Notice of Appeal
April 16, 2001
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.
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.
Table of Contents.
12. Legal Framework
21. Specific Violations of Law, by Major Issue
25. Spotted Owls
31. Fire and Fuels
53. Modeling Results
57. Relief Requested
58. Signature Page
One Page Summary
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.
The Final Environmental Impact Statement and Record of Decision.
Fail to comply with the Organic Act and the Multiple Use Sustained Yield Act.
Fail to comply with the National Forest Management Act.
Fail to comply with the National Environmental Policy Act.
Fail to be consistent with the Herger-Feinstein Quincy Library Group Forest Recovery Act.
Fail to comply with the Administrative Procedures Act.
Fail to reflect adequate consultation with local indigenous people.
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.
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
(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.
The SNEP Report also highlighted the fire threat to Sierran forests and suggested five goals for national forest management:
(1) rebuilding late-successional forests,
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:
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].
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
(1) Loss of primary jobs and local economic opportunities in logging, timber processing and lumber milling.
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.
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.
(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.
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.
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.
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.
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.
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,
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
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.
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
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.)
Since the publication of both the CASPO Report and the SNEP Report we have come to understand that the real forest management problem is how to accommodate both spotted owls and a more natural fire regime in the Sierra Nevada forests. It is a fundamental question to which the Quincy Library Group believes it has formulated a viable, feasible solution that also addresses the other goals set forth by the SNEP and CASPO teams of scientists.
In repeated written and oral comments throughout the Sierra Nevada Framework and Sierra Nevada Forest Plan Amendment EIS processes, QLG members have asked the EIS interdisciplinary team to analyze and evaluate the QLG proposal and HFQLG Pilot Project as a test of that solution. Yet the FEIS states plainly, "None of the alternatives that are analyzed in the FEIS fully and explicitly incorporate and analyze the QLG management regime." [FEIS Vol 1, Ch 1, pg 4] The FEIS’s intentional exclusion of the QLG proposal from consideration as an alternative represents a substantial violation of the purpose and spirit of the National Environmental Policy Act.
But to return to the issues surrounding California spotted owls, how does the SNFPA FEIS and ROD perform against the CASPO and SNEP sets of findings and recommendations? One concept that is present in both the CASPO and SNEP reports is active management to rebuild late successional forests and to reduce the threat of fires that produce lethal fire effects to large old trees and forest canopies. The concept of active management, particularly mechanical removals of forest fuels and fire ladders, is not endorsed — indeed, is barely tolerated — by the SNFPA FEIS and ROD. As is fully explained and explored elsewhere in this appeal, the FEIS’s fire analysis is flawed and improperly concludes that fire is not a serious threat to current forest conditions.
The defective fire analyses and findings are particularly egregious in their application to the analyses of effects on California spotted owls. Having participated in the SNFPA EIS process and especially in Sierra Nevada Framework meetings, the U.S. Fish and Wildlife Service’s California and Nevada Operations Office had great familiarity with the ID Team’s information and analysis of alternatives. Thus it seems reasonable to believe that the USFWS’s comments in its January 11, 2001, letter to Regional Foresters Bradley Powell and Jack Blackwell ("Subject: Formal Endangered Species Consultation and Conference on the Biological Assessment for the Sierra Nevada Forest Plan Amendment Final Environmental Impact Statement") reflect the Forest Service’s evaluation of the fire threat as well. As best as we can determine from the planning record, the fire analysis given to and used by the USFWS was more narrow than even the unreasonably short-term, 30-year fire record provided in the FEIS.
Page 67 of the USFWS’s January 11, 2001 "Formal Endangered Species Consultation and Conference on the Biological Assessment for the Sierra Nevada Forest Plan Amendment Final Environmental Impact Statement" contains a page-long literature review of ways in which Sierran forest species, structures, and fire-proneness have changed in the 19th and 20th centuries. But all that ecological information is thrown over by one piece of evidence from the national forests:
"However, the known number of California spotted owl sites burned in recent wildfires is low. From 1993 through 1998, only 15 California spotted owl protected activity centers (PACs) or spotted owl habitat areas (SOHAs) burned in wildfires. (Three of the 15 are known to remain occupied.) This represents an annual rate of loss of about 0.2 percent of the PACs and SOHAs on national forests in the Sierra Nevada over a 6-year period."
The USFWS comment letter
goes on to speculate about the reasons for such a low fire loss rate,
but does not mention that the 1993-1998 period includes five of the
seven wettest years in California history, including both recorded human
and dendrochronological histories, so maybe the fire losses those years
were atypical. This analytical lapse obviously affected the USFWS’s
conclusions about the adequacy of the FEIS’s alternatives. To some
extent, they have also therefore biased the Record of Decision in an
unjustified and unsupportable manner.
One critical information element missing from both the USFWS’s and the FEIS’s analyses is the fact that spotted owl habitats and the status of spotted owls within PACs and SOHAs have not been assessed or monitored in any systematic way since the adoption of the CASPO Interim guidelines in 1993. Many more than 15 PACs and SOHAs were also adversely affected by fires, drought-related mortality, and/or clearcuts in the years immediately preceding and succeeding the 1993-1998 period. The QLG specifically requested that the cumulative loss of spotted owl sites to fires and other causes be examined in the EIS analysis, but it was apparently not done.
Another important information element missing from the FEIS is the habitat/viability link that underlies the forest management allocations, prescriptions, and standards and guidelines of the SNFPA. Looking back on the scientific underpinnings and conclusions of the CASPO Report, there were major habitat uncertainties discussed, including the following clear statements:
"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.
"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)
Recommendations made by the CASPO scientists in 1992 include:
"Because an accurate determination of the suitability of owl habitat must be linked to the birds’ reproductive success (specifically, demographic rates), we believe that advances in dealing with these uncertainties will be most rapid when habitat studies are coupled with demographic studies. The specific details of what habitat parameters should be measured, how they should be measured, and at what scale, need to be given a thorough review by a team of experienced owl biologists, foresters, silviculturists, and others. Implementing these efforts should be contingent upon developing a fully interactive Geographic Information System (GIS) for each demographic study area, with layers of all relevant attributes (for example, vegetation types, locations of owl nests and roosts, hydrographic features, topography, and so on)." (CASPO Report, page 30)
Regarding the uncertainties associated with logging, including logging according to the CASPO prescription, the CASPO scientists wrote the following:
"Monitoring the effects of various logging prescriptions on the foraging, roosting, and nesting activities of spotted owls is an especially high priority. Analyses reported in Chapter 7 provide one model of how such studies can be done. If recommendations proposed in Chapter 1 are implemented to maintain options for spotted owls in the Sierra Nevada during some interim period, we consider it essential to monitor owl activities and movements before and after logging operations that follow those recommendations." (CASPO Report, page 29)
Unfortunately, the Forest Service did not take these recommendations seriously, because the careful research to reliably link habitat attributes or CASPO or other logging effects with spotted owl viability was not undertaken in the 1990s. Thus in the summer of 1999, the Forest Service’s Sierra Nevada Framework staff were tasked with developing "new science" to answer old questions without the benefit of the relevant information. The audio cassette tapes of a June 1999 meeting between spotted owl researchers and Sierra Nevada Framework/Forest Plan Amendment EIS ID team record a spirited discussion of the agency’s failure to provide owl scientists with accurate vegetation data in electronic form capable of being transformed into a GIS analytical tool. (Please see notes made while listening to the June 1999 meeting, Appeal Appendix D-2, especially pages 39 through 41.)
During the period of the CASPO Interim Guidelines, the Forest Service failed to conduct the necessary research and "obtain and keep current inventory data appropriate for planning and managing the resources" (36 CFR § 219.12(d)) related to California spotted owls.
In the wake of failing to have studied habitat relationships and to have monitored activity effects to reduce the uncertainties identified in the 1992 CASPO Report, the SNFPA represents the Forest Service’s adoption and acceptance of planned uncertainty as a reason and justification for doing next to nothing, not even implementing the CASPO Interim Guidelines. The ROD and FEIS both indicate that Alternative Modified 8 was formulated and driven by the uncertainty of the effects of management activities on California spotted owls.
To further strain the scientific integrity and credibility of the SNFPA’s conservation strategy for the California spotted owl and old-forest ecosystems, the FEIS’s presentation of the scientific underpinnings for the old forest and associated species conservation strategy lacks identifiable references, violating NEPA regulation requirements that EISs must make "explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement." (40 CFR § 1502.24) In four pages of Chapter 2’s "Alternative Development, Including Key Strategies Used in the Alternatives," there are 48 citations in the discussion entitled "Old Forest Ecosystems and Associated Species Strategies." Of the 48, 32 were either not listed in the References section (FEIS Vol1), or were ambiguous as to which of two or more entries were intended to be cited. Of the 48 citations, only 13 were clearly and correctly cited according to professional publication standards.
An additional challenge for the scientific basis for all the FEIS’s alternatives lies in the fact that this portion of the FEIS provides no references to support the following 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).
