The Three Forests Coalition
"We may be in [an] era where rapid expansion and availability of motorized recreation calls for a whole new era of protection of terrestrial species and ecosystems."
-- Barrie Gilbert (2003)
September 19, 2005
Dale Deiter, OHV Team Leader
Fishlake National Forest
115 East 900 North
Richfield, UT 84701
comments-intermtn-fishlake@fs.fed.us.
Re: "Fishlake OHV Route Designation Project DEIS"
Dear Dale,
Thank you for this opportunity to comment on the Fishlake OHV Route Designation Project Draft Environmental Impact Statement (DEIS). The Grand Canyon Trust, The Utah Environmental Congress, Wildlands CPR, Red Rock Forests, Southern Utah Wilderness Alliance, Sierra Club - Utah Chapter, The Wilderness Society, Western Watersheds Project - Southern Utah, The Wild Utah Project and The Bear River Watershed Council, as organizations participating in Three Forests Coalition (TFC) submit the following comments on the DEIS.
Our comments address a number of concerns with the DEIS and the process the "OHV Route Designation Plan" has followed thus far. The Three Forests Coalition is concerned, as outlined below, with Inadequate analysis of a broad range of alternatives; inadequacies in the analysis of native wildlife, socio-economic issues, user conflict and use patterns, and manageability and implementation, inadequate route-by-route analysis, and inadequate application of the minimization criteria found in pertinent ORV Executive Orders, as well as inconsistencies with the current Forest Plan and other enabling regulations. TFC is also providing site-specific comments, supplemental information and photos as a separate attachment. Some routes and areas that have special problems that are largely ignored by the Forest Service in the DEIS and modified proposed action.
Attachment A, "Key Scientific Documents Relevant To Dixie, Fishlake, And Manti-La Sal National Forest Management For Sustainability" is a reference list to (1) documents and (2) annotations of each document that were provided to the Fishlake NF Planning Team (Frank Fay) during 2004. Those references highlighted in yellow are particularly relevant to the economic and environmental analysis of ORV route/use alternatives. None have been acknowledged or cited in the Fishlake OHV Draft EIS. These documents are incorporated by reference in the Three Forests Coalition comments on the OHV Draft EIS; the Forest has hard copies of all these documents.
As of September 18, 2005, Fishlake NF Supervisor Mary Erickson has still not responded to sixteen questions submitted to her and the planning team on June 28, 2005 by the Three Forests Coalition. These questions asked her intent regarding retention of the natural heritage (native biodiversity and habitat) on the Fishlake NF, and this bears on the fundamental intent for management of ORVs on the Fishlake NF.
While it is admirable that the Forest Service seeks to ban most cross-country travel on the Fishlake in compliance with the proposed national OHV Rule, the rush to do so through a process that unnecessarily narrows the scope of travel planning to "OHV Route Designation" falls short of the needs of motorized and quiet recreationists, native wildlife and their habitats, and other affected resources. Though the Fishlake NF has rejected the idea, we feel an Emergency Closure Order signed by the line officer of the Fishlake presents the best option for immediate closure of the Forest to cross country travel. Similar orders have been applied on the Ashley and Uinta National Forests in Utah recently, with little or no backlash from affected parties.If the Forest Service truly believes that cross country travel associated with "play" areas, game retrieval, and shed hunting is an urgent problem that must be addressed before Forest Plan revision and before comprehensive travel planning, an Emergency Closure Order from the supervisor banning such uses while exempting use on existing routes and limited open areas while travel planning occurs is the most immediate and effective way to halt cross country travel.
In our comments, the Three Forests
Coalition will show that the Forest Service has arbitrarily and capriciously
rejected at least two viable, reasonable alternatives formulated by members of
TFC known as the "Comprehensive and Subset Natural Heritage
Alternatives". We believe the Forest Service must release a supplemental
DEIS fully analyzing the Natural Heritage Alternative. Additionally, serious
issues raised by the DEIS must be given a harder look in the FEIS, particularly
concerns raised here that are pertinent to wildlife, economics, user conflict,
implementation, monitoring, manageability and enforcement.
PURPOSE AND NEED
A. The Forest Service Arbitrarily Narrowed the Purpose and Need of the OHV Route Designation Project
NEPA requires agencies to prepare a "purpose and need" statement that "specif[ies] the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 CFR §1502.13. Essentially, the proposed action is derived from the stated purpose and need. According to the Forest Service (DEIS 10) the purpose and need for the OHV Route Designation Project is to:
1) address the immediate need to better manage motorized cross-country travel,
2) create an implementable user-friendly motorized travel plan that is simple to understand and is consistent (seamless) as possible with adjacent public lands,
3) create a travel plan that is inherently easy to enforce to the fullest practical extent,
4) better accommodate current motorized use while addressing concerns related to future growth,
5) reduce the potential for motorized conflicts and impacts to other resource uses and values, and
6) increase user certainty about which roads and trails are part of the managed system of motorized and non-motorized routes.
