QLG Appeal of the SNFPA Decision page 12

Legal Framework.

The Sierra Nevada Forest Plan Amendment Final Environmental Impact Statement and Record of Decision (FEIS and ROD) violate the Organic Act, MUSY, RPA, NFMA, NEPA, and their implementing regulations. Individual violations of these laws and regulations comprise numerous separate and cumulative violations of the Administrative Procedures Act.

The Organic Act [16 U.S.C. sections 473_478, 479_482 and 551, as amended] directs the USFS to improve and protect the forest, to secure favorable conditions of water flows, and to furnish a continuous supply of timber. The Act permits access to national forests for all lawful purposes and requires the Secretary of Agriculture to protect national forests from fire and depredations.

The Multiple_Use Sustained_Yield Act (MUSY) [16 U.S.C. sections 528_531] declares that the purposes of the national forest include outdoor recreation, range, timber, watershed and fish and wildlife; directs the Secretary of Agriculture to administer national forest renewable surface resources for multiple use and sustained yield; defines "multiple use" as management of all the renewable surface resources of the national forests to meet the needs of the American people; and defines "sustained yield" as achievement and maintenance of a high_level regular output of renewable resources.

The National Forest Management Act of 1976 (NFMA) and the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) [16 U.S.C. sections1600_1614, as amended]. NFMA is the primary statute governing the administration of national forests. It reorganized, expanded and otherwise amended RPA. NFMA requires the Secretary of Agriculture to assess forest lands, develop a management program based on multiple_use, sustained_yield principles, and implement a resource management plan for each unit of the National Forest System. The plans must provide for multiple use and sustained yield in a way that maximizes long term net public benefit in an environmentally sound manner.

The National Environmental Policy Act (NEPA) [42 U.S.C. section 4371 et seq] establishes the procedural requirements to assure that high quality environmental information is available to public officials and citizens before decisions are made and actions taken.

The Administrative Procedures Act (APA) [5 U.S.C. section701 et seq] provides for judicial review of administrative actions, and requires the reviewing court to compel agency action unlawfully withheld or unreasonably delayed, and hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, or otherwise not in accordance with law, or in excess of statutory jurisdiction or authority, or without observance of procedure required by law.

The Herger-Feinstein Quincy Library Group Forest Recovery Act of 1998 establishes a Pilot Project on the Lassen and Plumas National Forests and the Sierraville Ranger District of the Tahoe National Forest, and requires completion of Defensible Fuel Profile Zone (DFPZ) construction and Small Group Selection harvests at specified acreage amounts within five-years, and a program of riparian area protection and restoration.

1. The FEIS and ROD violate provisions of the Organic Act, MUSY, RPA, and NFMA by failing to consider all of the multiple uses specified in these Acts and their implementing regulations. Among those uses given little or no standing as significant goals are timber production and securing the conditions of favorable water flows.


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The FEIS and ROD fail to provide for timber production except as an incidental, very low priority, and declining by-product of other processes. They impose restrictions that would prevent timber production anywhere near that which is provided for in pre-existing Forest Plans, and they fail to disclose various measurements of timber growth and production that are required by law and/or regulation. Every alternative considered in the Draft and Final EIS required an exception to the non-declining even-flow requirement. There was no alternative based on sustained timber production, and the adopted standards and guidelines would decimate such timber production as was provided in pre-existing forest plans.

NFMA, section 2(e)(1) requires Forest Plans to "...provide for multiple use and sustained yield... and in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness..." and in section 2(f)(1) to "...form one integrated plan..." The FEIS and ROD do not present one integrated plan that addresses all the specified multiple uses, because (1) it fails to address the use and sustained yield of timber, and (2) the ROD does not provide an integrated description of what the decision actually is and how it could be implemented as an integrated plan. In Appeal Appendix K we detail the bewildering trail one must attempt to follow if a serious attempt is made to find every element of the Decision and integrate each one with the others. Here we will just list what may or may not be the complete list of locations said to contain various elements of the Decision. They include: (1) the ROD itself; (2) Appendix A of the ROD; (3) Chapter 2 of the FEIS for management directions, goals, and desired conditions; (4) Appendix E of the FEIS for adaptive management strategy; (5) Appendix T of the FEIS for landscape analysis; (6) National roads policy; (7) Fire management plan at the Forest level; (8) Forest Plans prior to SNFPA Decision; (9) Forest Supervisors' determination of what LRMP S&Gs to retain and which to change; and (10) Appendix I of the FEIS.

