Sierra Nevada Forest Plan Amendment Administrative History
PROCEDURAL BACKGROUND
Sierra Nevada Forest Plan Amendment Chronology of Decisions
In November 1997, the Chief of the Forest Service directed PSW Region to “develop a strategy to ensure ecological sustainability.” In January 1998, Framework Core Staff and Intergovernmental meetings began.
In that month, Region Five of the U.S. Forest Service embarked upon a national forest management planning process that it claimed would be state-of-the-art in terms of ecosystem management, public collaboration, and application of science. The Sierra Nevada Framework for Collaboration and Conservation was cross-jurisdictional, multi-governmental land use and resource planning concept, much more than the multiple- forest plan amendment process included within the Framework. This effort also represented the third major attempt to produce a planning decision that would replace the California Spotted Owl (CASPO) Interim Guidelines issued in January 1993. The forest plan amendment effort was characterized as a smaller regional guide amendment to hold the forest plans over until each forest could make it's own subsequent revisions.
A core staff group was formed, which included representatives of the Regional Forester and the Pacific Southwest Research Station. The early 1998 SNCF Core Staff meeting notes show Chapel et al. (Millar, Alexander, Stine) hearing other agencies and public observers saying, “study and learn from existing collaborations!” and “not another regional planning effort!” etc, but going ahead anyway with yet another one.
On April 22, 1998, twenty-five government employees, all but one USFS, met together in Sonora, California as the SPAM Team. They were working on pieces of their “Ecosystem Conceptual Model,” a theoretical construct of how literally all the pieces fit together and interact as the overall Sierra Nevada ecosystem, from geological processes of soil formation from bedrock, to climate change's effects on overall photosynthetic capture of solar energy, to roads' and landings' effects on overall photosynthetic capture of solar energy. The model — which presumed that all “affectors” of these systems could be identified and understood and therefore modeled by the SPAM Team — formed the philosophical/theoretical basis for the Framework and the EIS analysis process. The notion that standards and guidelines prohibiting the affectors from occurring would therefore result in desired natural conditions underlies many of the conclusions in the FEIS and the ROD.
By April 28, 1998, the Regional Forester had determined to proceed with a Sierra Nevada Forest Plan Amendment regardless of what other agencies did or did not do, and announced to them at an Interagency Team meeting that it had commissioned a Sierra Nevada Science Review.
An update on the Framework was given to the SPAM Team at a meeting on June 15, 1998, in which it was reported to the group that “Hal [Salwasser, then director of the PSW] and Lynn [Sprague, then the Regional Forester] are still heading up an effort trying to figure out how to deal with new information. The environmental groups are pushing Forest Service to get on with producing an EIS and have filed an intent to sue if the Forest Service does not act soon.” There was also discussion of a need for an owl workshop “needed to organize on-going monitoring efforts and coordinate the owl specialists.”
June 1998 saw the activation of the current management overview team.
July 2, 1998: announcement of new NEPA process for plan amendments
July 10, 1998: Federal Register notice of planning process
July 24, 1998: Draft Science Review released
August 7, 1998: Summary of Current Management Direction released
August 13, 1998: IDT Meeting in which the reason for the short timeline was explained to attendees. The notes from that meeting also report that four of seven issues identified by the Science Review had already been resolved. The issues “Unresolved” were livestock, old forest, and aquatic/riparian.
The SPAM Team was already in existence in mid-1998, having been created by the Regional Forester during/following the SNEP project.
October 3, 1998: “Pre-NEPA” Public Meeting in Davis, CA
November 20, 1998: Notice of Intent for SNFPA EIS appeared in the Federal Register
January 19, 1999: The statutory scoping period closed.
Before they even got the analysis of public comments from Content Analysis Enterprise Team (CAET), less than a week after comment closed the IDT trotted out its range of alternatives. One pattern in all of them was that the “conservation strategies” were not focused on providing habitat, but rather on limiting logging. The HFQLG pilot project was not one of the alternatives to be considered for long-term management in the Northern Sierra Nevada mountain range.
On February 2, 1999, three members of the SPAM Team (John Keane, Amy Lind, and Joseph Furnish) met with the US Fish and Wildlife Service to discuss “associated species” that would be analyzed in the EIS.
On February 17, 1999 there was a Forest Supervisor Coordination meeting held to explain the SNFPA EIS process to forest supervisors. At that meeting, forest supervisors were told that the task of the Framework Science Team was to mostly review and approve parts of the EIS as they are drafted. The notes from that meeting indicate there were written Washington Office advice memoranda to Region 5 on how to handle the HFQLG EIS analysis and implementation. Forest supervisors were told, “We will do viability analysis for QLG within the Framework.” (page 6 of 9, 2/17/99 Forest Supervisor Coordination meeting notes) EIS alternatives were presented, with the goals of each alternative being one point of comparison. Forest supervisors felt there wasn't enough information to know if the range of alternatives was sufficient.
Notes of a meeting on March 24, 1999 record that EPA's Leonidas (Lon) Payne stated that if the Preferred Alternative in the final [EIS] is vastly different from the draft, then the public comments period should be reopened. Danny Lee, the Framework Science Team leader, replied that FWS and EPA would be part of choosing the Preferred Alternative.
A major meeting between two EIS teams was held at the end of March 1999. The ID Team and the Science Team met on March 31 and discussed the details of Alternatives 1 through 8, including land allocations and standards and guidelines. There is no indication, however, that any of the analyses normally considered precursors to plans — e.g., a description and assessment of current conditions, identification of public issues, land suitability determinations, ASQ and associated calculations required by NFMA — had been conducted. But there had been “a tremendous amount of outside consulting” regarding spotted owls...
The combination Science and ID Teams made a long list of action items and assignments, mostly about coordinating owl standards with goshawks and carnivores, and about identifying data needs for viability analyses. The assembled group could not decide whether to add a “social use” layer to their analyses, nor even whether they knew enough about economic analyses to be able to add such a layer. Significantly, the meeting notes indicate that the so-called “Collaboration Team needs to share issue document from CAET (and other internal documents).” (p.4)
Region Five convened dozens of teams, task forces, steering committees, etc., and pushed, prodded, and cajoled all into accepting sub-par and shoddy analyses and conclusions in order to meet short deadlines that were arbitrary from the outset.
Region Five convened panel after panel for evaluations that could pass as viability analyses, but never did produce anything more definite than “vulnerability assessments” and were, in fact, still trying to develop a spotted owl conservation strategy after the FEIS was sent to the printer.
There was a multi-day Science Team/ID Team meeting in mid-April 1999. Dr. Danny Lee reported that they decided on analysis models, etc. for DEIS alternatives. Steve Clausen, ID Team Leader, later replied, “We need to move forward and can't wait for the Science Team's diagrams.”
April 22, 1999: Forest Coordination Field Trips – It is reported that local Forests are also telling ID Team that the standards and guidelines are unworkable. Quotes from the record include:
John Phipps, Eldorado NF supervisor: “I keep hearing, `Politically, we're going to have to do it this way.' Well, it's not the ID team's job to think with political filters on.” (p.3 of 15, 4/22/99 meeting notes)
“The Sequoia is like the Stanislaus — we've lost 1/8th (5 of 40) SOHAs through fire and disease in the last 10 years.” (p.5 of 15, 4/22/99 meeting notes)
Danny Lee: “Viability Assessment — Need to clarify the `V' word. To start with, no viability analysis has been done, no decision has been made, what you have seen is a lot of people making assumptions.”
“Can a focus on ecosystem management also meet all the individual species' needs?” (p. 9 of 15, 4/22/99)
ID Team discuss and admits that there's not much difference between alternatives.
“The mapping of owl habitat still needs more critical peer review; this is an example of work still needed prior to identification of a preferred alternative.” (p.13 of 15)
As early as April 1999 but probably earlier as well from the context, the Forest Service had decided that basic inventorying of various resources was not part of pre-planning, but rather of “status and change” monitoring. The consequence of this determination was a distinct, significant, and premeditated/intentional lack of accurate baseline information for use in the modeling and analysis of the affected environment and alternatives in the EIS. The SPAM Team had been given responsibility for the contents of the monitoring chapter of the EIS, but “what stays in and what goes out will be a political decision.”
During May and June 1999 the Forest Service's Interagency Team meetings were focused on providing comments on the DEIS, but there was one problem: none of the DEIS chapters were ready. Kent Connaughton told the IA Team that the DEIS would be sent to the printer within 4-6 weeks, and that “[t]he scope of the EIS will not be subject to change and should not be a focus of comments.”
