Notice of Appeal
 Pursuant to 36 CFR Part 217

April 16, 2001

Chief
USDA Forest Service
Attn: Appeals -- Barbara Timberlake (Mail Stop 1104)
P.O. Box 96090
Washington, D.C. 20090-6090

Copy: Regional Forester
USDA Forest Service
Pacific Southwest Region
1323 Club Drive
Vallejo, CA 94592

Under provisions of 36 CFR 217 this is an appeal by the Quincy Library Group (QLG) of the Sierra Nevada Forest Plan Amendment (SNFPA) Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) dated January 12, 2001, signed by Regional Foresters Bradley E. Powell and Jack Blackwell. This appeal is filed also by the County of Plumas, the Maidu Cultural and Development Group, and the Roundhouse Council, all of Plumas County, California. For convenience, all appellants are referred to in the narrative of this appeal as "Quincy Library Group."

We do not believe at this point in our appeal for administrative relief that we are required by law to cite an exhaustive list of every regulation and every possible way that the Sierra Nevada Forest Plan Amendment EIS and ROD have erred. Nevertheless we will do our best to refer our narrative to the particular laws, regulations, and policies that are violated by the FEIS and ROD, both in specific instances and in cumulative effect.

We believe the Forest Service is required to take a "hard look" at the decision and at the information in the SNFPA planning record to see whether a supplemental and/or revised EIS is required because of fatal flaws in the current FEIS, ROD, and planning record. There are issues and impacts on the human environment which should have been studied in this EIS — issues and impacts we asked to have studied at the beginning of the Sierra Nevada Framework and this EIS process — but that were downplayed or just plain ignored in the FEIS. Other issues were dealt with in an arbitrary, biased, unfair, and/or incomplete manner.
QLG Appeal of the SNFPA Decision page 2

We bring this administrative appeal as a broad-based, unique national experiment in natural resource management conflict resolution and citizen group collaboration with a Federal land management agency. The QLG-area communities have labored for a decade in an attempt to find common ground on issues relating to timber harvest, logging methods, old-growth forest conservation, forest health restoration, and fuels reduction needs. We have invested thousands of hours in meetings, field trips, workshops, symposia, and Federal Advisory Committee proceedings. When the Herger-Feinstein Quincy Library Group Forest Recovery Act Pilot Project became administratively snarled in the Sierra Nevada Framework and Forest Plan Amendment processes, QLG took part in all public participation opportunities offered by the Forest Service, attending and commenting in good faith.

We believe this appeal should be sustained on the basis of violations of the Organic Act of 1897, Multiple-Use Sustained-Yield Act of 1960, the Resources Planning Act of 1974, the National Forest Management Act of 1976 and its implementing regulations, the National Environmental Policy Act of 1969 and its implementing regulations, the Administrative Procedure Act (5 U.S.C. 701 et seq.), and the Herger-Feinstein Quincy Library Group Forest Recovery Act of 1998. We request particularly close review and oversight of claims made in the FEIS and ROD for scientific validity of the data, evaluations, and conclusions which underlie the Decision and its proposed application to management activities, particularly the management of California spotted owl habitat.

California spotted owl science has been misused in development of the SNFPA FEIS, with the consequent exposure of Sierran forest ecosystems to catastrophic wildfire, economic vulnerability, and social collapse. The planning record documents various attempts, from a Washington Office review of the Draft EIS down to memoranda from individual employees, to require scientific validity and professional integrity in the Final EIS and ROD. Unfortunately those efforts were very often ignored, downplayed, or misquoted, so the resulting FEIS and ROD do not have either legal or scientific validity on key issues. An arbitrary deadline dominated the entire process in at least its final six months, which prevented adequate modeling, analysis, evaluation and integration of results. In the end even the Framework Science Team Leader’s best professional advice was ignored, as demonstrated in his letter of January 11, 2001, attached as Appeal Appendix C.

In this appeal, the Quincy Library Group first presents a Table of Contents, a One Page Summary of the appeal issues, and an Executive Summary, then the Legal Framework of laws and regulations that are violated by the FEIS and ROD, followed by sections detailing specific instances of those violations, and finally QLG states the relief requested, including particular actions for managing these forests while corrections are made to the EIS and a new Decision is issued, so as to restore lawful, sustainable, and practicable Forest Service management direction for Sierra Nevada National Forests. Finally there is a summary of Modeling Results, a statement of the Relief Requested, then a signature page, and a list of Appeal Appendices.

 
QLG Appeal of the SNFPA Decision page 3

Table of Contents.

Pg.    Section.

4.     One Page Summary

5.     Executive Summary

12.     Legal Framework

21.     Specific Violations of Law, by Major Issue

        21.     Protecting and Increasing Old Forests

        25.     Spotted Owls

        31.     Fire and Fuels

        43.     Timber Management

        45.     Riparian Area Protection

        49.     Recreation

        53.     Modeling Results

57.     Relief Requested

58.     Signature Page

59.     List of Appeal Appendices
QLG Appeal of the SNFPA Decision page 4

One Page Summary

Basis of the QLG Appeal.

