JeepinIan
07-10-2001, 05:00 AM
*Appeals must be postmarked by July 16, 2001
BLUERIBBON COALITION, INC.
July 9, 2001
sent via FAX and Certified Mail
Bradley Powell
Regional Forester
USDA Forest Service
Regional Office - R5
1323 Club Drive
Vallejo, CA 94592
Re:Appeal of Decision Notice of FONSI for N. Fork Smith River Special Interest Area Road Access
Dear Mr. Powell:
As the western representative for the BlueRibbon Coalition (BRC), a national recreation organization, I do hereby appeal the Decision Notice and Findings of No Significant Impact (FONSI) for the North Fork Smith River Special Interest Area Road Access -
dated May 31, 2001.
This appeal is filed pursuant to 36 CFR 215 and submitted to Bradley Powell, the Deciding Officer.
The Decision Notice, FONSI, and North Fork Smith River Special Interest Area Road Access Environmental Assessment (EA) shall be henceforth referred to as the ?Decision.?
This document shall not preclude other BRC staff or members from submitting their own appeals.
OVERVIEW:
The Decision functionally closes between 40 -50 miles of roads. The agency?s identification of only two closure alternatives and a unrealistic no-action alternative -- an alternative that actually has less restrictions than the status quo, thus not a true National Environmental Policy Act (NEPA) no-action alternative after all -- and its decision to
Page 2
conduct no in-depth review of any others is unreasonable and therefore insufficient to satisfy NEPA and is arbitrary and capricious. Numerous viable alternatives to absolute closure have been proposed by individual members of the public and groups of individuals. The agency functionally disregarded them all. The agency?s explanation for not devoting adequate attention to a managed access alternative merely consists of assertions that the managed access alternative would not meet agency?s desired outcome. These
assertions are insufficient for the purposes of NEPA. The agency cites some biological reports but these
reports fail to establish sufficient foundation for the Decision.
The agency?s focus on its desired outcome rather than NEPA's procedural obligations violates NEPA and renders the current Decision legally deficient and non-viable. I identified all of these deficiencies in my January 23, 2001 comments (see attachment A).
DISCUSSION:
I find this Decision fails to analyze reasonable alternatives as required by NEPA. This NEPA deficiency was also identified in my January 23, 2001 comments (see attachment A) on the North Fork Smith River Special Interest Area Road Access Environmental Assessment (EA).
This Decision only analyzed two ?closure alternatives? and one red-herring ?no-action alternative.? The no-action alternative is actually a less-restrictive management prescription than the current status of access with seasonal closures.
Judge Edward Lodge - Kootenai v. USFS, Case No. CV01-10-N-EJL (see attachment B) - said the alternative section is ?the heart of the environmental impact statement,? 40 CFR 1502.14; hence, ?the existence of a viable but unexamined alternative renders an environmental impact statement inadequate.? I submit that Judge Lodge?s comments on the EIS process applies to this Decision as well.
The Decision flatly rejects a ?Managed Access? alternative proposed in my January 23, 2001 letter. The Decision bases the rejection and/or need of a managed access alternative on so-called ?coffee and donut? in-house discussions between agency staff. The Decision continually references these donut discussions on pages 15-16 of the EA.
The Decision states its goal is ?low risk.? A goal that is supported by the motorized community, yet no such low risk alternative was substantively explored in the EA and that was pointed out in paragraph 4 of page 2 of (attachment A). This implies that a low risk access alternative is a possibility.
Page 3
The agency failed to cite or present any studies or reports that showed the Forest Service seriously considered a managed access alternative -- rather the Decision relies on coffee-room discussions as the basis for rejecting an access alternative.
The Decision fails to cite reports or studies by road engineers from either the Supervisor?s Office or the Regional Office -R5. The Decision cites the figures of 350k - 750k dollars to make needed repairs, but has failed to offer the public or the Del Norte County Board of Supervisors any engineering reports that review a variety of options regarding needed road repairs. There is no evidence presented by the Six Rivers National Forest that they contacted the engineering department of Regional Office to seek professional advice or recommendations.
