 1990 report relies solely on Forest Service hydrologist Mark Moultin's expert opinion, a successful challenge to the report would entail challenging Moultin's expertise and opinions, yet, this is the type of challenge we have found impermissible under arbitrary and capricious review. Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992) (finding that an agency is entitled to rely on its own scientific opinion of data). As a result, allowing the Forest Service to rely on expert opinion without hard data either vitiates a plaintiff's ability to challenge an agency action or results in the courts second guessing an agency's scientific conclusions. As both of these results are unacceptable, we conclude that NEPA requires that the public receive the underlying environmental data from which a Forest Service expert derived her opinion. In so finding, we note that NEPA's implementing regulations require agencies to ‘identify any methodologies used and [ ] make explicit reference by footnote to the scientific and other sources relied upon for conclusions’ used in any EIS statement. 40 C.F.R. § 1502.24.”
No alternative considers the Bankhead as an NRA, despite it being identified as a “significant” issue. (AL DEIS at 1-9.)
163 There is no inventory data on old growth in the plan and FEIS. Failure to have any information on old growth, how much there is and where it is a clear NEPA violation.
The faulty roadless inventory is a major concern. Public input and information provided by us was totally ignored.
Plan and FEIS ignore cut-to-length (CTL) research. What reasoning did you use to determine FW-7: conventional equipment is limited to slopes less than 40%? Why does not the Forest Service require cut-to-length logging equipment by all timber operators in Alabama National Forests? Why is CTL equipment not required on soils and slopes where the erosion, compaction and rutting potentials are high? The agency’s own CTL research shows that this equipment is superior in every way to traditional skidder equipment; much of that research was even done on Alabama’s National Forests, the Tuskegee in particular.
Lack of information on historic/cultural areas (as set out in State Historical Commission report) makes most of the Plan totally inadequate in this area.
Lack of objectives and standards violate NEPA in that information, impacts and alternatives are not identified and analyzed. The failure to identify and analyze impacts in many areas (as discussed throughout these comments) is also a major NEPA violation. Many areas in the Plan and FEIS have absolutely no support or citations on why things were done the way they were (such as dropping MIS, not including roadless areas, etc.)
Failure to Consider Materials Submitted by Agency Personnel, Scientists and Citizens
The Final Plan and FEIS also suffer from a failure to consider materials submitted or information provided by citizens and even the agency’s own experts and personnel.
Part of this disregard of information submitted by others is also a failure to utilize agency expertise. Standards and other requirements drafted by AL NF staff rejected with no explanations (old growth standards, monitoring for PETS, etc.). The Final Plan did not include open Longleaf areas with their grassy understory as “early successional habitat” despite the agency experts (staff biologists) saying it should be included. Thus, the Final Plans overstates the need for logging to create “early successional habitat” when mature Longleaf stands also create that habitat.
While courts defer to the “agency’s expertise in most cases, [courts] cannot defer when the agency simply has not exercised its expertise.” Public Citizen Heath Research Group v. Tyson, 796 F.2d 1479, 1505 (D.C. Cir. 1986). Opposing views must be reflected at the “appropriate point” in an EIS. 40 C.F.R. § 1502.9(b); National Wildlife Fed. v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1156 n. 5 (W.D. Wash 2002); see also Friends of the Earth v. Hall, 693 F. Supp. 904, 924 (W.D. Wash. 1988)
164 (holding that placement of agency criticisms of Corps plan in comments appendix was not the “appropriate point”).
“[W]here comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.” Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973). As held in National Wildlife Fed. v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1157 (W.D. Wash 2002):
“An agency must undertake a ‘reasoned evaluation of relevant factors’ to ensure that its decision is informed. Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992). An analysis that overstates the economic benefits of a project fails in its purpose of allowing decisionmakers to balance environmental harms against economic benefits. Hughes River Watershed Council v. Glickman, 81 F.3d 437, 446-48 (4th Cir. 1996). An EIS that relies upon misleading economic information may violate NEPA if the errors subvert NEPA's purpose of providing decisionmakers and the public an accurate assessment upon which to evaluate the proposed project. Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987). However, a reviewing court should not ‘fly speck’ such elements of an EIS ‘and hold it insufficient on the basis of inconsequential, technical deficiencies.’ Id.”
The government has a duty to use high quality information and accurate scientific analysis. 40 C.F.R § 1500.1(b). Idaho Sporting Congress v. Thomas, allowing the Forest Service to rely on expert opinion without hard data either vitiates a plaintiff’s ability to challenge an agency action or results in the courts second guessing an agency’s scientific conclusions. As both of these results are unacceptable, we conclude that NEPA requires that the public receive the underlying environmental data from which a Forest Service expert derived her opinion. 137 F.3d 1146, 1150 (9th Cir. 1998). NEPA requires that an EIS disclose “any responsible opposing view,” 40 C.F.R. § 1502.9(b). The government must disclose and take a “hard look” at the foreseeable environmental consequences of its decision. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 2730 n.21 (1976); 40 C.F.R. § 1502.16.
“An agency must candidly disclose in its EIS the risks posed by its proposed action. Otherwise the EIS cannot serve its purpose of informing the decisionmaker and the public before the decision to proceed is made. CEQ, Forty Most Asked Questions Concerning NEPA Regulations, Question 34b, Fed. Reg. 18036 (March 23, 1981); see also 40 C.F.R. §§ 1502.1, 1505.2.” Friends of the Earth v. Hall, 693 F. Supp. 904, 937 (W.D. Wash. 1988) (emphasis in original). An EIS must also inform the decisionmaker of the full range of responsible opinion on environmental effects. Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908, 922 (D. Or. 1977). An EIS that fails to disclose and respond to “the opinions held by well respected scientists concerning the hazards of the proposed action . . . is fatally deficient.” FOE v. Hall, 693 F. Supp. at 934. This does not mean that the court must decide whether the statement is based on the best
165 scientific methodology available, or resolve disagreements among experts. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). Rather, the court’s task is to ensure that the procedure followed by the agency resulted in a reasoned analysis of the evidence before it, and that the agency made the evidence available to all concerned. Id. As the First Circuit has held:
“[T]he requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement ‘unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind’ not only fails to crystallize issues, Natural Resources Defense Council v. Grant, 355 F. Supp. 280, 287 (E.D.N.C. 1973), but ‘affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.’ Monroe County Conservation Council v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972).”
Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973).
An agency cannot ignore the comments of a reputable scientist. Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482 (W.D. Wa. 1992), aff'd Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993) (“NEPA requires that the agency candidly disclose in its EIS the risks of its proposed action, and that it respond to adverse opinions held by respected scientists. FOE v. Hall, 693 F. Supp. at 934, 937. The agency may not rely on conclusory statements unsupported by data, authorities, or explanatory information. Silva, 482 F.2d at 1285.).
Numerous Scientific Experts on Viability
The Appellants provided a comment letter to the agency on the Draft Plan’s failure to assure viability of wildlife species and its failure to require appropriate MIS and monitoring for MIS. These eminent scientists specifically commented:
The Draft Plan and Draft EIS attempt to set up an alternate coarse and fine filter approach that will not assure viability and does not satisfy regulation and policy
The viability analysis contained in the Southern Appalachian draft plan EISs represents a major departure in approach to assuring species viability under NFMA regulations and Manual Direction. Rather than setting up a robust monitoring program as specified in the regulations that monitors management indicator species (MIS) and species at viability risk, the plans marginalize the MIS program and rely instead on a plan level analysis of general forest community habitat, successional habitat, rare community habitat, and old growth. It also relies on a plan level “viability analysis” for terrestrial and aquatic species. This approach is based on a region-wide effort of the Southern Appalachian Terrestrial and Aquatic Plant/Animal Issue Team to provide a combination of
166 coarse and fine filter approaches for assuring viability. The process papers for this effort show that the coarse filters for terrestrial species were considered: (1) forest community type, (2) forest successional classes, (3) rare community types, and (4) old growth communities. The viability analysis for terrestrial and aquatic species was considered the “fine” filter.
We agree with an approach that uses a combination of coarse and fine filters to assure viability. However, we do not believe that the combination of approaches used in the plan and DEIS assures viability nor meet the requirements of NFMA regulations and Forest Service direction for assuring viability.
Coarse Filters: Forest Community Types The 6 forest community types used in the Southern Appalachian plans (plus 5 for coastal plains) are generalizations of forest types from the Region 8 Old-Growth Guidance. These forest community types, while useful for some purposes, are generalizations. In the early 20th century as many as 56 forest community types were recognized. More recent ecological classifications have recognized even more community types. The fact that the classification used for major forest communities is a generalization should be made clear so that the limitations of the classification are apparent. The classification is useful as a broad measure of different forest types on the forest, but is of little use as a screen for viability concern species.
Forest Successional Classes The inclusion of forest successional classes as a coarse filter for species viability implies that a mix of successional classes is the natural state of Southern Appalachian forests. The DEIS states:
“Successional stages of forests are the determining factor for presence, distribution, and abundance of a wide variety of wildlife. Some species depend on early-successional forests, some depend on late-successional forests, and others depend on a mix of both occurring within the landscape (Franklin 1988, Harris 1984, Hunter et al. 2001, Hunter 1988, Litvaitis 2001). These habitat conditions are also important as wintering and stopover habitats for migrating species (Kilgo 1999, Suthers 2000, Hunter et al. 2001).
Therefore, it is important that varying amounts of both types of habitat be provided within national forest landscapes.”
This is not a valid conclusion given the significant ecological literature that most Southern Appalachian forests are uneven-aged forest that primarily regenerated through gap phase dynamics. The existence of contradictory documentation should have been at least acknowledged and discussed. The presence of successional forest documented in the DEIS is a relict of extensive logging at the turn of the 20th century and logging throughout the 20th century.
167 The regional FWRBE team providing guidance for viability had documentation10 that forests in the Southern Appalachians, particularly the mesic forests, before Euro-American land-use were naturally uneven-aged forests that provided habitat to all native species. The level of disturbance at the beginning of the 20th century was unprecedented, and the forests of the region are still undergoing succession in response to this un-natural level of disturbance.
While the plans implicitly acknowledge this unnatural condition within the documentation of current conditions, they present this information as justification for logging and specific creation of early-succession conditions throughout the forest. The more accurate disclosure that the forests are currently moving toward mature conditions where natural dynamics would create ‘early succession” habitat for native species is not disclosed.
Ecological research indicates that natural areas experience disturbance so that the landscape would have a characteristic patchiness in age and structure. “Species both dependent on and sensitive to disturbance would persist.” Studies indicates that mature Southern Appalachian forests experience naturally created canopy gaps at the rate of about 1% per year. Restoration of the forest to this natural steady-state condition where natural processes create a mix of habitat types is an alternative for providing habitat for native species. The artificially maintained successional model presented in the plans as the only real alternative for native species habitat would perpetuate the unnatural conditions currently present in the Southern Appalachian forests from past abuses by maintaining an even aged structure for much of the forest. This would create the need to generate early succession patches perpetually.
The alternative of restoring the forests of the region to their natural dynamics was not considered. A restoration plan relying heavily on allowing the forests to mature from the current unnatural structure was not adequately considered. The habitat created from natural gaps and disturbances due to expected forest dynamics was not considered. Indeed the modeling used in the effects analysis (Spectrum and the Forest Vegetation Simulator Model) is built on the assumptions of successional forests and is unable to model the natural dynamics of mixed-age Southern Appalachian forests. The FWRBE team was urged during the planning process to incorporate estimates of naturally generated disturbance patches for analysis. This was not done even though this is a significant factor (approximately 1% of the forest per year) especially in old growth or mature forest.
Indeed the plans specifically do not count patches less than 2 acres in size (even those generated through management activities). Disturbances less than 2 acres are classified according to forest adjacent to it and there is no provision for inventorying or monitoring these patches. Because the plans and DEISs fail to recognize natural elements of disturbance that provides “early-succession” species
168 habitat, because the DEISs fail to estimate the amounts of this disturbance habitat that is naturally generated each year, and because the DEISs rely on successional forest modeling that doesn’t even attempt to model the natural dynamics of mixed- and all-age forests of the Southern Appalachians, the habitat projections in the plans are not accurate, the viability analysis based on these estimates is also in error, and the comparison of alternatives is misleading.
Rare Community Types The Rare Community classification is useful for viability concern species. The Southern Appalachian Assessment finding is significant that: “Thirty-one rare community types were identified in the SAA area. These types are important for sustaining current populations of federally listed species and VC (viability concern) species. Almost 75 percent of the terrestrial rare plant and animal species and their associated habitats are found in one or more of the 31 rare communities, which occur on less than 1 percent of the SAA land area”.
This is a good example of a coarse filter that captures a large number of rare occurrences within fairly broad categories. Paired with adequate fine filter approaches, this could be a part of a good plan for maintaining viable populations of native species. However, without an adequate fine filter approach the approach is like carrying water in a leaky bucket – almost guaranteed to drop occurrences and species. What would be a good fine filter approach to pair with rare community protection? It’s important to note that 25% of viability concern species are not found in rare communities and many of those that are found in rare communities are not confined to rare communities. Identifying and protecting occurrences that fall on general forest areas outside rare communities is essential and there is inadequate provision for this in the draft plans. See more discussion about this under “fine screens” below.
Only Jefferson National Forest (9,800 acres) and Cherokee NF (6,512 acres) have identified significant portions of the forest designated as rare communities (9F prescription). There are goals to “identify, maintain, or expand” rare communities, but no objectives or standards for how these communities would be identified or delineated. With one exception (Sumter – FW-31 “before implementing projects”) when this identification and delineation would occur is not specified in the plans. In order for this coarse screen to not be an empty prescription that never gets adequately used in practice the plans should have guidance (objectives or standards) that specify how areas will be delineated, how areas will be reassigned to 9F prescriptions, and when this will happen.
Old Growth Communities: Objectives and standards do specify in the plans how existing old growth will be identified. The plan also identifies prescriptions that are compatible with “future old growth”. However, there is no identification of the relationship between existing old growth, possible old growth, and future old growth. This is a crucial measure that would help gauge the quality of forest considered future old
169 growth. If old growth is to be considered a coarse screen for ecosystem elements, there must be a way to relate the area allocated to future old growth in relation to the values for which the screen is being used. It is possible (and likely) that areas allocated to future old growth are not good candidates for old growth. Some of these areas have probably been clearcut in the very recent past. Ideally, future old growth would contain a large proportion of existing old growth. This could be evaluated on the Jefferson where extensive old growth surveys by the Forest Service have been performed. In other forests, possible old growth and old growth surveys performed by the public could be used to evaluate the degree that future old growth incorporates confirmed and likely old growth areas. Without this analysis there is no way to evaluate the utility of old growth as a coarse filter. Does the screen capture ecosystem elements that represent or are close to real old growth? Or is it a screen that would only serve a meaningful role after a century of recovery and restoration.
The other element that needs to be clear in order to evaluate the role that old growth could play as a ecosystem coarse screen is the adequate mapping and display of the network of large, medium, and small old growth patches. Large and medium patches in the network of old-growth areas were supposed to be displayed in the plans, but none of the plans have really done this. Yet this mapping is essential to evaluate the role of the network as an ecosystem coarse filter and also to make intelligent choices for small patches at the project level.
Management Indicator Species MIS are intended in the NFMA regulations as the primary coarse filter. In fact the regulations are very specific in direction on selection and monitoring of MIS. MIS are selected “to estimate the effects of each alternative on fish and wildlife populations”. It is a measure that MIS have been marginalized that they are barely addressed in the Biological section of the DEIS. They are mentioned in passing under other sections, but there is nothing to indicate that: (1) their choice reflects a deliberate selection of species to indicate viability, (2) there was an attempt to select MIS that would in sum give indications of species viability trends, or (3) the species selected form a comprehensive approach for monitoring trends in viability.
None of the proposed plans expressly identify the existing native and desired non-native vertebrate species in the planning area for which each MIS have been selected. None of the proposed plans defines the minimum number of reproductive individuals and relates this vital population data to the distribution of habitat for the provision of species interaction. None of the proposed plans include any species population data for establishing a current baseline from which to estimate the effects of alternatives, or to measure the very real effects of management activities once the plan is implemented at the project level. And none of the proposed plans provide for the collection of actual project-level, or even forest-level population data.
170 Rather, the approach presented in the revised forest plans is primarily to monitor acreage of managed habitat, termed “habitat elements” in the revised forest plans. The viability monitoring system in the proposed revised plans is referred to as a “coarse filtering system” where actual population data is never needed to predict and assess species viability. Under this approach, in fact, MIS would not even be necessary because the focus is on counting the number of acres of managed habitat. However, monitoring simply the number of “managed” acres of a particular forest type does not satisfy the regulatory requirement for maintaining viable populations of native and desired non-native species.