The SNFP Monitoring team ( SPAM Team) sponsored a “Monitoring Strategy Statistical Workshop” June 15-17, 1999. This was a Lake Tahoe multi-day affair involving statisticians from the Forest Service and other agencies across the United States, who were exploring possibilities of future working relationships. John Keane from the Forest Service Science Branch was on the agenda for “Review of Special Projects” to present “Focal Species Analysis.” This document also states that the USFS wanted the monitoring to occur at a regional scale. In the full meeting, there was not one word recorded regarding uncertainty regarding spotted owl management, HFQLG, or any specific administrative study. The notes reflect that the SPAM Team decided to model their implementation monitoring plan after the one in the Northwest Forest Plan -- then had to find out what that plan was.
June 21-23, 1999: Sacramento Spotted Owl meeting
June 24, 1999: Furbearer meeting. The US Fish and Wildlife Service participated in California spotted owl and furbearer meetings during development of the DEIS and FEIS, including discussions where the ID Team decided that the SNFPA would essentially be recovery plans for non-listed and non-proposed species such as California spotted owls, northern goshawks, and pacific fisher. A Forest Service meeting note states, “We want to stand with the US Fish and Wildlife Service that the Record of Decision would meet the viability and recovery issue.” (June 24, 1999 furbearer meeting, p. 11 of 14) The ID Team decided at this meeting that recovery management for the fisher would cause big changes in the Framework. (p.14 of meeting notes)
The meeting notes from July 2, l999 indicate that, “Kent Connaughton handed out the final report from the `Committee of Scientists'. Connaughton explained that this report provides much of the guidance for the current EIS project.” (p.1, 7/2/99 meeting notes)
“Danny Lee summarized meeting of spotted owl specialists in Sacramento last week.... The owl experts agreed that there is insufficient information available to answer the key questions about owls and owl habitat. However, research is under way that will provide better information in 3-5 years. Given this condition, the team will develop some working hypotheses about owl habitat relationships that can be used as experiments under an adaptive management framework during implementation of the EIS.” (p.1. 7/2/99 meeting notes)
August 24-25, 1999, “Highlights and Notes from Old-Forests Workshop” has very succinct description of the species vulnerability assessments ranking system by John Keane on pp.30-31.
On October 4-7, 1999, another major, multi-team meeting was held to discuss the “Scientific Information Needs Strategy.” Items from the meeting notes — as far as we know, the only record of the agency's planning process — reveal the cart-before-horse
implementation of this EIS process, and reveals fundamental planning failures. Excerpts from the 21 pages of meeting notes:
Pat Manley: “Inventory - doesn't sit on anyone's plate” (p.1)
Connaughton: “in contrast to Forest Plans and multi-use and outputs” (p.2)
“Information needs surfaced in development of alternatives”
Diane MacFarlane: “Philosophic viewpoint of how we are designing EIS based on lack of information, such as OHV effects on carnivores. Where we don't have information on effects that are detrimental, we don't allow those activities to go forward; however, we need to show these activities are detrimental with some data to show that conservation efforts are critical.” (p.5)
“JV - Biggest hurdle is the line officers.”
“JV - Need to start getting logging and fire history now from forests.”
See page 7 of the meeting notes for a summary of inventory unknowns
“KP - In EIS there is implied inventory, it isn't there,” and, most tellingly,
“Purge any draft documents from your files (electronic too). (You'll be glad you did this later.)” (p.16)
At the Interagency Team meeting of October 14, 1999, Forest Service employee Dawn Lipton outlined what the viability analysis would entail, including “primary threats,” though there were no requirements for such analyses cited.
The November 30, 1999, conference call notes for SPAM team say that the technical/peer review of viability assessment is done and there will be a write-up...
The FY1999 SPAM Progress Report describes the roles and work products of the Sierran Provinces Assessment and Monitoring (SPAM) Team for the Sierra Nevada Forest Plan Amendment EIS.
Sierra Nevada Framework Project “DEIS deliverables” are listed in the 1999 annual report as including the following critical elements of the overall EIS: (a) completion of the Ecosystem Process Conceptual Model; (b) development of “a scientific approach to prioritize terrestrial vertebrates for conservation and monitoring” (p.3) -- which resulted in the invention of the “vulnerability status assessments” for more than 400 species of animals (p.5); (c) Sierran All Species Database; and (4) draft “prospectuses” for ecosystem processes associated with the DEIS topic areas. “The use of the Ecosystem Process Conceptual Model was to identify linkages between ecosystem processes and the EIS `Problem Areas.'” (p.4) “The SPAM Team assisted the EIS team in using the EPC Model to identify attributes used to address issues, and to illustrate the relevance and scientific basis for the attributes in an ecosystem context.” (p.4)
So what were the ecological connections between attributes and issues, and the scientific underpinnings for those connections? Though “the SPAM Team developed `prospectuses' for each key process in the EPC model, there are no study plans dealing with forest stand dynamics, succession, fire, prey ecology, west-side hardwoods, non-native species invasions, etc. The EPC is strangely disconnected from either the identification or evaluation of the Framework's “problem areas.” Nothing in any of the SPAM team's work even focused on spotted owls, furbearers, etc., even though the progress report states, “The SPAM Team is continuing to identify high priority attributes to be monitored in association with each of the problem areas.” “The results of our analysis provide an objective basis for identifying priority species, and associated priority environments.” (p.12 of 82) In fact, the SPAM Team's vulnerability assessments found spotted owls to have only a “moderate vulnerability”, along with 167 other species.
The fiscal year 1999 SPAM report states:
“For the Sierra Nevada, we needed an objective, defensible approach to prioritizing terrestrial vertebrates for conservation and monitoring. We assessed the vulnerability status of 427 native species based on estimates of population size, population trend, and change in distribution between pre-European and current time periods using both summary scores to produce a linear ranking and cluster analysis and decision tree-based models to determine the components of vulnerability status groups — high, moderate, and low vulnerability. Forty-two species were classified as highly venerable [sic!] and were characterized by declining population trends and >=50% range contractions. The Moderate VG group was comprised of 168 species characterized by declining population trends and <49% range contraction to stable ranges. The remaining 217 species with stable or increasing population trends and ranges were classified in the Low VG. The High VG species were unevenly distributed among the high priority environments identified as problem areas in the Draft EIS. Only one of the 42 species was hypothesized to be dependent on late-seral/old-growth forests, 10 species were dependent on western foothills, and 21 species were dependent on riparian/meadow environments. The results of our analysis provide an objective basis for identifying priority species, and associated priority environments, for conservation that can serve to focus funding for research and monitoring on those species at greatest risk of extinction or extirpation from the Sierra Nevada Bioregion.” (pp. 5-6)
The FY99 SPAM Progress Report also lays out “Next Steps” and “Special Projects” for the FY2000 work... HFQLG was not a case study or subject; spotted owl research not an urgent topic; and there was no mention of the need for administrative studies.
The state of the subject list and the status of work as of 11/30/99 is remarkable for what's not considered there: fire, owls, furbearers, old growth.
By December 14, 1999, the SPAM Team report says that decision had been made to essentially release DEIS and save the Washington Office changes for the FEIS
Feb. 8-10, 2000: Technical Group Panel Assessment Meeting a.k.a. Viability Panel Assessment for CSO
May 2, 2000: FWS sends IDT the species list it should be working on for the EIS
May 5, 2000: DEIS released for public review
The Interagency Team meeting of June 14, 2000, was a major one. Kent Connaughton asked the interagency group to recommend “decisions that should be made in the Record of Decision.” Team was asked to suggest alternatives they could support and recommend to the USFS. On p.3 of the meeting notes, Lon Payne of EPA lists “refinements” necessary for EPA to support either Alternative 6 or Alternative 8. Number five on the list was to revise the HFQLG ROD: “The basic idea is that the Quincy Plan should be superceded where the Framework is more specific or more protective....” Number six on the EPA list was “Any other changes necessary to avoid a jeopardy opinion from FWS.”
In June of 2000: The Washington Office comments on the DEIS
June 26, 2000: USFWS, State, and EPA all met with Framework officials.
July 6, 2000: “Interagency Team is a forum for discussing agency views about the draft EIS.”