40 CFR 1502.24 says specialized expertise often lies at the core of NEPA analysis and the agency must insure the professional integrity of any technical analysis. The Decision arbitrarily and capriciously relies on incomplete, invalid or nonexistent "expert" analysis. When federal agencies evaluate technical issues or apply specialized expertise, NEPA requires them to rely on valid sources and to disclose the methodology,
present hard data, cite by footnote or other specific method to technical references, and otherwise disclose and document any bases for expert opinion.
The Decision is deficient because it relies solely on plant related studies pertaining to T&E species and Port Orford Cedar (POC) root disease. While these studies are important, they do not replace analysis of the road system and any subsequent mitigations devised by the agency?s road engineering department.
My January 23 communique (attachment A) says that conversations with retired Forest Service engineers indicated that the slide could be repaired to be made passable by high clearance vehicles, yet your Decision continues to rely on the ?coffee room? discussions that the roads are not repairable per budget concerns as described on pages 15-16 of the EA. No road engineering reports are cited.
Just as you would not rely entirely on a road engineering report to solve flora concerns (although some road engineers would argue that) , the Decision wrongly depends almost solely on studies by biologists to solve road problems.
42 USC 4331 states when applying NEPA, agencies must: utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment.
Page 4
The Decision failed to follow this NEPA provision.
42 USC 4332(A); 40 CFR 1502.6 says NEPA does not envision undocumented narrative exposition, instead requiring: Agencies shall insure the professional integrity, including the scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.
No road engineering reports nor consultations with R5 road experts were cited in the Decision.
NEPA imposes a mandatory procedural duty on federal agencies to consider a reasonable range of alternatives to proposed actions or preferred alternatives analyzed during a NEPA process. 40 CFR. 1502.14; 40 CFR. 1508.9. "Aencies shall rigorously explore and objectively evaluate all reasonable alternatives." 40 CFR. 1502.14. The legal duty to consider a reasonable range of alternatives applies to both EIS and EA processes.
The Decision failed to adhere to this tenet of NEPA because no specific road engineering reports or consultations were cited leaving the agency without adequate information to identify and analyze alternatives to the proposed action.
In defining the project limits the agency must evaluate "alternative means to accomplish the general goal of an action" and cannot "rig" the purpose and need section of a NEPA process to limit the range of aternatives. Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 669 (7th Cir. 1997).
The Decision?s failure to consider reasonable alternatives and dismissal of alternatives without analysis violates NEPA requirements. "The 'rule of reason' guides both the choice of alternatives as well as the extent to which an agency must discuss each alternative."
Surfrider Foundation v. Dalton, 989 F. Supp. 1309, 1326 (S.D. Cal. 1998).
The "rule of reason" is essentially a reasonableness test which is substantially the same as the
arbitrary and capricious standard.
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23 (1989)).
"The discussion of alternatives 'must go beyond mere assertions' if it is to fulfill its vital role of 'exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government.'" State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978), vacated in part on other
Page 5
grounds, Western Oil & Gas Ass'n, 439 U.S. 922 (1978) (quoting NRDC v. Callaway, 524 F.2d 79, 93-94 (2nd Cir. 1975).
The Decision fails this rule of reason because it merely cites a couple of paragraphs in the EA (pages 15-16) and refers the public to several biological reports, yet fails to cite any site specific road engineering studies of the affected areas. This creates a confusing process scheme that frustrates the public process.
Rather than conduct the in depth review required by NEPA the agency summarily dismisses reasonable alternatives offering nothing more than assertions made in the coffee room or concepts derived from biological opinions that any alternative other than the preferred action would not minimize the spread of POC or if it did... the mitigation to create a low risk motorized access alternative is to costly.
The Decision artificially creates a deadline of July 12, 2001 for making a decision because of guidelines imposed by the Roads Rule. However, an Interim Directive No. 7710-2001-1 was issued May 31, 2001 that made the following two minor changes:
1) Delegated to Regional Foresters the responsibility previously reserved to the Chief to approve a Forest Supervisor's request for additional time to complete forest-scale roads analysis.