Fine Filter
Terrestrial Species Viability The species viability analysis presented in Chapter 3 of the DEIS and in Appendix E (Appendix F in the Alabama and Sumter DEIS) is presented as a fine filter for species viability. The Nature Conservancy and NatureServe define the coarse filter-fine filter approach as “A working hypothesis that assumes that conservation of multiple, viable examples of all coarse-filter targets (communities and ecological systems) will also conserve the majority of species (fine-filter targets). They further explain fine filter—“To ensure that the coarse-fine filter strategy adequately captures all viable, native species and ecological communities, ecoregional planning teams also target species that cannot be reliably conserved through the coarse-filter approach and may require individual attention through the fine filter approach. Wide-ranging, very rare, extremely localized, narrowly endemic, or keystone species are all likely to need fine-filter strategies.”
The approach in the draft plan is only a fine filter approach in the sense that it includes all species with viability concern, creating a database that includes Endangered, Threatened, Sensitive, and locally rare species, as well as birds of conservation concern (from US Fish and Wildlife), and declining species of high public interest. As such it would be a good database on which to base a fine- filter monitoring program.
The viability analysis presented in the plan consists of a five step process that iteratively relates the viability concern species to increasing levels of habitat and threat abstractions. The basic steps of this process include:
Step 1: In addition to Global and state ranks NatureServe gave the viability concern species “forest abundance ranks) (F ranks) mirroring the global and state ranking systems. The forests worked with NatureServe to fine tune these rankings.
Step 2: Species were associated individually with habitat elements (in some cases more than one habitat element), but only species that were confirmed present on the forest and considered rare on the forest - with an F rank from F1
171 through F3 (or unknown abundance) were evaluated. “Habitat Elements” on the forest were created that each species would be associated with. These habitat elements roughly correspond to categories of management direction in the draft plans and to sections of effects analysis in the DEIS. NatureServe staff (and contractors) identified habitat relationships for all species of potential viability concern, linking each species to vegetation community types, successional stages, and habitat attributes. It was left to Forest Service biologists to assign species to one or more of the “habitat elements”. NatureServe staff reviewed these assignments and provided adjustments to the assignments.
Step 3: Each habitat element was evaluated in the DEIS with two variables: future abundance (rated: rare, occasional, common) indicates the abundance of the habitat element on national forest land 50 years in the future if a particular alternative were selected and implemented. Future abundance was rated by FS staff based on spectrum runs and on “knowledge of Forest Service biologists”.
Future distribution indicates the distribution of the habitat element if a particular alternative were selected and implemented. In contrast to future abundance, future distribution (rated: poor, fair, good) “includes consideration of intermixed ownership patterns and conditions, and their effects on movements and interactions of individuals among the suitable habitat patches found on national forest land”. Knowledge of Forest Service biologists was used to assign future distribution values, and a “historical reference condition” of pre-European settlement (1000 – 1700) was used.
Step 4: Habitat element abundance and distribution were combined in the analysis to create one variable, “Likelihood of Habitat Limitation”, to indicate the likelihood that the habitat element would be limiting to populations of associated species. High, Moderate, and Low values were determined by combinations of abundance and distribution in a matrix with “common” abundance and “good” distribution giving “Low Likelihood of Habitat Limitation” at one extreme and Rare abundance with poor distribution giving “High Likelihood of Habitat Limitation” at the other extreme.
Step 5: An additional matrix with “Likelihood of Habitat Element Limitation” on one axis and Species F Rank on the other axis gives “Viability Risk Ratings” for each species evaluated. Viability Risk Rankings range from “very high”, through “moderately high”, “moderate”, and “low”. These values are displayed and summarized in various tables in all the DEIS documents.
One of the most striking things that emerges in following this very complex analysis is that a tier of at least 4 “expert judgments” (2 within step 3) were required for the final viability risk rankings. At least one of these “expert judgments” was informed by the Spectrum model, which makes no pretense of accurately modeling the real dynamics in Southern Appalachian forests. Only 2 of these “expert judgments” were primarily made by NatureServe scientists. The
172 species assignments and the methodology were originally supposed to be reviewed by a panel of scientists. According to regional staff any plans for independent review have been abandoned. The methodology for this type of analysis which rests precariously on top of a tower of "expert judgments" and assumptions rather than hard data is constrained by its weakest link, and there are many weak links in this analysis.
The dependence of the methodology on a series of judgments, in which any error would perpetuate through the analyses casts doubt on the utility of the analysis. The dependence of the analysis on Spectrum modeling which demonstrably does not accurately model the natural dynamics of Southern Appalachian forests seriously calls the analysis into question. However, most significantly, the analysis is clearly not a fine-filter approach. The DEIS states: (see DEIS Jefferson NF) “Because viability regulations focus on the role of habitat management in providing for species viability, habitat condition was the primary factor used to drive species viability evaluation.” The viability analysis is at base a habitat analysis depending heavily on questionable habitat modeling and educated guesses – it’s another very coarse filter. The fact that species are associated with the habitat and with habitat risk elements through a series of “expert opinions” does not make it a fine-filter approach. Also of note is the fact that in evaluating future distribution of habitat in the analysis “historical reference condition” of pre-European settlement (1000 – 1700) was used. However, data presented by Quentin Bass to Cherokee NF and regional planners relative to detailed pre-European conditions is not referenced and not utilized.
Missing Fine Filter Approach: The plans fail to establish the needed fine filter approach that a good monitoring program would establish. Fine filter goals, objectives, and standards do address endangered and threatened species, especially for actions during projects. To a lesser extent surveys for sensitive species are provided for in association with projects. However, a Supplement to the FS Handbook and Manual on Biological Evaluations that the region finalized in 2002 provide considerable discretion about when surveys for TES will occur. No standards for surveys are found in the plans so these handbook supplements would apply, and they allow the FS to avoid surveys when the database and habitat modeling indicate that TES are unlikely to be located in the project area. Also hundreds of species were removed from the sensitive species category by the region in 1996 in a “redefinition of sensitive species” decision made outside NEPA. There are no current guidelines for the forests to address these so called “locally rare” species by looking for them in field surveys. Many of these species, especially disjunct species, have very high viability concerns – more so than many sensitive species. These species would only be addressed by the coarse filter viability analysis contained in the DEIS.
The “F” Rankings Could Serve As A Good Basis For Monitoring Species At Highest Viability Risk
173 The “F” rankings developed in the above “viability analysis” would give the basis for a fine-filter approach that could address the species at most viability risk. Standards for addressing TESLR species through a fine filter approach should be established in the plans. The viability analysis presented in the DEIS is of no practical use as a fine-filter or in assuring the viability of species on the forest. The methodology is so insensitive that it fails to show any real difference between alternatives. The differences that are described in the DEIS are highly suspect because of the habitat models and tenuous series of expert judgments they are based on and because of discrepancies in these judgments when comparing different forest plans. However, the analysis does provide the building blocks for a good fine-filter monitoring program focused on the species in most need of monitoring. Setting goals, objectives, and standards for monitoring the TESLR species prioritized by F ranking is the fine filter approach needed to assure viability.
Looking at the Table of F rankings in the DEIS, a very large number of locally rare species have F rankings of F1 (1-5 occurrences) and F2 (6-20 occurrences). Managing these species with just a coarse filter approach would be irresponsible and would invite extirpation. Even F3 (21-100 occurrences) species have too few occurrences to justify them being managed solely on the basis of habitat modeling. As it currently stands the draft plans can not credibly and rationally substantiate that they are assuring viability for locally rare species that (1) only have a handful of forest occurrences, (2) have no regional monitoring program in place that requires surveying for them, and (3) have no requirements in the plan for monitoring or surveys. The coarse-filter approach based on habitat, while useful, is inadequate to assure viability for these species at severe viability risk on the forest. The so called “viability analysis” in the DEIS is also based on broad categories of habitat, fails to provide the fine-filter approach these species need to assure viability, and ignores the stochastic effects that species at this level of viability risk face. The major stochastic threat that management actions would wipe out occurrences could easily be removed by adequate monitoring. An adequate species monitoring and survey program should be established in the plans based on F rankings with goals, objectives, and standards to implement them as a strong fine-filter approach to assuring viability. Habitat relationships should be treated as they are – theories that can be refined based on the monitoring and survey program.
Strategy for the viability analysis is not based on the best biology but is designed to get around Sierra Club v. Martin . Since the Eleventh Circuit ruled that the FS must comply with Plans, the planners led from the regional level are changing their plans so as to make them without enforceable standards. As the Eleventh Circuit held:
“‘courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency
174 itself.’ Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). Moreover, the Forest Service cannot ignore the requirements of the Forest Plan. As NFMA makes plain, ‘resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.’ 16 U.S.C. § 1604(i); see also Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (no deference due to agency interpretation that contradicts the regulation's plain language); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985) (reviewing court may remand a case to the agency ‘if the record before the agency does not support the agency action [or] if the agency has not considered all relevant factors ...’).” Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir. 1999).
The plan and DEIS fail to comply with NEPA There is no analysis and explanation or rational justification for including or excluding species in rare species monitoring programs. Even though the analysis in the DEIS shows that many of the locally rare species have very high viability concerns, there is no alternative that addresses monitoring of locally rare species. The rare species monitored are the same for all alternatives and these are not related to the viability rankings that the Forest Service documents in the DEIS. Past regional decisions (made without a NEPA process) (1) to change the sensitive species definition to eliminate hundreds of species from coverage under the Sensitive Species provisions of NFMA regulations (creating “locally rare” species and (2) to change the biological evaluation procedures relating to surveying for TES species were clearly done to minimize FS duties, but NEPA requires alternatives. There are no alternatives that monitor locally rare species even though many have extreme viability concern (F1 and F2 ranking) by the Forest Service’s own analysis.
Analysis for the plans was done heavily dependent on “professional judgment” based on unsupported assumptions. There is no independent support for what they decided to do and the methodology is such that it could not be independently reproduced. There was no peer review. There is no data supporting the decisions made – even where this would have been possible (e.g. using rare species occurrence data to verify assumptions going into the so called “viability analysis”. The decisions are thus arbitrary and capricious.
“It nonetheless maintains that its data, though devoid of any inventory information as to some PETS species, remain adequate to assess potential impact upon the species, forest-wide. The information which the Forest Service deems ‘adequate’ is in reality no information at all in terms of many of the PETS species. Since the agency's position is contrary to the clear language of the Plan and the statute, it is not entitled to deference.” Sierra Club v. Martin, 168 F.3d 1, 5 (11th Cir. 1999).
175 This comment letter was signed by:
C. Ronald Carroll, PhD, Professor and Director of the Institute of Ecology University of Georgia
Stuart Pimm, PhD, Doris Duke Chair of Conservation Ecology Nicholas School of the Environment and Earth Sciences Duke University
James W. Petranka, PhD Department of Biology University of North Carolina/Asheville
Timothy P. Spira, PhD, Professor Department of Biological Sciences Clemson University
John C. Morse, PhD, Professor of Entomology and Director, Clemson University Arthropod Collection Department of Entomology Clemson University
Jonathan P. Evans, PhD, Director, Landscape Analysis Laboratory Associate Professor, Department of Biology University of the South
Dr. Geoffrey Hill, PhD, Alumni Professor Dept. Biological Sciences Auburn University
Paul D. Kittle, Ph.D., Professor and Chair Department of Biology University of North Alabama
Jeff S. Glitzenstein, PhD. Tall Timbers Research Station
Giff Beaton Naturalist and Author of Birding in Georgia
Charles J. Everett, PhD Soil Scientist
176 Despite the impressive qualifications and expertise of these renown scientists and experts in their fields in the Southern United States, the agency blew off their comments as if they were never made. This is a blatant violation of NEPA.
Quentin Bass and his material.
See discussion above generally on rejection of this material.
The Lynch and Clark Study and other Related Studies
The agency makes much of the study done by the Delcourts, but papers and studies that contradict or limit that study or that are more comprehensive than that study are NEVER mentioned or cited. This is a clear NEPA violation.
Jason A. Lynch and James S. Clark, “Fire and vegetation histories in the southern Appalachian Mountains: The historical importance of fire before and after European/American settlement” (April 20, 2002), was submitted to GW-Jeff National Forests in 2002, but progress papers were submitted as early as 1998. While not an unequivocal rejection of the fire history as painted by the Delcourts, it paints a much more complex history with some areas showing much more fire before European settlement than others. The results overall show a dramatic increase in fire following European settlement. That fully supports the materials submitted by Quentin Bass as he acknowledges that native Americans used fire for agriculture around their settlements.
The Patterson (U.Mass) paper was also ignored by the agency. The fact that the agency had these studies (especially the Lynch/Clark paper), but did not cite or use them is significant because it reinforces the suppression of information contrary to what they present in the FEISs. In particular, this suppressed information supports Quentin Bass’s claims. These studies (particularly the Lynch/Clark one) are much more thorough (sampling more sites) and better controlled (age determination of the deposits) than the Delcourts’ work.
Mel Warren
Even the agency’s own experts stated that road closure and obliteration should have been included, but these recommendations were ignored, in violation of NEPA, as set forth below. As stated by Mel Warren, one of the agency’s top aquatic scientists, in his comments on the draft Plan, “I may have missed it but why didn’t the aquatic folks (Forest level) emphasize road closure/obliteration as a means of improving stream quality? If they did, I did not see it; if they did not, I am puzzled.” Mel Warren, “Comments on draft plan revisions,” at page 4 (May 1, 2003).
Mel Warren submitted extensive comments on the aquatic viability sections of the Plan, yet those comments were summarily ignored. Here is the bulk of his comments that were never addressed:
177 General (primarily from Appendix B, Alabama NFs, also Chap 3, Alabama, Chattahoochee and Cherokee and appendices): Overall, the process outlined for aquatic resources is a step forward. The “indices” are a bit confusing, but the factors and elements within them, if rated appropriately, could constitute a large-scale coarse-filter approach. I am concerned with the sensitivity of the process. For example, in enumerating watershed point sources, no accounting is made for the magnitude, duration, or intensity of impacts from point sources. One point source could, for example, have more adverse impacts on aquatic organisms (e.g., large volume, poorly functioning municipal or industrial waste-water plant) in one watershed, than many point sources in another. Another potential area are the stressors assigned to individual species; for some, there may be solid information or good “professional” judgment, but I think the link between species and stressors needs some future attention, development, and validation. Perhaps, the potential loss of sensitivity need not be accounted for in the coarse-filter process, but I do not see here that it is or will be accounted for anywhere.
I am also concerned that the coarse-filter approach will be applied, all or nearly all species declared safe and secure (or beyond FS ability to mitigate), all (or nearly all) watersheds rated in excellent (or average) condition, and then, nothing else will occur, since all is “well” with aquatics because the coarse-filter said so. Overall, that is the message that one could come away with from the Chap. 3 sections. You are the aquatic resource managers, and perhaps you feel comfortable in having your message interpreted that way by leadership or other non-aquatic resource managers. In my opinion, it is appropriate to use a coarse- filter approach knowing its limitations and recognizing that the filter needs to be “ground-truthed” by each Forest. Now, the limitations are somewhat guessable, but not in a highly defensible manner. The real strength, sensitivity, and utility of the coarse-filter applied here cannot be known until “on-the-ground” data is compared with coarse-filter indications. That said, the sediment increase/indigenous species relationship is impressive and moving toward being a potentially valuable tool, but it too is a coarse filter.
I am also concerned with the so-called “adjustments” that seem to have been made to the conglomerate of the watershed condition and sediment increase scores. It was never clear to me upon what basis or rationale that these adjustments were made. It appeared the score was elevated if a couple of conditions were met (I believe these were ownership and forest cover?). I would like to see an explicit and if possible science-based rational for these upward adjustments. As presented, the adjustment might seem to many as a way to elevate a score because “someone felt it was too low.” It also appears very strange that only upward adjustments were considered. This defeats the purpose of the coarse-filter. If there is belief that a score is too high or too low based on knowledge or data from a watershed that wasn’t considered in the scoring or factors that are apparently insensitive, that is the signal to go the ground and document the existence or non-existence of the potential cause or causes; it is not
178 a reason to adjust scores. The adjustment routine (and see comments on range of scores) could leave many readers with the impression that these are just “feel good” ratings.
As I have expressed previously (see quote below from my previous comments), attaching terms such as “viability”, “watershed health”, etc. does not engender very coarse measures such as these with the special powers those appellations imply.
The language used in the Chattahoochee (e.g., explicitly identifying “coarse filter”, etc.) seemed better couched than some of the overreaching terminology and claims made in other chapters. I suggest a careful editing for over-reaching statements in all the appendices and Chapter 3 aquatic sections.