Kent Connaughton named “several unresolved issues with the DEIS” that were huge issues: (1) Should there be specified timber harvest levels in the EIS; (2) Should EIS consider maintaining a viable timber industry; (3) How should sensitive wildlife habitats be managed,” etc. The Forest Service was identifying these issues after the DEIS has been printed and released for public comment. This demonstrates that Framework officials knew at the time that they released the DEIS that the DEIS was woefully inadequate. According to the July 6, 2000 meeting notes Catherine Hibbard said a “new study from Verner may narrow the uncertainty gap before final.” There was plenty of discussion at the July 6 meeting about the infeasibility and undesirability of the effects of the S&Gs, and that the Framework's goals could not be realized under those S&Gs.
Also in July 2000,the Forest Service's Washington Office sent a “National Review Team” to Sacramento work on EIS and viability analysis issues which the Team characterized as improvements, not wholesale changes).
At the July 26, 2000, meeting the Interagency Team discussed each member agency's DEIS comments. Kent Connaughton told the Team there were four principal sources of advice... and the Forest Service is two of the four. Maria Boroja and Katherine Hibbard said “some work on this is already in progress between the FWS and Framework ID Team.”
July 31, 2000: Forest Recreation and Engineering staff officers meet to discuss the standards and guidelines.
By August 7, 2000, the “National Review Team” from the USFS Washington Office was expected to finish up EIS review momentarily. There was still no hint anywhere in the record of a need for a new alternative. At this point in the timeline, the Forest Service ID Team is telling the public that it is reviewing and suggesting “refinements to the S&Gs.”
August 11, 2000: Public comment period on DEIS ends
August 18, 2000: Interagency Team negotiated internally re: adaptive management, “flexibility” (variance procedures for standards and guidelines but not a NEPA decision process), and possibly viability determinations. Lon Payne (EPA), Louis Blumberg (CDF), Mike Chapel, Kent Connaughton, and Maria Boroja (USFWS) all took part in these negotiations.
The Forest Service prepared a Biological Assessment (BA) for the DEIS and submitted it to the US Fish and Wildlife Service on August __. The BA did not cover CSO, NOGO, great gray owl, furbearers.... So no determinations were made for unlisted species.
Some time during the month of August 2000, the SNFPA's monitoring and adaptive management plan was finally produced by the SPAM Team which had, ironically, existed longer than the Framework itself. The California spotted owl was not found to be a “high vulnerability” species. “Vulnerability ratings” were substituted for viability assessments for __ species in the Sierra Nevada's national forests. Their evaluation did not show the HFQLG Pilot Project to be a threat to either the continued existence or the viability of spotted owls or any other species, listed or not.
Near the end of the August 29, 2000, meeting, Kent Connaughton said: “Some alternatives require a trust me statement, and the reality is most people are buying it. You purchase flexibility with these types of commitments. Until we can put this on the table, the regulatory agencies won't be able to see that we're doing the right thing. We have an opportunity here. An element of the decision is to obligate to a feedback loop and we need some efficiencies.” (p.5 of 6)
August 30, 2000: MOA authorizes USFWS to issue biological opinion on petitioned species, e.g., CSO
Notes from the September 6, 2000, Interagency Team meeting reflect just how fundamentally incomplete the DEIS was when it was being reviewed by the public: Page 5 of the meeting notes contain the following items: “Need to complete spatial analysis for fuels management options for species viability assessments” and “The Forest Service should work with the FWS to find ways for completing credible viability assessments.”
The Forest Service recognized that external DEIS comments called for local flexibility to apply standards and guidelines; internal USFS comments were to propose changes in the standards and guidelines, however what the proposed changes were has not been retained in the planning record. By September 2000, various IDT and SPAM meeting records indicate that Forest Service was discussing proposed changes in the standards and guidelines of the FEIS.
On September 13, project leader Kent Connaughton told forest supervisors and regional directors that the FEIS and ROD timeline update included modeling to be completed by September 30, 2000; with effects analysis by October 31, 2000; and the FEIS and ROD by November 30, 2000.
9/27/00 SPAM [Sierran Province Assessment and Monitoring] Team meeting notes recorded an update on “Forest Service Operations” that said, “commitment to adaptive management is out, and mechanical treatments limited and deemed more of a research question.” Later on the meeting notes hint at the fluidity and confusion surrounding the rush to the FEIS and ROD: Regarding “species/community monitoring, we have some discussion required for this that I will bring some of you in on.” “New standards and guidelines due out the first week of October.”
The SPAM Team was still debating what to write, what to do, and how to do it at the end of September 2000. The team had not made any geographic or species-specific adaptive management or monitoring decisions. In particular, nothing in the SPAM Team's work or notes identifies the HFQLG Pilot area as a place to focus monitoring or adaptive management programs. Instead, SPAM Team discussed spotted owl and northern goshawk monitoring on a range-wide scale, not-HFQLG-centered. No planning documents make any record of any team considering or recommending any sort of experimental or administrative study program in the northern Sierra forests.
Even as late as the September 28, 2000, SPAM Team meeting, there was no discussion recorded of the five urgent SNFPA issues within the lists of task assignments handed out to SPAM Team members (which included “Matt and Michelle will do library work to identify candidates of focal species,” “work with Cathy so aquatic species not overlooked,” and “need to propose what habitat features will be monitored.” (p.4 of 17) The meeting notes record that Tom Dell is “to pick up where Jo Ann Fites and Jim Boulding left off with analysis of adequacy of existing FIA grid to detect changes in structure and condition over time [at stand scale], determination of appropriate habitat attributes.” (p.11 of 17) The multiple-species monitoring plan had not yet been written (p.6 of 17), but the team recognized a “need to develop a rationale that inextricably ties this to Focal Species monitoring, or `we'll get killed'....
October 2, 2000 Weekly Report: “Framework Science Integration and Interdisciplinary teams will meet on October 2, the official start of effects analysis based on updated modeling and standards and guidelines.”
October 9, 2000 Weekly Report: “Framework Science Integration and Interdisciplinary teams met to begin the effects analysis based on updated modeling, standards and guidelines and updates to alternatives.” Weekly Report also announced there would be a “Framework ALL HANDS meeting on October 11.”
October 11, 2000: A 12-page narrative document entitled “Description and interpretation of modeling results in projection of future conditions” was put into the planning record. Metric by metric, the narrative gives comparative descriptions of the alternatives' projected achievements through the planning horizon. Most significant about this is that the supposedly critical habitat elements – old forest, owl nesting habitat, and large old trees – are met in the current conditions and by all action alternatives. On a Forest-by-Forest basis, the Forest Service discussed the fact that Plumas, Tahoe, and sometimes Lassen Forests have already met desired condition metrics or will within 10-30 years under all scenarios.
The October 16, 2000 Weekly Report: “Framework representatives are working with US Fish and Wildlife representatives in developing a conservation strategy for several species, including the California spotted owl and fisher.”
October 30, 2000 Weekly Report: “At the request of Science Integration Team Leader Peter Stine, owl biology experts will convene on November 2 to discuss the technical aspects of owl conservation.”
October 2000 Sierra Nevada Framework Overview document (for public consumption): “What are we doing about protecting wildlife . . . Both the Forest Service and Fish and Wildlife Service feel that immediate steps must be taken and are working closely on developing strategies for conserving habitat for these species....”
On November 2, 2000, there was a California Spotted Owl Conservation Strategy Discussion meeting in Sacramento. This meeting was described elsewhere as a meeting of owl scientists regarding the “technical aspects of owl conservation.” Excerpts:
“Petition accepted by USFWS. There have been ongoing discussions between R5 Regional Forester Brad Powell and USFWS California/Nevada Operations Manager Mike Spear.”
“Steve Clausen: We used to have a timber program. Based on past perception. No ASQ in this effort. This is different. You can't design a plan for dinosaurs, need plan for the future.”
“Phil Detrich: Nothing in this plan assesses timber program outside of treatments. Would need to do separately. Maria Boroja: The amendments to LRMPs will override current timber program? Steve Clausen: Yes.”
November 6, 2000 Weekly Report: “Members of the Interdisciplinary Team continued to meet with US Fish and Wildlife Service to discuss California spotted owl and carnivore strategies.” Also: “California spotted owl scientists met with some of the ID Team members, California Department of Fish and Game, and US Fish and Wildlife Service to discuss technical elements of the draft conservation strategy.”
The notes from the November 7, 2000 SPAM Team conference call indicate: “We decided to cancel November 13 meeting due to lack of interest.” and “QLG — monitoring effort is starting to move on design and data collection this spring. Rema volunteered to review QLG to identify overlap between our plan and the QLG plan. We'll meet and discuss how the two efforts can collaborate.”