DEIS at 10. Apparently, much of this purpose and need stems from the fact that "[m]any motorized users are not aware that much of what they consider as the 'existing' motorized system has not recently or in some cases ever been legally declared as open to motorized use." DEIS at 12. Despite the seemingly broad nature of this statement of the Forest Service's purpose and need, the Forest Service's interpretation and formulation of alternatives fails to allow for the development of alternatives that adequately address the identified needs.
Rather, the Forest Service restricted its formulation of alternatives to meet this purpose and need to actions classifying currently unclassified routes. By narrowing the proposed alternatives in this manner, the Forest Service failed to consider feasible and prudent alternatives such as the Natural Heritage comprehensive and subset alternatives. Federal courts have been clear that the range of reasonable alternatives to be considered in an environmental impact statement depends on the purpose of the project. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815-16 (9th Cir. 1987) (impact statements must consider all reasonable alternatives that accomplish project purpose, but need not consider alternatives not reasonably related to purpose).
However, an agency's discretion to determine the purpose and need of a
project is not unfettered. The courts will scrutinize and reject an agency's characterization of a project's purpose and need if it results in overly narrow formulation of alternatives. In Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 814 n.7 (9th Cir. 1999), the court explained that the agency's proposed interpretation of its purpose and need was too narrow to satisfy NEPA, because it restricted the scope of reasonable alternatives too tightly, down to one or two choices.
The Forest Service appears to acknowledge the narrow characterization of its purpose and need. In its Roads Analysis Report -- Supplement (RAR Supplement), the Forest Service articulated the need for a "narrowly defined Purpose and Need" in order to transition to the new travel plan expeditiously. RAR Supp. At 35. However, by taking this narrow approach, the Forest Service has eliminated from consideration feasible and prudent alternatives that more effectively and comprehensively respond to the stated purpose and need.
Accordingly, in a new draft EIS, the Forest Service must formulate and consider alternatives that meet the purpose and need for the ORV Route Designation Project that are not restricted simply to the classification of currently unclassified roads. In so doing, the Forest Service must analyze alternatives to the existing travel system and consider actions to address indirect impacts of the use of this travel system, for example dispersed camping and the continued proliferation of user-created routes.
B. The Forest Service Failed to Analyze Sufficiently Whether the Alternatives Would Respond to the Purpose and Need
The analysis of the actions considered by the Forest Service to respond to the purpose and need of the route designation project fails to provide any assurance that the concerns raised by the Forest Service will be adequately addressed. In part, as discussed above, this is a failing of the Forest Service's formulation and consideration of alternatives. In addition, this inadequacy is the result of a lack of substantive analysis and reliance on false or undocumented assumptions. As such, serious questions are raised concerning the ability of the preferred alternative to respond to the purpose and need, including:
· Given funding deficiencies relating to enforcement, maintenance, and signing, how does classifying hundreds of miles of unclassified roads "address the immediate need to better manage motorized cross-country travel?" Rather, in response, why couldn't the Forest Service close the Forest to cross-country travel, restrict travel to the current classified system, and add trails following assurance of adequate analysis and funding?
· How does adding hundreds of miles of classified routes to the Forest Transportation System create "a travel plan that is inherently easy to enforce to the fullest extent practicable?" Other Forests with designated travel systems acknowledge the lack of ability to enforce the restrictions and the continued proliferation of user created trails.
· Is the proposed project truly "simple to understand?" For example, the Forest Service indicates the proposed dispersed camping exemption states that: "travel must occur on an existing route within the specified distance from an open designated route. (emphasis added) The exemption permits travel off of a designated route, but not off an existing route." Hasn't confusion over existing versus designated routes already been identified as a problem? Routes pioneered on one wet weekend become "existing" in they eyes of many ORV users.
· Without sufficiently detailed site-specific analysis and application of the minimization criteria on a route-by-route basis, how will this action "reduce the potential for motorized conflicts and impacts to other resource uses and values?"
The Forest Service must succinctly analyze the ability of the alternative to respond to the purpose and need of this project. Moreover, based on the considerable problems associated with the existing conditions, the Forest Service must consider alternatives more responsive to natural resources and other stated needs on the Forests. The Line Officer must sign an Emergency Order closing the forest to cross country travel, then conduct comprehensive travel planning.
ALTERNATIVES
NEPA requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternate uses of available resources." 42 U.S.C. § 4332(E). "The alternative analysis is characterized as 'the heart' of the environmental impact statement." Colorado Envtl Coalition v. Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999)(citing 42 C.F.R. § 1502.14). Courts apply a "rule of reason" analysis to determine whether the range of alternatives an agency considered, "and the extent to which it discuss[ed] them," was adequate. Utahns for Better Transportation v. U.S. Dept. of Transportation, 305 F.3d at 1152, 1166-67 (citing City of Grapevine v. Department of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994)). A reasonable alternative is one that is "non-speculative . . . and bounded by some notion of feasibility." Id. at 1172 (citingVermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978)) (additional citations omitted).