I found it difficult in some versions to understand the differences and interplay of the watershed condition scores versus the relative sediment increase (as explained in the Alabama NF, Appendix B, the Cherokee, Chapter 3 was better, as was the Chattahoochee Chapter 3, but many details are not there). I also had some difficulty in understanding just how the two were constructed. Part of the problem may be terminological (if I grasp this at all). Rather than having watershed condition, WHI, adjusted WHI, weighted average WHI, and final WHI, why not call the final rating, THE WATERSHED CONDITION RANK, and re- name the other steps (e.g., relative sediment yield, current condition factors, ownership factor, etc.) to reflect what they are, not what they might represent. It is not clear how the excellent, average and below categories were determined in the relative sediment yield (which includes the EWAP data). Is this the same process as described in the watershed condition explanation?
Here I append some comments I submitted on 9/18/02 on this aquatic process as it stood then (in my professional opinion, they are still apropos in spirit if not in exact detail): “Some semantic, but I think, very important issues. The term "WHI" (Watershed Health Index) has been adopted as a shortcut term to describe what is REALLY an index of fish endemism and sediment. I realize it has probably been internalized in Atlanta (and perhaps among the fish/hydro staff) as WHI, but it is not too late to call it what it is and I suggest you do so immediately. Think about it.... the IBI (Index of Biological Integrity) has 10 or more metrics to measure "integrity" (along with a solid body of peer-reviewed literature validating its usefulness). On the other hand the "WHI", as I understand it, is a bivariate relationship yet it is deemed "watershed health." Sounds good, but it is not measuring watershed "health" (the whole idea of "health" being a loaded term in and of itself). Likewise the "temp." column in the spreadsheet should be changed... is it not a measure of "potential shade loss" or some such? Examine the others for similar semantic snafus. The point is don't overlook the expectations of your audience (public and professional) created by variable or index labels. These "mere" terms may create more misunderstanding, mistrust,
179 and resistance than any of the biological conditions they are attempting to track.”
In the end of the Alabama, Appendix B (B-80), is another set of additive indices that I found very difficult to understand. More troubling, is I know of no reliable source from which to populate these indices. The attempt is laudable, but what are the data sources (eg.. risk over all watersheds in Alabama)? The claim that the “index…rates the actual viability risk… for a given species…” is a bold one that I assume the Region or Forest can back up with data, peer-reviewed literature, and/or expert testimony.
I kept seeing the phrase “incorporating elements of distribution, abundance, and sensitivities” in connection with “viability”. How was distribution incorporated (see comments on historical versus current occurrence)? How was abundance incorporated?
It is very curious that the various indices (e.g., WHI, watershed condition, stressors, viability risk) have ranges (e.g., 1-5 or excellent, above avg, avg., below avg), but very rarely do watersheds and/or species occur in all the possible categories. I may have missed a few but I don’t recall many streams in below average category and most species were in the 1 or 3 categories of viability risk. Nearly everything in Alabama, for example, was rated as excellent on the WHI. Why the lack of range?
In Alabama Chap. 3-153. I noted that Clear Creek in the Bankhead in AL NFs was given an “excellent” WHI. To be clear, I do not have quantitative evidence to dispute the rating, but in my professional opinion that watershed is not in excellent health. It “should” have a fish fauna like that found in the Sipsey Fork, but it has many more tolerant animals. It “should” have a mussel fauna like that in Sipsey Fork, but the mussel fauna is species-poor and very sparse (perhaps wiped out). Likewise the water clarity “should” be like that in Sipsey Fork, but on our visits the stream is cloudy. I bring up this single example and the comment on the lack of “range” in the index classifications to emphasize that a lot more work needs to be done to determine how sensitive/insenstive the watershed condition, relative sediment yields, & species stressors really are.
In a few spot checks of data (e.g., Cherokee, Appendix F and Alabama Chap 3- PETs), I found it difficult to interpret what the number of watersheds or miles really meant. I suspect, but could be wrong, that these reflect historical records but do not reflect where the animals persist today. I give examples for the Cherokee in subsequent comments. In the Alabama, I noted that several mussels were listed as occurring in several miles of Clear Creek. I think it would be more informative to show some measure of historical range in watersheds with FS ownership AND accompany that by some estimate of current range (in many cases that will be much smaller, whether by miles or watershed than the historical occurrences). In sum, both are important, but just historical without
180 current range (as number of occurrences or miles of stream) can be misleading (e.g., false sense of just how widespread and “viable” the animal is; that could potentially go both ways). This may be a limitation in the available data, but if it is, in my opinion it should be stated and emphasized (e.g., ‘Streams miles represent those in which the organisms occurred historically, but may not represent their occurrence currently.” or something like that).
In a similar area, how was the forest-service ownership “cut-off” determined? How was the certainty/uncertainty determined that below that cut-off forest service actions could neither be positive or negative for a particular aquatic species? Seems arbitrary, subjective and due to lack of explicitness, I could not tell if it was the same cut-off from Forest to Forest. Here again, is a limitation that needs to be explicitly recognized. Suppose a PETS species occurs in or near FS ownership in a watershed below the “cut-off”. A local population could be dramatically affected positively or negatively by FS actions if it is in or close to ownership regardless of the amount of ownership.
I may have missed it but why didn’t the aquatic folks (Forest level) emphasize road closure/obliteration as a means of improving stream quality? If they did, I did not see it; if they did not, I am puzzled.
Cherokee, LRMP, Appendix I, pg 405, Wildlife and Fish no. 5. I am curious about the identified research need to study “blasting” as a habitat creation tool. For what purpose and under what conditions could the Forest justify the need to dynamite a stream?
Cherokee, Chap. 3, 15.2, p. 235. How was temperature actually assessed (via riparian coverage?)? I don’t understand why that is not more explicit (i.e., temperature itself was not measured). p. 237, Give the original citation for “Jenks optimization formula” not just the process document. Table 3-83. I don’t understand what this table means, specifically what is a “documented population”? Does this mean the animal was present or absent at x number of sites in that watershed?
Table 3-84. Potentially misleading table. Are none of the roads on FS lands? The point here is not who produces the most sediment FS or private, since these are percentages the tonnage produced off FS lands and roads could still be enormous. Perhaps they are not enormous but this display of data is not convincing to a discerning reader.
Table 3-85. I don’t see how this table supports the statement in the caption at all. p. 284. What does trout population remaining “fairly constant” mean and how was this assessed?
181 Appendix F, Cherokee What is the purpose of mixing in the Cherokee with all these other forests? Not clear to me. In examining the number of watersheds column, this must be the number of watersheds in which these species occurred historically and not the number in which they currently persist. For example, Pegias fabula is listed in nine watersheds, which may reflect historical localities, but I would be hard pressed to come up with 9 5th level HUCs where this animal still persists (admittedly I might have the scale of a 5th level HUC wrong). Likewise for the palezone shiner, it only occurs in Little South Fork Cumberland River (DBNF) and Paint Rock River (which is not on a National Forest), but the number of watersheds column indicates 2 (is this not the number of watersheds with some NF ownership?). My point is twofold: first, where did these numbers come from and second, if this is some reflection of viability (e.g., current dispersion or range) only listing watersheds of historical occurrence is misleading. However, presenting historical and current number of watersheds could be informative (e.g., range shrinkage, sensitivity, etc.)
Jefferson, Appendix F. Nearly all species were ranked 1 or 3, with very few 2s and I don’t think there were any 4s or 5s. Likewise there were a few BA WHIs. Are these results really a reflection of on-the-ground reality? How sensitive are these analyses if 90% (or more) of TES aquatics come out as 1s or 3s and so few WHIs are in the lowest category? Same comments on Appendix F, Chattahoochee-Oconee and Sumter. Appendix F for Alabama has some in category 4 and 5. Why is Alabama different from others? Did preparers really follow the steps outlined in the process papers or were many of these simply subjectively assigned a so-called viability risk?
Chattahoochee, Appendix F. The introductory paragraph was not intelligible; are there whole explanatory sections missing?
Comments on DEIS, Appendix B, Analysis Process Alabama NFs, pg. B-37, “The sediment model….”
I assume much of this comes straight from the process documents. The primary weakness of this section, in my professional opinion, is the lack of specificity and overall lack of reference to the scientific basis for the indices. The explanation is loaded with relative terms (“high” ownership, “low” percentage of ownership, “abundant” riparian forest) which do not lend a high level of credibility to the process. To provide just a few examples: what constitutes the “cut-offs” for forest service ownership to be Low, Medium, and High, what is the “WHI weighted ave” and how are physiographic zones “weighted” in this value (do you mean by area)?
What is the next to last column “WHI adjustment (2 Gs = upgrade)”
182 Is there a “downgrade” to match the “upgrade” of the WHI (e.g., too ‘little’ riparian zone, too ‘high’ a road density, too ‘high’ an area in strip mines, too ‘many’ point sources, etc)?
Secondarily, I did not find all the “examples” from worksheets very helpful in illuminating to me just what was done.
Comments referenced by page (Alabama NF, Appendix B). B-38, In my professional opinion, valuation of individual “condition factors” based on “natural breaks” is vague and highly subjective (in other plans Jenks optimization was used but no reference is given, I don’t know what that is, I suggest putting a reference to that procedure, not simply saying its in ArcView). Does the Jenks method allow two classifiers to come to exactly the same conclusion about breaks in the data?
B-38. How was ownership factored into the metrics? Were there “cut-offs”? The Cherokee noted I think 17% ownership as a cut-off but there was no justification given for that number. What is the rationale/justification for the cut-off? More to the point, how do you know that this amount of ownership precludes having positive or negative effects on a particular aquatic animal?
B-37 and B38. How was riparian area defined or determined for purposes of the metrics (e.g., riparian road density); for example, was a standard width used? How was altered stream flow determined? Were all the metrics listed under altered stream flow (density of dams, road density in the riparian, and average density of strip-mines) considered individually, were they additive? What does average density of strip-mines mean?
B-42. In my opinion, calling this a Watershed Health Index does not make it a Watershed Health Index (see also previous). As I understand this, there is a Current Condition score and now a WHI score. How can the WHI then be used to change (upgrade) an original “classification” of “Current Condition”? If this is justifiable, then is there a contrasting procedure in which, for example, an average current condition score is downgraded to below average based on the WHI? In regard to “percent forested riparian” how high is high and what is “abundant enough to provide adequate habitat and protection for aquatic resources.” These seem to me to be unsubstantiated, subjective, and really vague claims.
B-48. The slope calculation is not clearly stated. What is a slope break? How many discrete slope classes were used? What does reclassified for individual forest assumptions mean? What is a lesser slope, what is a greater slope? How does the list of “slope breaks” relate to this process?
B-64 Endemism Sediment Profile
183 I suggest these data also be subjected to some “null” model analyses. Dr. Nick Gottelli has a Web-site with several downloadable programs (EcoSim) (http://www.uvm.edu/~biology/Faculty/Gotelli/Gotelli.html), particularly the Macroecology program seems ready-made to examine this data set.
Other standardized fish samples are available from Mississippi National Forests that would include upper and lower Coastal Plain sites.
B-77. The statements concerning appropriateness of 5th level HUCs needs support. What is a socially definable population? How do you know it is the most relevant scale? How was it estimated that “over 500 aquatic species are found…”; does this include all the known inverts? B-79. Is this “Watershed Condition” the same “Watershed Condition” previously discussed? B-79. In the prior explication of WHI, I did not note any “biological” thresholds in the formulation; here, the document indicates the WHI “takes into account biological thresholds of sediment.” Perhaps, I missed that aspect of the index. Is the Mark Scott work somehow rolled into the WHI? If it is the bivariate plots then it is not part of WHI, but the biology is a covariate of WHI. Under “Combination of Watershed…” “combined values for each watershed metric”. Should this be the average value or did you examine each metric for a value equal or > than 2.51. I also don’t understand why you multiplied anything.
Mel Warren, “Comments on draft plan revisions” (May 1, 2003). Those comments were not only ignored but they were not revealed at all to the public and the decision maker, in complete violation of NEPA.
Alabama Forest Service Staff
Agency staff experts working on the National Forests in Alabama specifically made suggestions about providing adequate MIS and PETS species and monitoring for those species. These staff included agency biologists and botanists. Those comments were not only ignored but they were not revealed at all to the public and the decision maker, in complete violation of NEPA.
Site-specific information on Brushy Fork and Mayfield Creek
We specifically provided information to the Forest Service on additional roadless areas and why they should be included in the inventory. The Final Plan specifically states that our suggestions and information on Brushy Fork and Mayfield Creek areas were NEVER analyzed at all, in complete violation of NEPA. “The non-roadless Brushy Creek Area was not assigned wilderness study or a wilderness friendly prescription in any of the alternatives.” (FEIS Appendix J, at J-30.) “The non-roadless Mayfield Creek Expansion of Reed Brake was not assigned wilderness or wilderness friendly prescriptions in any of the alternatives.” (FEIS Appendix J, at J-31.) “Neither the roadless analysis conducted in 1995 nor the revision in 1997 found the Brushy Lake Area
184 or the Mayfield Addition to Reed Brake to meet the roadless inventory criteria. This analysis may be reviewed as part of the project record.” (FEIS Appendix J, at J-112.)
Information on Brushy Fork W&SR
Analysis for rejecting Brushy Fork as a potential Wild and Scenic River was nonexistent. Appendix D in the FEIS covers Wild and Scenic River review, and it is all of three pages long. It is totally unknown how the agency determined that Brushy Fork is not eligible and that Five Runs Creek is. No breakdown of the analysis process is given. There is no evidence that the team working on that issue ever even went out to look at the streams in question.
Failure to explain decisions
The Forest Service completely failed to explain a number of decisions in the Plan. These failures include the lack of standards for old growth and for road closure and obliteration, the inclusion of standards with no explanation (such as the oil/gas/mining goals, objectives and standards), the failure to include eligible areas in the roadless inventory, and the rejections of staff experts’ suggestions.
In applying the arbitrary and capricious standard, a court must determine whether the “decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). A court cannot substitute its own judgment for that of the Forest Service. Id. A court considers an agency decision arbitrary and capricious if “the agency ... relied on factors which Congress had 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.” Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir.1997) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)).
In Lands Council v. Vaught, 198 F. Supp. 2d 1211 (E.D. Wash. 2002), the court held that NEPA requires a description of methodologies relied upon; an EIS was inadequate because it didn’t disclose things left out of the methodology for determining sediment loading. Descriptions that are too general are not adequate. Also, the failure to disclose data for sediment yield and peak flow predictions for first six years of the project was invalid.
NEPA mandates that agencies take a “hard look” at environmental impacts, NEPA prohibits reliance upon conclusions or assumptions that are not supported by scientific or objective data. Citizens Against Toxic Sprays, Inc. v. Bergeland, 428 F.Supp. 908 (1977). “Unsubstantiated determinations or claims lacking in specificity can be fatal for an [environmental study] .. Such documents must not only reflect the agency’s thoughtful and probing reflection of the possible impacts associated with the
185 proposed project, but also provide the reviewing court with the necessary factual specificity to conduct its review.” Committee to Preserve Boomer Lake park v. Dept. of Transportation, 4 F.3d 1543, 1553 (10th Cir. 1993). NEPA’s implementing regulations require agencies to: “[I]nsure the professional integrity, including scientific integrity of the discussions and analysis in environmental impact statements. [Agencies] shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement.” 40 C.F.R. § 1502.24 (Methodology and Scientific Accuracy). In Idaho Sporting Congress v. Thomas, the Ninth Circuit addressed the issue of agency expert opinion of scientific data in the NEPA context. In the case, the Forest Service relied on the scientific opinion of its hydrologist in assessing the potential impacts of several timber sales on water quality in an EA. The Court held:
“Since [the EA] relies solely on Forest Service hydrologist expert opinion, a successful challenge to the [EA] would entail challenging his expertise and opinions, yet, this is the type of challenge we have found impermissible under arbitrary and capricious review. Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1992) (finding that an agency is entitled to rely on its own scientific opinion of data). As a result, allowing the Forest Service to rely on expert opinion without hard data either vitiates a plaintiff's ability to challenge an agency action or results in the courts second-guessing an agency's scientific conclusions. As both of these results are unacceptable, we conclude that NEPA requires that the public receive the underlying environmental data from which a Forest Service expert derived her opinion (citing for authority 40 C.F.R. § 1502.24)”
Idaho Sporting Congress, 137 F.3d 1146, 1150 (9th Cir. 1998). See also Siskiyou Regional Education Project v. Rose, 87 F.Supp.2d 1074 (holding an environmental assessment inadequate for lack of scientific support). Further, 40 C.F.R. § 1502.1 mandates that NEPA documents be “supported by evidence that the agency has made the necessary environmental analysis.” Consequently, the Forest Service has a duty to disclose the underlying scientific data and rationale supporting the conclusions and assumptions in the FEIS. Unsupported conclusions and assumptions violate NEPA.