In mid-November the Science Consistency Review Team was convened after having been sent incomplete drafts of the FEIS.
Three consecutive Weekly Reports (November 20, 27, and December 4, 2000) contain identical statements about the status of the most critical parts of the EIS: “Framework Interdisciplinary and Science Team members continue to meet with US Fish and Wildlife Service representatives to develop strategies for conserving wildlife habitat.” There was still no mention of a new alternative in the Weekly Reports.
The November 27, 2000 Weekly Report also states, “Framework staff and representatives from the HFQLG Pilot Project forests continue to review the relationships and coordination between Pilot and various alternatives. The team is developing an analysis of effects of Framework alternatives on HFQLG Pilot Project for consideration by the Regional Forester.”
The Sierra Nevada Conservation Framework Overview for December 2000 hinted at FEIS changes and updated analyses, but there is still no mention of there being a new alternative having been created, let alone that it was about to adopted without any further disclosure to or review by the public. Similarly, the December 2, 2000 “In Brief” press release by the USFS Regional Office gave “Selected Projected Statistics (DEIS)” but did not intimate the existence of the new alternative.
The actions taken to rewrite and complete the EIS from August through December 2000 are not entirely documented in the planning records. Public information releases said one thing; internal agency updates said quite another. One was “continuing to develop an owl conservation strategy” while the other line was “continuing to improve” the EIS. But in an internal e-mail dated December 1, 2000, Catherine Phillips wrote to Julie Lydick, “As you probably know, we are putting the last touches on the preferred alternative.”
On December 9, 2000, Chris Iverson, a USFS biologist assigned as part of the “WO Review Team,” completes the draft of the owl conservation strategy that appears in the ROD.
On December 11, 2000, the Weekly Report noted: “Framework and US Fish and Wildlife Service representatives continue to work on strategies for conserving wildlife habitat.”
The December 13, 2000, status report said “clarifications and refinements to the analyses in the DEIS” would be reflected in the FEIS and ROD.
The Forest Service prepared a Revised Biological Assessment by December 20, 2000, in which the USFS states on page 4 that a letter from the FWS rendered their original BA “obsolete.”
The U.S. Fish and Wildlife Service issued its Biological Opinion on the SNFPA FEIS on January 11, 2001. The FWS cited a Memorandum of Agreement dated August 30, 2000, as the authority under which FWS rendered Biological Opinions on species that are candidates or petitioned for listing pursuant to ESA before it proceeded to issue findings and management recommendations covering the California spotted owl, northern goshawk, and other species which are neither listed nor officially proposed for ESA listing. The January 11 document also referenced its receipt on December 20, 2000, of a Revised Biological Assessment for the SNFPA EIS, which included modified alternative 8 by the FWS. The January 11 document specifically stated that the FWS was basing its Biological Opinion on the assumption that the USFS information was all correct and accurate. The Biological Opinion made no findings of jeopardy for any species.
[Section 7(a)(4) of ESA requires Federal agencies to confer informally with the USFWS on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of its proposed critical habitat. Measures contained in a conference opinion are advisory only, however. 67 Fed. Reg. 127, p.44390-1]
Jan. 12, 2001: The SNFPA FEIS and Record of Decision was signed by the Regional Forester
April 17, 2001: QLG et al file their administrative appeal
May 2001 The Regional Office of the Forest Service orders the LNF, PNF, and TNF supervisors to get going on the administrative study authorized in the ROD.
Dec. 2001 The QLG appeal is denied, but R5 ordered to review the appeal issues.
Jan-Feb 2002: The Review team is formed by the Regional Forester.
June 2002: The owl experts are brought back in; they deny support for SNFPA owl conservation strategy as insofar as it prescribes diameter limits.
IRREPARABLE HARM.
Respondents' action will result in irreparable harm to Petitioners in that the adoption of the SNFPA Environmental Impact Statement and Record of Decision will:
a. Cause significant environmental impacts that should have been mitigated or avoided;
b. Will adversely and unlawfully effect Petitioners' rights, or the rights of the general citizenry of Plumas County and the other residents of the Sierra Nevada.
c. Will unlawfully deprive Petitioners of the protection due them under the National Environmental Policy Act, the Act's implementing regulations, the National Forest Management Act and corresponding implementing regulations and the Administrative Procedures Act. Petitioners have been harmed by the actions of the United States Forest Service in restricting the lawful implementation of the HFQLG Act and these injuries are irreparable and ongoing unless restrained.
Petitioners have exhausted their administrative remedies in that they have each taken part in many years of Forest Service planning activities on the subject matter of the SNFPA process, and they have brought before the United States Forest Service in the appropriate administrative processes each and every point now presented to this Court and submitted evidence pertinent thereto.
Petitioners have no plain, speedy, or adequate remedy in the ordinary course of law within the meaning of ----------------------------, in that the United States Forest Service decision cannot otherwise be reviewed at law.
Introduction
The SNFPA 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 which Congress required to be completed at a specified scale and pace.
Forestry policy has long been a contentious issue in the United States, pitting the culture and livelihoods of many Americans against the conservation values of others. This inherent tension escalated quickly in the late 1980's when the Forest Service released its proposed management guidelines on the northern spotted owl (a listed species under the ESA) in 1986. Logging mills began to close in the Pacific Northwest (Washington, Oregon, and northwestern California) as a result of ESA related procedures and decisions.
The California spotted owl (a species not listed under the ESA) ranges in the forests surrounding Quincy and, consequently, community members and timber companies in Northern California were fearful of a shutdown similar to the one occurring in the Pacific Northwest. Meanwhile, United States Forest Service timber sales all over northern California were on the decline. On the Plumas National Forest the cut decreased from 205 million board feet [mmbf] in 1987 to 120 mmbf in 1991, and it has continued to decline to 17 mmbf in 2002.
Quincy, Susanville, and Downieville (the county seats of Plumas, Lassen, and Sierra Counties) are surrounded by three national forests: the Plumas, the Lassen, and the Tahoe. The federal government owns 75 percent, 54 percent, and 59 percent, respectively, of the land in these counties, and each county's economy is significantly dependent on the timber and biomass industries. Forest Reserve Revenues, which are derived from timber receipts have historically represented a significant portion of their school and road budgets, and these (receipts) revenues fell in proportion to declining national forest timber sale revenues.
Forest Conditions.
Forest Service specialists in the QLG area have described three zones that characterize the local forest structure: mixed conifer with relatively high annual precipitation in the west; mixed conifer and pine with less precipitation in a transition zone starting just east of the main mountain ridge; and eastside pine with little precipitation in the east. Due to fire suppression and other historic management practices, these forests are now quite different from their original species composition and structure. The mixed conifer to the west has lost much of its original pine component, and is now generally dominated by white fir. The transition zone has also lost much of its original dominance by pine, with white fir and incense cedar encroaching upon or replacing pine at mid elevations, with a few largely unaffected red fir stands at high elevations. The eastside is still heavy to pine, but there is a significant encroachment by white fir that is not well adapted to the east side soils and climate.
The age distribution of trees and the structures of these forests at low and middle elevations have also changed, from the original stands dominated by relatively few trees of relatively large size, to today's stands that have fewer large trees, an over-representation of middle size trees, and hundreds of very small trees per acre.
The proliferation and encroachment of white fir degrades forest health and contributes heavily to an extreme fire hazard. There are two main reasons: (1) the hundreds of small trees per acre make a highly combustible fuel bed and form a fire ladder to carry ground fire into the crowns of the larger trees; and (2) where white fir is overcrowded or has invaded the drier pine stands, it is overly susceptible to disease and drought, and the dead trees become sources of spreading infection and infestation, and exacerbate the fire hazard.
The California Spotted Owl and the CASPO Report.
In 1992, Region 5 of the USFS issued The California Spotted Owl: A Technical Assessment of Its Current Status, PSW-GTR-133 (the CASPO Report), Verner et al, 1992. The CASPO Report reviewed the spotted owl literature and science, and made findings and recommendations for spotted owl management. It evaluated the northern spotted owl management prescriptions (large bloc exclusion of management) and found it likely to fail in the Sierra Nevada because of the higher likelihood of catastrophic wildfire in the fire-adapted ecosystems of the Sierra.
The report found that the hotter and drier climate of California made it unlikely that the owl habitat could survive over time in present conditions. Thus the Technical Report recommended an active management prescription that became known as the “CASPO prescription.” This prescription was designed to protect owl habitat from inappropriate old-growth logging and yet required active vegetation management (logging and biomass removal) to remove the threat to owls and humans from catastrophic fire.
