APPEAL of DECISION NOTICE, GUNNISON RANGER DISTRICT Grand Mesa, Uncompahgre and Gunnison National Forests

APPEAL OF DECISION NOTICE, GUNNISON RANGER DISTRICT Grand Mesa, Uncompahgre and Gunnison National Forests

DOUBLE HEART RANCH, ON BEHALF OF LOCAL LANDOWNERS AND INTERESTED CITIZENS

APPELLANTS

Notice of Appeal, Statement of Reasons and Request for Relief Regarding the Geothermal Lease Nomination COC- 73584 EA and DN v.

CHARLES RICHMOND GMUG FOREST SUPERVISOR AND JOHN MURPHY GUNNISON RANGER DISTRICT

RESPONDENTS

NOTICE OF APPEAL

STATEMENT OF REASONS

AND RELIEF REQUESTED

DATED this 25 th day of March, 2011

Matthew R. Jones Double Heart Ranch 7500 County Road 887 Gunnison, CO 81230 Direct: (512) 635-7814 Fax: (214) 378-7501 Email: [email protected]

David Brown Ranch Manager: (970) 641-0690

NOTICE OF APPEAL

On February 10, 2011, Forest Supervisor Charles Richmond signed the Decision Notice for Geothermal Lease Nomination COC-73584. This is a Notice of Appeal of that decision pursuant to 36 C.F.R. Part 215. The Double Heart Ranch, Local Landowners, and a great many others use and enjoy the Tomichi Dome, and the surrounding lands covered by this decision.

Further, DH Ranch submitted comments at every stage of this process to every agency involved to be considered for this National Environmental Policy Act process. DH Ranch also attended every public meeting, even when notice was grossly insufficient and public comment was inappropriately restricted and prevented. This appeal is timely pursuant to 36 C.F.R. §215.14.

Appellant requests that the DN be withdrawn, a proper NEPA process be conducted, and a new decision of No Action be issued, protecting our public resources.

THE APPELLANTS

The Double Heart Ranch is a historic Colorado property wholly situated on or around the

Tomichi Dome and the property encompassed by this decision. DH Ranch consists of more than

9,000 acres and leases approximately 45,000 acres. DH Ranch employs more than a dozen cowboys, guides, and cooks each year, is home to several families, and has been in operation for over 110 years. Among the original ranches to settle the Gunnison area, the Double Heart remains a proud reflection of Colorado history, where herding cattle still takes place from the back of a horse.

The surrounding landowners manage resorts, hot springs, and recreational operations that rely on and exist solely in this pristine mountain environment. Thus, the Tomichi Dome provides an irreplaceable habitat for plants and wildlife and an escape from industry, noise, and

2 paved roads. The Tomichi Dome and surrounding terrain is consistently counted among

Colorado and the Rocky Mountain’s fantastic geologic formations.

The appellants have invested significant time, resources, and effort at each stage of the process by providing considerable input, research, analysis, tours, cooperation, and communications.

We incorporate herein, all of the points raised in our EA comments as specific appeal points.

STATEMENT OF APPELLATE REASONS

The EA and DN for the proposed Geothermal Lease Nomination of COC 73584 are based on flawed and/or inadequate information. Further, the Forest Service’s Proposed Action will violate multiple federal regulations and environmental protection laws, including, but not limited, to the National Environmental Policy Act and the National Forest Management Act. As established herein, the DN must be withdrawn and a No Action Order issued because the DN and project implementation plan violate these multiple federal statutes and regulations.

I. The DN Violates NFMA and NEPA

A) The DN failed to adequately implement design criteria and mitigation to protect sensitive species and ensure viability throughout the entire DN planning area.

According to U.S. Forest Service policy, the Forest Service “must develop conservation strategies for those sensitive species whose continued existence may be negatively affected by the Forest Plan or a proposed project.” 1 See FSM 2670.45. These strategies must contain

quantifiable objectives and must be adopted prior to implementation of projects that would

1 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 .” USFS Official Website (emphasis added).

3 adversely impact that species habitat. See FSM 2622.01, 2670.45. Here, the EA discussion of these measures is insufficient, and the DN fails to consider or implement any such measures.

This violates NFMA and NEPA.