In particular, agencies must consider alternatives that are more consistent with the agency's mandate. In Muckleshoot Indian Tribe v. U.S. Forest Service, the Ninth Circuit remanded an EIS to the agency based on its failure to consider alternatives to a land exchange that imposed restrictions on the traded land. 177 F.3d 800, 813 (9th Cir. 1999). The Ninth Circuit was "troubled" that "the Forest Service failed to consider an alternative that was more consistent with its basic policy objectives than the alternatives that were the subject of final consideration." Id. (citing Seattle Audubon Society v. Mosely, 80 F.3d 1401, 1404 (9th Cir. 1996).
According to the Seventh Circuit, if "NEPA mandates anything, it mandates this: a federal agency cannot ram through a project before first weighing the pros and cons of the alternatives." Simmons v. U.S. Army Corps of Engineers, 12 F.3d 664, 670 (7th Cir. 1997). Moreover, "in examining alternatives to the proposed action, an agency's consideration of environmental concerns must be more than a pro formal ritual. Considering environmental costs means seriously considering alternative actions to avoid them." SUWA v. Norton, 237 F.Supp.2d 48, 51 (D.D.C. 2002) (citing Calvert Cliffs Coordinating Comm., Inc. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1128 (D.C.Cir. 1971)).
The detailed analysis of alternatives is essential to NEPA's statutory scheme and its underlying purpose to "provid[e] a clear basis for choice among options by the decision-maker and the public." 40 C.F.R. 1502.14; see also 42 U.S.C. § 4332(2)(E); 40 C.F.R. §§ 1507.2(d) & 1508.9(b); CEC v. Dombeck at 1174 ("What is required is information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned") (quotation marks and citation omitted). Ultimately, NEPA's alternatives mandate means that "no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action . . . ." Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974)(emphasis added); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988), cert. denied, 489 U.S. 1066 (1989) (the alternatives requirement guarantees that agency decision-makers "[have] before [them] and take into proper account all possible approaches to a particular project . . . which would alter the environmental impact and the cost-benefit balance) (emphasis added); Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995).
So important is the alternatives requirement that "the existence of a viable but unexamined alternative renders an environmental impact statement inadequate." Alaska Wilderness v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995); see also, Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1288 (1st Cir. 1996) (EIS invalid because agency did not consider alternative of using artificial water storage units instead of a natural pond as a source of snowmaking for a ski resort);Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999) (quoting Dubois, 102 F.3d at 1287).
Of particular importance to the Fishlake OHV Route Designation Project, is the obligation that "[a]s one aspect of evaluating a proposed course of action under NEPA, the agency has a duty to study all alternatives that appear reasonable and appropriate for study, as well as significant alternatives suggested by other agencies or the public during the comment period." Dubois, 102 F.3d at 1286 (citing numerous others). The conservation community has presented to the Forest Service a number of feasible, prudent, and implementable alternatives that adequately respond to the need for this project and sets forth a balanced vision for travel management. To ensure consideration in the DEIS, the conservation community submitted not only a thorough long-term transportation vision and management alternative for the Forest, but also a subset alternative that conforms to the unreasonably narrow criteria established by the Forest Service, namely that only classification of unclassified routes is the action. Nonetheless, the Forest Service arbitrarily and capriciously eliminated the conservation community's alternative from consideration. In so doing, the Forest Service violated NEPA and rendered the DEIS inadequate under law.
The Forest Service is required to provide an explanation of why alternatives were eliminated from consideration. 40 C.F.R. 1502.14 . To be clear, the Forest Service failed to provide an adequate basis for eliminating the Natural Heritage subset alternative from consideration The development Natural Heritage alternative followed the Forest Service's articulation of the narrow criteria upon which alternative would be developed. Nonetheless, without adequate reason, the Forest Service failed to consider this "significant alternative" representing the collaborative efforts of Utah's conservation community. See Dubois, 102 F.3d at 1286.
The Natural Heritage Alternative (NHA), if analyzed, would present a true range of alternatives. The NHA takes the issue of classifying unclassified routes seriously, instead of ducking the issue by issuing a map that designates nearly every route, track, and overgrown route prism. The NHA considers wildlife, habitat, conflict, and redundancy before classifying routes. The NHA is a true conservation alternative based on conservation biology. The so-called "Non-Motorized Emphasis" alternative, #4, in not significantly different from the modified proposed action alternative. According to mileage calculations and buffer analysis included, respectively as Attachments C and E, in this document, there is an insufficient range among the alternatives analyzed in the DEIS. Conservationists have worked closely with the agency from the beginning of this process to create a truly meaningful alternative focusing on retention of natural heritage, not simply "Non-Motorized Emphasis". Even as titled, the "Non-Motorized Emphasis" alternative "emphasizes" nothing of the kind. Still grossly tilted toward the satisfaction of demands presented by ATV community, the name "Non-Motorized Emphasis" implies a meaningful level of difference from the modified proposed action that is simply evident upon examination of details. Simply re-branding the proposed action with a few token closures here and there does not make it a true conservation alternative.