The authors recommended instituting “interim guidelines” for timber management in Sierran national forests that would retain forest structures known to be important to California spotted owls, and aggressively reduce forest fuels to protect the existing old growth and owl habitat from loss to severe wildfire. The California spotted owl Sierran Province Interim Guidelines (the CASPO guidelines) were promulgated in 1993, and remained the legally binding management direction for these national forests until the signing of the Sierra Nevada Forest Plan Amendment (SNFPA) Record of Decision.
The Quincy Library Group.
The Quincy Library Group (QLG) is a loosely organized coalition of northeastern California residents who represent a broad range of local interests, from environmentalists to loggers, with all manner of other local government, business, industrial, and plain citizen interests in between. QLG grew out of informal exploratory conversations among a timber company manager, an environmental lawyer, and a Plumas County Supervisor, who were attempting to find common ground for de-escalation of the “timber wars” that resulted from the Northern Spotted Owl controversy and other related changes in management of local national forests. During early 1993 these talks expanded, went public, usually took place at the library meeting room (hence the name), and produced the Quincy Library Group Community Stability Proposal (of) signed in July of 1993. (QLG CSP).
While debating and trying to reconcile the wide variety of viewpoints represented, community members involved in QLG learned that federal law (the Organic Act) dictated that the first purpose of national forests was to protect watersheds, a policy adopted in response to growing demands from farmers for reliable sources of irrigation water. The second purpose for the federal land was to produce commercial timber. These dual functions marked the beginning of the Forest Service's long history of attempting to balance multiple and sometimes competing interests.
The Multiple Use, Sustained Yield Act added secondary purposes to the law that included recreation, fish and wildlife, wilderness and other uses which complicated resource management but did not alter the forests' original purposes of watershed and sustainable timber production. Members learned that the philosophy of the original Forest Service laws was as expressed by Gifford Pinchot, the first Forest Service chief, that “all the resources of forest reserves are for use,” and that view of law and policy was relatively unchallenged until approximately 1990, when the northern spotted owl listing changed the use ethic de facto, if not de jure.
QLG members learned that, in response to changing knowledge in the sciences relating to natural resources, Congress passed the National Environmental Policy Act [NEPA] in 1969 and the National Forest Management Act [NFMA] in 1976. The National Forest Management Act heralded a new era in forest management, one that called for regulation of timber (extraction) management and the protection of non-timber forest values. The act mandates that timber (cuts) sales be performed in a way that allows for the protection of streams and soils, and it requires the Forest Service to provide for “diversity of plant and animal communities.”
NFMA also created new planning procedures, including requirements for extensive public input, increased scientific research, consideration of all resources (not just timber (production) management), and interdisciplinary decision-making teams (rather than those made up exclusively of foresters). The planning process mandated by NFMA directs the Forest Service to develop a Land and Resource Management Plan [LRMP] for each national forest and to revise it every ten to fifteen years. Regulations require that an EIS, subject to public comment, be developed. The present Land Management Plans for the HFQLG Pilot Project forests were developed using the 1982 NFMA planning regulations (36 CFR Part 219), and those plans call for management activities that are substantially different from present actual management. The SNFPA did not follow the current regulations; it followed draft Clinton administration regulations that were later withdrawn. Following the process authorized in the draft regulations resulted in sacrificing timber (production) management and the resulting economic benefits to the local community.
The National Environmental Policy Act, for its part, calls for a `productive harmony “ between the economy and the environment. Past on the ground experience has convinced QLG members that the implementation of the HFQLGA and the adoption of the SNFPA failed to provide such harmony. The Forest Service, by refusing to consider the QLG Act as an alternative in the SNFPA or to fully consider the adverse economic effects of the hastily drafted Mod-8 Alternative chosen in the ROD, is responsible for severe economic and environmental consequences to the local communities in the Sierra Nevada.
QLG members also learned that the best available scientific information on California spotted owls was “The California Spotted Owl: A Technical Assessment of its Current Status,” PSW- GTR-133, July 1992, (the CASPO Report). That report recognized that fire is a major hazard to owl populations, that fuel reduction was needed in response to the fire hazard, that active management of habitat and long term forest restructuring were needed, not just untouched reserves, and that:
“One kind of structure that may have promise for production and long-term maintenance of owl habitat is a multi-aged mosaic of small, even-aged groups or aggregations. Groups would generally range from about 2 acres down to a quarter-acre, of possibly less. Probably this type of structure best approximates pre-settlement stand structures... Openings would be sufficiently large to permit regeneration of shade-intolerant trees... Multiple size classes in general would be separated horizontally rather than vertically, but in sufficient proximity to satisfy this attribute of suitable owl habitat. The horizontal separation of size classes also would confer some degree of resistance to crown fires..” (CASPO Report, p. 271)
The above is a good description of group selection silviculture, which was adopted, along with other recommendations of the CASPO Report, into the QLG Community Stability Proposal.
The purpose of the QLG Community Stability Proposal is “...to promote forest health, ecological integrity, adequate timber supply and local economic stability... [allowing] local communities to survive while long-term plans are developed, yet afford adequate environmental protection during this interim period.” It recommended deferring management on certain large sensitive areas (“off-base” and “deferred”) while long-term plans were developed, and three management strategies to be implemented simultaneously in the remaining “on-base” areas: (1) group selection silviculture; (2) the fuels management objectives recommended in the CASPO Report; and (3) protections for riparian areas and a program of watershed restoration.
The Proposal was drafted, approved and signed by 27 members of a QLG Steering Committee, and over half of those original members are still active. Those who dropped out for various reasons have been replaced by other active members of similarly broad interests, resulting in a near steady Steering Committee membership of about 30 people.
Early in 1994 QLG members went to Washington, DC, to inform Congress of the Proposal, and to ask the Forest Service and the Clinton administration to implement it. Initially the USFS and the Clinton administration were highly supportive of the proposal, and directed the Region and the local forests to implement its principles as much as possible where consistent with LRMP direction and available resources. Some additional funding was provided to local forests in 1994 and 1995, and in 1996 Secretary of Agriculture Dan Glickman announced a $20 million commitment to carry out “activities consistent” with the QLG proposal. In response, industry and the community made substantial financial investments preparing to do restorative forestry, and members of the QLG spent numerous volunteer hours around the country talking about common sense solutions to forest management problems.
Unfortunately, very little QLG-consistent management was actually accomplished on the ground, since most of the $20 million was allocated to business-as-usual activities, not implementation of the QLG Proposal. Meanwhile, the 44,000 acre Cottonwood Fire that threatened the town of Loyalton in 1994 renewed local concerns about wildfire and the need for thinning and fuel reduction at a pace commensurate with the scale of the fire hazard.
Local experience, Native American lore, diaries and letters of early settlers, fire history studies in the area, and scientific evaluations in the CASPO Report and the Sierra Nevada Ecosystem Project (SNEP) report all agreed that the current hazard of catastrophic high intensity fires was now unnaturally large and growing. It was clearly evident that the current pace of fuels reduction could not keep up with, much less get ahead of, the continuing accumulation of new fuel, and that restructuring the forest to re-establish it historic species composition and fire resilience was not occurring at all.
Seeing the local forest-based industry entering a death spiral, and beginning to appreciate the futility of trying to persuade the Forest Service to implement its Proposal in any meaningful way, in 1996 the QLG decided to take a different approach: it would ask Congress to pass legislation requiring the Forest Service to implement the Community Stability Proposal. In July 1997 the House version of the Quincy Library Group bill, H.R. 858, passed by a vote of 429 to 1. In 1998, the Senate passed the QLG bill as a rider to the Appropriations Bill. President Clinton signed the bill on October 21, 1998, and the Herger-Feinstein Quincy Library Group Forest Recovery Act became law.
The HFQLG Pilot Project
The HFQLG Act directs the Secretary of Agriculture to implement a Pilot Project on the Plumas, Lassen, and Tahoe National Forests. It specifies three management activities: (1) Construction of not less than 40,000 nor more than 60,000 acres per year of Defensible Fuel Profile Zones (shaded fuelbreaks); (2) Group selection harvest on an area the Forest Service computed to be 8,700 acres per year (individual tree selection is also permitted); and (3) Riparian protection and watershed restoration. The Act further specifies that while implementing these activities the Forest Service shall use the most cost-effective means available, and shall abide by the California spotted owl Sierran Province Interim Guidelines (CASPO guidelines) for management of spotted owl habitat.