2. The FEIS and ROD violate the National Forest Management Act (NFMA) as represented by at least the following provisions of the Act and its implementing regulations at 36 CFR Part 219:

Improper Narrowing of the Issues. The Quincy Library Groupís members, both together and individually, have on numerous occasions commented to Regional Forester Powell and the Sierra Nevada Framework and Forest Plan Amendment ID Team about the importance of observing the forest planning requirements of the National Forest Management Act of 1976 and its implementing regulations. Our concerns were twofold: (1) that the range of issues of the SNFPA were illegally narrow and (2) that the planning procedures required by law and regulation needed to be observed.

As early as August 10, 1998, QLG raised the NFMA compliance issue with then newly appointed Framework Project Leader Kent Connaughton. Our group also raised the issue in an October 3, 1998, letter following the daylong Davis workshop on the Framework. In QLGís January 19, 1999 scoping letter on the SNFPA EIS, a discussion entitled "Concerns About the Planning Process" began on page 3 and ran through page 7. By August 2000, QLG members were feeling distinctly unheard by the Framework ID Team on forest planning process and content questions. Consequently QLGís comments on the SNFPA Draft EIS contained only a passing reference to NFMA-related grievances in the discussion titled "Social and Economic Benefits to the Human Population" (letter dated August 11, 2000; pages 15-17). If possible, the forest planning and NFMA compliance concerns expressed in all four of QLGís comment letters are only stronger and more urgent in this appeal.

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More than two years after first bringing it up, we must continue to complain that the resource issues driving the Sierra Nevada Framework and Forest Plan Amendment Decision are improperly and illegally narrowed, and do not meet either the purpose or the procedural requirements of NFMA. Rather than being an integrated, multiple-use, and sustained yield plan, the SNFPA illegally elevates viability objectives for a few wildlife species above all other statutorily authorized uses of the national forests. In doing so, the SNFPA illegally eliminates statutorily required uses of the national forests from the planning objectives.

Please bear in mind while reading the following paragraphs that elsewhere in this appeal are challenges to the FEISís interpretation and application of current California spotted owl data and fire science, from which we believe that the SNFPA FEIS and ROD have drawn improper conclusions concerning both the viability of spotted owls and the sustainability of owl habitat and old forest ecosystems under the selected alternative. We do not advocate sacrificing the continued existence of California spotted owls; indeed, we believe a full and fair analysis of the management situation facing the Sierran national forests would point toward trying approaches like the Herger-Feinstein QLG Pilot Project as high-potential routes to owl viability and habitat sustainability.

The FEIS has already been found in U.S. District Court (the Earth Island Institute lawsuit) to be sufficient to sustain the conclusion that continuing to implement the CASPO Interim Guidelines (the no-action alternative, Alternative 1 of the FEIS) for the next 50 years would provide spotted owl habitat benefits equal to or superior than Modified Alternative 8, the selected alternative. Inasmuch as the QLGís original proposal and the Herger-Feinstein Quincy Library Group Forest Recovery Act both invoke the CASPO Reportís management recommendations and the Interim Guidelines, it is unreasonable to conclude that California spotted owl viability would be in danger in Sierra Nevada national forests under management activities implementing the CASPO rules and the HFQLG Pilot Project.

The Forest and Rangeland Renewable Resources Planning Act of 1974, as redesignated by section 2 of the National Forest Management Act, includes the following provisions:

"(d)(1) It is the policy of the Congress that all forested lands in the National Forest System shall be maintained in appropriate forest cover with species of trees, degree of stocking, rate of growth, and conditions of stand designed to secure the maximum benefits of multiple use sustained yield management in accordance with land management plans.... The level and types of treatment shall be those which secure the most effective mix of multiple use benefits." ...

"(g) As soon as practicable, but not later than two years after enactment of this subsection, the Secretary shall in accordance with the procedures set forth in section 553 of title 5, United States Code, promulgate regulations, under the principles of the Multiple-Use, Sustained-Yield Act of 1960, that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to- ...

"(3) specifying guidelines for land management plans developed to achieve the goals of the Program which- ...