The Forest Service averred three
rationales for eliminating the Natural Heritage subset alternative, each of
which is without basis and arbitrary. First,
the Forest Service contends that "[n]either option provides an exemption for
dispersed camping." DEIS at 83. As an initial matter, as discussed below,
this justification fails to conform with NEPA's segmentation and cumulative
impact requirements. In addition, the
Forest Service fails to indicate exactly how it reaches this conclusion
regarding the Natural Heritage subset alternative. The only mention of dispersed camping in the criteria utilized to
develop the Natural Heritage subset alternative is under "Key Conditions of ORV
Routes and Uses," which states "lack of
facilitated harm, e.g., to riparian areas by dispersed camping associated with
a designated ORV route." This phrase
conforms to the Forest Service's stated acknowledgment of impacts around some
dispersed camping areas (see below) and does not provide an appropriate or
adequate basis for eliminating this alternative. What is the purpose of
the150-ft. buffer zone from the centerline of all routes?
Rather than have this 300-foot-wide sacrifice area along all motorized routes,
the Forest Service should designate several campsites, or implement the buffer
zone along a few, specifically-suited routes in which informal camping
currently occurs and where resources will not be impacted by cross-country
travel.
For example, the Forest Service states, "The majority of motorized impacts are occurring during hunting season and spring antler shed gathering, in play areas next to communities, and around popular dispersed camping areas." DEIS at 9. Moreover, the Forest Services decision to evaluate dispersed camping in "separate NEPA analyses" does not warrant elimination of the subset alternative, as this decision to segment the analysis does not justify complete elimination of a viable alternative. Rather, if the Natural Heritage subset alternative results in the potential closure of 44 percent of existing dispersed campsites, the re-opening and access of these sites could be evaluated "in separate NEPA analyses," just as easily as reclamation or access needs of the 15 or 30 percent of dispersed campsites that the Forest Service recognized required additional analyses under the evaluated alternatives. RAR Supp. at 36 ("A portion (15 to 30 percent depending on the alternative) of existing dispersed campsites are located further than 150 to 300 feet from designated open routes. These sites will need to be evaluated to determine whether the route needs to be designated to the site or the site should be reclaimed." Said another way, the Forest Service should exercise the precautionary principle embodied by the subset alternative in recognition that the "majority of motorized impacts are . . . around popular dispersed camping areas" by closing environmentally harmful areas first and then reopening areas as appropriate. DEIS at 9.
Moreover, the reasoning suggested by the Forest Service reveals a fundamental flaw with the DEIS. Essentially, the Forest Service assumed that all routes in or around dispersed campsites must remain open or be designated as open. Thus, dispersed camping drove the formulation and consideration of alternatives, but according to the Forest Service, is outside the scope of the DEIS. See e.g. DEIS at 78 ("Alternative 4 results in a loss of motorized access to almost 20 percent of the Forest's inventoried dispersed campsites, which is outside the intent of the route designation project"). The Forest Service can't have it both ways by eliminating any analysis of the impacts of dispersed camping, while making it a key element in the formulation and consideration of an alternative they devise.
In addition, the Forest Service's purpose and need is silent as to the necessity to allow continued dispersed camping on nearly all of the myriad existing dispersed campsites. Rather, the Forest Service indicates that a fundamental need for the action includes the necessity to "reduce the potential for motorized conflicts and impacts to other resources uses and values." DEIS at 10. Clearly, since the "majority of motorized impacts are occurring . . . around popular dispersed campsites" the Forest Service must reclaim certain dispersed campsites in order to meet the pronounced need. As such, even if 44 percent of existing dispersed campsites are no longer available, the Forest Service may be able to meet its purpose and need, especially if the Forest Service created additional environmentally appropriate designated camping areas. However, until the Forest Service sufficiently analyzes the subset alternative, the potential for an appropriate balance is unanalyzed.
As a second rationale for eliminating the Natural Heritage subset alternative from analysis, the Forest Service suggests "the proposal was sent in too late to be evaluated by the ranger districts and the interdisciplinary team and would have added months of analysis time to prepare the DEIS." DEIS at 84. The Forest Service's assertion is unfounded for several reasons. First, the Forest Service's NEPA obligations are clear that feasible and prudent alternatives must be evaluated as part of the agency's analyses. This includes "significant alternatives" proffered by the public. The conservation community has undertaken substantial effort to present the Forest Service with a balanced and thorough alternative that resulted from extensive field and GIS research and collaboration with the planning team. This subset alternative was developed following several meetings with the Forest Service indicating that the Coalition's more comprehensive alternatives offered during scoping failed to meet the unreasonably narrow scope of the project. The Forest Service established certain deadlines for the conservation community to present a single, feasible and analyzable alternative. The conservation community upheld its end of the bargain by presenting the subset alternative to the Forest Service on March 3, 2005. The Forest Service released the DEIS in early August, nearly 5 months after submission of the subset alternative. As such, the Forest Service had ample time to analyze the subset alternative, especially considering that the bulk of analysis relates to road mileage comparisons camping, while making it a key element in the formulation and consideration of an alternative they devise.