The Act also designated “off-base” areas (about 320,000 acres) which exclude the management activities from road-less areas and other sensitive lands, and “deferred” areas (about 147,000 acres) where the specified management will not take place during the term of the Pilot project. In addition, spotted owl protected activity centers (PACs) and certain other non-forested lands are excluded, leaving about 1.5 million acres of “on-base” area available for Pilot Project implementation.
In August 1999, the Forest Service completed the HFQLG Pilot Project EIS and Record of Decision (ROD), adopting Alternative 2, a faithful implementation of the HFQLG Act. The FEIS and Decision Notice found that the HFQLG pilot program was environmentally beneficial except for a “potential” to perhaps cause a trend toward listing for the California Spotted Owl. However, at the last minute, without any foundation in the EIS, the ROD over-rode the CASPO guidelines with a so-called “mitigation,” which in effect gutted the Pilot Project by prohibiting the intended DFPZ construction or group selection on any lands deemed to be actually or potentially suitable for owl habitat.
Since that excluded management on virtually all of the “available” land of the west side, and most of it in the transition zone, where the forests are thickest and most in need of thinning, the “mitigation” effectively crippled the Pilot Project. The only DFPZ construction and group selection harvests permitted would be in areas where costs would be high, effectiveness of the treatments in reducing the fire hazard relatively low, economic benefits to the communities much reduced, and federal revenue almost non-existent. The HFQLG EIS had projected that the Pilot Project would return about three dollars to the Treasury for every Forest Service dollar spent. Instead, under the mitigation and subsequent decisions it has returned only ___cents for each dollar spent.
QLG appealed the decision to impose the ill-founded and unjustified “mitigation” on the Pilot Project, but that appeal was rejected. The ROD ordered that reconsideration of all spotted owl issues would be handled in a Sierra Nevada Conservation Framework then being initiated at the Regional level. Increasingly desperate workers, contractors, mills, and the forest-dependent local economies would have to wait for that process to grind out a solution. Meanwhile we and the citizens and businesses in the eight county area of the Pilot Project would just have to accept the growing risks of wildfire and continued loss of the forest-related industrial infrastructure that would be needed to implement an effective fuel reduction strategy if any such strategy were finally adopted.
The Forest Service search for Owl Guidelines.
The 1992 CASPO Report recommended guidelines that 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 cousin, it is useful to review 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 suffered;
(2) The forests inhabited by California spotted owls have, for the most part, been selectively (and partially cut,) harvested and do not “fall apart” the way Pacific Northwest forests (do when partially cut, so that) appear too when even age management is applied.
(3) (Logged) The application of all-aged management practices in Sierra forests have not (yet) excluded California spotted owls the way (logged) forests in the Pacific Northwest appear to have exclude northern spotted owls, making it difficult to give a precise definition of “suitable California spotted owl habitat” and identify it accurately. “We have (not) no studies to show what sorts of forest stands can support self-sustaining populations of California spotted owls,” wrote the authors of the CASPO Report, Chapter 1, page 18.
(4) Fire is a major threat to California spotted owl habitat, unlike most of the northern spotted owl habitat, and fire's inevitability in the Sierra Nevada 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.
These considerations, among others, led the CASPO scientists to conclude:
“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,” and that:
“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”
Changing timber management (to discontinue clear-cutting and) practices from even-aged forest management to all-age management was a relatively easy decision to make. The CASPO Interim Guidelines Decision Notice accomplished that in early 1993, and the starting premise of the Quincy Library Group was that the fuel reduction and forest restructuring permitted under the CASPO prescriptions would be a good start on assuring long-term forest health, improved watershed function, and sufficient economic support to our timber-dependent communities.
The first Forest Service attempt to devise permanent owl guidelines floundered, in part because its conclusions were not consistent with the Sierra Nevada Ecosystem Project (SNEP) Report of 1997. At the end of the SNEP process, the team of scientists modeled alternative management strategies and, based on the ecosystem analysis, had 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.
Largely because the previous Draft EIS failed to deal adequately with the SNEP Report and its recommendations, the Forest Service prepared a Revised Draft EIS on spotted owl guidelines. However, the RDEIS was withdrawn before official publication, and an evaluation by a Committee of Scientists was ordered. Their report essentially affirmed the SNEP findings and led directly to initiation of the Sierra Nevada Framework for Conservation and Collaboration
The Sierra Nevada Ecosystem Project (SNEP) Report.
While QLG was developing the HFQLG bill and securing its passage, more than 100 scientists were engaged in a comprehensive, Congressionally mandated study of the Sierra Nevada ecosystem that resulted in the SNEP Report of 1997. In four volumes with 109 chapters the report detailed the Sierra Nevada ecosystem in sections on past landscapes, human components, biological and physical elements, agents of change, case studies, strategies for the future, and special individual studies on particular ecosystem components and processes.
The SNEP Report gave strong support to key elements of the QLG Proposal and the HFQLG Act. For example:
Regarding fire and fuels:
Volume II, Chapter 37, An Overview of Fire in the Sierra Nevada, by Kevin S. McKelvey and seven other prominent fire scientists, said this in its Abstract:
“We suggest extensive modification of forest structure will be necessary to minimize severe fires in the future. In high-risk areas, landscapes should be modified both to reduce fire severity and to increase suppression effectiveness. We recommend thinning and underburning to reduce fire-related tree mortality coupled with strategically placed defensible fuel profile zones (DFPZs).”
Volume II, Chapter 56, Landscape-Level Strategies for Forest Fuel Management, by Phil Weatherspoon and Carl Skinner, established three goals and centered the discussion of strategies on DFPZs. Regarding the first goal, Weatherspoon and Skinner said:
Goal 1: Reduce Substantially the Area and Average Size Burned by Large, High-Severity Wildfires. ...
“Given the massive scope of the problem that goal 1 is intended to address, a carefully considered strategy is required for prioritizing fuel treatments. Such a strategy should permit managers to multiply the benefits of treatments in order to make the most rapid and most efficient progress toward achieving goal 1. We focus our discussion in this section on DFPZ networks. Multiple benefits of DFPZs may include (1) reducing severity of wildfires within treated areas (as with any fuel-management treatment), (2) providing broad zones within which firefighters can conduct suppression operations more safely and more efficiently, (3) effectively breaking up the continuity of hazardous fuels across a landscape, (4) providing “anchor” lines to facilitate subsequent areawide fuel treatments, and (5) providing various nonfire benefits. We are aware of no other strategy with as great a potential in the short term to progress reasonably rapidly toward achieving goal 1.” (emphasis added)
The other goals recognized in SNEP are to (2) restore more of the ecosystem functions of frequent low- to moderate-severity fire, and (3) improve the health, integrity, and sustainability of Sierra Nevada ecosystems. In their extended discussion, scientists Weatherspoon and Skinner make clear that attaining goal 1 is a precondition of achieving goals 2 and 3, and they detail the HFQLG DFPZ network as a good example of the strategy they recommend.
Regarding forest restructuring:
In addition to the quote above from Chapter 37, McKelvey et al, forest restructuring is prominent in SNEP Volume II, Chapter 21, Assessment of Late-Successional Forests in the Sierra Nevada, by Jerry Franklin and JoAnn Fites-Kaufmann:
“Two silvicultural prescriptions have been proposed for the Sierra Nevada which will maintain or restore higher levels of late-successional forest structures. Group selection is one of these approaches. The scale of selected group that is often proposed—1 to 2 acres—is larger than the scale of mosaic of structural patches found in many natural mixed-conifer and yellow pine stands, however. Moreover, some structural retention within the groups selected for harvest may be desirable to maintain certain features (such as very large decadent trees and snags, for example) which could not be created in adequate numbers within the selected rotation period. Another approach would be to permanently reserve some groups or a portion of the matrix from harvest in order to maintain those structural features (Franklin et al. in press).”
“Silvicultural prescriptions which maintain or restore specific levels of structures—such as large diameter trees, snags, and logs—have not yet been extensively developed and applied. The interim CASPO guidelines (Verner et al. 1992) are a significant step toward demonstrating the practicality of prescriptions which maintain a high level of late-successional forest function while providing for significant timber harvest. Simple diameter-limit guidelines are not adequate to achieve long-term objectives, however; goals identifying the desired density, size, species composition, and distribution of large trees are needed along with multiple-entry prescriptions which systematically provide for replacements and insure that the large snags and logs derived from these trees are retained on site.”
