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 1 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 Appellant requests that the DN be withdrawn, a proper NEPA process be conducted, and a new decision of No Action be issued, protecting our public resources.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]. 5 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