Moreover, the Three Forests Coalition was under no obligation to submit the Natural Heritage alternatives during scoping, although the Coalition did in fact submit the more comprehensive alternative during scoping. The scoping process allows the Forest Service to "[d]etermine the scope and the significant issues to be analyzed in depth in the environmental impact statement" and "eliminate for detailed study the issues which are not significant or which have been covered in prior environmental review." 40 C.F.R. § 1501.7. Accordingly, the focus of the scoping process is to define the issues necessitating analysis in an EIS. All issues addressed by the subset Natural Heritage Emphasis Alternative (but not addressed by Alternatives 1-4) were present in the comprehensive Alternative the Three Forests Coalition presented during scoping.
The NEPA process anticipates the development and consideration of alternatives after the scoping process. For example, the Forest Service is required to respond to public comments by taking action to "develop and evaluate alternatives not previously given serious consideration by the agency." 40 C.F.R. § 1503.4(a)(2). Accordingly, the Forest Service should re-issue the DEIS with analysis of the subset alternative. Delaying analysis until the FEIS is insufficient for several reasons.
First, it ensures that the subset CNHA could not be implemented, as the public has not had the chance to comment sufficiently on the alternative. Second, based on experience, delaying consideration until the FEIS allows for fundamental misinterpretation of the alternative without an opportunity for correction. For example, the Three Forests Coalition (TFC) submitted in March 2004 a Sustainable Multiple Use Alternative during the scoping period for the Wasatch Plateau 31-sheep allotment term grazing permit EIS (Manti-La Sal NF) and in April 2004 a Sustainable Multiple Use Alternative during the scoping period for the Tushar Range 8-allotment cattle term grazing permit EIS (Fishlake NF). Neither Forest included the Alternative in their respective DEISs. Following the DEIS comment periods, the Fishlake NF decided to issue a second DEIS that would analyze the SMU Alternative. However, the Manti-La Sal NF decided to jump directly to a Final EIS (FEIS) that would analyze the SMU Alternative. Subsequently Region 4 USFS persuaded Fishlake NF to follow the Manti-La Sal NF decision and merely issue a Final EIS, for the sake of consistency across the Region.
In July 2005, the Manti-La Sal NF issued its Final EIS for the 31 sheep allotments. The FEIS fundamentally distorted the SMU Alternative, interpreting one minor element in the Alternative (i.e., that "key" mule deer fawning habitat would be unsuitable for sheep grazing) to mean all mule deer summer habitat (i.e., most of the entire allotment analysis area) would be incapable of sheep grazing. This, in combination with falsely claiming the SMU Alternative rendered all goshawk and riparian habitat incapable for grazing (the Alternative did not say that), the FEIS claims that under the SMU Alternative, zero sheep grazing would take place on 88.6 percent of the 31-allotment area. This arbitrarily rendered the SMU Alternative unreasonable. and allowed the Forest to wholly avoid comparison of the many differences between the SMU Alternative and the Forest Alternative.
Because these errors were embodied in an FEIS rather than a DEIS, the Forest is now unable to effectively respond to public comments that the Sustainable Multiple Use Alternative has been distorted and to fully analyze the alternative without publishing a new Draft EIS or a Supplemental Final EIS. As such, the likelihood of appeal and litigation is high.
In contrast, in January 1994, the Wallowa-Whitman National Forest supervisor announced his intention to write a new management plan for the 652,000-acre Hells Canyon National Recreation Area. The Hells Canyon CMP [Comprehensive Management Plan] Tracking Group formed and wrote a "Native Ecosystem Alternative" management plan that was first presented in 1995 to the Forest Service.
Wallowa-Whitman National Forest staff initially ignored the alternative. But Forest Service officials in Washington, D.C. pointed out to their Wallowa-Whitman colleagues that the Tracking Group's alternative was reasonable, differed significantly from that of the Wallowa-Whitman's, and therefore, under NEPA, had to be considered. A second Draft EIS was produced, which fully analyzed the Native Ecosystem Alternative. The Forest convened a multi-stakeholder Federal Advisory Committee Act (FACA) group to analyze the Draft EIS's alternatives. In the end, an astonishing proportion of the Native Ecosystem Alternative was adopted by the Wallowa-Whitman NF, including significant limitations on livestock grazing and motorized recreation, the two most significant, current threats to Hells Canyon's steep native grasslands, wildlife, and fish-bearing streams. The Final EIS and the Record of Decision were not litigated by any party.
Thirdly, the Forest Service indicates the Natural Heritage Emphasis proposals for the Fishlake ORV plan "are not complete in terms of specifying travel barriers and oversnow closures." DEIS at 84. With regard to specifying travel barriers, this vague statement fails to indicate whether the Forest Service deemed the alternative "not complete" because it did not present the number of new travel barriers necessary as in Table 2-6 or the type of travel barrier. Regardless of the meaning of the statement, the Forest could have easily received clarification or a calculation on this point from the Three Forests Coalition if it so desired.
Regarding oversnow closures, according to the Forest Service, "[o]versnow travel by snow machines is outside the scope of the OHV route designation project except in the limited cases where seasonal closures to all motorized use are necessary to protect the integrity of critical mule deer winter range or non-motorized recreation uses." DEIS at 2. The Forest Service consistently indicated that oversnow travel was outside the scope of the DEIS. Now, the Forest Service seeks to eliminate an alternative for failing to specify oversnow closures. Such a decision is clearly arbitrary and inconsistent with NEPA's public participation provisions.