Since Franklin and Fites-Kaufmann are well known advocates of retaining and developing “old growth” (i.e. late-successional) components of Sierra Nevada forests, it is particularly interesting to note their approval of the CASPO interim guidelines as providing for both old growth and timber harvest, and their disapproval of long-term diameter-limit guidelines.
Regarding the Human Component of the Ecosystem:
[ still working on finding the appropriate SNEP references ]
The GAO Report, the Cohesive Strategy and the National Fire Plan.
Meanwhile, in response to western states and national concern about the growing hazard and cost of catastrophic wildfires, in 1999 the General Accounting Office issued its report, “Western National Forests: A Cohesive Strategy is Needed to Address Catastrophic Wildfire Threats.” The GAO report found that
“...The most extensive and serious problem related to the health of national forests in the interior West is the over-accumulation of vegetation.” (GAO/RCED-99-65)
In April of 2000 the Forest Service issued its response to the GAO Report, “Protecting People and Sustaining Ecosystems -- A Cohesive Strategy.” The Forest Service's Cohesive Strategy was based on its finding that
“Because of the high proportion of total area classified as high-risk, combined with the fact that without treatment more vegetation will “grow” into these high-risk conditions, it is apparent that time is running out for a strategy to successfully avert high-cost, high-loss consequences.” (pg 14)
The report roughly mapped areas of risk by their “Condition Class.” The areas at highest risk (Condition Class 3, CC-3) were defined in terms of four main characteristics:
Disturbance Regime -- The disturbance regime has been significantly altered and historic disturbance processes and effects may be precluded.
Disturbance Agents -- The effects of insect, disease or fire may cause significant or complete loss of one or more defining ecosystem components.
Smoke Production -- Episodic smoke production is unpredictable and in high volume and long duration, poses significant impacts to human health, safety, and societal values.
Hydrologic Function -- Hydrologic functions may be adversely altered, with significant increases in sedimentation potential and measurable reductions in streamflows.
(Cohesive Strategy, p. 76, Appendix A)
Subsequent higher resolution mapping of the Sierra Nevada shows that the HFQLG area includes as high or higher proportion of CC-3 than anyplace else in the Sierra Nevada, other inland western forests, or the nation as a whole.
The National Fire Plan followed the Cohesive Strategy, and is largely based on the same data and concepts. It calls for comprehensive fuel reduction, starting on areas of highest risk and hazard, and progressing to areas of moderate risk (a total of about one-third of all federally owned forest land) over a period of up to (30) 15 years. QLG believes the HFQLG Pilot Project provides the best start on implementing the Cohesive Strategy and the National Fire Plan locally, because the HFQLG rate of fuel reduction is fully consistent with the national plan, the DFPZ strategy would provide early and effective protection to the areas of highest risk and hazard, and would provide, if implemented according to requirements of the Act, the most cost-effective implementation.
QLG never said to construct DFPZs and stop there. It has always said that DFPZs are the best first step, that a long-term strategy needs to be developed in the follow-on forest plan amendments required by the HFQLG Act, and that if these follow-on plans are done right it will not be necessary to maintain a dedicated DFPZ network indefinitely. As envisioned in the National Fire Plan, the forest as a whole would become sufficiently fire-resilient for long-term sustainability of forest health. The DFPZ network should come first, but not be a substitute for comprehensive fuel reduction.
The Framework / SNFPA project.
Late in 1998 the Forest Service initiated the Sierra Nevada Framework for Conservation and Collaboration (the Framework), which became the Sierra Nevada Forest Plan Amendment Draft EIS (SNFPA DEIS). Five problems identified for action:
1. Old forest ecosystems and associated species.
2. Aquatic, riparian, and meadow ecosystems.
3. Fire and fuels.
4. Noxious weeds.
5. Lower westside hardwood forest ecosystems.
The first three of these problems directly affect implementation of the HFQLG Pilot Project.
“Old forest associated species” is primarily another way to say “spotted owls” in our area. The HFQLG Act requires the Pilot Project to abide by the CASPO guidelines or subsequently issued guidelines, whichever are in effect. Therefore, that part of the Framework decision that specified new owl guidelines would apply to the Pilot Project.
“Aquatic, riparian, and meadow ecosystems” would involve the need to reconcile the riparian guidelines coming out of the Framework decision with the riparian protection guidelines specified in the HFQLG Act.
The “fire and fuels” strategy for the HFQLG area is based on DFPZs until termination of the Pilot Project, and thereafter on results of the forest plan amendments required by the HFQLG Act. In the other Framework national forests outside the HFQLG area, the fire and fuels strategy is based on DFPZ-like treatments in a narrow defense zone immediately adjacent to urban areas, with Strategically Located Area Treatments (SPLATs) in the remainder of the Wildland Urban Intermix zone (WUI) and elsewhere in the forest.
Intractable problems were created by restrictions on management activity imposed by the spotted owl and old forest emphasis area (OFEA) standards and guidelines (S&Gs) adopted in the Framework record of decision (the SNFPA ROD). The Forest Service's own Review Team analysis shows that, under SNFPA guidelines, it is not possible to achieve either the extent or the effectiveness of fuel reduction that would be required to meet the goals of the HFQLG Act or the National Fire Plan. The permitted treatments would not be effective, and they would cost so much that treating the target acreage would not be feasible.
The original CASPO interim guidelines were specified in the HFQLG Act, and were the basis of the alternative adopted in the HFQLG FEIS and ROD. Then first the “mitigation” and now the SNFPA decision have imposed quite different owl guidelines on the Pilot Project. The new guidelines were adopted on the basis of inadequate scientific information mistakenly interpreted and improperly applied. Instead of providing permanent guidelines that would meet the fuel reduction and forest restructuring objectives so well described and supported in the SNEP Report, the SNFPA decision crippled fuel reduction and imposed even more rigid and narrowly defined diameter and canopy cover limits, directly contrary to the recommendations of Franklin and Fites-Kaufmann in their SNEP article.
As noted earlier, the Framework decision (the SNFPA ROD) did not resolve the major issues it claimed to address, either Region-wide or with particular reference to the HFQLG Pilot Project. Regionally, the adoption of Modified Alternative 8 (8-mod) was concocted at the last minute, and neither analyzed in the FEIS nor subjected to any public scrutiny and comment before its adoption, thus adding to other violations of NEPA and NFMA in the Framework process from its beginning.
With regard to issues of particular concern to QLG, the ROD:
(1) Imposed an owl habitat management strategy that was not legitimately founded in science, was not feasible to implement, and if implemented would not achieve the results claimed for it.
(2) Did not permit implementation of the DFPZ network specified in the HFQLG Act, either to an acceptable standard of effective fire protection, or by the most cost-effective means available, as required by the Act.
(3) Did not permit initiation of group selection silviculture on the landscape specified in the Act. Instead, in violation of the Organic Act and subsequently adopted law, the ROD effectively removed timber production as a management objective.
(4) Interfered with the program of riparian restoration specified in the Act, in part by adding large Critical Aquatic Reserves (CARs) to HFQLG Forests by an ill-founded and arbitrary process that overburdened HFQLG forests with these reserves.
(5) Used questionable data and analysis to justify a false claim that recreation usage of HQLG forests would compensate any adverse social or economic effects of Framework implementation. .
(6) Failed to analyze and consider the social and economic effects that would actually result from Framework implementation.
Faced with this barrage of adverse effects from the Framework decision, QLG, joined by Plumas County, filed an appeal of the SNFPA ROD. The major points of the Petitioner's administrative case are outlined below, largely in excerpts from the Executive Summary of the QLG appeal. They include:
Spotted Owl Conservation Strategy
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. The FEIS and ROD fail to provide substantial evidence to support their new old growth and spotted owl standards and guidelines, nor do they provide substantial evidence that the CASPO guidelines are not adequate to ensure the viability of the California Spotted Owl.
Additionally, both the Forest Service and the Fish and Wildlife Service omitted critical information from their analyses.
(1) Spotted owls in PACs and Spotted Owl Habitat Areas (SOHAs) have not been assessed or monitored in any systematic way since the adoption of the CASPO Interim guidelines in 1993; and
(2) No cause-and-effect relationship has been established between the forest management methods specified in this Decision and spotted owl population viability. The CASPO Report said it clearly, and no established science has changed that statement of the situation:
“At the landscape scale, we see little in the overall distribution pattern of California spotted owls to suggest how we might distinguish between suitable and unsuitable habitat. 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 habitat.” (CASPO Report, page 28)
Unfortunately, the Forest Service failed to conduct the necessary research and "obtain and keep current inventory data appropriate for planning and managing the resources" (NFMA 219.12(d)) related to California spotted owls.