The FEIS and ROD are fatally deficient in law, regulation, technical competence professional integrity, and do not implement Forest Service policy.

 

The FEIS and ROD do not assure full implementation of the HFQLG Act and the Pilot Project it specifies. In fact, this Decision works unlawfully against such implementation.

Legal Deficiencies.

 

The Final Environmental Impact Statement and Record of Decision.

 

Fail to comply with the Organic Act and the Multiple Use Sustained Yield Act.

  • Timber production is not a recognized objective, is not provided for, and would virtually be prohibited by the standards and guidelines specified in the FEIS and ROD.

  • Securing favorable conditions of water flows is not a priority objective.

  • Neither adequate analysis nor appropriate weight are given to adverse economic and social effects on Sierra Nevada populations from implementation of the Decision.

Fail to comply with the National Forest Management Act.

  • The plan is neither coherent nor complete in addressing issues that by law require full consideration.

Fail to comply with the National Environmental Policy Act.

  • Do not deal with issues of significance to the proposed actions, either ignoring them or putting them off with indefinite promises or to non-NEPA processes.

  • Contain analyses and conclusions not properly founded.

  • The range of alternatives fails to produce distinguishable results during the lifetime of the plan for the issues on which the Decision was made.

  • The chosen alternative was not disclosed to the public prior to the Decision.

Fail to be consistent with the Herger-Feinstein Quincy Library Group Forest Recovery Act.

  • The FEIS and ROD erect arbitrary barriers that block implementation of the HFQLG Pilot Project at the scale and pace specified in the Act.

Fail to comply with the Administrative Procedures Act.

  • Action to implement the HFQLG Pilot Project is unlawfully withheld or unreasonably delayed.

  • Restrictions are imposed and actions proposed that are arbitrary and capricious.

  • Goals are stated, claims made, and conclusions drawn that are not supported by data and analyses provided.

Fail to reflect adequate consultation with local indigenous people.

Relief Requested.

Withdraw the ROD and remand with instructions that include:

  • Implement CASPO Interim Guidelines until a new Decision is reached.

  • Initiate fuel reduction in Urban Wildland Intermix Zones at the scale and pace of the Cohesive Strategy, and in DFPZs around communities and across the landscape in the QLG area at the scale and pace stated in the HFQLG Act.

  • Issue a Supplemental EIS to correct legal deficiencies and other faults in the FEIS.

  • Assure full implementation of the HFQLG Pilot Project.

  • Support stewardship projects to learn more about land management and the relationship between the community and the land.

  • Issue a new Decision.
 
QLG Appeal of the SNFPA Decision. page 5

Executive Summary.

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 FEIS and ROD also violate the Herger-Feinstein QLG Forest Recovery Act by interfering on specious grounds with implementation of the HFQLG Pilot Project required to be completed at a specified scale and pace by the Act.

The FEIS and ROD violate provisions of the Organic Act, MUSY, RPA, and NFMA by failing to consider as significant goals the production of a continuous supply of timber or favorable conditions of water flows. They do not maximize long term net public benefit in an environmentally sound manner. They do not form one integrated plan. They do not reflect the use of a systematic, interdisciplinary approach to ensure coordination and integration of planning activities for multiple-use management. The Decision instead would result in "few issue" or even "single issue" management, not multiple use management. Implementation of the Decision would not be 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. The Decision is not consistent with maintaining air quality at a level that is adequate for the protection and use of National Forest System resources. In this process the Regional Forester usurped decision making authority assigned by law to Forest Supervisors.

The FEIS and ROD violate NEPA in that significant environmental effects were not revealed to public officials and citizens before the decision was made and the information provided was not of high quality and based on accurate scientific analysis and expert agency comments. The FEIS is often not concise, clear, and to the point, and it is not supported by evidence that necessary environmental analyses were made. The actions proposed would be detrimental to the quality of the human environment, not restore and enhance it. Professional and scientific integrity were not insured, but were instead sacrificed to other agendas and motives.

The FEIS and ROD violate the Administrative Procedures Act in that key intermediate decisions and the cumulative final Decision were arbitrary and capricious, were in excess of the deciding official's statutory authority, and did not observe procedure required by law. Analyses provided to the Regional Forester by the Forest Service Inter-Disciplinary Team (ID Team) regarding projected environmental, economic, and social effects of the alternatives do not support a logical choice of alternative 8-modified (8-mod) as the alternative to be implemented. Numerous procedural violations of NFMA and NEPA regulations in the SNFPA process also constitute violations of the APA.

The FEIS and ROD violate the Herger-Feinstein QLG Forest Recovery Act in that the Decision places arbitrary, capricious, and unreasonable restrictions on management activities, 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.
QLG Appeal of the SNFPA Decision. page 6

Spotted Owls. The CASPO Report of 1993 recommended "interim guidelines" for timber management in Sierran national forests that would retain forest structures known to be important to spotted owls, and aggressively reduce forest fuels to protect the existing old growth/owl habitat from loss to severe wildfire. The interim guidelines were substantially different from conservation strategies recommended for the northern spotted owl in five important ways:

     (1) There is no evidence to suggest that California spotted owls have suffered the dramatic decline in numbers (perhaps 60 percent) that northern spotted owls have.