Even if the scientific and NEPA documentation deficiencies just described had somehow been corrected or resolved prior to the ROD, the California spotted owl conservation strategy has failed NEPA and NFMA procedurally 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. Several such problems have been identified over the past six months 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 SNFPA planning record contains ample documentation of reviewers pointing out chronic internal inconsistencies arising from the non-integrated NEPA process. The FEIS and ROD violate forest planning requirements at 36 CFR §§ 219.1(b)(2) through (b)(10), and 219.5 as well as NEPA implementing rules at 40 CFR §§ 1500.2(c), 1501.2(a), and 1502.6.
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 issuance and adoption of the FEIS, the SNFPA ROD violates NEPA’s public disclosure and comment requirements. The SNFPA planning record has multiple entries since July 2000 (while the draft EIS comment period was running) that document how the environmental impacts analyses for the California spotted owl and its viability determination had not yet been made, because there was an ongoing interagency negotiation over what standards and guidelines should be written for the alternative to be adopted by the Regional Foresters, what data sets and methods of analysis to use, etc.
Examination of the following items from the SNFPA planning record reflect the unfinished condition of the spotted owl management strategy long after the public review and comment period of the draft EIS had been over:
Internal Workshop Review Team Draft Progress Report, Initial Meeting in Sacramento July 26-28 [ID 1664]
California Spotted Owl Conservation Strategy Discussion, Sierra Nevada Framework Team, November 2, 2000 (agenda) [ID 1667]
Outline for Species-At-Risk Effects Analysis in Sierra Nevada Project FEIS, Chris Iverson, 10/2/00 [ID 1666]
E-mail dated 22 Nov 2000 from Frank Davis to Jo Ann Fites re: composition comments [ID 1502]
E-mail dated 22 Nov 2000 from Frank Davis to Jo Ann Fites re: FIA data questions [ID 1503]
E-mail dated 27 Nov 2000 from Barry R. Noon to Jo Ann Fites-Kaufman re: response to final EIS questions [ID 1504]
Memo dated 11/28/00 from Barry R. Noon to Jo Ann Fites re: Comments on the 11/15/00 Draft California Spotted Owl Conservation Strategy: Standards and Guidelines [ID 1661 and 1400]
E-mail dated 01/04/2001 from Bill Laudenslayer to Brad Powell re: an owl meeting conducted at the SNFP Framework Office on January 3, 2001
Letter dated January 11, 2001 from Danny Lee to Kent Connaughton and Peter Stine and attachment, "Supplemental Analysis of Relations Between Occurrence and Productivity of California Spotted Owls and Canopy Cover in the Sierra National Forest." [Appeal appendix C]
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.
The Decision to adopt Alternative 8-Modified was arbitrary and capricious with regard to strategic fuel reduction and improved fire protection for the following reasons:
1. Alt 8-Mod would provide very little reduction of total wildfire acres during the analysis period, compared to current acres burned, while other alternatives would significantly reduce those losses to wildfire. Violates: NFMA 219.1(a) and 219.4(a)(1) Maximize net public benefits; 219.1(b)(13) Sensitive to economic efficiency; 219.1(b)(14) Responsive to changing social and economic demands; 219.27(a)(12) Maintain air quality; 1500.2(f) Quality of human environment; APA Sec 706(2)(A) Arbitrary and capricious.
Figure 2.2.1b, "Diagram illustrating the highly interactive nature of the eight topic areas addressed in the adaptive management strategy" [FEIS Vol 1, Ch 2, pg 25] shows Fire and Fuels at the center, with the other seven topics circled around, all of them directly touched by Fire and Fuels. This well illustrates the fact that fire and fuels is the one issue that directly affects all others.
The analysis of "Projected Wildfire Acres - All Classes" [Appeal Appendix B, pg 1] shows that Alternatives 3, 4, and 6 would result in significantly fewer wildfire acres throughout the analysis period. Since QLG recommended a modified version of Alt 4 in its comments on the Draft EIS, we will state these fire and fuels comparisons in terms of Alt 8-mod vs Alt 4.
Regarding total acres burned, at 50, 100, and 150 years Alt 8-mod would produce 29.6, 34.7, and 20.5 percent more acres burned than Alt 4 would produce.
2. Alternative 8-mod would not be effective at protecting forests against lethal or stand-replacing fires.
Alt 8-mod would produce significantly more lethal or stand replacement acres burned on forested lands, compared with current losses, while other alternatives (especially Alt 4) would significantly reduce such losses. Same violations as under paragraph 1 above.
The analysis of "Lethal or Stand Replacement Acres Burned (Forest Lands Only)" [Appeal Appendix B, pg 2] shows that at 50, 100, and 150 years Alt 8-Mod would produce 15.7, 29.3, and 16.8 percent greater lethal acres burned than are currently lost, and 224, 276, and 258 percent of the acres that would burn at lethal intensity if Alt 4 were adopted. That is, on average Alt 4 would reduce this loss of forested acreage to lethal fire to less than half its current rate, while Alt 8-mod would cause more than two and one-half times the loss that would occur if Alt 4 were adopted.
But these analytical results that disclosed the selected alternative’s critical defect were not published in the FEIS, and thus the public was denied its review and comment on the most significant analyses concerning projected forest fire losses.
The FEIS presents a 150-year projection of the "‘Lethal’ or Stand Replacement Acres Burned [Includes Brush]" for each of the alternatives in Figure 3.5u [FEIS Vol 2, Ch 3, pg 293]. This comparison of alternatives is deceptive, because it includes brushy vegetation as well as forest vegetation, and the brush acres obscure the projected effects of alternatives on forested acres. Within the planning record for the FEIS there are projections of "lethal or stand replacement acres burned [forest lands only]" [in Appeal Appendix B, pg 2], which project very different and much more meaningful results from the various alternatives.
See the "Old Forest" section above for reproductions of the "lethal acres burned" graphs "with brush" and "forest lands only" for an expanded discussion of this issue.
The FEIS’s failure to disclose differences among alternatives in projections of forest land losses to lethal wildfires biased the overall evaluation and comparison of alternatives by the decision maker, and obscured a relevant difference among the range of alternatives. The FEIS did not "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." [40 CFR 1500.1(b)].
3. The scale and pace of treatments proposed in Alt 8-mod are not consistent with Forest Service policy as expressed by the Chief in Protecting People and Sustaining Resources in Fire-Adapted Ecosystems -- a Cohesive Strategy [USDA FS, October, 2000 ], whereas other alternatives would come significantly closer to being consistent with the Cohesive Strategy. Same violations as under paragraph 1 above, plus NEPA 1502.24 Insure professional integrity.
In his Decision the Regional Forester claims that "This decision...is particularly responsive to supporting the Cohesive Fire Strategy..." [ROD pg 31], and in the FEIS further claims that "This Final EIS specifically addresses fuels treatment needs and is, therefore, responsive to and consistent with the Cohesive Strategy." [FEIS, Ch 2, pg 19]. To the contrary, the FEIS shows not only that such consistency would not be achieved, but that under Alt 8-Mod it could not be achieved. This claim that the decision is particularly responsive to the Cohesive Strategy is false and deceptive because:
(1) The scale and pace of fuel reduction proposed by the FEIS and ROD would be significantly deficient as implementation of the Cohesive Strategy. The essence of the Cohesive Strategy is urgency in actually implementing fuel reductions at the specified scale and pace. The FEIS and ROD do not provide any meaningful data or analysis to show that such implementation would or could actually take place in the affected Sierra Nevada National Forests. By our computations, the decision proposes to treat only 43 percent as much acreage as would be required to implement the Cohesive Strategy. Our analysis of treatment acreage required versus treatment acreage proposed by the Decision is attached as Appeal Appendix I.
(2) The scale of fuel reduction actually permitted by the Decision standards and guidelines would be fatally deficient as implementation of the Cohesive Strategy. Nothing approaching full implementation of the proposed treatments could actually be achieved, due to numerous barriers established by the land use allocations and standards and guidelines adopted by the Decision. Appeal Appendix J is a paper written by Dr. Ron Stewart, former Regional Forester for the Pacific Southwest Region, on behalf of The National Association of Forest Service Retirees. It includes the following passage.
A Sierra Nevada national forest was asked to analyze a factual 30,000+/- acre drainage on the west slope of the Sierras using Alternative 8 modified and the draft S&Gs. Within that drainage, 10,500 acres (35 percent) were to meet the fuel treatment objectives, establishment of strategically placed area treatments (SPLATS). After applying all spatial constraints for wildlife, watershed, and slope limitations, only 600 acres (2 percent) were actually treatable. Also of consequence, the subsequent use of prescribed fire in a large portion of the drainage would not be feasible.
The Cohesive Strategy proposes fuel reduction on 40 million acres in a gross area of 134 million acres (i.e. 30 percent treatment of the whole area). In contrast, the FEIS and ROD propose to treat about 2.4 million acres of an 11.5 million acre area (21 percent), but according to the Forest Service evaluation of one large landscape reported by Dr. Stewart, the actual treatments permitted by the Decision standards and guidelines would be closer to 2 percent. That is, actual treatments are likely to be only 7 percent of what the Cohesive Strategy requires and only 10 percent of what the Decision proposes.