To satisfy NEPA, the Forest Service “must explicate fully its course of inquiry, its analysis, and its reasoning.” Dubois V. U.S. Department of Agriculture, 102 F.3d 1273, 1287 (1st Cir. 1996). The United States Supreme Court had addressed the obligation of an agency to document its assumptions and conclusions in the record when making decisions otherwise within their discretion and held:
“There are no findings and no analysis here to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion. We are not prepared to and the Administrative Procedure Act will not permit us to accept such . . . practice. Expert discretion is the lifeblood of the administrative process, but unless we make the requirements for administrative action strict and
186 demanding, expertise, the strength of modern government, can become a monster which rules without practical limits on its discretion.”
Burlington Truck Lines v. United States, 371 U.S. 156, 167 (1962). The Ninth Circuit, in a mining case, also emphasized NEPA’s purpose as “[obviating] the need for such speculation by insuring that available data is gathered and analyzed prior to the implementation of the proposed action.” Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1179 (9th Cir. 1982) (emphasis added).
187 12. New Oil and Gas and Mining Goals, Objectives and Standards added.
A number of goals, objectives and standards added without public notice and comment. New goals, objectives and standards added for oil and gas exploration and drilling and for mining; basically, the whole section of the Draft Plan devoted to “minerals” was rewritten, all without public notice and opportunity for comment.
Goal 32 (Goal 30 in Draft Plan) was rewritten to require minerals and energy programs to be “in accordance with Washington Office policies”. New goals are 33 (exercise of private mineral rights will be respected) and 34 (manage geologic resources to provide multiple public benefits).
New standards are 32.1 (“Applications for federal mineral leases, licenses, and permits are processed within 120 days.”), 32.2 (“emphasize authorizations of minerals needed for environmental protection, public infrastructure, flood protection, erosion control, and watershed restoration”), and 33.1(“Operations proposed under outstanding and reserved mineral rights are processed within 60 days and 90 days, respectively.”)
Other new standards are also FW-157 through FW-168 (Final Plan at 2-65 – 2- 66). FW-157 requires that the exercise of mineral rights trumps everything else. FW-158 requires that all projects and all consideration of special designations include a review of the status of private mineral rights. FW-160 requires that other management avoid, minimize or mitigate effects on geologic resources.
FW-163 is the Regional Forester’s consent (i.e., final decision) “to lease those lands on the Forest, which have not been statutorily withdrawn, subject to standard lease terms.” Thus, FW-163 fully opens 585,394 Acres (87.9%) of the National Forests in Alabama to mineral leases. “For energy leasable minerals (oil, gas and coal), the Revised Forest Plan makes both the land availability decision and the decision to lease.” (FEIS at 3-59.)
FW-165 permits coal mining operations on the National Forests in Alabama for the first time. The word “coal” does not appear anywhere in the Draft Plan. Neither the DEIS or FEIS discuss impacts from coal mining anywhere, in complete violation of NEPA.
These additions of new goals, objectives and standards does not comply with 36 C.F.R. § 228.102, which requires: (1) identifying alternatives, including that of not allowing leasing (§228.102(c)(2)); (2) project the type/amount of post-easing activity that is reasonably foreseeable (§228.102(c)(3)); and (3) analyze the reasonable foreseeable impacts of post-leasing activity (§228.102(c)(4)).
The Plan for the Kisatchie National Forest has an entire Appendix devoted to controls on oil and gas drilling and other mineral exploration. (See Kisatchie Plan, Appendix D (Aug. 1999).) At a minimum, such a set of limitations and requirements
188 should have been included in the Alabama Plan, after going through the proper public notice and comment.
189 13. Monitoring Problems.
For all MIS birds (excluding RCW), monitoring will be only by “Breeding Bird Survey occurrence trends for the species compared to available habitats.” (Final Plan Appendix F at F-2 – F-3.) Nothing shows that breeding birds surveys have scientific validity; there was no analysis at all under NEPA to show that they are valid in any way.
Fish communities and other aquatics will only be monitored by tracking “changes in physical and chemical habitat quality within at least 3 representative reaches of each physiographic province and/or river basin.” (Final Plan, Appendix F, at F-5.) Three streams that are impacted by management activities will also be monitored and compared to the three representative reaches, but this leaves the vast bulk of the Forests unmonitored. Also, the monitoring only must occur “At least 3 sequential years within each 10 year period” and the reporting interval is “as available.” Thus, they can wait until seven years of management occur before they ever bother to do aquatics monitoring at all. This is arbitrary and capricious and violates NEPA and NFMA.
“Trends” in the amount of air pollutants and their effects on forest ecosystems will be measured “Once in a 10 year period.” (Final Plan Appendix F at F-5.) How will the agency get a “trends” from a one time measurement during the planning period? What are the current conditions and baselines?
Again, the CONF has a better standard for air pollution monitoring. The CONF plan requires monitoring for “Trends in the amount of air pollutants and their effects on forest vegetation, particularly ozone susceptible species” on an annual basis. (CONF Plan Appendix G at G-8.) Why does the CONF get this type of monitoring and the National Forests in Alabama do not? Such unexplained and arbitrary differences are illegal.
The law on compliance with the Plan’s requirements shows that this Plan is inadequate. The Eleventh Circuit ruled that the Forest Service must comply with Forest Plans, therefore, the Forest Service is now revising the plans so as to make them without enforceable standards. As the Eleventh Circuit held:
“‘courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.’ Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). Moreover, the Forest Service cannot ignore the requirements of the Forest Plan. As NFMA makes plain, ‘resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.’ 16 U.S.C. § 1604(i); see also Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (no deference due to agency interpretation that contradicts the regulation's plain language); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598,
190 84 L. Ed. 2d 643 (1985) (reviewing court may remand a case to the agency ‘if the record before the agency does not support the agency action [or] if the agency has not considered all relevant factors ...’).”
Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir. 1999). Thus, it is vital, and a NFMA requirement, that the Plan itself have actual monitoring requirements in it. The lack of formal monitoring also violates the National Forest Management Act of 1976 (NFMA), 90 Stat. 2949, as amended, 16 U.S.C. § 1600 et seq. NFMA requires Forest Plans to include guidelines that “insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land.” 16 U.S.C. § 1604(g)(3)(C)(emphasis added). The AL Plan violates this provision because the Plan does not require formal monitoring, and it certainly does not require “continuous monitoring and assessment in the field.”
191 14. Riparian and SMZ issues.
Riparian standards allow riparian areas to be changed on a project-specific basis; this is an end-run around the legal requirement for amending the plan when changing the area of a prescription. This will allow them to avoid NEPA compliance when making these changes. (AL Plan at 3-63.)
The agency has not calculated how many acres the riparian prescription takes out of the acres “suitable” for logging. Thus, they included these unsuitable acres in the estimate of suitable acres forest-wise and thus inflated the number of suitable acres. This is not NFMA compliance.
The analysis of cumulative impacts for all five revised Southern Appalachian National Forest plans is based entirely on the process paper “Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses.” The Forest Service used a model to estimate existing and future sediment loads in each 5th level watershed on the Forest. The agency then relied on an endemic fish study to conclude that sediment increases below certain thresholds have no effect on aquatic species. Both the sediment model and the fish study are based on numerous unfounded assumptions, are highly inaccurate and are not scientifically defensible.
Despite these fatal flaws, the Forest Service apparently used the alleged thresholds to develop the Watershed Condition Ranking (WCR). The process paper does not clearly explain how the ranks were determined. Overall, the paper is vague and does not clearly explain the data and methods used. Our ability to critique the agency’s analysis is further limited because we do not have the underlying data. We filed a Freedom of Information Act request with the Southern Region on March 30, 2004, requesting these and other records. The Forest Service has yet to provide the requested documents or even to make a decision on our request. We strongly object to the roadblocks thrown up by the agency which prevent us from obtaining highly relevant information relied upon in making the decision to adopt the revised plans for the Southern Appalachian National Forests. The agency must make this underlying data available to the public. Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998).
Even without this information, certain fundamental problems are obvious. The WCR generalizes existing and future watershed conditions into three broad categories based on the sediment load in the watershed: below average, average and excellent. Because the WCR is not predicted to change over the next decade, the agency concludes that cumulative impacts on aquatic species will be insignificant. The Forest Service cannot rely on the WCR because the rankings are based on the inaccurate and indefensible sediment model and fish study. Further, the WCR is no substitute for the thorough and well-reasoned analysis required by NEPA. The WCR is misleading, masks potentially significant impacts, and conceals the differences between the alternatives.
192 The agency’s approach fundamentally fails to incorporate or even disclose the existing scientific knowledge about the episodic movement of sediment through the stream system and how sediment loading affects aquatic species over time. The WCR is based on an estimate of the total sediment yield in each 5th level watershed over 10 years. This view masks short-term effects in smaller drainages which may significantly and adversely affect aquatic species.
The Forest Service also seems to justify its decision to proceed with the Plan based on the assertions that the agency’s contribution to sediment loads is comparatively small and that Forest Service activities do not affect conditions at the watershed level. The Sediment Yield Model and the WCR, however, grossly underestimate the Forest Service’s contribution to current and future sediment loads by failing to attribute sediment caused by USFS roads to the agency. This approach also conflicts with the Conservation Assessment of Freshwater Fauna conducted by the Southern Research Station, which identifies biodiversity “hotspot” watersheds where agency activities may place aquatic species at high risk. Conservation Assessment of Freshwater Fauna in the Southern National Forests, USFS, Southern Region, ed. Leigh A. McDougal, et al., August 2001, at 7 (“the Conservation Assessment”). Appellants submitted extensive comments challenging the adequacy of this analysis, but the FEIS fails to resolve these significant problems and fails to respond adequately to our comments.
In the FEIS, the agency removed the factors used to falsely elevate the WCR (previously the Watershed Health Index or WHI) and assigned a rank to each watershed on the forest, regardless of the percent of NFS land in the watershed. This is a positive first step but it does not resolve the fundamental flaws with the WCR and its underlying data, nor does it resolve our concerns with the use of the WCR as a substitute for the cumulative impacts analysis required by NEPA. The agency has not adequately addressed our comments on this issue, despite its obligations to do so. See 40 C.F.R. §1503.4.
The Watershed Condition Ranking Is No Substitute For The Analysis Required by NEPA.
The WCR purports to describe the current condition of the 5th level watersheds on the Forest and to predict the cumulative impacts on these watersheds over the next decade. The WCR ranks the watersheds on the Forest as below average, average or excellent and then predicts the rank in 10 years. Because none of the ranks change, the Forest Service concludes that cumulative impacts will not be significant. The WCR however is misleading, arbitrary and is no substitute for the full cumulative impacts analysis required by NEPA.
a. The WCR Is Unrelated to the Actual Conditions In these Waters.
According to the WCR, only six watersheds are in “below average” condition; the majority are in “average” condition, with four “excellent” watersheds. (AL FEIS at 3-42- 44.) The use of the terms “excellent” and “average” (suggesting satisfactory) suggests
193 aquatic systems are in acceptable or even superb condition. This characterization of watershed condition is not consistent with known facts: streams are currently loaded with sediment hundreds or thousands of times over baseline conditions and aquatic species are at high risk. These ranks fail to accurately describe conditions and are seriously misleading to the public. Only reference or baseline conditions should be described as “excellent.”
The process paper suggests that the WCR may be adjusted to reflect actual conditions based on local data from species inventories or monitoring. Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses at 7. Clearly the WCR was not adjusted to reflect actual conditions, even when the FS already had the information.
The authors of the process paper and the Forest Service’s own scientist warned the agency not to rely completely on the WCR to assess the impacts of the Plan. The process paper states “the application of the sediment model and associated WCR should not be taken as absolutes. . .” Sediment Yield at 7. Mel Warren of the Southern Research Station stated:
“I am also concerned that the coarse-filter approach will be applied, all or nearly all species declared safe and secure (or beyond FS ability to mitigate), all (or nearly all) watersheds rated in excellent (or average) condition, and then, nothing else will occur, since all is “well” with aquatics because the coarse-filter said so. Overall, that is the message that one could come away with from the Chap. 3 sections. . . . In my opinion, it is appropriate to use a coarse-filter approach knowing its limitations and recognizing that the filter needs to be “ground- truthed” by each Forest. Now, the limitations are somewhat guessable, but not in a highly defensible manner. The real strength, sensitivity, and utility of the coarse-filter applied here cannot be known until “on-the-ground” data is compared with coarse-filter indications.” Warren at 1-2.
Despite this warning, to Appellants’ knowledge the Forest Service did not verify the conclusions drawn from the WCR before making a decision. Nor did the Forest Service disclose the recommendations and criticism of its own experts, as NEPA requires.
The Response to Comments criticizing the WCR and the underlying fish study claim that “fish data” and a “subsequent model” “from Virginia” support the fish study. However, this data is “currently being analyzed.” First, the post-hoc consideration of data cannot be used to shore up an inadequate NEPA analysis. This data must be analyzed and disclosed to the public in a supplemental EIS before decisions are made. Second, this re-analysis was apparently conducted in response to comments questioning the study. An internal document not disclosed to the public does not meet NEPA requirements for responses to comments. Center for Biological Diversity v. USFS, 349 F.3d 1157 (9th Cir. 2003); Pennsylvania Protect Our Water and Environmental Resources v. Appalachian Regional Commission, 574 F.Supp. 1203, 1219-20 (M.D. Pa.
194 1982); see also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir. 1980) (agency must make response public so information continues to flow).
b. The Ranks Are Arbitrary.
The example provided in the Sediment Yield paper shows that the range for the WCR rankings is different for each watershed. These arbitrarily shifting ranges have caused one of the three most heavily laden streams in the Jefferson, carrying a sediment load of 5,300% of baseline, to be ranked Average. (JNF FEIS at 3-39.) According to the table in the Sediment Yield paper, this stream could have been ranked Excellent, as the upper range for Excellence in this watershed is 15,170% of baseline.
The Forest Service does not explain how it determined the upper range for each rank, despite Mel Warren’s questions about how the ranks were determined. Warren at 6.
This example also suggests the ranking adjustment factors are still in use, despite assurances in both the paper itself and the Response to Comments that these factors are no longer in use. For example, one watershed in the Upper Levisa drainage is still listed as Average although it carries a sediment load of 4,964% of baseline and the Below Average range starts at 4,700% of baseline. JNF FEIS at 3-39; Sediment Yields and Cumulative Effects.
c. By Averaging Sediment Loads Across the Watershed And Over A Decade, The Agency Underestimates Short-Term Impacts In Smaller Drainages Which May Have A Significant Cumulative Impact.
The point of cumulative impacts analysis is to consider the combined impact of incremental effects. By totaling sediment yield across the watershed and averaging the yield over 10 years, the Forest Service fails to recognize the episodic way sediment moves through the stream system and fails to recognize the cumulative impacts within smaller drainages.
The Forest Service’s analysis in this FEIS is remarkably similar to the inadequate analysis in Pacific Coast Federation of Fisherman’s Ass’ns v. NMFS, 265 F.3d 1028 (9th Cir. 2001). While an analysis of watershed health is crucial to accurately evaluating the effects of proposed activities, the effects of these activities on smaller scales cannot be ignored. As the Ninth Circuit recognized in a similar case, this analysis “does nothing to restore habitat over broad landscapes if it ignores the cumulative effect of individual projects on small tributaries within watersheds.” Id. at 1036. The watershed scale cannot be used to mask impacts to certain aquatic habitats or aquatic species in smaller sub- watersheds. See id. The watershed scale “appears to be calculated to ignore the effects of individual sites and projects.” Id. The FEIS’s “disregard for projects with a relatively small area of impact but that carried a high risk of degradation when multiplied by many projects and continued over a long time period is the major flaw” in the FEIS. Id. at 1036.
195 Averaging impacts over 10 years ignores the damaging effects of short-term spikes of sediment on fish and other species. See Pacific Coast at 1037 (The agency “failed to adequately assess the short term impacts of” planned agency actions.). Just like the NFMS in Pacific Coast, the Forest Service cannot “assume away significant habitat degradation.” Id. Once delivered to a stream, sediment may persist for years, decades or centuries, depending on the amount. Sediment may accumulate in upper stream reaches and then be delivered downstream in a single storm event, causing damaging pulses of sediment.