     (2) The forests inhabited by California spotted owls do not "fall apart" the way Pacific Northwest forests do when partially cut, so that


     (3) Logged Sierran forests have not excluded California spotted owls, making precise definition and identification of "suitable California spotted owl habitat" difficult.


     (4) Fire is a major threat to California spotted owl forests, and fire’s inevitability precludes "protecting" owl habitat by merely excluding timber harvest.


     (5) A habitat set-aside approach for the California spotted owl could not protect a large enough population to buffer it against catastrophic events, such as stand-replacing fires.

The SNEP Report also highlighted the fire threat to Sierran forests and suggested five goals for national forest management:

 

     (1) rebuilding late-successional forests,


     (2) reducing the potential for severe (stand-replacing) fires,


     (3) restoring riparian areas and watersheds,


     (4) reintroducing historical ecosystem processes, and


     (5) producing a sustainable supply of timber in a cost-effective manner. (SNEP Addendum, page 179.)

How do the SNFPA FEIS and ROD perform in implementing the CASPO and SNEP findings and recommendations? One concept in both the CASPO and SNEP reports is active management to rebuild late successional forests and reduce the threat of lethal fire effects to large old trees and forest canopies. But the concept of active management, particularly mechanical removal of fuels, is not endorsed — indeed, is barely tolerated — by the SNFPA FEIS and ROD. In disregard of recent history the Forest Service, under influence of the U.S. Fish and Wildlife Service, has concluded that fire is not enough of a threat to owls to implement the management program originally recommended by the owl scientists. The FEIS and ROD attempt instead to finesse the problem with an untried theory of strategic fuel reduction that cannot be implemented under the rules adopted and would not do the job if it were implemented.

Both the Forest Service and the Fish and Wildlife Service omitted critical information from their analyses.

(1) Spotted owls in PACs and SOHAs have not been assessed or monitored in any systematic way since the adoption of the CASPO Interim guidelines in 1993; and

(2) No cause-and-effect relationship has been established between the forest management methods specified in this Decision and spotted owl population viability.

The CASPO Report said it clearly, and no established science has changed that statement of the situation:

"At the landscape scale, we see little in the overall distribution pattern of California spotted owls to suggest how we might distinguish between suitable and unsuitable habitat.
QLG Appeal of the SNFPA Decision page 7
 

"We have learned much about particular stand attributes that are used selectively by California spotted owls, but we have been unable to connect them with studies of the owl’s reproductive success — or failure. We are still uncertain about what levels of canopy cover, tree densities and sizes, quantities and sizes of downed woody debris, and so on, are found where owls reproduce consistently and well. Only by linking demographic rates with habitat attributes can we eventually distinguish among superior, suitable, marginal, and unsuitable habitats." (CASPO Report, page 28)

Unfortunately, the Forest Service failed to conduct the necessary research and "obtain and keep current inventory data appropriate for planning and managing the resources" (NFMA 219.12(d)) related to California spotted owls.

If the Forest Service has valid scientific support for the proposed spotted owl management in any of the alternatives, it had an obligation to disclose it. In fact the FEIS provides no references to support these elements of the alternatives:

(1) selection of landscape-scale old forest desired conditions (FEIS Vol1, Ch2, pg8);

(2) "reserves (saving natures legacy, ecological basis of conservation" (ibid.);

(3) quantity, quality, and spatial arrangement of habitat to sustain viable populations of old forest associated species (ibid.); and

(4) rate and means used to reduce fire hazard (FEIS Vol1, Ch2, pg9).

The California spotted owl conservation strategy fails to satisfy NEPA and NFMA procedures in that it was not developed in an integrated and interdisciplinary manner, which led to mutual inconsistencies between owl habitat direction, fire and fuels objectives, and riparian standards and guidelines. Well before the Decision, several such problems were identified by the Washington Office Review Team, the hastily conducted Science Consistency Check, and numerous individual PSW and academic scientists working with the Framework staff. The unfinished state of the owl management strategy and the disarray of opinion among Forest Service staff and outside scientists on this subject is shown by numerous entries in the planning record.

Furthermore, because there was no supplemental draft EIS circulated to the public containing the spotted owl conservation strategy and other non-circulated portions of the EIS prior to adoption of the FEIS, the SNFPA ROD violates NEPA’s public disclosure and comment requirements.

In spite of redrafting and adjusting the selected alternative until the last few days before the Record of Decision was signed, the California spotted owl conservation strategy is still incoherent, incompatible with other resource directions, and violates NEPA by having not been circulated for public review and comment prior to adoption.

Fire and Fuels. Strategic fuel reduction for protection from high intensity wildfire is a pivotal issue in the FEIS, but among the action alternatives considered, the adopted alternative 8-mod is well below average in providing that fuel reduction. In projections of Wildfire Acres 8-mod makes little or no change in the current rate of loss over the whole 14 decade analysis period [Appeal Appendix B, pg 1]. For Lethal or Stand Replacement Acres Burned, 8-mod is one of only three action alternatives that would cause greater loss to lethal wildfire, as much as 1/3 more than the current loss [Appeal Appendix B, pg 2].