Finally, the Forest Service suggests that the "March 15, 2005 letter stated that the groups would continue to offer suggestions for route closures, which indicated that these proposals might not be in final form." DEIS at 84. The Forest Service cannot eliminate an alternative from consideration because the proponent has indicated a willingness to participate in a public process to the maximum extent possible. Again, such a justification is clearly arbitrary and capricious and contrary to NEPA.
Therefore, the Forest Service must analyze the Natural Heritage Subset Alternative in a re-issued DEIS allowing for public discussion and comment. The Forest Service has consistently expressed the desire to quickly implement the project without appeals or litigation. At the same time, the Forest Service has clearly acted in such a manner that would necessitate an appeal and/or litigation.
The Three Forests Coalition has participated extensively, in good faith, in the Forest Service's NEPA and "collaborative" process. Nonetheless, without adequate and documented justification, the Forest Service has rejected a feasible, prudent, and ecologically responsible alternative that represents the collaborative and extensive efforts of Utah's conservation community. As such, the DEIS as released to the public is arbitrary and capricious and contrary to law and will be challenged accordingly. The Forest Service must re-issue the DEIS with consideration of the Natural Heritage subset alternative to remedy these violations of NEPA's alternative analysis.
A. The Forest Service Failed to Take a Hard Look at Significant Impacts of the OHV Route Designation Project
NEPA's "sweeping" commitment is to "prevent or eliminate damage to the environment and biosphere by focusing government and public attention on the environmental effects of the proposed agency action." Marsh v. ONRC, 490 U.S. 360, 371 (1989). NEPA thus commands that federal agencies take a "hard look" at the environmental consequences of their proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999). By forcing agencies to take a "hard look" at the environmental consequences of a proposed action , "NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh v. ONRC, 490 U.S. at 371; see Robertson, 490 U.S., at 349, 109 S.Ct., at 1845. In addition, "the broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time." Id.
In order to comply with NEPA's "hard look" mandate, an "EIS's form, content, and preparation [must] foster both decision making and informed public participation." Calif. v. Block, 690 F.2d 753, 761 (9th Cir. 1982). In addition, an EIS must contain "a 'reasonably' thorough discussion of the significant aspects of the probable environmental consequences." Id. "Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well-reasoned." Dubois, 102 F.3d at 1288. The following deficiencies of the DEIS must be remedied in order to guarantee informed decision making and public participation as well as a thorough discussion of the significant environmental, social, and economic consequences of the action.
The Forest Service also fails to consider adequately costs to local communities involved in search and rescue and personal injury associated with ORV use.
Most of the following comments refer to the Wildlife Specialist Report for the OHV Designation Draft EIS. While a second report, the Watershed/Aquatics Report is only briefly mentioned here, to the degree that similar concerns are present in that report (e.g., failure to examine whether the alternatives' route density/use preclude recovery or health of the species; failure to provide population trends within the project area for MIS such as macroinvertebrates; failure to provide a different alternative (i.e., the Natural Heritage Emphasis Alternatives) , these comments should be assumed to be directed at that report as well.
1. The Wildlife Specialist Report fails to address a crucial question of impacts, namely, "Does the proposed route density in Alternatives 3 or 4 threaten wildlife species of concern whose habitat will be subject to ORV routes and use?"
Instead, the WSR's presentation of "environmental consequences" for each species is superficial and formulaic, consisting of generalized (mostly unreferenced) benefits of the action alternatives. The action alternatives will "increase habitat effectiveness", decrease "fragmentation," provide cover, forage, etc. How the action alternatives will do this is generally not stated, and references are generally not given. Occasionally a more specific benefit will be stated, e.g., less firewood cutting of snags for cavity nesters if there is less unrestricted access, and fewer roads, but no documentation is offered. Further, alternatives 2, 3, and 4 differ only incrementally in terms of reductions in unrestricted use, miles route/square mile of habitat. Thus, the hard-look question of whether there are too many miles of routes per square mile of habitat for the species in question to remain is avoided.
One extremely important piece of information is the number of miles of road/square mile that characterize well-occupied habitat vs. potentially suitable, unoccupied habitat. On p. 75, the WSR reports:
On the Loa Ranger District, no known goshawk territories occur in potentially suitable habitat with localized road densities greater than 4 miles of road per square mile. Successful nests occur in areas where the localized road density is at or below 2-3 miles/square mile [emphasis added].
Unfortunately, the goshawk excerpt cited above appears to be the only instance in the WSR in which there has been observation of what level of roads is too high for "potentially suitable habitat" to actually be suitable habitat for a given species on the Forest.
The following examples illustrate the failure to address the question of whether the routes proposed for designation are too many:
a. Example 1.Pygmy rabbits. On p. 102, the WSR notes that pygmy rabbits are reluctant to cross open spaces (e.g., roads?) and that they seldom venture further than 100 meters from their burrow.
The WSR says currently there are 3.6 miles/mi2 of potential pygmy rabbit habitat, and that Alternatives 2 and 3 would reduce this to 3.2 miles/mi2 and Alternative 4 to 2.5 miles/mi2 of habitat.