In contrast with Alt 8-Mod, the treatment rates proposed in some other Alternatives would come significantly closer to the rates required by the Cohesive Strategy. For example, basing an estimate on the FEIS graphs, Alt 4 would treat about 35 percent more acres than Alt 8-Mod during the first two decades. Furthermore, the standards and guidelines accompanying some of the other Alternatives would permit actual implementation of a significantly higher proportion of the proposed treatments.
4. The strategy and methods of fuel reduction proposed in the Decision and permitted by restrictions imposed by the Decision would be significantly less effective than the strategy and methods proposed and permitted by other Alternatives. Same violations as under paragraph 1 above.
Alt 8-mod would not and could not reduce the risk and hazard of large scale high intensity wildfire to an acceptable level. Part of Alt 8-Mod's deficient effectiveness is because fewer acres are proposed for treatment than in some other alternatives, for example significantly less than Alt 4, as noted in the above discussion of the Cohesive Strategy. But perhaps the greater part of Alt 8-Mod's shortfall in effectiveness is because it employs "Strategically Placed Areas of Treatments" (SPLATs) to provide protection in the Threat zones around communities and for such treatment as would eventually be done in other forested areas.
The SPLAT strategy for fuel reduction in the forest is based entirely on a theory that was misunderstood by the ID Team and is misrepresented and incorrectly implemented by the FEIS and ROD. Violates: NEPA 1502.8 Written in plain language; 1502.9(b) Responsible opposing view; 1502.24 Insure professional and scientific integrity; APA Section 706(2)(A) Arbitrary and capricious.
The FEIS and ROD make exaggerated claims for effectiveness of the SPLAT strategy that:
(1) Cannot be supported by data or analysis in the FEIS.
(2) Are contradicted by expert opinion known to the ID Team and to the decision-maker but not revealed in the FEIS.
(3) Cannot be achieved by the treatment program adopted in the Decision.
Claims for effectiveness of the SPLAT strategy.
These claims are summed up in following passage from FEIS Vol 2, Ch 3, pg 278:
The effectiveness of treatments is based on ... [the assumption in] ... the SPECTRUM analysis ... [of] ... either a 1:1or 2:1 ratio of treatment effectiveness. Each acre that gets treated gets the benefit of being treated and if the total numbers of acre treated in the planning watershed (3000 to 7000 acres) reaches 30%, it receives a 2:1 benefit. The benefit is a reduction in flamelength on the treated acre when the vegetation on that treated acre burns (1:1) the landscape benefits when the 30% area is treated (planning watershed 3000 to 7000 acres). The flamelength is reduced not only the acre treated but on the adjacent acre as well, so for every 2 acres treated 1 untreated acre receives the reduced flamelength when those acres burn. The reduce flame lengths means lower mortality and is reflected in those alternatives that actively achieve the 30% or greater standard in the planning watersheds.
It must be noted that parts of the above paragraph conflict with other parts. First it says the advantage if treatment is 30 percent or more is 2 to 1, which would normally mean that for every acre treated you get two acres-worth of benefit, i.e. one untreated acre gets the same benefit as each acres that is actually treated. This interpretation is apparently confirmed by the statement "The flamelength is reduced not only [on] the acre treated but on the adjacent acre as well..." Unfortunately the FEIS then goes on to make a statement in conflict with the previous assertions, "...so for every 2 acres treated 1 untreated acre receives the reduced flamelength when those acres burn." This last would be a 3 to 2 advantage, not a 2 to 1 advantage, so we assume the first two attempts are closer to the intended mark. That is, if the treated area reaches 30 percent of the total area in a 3,000 to 7,000 acre watershed, then for purposes of computing fire effects and mortality, 60 percent of the area is assumed to have been treated.
But it turns out that the final analysis of fire effects was based on an even more optimistic assumption, so the uncertainty about whether the FEIS means a two-for-one benefit or a three-for-two benefit is probably beside the point. According to the Forest Service analyst who ran the computer projections, the ROD is actually based on the assumption that if 30 percent or more of a landscape unit is treated, then that whole unit is credited with the reduced flame length, as if it had all been treated. That is, a 30 percent treatment rate would produce a 3.3-to-one benefit.
As we demonstrate below, the proposed implementation of the SPLAT strategy does not and cannot deliver on any of the claims made for it, whether the benefit is said to be three-for-two, two-for-one, or three-for-one.
Dependence on the Finney Effect.
The claimed effectiveness of the SPLAT strategy is almost entirely dependent on what is known as the "Finney Effect," a theoretical construct set forth in Design of Regular Landscape Fuel Treatment Patterns for Modifying Fire Growth and Behavior, by Mark A. Finney. This paper and another paper co-authored by Finney are reproduced in full in FEIS Appendix G, Vol 4, pages G-30 to G-68, and they are introduced with the following paragraph.
K. Supporting Science. There were two key scientific papers (in press) that were used to develop and support the fire strategies outlined in the Preferred Alternative. With permission from the author and Forest Science these two peer reviewed papers are published here to assist the readers of the FEIS.
The Finney Effect is summarized in the first sentence of the Abstract of the first paper.
Patterns of disconnected fuel treatment patches that overlap in the heading fire spread direction are theoretically effective in changing forward fire spread rate.
There are two main difficulties with accepting this concept as "supporting science" for the decision.
First, the Finney Effect is based on theory, not any practical experience, so the obvious question is whether the SPLAT strategy so heavily dependent on Finney's theory should be tried out for the first time across the whole Sierra Nevada or in such sensitive areas as the Threat Zones around communities and Old Forest Emphasis areas. This objection was raised by Forest Service experts at least as early as September 2000. Phil Weatherspoon and Carl Skinner, two prominent scientists employed by the US Forest Service Pacific
Southwest Research Station, whose peer-reviewed chapter on fire protection and fuel reduction strategies was part of the SNEP Report, said this:
We recommend an approach that (1) directly and openly acknowledges these and other major uncertainties inherent in analyses of the EIS alternatives; (2) acknowledges that because of this high degree of uncertainty, and because of the great natural variability within the Sierra Nevada, a "one-size-fits-all" management approach for Sierra Nevada National Forests is unwise and difficult to defend; and (3) consequently proceeds to lay out an explicit adaptive management framework within which the Forests, the Region, and PSW Station and other scientists can jointly begin to resolve the uncertainties and adjust management accordingly.
Such an adaptive management framework, we believe, should incorporate the concept of actually employing contrasting management strategies on a number of large landscapes, at least initially.
(Statement for Regional Forester Bradley Powell Concerning Landscape-Level Fuel Management Strategies and the Sierra Nevada Forest Plan Amendment Draft Environmental Impact Statement. Phil Weatherspoon and Carl Skinner, PSW Research Station, September 11, 2000. [Emphasis added]
This statement is referred to in FEIS Vol 1 references as "Weatherspoon, C.P., Skinner, C.N. 2000, personal communication, September 11, 2000." The statement is attached as Appeal Appendix E.)
Instead of "contrasting management strategies on a number of large landscapes," the FEIS and ROD adopt one strategy and one set of Standards and Guidelines to be implemented on the entire Sierra Nevada.
Second, and perhaps more to the immediate point, the methods of treatment specified in the FEIS and ROD could not achieve any significant Finney Effect on the general forest, even assuming the theory were valid.
An adequate explanation of the Finney theory is required for a person to understand how badly the FEIS and ROD misrepresent it and fail to implement it, but the FEIS fails to provide any plain language explanation of either the Finney Effect or how it would be implemented with the SPLAT strategy. Therefore we have attached, in Appeal Appendix F, a plain language explanation of the Finney Effect and its relationship to the FEIS SPLAT strategy.
Example of SPLAT implementation, taken from the FEIS.
The fact that the proposed treatments, whether in the Threat Zone or across the general forest, would not achieve the claimed Finney Effect is shown by an example taken directly from the FEIS.
FEIS Vol 1, Chapter 2, page 12 includes a diagram (reproduced below) that represents SPLATs on a landscape, with two possible paths (the white lines) along which wildfire is assumed to move through the landscape, in one case with a south wind driving a fire northward, and in the other with a southwest wind driving a fire northeastward. The obvious implication is that this represents the effect of implementing the SPLAT strategy to achieve the Finney Effect, because the diagram is credited to Finney, and FEIS Appendix G contains the papers by Finney and explains that the FEIS strategy for fuel reduction is based directly on the Finney theory.
There are at least three ways in which this SPLAT diagram from the FEIS is deceptive:
First deception: The diagram depicts fire paths with more steeply angled zig-zags than a fire would actually follow in those situations. For example, the fire moving from south to north before a south wind would not follow the white line shown in the above diagram. It would instead tend to take the black line we have added to a copy of the diagram below.
In reality a fire would advance by moving from the first point where it cleared one obstacle to the point at which it would clear the next obstacle in the shortest time. It wouldn't zig out into the middle of one opening, then zag back at an exaggerated angle to the middle of the next opening, as the white line does. In this example it would follow the black zig-zag line we have added to the diagram. The difference is very significant, because the Finney theory depends entirely on the claim that a pattern of overlapping treated areas will create barriers that cause the fire to move at steep angles to the direction it would otherwise go without obstructions. For example, in Finney's paper reproduced in FEIS Appendix G, the average angle of the zig-zags in his main example (view C) is about 40 degrees.