 
QLG Appeal of the SNFPA Decision page 8

This increase in lethal wildfire is reflected in projections of poor performance by Alt 8-mod on Owl Nesting Habitat, Old Growth Forest, Large Trees, Very Large Trees, and Large Hardwoods [Appeal Appendix B, pgs 3 to 8].

In contrast, other alternatives (e.g. Alt 4) show early, significant, and persistent reductions in lethal fire and better results for owl habitat and old growth forest characteristics.

In fact, Alt 8-mod would not actually deliver even the dismal performance projected for it as a fuel reduction strategy, primarily for three reasons:

(1) The SNFPA fuel reduction strategy is overly-dependent on an untried theoretical concept called Strategically PLaced Area Treatments (SPLATs) that could not work as advertised, even if it were applied to the landscape according to the SPLAT specifications.

(2) The standards and guidelines specified in the Decision do not require SPLATs to meet the theoretical requirements of the strategy.

(3) In any case, those standards and guidelines would not permit enough SPLATs actually to be implemented and placed correctly on the landscape to provide adequate protection, even if the theory could work and were otherwise implemented correctly.

The ID Team and the decision maker were given ample warning by Forest Service experts and outside commenters that fuel reduction was a high priority issue and that the SPLAT strategy was not an adequate response. [See Appeal Appendices E and J for expert opinion, and F for QLG comment on the SPLAT strategy.]

Because the SPLAT strategy would not work, and in any case is not proposed at a scale or pace that would be adequate, the Decision also fails to be consistent with the national Cohesive Strategy for fuel reduction. The FEIS doesn't give straight-forward numbers on the fuel reduction acreage the Cohesive Strategy requires to be treated or on the acreage proposed for treatment, but our best estimates for both numbers from partial information provided in the FEIS and the planning record show that the Decision would implement less than half the fuel reduction required by the Cohesive Strategy [details in Appeal Appendix I]. Furthermore, as noted above, the treatments actually proposed in the FEIS would not be as effective in reducing the risk and hazard of wildfire as is contemplated in the Cohesive Strategy and by the House and Senate committees that authorized funding for effective large scale fuel reduction.

Timber Management. The FEIS fails to provide a range of timber producing alternatives in compliance with the Organic Act, other applicable law, and NFMA regulations. California currently imports approximately 76% of the 8 billion board feet of wood products consumed annually by its residents. The FEIS shrugs off this fact with the inconsequential comment, "Imported logs and lumber from Canada and South America have been meeting the demands for wood products" Importing this volume of wood instead of properly managing and harvesting readily available timber and biomass resources within California national forests has at least these significant adverse consequences:

(1) Loss of primary jobs and local economic opportunities in logging, timber processing and lumber milling.


(2) Loss of secondary economic opportunities in support industries and services.
QLG Appeal of the SNFPADecision page 9


(3) Loss of economic viability in rural communities dependent or partly dependent on logging, timber processing and lumber milling.


(4) Loss of electric generating capacity due to reduced fuel for biomass-fired plants.


(5) Increased direct Federal costs to conduct the required fuel reduction and forest health work entirely through service contracts.


(6) Loss of tax revenue due to the adverse economic effects.


(7) Increase federal costs for direct county roads and schools payments that could be largely or completely handled out of forest reserve revenues that are generated from gross timber receipts.


(8) Increased costs and reduced national economic security due to balance-of-trade deficits.


(9) Increased hazards to society related to:

a. Delay in implementing fuel reduction and/or curtailment of the fuel reduction program, with consequent increase in local wildfire hazards and loss of critical watersheds and wildlife habitats.


 b. Greatly increased health hazard due to smoke and air pollution from wildfire or prescribed burning of material that could be mechanically removed and processed with better than 97 percent reduction of pollutants.

 c. Irresponsible transfer of troublesome environmental effects to exporting nations where timber and milling operations are less efficient and well regulated.

In adopting this FEIS and ROD, the Forest Service has failed to recognize that sustaining a viable industrial infrastructure is not just an economic and social issue any more, it has become a vital ecological necessity. Without a healthy and competitive industry with a capacity to remove and process the increasing volume of excess biomass that now threatens our national forests, there is no hope to accomplish the necessary fuel reductions and silvicultural treatments that will make our national forests truly safe and sustainable. And without the offsetting revenues from an economically viable timber component in the fuel reduction program, there is little hope of obtaining the continued appropriations that would be needed to pay for fuel reduction at the scale and pace specified in the national Cohesive Strategy and other policy statements. Far from being "sensitive to economic efficiency" as required by NFMA, the FEIS and ROD generate the highest costs while implementing the least effective and productive methods of fuel reduction in the alternatives considered.