The agency also averages sediment yield across the 5th level watershed. This falsely suggests that sediment will be evenly distributed in comparatively small amounts across the watershed. In reality, Forest Service activities are often affect the smaller headwater streams on the forest. While this sediment will eventually be delivered to larger streams, the impacts on headwater streams and the species they support must also be examined. By averaging sediment yield over the watershed and over ten years, the agency ignored the intense, short term, localized impacts resulting from Forest Service activities (especially road-building) in smaller sub-watersheds. These concentrated spikes in sediment can have serious adverse impacts on species.
The agency’s approach is especially inadequate with respect to aquatic T&E species, especially species other than fish, which may be affected by the projected increase in sediment. These species are often isolated in just a few tributaries and are vulnerable to local extinctions. Despite the recognition that sediment is a “significant stressor” to these species when watersheds are ranked average or below average, the FEIS concludes that sediment is not a significant stressor on NFS lands and therefore the risk to species on NFS lands is low.
This assertion is not justified because the WCR does not consider trends in abundance, therefore the Forest Service has no support for its claim that the agency is maintaining viable populations on the forest. This “analysis” is not sufficient to meet NEPA requirements and is especially insufficient under the substantive obligations of the ESA. The Forest Service must evaluate its ability to affect species downstream of the forest, especially its impacts on federally-listed T&E species.
The Forest Service seems to rely on this analysis to conclude that the incremental increases in sedimentation caused by its activities are insignificant at the watershed level. This argument has been discredited by the courts. Pacific Coast Federation of Fisherman’s Ass’ns v. NMFS, 265 F.3d 1028 (9th Cir. 2001). As discussed below, this assertion is arbitrary because the agency fails to consider the impacts of its own roads. Moreover, in NEPA cumulative impacts analysis, the size of the increase in sediment caused by the Forest Service is not the only factor determining the significance of its impact. The imperilment and extinction of aquatic species is usually not observable nor cataclysmic; rather it is incremental, the result of multiple human impacts each of which may be small but cumulatively significant, especially when repeated over time. Conservation Assessment at 30. “Even small shifts in environmental conditions, such as those induced by anthropogenic impacts, may alter habitat suitability or food availability
196 enough to extinguish specialist populations” (Angermeier, 1995). Total extinction is often preceded by local loss of populations. Conservation Assessment at 30 (citing Angermeier 1995). As discussed above, the agency’s analysis does not adequately consider the impacts of numerous projects carried out in smaller drainages multiplied over a long period.
The proper evaluation should identify the impact of the increased sediment on the species in light of the existing increases from other sources in the watershed. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998). Even a comparatively small increase could constitute a significant cumulative impact considering the already heavily silted stream conditions and already distressed, sometimes non-reproducing, populations.
d. The WCR Does Not Provide A Clear Basis For Choice Among the Alternatives.
Contrary to NEPA requirements, the cumulative impacts analysis is not “useful to a decision-maker in deciding whether, or how, to alter a program to lessen cumulative impacts.” Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298-99 (D.C. Cir. 1988). The present and estimated future WCR is the same under all alternatives, despite the varying levels of logging and road-building under each alternative. Even the process paper recognizes that the WCR “should not be taken as absolutes but as a method that can describe the effects from a range of alternatives and suggest where a greater risk with respect to water quality and aquatic biota exists.” Sediment Yields and Cumulative Effects for Water Quality and Associated Beneficial Uses at 7. Instead, the WCR is used to suggest there is no risk at all in most watersheds, under any of the alternatives.
The FEIS suggests there are significant differences among the alternatives provided. The sediment yield data and the WCR show that either the agency has not truly provided a range of alternatives for the protection of aquatic species or the model is not sensitive enough to show these differences. Either way, the agency has failed to meet its NEPA obligations.
The WCR does not break down the contribution of each planned Forest Service activity to the projected increases in sediment. The Response to Comments failed to address this significant issue.
The Forest Service does not estimate the current and future impacts of Forest Service roads. Although the sediment yield model estimates sedimentation from roads in each watershed, the model groups all roads together and does not attribute the sediment flowing off Forest Service roads to the agency. Thus, the estimated increase in sediment caused by agency activities does not include the ongoing and increased future sediment caused by Forest Service roads.
Further, it appears that the model did not even consider all roads. Road mileage in each watershed was derived from 1995 U.S. Census data. This data may not include
197 all existing Forest Service roads. First, this data is now nine years old. Second, this data pre-dates the December 2003 completion of the Roads Analysis for Plan revision. Even if the roads analysis is somehow factored in, the analysis only covers levels 3, 4 and 5 roads. There is no evidence that the sediment yield process paper and the FEIS effects analysis considered the ongoing impacts of every existing Forest Service road in these watersheds. This may also be a problem with respect to trails, since those which are not used were deleted, even though, for example, closed ATV trails may still be contributing sediment to streams. The agency’s failure to consider the massive ongoing and future impacts of all Forest Service roads is a clear NEPA violation.
Thus, by not breaking out Forest Service roads and by not considering all roads, the sediment yield model overestimates the existing condition of these watersheds and underestimates the Forest Service’s current and future contribution to this condition.
The WCR then does not actually describe the effects of the alternatives and provide a basis for comparison, but rather conceals the differences among alternatives. This analysis does not provide a “clear basis for choice among options by the decision- maker and the public.” 40 C.F.R. § 1502.14. Further, the agency failed to consider how it might “avoid or mitigate adverse impacts or enhance” water quality on the forest. See 40 C.F.R. § 1502.1.
e) The Forest Service Ignored and Did Not Disclose the Recommendations of its Experts.
Not only did the Forest Service fail to verify the WCR and its underlying data before making a decision, but the agency has failed to set up a useful monitoring program and to require watershed analysis which would test the agency’s assumptions about the Plan’s impacts on water quality. The Profile recommends “that the assumptions of these models be tested over the course of the forest plans to provide managers and decision makers with the information needed for maintaining or restoring the health of watersheds and aquatic communities.” Profile at 6. The agency however used the study to make long-term decisions regarding the management of these species, without implementing a useful monitoring program. Moreover, the agency has failed to “ground-truth” the model and the assumptions of the Profile, although the agency’s own scientists have urged it to do so. Warren at 1-2. The Forest Service’s total reliance on this study to make management decisions is unfounded. The FEIS is inadequate under NEPA for its failure to disclose the implications of proceeding with the Revised Plan based on these assumptions and without sufficient information.
The Forest Service has not used the WCR as a guide to set goals and objectives. Other than prioritizing a few roads for maintenance, there are no standards for the management of the watershed “Management Areas.” There are no clear standards designed to protect the most crucial watersheds and to improve conditions in the most impaired. The EPA advised the Forest Service to establish specific measures to protect and restore species in “Average” and “Below Average” watersheds, including establishing goals for the protection of T&E species and choosing aquatic MIS. The
198 Forest Service did not respond to the EPA’s comments or to our comments asking that the Forest Service explain why it favors some species over others.
Second, contrary to the recommendation of the Profile, there are no clear monitoring requirements to verify the validity of the effects analysis or even to conduct more detailed watershed analysis. Especially without any aquatic MIS, the Forest Service cannot verify whether its activities are having the anticipated effect.
The Sediment Yield Model Is Not Accurate And Underestimates The Sediment Yield.
As explained above, both the existing and future watershed rankings are based on the sediment yield model, which grossly underestimates the amount of sediment attributable to Forest Service activities. In addition, the model is based on unfounded assumptions and insufficient information which also skew the results toward lower sediment yield.
a. The Model Is Only Accurate To Within Plus or Minus 50%.
The entire point of the model is to estimate the amount of sediment generated in these watersheds. Yet “predicted runoff or erosion value – by any model – will be, at best, within plus or minus 50 percent of the true value.” Determining Sediment Coefficients for Roads, ATV Trails, and Firelines (emphasis added). In all likelihood, this alone would render this paper unpublishable in a peer-reviewed journal. This is simply not the “highly accurate” information NEPA requires.
Further, the model is only a very coarse filter. The model used a map scale of 1:100,000 to map stream miles in the watershed. This scale may only identify about one- seventh of the entire stream network. The broad land use categories used by the model also inexplicably ignored forested wetlands by classifying them as forests. Forested wetlands function as wetlands and should be classified as such (Mitsch, W.J. and J.G. Gosselink. 1993. Wetlands. 2nd ed. John Wiley & Sons, Inc. NY).
b) The Model Relies On Numerous Unfounded Assumptions.
The model relies on numerous unsupported assumptions which only increase its inaccuracy and unreliability, including:
All roads are graveled. All roads are unrutted. Roads without functioning waterbars were treated as if waterbars were functioning, because the FS considered non-functional waterbars a-typical for these forests. Road gradients over 40% were treated as if they were 40%. Road segments over 1000 feet were calculated at 1000 feet. The model does not consider the proximity of ground disturbance to the channel.
199 Many forest roads are heavily rutted and have no properly functioning drainage systems, as documented by a report on sediment sources in the Chattooga River watershed, which Appellants consider highly likely to represent the condition of forest roads in the region. See Van Lear, DH, et al., Sedimentation in the Chattooga River Watershed, Technical Paper 19, Department of Forest Resources, Clemson Univ., at 21- 22, 28-30 (1995) (attached and incorporated by reference) (Documenting extensive ruts, gullies and washing on roads.). These and other assumptions all lead to an underestimate of current and future sediment loads in these streams. There is no evidence that the results of this model were verified on-the-ground by sampling streams.
c) The Model May Not Include All Impacts.
It is not clear whether the estimated timber harvest in the model is limited to the ASQ or whether this includes estimated harvest from unsuitable lands. The Forest Service clearly intends to conduct vegetation management, including commercial timber harvest, on unsuitable lands, and the agency must estimate this and consider its impacts.
It is also unclear how much prescribed fire was estimated for the model. Regardless, the Plan commits to significant prescribed fire and vegetation management on unsuitable lands without disclosing and considering those effects in the FEIS and likely without including them in the sediment yield model.
We also have concerns about the accuracy of the estimates of sediment produced from activities on private lands. The model is a very coarse filter based on broad land use categories. Without the data submitted by the forests, we cannot determine whether the agency properly considered all activities and accurately estimated the impacts. The Forest Service must acquire all the information it can and reveal this information in the EIS, with meaningful analysis. 40 C.F.R. § 1502.22(a); The Lands Council v. Vaught, 198 F. Supp.2d 1211, 1245-52 (E.D. Wash. 2002). Cumulative impacts analysis must include the impacts of all activities in the watershed, including private land and public land under the management of other state and federal agencies. Activities on private land may include the management of private industrial forests and other private forests and natural resource extraction on private land. The Forest Service has a history of failing to adequately estimate the impacts of activities on private lands. Further, the large scale of the model increases the risk that the agency did not identify all impacts. We expect that a close analysis of the data entered into the Sediment Yield Model will reveal an inadequate consideration of these impacts.
The Endemism Sediment Profile Is Not Adequate Support For The Thresholds Used In The WCR.
The WCR and the entire cumulative impacts analysis are apparently based on an unpublished, not peer-reviewed study which claims that aquatic species can tolerate sediment loads several thousands of times above baseline (undisturbed) conditions without decreasing in abundance. These alleged thresholds were apparently used to create the WCR, although the exact process was not disclosed. The Profile is not reliable
200 science and is rife with assumptions which makes its use as a basis for forest management decisions arbitrary and capricious.
The Profile study provides very weak, if any, support for this notion of thresholds. Fundamentally, the study does not strongly support the basic premise that the proportion of endemic fish is reduced as sediment loads increase. Sediment Yields at 29 (“the predictive power of the model was low”). Further, the threshold concept depends on comparing data between regions, yet the study is used to predict impacts to aquatic species within regions (impacts at the forest level).
For example, the threshold notion depends on the Piedmont data. Without the Piedmont data, the gradually sloping relationship between sediment levels and endemic fish is no longer apparent. Figure 1, Profile at 8. Rather, the abundance of endemic fishes dramatically declines with the first few increments of sediment increase. Figure 1, Profile at 8. All of the data used in this study should be thrown out, but the Piedmont data is of particular importance because it is the lynchpin for the threshold notion. “No sediment-endemic relationship is apparent” in the Piedmont data. Endemism Sediment Profile, Mark C. Scott, J. Alan Clingenpeel, and Kevin N. Leftwich, undated, at 10. There are no reference sites for the Piedmont and the Piedmont data spans only a narrow range of very high sediment levels. Profile (undated) at 9-10.
This study simply does not adequately support the conclusion that aquatic species throughout the Southern Appalachians can tolerate very high sediment loads up to certain thresholds without significant adverse impacts. The suggestion that, in streams loaded with sediment hundreds of times natural amounts, aquatic species can perceive the difference between, for example, a sediment load of two hundred times natural conditions or five hundred natural conditions is unsupported. At these levels, as the authors admit, endemic species are already lost. Profile at 4.
The Profile and the FEIS also fail to consider the problems with using endemic fish to predict effects on other aquatic species. Endemic fish have a “patchy” distribution so they may not necessarily represent the distribution of other species. See Nathaniel P. Hitt and Christopher A. Frissel, A case study of surrogate species in aquatic conservation planning, In Press, Aquatic Conservation: Marine and Freshwater Ecosystems (UK).
Further, the Profile is based on already-existing fish collection data. It appears that the authors then used the Sediment Yield Model to determine the sediment load in streams where fish were collected. No attempt was made to sample the streams were species were collected. This is one of several glaring failures to verify this study and test its assumptions. Moreover, this skewed the results towards higher tolerance of sediment because highland endemics were collected upstream while sediment was modeled “to the mouth of the watershed.” This assumes that fish in small, often less silted headwater streams can tolerate the current sediment levels found in more-impacted main stem rivers.
201 The Profile draws conclusions based on data not supported by the scientific method, including:
The method of fish collection was not uniform. Some regions were not well-represented in the collections. It is likely that truly impacted watersheds in the Blue Ridge were not represented in the fish collections. There were no reference conditions for the Piedmont.
Some of these assumptions and gaps were acknowledged in the study. However, others were ignored, for example, the relevance of modeling sediment to the mouth of the watershed. This study is not the high quality information required by NEPA.
Nowhere in the process paper or in the FEIS does the agency disclose and consider the ramifications of making decisions based on these assumptions and inadequate data. One of the purposes of NEPA is to make information available to both decisionmakers and the public before decisions are made and before actions are taken. See 40 C.F.R. § 1500.1(b).
The authors advise that the study “technically” should not be used to measure the health of aquatic systems throughout the Southern Appalachians. Yet this is exactly how the agency uses the study. It was arbitrary and capricious to base the entire analysis of the cumulative effects of the revised management plans for five National Forests in the Southern Appalachians on this study.
The paper asserts the sediment modeling and endemic fish study is the best information available and the Forest Services relies on this assertion to justify its reliance on the study. However, the paper also states that “many of the uncertainties and problems in the data outlined here could be reduced or eliminated by setting clear objectives and properly conducting a field study with standard sampling protocols.”
The scientist from the Southern Research Station, Mel Warren, who reviewed the cumulative impacts analysis, also recommended that the endemics study and the WCR be “’ground-truthed’ by each Forest.” Warren at 1-2 (attached and incorporated by reference). Warren also recommended that the FS reanalyze the data underlying the Profile study. Warren at 6. The FS did not disclose these recommendations to the public, did not “ground-truth” the study, and provided no explanation for its failure to do so.
Based on the recommendations of the Profile authors and Mel Warren, it appears that the agency could have obtained more accurate information on the effects of sediment increases on endemic species. The Forest Service cannot justify moving forward with management activities which it admits will adversely affect aquatic species without more definitive information. See Neighbors of Cuddy Mountain, 137 F.2d at 1380.
Mel Warren also asked why the FS relied on this new and unproven study which only considers two factors (endemic fish and sediment) when the IBI (Index of Biological
202 Integrity) has 10 or more metrices and has a “solid body of peer-reviewed literature validating it usefulness.” Warren at 3.
The Response to Comments Is Inadequate.
The Forest Service did not adequately respond to the numerous comments regarding the cumulative impacts analysis and the WHI (now renamed the WCR). As mentioned above, many comments were ignored, including concerns regarding the accuracy of the model and the endemic fish study. Further, many of the “responses” are not responsive
The response fails to meet NEPA requirements that the agency:
“give more than cursory consideration to the suggestions and comments of the public in the preparation of the final impact statement. The proper response to comments which are both relevant and reasonable is to either conduct the research necessary to provide satisfactory answers, or to refer to those places in the impact statement which provide them. If the final statement fails substantially to do so, it will not meet minimum statutory requirements.”
Lathan v. Volpe, 350 F. Supp. 262, 265 (W.D. Wash. 1972).
The Response to Comments is also misleading, suggesting that the endemism study was conducted according to the scientific method, comparing results against reference or near-reference conditions. In fact, there were “no reference conditions” for the Piedmont region. Endemism Sediment Profile, undated, at 9.