Comparing the black line to the white line in the above diagram, it is obvious the distance from A to B is shorter along the black line, and that on average the black line segments are at very much smaller angles to the direct line from A to B. Thus the original white line significantly and deceptively over-states the "Finney Effect" that could be achieved with this configuration of SPLATs. In Appeal Appendix F we provide an expanded analysis of the actual Finney Effect that is claimed by the white line and compare it to the actual Finney Effect that would be achieved by this pattern of SPLATs. That analysis shows that the FEIS claims a 69 percent reduction in the fires overall forward spread rate, while the actual reduction would be 19 percent, even if Finney's theory worked perfectly in the FEIS SPLAT example.
Second deception. If these SPLATs were treated according to the ROD standards and guidelines, which require only a 51 percent reduction in a fire's rate of spread in treated areas, then the fire would simply burn straight through the treated areas along the straight line from A to B. The resulting overall Spread Rate Fraction would be 88 percent, only a 12 percent slowing of the fire. Our point is this: The FEIS invites, in fact guarantees, an incorrect interpretation of the SPLAT diagram, and strongly implies that such a pattern of treatment would achieve a Finney Effect similar to that illustrated in FEIS Appendix G (i.e. a Spread Rate Fraction of about 40 percent); but neither of these implications can actually be justified by the Finney Theory or any other data or analysis presented in the FEIS or ROD.
Third deception. Even if the theory were correct and could be applied to the ground as the Finney paper specifies, the fact is that standards and guidelines imposed by the FEIS and ROD do not permit as much treatment as required across the landscape, and they do not permit treatment that would be sufficiently effective in reducing a fire's forward rate in the treated areas.
It is clear that no actual analysis of the SPLAT strategy was done. They simply chanted the magic words "Finney Effect, Finney Effect," waved a magic wand, and on that basis made unsubstantiated false claims for much greater effectiveness when only 30 percent of an area is actually treated according to the Decision standards and guidelines.
These were knowing misrepresentations regarding SPLATs and the Finney Effect.
It is not as if these potentials for misunderstanding and misrepresentation were not made known to the ID Team and the Regional Forester before the EIS was finalized and the decision made. In their September 2000 statement [Appeal Appendix E], Weatherspoon and Skinner raise at least two significant questions about whether the Finney theory would or could actually be implemented. The first has to do with whether the amount of change in a fire's Rate of Spread (ROS) that is required in theory to achieve the Finney Effect would actually result and persist from the treatments proposed.
"One important basic assumption of Finney’s (in press) theory is that treated areas will support a much lower rate of spread than untreated areas... [This assumption] is well-founded and perfectly logical for some short period of time after treatment. But in the generally more open environment of treated stands, an increase in relatively flashy herbaceous fuels will often—and sometimes quickly—occur. Furthermore, treated stands will tend to dry out faster (more insolation and wind) and have higher surface windspeeds. Taken together, these factors could substantially increase rate of spread in treated units (although intensity would continue to be low), which might significantly impinge on the basic rate of spread assumption over much of the life of the treatment."
Weatherspoon and Skinner were commenting on the Draft EIS, so perhaps they did not know that the Final EIS and Standards and Guidelines would fail to require, even initially, that treated acres have a "much lower rate of spread than untreated areas." Finney's paper [FEIS Appendix G, pgs G-30 to G-50] shows that, to achieve the Finney Effect illustrated in the paper and claimed by implication in the FEIS, the treated areas would have to burn at only 1/10 the Rate of Spread in the surrounding untreated areas. The Standards and Guidelines fail to require a reduction of that magnitude in the treated area ROS. Instead, S&G FW-F051 requires only "...ROS is less than 50 percent of pre-treatment ROS..." i.e. anything a bit smaller than 1/2, not 1/10. In other words, the actual initial treatments could and probably would be only one fifth as effective as the Finney example illustrates.
Furthermore, 51 percent reduction in ROS is the target for immediate post-treatment conditions, and, as Weatherspoon and Skinner point out, the initial effect on a fire's rate of spread is not likely to persist for long. The Finney Effect, if it existed at all, would be small and short-lived as implemented by the Decision.
The second point raised on this issue by Weatherspoon and Skinner has to do with the impracticality of reproducing Finney's theoretical conditions on the landscape.
"The theory underlying SPLATs ... assumes quite specific repeating geometric patterns of treated blocks on a flat surface. As Finney ... points out, however, these idealized and artificial treatment patterns would probably never be achievable or even desirable in practice."
The Finney Theory specifies repeated geometric patterns of treatments with particular relationships in their spacing, overlaps, and the percent of total area that is covered by these overlapping treatments. Except possibly for percent of total area treated, these minimum requirements of the Finney Theory are not described in the body of the FEIS, nor are they implemented by any of the standards and guidelines in the FEIS or ROD. And even with regard to percent of area treated, the standards and guidelines do not require any particular landscape to have any given percentage of treatment, only that on average 30 to 40 percent of some large landscape units be treated. The net percentage of the whole landscape proposed for treatment would be about 21 percent (2.4 million acres divided by 11.5 million acres), and the study by Dr. Ron Stewart we referred to above [Appeal Appendix J] shows that actual treatments are very unlikely to be more than a small fraction of the proposed treatments.
It is not just that standards and guidelines to implement the Finney Theory are missing. In fact, the standards and guidelines that are included in the FEIS and ROD put so many restrictions on the placement, extent, and method of fuel treatments, that achievement of the Finney Effect is made impossible in practice by the very document that claims to adopt the Finney Effect as its strategic concept.
Only SPLATs in the forest, or DFPZs plus SPLATs?
The FEIS and ROD specify quarter-mile-wide treatments in the Defense Zones around communities that are virtually identical to the treatments that characterize Defensible Fuel Profile Zones (DFPZs, i.e. shaded fuelbreaks), and the adjoining mile-and-a-quarter Threat Zones are treated with SPLATs. In effect the fuel reduction strategy in these urban wildland intermix zones is "DFPZs first, followed up with area treatments."
Why was no alternative ever considered that extended the DFPZ strategy or DFPZ plus follow-up area treatments into Old Forest Emphasis areas and the general forest?
In their Statement for the Regional Forester, Weatherspoon and Skinner lay out a persuasive case for the necessity of considering such an alternative.
"A key point is that DFPZs should not be regarded as "an alternative" or standalone strategy. Rather, the DFPZ component of a broad fuel management strategy is best viewed as a set of initial, strategically located entries into the landscape—places from which to build out in treating other appropriate parts of the landscape—not as an end in itself. The "theory" is that DFPZs may provide a measure of protection against large fires (assuming suppression forces are present) while longer-term, area-wide treatments are being implemented (Agee et al. 2000). If SPLATs turn out to be both effective and practical on real landscapes, then much of the focus of subsequent area-wide treatments in an initial-DFPZ strategy probably would be on implementing SPLATs. An either/or dichotomy—DFPZs or area treatments—is not consistent with the initial-DFPZ approach envisioned in Weatherspoon and Skinner (1996) and Agee et al. (2000)."
The DFPZ strategy proposed by QLG and included in the HFQLG Pilot Project is intended within five years to put a network of strips of fuel reduction over the forest, based mostly on existing roads chosen to divide the forest into areas averaging about 10 to 12 thousand acres apiece, and adjacent to communities to protect the community from fires originating in the forest and the forest from fires originating in the community. In quarter-mile-wide strips those treatments would involve about 13 percent of the forest. It was QLG's concept from the beginning that DFPZs were just the first step in a comprehensive fuel reduction program, to be followed by area treatments at a scale and pace that would provide greatly improved fire protection for the whole forest within thirty years.
The SPLAT strategy requires treating as little as 30 percent of each area where treatment occurs at all, reverting after 20 or 25 years to maintenance of that fraction of the landscape, and depends on the Finney Effect for overall protection at landscape scale.
If we assume for the sake of argument that SPLAT treatments on the landscape would be completed to the proposed level, which is apparently the situation illustrated by the SPLAT diagram reproduced earlier from Vol 1, Ch 2, pg 12 of the FEIS, then an approximation of DFPZs plus SPLATs can be illustrated by moving a few of the illustrated treatments to positions that link up into a continuous line that approximates a DFPZ using about half the total treated area.
Comparing these two diagrams, consider the following questions:
1. How good would protection be at the half way point? (Within 10 years all DFPZ segments are completed but only half the SPLAT treatments in the original FEIS diagram.)
2. At the end of all treatments, which pattern looks like the best protection? (Assume that this part of the landscape connects with others to make the DFPZ segments into a network.)
The DFPZ plus SPLATs strategy has obvious advantages and it has been recommended for serious consideration by widely held expert opinion, but it was discarded without serious consideration by the ID Team and decision-maker.
The FEIS and ROD are incorrect and deceptive in claims made for the amount of fuel reduction that could be done under the standards and guidelines adopted. Violates: NFMA 219.1(a) and 219.4(a)(2) Maximize net public benefits; 219.1(b)(13) Sensitive to economic efficiency; 219.1(b)(14) Responsive to changing social and economic demands; 219.27(a)(12) Maintain air quality; NEPA 1502.24 Insure professional integrity; APA Sec 706(2)(A) Arbitrary and capricious.