Riparian Area Management. The SNEP report found that:

(1) Aquatic/riparian systems are the most altered and impaired habitats of the Sierra, and that dams and diversions throughout most of the Sierra Nevada have profoundly altered stream-flow patterns (timing and amounts of water) and water temperatures, with significant impacts to aquatic biodiversity. Native fish populations have been severely reduced or have gone locally extinct, especially at low elevations, primarily as a consequence of dams and introduction of non-native fish species.

(2) Many Sierran ecosystem declines are due to lack of institutional capacities to capture and use resources from Sierran beneficiaries for investment that sustains the health and productivity of the ecosystems from which benefits derive. This is due to fragmented control of ecosystems, absence of exchange mechanisms to sustain rates of investment and cooperative actions, detachment between those who control ecosystems and communities that depend upon and care for them, and inflexibility in response to rapid changes in population, economy, and public interest.

 
QLG Appeal of the SNFPA Decision page 10

(3) Water is the most valuable Sierra Nevada commodity, followed by timber, livestock, and other agricultural products, based on gross revenues. Water accounts for more than 60% of that total value, followed by "other commodities" and "services," each at 20%. Around 2% of all resource values are at present reinvested into the ecosystem or local communities through taxation or revenue sharing arrangements.

The FEIS ignores most of these SNEP findings.

It fails to address the overwhelming role that dams and diversions have in altering the riparian areas, much less how to ameliorate their more negative affects. It completely neglects a discussion on the institutional relationships regarding water, and it does not discuss the growing role that local stream and watershed restoration efforts have assumed throughout the Sierra and particularly in the QLG counties. It ignores SNEP's findings about the value of water, and it fails to note the California energy crisis and the key role that hydroelectric plays in that issue.

Critical Aquatic Refuges. The Final EIS takes the limited concept of Critical Aquatic Refuges (CARs) in the Draft EIS and greatly expands CAR acreage and effect without proper basis, disclosure or rationale. CARs were expanded 76 percent from the DEIS to the FEIS without public disclosure or a basis in analysis. The mapped CARs do not conform to the criteria specified in the FEIS and ROD. The mapping of CARs was inconsistent from forest to forest, because it was left to individual forest biologists without adequate familiarity with the concept or instruction on how to interpret and apply the criteria.

Recreation. The FEIS analysis of public demands for outdoor recreational uses is not adequately documented or easy to follow in the FEIS. There are conflicts in the information presented and in its interpretation.

One effect of the Decision is to shift the allocation of recreational opportunities away from "general use" and make it available only for Primitive and Semi-primitive Non-motorized use.

There is an obvious attempt to justify and sugar-coat this shift of recreational opportunity by statements such as "The fastest growing recreational activities... are, for the most part, low impact and nature-oriented activities" and "Californians have clear preferences for natural, undeveloped, and nature-oriented areas and parks." These claims are directly contradicted by information and other discussion in that section of the FEIS. The fastest growing uses are said to include downhill skiing, visiting historic places, sight-seeing and biking, none of which is a "primitive" or "undeveloped" use, whereas the slowest growing uses include rafting, backpacking, and primitive camping. The FEIS sets a management program in direct opposition to the actual recreation trends it claims to be supporting.

The FEIS methods of projecting recreation usage for future decades seems straightforward, but our computation of usage projected for the current decade using those methods comes out different from the FEIS numbers by about 17 percent, which means something in the FEIS analysis is a lot more obscure than it seems to be or actually should be.

 
QLG Appeal of the SNFPA Decision page 11

There are direct inconsistencies in supposedly simple hard facts from one place to another in the FEIS discussion of recreation. For example, on one chart the 1996 total of Individual Visitor Days for "Resorts" (including group camps, lodging resorts, and recreational residences) is 4.145 million IVDs, while in another place it says "Recreation resident use accounted for 6.9 million visitors in 1996."

Finally, nothing in the Recreation section indicates a methodology or its application that would actually determine the "supply" of recreational opportunities that are feasible or are being made available by any of the Alternatives or the Decision. Historic "demands," adjusted by growth factors, are treated as if they were the available "supply" at some future date, without any showing of how that equivalency is established or justified. Most enterprises are founded on a clear understanding that supply and demand are two different things. That logic does not apply in this FEIS and ROD.

The underlying fallacy of the FEIS regarding recreation is the strong implication that recreation is going to save the Sierra Nevada, particularly the northern Sierra Nevada, from the economic devastation that would accompany the shutdown of its remaining timber and milling industry. There is nothing credible in the recreation section of the FEIS to support that theory.

Relief Requested.

1. Withdraw the ROD and remand with instructions that include:

a. Implement CASPO Interim Guidelines until a new Decision is reached.

b. Initiate fuel reduction in Urban Wildland Intermix Zones at the scale and pace of the Cohesive Strategy, and in DFPZs around communities and across the landscape in the QLG area at the scale and pace stated in the HFQLG Act. It is vital to initiate fuel reduction immediately at maximum scale and pace under the CASPO Interim Guidelines, not wait for the SNFPA process to produce new rules.

2. Issue a Supplemental EIS to correct legal deficiencies and other faults in the FEIS. This should be done as quickly as possible, but it must be done correctly.