2) Extended the deadlines for requiring roads analysis for road management decisions and for forest plan revisions or amendments from 7/12/01 to 1/12/02.
SUMMARY:
The Decision functionally closes between 40 -50 miles of roads. The agency?s identification of only two closure alternatives and a no-action alternative ? that?s not really a no-action alternative -- and its decision to conduct no in depth review of any others is unreasonable and therefore insufficient to satisfy NEPA and is arbitrary and capricious. Numerous viable alternatives to absolute closure have been proposed (see attachment A) by individual members of the public and groups of individuals. The agency functionally
disregarded them all.
The agency?s explanation for not devoting adequate attention to a managed access alternative is vague and unsubstantiated by a road engineering reports. Rather, the Decision merely relies on assertions and biological reports that the managed access alternative would not meet agency?s desired outcome.
Page 6
These assertions are insufficient for the purposes of NEPA (see attachment B). The agency cites some biological reports but these reports fail to establish sufficient foundation for the Decision.
REMEDY:
1) Withdraw or invalidate the current Decision and begin work on a new EA that incorporates reasonable alternatives such as the managed access alternative[s] outlined in my January 23, 2001 comments (see attachment A), as required by NEPA.
2) Perform site specific road analysis of POC/road/access issues associated with this special
area in Northern California, including analysis of repairing the ?slide? that may find a low-cost solution (see paragraph 4 of page 4 of attachment A) by re-classifying it as a high-clearance ?jeep? road or trail. This will insure the Decision is based upon an informed analysis as required by NEPA.
3) Meet with local user groups and elected officials in affected area to review various proposals and mitigations offered in my managed access alternative[s] (see attachment A), so that viable alternatives are identified and sufficiently analyzed, and actual impacts are considered.
Respectfully submitted,
Don Amador
Western Representative
BlueRibbon Coalition, Inc.
555 Honey Lane
Oakley, CA 94561
(925) 625-6287 Office
BLUERIBBON COALITION, INC.
July 9, 2001
sent via FAX and Certified Mail
Bradley Powell
Regional Forester
USDA Forest Service
Regional Office - R5
1323 Club Drive
Vallejo, CA 94592
Re:Appeal of Decision Notice of FONSI for N. Fork Smith River Special Interest Area Road Access
Dear Mr. Powell:
As the western representative for the BlueRibbon Coalition (BRC), a national recreation organization, I do hereby appeal the Decision Notice and Findings of No Significant Impact (FONSI) for the North Fork Smith River Special Interest Area Road Access -
dated May 31, 2001.
This appeal is filed pursuant to 36 CFR 215 and submitted to Bradley Powell, the Deciding Officer.
The Decision Notice, FONSI, and North Fork Smith River Special Interest Area Road Access Environmental Assessment (EA) shall be henceforth referred to as the ?Decision.?
This document shall not preclude other BRC staff or members from submitting their own appeals.
OVERVIEW:
The Decision functionally closes between 40 -50 miles of roads. The agency?s identification of only two closure alternatives and a unrealistic no-action alternative -- an alternative that actually has less restrictions than the status quo, thus not a true National Environmental Policy Act (NEPA) no-action alternative after all -- and its decision to
Page 2
conduct no in-depth review of any others is unreasonable and therefore insufficient to satisfy NEPA and is arbitrary and capricious. Numerous viable alternatives to absolute closure have been proposed by individual members of the public and groups of individuals. The agency functionally disregarded them all. The agency?s explanation for not devoting adequate attention to a managed access alternative merely consists of assertions that the managed access alternative would not meet agency?s desired outcome. These
assertions are insufficient for the purposes of NEPA. The agency cites some biological reports but these
reports fail to establish sufficient foundation for the Decision.
The agency?s focus on its desired outcome rather than NEPA's procedural obligations violates NEPA and renders the current Decision legally deficient and non-viable. I identified all of these deficiencies in my January 23, 2001 comments (see attachment A).