Similarly, regulations promulgated to ensure such diversity mandate that fish and wildlife habitat be managed to maintain viable populations and the diversity of species throughout the planning area . 36 C.F.R. §§ 219.19, 219.27 (emphasis added). Here, the DN only accounts for national forest land and neglects to address or account for the tremendous impact the plan will have “throughout the planning area,” which also includes the hundreds of privately held and managed acres located in the DN planning area.

16 U.S.C. 1604(g) requires the promulgation of regulations that “provide for diversity of plant and animal communities” in the development and revision of Forest Plans. The 1982 regulations implementing NFMA provide specific direction concerning species viability when stating, “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.” 26 C.F.R. 219.19.

Moreover, Forest Service policy defines, “well distributed” as used by NFMA to mean,

“a population’s unceasing presence ‘throughout its existing range in the planning area.’” USDA

1983 (“Wildlife Resource Planning Assistance To the Payette and Boise National Forests,”

Rocky Mountain Research Center, USFS).

B) The DN will have an immeasurable impact on the protected Gunnison Sage Grouse (“GSG”) found throughout the entire DN planning area.

EA and DN acknowledge the severity of the GSG population, and the imminent listing of it on the endangered species list, but fail to render a No Action notice saying it will have no

4 effect. To the contrary, a No Action DN could delay, or negate, further development and exposure of these and other sensitive and endangered species. The GSG is currently listed on several global Endangered Species lists.

The EA did a thorough job of pointing out the GSG living and breeding areas and acknowledging that GSG Leks are primarily outside of the U.S.F.S. land, leading to the reasonable conclusion that these lands can be found on neighboring private lands, and additional territory proposed as property to be leased under Lease Nomination COC-73584.

i) The DN will have an immeasurable impact on other federally protected species found throughout the entire DN planning area.

Appellants raise similar challenges on behalf of each species listed within the EA and formally object to the absence of any conclusions or the mandatory analysis considering the

ND’s impact on these species. These species include, but are not limited to, the Canada Lynx,

Bald Eagle, Brewer’s Sparrow, Northern Goshawk, Boreal Owl, and the Pygmy Shrew. Each of these species live throughout the DN planning area but were not adequately considered.

II. The EA Violates NEPA

A) The EA failed to analyze an appropriate range of alternatives.

NEPA regulations require agencies to “rigorously explore and objectively evaluate all reasonable alternatives…” 2 Furthermore, “NEPA requires that federal agencies consider

alternatives to recommended actions whenever those actions involve […] unresolved conflicts

among alternative uses of available resources.”3 Thus consideration of alternatives is critical to

the goals of NEPA.

2 40 CFR 1502.14[a]. 3 42 USC 4332[2][E][1982].

NEPA documents discuss alternatives to the proposed action, to “provide a clear basis for choice among options by the decision maker and the public.” 4 The purpose of this requirement is “to insist that no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire project , or of accomplishing the same result by entirely different means.” 5

Furthermore, courts have taken federal agencies to task for stating a purpose and need so

narrowly that only the agency’s preferred alternative could meet it, thus subverting NEPA’s clear

requirement to “ rigorously explore and objectively evaluate all reasonable alternatives. ”6

NEPA further states that it is the responsibility of the federal government to use all practicable means to attain the widest range of beneficial uses of the environment without degradation or other undesirable and unintended consequences. 7

Here, the Forest Service did not undertake or meet its burden to consider alternatives.

Research clearly shows that the greatest possible benefit from the proposed geothermal

development would be miniscule compared to the potential damage to the sensitive population

currently using and enjoying the areas proposed for leasing and development. Even the EA

identifies a vast population of endangered and struggling wildlife species that are potential

victims to any exploration and development. Further, this risk of environmental catastrophe

greatly outweighs the greatest possible number of benefiting parties to a successful geothermal

power grid.

NEPA “guarantees that the relevant information will be available to the larger audience that may also play a role in both the decision-making process and the implementation of that

4 40 C.F.R. 1502.14; see also 42 U.S.C 4332(2)(E); 40 C.F.R. 1507.2(d), 1508.9(b). 5Environmental Defense Fund v. Corps of Engineers , 492 F.2d 1123, 1135 (5 th Cir. 1974) (emphasis added). 6 40 CFR 1502.14a. 7 NEPA, 42 U.S.C. 4231 Section 101(b)(3)) (emphasis added).