The standards and guidelines erect a maze of interlocking vetoes that in fact would prohibit most of the fuel reduction treatments from ever taking place in a safe, effective, and affordable manner. Appeal Appendix J is a paper written by Dr. Ron Stewart, former Regional Forester for the Pacific Southwest Region, on behalf of The National Association of Forest Service Retirees. In addition to the passage from this paper that we quoted earlier, regarding the small amount of treatment permitted by the standards and guidelines, Dr. Stewart raises additional questions about whether there will be long term financial and industrial capacity to implement such treatments as are permitted.
"It is unlikely that the amount of funding needed to reduce fuel loads in a reasonable timeframe will be available from Congressional appropriations alone. Therefore it will be necessary to maintain a viable timber industry to both harvest and utilize as much of the material as possible...
"... At the level of harvest projected in the ROD, a viable timber industry is not likely to exist beyond the first decade of implementation..." [Appeal Appendix J, pgs 6 and 7.]
Dr. Stewart raises a valid point that the FEIS and ROD completely ignore. There are not just economic and social motivations for assuring survival of the workers, equipment, processing capacity of the timber industry. A viable timber industry is also an ecological necessity. There is no other way to remove enough material from the forests to accomplish the required fuel reduction, and do the job within a reasonable time, with adequate safety, and without converting a huge amount of biomass to health-threatening atmospheric pollution by open burning.
The FEIS and ROD are incorrect and deceptive in how they use Crown Bulk Density as a measure of fuel reduction effectiveness. Violates NEPA 1502.24 Insure professional integrity.
Tables 1.C.1 and 1.C.2 [ROD Appendix A, pg A-11] specify desired stand conditions after treatment for the Defense and Threat zones of the urban wildland intermix zone. These tables specify that post-treatment Crown Bulk Density (kilograms per cubic meter, kg/m3) should be 0.05 in stands with 40 percent or less crown cover, 0.10 in stands with crown cover from 40 to 70 percent, and 0.15 in stands with crown cover 70 percent or greater.
The meaning of "Crown Bulk Density" (CBD) as used in the FEIS is illustrated in Figure 3.5 [FEIS Vol 2, Ch 3, pg 288], which shows a stand of trees with a box drawn around the crowns of trees within an area covered by that box. The vertical dimension of the box is from the Crown Base Height (lowest live limbs of the trees) to the tops of the dominant trees. Crown Bulk Density is defined as the weight (in kilograms) of all the foliage of those trees (including the flashy fuel but not the main stem and heavy woody parts of the branches), with that weight divided by the volume of the box (in cubic meters) to determine the Crown Bulk Density.
CBD is said to be significant because it relates to the probability of crown fire initiation and propagation.
Crown bulk densities of 0.2 kg/m3 are common in mixed conifer forest that burn (Agee 1996), levels below 0.10 kg/m3 crown fire spread was unlikely, but no definitive "threshold" is likely to exist (Agee and others 2000). [FEIS Vol 2, Ch 3,pg 289]
Achieving safe crown bulk densities in treated stands must be an important consideration in any viable fuel reduction strategy; however the FEIS attempt to deal with CBD is insufficient and misleading for at least two reasons:
(1) There is no reliable method for determining CBD with reasonable accuracy in the field. It cannot even be "estimated," as required by Tables 1.C.1 and 1.C.2 of the ROD, by any method described or referenced in the FEIS or ROD. The only method that might give a reasonable approximation would be to employ tables that have been developed on the basis of limited experiments. Such tables, for example those contained in The Influence of Forest Structure on Fire Behavior, James K. Agee ( in the report on 17th Forest Vegetation Management Conference, Redding California, pgs 52-68), relate CBD in various forest types to the average DBH and stem count per acre.
Unfortunately such tables have not been refined or verified to the point where they could be employed in the field, even for "estimates" of crown bulk density.
(2) In any case, the methods of thinning and the limits imposed on them by the Standards and Guidelines would not usually permit thinning to the degree required to meet the specified CBDs. Inadvertently the FEIS illustrates this problem in Figure 3.5r [FEIS Vol 2, Ch 3, pg 291], which shows a stand before treatment and after treatment, where "...crown base height is raised, crown bulk density (CBD) is reduced and surface fuels... changed to match the post treated desired conditions." Labels on the Untreated and Treated stands say the CBD was reduced from 0.24 kg/m3 to 0.15 kg/m3 by the treatments.
This figure clearly shows that significant reduction of CBD cannot be achieved by "thin from below" methods that do not also permit the removal of some trees that comprise the dense overstory. The illustrated change from 0.24 to 0.15 kg/m3 is a 37.5 percent reduction in CBD. This cannot be accomplished by removing only the small trees, which is said to raise the crown base height from 1 meter to 4 meters. It could only be achieved by removing one out of three large trees, as shown in the figure. That is, 33 percent of the illustrated change in CBD was accomplished by removing the large tree, and only 3-1/2 percent of it was from removing the small trees. This great difference in effect between removing only small trees and removing the occasional large tree is not a fluke of this particular illustration, it is a basic fact that cannot be avoided.
The fundamental problem is that, while the FEIS and ROD do specify appropriate targets for post-treatment Crown Bulk Densities, the FEIS and ROD require only modest reductions in crown cover that would seldom if ever produce the specified CBDs. The reason for this is that the contribution of a tree to crown bulk density depend on the volume it occupies whereas its contribution to crown cover depends on the area it covers. The effect of this difference can be seen by comparing a small tree to a larger tree with the same general shape. If the large tree has three times the crown diameter of the small one, the large tree will contribute about 9 times as much to crown cover and 27 times as much to crown bulk. (These comparisons of bulk are only approximate, because large trees don't often have exactly the same shapes and foliage densities as small ones; but the underlying principle is correct, whether the exact numbers are 9 and 27, or only 9 and 23 or some other numbers based on reality.) Therefore, reducing crown cover by removing mostly small trees from stands that contain normal numbers of medium- and large-size trees will not produce the reduction in Crown Bulk Density that is usually required to meet the goals appropriately stated in the FEIS and ROD.
In short, the ROD specifies what appear to be reasonable crown bulk densities that should be achieved for safe fuel conditions in the urban wildland intermix zone, but it fails to provide any method to measure compliance with that specification, and worse yet imposes restrictions on the extent and methods of fuel reduction that make it highly unlikely, usually impossible, that the specified CBDs could actually be achieved.
The FEIS fails to provide a range of timber producing alternatives that meets the ever-increasing demands of Californians and the citizens of the United States. The FEIS and the ROD violate: NFMA 219.1(a) and 219.4(a)(1) Maximize net public benefits; 219.1(b)(10) Systematic interdisciplinary approach; 219.1(b)(13) Sensitive to economic efficiency; 219.1(b)(14) Responsive to changing social and economic demands; 219.4(a)(2) Reflect production capabilities; 1500.2(f) Quality of human environment; 1502.9(b) Reveal and respond to any responsible opposing view; 1502.24 Insure professional integrity; APA Sec 706(2)(A) Arbitrary and capricious or not in accordance with law.
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" [Volume 2, Chapter 3 page 29]. Consequences of importing this volume of wood instead of properly managing and harvesting readily available timber resources within California national forests have 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.
(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 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 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.
The Forest Service is required by law to provide a high level of sustainable timber yield [16 U.S.C. 531 and implementing regulations]. The FEIS and ROD don't even pretend to comply with this law. Through the elimination of available and suitable lands for timber management, the application of restrictive standards and guidelines, and the expansion of time consuming and costly Limited Operating Periods, the timber and biomass yields of the preferred alternative are merely a fraction of the levels specified in pre-existing forest plans. After decimating the pre-existing programs and invalidating all assumptions on which they were based, the FEIS and ROD fail to provide the new determinations of timber land allocation, projected growth and yield, and allowable sale quantity required by NFMA and its implementing regulations.
Failure to consider the full range of timber yield outputs that are feasible and legally attained is a prominent example of how the FEIS fails to include the legally required full range of alternatives. The alternatives actually range from near–zero to a low-level yield, excluding a maximum timber alternative or even an alternative producing historic timber levels.
The FEIS fails to consider an alternative that develops and maintains the appropriate forest cover with species of trees, degrees of stocking, rate of growth, and structure of stands designed to secure maximum sustained yield benefits. The selected alternative fails to control, maintain, or restore vegetative species diversity consistent with maximum multiple use sustained yield benefits.
The FEIS fails to analyze and display the suitability of lands for resource management. Existing forest plan designations of capable, available, and suitable land are rendered meaningless by the Decision, and the FEIS does not include replacements for these required designations.
The FEIS fails to consider and examine changed conditions that have occurred since the release of the Draft EIS. California is experiencing an energy crisis in which forest biomass can play a critical role. Although not sufficient to eliminate the immediate energy crisis, 29 biomass facilities currently operate at less than peak capacity due to insufficient availability of biomass material, and making available the full capacity of these facilities could often tip the balance between reliable electric supply and rolling blackouts. Moreover, 13 biomass facilities are closed, several of which could reopen if there were a long-term prospect that biomass material would be available. Selecting Alternative 4 in the FEIS could double the availability of biomass material over the level allowed by the ROD, which would be sufficient to fuel three 30-megawatt power plants.