DISCUSSION:
I find this Decision fails to analyze reasonable alternatives as required by NEPA. This NEPA deficiency was also identified in my January 23, 2001 comments (see attachment A) on the North Fork Smith River Special Interest Area Road Access Environmental Assessment (EA).
This Decision only analyzed two ?closure alternatives? and one red-herring ?no-action alternative.? The no-action alternative is actually a less-restrictive management prescription than the current status of access with seasonal closures.
Judge Edward Lodge - Kootenai v. USFS, Case No. CV01-10-N-EJL (see attachment B) - said the alternative section is ?the heart of the environmental impact statement,? 40 CFR 1502.14; hence, ?the existence of a viable but unexamined alternative renders an environmental impact statement inadequate.? I submit that Judge Lodge?s comments on the EIS process applies to this Decision as well.
The Decision flatly rejects a ?Managed Access? alternative proposed in my January 23, 2001 letter. The Decision bases the rejection and/or need of a managed access alternative on so-called ?coffee and donut? in-house discussions between agency staff. The Decision continually references these donut discussions on pages 15-16 of the EA.
The Decision states its goal is ?low risk.? A goal that is supported by the motorized community, yet no such low risk alternative was substantively explored in the EA and that was pointed out in paragraph 4 of page 2 of (attachment A). This implies that a low risk access alternative is a possibility.
Page 3
The agency failed to cite or present any studies or reports that showed the Forest Service seriously considered a managed access alternative -- rather the Decision relies on coffee-room discussions as the basis for rejecting an access alternative.
The Decision fails to cite reports or studies by road engineers from either the Supervisor?s Office or the Regional Office -R5. The Decision cites the figures of 350k - 750k dollars to make needed repairs, but has failed to offer the public or the Del Norte County Board of Supervisors any engineering reports that review a variety of options regarding needed road repairs. There is no evidence presented by the Six Rivers National Forest that they contacted the engineering department of Regional Office to seek professional advice or recommendations.
40 CFR 1502.24 says specialized expertise often lies at the core of NEPA analysis and the agency must insure the professional integrity of any technical analysis. The Decision arbitrarily and capriciously relies on incomplete, invalid or nonexistent "expert" analysis. When federal agencies evaluate technical issues or apply specialized expertise, NEPA requires them to rely on valid sources and to disclose the methodology,
present hard data, cite by footnote or other specific method to technical references, and otherwise disclose and document any bases for expert opinion.
The Decision is deficient because it relies solely on plant related studies pertaining to T&E species and Port Orford Cedar (POC) root disease. While these studies are important, they do not replace analysis of the road system and any subsequent mitigations devised by the agency?s road engineering department.
My January 23 communique (attachment A) says that conversations with retired Forest Service engineers indicated that the slide could be repaired to be made passable by high clearance vehicles, yet your Decision continues to rely on the ?coffee room? discussions that the roads are not repairable per budget concerns as described on pages 15-16 of the EA. No road engineering reports are cited.
Just as you would not rely entirely on a road engineering report to solve flora concerns (although some road engineers would argue that) , the Decision wrongly depends almost solely on studies by biologists to solve road problems.
42 USC 4331 states when applying NEPA, agencies must: utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment.
Page 4
The Decision failed to follow this NEPA provision.
42 USC 4332(A); 40 CFR 1502.6 says NEPA does not envision undocumented narrative exposition, instead requiring: Agencies shall insure the professional integrity, including the scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.
No road engineering reports nor consultations with R5 road experts were cited in the Decision.
NEPA imposes a mandatory procedural duty on federal agencies to consider a reasonable range of alternatives to proposed actions or preferred alternatives analyzed during a NEPA process. 40 CFR. 1502.14; 40 CFR. 1508.9. "Aencies shall rigorously explore and objectively evaluate all reasonable alternatives." 40 CFR. 1502.14. The legal duty to consider a reasonable range of alternatives applies to both EIS and EA processes.