The Forest Service has also failed to adequately address the recommendations and concerns of the EPA and the agency’s own scientist regarding impacts on water resources. The agency must fully disclose and seriously consider these concerns in the FEIS. Center for Biological Diversity v. USFS, 349 F.3d 1157, 1168 (9th Cir. 2003) (Forest Service required to disclose and respond to opposing viewpoints in the EIS itself).
The Riparian Prescription and Forest-Wide Standards Are Arbitrary And Capricious And Cannot Be Relied Upon To Mitigate The Impacts of Forest Service Activities.
The conclusion that cumulative impacts of Forest Service activities will be insignificant appears to be based on the assumption that the Riparian Prescription and forest-wide standards will prevent sediment delivery to streams and will even act to restore degraded watersheds. First, the assertion that these mitigation measures can improve conditions is totally unsupported. See Pacific Coast, 265 F.3d at 1037 (affirming finding the agency “failed to adequately explain its assumptions that passive restoration will adequately mitigate the adverse impacts of logging.”).
203 Moreover, the decision to adopt the Riparian Prescription is itself arbitrary and capricious and the Prescription cannot be relied upon to mitigate the adverse impacts of Forest Service activities. The agency has failed to adequately evaluate the effectiveness of Plan standards to mitigate adverse effects of management activities, as NEPA requires. The agency has arbitrarily and capriciously reversed course from original Regional direction regarding the Riparian Prescription and watershed protection without providing an explanation. Further, the agency has failed to adequately respond to comments by the EPA and others that riparian standards are not sufficiently protective.
These mitigation measures are not adequately analyzed. NEPA requires that mitigation measures be supported by “analytical data. . .” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998). A “’mere listing’ of good management practices” is not an adequate analysis of the effectiveness of mitigation measures. Id. The FEIS essentially uses the riparian prescription and forest-wide standards as mitigation measures, without demonstrating that they will be effective.
Moreover, the EIS does not examine the probability that BMPs and Plan standards will be properly implemented, or reveal the history of nonenforcement of BMPs, as the CEQ advises. 40 Most Asked Questions, 46 F.R. 18026. The ineffectiveness and lack of enforcement of BMPs/Plan Standards and other mitigation measures recently was documented by the USDA Office of Inspector General, who found that logging on National Forests often failed to follow mitigation measures, failed to conduct required water quality monitoring, and failed to prepare adequate riparian area analyses. U.S. Dept. of Agriculture, Office of Inspector General, “Forest Service Timber Sale Environmental Analysis Requirements,” No. 08801-10-At (January 1999) (attached and incorporated by reference). The poor implementation and effectiveness of BMPs generally was further documented in a report by a former Forest Service fisheries biologist and others, who wrote, among other conclusions, that “[t]he reality is that BMPs cannot protect aquatic resources from the effects of excessive development.” Espinosa Jr., F.A., et al., The Failure of Existing Plans to Protect Salmon Habitat in the Clearwater National Forest in Idaho, 49 Journal of Environmental Management, 205, 225 (1997) (attached). Espinosa also concludes that BMPs “do not deal with cumulative effects. . .” Id. The EIS must offer alternate measures that will be implemented if BMPs and Plan standards cannot prevent adverse impacts to water quality. See National Audubon Society v. Hoffman, 132 F.3d 7, 17 (2nd Cir. 1997).
The Forest Service should adopt standards which protect all riparian functions. The recommendations in the recent Review of the Scientific Literature on Riparian Buffer Width, Extent and Vegetation, by Seth Wenger for the Office of Public Service & Outreach, Institute of Ecology, University of Georgia, March 5, 1999 (attached), are routinely used by the Fish and Wildlife Service. The two most protective buffer options are dependent on slope and there is strong scientific support for buffer widths dependent on slope.
Also attached is a brief letter from Mr. Wenger and two colleagues regarding the riparian prescription in the Chattahoochee-Oconee Plan. Most of their concerns apply
204 equally or perhaps more so to the Alabama Plan. We incorporate their comments by reference and request that the agency follow their recommendations.
205 15. Failure to Consider Comments Adequately.
The sending of comments to the Content Analysis Team in Salt Lake City, Utah meant that the comments were not analyzed and responded to by agency personnel who have knowledge or familiarity with the subject matter—the management of these National Forests. The responses to comments did not adequately respond as NEPA requires.
“An EIS serves two purposes: (1) to provide decision makers with enough information to aid the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information.” Big Hole Ranchers Association, Inc. v. U.S. Forest Service, 686 F. Supp. 256, 260 (D. Mont. 1988). NEPA requires any federal agency preparing an EIS to consider each comment it receives and respond to issues raised by the commenter(s). To respond adequately, the agency may “[s]upplement, improve, or modify its analyses” or “[m]ake factual corrections.” 40 C.F.R. § 1503.4(a)(3)(4). If the agency finds the comments do not warrant further agency action, the agency must nevertheless “[e]xplain 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.” 40 C.F.R. § 1503.4 (a)(5) (emphasis added). The Council on Environmental Quality (CEQ) has discussed the procedures an agency must follow when responding to comments: “An agency is not under an obligation to issue a lengthy reiteration of its methodology for any portion of an EIS if the only comment addressing the methodology is a simple complaint that the EIS methodology is inadequate. But agencies must respond to comments, however brief, which are specific in their criticism of agency methodology.” The CEQ uses as an example a comment that specifically questions an agency’s “computational technique.” In such a case the CEQ states “then the agency would have to respond in a substantive and meaningful way to such a comment.” Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 48 Fed. Reg. 18,026 (Mar. 23, 1981).
Without having the responses to comments done by those agency personnel who know the places and issues involved in the National Forests in Alabama, the Forest Service violated the APA and NEPA.
A good example of how the agency failed to respond to comments and how the CAT in Salt Lake City was automatically incapable of making adequate responses is our following comment on the Draft Plan and DEIS:
“Why does the projected late-successional forest areas drop for the Bankhead from 10 years to 50 years (from 56% at 10 years to 51% at 50 years)? (DEIS at 3- 145, Table 3B.5.1-1.) Every other forest increases late-successional forest area, but the Bankhead will drop from its current 55%. Since restoration work will
206 occur on pine plantations that are all in younger age classifications, why is the late-successional area going down?”
The FEIS Response to Comments did not mention or respond to this comment at all. Agency personnel in Alabama familiar with the Bankhead, as opposed to agency personnel in Salt Lake City who had never been to the Bankhead, would have been able to answer our questions.
Here are some of the specific instances of the failures to respond to comments as required by law. These show how the CAT failed to cover forest-specific issues and comments:
Alternative W. Alternative C. Brushy Fork and Mayfield Creek as roadless areas. Brushy Fork as a W&SR. We requested that standards for old growth be added to the final plan, but no response or change was made. Quentin Bass material. Comments of eminent scientists in the region. Mel Warren’s comments. Agency Personnel comments and suggestions. MIS. PETS monitoring. FWS and our comments on greater buffers needed for protection of mussels. Need for goals, objectives and standards for road closure, removal and obliteration. Failed to respond to comments of renown scientists on PETS and MIS monitoring. Agency cannot ignore the comments of reputable scientists. Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1479-82 (W.D. Wa. 1992), aff'd Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993). EPA comments.
EPA commented:
“EPA is concerned about the fact that the preferred alternative currently allocated no acres to watershed restoration. At a minimum, it is recommend that the Forest Service partner with state and local agencies to assist with restoration of these waters, particularly those water bodies where the Forest Service may also be a contributor to the impairment or is a significant land-holder in these watersheds (e.g., Town Creek, Upper Bear Creek, West Flint Creek, Middle Choccolocco Creek).” (EPA Comment Letter at 3.)
In response, the Forest Service claimed, “No listed impaired water bodies are within any of the Forest Service’s proclamation boundaries, and those impaired water bodies within shared watersheds are listed as impaired for reasons other than Forest
207 Service activities.” (AL FEIS Appendix J at J-45.) In fact, West Flint Creek is listed impaired due to siltation, which is a pollutant which admittedly comes off Forest Service lands. “Sedimentation is the leading contributor to water quality degradation within the watersheds with Forest Service ownership. Forestry and agricultural practices are the leading causes for erosion and thereby sedimentation” (AL Final Plan at 2-15), and “Sediment increases can adversely affect fish productivity and diversity (Alexander and Hansen, 1986), degrade drinking water and affect recreational values. There may be other cumulative impacts such as increases in water yield as a result of harvesting methods.” (AL FEIS Appendix B at B-43.)
Opposing views must be reflected at the “appropriate point” in an EIS. 40 C.F.R. § 1502.9(b); National Wildlife Fed. v. National Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1156 n. 5 (W.D. Wash 2002); see also Friends of the Earth v. Hall, 693 F. Supp. 904, 924 (W.D. Wash. 1988) (holding that placement of agency criticisms of Corps plan in comments appendix was not the “appropriate point”).
“[W]here comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.” Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973).
“While it is true that NEPA ‘requires agencies preparing environmental impact statements to consider and respond to the comments of other agencies, not to agree with them,’ Utah Licensed Bev. Ass'n., 256 F.3d at 1038, it is also true that a reviewing court ‘may properly be skeptical as to whether an EIS’s conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise.’ Sierra Club v. United States Army Corps of Eng'rs, 701 F.2d 1011, 1030 (2d Cir. 1983).” Davis v. Mineta, 302 F.3d 1104, 1123 (10th Cir. 2002).
The Forest Service has not made planning documents available to the public in violation of NEPA and Forest Service Policy.
Appellants have sought access to the planning process records at various times throughout the planning process. Early in the process when the public was welcome to participate, planning documents were readily available through participation in the IDT meetings. During the public comment period for the Draft LRMP, appellants made FOIA requests and subsequently met with agency staff to obtain access to records within each staff member’s area of expertise. Records were provided when the Forest Supervisor Office staff had them available, however, even at that time at least one study cited in the DEIS was not available at the Forest Supervisor Office, in violation of NFMA. “Documents considered in the development of the plans shall be available at the office where the plans were developed.” 36 C.F.R. § 219.6. At that time at least, the FS granted Appellants fee waivers with their requests for documents. Subsequent to the
208 decision, however, the Forest Service has been unable and unwilling to provide information to Appellants, or have denied fee waiver requests, in violation of NEPA.
Since the decision, Appellants have requested documents supporting issues analyzed and developed in the draft then carried through the final LRMP, documents related to issues that were new in the final LRMP, and documents identified in responses to comments as responsive to the comment. Some responses to comments are paraphrased summations of the agency position on a generalization of the issue raised in the comment, providing little substantive information, and often referring to process papers and other documents in the planning record.
Appellants asked for copies of documents related to issues like these:
(1) Stage III suitability determination leading to the development of Table D-2 in Appendix D of the RLRMP;
(2) MIS selection process record referenced on page J-64 of the Appendices to the FEIS;
(3) use of prescription 10;
(4) the “approval” by the U.S. Fish and Wildlife Service of the Mussel Conservation Plan noted on page J-64 of the Appendices to the FEIS (#279);
(5) aquatic and terrestrial species viability reanalysis, including but not limited to the comments and peer review referred to on page J-64, of the Appendices to the FEIS, and the discussions with scientists referenced on page 23 of the Record of Decision; and
(6) reexamination of the riparian watershed analyses and direction, and modification of the watershed health index, including but not limited to the public comment and peer review noted on page 22 of the Record of Decision and the relationship between sedimentation and locally adapted species noted on page 23 of the Record of Decision.
These are examples of parts of the planning process record Appellants want to read. A FOIA request to the JNF Supervisor’s Office resulted in a prompt appointment to go to the office and look at records. Appellants then were shocked to learn that as late as March 2004, there still was no “whole” process record to review. While Appellants were provided some documents in electronic form, and access to view select documents gathered by the GW&JNF staff, Appellants have not been permitted to view the record in its entirety and copies of the documents Appellants themselves identified as responsive to the requests still have not been provided.
All of the documents requested have not even been located yet. Appellants have been informed that the record is not compiled to date, much of the recent documentation
209 is still stored only electronically, and that planning money was suspended once the decision was made and therefore there were no funds with which to devote staff time to compile a record. Jefferson NF staff had to retrieve some of the documents from the Regional Office in Atlanta. Forest Service staff was not able to easily and readily identify even the documents referenced in the comments as responsive to the comments. The Forest Service has not complied with agency guidance for maintaining planning record documentation and Appellants have not been adequately informed as required by NEPA.
The Forest Service Handbook directs:
GUIDING PRINCIPLES. The following principles govern planning records and their organization for both regional and forest planning. 1. Organize planning records in a manner that allows easy retrieval. 2. Date all records. Clearly indicate the author or person responsible for the content of each record or each item in a record and to whom the record was made available when appropriate. 3. Organize and index records according to the major actions in the planning process with subheadings by resource areas as appropriate or needed. Provide cross references to the National Forest Management Act regulations and to other resource areas or process actions as needed. Organizing records in this manner makes it easier to incorporate them by reference in the environmental impact statement as provided for in 40 CFR 1502.21.
FSH 1909.12 § 1.1 (emphasis added). There is no complete process record to date, organized or not, therefore the Forest Service has not easily retrieved and provided FOIA documents. Council on Environmental Quality regulations direct:
Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C.552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. Materials to be made available to the public shall be provided to the public without charge to the extent practicable, or at a fee which is not more than the actual costs of reproducing copies required to be sent to other Federal agencies, including the Council.
40 C.F.R. § 1506.6 (f).
210 16. Economics Problems
The Plan and FEIS do not comply with the NFMA and NEPA requirements to identify and consider economic issues and impacts. Further, there is no consideration of alternatives related to what little economics impacts discussion there is in the Plan and FEIS. As shown by the comments of Dr. Robin Gottfried, Professor of Economics at the University of the South, the economics analysis in the Plan and DEIS and FEIS are totally inadequate. Moreover, the wilderness supply and demand analysis is so inadequate as to be meaningless and is a clear violation of NEPA and NFMA.
The Plan and FEIS do not present a rigorous economic analysis of the various alternatives provided in the document. First, how the Forest Service derives the mix of goods and services (outputs) produced by each alternative is unclear. The credibility of the figures presented in the text is suspect.
Second, the methodologies used for valuation of these outputs are not discussed at all. This is a critical and crucial flaw. There is no discussion of demand and supply for wilderness or other recreation, for instance, let alone how the prices used in the net present values are obtained. Accordingly, the public and the decision-maker have no way of assessing the validity of the estimates because we cannot know how they were obtained.
Third, trends in inflation-adjusted prices of outputs need to be taken into account. They are not.
Fourth, the economic impact analysis is too vague as it stands to be economically meaningful.
Fifth, there is a serious flaw in logic concerning the timber program. On one hand the Forest Service says that reducing timber production on the Forests (NF) will cause no loss in timber, jobs, or income to the economy and will increase outputs of other outputs, such as recreation, that are more difficult for the private sector to provide. Yet, the Forest Service includes timber production as an element in several alternatives. As discussed below, given this statement, the economically rational conclusion is that it would be socially efficient to eliminate timber production on the Forest entirely and to increase the noncommodity outputs.
Sixth, the analysis fails to discuss the weights placed on nonpriced goods and services produced by the Forests and, as such, fails to inform the reader how Alternative I came to be the preferred alternative. There is no discussion as to how this was determined.
Finally, the analysis as it stands is neither a financial analysis nor an economic analysis. It is a mixture of both and, as such, cannot be interpreted in a meaningful way.
211 Detailed Economic Comments
Chapter 2
Alternative A emphasizes production of goods and services beneficial to the local economy and community. Note that this goal is seen as least important by survey respondents.
In the Alternatives B and I, where timber production is a byproduct of management to restore and maintain resources, forest structure, processes, habitats, etc., it's unclear how the SPECTRUM model can spit out a given output per decade. Unless the agency was able to use detailed GIS modeling in conjunction with detailed ecological data, combined with detailed plans as to how management would be tailored to each area, it would be difficult to come up with good numbers. SPECTRUM is intended to be a strategic, not an operational model, according to Appendix B. The draft Plan did not perform such a detailed analysis. More specifically, in Alternative I, how can silvicultural activities intended for ecological management necessarily provide a "stable supply of wood products"? Why would "some of the best sites that are currently accessible" need to be managed to provide high-quality sawtimber if this isn't the purpose of the alternative?
Along these same lines, it seems odd that, given the substantial difference in emphases between the alternatives, that land classified as suitable for timber production would vary so little between alternatives.