Finally, and perhaps most important for the long term sustainability of the communities, forests and the health and safety of the affected citizens and wildlife, the Forest Service, in adopting this FEIS and ROD, 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" [NFMA 219.1(b)(13)], 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 Protection.
Violates: NFMA 219.1(a) and 219.4(a)(1) Maximize net public benefits; 219.1(b)(10) Systematic interdisciplinary approach; 219.1(b)(13) Sensitive to economic efficiency; 219.1(b)(14) Responsive to changing social and economic demands; NEPA 1500.1(b) Information must be of high quality; 1500.2(f) Quality of human environment; 1502.8 Plain language; 1502.24 Insure professional integrity; APA Sec 706(2)(A) Arbitrary and capricious.
The FEIS fails to address significant aquatic and riparian issues.
The independent scientists in the Sierra Nevada Ecosystem Project Report to Congress (SNEP) [Wildland Resources Center Report 39, University of California Davis,1996] provided a Summary document that reviewed their findings. The Quincy Library Group, in scoping and DEIS comments, referred to SNEP and its findings on water and riparian areas. Excerpts from the SNEP Summary (pages 3, 4 & 8) follow:
Aquatic Habitats. The aquatic/riparian systems are the most altered and impaired habitats of the Sierra.
Stream Flow. Dams and diversions throughout most of the Sierra Nevada have a 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.
Institutional Incapacities. Many Sierran ecosystem declines are due to institutional incapacities to capture and use resources from Sierran beneficiaries for investment that sustains the health and productivity of the ecosystems from which benefits derive.
Sources of Institutional Incapacities. Institutional incapacities arise from four primary sources: (1) fragmented control of ecosystem among different jurisdictions, authorities, and ownerships, (2) absence of exchange mechanisms among these entities to sustain rates of investment and cooperative actions that reflect ecosystem values, (3) detachment between those who control ecosystems and communities that depend upon and care for them, and (4) inflexibility in response to rapid changes in population, economy, and public interest. Existing institutional capacities and arrangements do not adequately support planning and management at the Sierra-wide scale for issues whose natural scales are at that level. Interwoven patterns of private and public land ownership in portions of the Sierra Nevada create conditions that impede the attainment of management objectives because of the difficulty of merging divergent goals across a landscape.
Ecosystem-Based Revenues. Water is the most valuable commodity, followed by timber, livestock, and other agricultural products, based on gross revenues. The Sierra Nevada ecosystem produces approximately $2.2 billion worth of commodities and services annually, based on estimates of direct resource values (not the total revenue produced by resource-dependent activities). Water accounts for more than 60% of that total value, followed by other commodities totaling 20%, and services also totaling 20%. Public timber and private recreation are the largest net contributors of funds to county governments both in total dollars and as a percentage of their total value. 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, and
The FEIS completely neglects a discussion on the institutional relationships regarding water, and
The FEIS does not discuss the growing role that local stream and watershed restoration efforts have assumed throughout the Sierra and particularly in the QLG counties, and
It ignores SNEP's findings about the value of water, and
The FEIS discussion on energy related issues (Vol 2, Ch.3, Part 5.9) neglects the prospective economic values and current environmental detriments of hydroelectric power to the ecosystem, and
The FEIS, published in January, 2001, fails to note the California Energy Crisis and the key role that hydroelectric plays in that issue.
Unjustified Expansion of Critical Aquatic Refuges in the FEIS.
The Final EIS takes the limited concept of Critical Aquatic Refuges (CARs) displayed in the Draft EIS and greatly expands CAR acreage and effect without proper basis, disclosure or rationale.
-- The criteria stated in the FEIS for CARs were not accurately applied when mapping the CARs adopted in the Decision.
-- CARs' area was expanded from between 495,000 to 556,000 acres in the draft to 981,000 acres in the final (a 76 percent increase). This expansion was carried out in the FEIS without adequate disclosure to the public of either the basis or analyses for the expansions.
-- Draft EIS CARs were relatively narrowly drawn to protect existing threatened species populations. In the final, opinion-based guesses at historical populations were the basis for most of the territorial designations.
-- Management activities in the CAR need Landscape/Watershed analysis in both the draft and final EIS. The final, however, (in contrast with the draft) would require that aquatic goals be considered as the basis for management activities. This constitutes an improper narrowing to single issue management on approximately 8 % of the Sierra Nevada forests, more than 30 % on some individual forests.
-- The data disclosed in the Final are inconsistent with known Threatened and Endangered species ranges.
Critical Aquatic Refuges
Definition. The FEIS calls for a system of Critical Aquatic Refuges (CARs) throughout the Sierra, amounting to just less than 1 million acres. These watersheds or subwatersheds are according to the FEIS,
"small watersheds that contain either
-- Known locations of TES species, or
-- Highly vulnerable locations of native plants/animals or
-- Localized populations of rare native aquatic or riparian dependent plant or animal species."
The role of the CAR is to "preserve, enhance, restore or connect habitats for species at the local level and to ensure the viability of aquatic or riparian dependent species.
... The goal of sustaining and enhancing habitat... will guide management activities within CARs. ...Management activities within CARs would only [emphasis added] occur after a landscape condition assessment has been completed, the project is consistent with the RCOs [Riparian Conservation Objectives], and contributes to attaining ACS goals across the landscape." [FEIS V 4. App. I-52]
A similar prescription is contained elsewhere in the FEIS (V. 1, Ch.2, p.175).
"Existing activities and uses in the CARs would be evaluated during landscape and project-level analysis. Those that were found inconsistent with RCOs would be either mitigated or removed. New projects and activities in CARs would be inconsistent with RCOs [Riparian Conservation Objectives]. New activities, such as development of dams and diversions or mineral extraction , would generally not be appropriate within CARs."
Finally, the FEIS blankets the CARs with the restrictions imposed on the much narrower Riparian Conservation Areas (RCAs). These zones around water features (e.g. 300 feet on each side of perennial stream, 150 feet on each side of seasonal stream, etc.) are the highest form of riparian and aquatic protection. The FEIS states: "CARs are managed as RCAs; standards and guidelines that apply to RCAs also apply to CARs" (V.1, Ch.2, p. 175). These RCA guidelines require the broadest level of interagency review (including outside peer review) prior to management activities.
Area of CARs.
There are 63 CARs in the FEIS on the eleven national forest units. The CARs range in size from 339 acres to 64,497 acres. The largest contribution to CARs is the Plumas National Forest with 295,880 acres, followed by the Sequoia (199,280), Inyo (170,320), Modoc (123,732) and Stanislaus National Forests (92,450). The CARs total 981,834 acres. These totals are the sum of individual CARs from FEIS Appendix I, where the CARs are mapped without relationship to each other or in Sierra-wide context. Therefore the reader is not made aware of the cumulative or landscape effect of the CARs across the Sierra Nevada or within the individual forests.
The total CAR NF acreage is incorrectly defined in the FEIS narrative at 556,000 for Alternatives 2 and 8 and 839,000 acres in modified Alternative 8, the chosen narrative (FEIS, V. 1, Ch. 2-74).
Rationales for the CARs.
Various rationales are given for the establishment of any particular CAR. The narrative above ('definition') defines the CAR locales as those sites that have ' known locations of TES, highly vulnerable locations of native species and localized populations of rare native aquatic or riparian dependent plant or animal species'. This description tends to limit the establishment criteria for CARs to sites where species of concern currently exist.
The narratives for the individual CARs (FEIS Appendix I) take a significantly broader view of CAR criteria. For example, there are twelve (12) CARs on the Plumas National Forest. Yet, only three of these CARs have current populations of the TES (106 k acres or 34 % of the total on the Plumas). Only one site notes anything greater than a "small population". Five of the other CARs are predicated on "historic" occupancy by TES (111k acres). Four of the sites are named as CARs because they are "habitat included in the recovery plan," sometimes "based on historic sighting," sometimes not. (FEIS V. 4, App. I-57).
Configuration of the CARs.
The CARs were allegedly to be "small watersheds" or subwatersheds (see definition above). This implies both hydrologic continuity and compactness. The configuration of the CARs in the FEIS is not consistent with these two concepts.
For example, the largest CAR on the Plumas NF (Bucks at 54 thousand acres) was intended to "provide habitat primarily within the Bucks Lake Wilderness for a small population of mountain yellow legged frogs" [FEIS V. 4, App I-56]. The Wilderness area was established in 1984 at 21,000 acres by Congress. Yet the Bucks CAR doubles that acreage amount without any further explanation. The CAR is not primarily in the Wilderness area, but outside of it, and the CAR contains portions of four subwatersheds and so does not meet the tests for either compactness or hydrologic continuity.
The Lakes Basin CAR is 33 thousand acres on national forest lands based on "historic occupancy." While it contains the PNF portion of the Sierra crest that has many alpine lakes, this CAR also extends down thousands of feet in elevation into the Middle Fork Feather River drainage. It also contains three towns (Graeagle, Blairsden and Mohawk). There is no apparent hydrologic or habitat continuity and it is not compact.