The Decision failed to adhere to this tenet of NEPA because no specific road engineering reports or consultations were cited leaving the agency without adequate information to identify and analyze alternatives to the proposed action.
In defining the project limits the agency must evaluate "alternative means to accomplish the general goal of an action" and cannot "rig" the purpose and need section of a NEPA process to limit the range of aternatives. Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 669 (7th Cir. 1997).
The Decision?s failure to consider reasonable alternatives and dismissal of alternatives without analysis violates NEPA requirements. "The 'rule of reason' guides both the choice of alternatives as well as the extent to which an agency must discuss each alternative."
Surfrider Foundation v. Dalton, 989 F. Supp. 1309, 1326 (S.D. Cal. 1998).
The "rule of reason" is essentially a reasonableness test which is substantially the same as the
arbitrary and capricious standard.
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23 (1989)).
"The discussion of alternatives 'must go beyond mere assertions' if it is to fulfill its vital role of 'exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government.'" State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978), vacated in part on other
Page 5
grounds, Western Oil & Gas Ass'n, 439 U.S. 922 (1978) (quoting NRDC v. Callaway, 524 F.2d 79, 93-94 (2nd Cir. 1975).
The Decision fails this rule of reason because it merely cites a couple of paragraphs in the EA (pages 15-16) and refers the public to several biological reports, yet fails to cite any site specific road engineering studies of the affected areas. This creates a confusing process scheme that frustrates the public process.
Rather than conduct the in depth review required by NEPA the agency summarily dismisses reasonable alternatives offering nothing more than assertions made in the coffee room or concepts derived from biological opinions that any alternative other than the preferred action would not minimize the spread of POC or if it did... the mitigation to create a low risk motorized access alternative is to costly.
The Decision artificially creates a deadline of July 12, 2001 for making a decision because of guidelines imposed by the Roads Rule. However, an Interim Directive No. 7710-2001-1 was issued May 31, 2001 that made the following two minor changes:
1) Delegated to Regional Foresters the responsibility previously reserved to the Chief to approve a Forest Supervisor's request for additional time to complete forest-scale roads analysis.
2) Extended the deadlines for requiring roads analysis for road management decisions and for forest plan revisions or amendments from 7/12/01 to 1/12/02.
SUMMARY:
The Decision functionally closes between 40 -50 miles of roads. The agency?s identification of only two closure alternatives and a no-action alternative ? that?s not really a no-action alternative -- and its decision to conduct no in depth review of any others is unreasonable and therefore insufficient to satisfy NEPA and is arbitrary and capricious. Numerous viable alternatives to absolute closure have been proposed (see attachment A) by individual members of the public and groups of individuals. The agency functionally
disregarded them all.
The agency?s explanation for not devoting adequate attention to a managed access alternative is vague and unsubstantiated by a road engineering reports. Rather, the Decision merely relies on assertions and biological reports that the managed access alternative would not meet agency?s desired outcome.
Page 6
These assertions are insufficient for the purposes of NEPA (see attachment B). The agency cites some biological reports but these reports fail to establish sufficient foundation for the Decision.
REMEDY:
1) Withdraw or invalidate the current Decision and begin work on a new EA that incorporates reasonable alternatives such as the managed access alternative[s] outlined in my January 23, 2001 comments (see attachment A), as required by NEPA.
2) Perform site specific road analysis of POC/road/access issues associated with this special
area in Northern California, including analysis of repairing the ?slide? that may find a low-cost solution (see paragraph 4 of page 4 of attachment A) by re-classifying it as a high-clearance ?jeep? road or trail. This will insure the Decision is based upon an informed analysis as required by NEPA.
3) Meet with local user groups and elected officials in affected area to review various proposals and mitigations offered in my managed access alternative[s] (see attachment A), so that viable alternatives are identified and sufficiently analyzed, and actual impacts are considered.
Respectfully submitted,
Don Amador
Western Representative
BlueRibbon Coalition, Inc.
555 Honey Lane
Oakley, CA 94561
(925) 625-6287 Office