The hard-look question of whether pygmy rabbits can successfully inhabit and persist in areas where there are 2.5 miles/mi2 (Alternative 4) , let alone 3.2 miles/mi2 (Alternatives 2 and 3) of routes (and vehicles) running through their habitat (WSR 102) is never addressed.
b. Example 2. Yellow-billed cuckoo. The WSR is not commenting on the fate of federally-threatened yellow-billed cuckoo under its limited range of proposed alternatives: "Designated motorized roads and trail density within potential yellow-billed cuckoo habitat would be incrementally reduced under each action alternative from 11.8 miles of road per square mile down to 11 miles of road per square mile under Alternative 4...[and]unrestricted travel would be reduced incrementally under each alternative from 93% of potential habitat, down to 45% of potential habitat." (WSR 47-48; emphasis added).
The Forest needs to address the question of whether they are providing effectively suitable habitat for a federally listed candidate species with at best 11 miles of road per square mile and 49% of its habitat open to "unrestricted" (i.e., cross-country) ORV travel
c. Example 3. Sage grouse and long-term, indirect impacts. The following excerpt from an August 25, 2005 Casper Star-Tribune article[1] describing sage grouse research findings being presented by scientists who had gathered in Riverton, WY, illustrates how the adverse impacts of roads can be surprisingly indirect, and how slowly the adverse consequences may be revealed (emphases added):
Researcher Matt Holloran, a UW doctoral student, presented his Upper Green River Basin research, which looked at how energy development is affecting sage grouse. He found that energy development is substantially harming sage grouse populations there, with a few twists.
While drilling activity, road traffic and well operations tend to push male birds away, they also tend to push golden eagles away from all the activity, where they seem to have a disproportionate impact on breeding grounds that are away from development activities, he said. At the same time, females do not leave the area of energy development activities and brood survival is quite good there.
Holloran did find that young females are beginning to leave development areas. He theorized that continuing activity seems to be overcoming female birds' connections with certain sites as the older females die off and are replaced by younger females. The older hens, he noted, established an attachment to a specific area where they were hatched, before energy development started.
d. Example 4. Riparian guild of birds. The question of whether proposed retention of the astounding number of 6.2 miles of routes/square mile of riparian habitat will preclude use of the riparian habitat by the riparian guild of MIS birds or other riparian-dependent species (e.g., amphibians) is never addressed.[2] Likewise, although "...drainage bottoms are often important passageways for amphibians," (Aquatic/Watersheds Report, 120) the impacts of 6.2 miles of roads/square mile of riparian habitat on chorus frogs, boreal toads, leopard frogs, and tiger salamanders (Table AB-1, Watershed/Aquatics Report, 105-107) are never addressed.
The Draft EIS does not acknowledge the evidence in a study (Findlay and Bourdages 2000) submitted to the Fishlake National Forest in 2004 by the Three Forests Coalition that shows that many negative environmental impacts are unnoticeable for many years, sometimes decades. Findlay and Bourdages found that the model that best fits wetlands species richness measurements was the model that took into account past densities of roads rather than current densities of roads. This means declines in biodiversity may not be observable for decades after road construction.
e. Example 5. Estimation of effective habitat. The WSR estimates that the area of unrestricted, overland ORV use is probably overestimated in the DEIS because "On site terrain features such as dense woody vegetation, large rocks, uneven and steep slopes reduce the total amount of area where motorized vehicles can actually travel." (WSR 29).
However, the DEIS does not consider or state the obvious inverse: i.e., that the area of truly potentially suitable habitat for the TES and MIS species is probably overestimated due to terrain features such as lack of sufficiently dense cover for protection from predators or .....a high density of motorized routes.
A Supplemental DEIS is needed to draw upon relevant scientific literature and survey information to compare the relative effectiveness of sensitive wildlife habitat (e.g., riparian areas, sagebrush communities, and ungulate winter range) under the substantially different route mileage of the Natural Heritage Emphasis Alternative compared to the Forest alternatives.
2. Neither the Draft EIS nor the WSR indicate what, if any, monitoring of ORV use/route density impacts on the native wildlife of the Forest will be undertaken following implementation of the plan.
a. The WSR uses the word "monitoring" six times. Five of these times are in two paragraphs regarding monitoring that is required on national Forests for peregrine falcon (WSR 10); the sixth mention indicates annual monitoring is done for goshawk on the Forest (WSR 12).
b. The Draft EIS notes only "Resource specific monitoring of motorized use impacts should be included in the monitoring summary"( DEIS 178, emphasis added). What monitoring summary? What does "Should be" imply?