The FEIS analysis of current and future public demands for outdoor recreational uses is not adequately documented or easy to follow in the FEIS. Many of the sources cited do not appear in the references sections of the FEIS, and some of the sources cited and referenced do not seem to be particularly applicable to the Sierra Nevada. Some of the information presented as hard data conflicts with other information presented as hard data.
In attempting to evaluate the effect of the Decision on recreational opportunities, we start with land allocations. Table 5.6.a [FEIS Vol2, Ch3, pg 454] shows that 31.4 percent of the per-decision land allocations were available for Primitive and Semi-primitive/Non-motorized recreation uses, while the other 68.6 percent were available for Semi-primitive/Motorized, Roaded natural, Rural, Urban, and Undesignated uses. (Unless otherwise noted, references to the FEIS in the rest of this section are by page number, all of them referring to Vol 2, Chapter 3.)
Table 5.6.c. [pg 456] reports three years of Individual Visitor Days (IVDs) from the mid-1990's, categorized by use. "Dispersed recreation" accounted for 7.9 percent of visitor days, and if you add all of "hunting" and "fishing" to the dispersed category the total is still only 16 percent of total visitor days.
Among the assumptions listed on page 477 are "Limitations will be placed on recreation activities..." and "The potential for seasonal restrictions or permanent closure of some roads and recreational sites... [is] dependent on further studies." These statements reveal the obvious, that 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 (Table 5.6.p.) are, for the most part, low impact and nature-oriented activities" [pg 417] and "Californians have clear preferences for natural, undeveloped, and nature-oriented areas and parks" [pg 473]. Since all recreation activities in national forests would be characterized by most people as "low impact," "nature oriented," and (for most of them) "undeveloped,"it seems likely that the quoted statements are either misleading or beside the point. Similarly for Table 5.6.q. [pg 472] where all the listed activities (except possibly big game hunting) would be classed by most people as "low impact" and perhaps all except auto travel as "nature-oriented."
The two sentences quoted above that claim a growing preference for undeveloped recreation are directly contradicted by Table 5.6.r. and the accompanying discussion on page 474. 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.
But what are the current recreational demands and their projected changes? The FEIS provides only "indices" of change for some, but not all, categories of usage. Table 5.6.r. [pg 474] lists such indices for the Pacific Coast Region (including Washington and Oregon, not just California), said to show the "change in participants from 1995 to 2050." This brings up the first problem for a reader trying to make sense out of the FEIS recreation section. Does the term "participant" in the title of table 5.6.r. mean the same thing as the standard term "Recreational Visitor Day" (RVD)?
On the assumption that both terms mean the same thing, we then tried to apply the indices to the reported RVDs for 1995, then compute the 2050 results and some probable outcomes in the intermediate years. After finding the 1995 RVDs in the Draft EIS [Table S-47, DEIS Appendix S], we wanted to apply the indices and compare the outcomes to the FEIS projections. There are two problems: (1) The FEIS current totals and projections are stated in terms of "Individual Visitor Day"(IVD, a term not normally used outside this FEIS), not the standard term RVD; and (2) The FEIS reports the projected numbers only for the decade 2001 to 2010 [Tables 5.6.gg. and 5.6.hh., page 497], not for the year 2050.
This is obviously going to get too complicated for mere words, so we have attempted to work our way through the maze of obfuscating mumbo-jumbo in a spreadsheet on the following page, "Attempt to Reconcile Recreational Use Projections in the FEIS." That's where we found our final problem: The Forest Service changed the categories of recreation usage from one table to another. That is, you can't find 1995 numbers in Table S.47 or Table 5.6.c. that match the same categories for which table 5.6.r. gives indices. We had to match up the categories and sub-categories as well as we could. The "Recreation Categories and associated activities" labels aligned with the left edge of the spreadsheet are the main categories from Table S.47 the 1995: Camping, Travel, Dispersed Recreation, etc, with sub-categories (Camping, Picnicking, Swimming, etc) from Table 5.6.c.
The numbers go like this. First, the FEIS says that one IVD equals 2.24 RVDs (though it doesn't explain why it was necessary to change terminology between the DEIS and the FEIS). The numbers check pretty well, since 2.24 times the table S.47 RVD numbers comes pretty close to the IVD totals reported in FEIS Table 5.6.c. In the spreadsheet the first column of numbers shows the 1995 RVD totals from Table S.47, and the second column is simply the RVDs converted to IVDs.
In the third column we listed the "stated index" for each of the categories in Table 5.6.r., assigning them as well as we could to the categories in Table 5.6.c. Then we estimated an index for each major category, using a weighted average of the sub-category indices (where they existed), or estimating a category index from the leftover sub-categories that seemed closest to the mark, and assigned the result as the "estimated index" for the major category.
Then we simply multiplied the category index by the 1995 category total to obtain the estimated IVDs for 2050, listed in the right hand column.
The totals near the bottom of the spreadsheet show the 1995 total as 37.8 million RVDs, which are equivalent to 84.8 million IVDs. In order for 84.8 million IVDs in 1995 to grow to 148.4 million IVDs by 2050, the index (growth factor) would have to be 1.75.
The final task was to compute the decade rate of increase that could be compounded for 5-1/2 decades to give the 1.75 index. That turns out to be a growth factor of 1.107 per decade, i.e. almost one percent per year if compounded yearly.
On those assumptions, there would be 93.8 million IVDs in 2005.
Does the computed 2005 IVD total equal the FEIS reported 2005 total?
Unfortunately our computed total does not agree with the FEIS reported total in Tables 5.6.gg and 5.6.hh [page 497]. The reported total is 110.1 million IVDs, about 17 percent more than the computed total.
Seventeen percent seems like an extraordinary discrepancy to show up in the first decade of a 55 year projection, but one has to remember (if it's any comfort) that all these mathematical conjectures are based on some very flimsy data to begin with.
There are other discrepancies between the tables and the text. For example, the 1996 total of IVDs for "Resorts" (including group camps, lodging resorts, and recreational residences) is 4.145 million IVDs, while page 470 says that "Recreation resident use accounted for 6.9 million visitors in 1996." How is it possible to reconcile those two very simple and supposedly factual statements? Did all those 6.9 million visitors stay only a fraction of the 12-hour period that counts as a "visitor day"?
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 Preferred Alternative. Historic "demands" (i.e. the numbers and distributions of RVDs and IVDs) are multiplied by some growth factors (determined entirely from historic trends, assuming they have any validity at all), and then these demand projections are treated as if they were the available "supply" at some future date, without any showing of how that equivalency is established or justified. Then some (but not all) of the categories are adjusted from alternative to alternative, so that, for example, Alt 8-mod show 84 percent of the "no change" values for Alternative 1 in the categories of Developed Recreation and Trail Use, 90 percent of Mechanized Travel and Total use, with no change in some other categories.
Is there anything at all to support these calculations or the assumptions behind them? Is it the assumption that if some trails are closed potential hikers will not show up at all instead of using the remaining trails at some slightly increased frequency?
The FEIS says that "Management for conservation of biological diversity and restoration of key ecosystem components in the Sierra Nevada have comparatively little relative effect on the recreation..." [page 498]. Well, if that is so, why would there be a 16 percent drop in developed recreation and trail use under Alt 8-mod? Or is a 16 percent drop not significant?
NEPA requires EISs to be "...concise, clear, and to the point..." [Sec 1500.2(b)], and that "Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses..." [Sec 1500.24]. Without doubt the recreation section of the FEIS lacks clarity in failing to give proper references for many of the sources cited and quoted, in the numerical analyses, and in the obscurity of the methods used to assign effects to alternatives. By questioning professional and scientific "integrity," we don't mean to impugn anybody's good faith, we mean the word in its classic sense -- the coherence of the section literally dis-integrates when, on close examination, its internal inconsistencies and its lack of scientific rigor become apparent.
This appeal is based on legal deficiencies in the FEIS and ROD, but underlying each of those legal deficiencies is a serious error or omission or arbitrary decision regarding an issue of substance. The seriousness of the errors and omissions, and the arbitrary nature of key intermediate decisions and the overall final decision, are well characterized by the tables and graphs that summarize the analytical modeling done for the ID Team and available to the decision maker. Some of these results were published as tables and graphs in the FEIS, and others are only in the planning record, not readily available to the public. Thirty pages of these tables and graphs from the planning record are attached as Appeal Appendix B. Some of these graphs were also published in the FEIS.
In the following discussions we will refer to pages in Appeal Appendix B by numbers we added to the first 13 pages for convenient reference. Please note that the lines for one or more alternatives (Alt 2 and perhaps others) may not be visible because the color of that line in the original was too light to show in a black and white printout. If a line doesn't show up on the graph, please refer to the tabulated values above the graph for comparisons.
How Alternative 8-mod compares with the other action alternatives on 13 key measures.
In these comparisons, we will ignore the entries for "MLV" (no management) and "Alt 1" (no-action alternative). These comparisons are in terms of the preferred alternative 8-mod versus the other action alternatives 2 through 8.
All Wildfire. (Appeal Appendix B, pg 1) Right from the beginning, the action alternatives diverge and their relative ranking persists for the entire analysis period, with three worse than 8-mod and four better than 8-mod. The difference between 8-mod and the group of four better alternatives settles down to about 10 to 15 thousand acres per year.