If the Forest Service has valid scientific support for the proposed spotted owl management in any of the alternatives, it had an obligation to disclose it. In fact the FEIS provides no references to support these elements of the alternatives:
(1) selection of landscape-scale old forest desired conditions (FEIS Vol1, Ch2, pg8);
(2) "reserves (saving natures legacy, ecological basis of conservation" (ibid.);
3) quantity, quality, and spatial arrangement of habitat to sustain viable populations of old forest associated species (ibid.); and
(4) rate and means used to reduce fire hazard (FEIS Vol1, Ch2, pg9).
The California spotted owl conservation strategy presented in the SNF ROD 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 was made, these problems were identified as needing solutions by Forest Service personnel including 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 documented by the numerous entries in the planning record chronicled earlier.
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 of people and the environment 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 address timber production as an authorized use on the forests of the Sierra Nevada. Petitioners allege that this is arbitrary and capricious and inconsistent with the Organic Act, the Multiple Use Sustained Yield Act, the NFMA, and the applicable implementing regulations. 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) softwood lumber consumed annually by its residents. The FEIS shrugs off this fact with the inconsequential comment, "Imported logs and lumber from Canada and South America have been meeting the demands for wood products". Importing this volume of (wood) instead of properly managing and harvesting readily available timber and biomass resources within California national forests has at least these significant adverse consequences:
(1) Loss of primary jobs and local economic opportunities in logging, timber processing and lumber milling.
(2) Loss of secondary economic opportunities in support industries and services.
(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 to consumers and reduced national economic security due to balance-of-trade deficits.
(9) Increased hazards to society related to:
a. Delay in implementing fuel reduction and/or curtailment of the fuel reduction program, with consequent increase in local wildfire hazards and loss of critical watersheds and wildlife habitats.
b. Greatly increased health hazard due to smoke and air pollution from wildfire or prescribed burning of material that could be mechanically removed and processed with better than 97 percent reduction of pollutants.
c. Irresponsible transfer of troublesome environmental effects to exporting nations where timber and milling operations are less efficient and well regulated.
In adopting this FEIS and ROD, the Forest Service has failed to recognize that sustaining a viable industrial infrastructure is not just an economic and social issue any more, it has become a vital ecological necessity. Without a healthy and competitive industry with a capacity to remove and process the increasing volume of (excess biomass) hazardous fuels 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 (nationally) that would be needed to pay for fuel reduction at the scale and pace specified in the (national Cohesive Strategy) National Fire Plan 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 in that 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.
QLG Appeal Rejected.
Every point of every appeal on the SNFPA Record of Decision was rejected by the Content analysis enterprise team (CAET) , the Regional Forester and the Chief of the Forest Service. In Section VI of the Chief's appeal decision, Response to Appeal Issues, the Forest Service often omitted or mis-stated the issue actually raised by an appellant, and in cases where the explanation did actually deal with the issue raised, the response was often ill-founded or spurious. For example, QLG raised the issue of whether the Regional Forester had the authority under applicable regulations to amend forest plans directly, or whether that process had to be conducted by Forest Supervisors of the affected forests. In response the Chief cquoted two of the several applicable regulations cited by QLG in its appeal, then rejected QLG's point on the spurious grounds,as follows:
The 1982 implementing regulation at 36 CFR 219.10 discusses the general procedures for forest planning. The regulation discusses those procedures specific to an amendment as follows:
(f) Amendment. The Forest Supervisor may amend the forest plan. Based on an analysis of the objectives, guidelines, and other contents of the forest plan, the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan. If the change resulting from the proposed amendment is determined to be significant, the Forest Supervisor shall follow the same procedure as that required for development and approval of a forest plan. If the change resulting from the amendment is determined not to be significant for the purposes of the planning process, the Forest Supervisor may implement the amendment following appropriate public notification and satisfactory completion of NEPA procedures.
The regulation at 36 CFR 219.4(b)(3) provides that the Regional Forester shall approve the forest plan.
Discussion: Given the Regional Forester's authority to approve forest plans including significant amendments to forest plans (219.4(b)(3)), it was appropriate for him to approve and sign the SNFPA.
Decision: After my review of the record, I find that the Regional Forester appropriately approved the significant amendment to the forest plans and did not usurp decision-making authority granted to the Forest Supervisors. In other words, the Chief admits that regulation assigns all aspects of forest plan amendment to Forest Supervisors, but finds that the Regional Forester can take over that whole process because he has “approval” authority over the eventual outcome. Under the Chief's theory on how “approval authority” relates to “decision making,” it would be lawful for the Senate to make treaties and appoint federal judges. Since that is clearly not the case, we must continue to insist that the whole Framework process was based on a fatal error from the beginning.
Review Initiated.
In a very unusual and disturbing sequence of events, the Chief turned down every issue of every appeal, then the Deputy Secretary of Agriculture refused to exercise his right to review that decision, but then the Chief ordered the Regional Forester to conduct a comprehensive Review to reconsider major elements of the original SNFPA Decision.
The Regional Forester outlined a scope of review somewhat broader than specified by the Chief, appointed a Review Team, and said all aspects of the Review, including any needed amendments, would be completed within one year (i.e. by the end of 2002). The Review was not completed in one year, but now looks like it will not produce a new Record of Decision until late in 2003, and probably not before the end of 2003, its second full year.
Review Team Findings.
The Review Team's Findings validate every one of the appeal points raised by QLG, to the extent those points were reviewed at all.
Review Team Recommendations.
The Review Team has recommended new Standards and Guidelines that are very similar to the original CASPO guidelines and quite different from the SNFPA S&Gs.
In other words, in the three-and-a-half years since the HFQLG Pilot Project was supposedly initiated under the CASPO guidelines, the Forest Service has gone full circle. While repeatedly erecting barriers against Pilot Project implementation, first in the “mitigation,” then in a drawn-out Framework and Review process, they have finally come back to the original CASPO concepts because those concepts were based on the best available science at the time, and nobody has produced significantly better science since then.
HFQLG Act vindicated
The Review Team's findings validate every QLG appeal issue that was reviewed. QLG did ask to have all appeal issues reviewed, but the Forest Service declined to deal with some of them. The issues not reviewed are largely procedural matters under NFMA, NEPA, and APA. These procedural issues remain extremely important, among other things to assure procedural integrity in the many long term and project-level processes yet to be completed. However, while those unreviewed issues are litigated, QLG believes it is appropriate and necessary to begin immediate full implementation of the HFQLG Pilot Project, using the CASPO Interim Guidelines until such time as the final CASPO-like guidelines are processed and adopted.
Therefore, QLG alleges as follows:
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.The productive harmony goal is not is not attained or attempted. 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.
WHEREFORE, Petitioners pray as follows:
1. That a preemptory writ of mandate issue under the seal of the Court commanding the United States Forest Service and the Region 5 Regional Forester immediately upon receipt of the writ to:
a. Set aside, vacate, and rescind certification of the Environmental Documents in connection with the SNFPA amendments;
b. Set aside, vacate, and rescind the Record of Decision for the SNFPAs; and
c. Prepare, circulate, consider, and certify a new EIS and otherwise comply with NEPA in any subsequent action to approve the project;
2. That a preliminary injunction be issued restraining Respondents from permitting any application of standards and guidelines and land allocations in the SNFPA ROD that interfere with the implementation of the HFQLG Act. The HFQLG shall be implemented in accordance with the standards and guidelines in effect prior to the approval of the SNFPA ROD. Such injunction is to remain in effect until the hearing on the writ of mandate can be heard and the Court can render its decision on the merits; Question: are these standards and guidelines over ridden by the political mitigation that was placed in our ROD? It appears to me that the judge would say OK and the mitigation would apply that we stay out of owl habitat area??
3. That preliminary and permanent injunctions be issued restraining the United States Forest Service, and the Regional Forester for Region 5, their agents, servants, and employees, and all persons acting in concert with them, from taking any action to implement in any way the Sierra Nevada Forest Plan amendments as described above in the area designated in the HFQLG Act;
4. For costs of suit incurred herein;
5. For reasonable attorneys' fees; and
6. For such other and further relief as the Court deems proper.
Dated:
_________________________________________
MICHAEL B. JACKSON, Attorney for Petitioners