6 decision.” 8 In other words, it “prohibits uninformed—rather than unwise—agency action.” 9

Yet, the USFS and the BLM presented the proposed leasing and geothermal development as

“speculative” and “a power source we have very little information or research on.”10 Likewise,

“relevant information” was purposefully vague, and withheld in the original “Town Hall”

meeting, as well as from the “decision making process.” These failures clearly violate NEPA as

is emphasized below.

“NEPA ensures the agency…will have available, and will carefully consider, detailed

information concerning significant environmental impacts; it also guarantees that the relevant

information will be made available to the larger [public] audience.” 11 NEPA’s disclosure goals are “to insure the agency has fully contemplated the environmental effects of its actions” and “to insure the agency has fully contemplated the environmental effects of its actions and to insure the public has sufficient information to challenge the agency.”12 The lack of scientific or verifiable data indicating the appropriateness of the proposed action, or geothermal leasing in general, inhibits the public’s ability to challenge the agency’s determination that such use, and the amount of authorized use, is appropriate for the project area. Moreover, the process for determining the appropriateness of development and use of public lands is set forth in NFMA and is known as a suitability determination. NFMA calls for the consideration and analysis of

“economic and environmental consequences and the alternative uses forgone.” 13 If this analysis

resulted in the “stipulations” within the DN that called for restrictions on surface use,

8 Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348 (1989). 9 Custer County Action Ass’n. v. Garvey , 256 F.3d 1024, 1034 (10 th Cir. 2001). 10 Original “Town Hall” meeting presentation by BLM in Gunnison (2010). 11 Idaho Sporting Congress v. Thomas , 1998 WL 89066 (9 th Cir. (Idaho). (citing Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). 12 Idaho Sporting Congress v. Thomas , 1998 WL 89066 (9 th Cir. (Idaho). ( citing Inland Empire Public Lands Council v. United States Forest Service , 88 F.3d 754, 758 (9 th Cir. 1996)). 13 36 C.F.R. § 219.3.

Appellants request the same consideration on the lands bordering Federal Forest Lands, as they host the same sensitive species, economic, and environmental consequences.

Finally, the laws are clear that the Forest Service has an obligation to formulate and analyze alternatives. It is not the public’s responsibility to provide the alternatives or the analysis of the

alternatives. “Compliance with [NEPA] is a primary duty of every federal agency; fulfillment of

this vital responsibility should not depend on the vigilance and limited resources of

environmental plaintiffs.” 14 As the Seventh Circuit noted, “what other alternatives exist we do

not know, because the government has not looked.” And, “the existence of a viable but

unexamined alternative renders an environmental impact statement inadequate.” 15 (emphasis

added)

B) The EA failed to analyze past actions

The EA failed to provide acknowledgement and reporting of the results of past

geothermal testing around the Tomichi Dome, and the resulting decisions to forgo geothermal

power development due to the insufficiency of the resource. The Forest Service is required to

“disclose the history of success and failure of similar projects.” 16 This was not done and thus

violates NEPA.

C) The EA failed to analyze impacts of actions

The EA failed to provide sufficient analysis of the impacts of the proposed geothermal

development. The EA failed to provide information as to their exact locations, other than a

general map. It failed or remained very vague in providing information regarding soil properties,

14 City of Davis v. Coleman , 521 F2d 661, 671 (9 th Cir. 1975). 15 Alaska Wilderness Recreation & Tourism v. Morrison , 67 F.3d 723, 729 (9 th Cir. 1995).(emphasis added) 16 Sierra Club v. Morton , 510 F.2d 813, 824 (5 th Cir. 1975); National Wildlife Federation v. USFS , 592 F. Supp. 931, 943 (1984).

8 slope, vegetation, relations to homes, historic geological formations, ranges, streams, wildlife habitats, and breeding grounds, etc. There is no site specific analysis for any of the proposed geothermal development, and this violates NEPA. Furthermore, the stipulations calling for “no surface occupancy” and limitations on forest lands directly impair the equally fragile and important private lands surrounding the national forests. A DN condoning leasing at any level points and pushes future developments onto surrounding sage grouse leks, ranches, and basins at a more accelerated rate.