"(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section,


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 provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan; 

The national forest planning regulations under which the SNFPA was prepared made several references to species viability requirements but, like the law on which the regulations were based, the viability planning and management requirements are set "to the degree consistent with overall multiple use objectives." [36 CFR sections 219.19, 219.26, and 219.27(a)(5)]

By contrast, the Sierra Nevada Framework and Forest Plan Amendment process has shown an improper erosion and evolution of the statements of legal mandates and objectives for this national forest planning process. For the focal issue of old-growth forests, the FEIS states:

"The purpose of the proposed action is to protect, increase, and perpetuate desired conditions of old forest ecosystems and conserve their associated species while meeting peopleís needs for commodities and outdoor recreation opportunities." (FEIS Vol 1, Summary pg 4)

But in the Record of Decision, the purpose of the new Regional direction is to "[p]rotect, increase, and perpetuate old forest ecosystems and provide for the viability of native plant and animal species associated with old forest ecosystems." (ROD page 1) The FEIS and ROD violate National Forest Management Act forest planning requirements by improperly eliminating statutorily required uses and resources from the SNFPA process.

Short list of NFMA regulations at 36 CFR 219 violated by the FEIS and ROD.

Sec 219.1(a). "The resulting plans shall provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefits in an environmentally sound manner." The FEIS and ROD turn this on its head by managing for other goals in a way that minimizes or eliminates net public benefits, not maximizes them.

Sec 219.1(b)(10). "Use of a systematic, interdisciplinary approach to ensure coordination and integration of planning activities for multiple-use management..." The Decision is not supported by systematic and interdisciplinary coordination and integration, and it would result in "few issue" or even "single issue" management, not multiple use management.

Sec 219.1(b)(13). "Management of National Forest System lands in a manner that is sensitive to economic efficiency..." The FEIS and Decision repeatedly sacrifice the economic efficiency that could be attained with multi-product sales and timber production that are fully justified under the FEIS analysis, and instead impose management options that employ more costly service contracting and increase the risk and hazard of wildfires, thus assuring the continued escalation of suppression costs and loss of high value resources.

Sec 219.1(b)(14). "Responsiveness to changing conditions of land and other resources and to changing social and economic demands of the American people..." The condition of the land and resources is bad and getting worse, without an adequate response in this FEIS and Decision. The main social and economic demands of the people are best represented by: (1) the need to make greater use of domestic timber and energy production from forest biomass, not increased importation of forest products and oil; and (2) projections of huge population increases in the


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Sierra Nevada, with the certainty that such populations will not tolerate the safety and health problems represented by wildfire, escaped prescribed fire, or the smoke produced by burning excess fuel instead of processing it into forest products and clean renewable energy. The FEIS and ROD do not give appropriate weight to these social and economic demands.

Sec 219.4(a)(1). [Management direction shall] "Include requirements for analysis to determine programs that maximize net public benefits, consistent with locally derived information about production capabilities..." The FEIS and ROD fail to provide an analysis that is based on maximizing net public benefits and fail to include locally derived information about production capabilities.

Sec 219.4(a)(2). [Management direction shall] "Reflect production capabilities, conditions and circumstances observed at all levels..." The FEIS and ROD fail to provide direction that reflects such observations, but instead simply ignore obvious realities concerning capabilities, conditions, and circumstances.

Sec 219.8(b)(2). "The Regional Forester has overall responsibility for preparing and implementing the regional guide and preparing the environmental impact statement for proposed standards and guidelines in the regional guide..."

Sec 219.8(f). "The Regional Forester may amend the regional guide..."

Sec 219.10(a)(2). "The Forest Supervisor has overall responsibility for the preparation and implementation of the forest plan and preparation of the environmental impact statement for the forest plan..."

Sec 219.10(c). "The Regional Forester shall review the proposed plan and the final environmental impact statement and either approve or disapprove the [Forest] plan..."

Sec 219.10(f). "The Forest Supervisor may amend the forest plan..."

The above five provisions clearly establish that the Regional Forester is limited to preparing, implementing, and revising the Regional Guide, while the Forest Supervisor is given the only authority to prepare, implement, and amend an individual Forest Plan. This view is strongly reinforced by the provision assigning responsibility for Forest Plan review and approval or disapproval to the Regional Forester, since it would be highly unusual and improper government structure to have one official authorized to propose and adopt a Forest Plan amendment, then that same official also have authority to review and approve or disapprove the same amendment. In this FEIS and ROD the Regional Forester has exerted unlawful power beyond the legitimate role assigned to him by NFMA.

Sec 219.11(f)(1). "Alternatives shall be distributed between the minimum resource potential and the maximum resource potential to reflect to the extent practicable the full range of major commodity and environmental resource uses and values that could be produced from the forest..." The alternatives in the Draft and Final EIS are not so distributed and do not represent the full range of uses and values that could be produced.