3. Assure full implementation of the HFQLG Pilot Project. The so-called "mitigation" has expired, and it must not be resurrected. The HFQLG FEIS and ROD established a requirement for reconsideration of the mitigation when 18 months passed without new permanent Cal Owl guidelines. The 18 months have passed, and reconsideration should take place as part of this appeal process, with the CASPO Interim Guidelines established as governing the HFQLG Pilot Project until a SNFPA Supplemental EIS and new ROD are properly issued.

4. Support stewardship projects to learn more about land management and the relationship between the community and the land.

5. Issue a new Decision.

 
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.

 
QLG Appeal of the SNFPA Decision page 13

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 Group’s 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 QLG’s 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 QLG’s 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 QLG’s comment letters are only stronger and more urgent in this appeal.

QLG Appeal of the SNFPA Decision page 14

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 FEIS’s 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 QLG’s original proposal and the Herger-Feinstein Quincy Library Group Forest Recovery Act both invoke the CASPO Report’s 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,

 

QLG Appeal of the SNFPA Decision page 15

 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 people’s 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

 

QLG Appeal of the SNFPA Decision page 16
 

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.

 

QLG Appeal of the SNFPA Decision page 17

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

 

QLG Appeal of the SNFPA Decision page 18

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.

 

QLG Appeal of the SNFPA Decision page 19

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.

 

QLG Appeal of the SNFPA Decision page 20

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.
QLG Appeal of the SNFPA Decision page 21

Specific Violations of Law and Regulation, by Major Issue.

Protecting and increasing Old Growth forests.

Violations: NFMA 219.1(a) and 219.4(a)(2) Maximize net public benefits; 219.1(b)(13) Sensitive to economic efficiency; 219.27(a)(12) Maintain air quality; NEPA 1500.1(b) Information must be of high quality; 1500.2(f) Quality of human environment; 1502.24 Insure professional integrity; APA Section 706(2)(A) Arbitrary and capricious.

The first purpose given for the change in Regional direction is "Protect, increase, and perpetuate old forest ecosystems and provide for the viability of native plant and animal species associated with old forest ecosystems." [ROD pg 1]

The desired future conditions that are given for achieving this goal include "The density of old trees and the continuity and distribution of old forests across the landscape is increased. The amount of forest with late-successional characteristics ... is also increased." [ROD pg 8]

In direct contradiction to its statements of purpose and desired future condition, the Decision would result in significantly less density of old trees and continuity and distribution of old forests across the landscape than would be provided by one or more of the alternatives rejected. The FEIS and the planning record themselves include three graphs that provide evidence that other alternatives would be significantly better in protecting old trees and sustaining late-successional characteristics: "Projected number of large trees" [Appeal Appendix B, pg 6]; "Projected number of very large trees greater than 50 inches in diameter" [Figure 3.1h, FEIS Vol 2, Ch 3, pg 89, and Appeal Appendix B, pg 7]; and "Projected late seral stage forest acres" [Figure 3.1 i, FEIS Vol 2, Ch 3, pg 90, and Appeal Appendix B, pg 4]. Whether one takes the short view or a longer view, these three graphs are sufficient to establish at least that alternative 8-mod is not a viable candidate for preferred alternative.

Short run considerations. NFMA sets the maximum life span of a Forest Plan at 15 years. According to the three tables listed above, there is no statistically significant difference within two decades among the alternatives in projections of large trees or very large trees, and if there is a significant difference regarding late seral stage forest within the first two decades, it is that alt 8-mod is already below all other action alternatives. Thus it is not possible to make a logical choice of 8-mod among alternatives in their supposed effect on these key elements of "old growth forest" within the expected lifetime of the adopted alternative. Yet it appears the main reason given for choosing Alt 8-mod was its supposed superiority in preserving and enhancing old growth forest characteristics, as represented by large trees, very large trees, and late seral stage forest.

In effect the Forest Service has chosen to do away with the timber and biomass power industries in pursuit of an advantage their own analysis shows cannot be achieved by the adopted alternative but possibly could be achieved by one of the other alternatives that was considered but not adopted..

Long run considerations. If one takes the view that long term projections should be accepted as evidence for the potential success of an old growth enhancement strategy, then all three graphs do show that significant trends in large trees and very large trees become apparent in about the fifth decade and continue through the whole 14-decade analysis period, with Alt 8-mod always below the average of all other action alternatives. On the later seral stage graph, Alt 8-mod starts at the bottom of all action alternatives and stays there, falling farther short of average all along the way.

 
QLG Appeal of the SNFPA Decision page 22

Effect of Wildfire. A major reason for the poor performance of Alt 8-mod on large trees, very large trees, and late seral forest, is that it also does poorly on wildfire losses. The FEIS provides only a graph for "Acres projected to burn by wild fires based on SPECTRUM model estimates" [Figure 3.1 e, FEIS Vol 2, Ch3, pg 85, and Appeal Appendix B-2, pg 1]. On this graph Alt 8-mod is again in the middle of the pack, with four of the other action alternatives consistently better and three of them worse.