The EA does provide a clear understanding that geothermal leasing, followed by imminent development, provides for a future of significant degradation of current conditions, if not within the National Forest Land, certainly around it. Furthermore, the EA provides no rationale for the potentially catastrophic effects of such leasing and development aside from limited and speculative resource development. As has happened in all geothermal development sights to date, the public should be educated to expect fundamental change to or around the

National Forest Land, including those lands owned and or relied upon by Appellants.

Instead of educating the public and answering questions, the process so far has evaded public comment, and refused to honestly address concerns. While both “Town-Hall” meetings avoided and refused public questions and respective answers, the first meeting ended with a “5 minute break” announced by Marnie Medina, of the BLM directly followed by BLM and USFS employees hastily stacked chairs in order to usher out attendees before public outcry could occur.

The second “town-hall” session was announced on a Sunday night, via email, four days prior to the meeting. The BLM has been well aware that interested parties live and work out of the area, so the last minute meeting notice was grossly insufficient. The BLM refused to reschedule or

9 postpone the meeting even though requests for rescheduling occurred minutes after the notice was sent out.

The process has been conducted outside the spirit of NEPA, as even this very DN was posted for a brief 6 days before “expiring.” With a 45 day ticking clock for Federal Appeals, a mere 6 days is grossly inadequate to alert the public.

Geothermal Lease Nomination COC-73584 will cause more than just the geologic, biologic, and aesthetic loss and damage. The development that follows will certainly create economic loss, to landowners, outfitters, and cattle farmers. This imminent damage and loss cannot be justified through admittedly “speculative” development and tampering with geothermal resources.

REQUEST FOR RELIEF

Pursuant to 5 USC §555(b), Appellants hereby request relief from the Appeals Deciding

Officer on the issues noted herein. If the foregoing request for relief is denied in whole or in part, Appellants are entitled to a full statement of reasons as to the grounds for denial in accordance with 5 USC § 555(e).

The EA and DN fail to meet their legal requirements as explained supra in Appellants’

Statement of Reasons Section. As such, Appellants specifically request that the Forest Service

DN be withdrawn along with its consent to geothermal leasing in Gunnison and around the

Tomichi Dome. This withdrawal will allow the Forest Service to conduct additional analysis regarding this potentially invasive undertaking. Furthermore, Appellants specifically request that they be granted opportunities for public participation. Finally, Appellants request a No Action

Order to prohibit geothermal leasing on Forest Service lands and neighboring lands subject to lease nomination COC-73584.

CONCLUSION

The APA prohibits an agency from acting in an arbitrary and capricious fashion. Fair and honest procedures are also an element of complying with NEPA. 40 C.F.R. 1502.1. To assure that a fair discussion occurs, agencies are required to obtain high quality information, including accurate scientific analysis. 40 C.F.R. 1500.1 (b). The regulations are explicit. Agencies shall ensure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. 40 C.F.R. 1502.24 Counsel on Environmental Quality regulations also require that environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made. 40 C.F.R. 1502.2(g)

The policy behind NEPA is to ensure environmental considerations are integrated into agency planning, 40 C.F.R. § 1501, and that the public be informed in agency planning decisions. “NEPA procedures must insure that environmental information is available to public officials and citizens before decision are made and before actions are taken…Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40

C.F.R. § 1500.1(b). “NEPA ensures the agency …will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience.” Idaho

Sporting Congress v. Thomas , 1998 WL 89066, at (9 th Cir. (1998)). (citing Robertson v. Methow

Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). NEPA’s disclosure goals are “to insure the agency has fully contemplated the environmental effects of its actions and to insure the public has sufficient information to challenge the agency.” Id. (c iting

Inland Empire Public Lands Council v. United States Forest Service , 88 F.3d 754, 758 (9 th Cir.

1996)).”

The flaws in the EA and DN identified in this appeal violate the requirement of NFMA,

NEPA, and the Forest Plan and agency regulations. Appellants are willing to meet with the

Regional Forester or the Forest Supervisor to discuss the issues raised in this Appeal in an effort to resolve them and to ensure that these areas of the Forest are managed in a way that complies with federal law and the goals and needs of Appellants.

RESPECTFULLY SUBMITTED this 25 th Day of March, 2011.

Matthew R. Jones Double Heart Ranch (512) 635-7814