Lethal Wildfire. (pg 2) Again there is a quick divergence and continuing difference. Alts 2 and 5 are worse than 8-mod, Alt 8 tracks right with 8-mod, and the four better alternatives average five to ten thousand fewer acres per year lethally burned through the analysis period. (As we note in an earlier section of this appeal, this graph is for forest lands only, and is thus very significantly different from the similar-looking graph in the FEIS that typically added 20 thousand acres per year of brushfields to the lethally burned forest lands.)
Owl Nesting Habitat. (pg 3) Differences show up in the second decade and grow wider over time. By the fourth decade every other action alternative does better than 8-mod, and on average the gap continues to widen for the rest of the analysis period.
Old Growth. (pgs 4 and 5) These are somewhat different measurements of the same thing, whether called "late seral stage" (pg 4) or "LSOG ranks 4 and 5" (high ranking Late Seral Old Growth, pg 5). By the second decade every other action alternative does better than 8-mod, and on average the gap continues to widen.
Since spotted owl nesting habitat and old growth forest are given over-riding priority in this FEIS and ROD, it is startling and disturbing, not to mention unlawful, to find Alternative 8-mod right at the bottom of these rankings.
Large Trees. (pg 6) Differences start to appear in the second decade, then persist and increase over time. Alts 2, 5, and 8 stay close to 8-mod, and the other four action alternatives produce about 19 percent more large trees by the end of the analysis period.
Very Large Trees. (pg 7) Since it takes a longer time to affect the numbers of very large trees (greater than 50 inches diameter), differences don't start to show until about the fifth decade. After that, Alts 2, 5, and 8 stay close to 8-mod, and the other four produce about 15 percent more very large trees by the end of the analysis period.
Large Hardwoods. (pg 8) Differences begin to show in the second decade, when two alternatives are worse than 8-mod and the rest somewhat better. Later in the analysis period the familiar pattern emerges, where only 2, 5, and 8 are with or worse than 8-mod, and the others become 5 to 10 percent better.
These long term results of the analysis are sometimes discounted on grounds that accuracy can't be assured for such long term projections. While due caution is required when interpreting any projection, it must also be recognized that (1) differences in the projected values are more reliable than the values themselves, and (2) the only way you can get increased old growth forest and large trees is to start with the correct methods and stick with them for a long time. You can't go fifty years on the wrong path, then expect magically to be on the right path toward different and better hundred-year results.
Large Snags. (greater than 15 inches diameter, pg 9) In the second decade four alternatives start to drop below 8-mod while 2, 5, and 8 are equal or better, establishing a pattern that persists through the analysis period. The differences peak at about 75 years, then the worst group tends to level off and the best group drop back a bit. Note that by the fourth decade every alternative has five or more large snags per acre. When is enough enough?
The turnaround of 2, 5, 8, and 8-mod from worst on owl habitat and other old forest characteristics to best on large snags needs examination. What accounts for the switch? Perhaps it's because the 8-mod group is better at making large snags by killing large old green trees in lethal wildfires.
Crown Cover. (pg 10) There is no significant difference among alternatives right across the whole analysis period. Every alternative tracks very close to 50 percent average crown cover across the whole forest.
Potential Biomass Tonnage. This is a measure of how much usable biomass other than saw timber would be available for removal during fuel reduction and silvicultural treatments. It varies widely, peaking in the early decades, when the initial fuel reduction treatments are done, and thereafter falling back to more or less level amounts with consistent differences. Alts 2, 5, and 8 are again with or below 8-mod, while the other four alternatives are usually well above 8-mod.
Note the sawtooth pattern of some outputs on pages 10 to 12. These are explained in a document in the planning record as artifacts of the timing of treatments that happened to occur in the modeling. That is, outputs near the borderline year from one decade to the next sometimes fell in one decade, sometimes in another, so the output by decade jumped up and down quite a bit for some alternatives.
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Timber Harvest. (pg 12) The highest value for any alternative is in the first decade when fuel reductions would tend to peak, and thereafter production falls back to relatively stable outputs and rankings. Alts 2, 5, and 8 tend to remain below 8-mod, Alt 3 stays pretty much with 8-mod, Alt 6 yields about twice 8-mod, Alt 7 yields 5 to 6 times as much as 8-mod, and Alt 4 yields more than 7 times as much as 8-mod.
Net Public Benefit. (pg 13) The only alternatives than manage to average worse than 8-mod are Alts 3 and 8. Otherwise every other alternative produces more net public benefit from the treatments. Alternative 4 averages one billion dollars more per decade, 100 million dollars per year greater net benefit. Alt 7 averages 600 million dollars per decade more than 8-mod.
Arbitrary and capricious decision.
By any reasonable interpretation of these graphs, or any combination of other graphs in the FEIS and Appeal Appendix B, the decision to adopt Alternative 8-mod cannot be said to rest logically on the outcome of such modeling and analysis as was done and presented to the Regional Forester by the ID Team.
These potentials to produce biomass and timber harvest during fuel reduction and forest health treatments, and the net revenue benefit gained from conducting treatments under those alternatives, are necessary considerations when we are trying to figure out how to get the work done and pay for it within the budget likely to be available. Whether your motive is to protect the forests and adjacent human population from lethal wildfire, to preserve and increase old growth forest, or just to gain the maximum economic benefit with ecologically sound forest management, the obvious advantage is in the group of alternatives that consistently contains at least Alternatives 4 and 7, perhaps others, but does not contain Alternative 8-mod.
But on the other hand, if commercial removal of the material is a huge embarrassment while you are kow-towing to the U.S. Fish and Wildlife Service or environmentalist lobbies, then 8-mod looks just great.
We leave it to the reader to judge which motives were strongest when Alternative 8-mod was chosen.
Validity of the Modeling.
It might be argued that the results of modeling are not valid because the analysis period is so long compared to the expected life of this particular management plan, and long term projections are not very reliable anyway. These are reasonable points that deserve consideration.
It is true that some of the measurements of projected outcome show no significant difference during the expected lifetime of the plan amendments. Long term projections of ecosystem response regarding old forest spotted owl habitat and large trees show significant differences, but nothing of statistical significance shows up in much less than 20 years for most measures, so it might seem there is no legitimate basis in the analysis for a choice among the alternatives.
First, we think long term differences in modeling outcomes are significant when making even short term choices among management actions. If you don't make the correct choice of roads at the first intersection, you're unlikely to get to your destination.
Second, modeling is more accurate in finding the difference among long term results than in finding the absolute results themselves. All we need for a valid choice is to judge the differences among alternatives, not their absolute outcomes to the third decimal.
Third, these modeling methods have been in use for quite a time already in Forest Service management, and the ones in use now are better than when first introduced. There is no justification for the Forest Service to make a major management decision so directly and completely contrary to these modeling outcomes. Not liking these particular outcomes is no excuse for abandoning or selectively discrediting the models that produced them.
Alternative 8-mod was an Arbitrary and Capricious choice.
If you consider the modeling and analysis results for the issues said to be of greatest significance (i.e. fire protection, old forest, and owl habitat), then grade "on the curve," Alternative 8-mod can do no better than C minus, possibly D plus.
Why is Alt 8-mod so far from best among the alternatives considered? There are only two possible answers:
Either (1) The range of alternatives considered truly encompasses the full range that is possible, so Alt 8-mod really is the dull-normal result-challenged alternative indicated by the modeling results. In this case the choice of Alt 8-mod fails to be consistent with the best information available to the decision maker, which is one legal definition of "arbitrary and capricious."
Or (2) The range of alternatives is so narrow that it makes no difference which alternative is chosen, so why not alt 8-mod? First that would be a direct violation of 40 CFR 1502.14(a) "Rigorously explore and objectively evaluate all reasonable alternatives..." and second it would be a text-book example of an "arbitrary and capricious" choice, with or without a legalistic interpretation.
The Decision is revealed to be arbitrary and capricious at its root and along all its branches
Failure to consider an alternative consistent with the HFQLG Pilot Project.
In a particularly egregious violation of both the NFMA and NEPA requirements for inclusion and evaluation of all reasonable alternatives, the DEIS and ROD treated the HFQLG Pilot Project as an unwelcome intruder that had to be handled as an exception, not as an opportunity to consider longer term implementation of an obviously reasonable alternative. The ID Team's decision not to include such an alternative is particularly troubling, since the HFQLG Pilot Project Final EIS had been completed not long before the SNFPA Draft EIS was developed and issued, so it would have been relatively easy and very efficient to base a QLG-like SNFPA alternative on an extension of the HFQLG concepts and analyses.
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. The HFQLG Act and Final EIS permit construction of DFPZs in the Urban Wildland Intermix Zones and the use of group selection and individual tree selection harvests to accomplish thinning in adjacent areas, the combination of which would be virtually the same as treatments in Defense and Threat zones proposed for areas outside the HFQLG Pilot Project. 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 to supercede the CASPO IGs.
4. Support stewardship projects to learn more about land management and the relationship between the community and the land.
5. Issue a new Decision.
This appeal is submitted by the Quincy Library Group and is also adopted by the County of Plumas, the Maidu Cultural and Development Group, and the Roundhouse Council, all of Plumas County, California.