The FEIS also includes a graph "'Lethal' or stand replacement acres burned [includes brush]" [Figure 3.5 u, FEIS Vol 2, Ch 3, pg 293], which again shows Alt 8-mod about in the middle of other action alternatives. However, this graph does not reveal the full significance of Alt 8-mod's poor performance regarding lethal fire effects on old growth forest. A graph for "Lethal or stand replacement acres burned [forest land only]" is in the planning record [Appeal Appendix B, pg 2] which was not published in the FEIS. These two graphs, one from the FEIS including "lethal or stand replacing brush fire," and the other "forest only," are reproduced below.

 

LETHAL OR STAND REPLACEMENT ACRES BURNED (FOREST LANDS ONLY)


QLG Appeal of the SNFPA Decision page 23

It is difficult to see the significant differences in these two graphs, because they are cluttered with numerous lines and they have different vertical scales. Therefore we have combined the two graphs below, showing "with brush" and "forest only" at the same scale, and retaining only Alt 8-mod and Alt 4 (because Alt 4 performed best on this measure).

LETHAL ACRES BURNED (COMBINED GRAPH)

Several things become much more clear in this comparison, where the same scale was used for both "with brushfields" and "forest only."

(1) The apparent dip in lethal fire acres under Alt 8-mod in the early decades is entirely due to burning more brush, not reducing the amount of lethal forest fire acres.

(2) The amount of brush burned (i.e. the distance from one line to the other for either alternative) is relatively constant for both alternatives across the whole analysis period. This indicates that including "brush" in the FEIS graph served mainly to obscure the real differences among alternatives on this vital measure of treatment effectiveness.

(3) The inclusion of brush acres in the FEIS graph causes the percentage advantage of Alt 4 over Alt 8-mod to seem less than the difference between them regarding forest alone. That is, in the "with brush" graph Alt 4 appears on average to be only about 20 percent better than Alt 8-mod, whereas on the unpublished "forest only" graph Alt 4 is more like 60 percent better.

Most people would also question the implicit assumption in the FEIS graph that killing large green trees with fire is no different from killing brush with fire. In many circumstances the killing of brush would be an advantage, not a detriment to forest management.

Other wildfire considerations. The above direct evidence is strongly supported by indirect evidence in the FEIS that Alternative 8-mod is notably inferior to one or more other alternatives in achieving the desired future condition that supposedly motivates and justifies the Decision. In its discussion of "Estimating Fire Effects" the FEIS [Vol 2, Ch 3, pg 278] includes the passage quoted below, which has particular relevance to the hazard of wildfire to old trees and late seral conditions.

 
QLG Appeal of the SNFPA Decision page 24
 

After discussing the relationship of flame length and scorch height to mortality in the relatively benign conditions assumed to be present when prescribed fire is used, the FEIS continues:

... The calculated value for scorch height varies only slightly between 40 and 80 degrees Fahrenheit and 0 to 10 mph mid-flame windspeeds. These conditions are applicable for many prescribed fires. Under wildland fire conditions, where temperatures and windspeeds are often much higher, mortality is often under predicted, especially large tree mortality. FOFEM outputs were part of each prescription in the SPECTRUM modeling for each alternative. The majority of large tree (greater than 30 inches in diameter) mortality accounted for in SPECTRUM is from fire. (emphasis added)

In other words, the survival of large trees, and thus the long term viability of wildlife that depends on old forest habitat, is at greatest risk from wildfire, and the graphs referred to above under-predict such mortality, especially in the large trees. Since the under-prediction would be most significant in the alternatives that show the greatest amount of wildfire, the deficiency of Alternative 8-mod in assuring long term sustainability of old forest conditions is even more serious than the FEIS graphs would indicate, and those graphs already show an unacceptable deficiency in Alternative 8-mod. When the unpublished graph of lethal wildfire on forest acres only is factored in, the evidence showing poor performance by Alt 8-mod is overwhelming.

The FEIS discussion of fire effects [Vol 2, Ch3, pg 278] also highlights the fact that, under the assumptions and restrictions imposed by Alternative 8-mod, fuel reduction treatments probably cannot be implemented effectively and to the extent proposed in the Decision.

The SPECTRUM modeling did not place constraints on amounts of smoke emissions and budget allocations, nor did it impose limited operating periods for scheduling treatments. Any of these constraints could reduce or limit the actual number of acres treated under the alternatives.

Compared to one or more of the alternatives that would permit greater reductions in wildfire acres and show higher survival of late seral acreage, Alternative 8-mod would have a greater net cost (considering cost of treatments, fire losses, and federal revenue yields), generate more smoke, and impose more restrictive Limited Operating Periods.

Finally, Alternative 8-mod depends entirely on the SPLAT strategy for fuel reduction in threat, old forest emphasis, sensitive wildlife habitat, and general forest areas. As we discuss later in this appeal, the SPLAT strategy would not and could not provide the level of protection claimed for it. Therefore, actual mortality of large trees and old growth forest structures would be even worse than the already unacceptable results revealed by the projections published in the FEIS and buried elsewhere in the planning record.

 
QLG Appeal of the SNFPA Decision page 25

Spotted Owls.