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Sec 219.12. All forest plan amendments are required to follow the planning requirements set out in this section. The process used in this FEIS and ROD was much different than that described in this section. In this process the Regional Forester was the decision-maker, not the Forest Supervisor, as required by 219.12(b). In this process, planning criteria required by 219.12(c) were ignored, and obvious criteria such as consistency with the National Fire Plan were not developed. The Forest Service has never complied with the inventory and data requirements of 219.12(d), nor has it assured "...that the interdisciplinary team has access to the best available data."

The Forest Service violated 219.12(e) by not preparing a legally sufficient analysis of the management situation. The purpose of this section is to determine the ability of the planning area covered by a plan to supply goods and services. The planning process leading up to the ROD did not conduct this analysis, so it could not "provide a basis for formulating a broad range of reasonable alternatives". The minimum requirements laid out in the regulation were not met, nor was there any analysis that could support the determinations required in 219.12(e)(2),(3),(4), or (5). The range of alternatives in the DEIS and carried over into the FEIS was inadequate when compared to the requirement of 219.12(f) "to provide an adequate basis for identifying the alternative that comes nearest to maximizing net public benefits, consistent with the resource integration and management requirements of 219.13 through 219.27." In the development of this FEIS and ROD, net public benefit was never the goal or even a significant consideration. By the time the USF&WS and the Forest Service finished the process, there was only one alternative given any consideration, and that one provided very little if any net public benefit. Furthermore, the constantly shifting nature of the alternatives in this planning process prevented fair consideration of the estimated effects of alternatives as required by 219.12(g).

As a result of the above-mentioned planning violations, the Regional Forester and the interdisciplinary team were unable to "evaluate the significant physical, biological, economic, and social effects of each management alternative that [was] considered in detail," and the Regional Forester was unable (or at least failed) to make a reasoned choice among alternatives in conformance with 219.12(h).

Sec 219.14(b). "Forest lands other than those that have been identified as not suited for timber production... shall be further reviewed and assessed prior to formulation of alternatives to determine the costs and benefits for a range of management intensities for timber production... This analysis shall identify the management intensity for timber production for each category of land which results in the largest excess of discounted benefits less discounted costs ..." We found no evidence in the planning record that any such review and assessment was actually done before formulation of the SNFPA alternatives.

Sec 219.27(a)(12). [All management prescriptions shall] "Be consistent with maintaining air quality at a level that is adequate for the protection and use of National Forest System resources and that meets or exceeds applicable Federal, State and/or local standards or regulations..." In this context the FEIS considers tourists to be in effect a "national forest resource," and therefore this section requires a particular analysis of air quality effects, and a finding that air quality will be maintained to meet the needs of visitors and to meet other applicable Federal, State and local standards. The FEIS and ROD fail to make such an analysis and finding, but are based entirely on claims that other applicable Federal, State and local standards will be met, and that such compliance is sufficient to meet the complete requirement of the above NFMA section.


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3. The FEIS and ROD violate the National Environmental Policy Act (NEPA) as represented by at least these provisions of 40 CFR Part 1500:

Sec 1500.1(b). "NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA..." In violation of these provisions, important information was not made available before the decision, and an attempt was made to implement NEPA without sufficient assurance of accurate scientific analysis, appropriate attention to expert intra-agency and inter-agency comments, and the disclosure of these analyses and comments to the public.

Sec 1500.2(b). "...Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses..." This FEIS is anything but concise, it is very often unclear and badly written, it often evades the point, and it does not provide evidence that all necessary analyses were actually made.

Sec 1500.2(e). "...assess the reasonable alternatives that will avoid or minimize adverse effects upon the quality of the human environment."

Sec 1500.2(f). "Use all practicable means, consistent with the requirements of the act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions on the quality of the human environment."

Far from using all practicable means, the FEIS and ROD propose to employ management means that are among the least practicable of those available. Far from being consistent with essential considerations of national policy, the FEIS and ROD fail to implement recently established Forest Service policy regarding the required scale and pace of strategic fuel reduction. Far from assessing all reasonable alternatives and avoiding or minimizing any possible adverse effects on the quality of the human environment, the FEIS and ROD consistently sacrifice the quality of human environment -- even human health and safety -- in pursuit of ill-defined and speculative fears of uncertainty regarding marginal effects on habitat that might or might not be more or less essential to a few species of wildlife.

Sec 1502.1(g). "Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made." Any reasonable assessment of the SNFPA process and decision is likely to conclude that this FEIS and ROD are designed to justify a pre-ordained decision rather than reach a decision from an impartial fresh look at the data used, the assumptions made, the modeling and analysis done, and a full unbiased evaluation of that information.