Chapter 3
p. 3D-459, 3rd paragraph: “Thus, travelers were not coming from outside the analysis area at a greater rate in 1996 to spend money in the local economy than in 1985.” This is not necessarily so. Without disaggregated data one cannot infer changes in size either of outflows or inflows from changes in the net flow. Just because tourism is a larger net importer in 1996 than 1985 does not imply that travelers were not coming into the analysis area at a greater rate in 1996 than in 1985. More could be coming in (more exports), but were swamped by a greater increase in imports, making the net imports larger.
The chapter notes that the area is growing economically, poverty is declining faster than the rest of Alabama, and that the National Forests are prime sources of recreation for people with strong incomes and jobs. It also notes that private lands increasingly are being posted, putting more pressures on National Forest land, while lands near National Forests are popular retirement locations. Section V. points out that southerners have measurably stronger environmental values and more restrictive commodity values for public than for private forests, and that most people feel environmental protection has not gone far enough, expressing a willingness to pay personally for collective environmental protection.
212 p. 3D-471: we really don't understand what the Forest Service is saying at the bottom of the page about economic impacts. What do you mean by jobs associated with local economic activity as opposed to being caused by them? More explanation about what you mean by the substitution effect would help here. IMPLAN assumes causal relationships via spending multipliers. So, are you adding to IMPLAN here some sort of other relationships? Or, are associated jobs induced jobs as given by IMPLAN? This is very unclear. The analysis in this section in totally unclear.
Recreation and Forest Service expenditures are the programs associated most with jobs. Timber comes in third. It would be helpful to have this discussed more. According to Table C.1.19 it looks like timber-related employment far exceeds employment from the other programs.
Is recreation and wildlife/fish really a constant throughout all alternatives (see also Table C.1.20)? This seems very odd, particularly given that the nature of these experiences will vary substantially between alternatives. Disaggregation of visitor days/expenditures by recreation type, and disaggregation of visitor days by recreation type for each alternative appears called for. That type of analysis certainly is not visible in the employment and labor income tables.
In Table C.1.19 all the entries in the last row should be negative – see Table C.1.21. Yet, the text immediately following the table states that “Alternative A has the largest increase while Alternative I, the preferred alternative has the greatest decrease.” No alternative has an increase in employment relative to the current.
p. 3D-463: How large a percentage is National Forest timber-producing land as a percent of total forest in the regions they are part of? As a % of AL forests? These data are important for understanding the relative importance of these lands in the landscape.
p. 3D-475: Very important point at top of page - that private forest owners likely could supply wood products in the local economy, so that there would likely be no loss of jobs or income from a reduced timber program, and that recreation does play a significant part in the forest's contribution to the local economy. If this is so, it would appear, then, that reducing timber production to zero would cause no loss to the economy. Yet, doing so would permit the increasing production of other nontimber products such as recreation, wilderness, water, wildlife, etc. It is important that the DEIS discuss how the local economy can supply the timber that the national forests provide.
The logical conclusion of this analysis is that reducing timber production to zero would be economically efficient; i.e., if, by ceasing timber production, other products can be increased at no loss to the economy (no loss of timber benefits nor of associated employment or income), ceasing timber production on national forests is an efficient and socially desirable policy. This is basic economics. Whether or not the harvesting and silviculture on these private lands would cause more or less environmental damage than on the National Forests is another question.
213 p. 3D-476, last paragraph. Once again, how can ecological restoration in Alternative I lead to a sustainable supply of wood products? Once ecosystems have been restored, why is timbering necessary when it is only a byproduct of restoration activities?
p. 3D-478: Present Net Value of Alternatives. There is next to no discussion in the chapter or in Appendix B of the analyses leading to this table. The existing discussion there is far too brief and sketchy. There is a reasonably good discussion of prices used (except for timber - see comment on p. B18), but too little discussion of the assumptions in the analysis and the issues raised by it.
For instance, trends in real prices should be taken into account. There is every reason to believe that the value of various natural experiences will rise over time as population and income rise while less and less natural areas are available to the public either through development or posting. This should be accounted for. Water production increasingly is an issue in the southeast as clean water becomes relatively scarcer. That price per unit should be rising in real terms also.
Note that, since timber is coming off of National Forest land, where the public prefers environmental values to commodity production (see above), there is a cost to the public of timbering on National Forest lands that does not exist when the timbering occurs on private lands. I.e., National Forest timbering and NIPF timbering are not perfect substitutes from a public perspective. As a result, net benefits from timber production are overstated in the present net value of the alternatives.
What about nonconsumptive values, such as existence and option values (the willingness of the public to pay for knowing that something exists, even though they never intend to see or use it, and the willingness to pay to have the option of sometime using the resource)? These play an important part in the valuation literature, but do not show up in the table. For other issues, see the discussion below on the relevant portions of Appendix B.
What about external (off-site) costs and benefits of National Forest policies, such as increasing or decreasing sedimentation in water? This is site-specific and should be dealt with. Will increased wildlife corridors, e.g., make survival of game and nongame species more likely? If so, this should be accounted for in valuation. These are a few of the types of issues not addressed in the analysis.
Note that this table is not a benefit-cost analysis of either the financial or economic type. The former would exclude all societal benefits/costs except for those directly affecting the FS. The latter would include only incremental effects of income generated, external impacts such as downstream impacts of more or less sedimentation, etc. Either way the table does not represent a benefit-cost analysis. As a result it is hard to interpret in any rigorous, economically meaningful way.
WILDERNESS - The discussion on p. 3-363, in combination with the section on recreation value in Appendix B, seem to be all there is with respect to wilderness. It is
214 totally inadequate as a planning process. Wilderness demand and supply need to be estimated independently of one another and compared. There is no discussion of this on p. 3-363.
Appendix B
In the SPECTRUM model how are costs and benefits (revenues) determined/derived? There is no discussion of this at all. This is an obvious and critical shortcoming in the DEIS.
p. B-13 states that the section provides insufficient information to replicate the analysis. It would indeed require a good bit more information to make replication possible - at least the IMPLAN coefficients used for each forest impact area, a county-by- county listing of the coefficients of those counties to serve as a comparison (should the DEIS have aggregated them in some way), FEAST outputs by alternative, and any further documentation on assumptions used to link IMPLAN and FEAST. Perhaps this information could be served on a web site.
The DEIS is unclear whether or not the county level IMPLAN coefficients were used; i.e., were the impacts of each forest calculated based upon county level coefficients for the surrounding counties? If not, what did the Forest Service actually do? This should be clarified. In other words, to what extent is the impact truly measured on a forest-by- forest basis? It needs to be.
Note that IMPLAN is of limited use. Should large changes in Forest policy occur, prices will change, leading to entry and exit of firms and people. The economy will make adjustments via prices should relatively large changes occur. In other words, IMPLAN assumes relative prices (prices of goods and services relative to one another) remain constant over time so that the same relationships between firms and consumers exist over time. However, in a dynamic economy this doesn't happen. Any large change in a forest plan could bring about substantial change and create a dynamic situation IMPLAN isn't equipped to handle. Although IMPLAN is standard methodology for impact analysis, it's limitations should be acknowledged.
“Impacts to local economies are measured in two ways: employment and total income. Employment is expressed in jobs. A job can be seasonal or year-round, full-time or part time. The income measure used was total income expressed in 2000 dollars. Total income includes both employee compensation (pay plus benefits) and proprietor's income (e.g. self-employed).” (Appendix B-14) Comment: Is this an increase or decrease in jobs? Why jobs? In benefit-cost analysis one would want to look at the increase/decrease in income generated. Is there a net gain or loss? People who are already employed. e.g., and earn a greater income as a result of a policy experience a benefit, the increase in income - not the entire new income. Similarly, only an increase/decrease in quality-adjusted full-time employment could be considered a result of a policy, the result measured in dollar terms in terms of income.
215 “Use of the Model - Hardwood and softwood saw-timber were processed through the sawmill industry. Hardwood and softwood roundwood were assumed to processed at the pulp mill, paper mill, the paperboard mill, or paperboard container industry, depending upon the make-up of the local economy. If a pulp mill existed the output was impacted at that level. In the absence of a pulp mill in the local economy it was assumed to go to the next level or processing, paper mill, and so on.” Comment: What does the DEIS mean by "assumed"? Did the planners assume the next level, or keep going until they found a plant at that level? But, that would be strange - why would National Forest wood necessarily be brought back to the area for further processing if it were sent out of the area for a previous stage of processing? [B-15]
“While some analysts may not include resident participation in local economy impacts because there may be substitution opportunities for local residents to spend their discretionary dollar, we decided to include resident expenditures in the local economy with the caveat that these expenditures were ‘associated’ with the impacts not ‘responsible’ for causing the impacts.” Comment: This makes no sense. Exactly who are the “residents,” what do you mean by “associated”? Including “associated” expenditures in with “responsible” expenditures creates causal confusion in their results. [B-15]
Why do you use a 4% discount rate when everything is in real terms? It probably should be closer to 2%.
“For each decade, an average annual resource value was estimated, multiplied by 10 years, and discounted from the mid-point of each decade.” (Appendix B-17.) You use 2000 timber and resource prices, and put everything in 2000 prices. Do you account for estimated changes in real prices over time? Effects of technology? Income growth?
“For the recreation and wildlife values, a conversion factor of 1.629 was used to convert from RVDs to ‘Visits’. This factor was determined by taking the weighted average of hours for a site visit on the Jefferson and NF in NC (from which we had specific NVUM data). The weighted average turned out to be 19.5 hours per site visit. 19.5 was divided by 12 (number of hours in an RVD) to get the value of 1.629 visits = to 1 RVD. This factor was multiplied by the 1989 price of an RVD. For example, Hunting had a 1989 price of $33.27. It was increased by a factor of 1.629 to equal $54.18. This price was then inflated by the Gross National Price Deflator to 2000 (a factor of 1.2887) to yield $71.22.” Comment: what about a more recent price of an RVD? How does this compare to travel cost and contingent valuation study values? This approach is seat of the pants. Also, because recreation is highly income elastic (sensitive to changes in income), it should rise in real (inflation adjusted) terms over time. Also, population is rising in the region, increasing the demand (and one would assume) the real value of recreation visits. Also, as pointed out above, there appears to be a high demand for recreation and natural values on the National Forests, one that can be expected to increase as population increases. But, as the supply of private recreation opportunities declines, the real price of recreation should rise even faster. The analysis fails to take this into account.
216 The table on B-18 says that it uses timber values derived from SPECTRUM for lands suited for timber, whereas the table gives values for timber from unsuited lands. It's unclear how these values are derived. Why are they different? Greater harvesting costs or what?
Until all these questions are answered and the economic analysis redone, there is no way the Plan and FEIS can be in compliance with NEPA and NMFA.
I. The Determination of Timber Resource Land Suitability and the Determination of the Allowable Sale Quantity Are Both Arbitrary and Capricious
The determination of lands suitable for timber production and the attendant determination of the Allowable Sale Quantity (ASQ) are illegal for a number of reasons. First the Forest Service failed to meet the requirements of the National Forest Management Act (NFMA) in determining lands suitable for timber production. Secondly, the Forest Service failed to meet the requirements of the timber resource land suitability process under Forest Service Handbook direction at FSH 2409.13, Chapter 20. Third, the Forest Service failed to ensure regional consistency in the process and criteria for suitable land determinations despite its oft-repeated intent to do so. Fourth, the required use of benchmarks under NFMA failed to serve their purpose in providing for a broad range of alternatives under the National Forest Management Act (NEPA). Fifth, the Forest developed a “unique way” to model harvest on unsuitable lands in the Spectrum modeling that likely introduced error in the suitability determination. Sixth, the data used was insufficient to calculate costs and revenues. Finally, the Forest Service failed to adequately respond to comments as required under the National Environmental Policy Act (NEPA).
The Determination of Suitable Lands Fails to Meet the Requirements of the National Forest Management Act
The National Forest Management Act (NFMA) sets forth the requirements the Forest Service must follow in complying with the Act at 36 CFR 219. The NFMA dictates a three-stage process for the determination of suitable lands at 36 CFR 219.14.
Stage I [36 C.F.R. § 219.14(a)] requires that all National Forest System (NFS) lands be reviewed and lands within the following categories be identified as not suitable for timber production: (1) the land is not forest land; (2) technology is not available to ensure timber production from the land without irreversible resource damage to soils productivity or watershed conditions; (3) there is not reasonable assurance that such lands can be adequately restocked; (4) the land has been withdrawn from timber production by an Act of Congress, the Secretary of Agriculture or the Chief of the Forest Service.
Stage II [36 C.F.R. § 219.14(b)] requires that forest lands other than those that have been identified as not suited for timber production [in 36 CFR 219.14(a)] “shall be
217 further reviewed and assessed prior to formulation of alternatives to determine the costs and benefits for a range of management intensities for timber production. For the purpose of analysis, the planning area shall be stratified into categories of land with similar management costs and returns. The stratification should consider appropriate factors that influence the costs and returns such as physical and biological conditions of the site and transportation requirements.”
Stratification of the land is done using GIS and the Spectrum model. Typically, six stratification layers are defined which are meant to divide the land into categories known alternately as Analysis Areas (AA) or Analysis Units (AU).
The stratification layers on the National Forests of Alabama were defined as:
1. Management Area (5 classes, defined as the individual national forest and two ranger districts within the National Forests of Alabama) 2. Unique Areas (defined as “discrete areas including Wilderness Areas, Wilderness Study Areas, Wild and Scenic Rivers, Botanical Areas, non-forested areas, Administrative sites, etc.”, Appendix, pg. B-5) 3. Management Prescriptions 4. Community Types (current overstory type and understory associations) 5. Overstory Age 6. Land Class (defined as “a broad classification that generally depicts those lands that are upland or riparian, non-productive, steep slopes, or have some limitation that would affect the manipulation of the overstory for management prescription objectives”, Appendix, page B-5)
Stratification occurs to define areas for Stage II analysis. The categories of land defined above in Stage I analysis should be removed from the total Forest acreage before stratification occurs. Therefore, the presence of Stage I land in the definition of the layers for Stage II analysis is curious. Designated Wilderness and non-forested areas in Layer 1 should not be stratified; they should have been removed in Stage I analysis. Likewise, non-productive land should not appear as a category in Layer 6; it too should have been removed at Stage I. Table B-5 on page B-11 of the FEIS Appendices adds further confusion, as it appears these lands were removed at Stage I. Why then do they appear in the Layer definitions?
The stratification layers themselves are confusing. Layer 2 “Unique Areas” appears to be a subset of Layer 3 “Management Prescriptions”. All of the areas defined in Layer 2 correspond to numbered management prescriptions in Layer 3. Layer 2 is therefore redundant and doesn’t serve to stratify lands. The presence of the word “etc.” in the definition gives pause as well. What other categories of land are included that are not disclosed? The documentation provides no clue.
Layer 6 includes a number of factors that might serve to stratify lands but there is not enough detail to determine how. What is the breakpoint for steep slopes (above a defined percentage is steep, below is not)? What distance is used for riparian zones?
218 How does upland stratify the land into areas with similar costs and returns? What other kinds of areas are defined by “some limitation” in Layer 6? Without this information the Forest has not fully disclosed how the land is stratified and how the determination of suitability was reached.
The test for the appropriateness of these stratifications is in how well they divide the land into categories with similar management costs and returns, and how well they consider factors influencing costs and returns such as physical and biological conditions of the site and transportation requirements. Unfortunately, so little information is presented about all aspects of the timber suitability process in the supporting documentation (including Appendix B and elsewhere) that it is particularly difficult to describe the extent of the errors.
Physical and Biological Conditions
As noted above, the stratification of lands for input into Spectrum is poorly described. While the layers provide some adequate stratification, there are a number of other physical and biological conditions that should have been considered that would have more effectively stratified the land into areas with similar costs and returns. First, slope plays an important role in determining harvest methods and therefore costs; yet the only stratification in Spectrum for slope was in Layer 6, where steep slopes are only mentioned. Without a description of a breakpoint for slope (stratification of lands above or below a certain percentage) or a range of slope percentages, the presence of “steep slopes” in Layer 6 is meaningless from a cost standpoint. Secondly, site productivity and scenery class often affect costs and returns. Given the redundancy in Layers these stratification identifiers could have been added without going over the threshold of six layers. The analysis was flawed in failing to consider slope and other significant features affecting costs and returns.
Transportation Requirements
NFMA also requires that stratification consider the transportation requirements that influence costs and returns. There is no mention of roads or transportation requirements as a factor in costs and returns anywhere in the documentation. This is a significant failing under the NFMA that must be corrected in order to accurately determine the lands suitable for timber production and the ASQ.