The California Spotted Owl: A Technical Assessment of Its Current Status (the "CASPO Report"; Verner et al. 1992) said that the status of California spotted owls in the Sierra Nevada was uncertain but of concern due primarily to logging and fires. The logging threat to owls and their habitat lay in the implementation of clearcutting and other intensive, even-aged timber management practices that had only recently been introduced to the Sierran national forests. Such practices, unlike what had preceded them in the Sierra Nevada, removed too many of the large, old trees, dead snags, and fallen logs that seem to be critical components of the habitats of spotted owls and/or their prey. Clearcutting, in particular, turned owl habitat into "non-habitat." Switching to other timber management systems was a relatively simple way to remove the logging threat to owls. The wildfire threat to the spotted owl and its habitat, however, was more easily diagnosed than resolved.

The CASPO Report authors recommended instituting "interim guidelines" for timber management in Sierran national forests that would retain forest structures known to be important to spotted owls, and aggressively reduce forest fuels to protect the existing old growth/owl habitat from loss to severe wildfire. The CASPO interim guidelines were promulgated in 1993 and were the legally binding management direction for these national forests until the signing of the Sierra Nevada National Forest Plan Amendment Record of Decision.

The CASPO interim guidelines were substantially different from the conservation strategies recommended by many of the same scientists for the northern spotted owl, a related subspecies that inhabits old-growth forests of the Pacific Northwest and northern coastal California. Inasmuch as the SNFPA FEIS and ROD represent something of a return to the notion of managing California spotted owl habitat just like that of its northern spotted owl cousin, it is imperative to recall the five important ways in which the situations of these two subspecies differ:

(1) There is no evidence to suggest that California spotted owls have suffered the dramatic decline in numbers and distribution that northern spotted owls have, whose numbers may have dropped by 60 percent since the Pacific Northwest was settled by Europeans.

(2) The forests inhabited by California spotted owls have been mainly selectively and partially cut, and do not "fall apart" the way Pacific Northwest forests do when partially cut, so that

(3) Logged Sierran forests have not yet excluded California spotted owls the way logged forests in the Pacific Northwest exclude northern spotted owls, making precise definition and identification of "suitable California spotted owl habitat" difficult. "We have no studies to show what sorts of forest stands can support self-sustaining populations of California spotted owls," wrote the CASPO Report authors in Chapter 1, page 18, of their report.

(4) Fire is a major threat to California spotted owl forests, unlike most of the northern spotted owl’s habitat, and fire’s inevitability precludes "protecting" owl habitat by merely excluding timber harvest.

(5) A habitat set-aside approach for the California spotted owl in the Sierra Nevada could not protect a large enough population of California spotted owls to buffer it against catastrophic events, such as stand-replacing fires.

 

QLG Appeal of the SNFPA Decision page 26

This comparison paraphrases the CASPO Report’s "Evaluation of an HCA Strategy for the California Spotted Owl," Chapter 1, pages 18 and 19. Any reviewer wishing to quickly inform himself or herself on the California spotted owl/old forest/fire management dilemma would do well to read at least pages 18 through 25 of Chapter 1 of the CASPO Report. Of particular note are two passages:

"Because fire events and subsequent impacts on owl numbers are inevitable, we must maintain a balance between the rate of habitat loss to fires and the rate of habitat recovery from fires. . . .

"Given these circumstances, we do not find a case sufficiently compelling at this time to recommend setting aside large blocks of Sierran forests as HCAs [Habitat Conservation Areas, a form of reserve] for the California spotted owl. Instead, we believe the situation calls for several steps needed during an interim period to preserve for the future significant management options for owls in the Sierra Nevada. These are aimed primarily at saving the older forest elements that the owls appear to need for nesting and roosting, and at reducing the excessive build-up of surface and ladder fuels." (CASPO Report, page 19)

As alluded to above, changing timber management to discontinue clearcutting and even-aged forest management was a relatively easy decision to make. The CASPO Interim Guidelines accomplished that in early 1993, and the starting premise of the Quincy Library Group was to transform national forest management from clearcutting to more owl-friendly CASPO prescriptions in the northern Sierran national forests.

When the Sierra Nevada Ecosystem Project (SNEP) Report was issued in 1996 and 1997, it also highlighted the fire threat to Sierran forests: "From the beginning of the SNEP assessment of late successional forests, it was clear that the threat of severe fire from the build up in fuels and decrease in fire periodicity in some types would be major considerations...." (SNEP Addendum, page 177) "Our analysis suggests that much of the pine and mixed conifer forest on the two national forests examined is currently susceptible to severe (stand replacing) fire if the stands burn." (SNEP Addendum, page 175)

At the end of the SNEP process, the team of scientists conducted modeled simulations of alternative management strategies and, based on the ecosystem analysis, suggested five goals for national forest management:

(1) rebuilding late-successional forests,

(2) reducing the potential for severe (stand-replacing) fires,

(3) restoring riparian areas and watersheds,

(4) reintroducing historical ecosystem processes, and

(5) producing a sustainable supply of timber in a cost-effective manner. (SNEP Addendum, page 179.)

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