Sec 1502.7. "The text of final environmental impact statements ... shall normally be less than 150 pages and for proposals of unusual scope or complexity shall normally be less than 300 pages." This FEIS is several times longer than the intended limit for unusual scope and complexity. This is one effect of violating the NFMA requirement that Forest Plan amendments must be handled at the Forest level by Forest Supervisors, not at the Regional level by Regional Foresters.


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Sec 1502.8. "Environmental impact statements shall be written in plain language and may use appropriate graphics so that decision makers and the public can readily understand them. Agencies should employ writers of clear prose or editors write, review, or edit statements, which will be based upon the natural and social sciences and the environmental design arts." This FEIS and ROD very often fail to present relevant information in any clear format, and too often provide text and one or more graphic presentations of the same or related information that are in apparent conflict, without providing any information by which the reader can resolve the conflict. In some cases the only way that an element of significant information is given is as one line in a very confused small scale graph where the differentiation of one line from another depends on graphic methods that do not work at the scale and resolution of the printing. Many of the key analyses are not well-founded in natural science or professional experience.

Sec 1502.9(b). "...The agency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised..." In at least one instance of great significance, i.e. whether some fuel reduction strategy other than SPLATs would provide better protection to forest land, the agency was aware of a responsible opposing view which was not adequately discussed in the draft statement, but the agency did not respond in the Final EIS or ROD to the issues raised.

Sec 1502.9(c). "Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns..." Calling the adopted alternative "8-mod" does not change the fact that it is essentially a new alternative that made substantial changes in the proposed action, that these changes do raise environmental concerns among the affected public, and the changes were made without public notice or public opportunity for scrutiny, evaluation, and response to the agency prior to the Decision.

Sec 1502.14. "... This section is the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment... and the Environmental Consequences... it should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall: (a) Rigorously explore and objectively evaluate all reasonable alternatives..." The FEIS and ROD violate this section repeatedly and with vigor, not rigor. They fail to present all necessary information and analyses necessary to provide a clear basis for decision by the decisionmaker or for evaluation of that decision by the public. Instead of rigorous exploration and objective evaluation of all reasonable alternatives, they arbitrarily narrow the range of issues, make evaluations that are more subjective than objective -- in fact reach conclusions that are not consistent with such objective evaluations as were made -- and consider only an unreasonably restricted range of alternatives.

Sec 1502.24. "Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements." Such integrity was not insured. Conclusions were adopted that were not supported by valid science, and options were discounted and discarded that were better supported by science. Lack of professional and scientific integrity extends even to such routine requirements as identifying references and authorities by proper citation of sources. In this FEIS there are many citations for which no entry actually appears in the References section.


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4. The FEIS and ROD violate the Administrative Procedures Act. [ 5 U.S.C. sec 706 ]

Agency actions are ultimately subject to judicial review, and "The reviewing court shall -

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ...

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law..."

The Decision unlawfully withholds and unreasonably delays implementation of the HFQLG Pilot Project by imposing conditions and restrictions that form arbitrary barriers to the scale and pace of implementation specified in the HFQLG Act.

The FEIS and ROD provide many examples, outlined above and detailed in what follows, of arbitrary and capricious findings, restrictions, improperly proposed actions, and failures to propose proper actions, which comprise individual abuses of discretion and a cumulative abuse of discretion not in accordance with law.

The action of the Regional Forester in proposing, processing, and deciding Forest Plan Amendments is in excess of his lawful authority under established regulations.

Development of the EIS and adoption of the Decision did not observe procedure required by law as expressed in NFMA and NEPA regulations, as outlined above and detailed in what follows. Instead of a reasoned comparison of alternatives based on analysis of data, the actual procedure was to decide the favored outcome, then choose which issues, data, and analyses would best support that decision, giving unwarranted favorable weight to data and analyses that were in support, and discarding, downgrading, buring, or ignoring reasonable alternatives or data and analyses that brought the favored outcome into question.

5. The FEIS and ROD violate the Herger-Feinstein QLG Forest Recover Act in that the Decision places arbitrary, capricious, and unreasonable restrictions on management activities in the area designated for implementation of the HFQLG Pilot Project, and these restrictions make it impossible for the Pilot Project to be implemented in the manner and at the scale and pace specified in the Act.

6. The FEIS and ROD are not consistent with various Forest Service Manual and Forest Service Handbook provisions. An expanded analysis of these inconsistencies, as they relate to economic and social concerns, and the inadequacy of provisions for monitoring economic and social outcomes is provided in Appeal Appendix N.