Costs and Returns
The application of cost figures in Spectrum fails to fulfill the requirements of the NFMA. Cost differences were only reported by Forest and District. Revenue variations were only reported by Forest and District. All other factors affecting costs and revenues were left out of the equation. Differences between logging systems were not estimated. Differences in treatment type costs and revenues were not used. The lack of cost differentiation by anything other than Forest and Ranger District fails to perform one of the central tasks of determining timber suitability under the NFMA. Analysis areas are to
219 be grouped by considering factors that influence costs and returns. These factors include terrain (slope), access (transportation requirements), and quality of product (vegetative community type, site index, age class). Without these cost and revenue differentiations the present net value of each analysis area cannot be determined as is required under the NFMA.
Costs must be subtracted from revenues to arrive at present net value (PNV). As long as those costs are not reported or represent only the least expensive cost total (by ignoring factors that drive up costs) the acres of suitable land will be overestimated. The excess of discounted benefits less discounted costs will be larger than it really is. ASQ will also then be overestimated as the number of acres of suitable land will be overestimated.
The definition of direct costs at 36 C.F.R. § 219.14 (b)(2) is explicit, “direct costs include the anticipated investments, maintenance, operating, management, and planning costs attributable to timber production activities, including mitigation measures necessitated by the impacts of timber production”. Table B-2 on page B-6 provides cost data by activity and Forest / Ranger District. Investments and planning costs do not seem to have been addressed. Mitigation measures also do not seem to have been accounted for in the cost calculations. This cost is especially tied to factors such as slope, proximity to streams, proximity to cultural resources, proximity to threatened and endangered plant and animal habitat, all of which can be stratified.
Designation of Management Prescriptions by Alternative in Spectrum
No explanation was given for how the management prescriptions were mapped by alternative in order to serve as a stratification layer. The other stratification levels rely for definition on some physical characteristic, such as community type or site index. For example, a predominant vegetative community type defines every area. Areas can be differentiated by whether slopes are above or below a certain percentage. The management prescriptions present a different case. Decisions were made on a much more ad hoc basis as to where to map the prescriptions based on the emphasis of the alternative. No explanation is given for how these alternative mapping schemes were derived and decided. The placement of lands in management prescriptions by alternative appears arbitrary and capricious.
Negative Present Net Value Areas
The requirements for Stage III of the suitability process are described at 36 C.F.R. § 219.14(c). In part, “Lands shall be tentatively identified as not appropriate for timber production to meet objectives of the alternative being considered if – (1) Based upon a consideration of multiple-use objectives for the alternative, the land is proposed for resource uses that preclude timber production, such as wilderness; (2) Other management objectives for the alternative limit timber production activities to the point where management requirements set forth in § 219.27 cannot be met; or (3) The lands are not cost-efficient, over the planning horizon, in meeting forest objectives, which include
220 timber production”. And at § 219.14(d), “Lands identified as not suited for timber production in paragraph (a) of this section and lands tentatively identified as not appropriate for timber production in paragraph (c) of this section shall be designated as not suited for timber production”.
In our comments on the draft plan and DEIS we asked if forest analysis units that were unprofitable to harvest (i.e. had a negative present net value) remained in the suitable base. The answer given in the response to comments section was as follows: “This depends on the objective function and the set of constraints being used. In determining suited acres, lands can have a negative NPV and still be a part of the suited land base. There are three “stages” to determining suitability, and a part of that analysis is based on meeting Plan objectives. If some lands with a negative NPV are needed to meet a particular objective (which would be entered into the Spectrum model as a constraint), then they could become a part of the suited land base” (FEIS, Appendix J- 196). We disagree with this response. The regulations at 36 C.F.R. § 219.14 are clear in that lands that are not cost-efficient should be tentatively identified as not appropriate for timber production. A negative net present value (NPV) analysis area is not cost-efficient because there is no excess of discounted benefits less discounted costs. The costs are greater than the benefits, hence the negative value. The three conditions at § 219.14(c) are “OR” clauses, not “and” clauses. Lands that are not cost-efficient must then (at § 219.14(d)) be designated as not suited for timber production. The NFs of Alabama determination of lands suitable for timber production must not include lands that are not cost-efficient.
Dr. J.E. de Steiguer confirms this reading of the requirements of the NFMA in his attached opinion incorporated herein.
The Planning Horizon and Long Term Sustained Yield
The forest reported a planning horizon of 200 years on page B-5. Yet in the response to comments section, the planning horizon was reported to be 50 years (page J- 186, Response 8-3). Tables in the FEIS also show a 50-year planning horizon. Fifty years is an insufficiently short planning horizon to guarantee long-term sustained yield requirements will be met. As such it is arbitrary and capricious and represents a violation of the NFMA.
221 Effects on Suitability and ASQ
All of the problems and failures to meet requirements under NFMA and Forest Service Handbook direction discussed in this appeal serve to overestimate the acreage of land suitable for timber production and thereby overestimate the ASQ. The Spectrum model relies on an accurate stratification of lands and an accurate differentiation of costs and returns in order to correctly calculate the largest excess of discounted benefits minus discounted costs. When lands are not adequately stratified and the full range of conditions that influence cost are not defined a number of things happen. The lack of cost influences tends to concentrate reported costs at the low end because the factors that drive costs higher are unreported in the model. This causes land that would have a negative present net value (PNV) to show as positive because the actual costs are underestimated. Thus, economically inefficient lands are underreported and the suitable land base is higher. Secondly, the calculation of the ASQ is overestimated because the suitable land base is inaccurate.
The Forest reports that all analysis areas have a positive present net value (PNV) (page B-11). Due to the errors noted above and the lack of specificity as to how the model was constructed and how costs and revenues were accounted for we doubt that this statement is accurate. The lack of compliance with the NFMA appears to have resulted in an overestimation of the suitable land base and the allowable sale quantity.
The Determination of Suitable Lands Fails to Meet Requirements under Forest Service Handbook Direction
The Forest Service Handbook at FSH 2409.13, Chapter 20 describes the Timber Resource Land Suitability Process. Chapter 20 mirrors the direction at 36 C.F.R. § 219.14 and provides additional guidance for Forest Service staff to follow in conducting suitability determinations. Where the direction in the NFMA and the Handbook are identical, a failure to meet the requirements of NFMA also means a failure to meet the requirements of the Handbook.
FSH 2409.13, 21.41 provides additional guidance for the process for assessing irreversible resource damage in Stage I. “An interdisciplinary team performs the test on irreversible resource damage. The team determines whether or not it is possible to carry out the activities involved in timber production on forest land without irreversible resource damage to soil productivity or watershed conditions. As a minimum, activities considered include access, harvesting, slash disposal, and regeneration”.
In the case of the National Forests of Alabama, this test was not fully conducted. In addition, we know from the stratification at Stage II that factors that affect irreversible damage such as the interplay between soil type and slope were not considered. Activities such as access, harvesting, slash disposal and regeneration do not seem to have been considered either.
222 The handbook also directs, “where appropriate, projected stumpage prices shall reflect expectations of price trends and variations in values associated with differences in product size and quality resulting from different management prescriptions” (FSH 2409.13, Chapter 22.3). The analysis reported only historical averages by Forest or Ranger District. No attempt was made to estimate price trends. The data presented does not even specify the years or the length of periods used to calculate averages for costs or revenues. Clearly, the requirements under FSH 2409.13, Chapter 22.3 were not met.
The Process and Criteria for Determination of Suitable Lands Varies Considerably Across the Southern Region in the Five Revised Forest Plans
The Southern Region (Region 8) went to considerable effort to ensure consistency at many scales in the five Forest Plan revisions. Direction was issued at various times in the revision process to guide consistency and to ensure review and corrections when consistency was found to be lacking. Regional guidance for the Ten Year Review of Lands Not Suited for Timber Production goes back to at least October of 1994. In 1998, IDT meetings were held to discuss how to conduct Stage II of the suitability determination (http://www.southernregion.fs.fed.us/gwj/lrmp/plandocs/981028_brief.html).
On August 5, 2002 the Southern Regional Office sent its review of Consistency in the Revised Southern Appalachian Forest Plans to each forest detailing problems to be corrected. Despite these efforts there is a considerable amount of inconsistency in the region in how the timber suitability process was conducted, how the Spectrum model was applied, how lands were stratified, and how costs were accounted for. These variations have resulted in differences in how lands are determined to be suitable and how the ASQ is calculated across the region.
Two areas of inconsistency are instructive. First the stratification levels by Forest. As discussed above the stratification problems within one forest fail to satisfy the requirements of NFMA. Taken together, these problems point to a systemic problem in adequately meeting requirements. The inconsistencies need to be addressed so that all lands in the region are determined to be suitable or unsuitable via the same process.
Stratification Levels by Forest
1 2 3 4 5 6 Chattahoochee Ecological Old Growth Seral Stage Management Slope Class Roading - Oconee Classification Community Prescription System Type Section Jefferson Old Growth Site Recreation Management Successional Geographic Community Productivity Experience Prescription Stage (Age Location Type and Scenery and Slope Class) Class Cherokee Management Community Scenic Class Site Index Slope Access
223 Prescription Type and Age (aggregated) Class NFs of AL Forest Unique Management Community Overstory Land Class (Management Area Prescription Type Age Area) Sumter District or Community Successional Management (none) (none) Ecological Code Class (Age Prescription Strata (Community Class) Type and Site Index)
Secondly, the Forests varied in the length of the planning horizon used. It is unclear why the Cherokee NF and the NFs of Alabama should differ in the length of the horizon. This length is important in determining the long-term sustained yield.
Planning Horizon by Forest
Forest Length of Planning Horizon Chattahoochee - Oconee 200 years Jefferson 200 years Cherokee 150 years NFs of AL 200 years and 50 years are both listed as the length of the planning horizon Sumter 200 years
The Benchmarks Fail to Define a Range of Alternatives
The NFMA requires the use of benchmarks “to define the range within which alternatives can be constructed” [(36 CFR 219.12 (e)(1)]. Though benchmarks were completed, there is no explanation of how these benchmarks were used to define a range of alternatives.
Modeling Harvest on Unsuitable Lands Introduced Error to the Suitability Determination
The Forest reports that it “developed a unique way of using Treatment Types (TT) to model timber volumes that contribute to long term sustained yield (LTSY) and ASQ; and to track those volumes that do not contribute to LTSY and ASQ” (page B-7, emphasis added). This “unique way” is not explained in sufficient detail to understand how it was constructed or used or the degree of accuracy the method allowed. It also appears to be unique across the Southern Region, as no other forest seemed to use this method. It is difficult to understand how changes in MGTEMP (management emphasis) could be introduced and accurately track unsuited volumes. Was there a different objective function used to solve a particular run? How were unsuited volumes reported in the
224 solution to ensure they weren’t combined or confused with suitable volumes? More details are needed. The Forest reports volume to be harvested over the 5 decade planning horizon, yet there is no explanation as to how these numbers were derived. Overall, it appears that this unique method introduced error into the modeling and determination of suitable lands.
Data Used Was Insufficient to Calculate Costs and Revenues
It is unclear how many data sources were used to calculate costs and returns in the analysis as no information on data sources was presented. In addition, information was not presented as to why this was the best or the most applicable data. The validity of the timber revenues and timber sale costs used in Spectrum cannot be determined because not enough information or data is provided to explain or justify their selection. The data used in Spectrum is reported as historical data, but the length of the time periods and years used are not specified. Additional information must be disclosed.
Failure to Adequately Respond to Comments Under NEPA
As discussed elsewhere in this appeal, the response to comments section (Appendix J, FEIS) as well as the other Appendices list the Process Papers contained in the project file as the source of answers to our questions. Yet a Freedom of Information Act (FOIA) request was necessary to even begin to attempt to access those answers and that request has still not been fulfilled. It is illogical and a violation of NEPA to ask for comments and questions and then deny access to the answer.
Remedy Sought
We request the Chief to direct the Regional Forester to withdraw his decision and to prepare a supplemental EIS which corrects the inadequacies in the FEIS discussed above so the Land and Resource Management Plan may be brought into compliance with the NFMA and NEPA. Specifically, the Forest must correct the inadequacies in land stratification and the calculation of costs and benefits to accurately determine lands suitable for timber production and the calculation of ASQ. The supplemental EIS must be released in draft form for public notice and comment before another decision is made.
II. The Determination of Economic Effects is Arbitrary and Capricious
The determination of environmental effects is arbitrary and capricious for a number of reasons. The Forest failed to analyze actual revenue sharing practices (fixed payments to counties) and instead relied on past practices and conditions in assessing economic effects. Secondly, the FEIS and Forest Plan fail to explain how priced benefits (other than timber) and non-priced benefits were evaluated and considered by the decision maker. Both represent violations of the requirement to describe the affected environment and assess effects to determine significance under NEPA.
225 A. Failure to Analyze Actual Revenue Sharing
Most of the information in the FEIS regarding revenue sharing payments – also called 25-percent payments – is incorrect and misleading. The majority of the discussion in Chapter 3 describes the revenue sharing program that was in effect until 2001: 25 percent of receipts from activities on national forest lands were paid to counties in which the national forests occur.
However, legislation passed in 2000, the Secure Rural Schools and Community Self-Determination Act, allows counties to continue to receive an amount equal to 25 percent of receipts from national forest lands, or an amount equal to the three highest 25 percent payments during 1986-1999. The Forest disclosed on page B-21, “the impact of the fixed payment was not calculated.” This despite the fact that all forest counties have chosen the full payment option.
Regardless, county payments based on the 25 percent system are included in the Appendix in Table B-30 (page B-38). It is illogical and misleading for the FEIS to ignore the fixed payment option when it (1) provides the most revenue to the counties, and (2) has been adopted by all the counties. Inclusion of the old data also serves to introduce a false range of effects into the alternatives.
B. Failure to Consider Non-Timber Priced Benefits and Non-Priced Benefits
The Forest failed to disclose how non-priced benefits were considered in the evaluation and decisionmaking process beyond a narrative in the Record of Decision. In addition, it failed to explain how the priced benefits such as recreational activities, mineral products and hunting and fishing revenues shown in Table B-14 on page B-22 were used in the assessment of effects of the alternatives, calculations of present net value and ultimately in the decision on the alternative chosen.
C. Remedy Sought
We request the Chief to direct the Regional Forester to withdraw his decision and to prepare a supplemental EIS which corrects the inadequacies in the FEIS discussed above so the Land and Resource Management Plan may be brought into compliance with the NFMA and NEPA. The supplemental EIS must be released in draft form for public notice and comment before another decision is made.
226 CONCLUSION
While the new revised plan does have a number of good points, the major problems and shortcomings shown in this appeal will prevent the new plan from providing proper and legal management for these precious and irreplaceable public forests.
Changes We Request Under 36 C.F.R. § 217.9(7)
1. We want the Plan changed to recommend the following areas as proposed wilderness: a. Oakey Mountain (Talladega)(6.080) b. Blue Mountain (Talladega)(4,800 acres) c. Cheaha A and B (Talladega)(954 acres) d. Rebecca Mountain (Talladega)(8,000 acres) e. Sipsey Headwaters (Bankhead)(6,000 acres) f. Brushy Fork (expanded) (Bankhead)(6,200 acres) g. Mayfield Creek (Oakmulgee)(4,000 acres) h. Bear Bay (Conecuh)(4,000 acres) 2. Brushy Fork will be analyzed as a potential Wild and Scenic River Corridor. 3. Old Growth standards will be adopted. a. All existing old growth will be protected. b. Mapping of the entire network of small, medium and large patches will be done prior to new projects that may impact old growth. 4. Oil and gas drilling and mining objectives, goals and standards that were added between the draft and final will be dropped and not adopted without a supplemental EIS with full public notice and comment and full NEPA analysis. 5. Specific PETS monitoring requirements will be added. 6. MIS will be added, including aquatic species. Specific requirements to meet 1982 regulations for monitoring will be added. 7. Goals and standards for identifying roads for removal and obliterations and for accomplishing those closures will be added. 8. Objectives, goals and standards for logging not related to valid restoration will be removed. 9. Other reasonable alternatives will be fully analyzed and considered. 10. A valid and scientifically sound economics analysis will be required. 11. The decision for the Final Plan and FEIS should be withdrawn until a supplemental EIS addressing all the shortcomings shown in this appeal can be prepared, circulated for full public review and comment and then finalized.
We request that the Chief rule that the Regional Forester failed to comply with the law as set forth in this appeal and order the changes requested above.
All communications regarding this appeal should be directed to undersigned counsel for all Appellants. All the appellants, through their undersigned attorney, are available to meet with the Regional Forester and his staff “to narrow issues, agree on
227 facts, and explore opportunities to resolve the issues by means other than review and decision on the appeal,” set out in 36 C.F.R. § 217.12(a).
Respectfully submitted,
Ray Vaughan Attorney for all appellants WildLaw 8116 Old Federal Road, Suite C Montgomery, Alabama 36117 (334) 396-4729 (334) 396-9076 (fax) [email protected]
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