The combination of the failure to address the question of whether proposed use/route density will further diminish or prevent recovery of declining native species (see #1 above), and the complete failure to commit to monitoring of impacts on native wildlife of the implemented ORV use/route density (#2 above) amounts to a capitulation of responsibility to the natural heritage of the Fishlake NF. Hundreds of scientific studies reviewed in numerous overviews document and warn of the myriad direct and indirect impacts to native wildlife (e.g., Berry 1980; Forman and Alexander 1998; Gilbert 2003; Gucinski, et al. 2001; Hartley, et al. 2003; Reed, et al. 1996; Trombulak and Frissell 2000 -- all of which have been supplied to the Fishlake National Forest by the Three Forests Coalition in 2004). However, the Fishlake NF fails to describe the likely impacts of their proposed ORV use/route density on declining native wildlife or to compare this with the impacts that would be expected from the Natural Heritage Emphasis Alternative.
3. Alternatives 3 and 4 are treated as essentially similar, with Alternative 4 sometimes depicted as merely having less unrestricted use, and incrementally smaller miles/mi2 of road. A few of many examples follow:
The Natural Heritage Emphasis Alternative is substantially different than Alternative 4, but was not analyzed in this first Draft EIS.
4. The methods/criteria used to generate "potentially suitable habitat" acres for most of the species are unclear. The Draft EIS is unreadable because there is generally no way of knowing:
i. Example: Pygmy rabbit. The WSR (at 15) indicates that "Pygmy rabbits are generally limited to areas on deep soils with tall, dense sagebrush, which they use for cover and food" and "There are approximately 52,752 acres of potentially suitable habitat on the Fishlake National Forest comprised of tall sagebrush communities." How were these 52,752 acres selected? Do these 52,752 acres have "tall, dense sagebrush"? Or do they "potentially" have tall, dense sagebrush if no sagebrush treatments are initiated or maintained, current livestock grazing management is altered, etc.?
ii. Example: Brewer's sparrow, vesper sparrow, and sage thrasher: WSR (at 22) describes varying habitats for these three species (emphases added):
1. "The Brewer's sparrow is a common summer resident and breeder in mountains and higher valley [sic]. It breeds in treeless shrub habitats with moderate canopy, especially in sagebrush. The Brewer's sparrow breeds locally above pinyon-juniper belt. "
2. "The Vesper sparrow is a common summer resident occurring in sparse or open stands of sagebrush, low sagebrush, and similar habitats."
3. "The sage thrasher occurs primarily in sagebrush and low sagebrush habitats. It is mainly limited to semiarid sagebrush plains, but may extend into junipers and mountain-mahogany habitats near sagebrush "
The WSR then indicates that suitable habitat for the "sage nester guild" is 661,740 acres of sagebrush.
1. Was all sagebrush included in this estimate?
2. How much overlap is there between the three species' sagebrush habitats?
3. If one declining bird's habitat does not overlap much with the other two birds, what are the impacts on that species?
i. Example: Prairie dog. Is the "approximately 428 acres of potentially suitable habitat" (WSR 8) based on the area where "former translocations" were situated? How was that area delineated? Does the WSR assume that zero other acres were used historically by prairie dog on the Fishlake, or are potentially suitable? Rodriguez (2004) indicates that "Basic habitat requirements considered for the Utah prairie dog are deep, well-drained soil, vegetation low enough so that prairie dogs can see over or through, and suitable forage (Spahr et al. 1991). Moist forage available throughout the summer is also needed." It is not clear whether the WSR is saying that only 428 acres of such habitat exist on the Forest.
i. MIS Riparian guild of birds. Potentially suitable habitat for the "Riparian guild" of four birds is estimated to be 18,021 acres (WSR 26), but it is not clear how riparian habitat was defined for the purposes of estimating the acres.
ii. Yellow-billed cuckoo. The WSR notes that yellow-billed cuckoo "are restricted to riparian habitat containing cottonwood and willow overstory and dense brushy understories below 7,000 feet elevation." No reference for this is given, and yet yellow-billed cuckoo researcher Steve Laymon responded personal communication by email, 15 September 2005). to my question regarding the 7,000 foot figure:
I
would certainly not expect to find Yellow-billed Cuckoos at 7,000 foot
elevation. In California they have not been found above 5,000 feet and
there only rarely. At higher elevations the warm season is very short and
the nighttime temperatures are low even in summer - this probably adversely
affects the potential for a good prey base.
If in fact suitable habitat for yellow-billed cuckoo on the Fishlake NF is even smaller than the 2,664 acres cited (WSR 47), then perhaps the Forest could eliminate all unclassified and some classified routes (as well as livestock grazing) within its potential habitat. The Forest is almost certainly never going to restore yellow-billed cuckoo in habitat averaging the proposed 11.0 miles of routes/square mile of habitat (WSR 47).
5. Trends of Forest MIS bird species[3]are not decipherable for the Forest and/or are inaccurately reported for Utah.
This renders the Draft EIS unreadable. (In contrast, the Watershed/Aquatics in Table AB-2 provides specific site data for where macroinvertebrates have been sampled and whether population trends are available; Watershed/Aquatics Report 107-111) report A few of the many examples include:
a. Northern goshawk. The WSR writes (at 12): "The Northern Goshawk is both a Regional Forester's Sensitive Species and a Management Indicator Species on the Fishlake National Forest. Annual Forest-wide monitoring of Goshawk territories, show a stable trend despite several years of below average precipitation levels." What is the trend that is stable? A downward trend? Is goshawk at viable levels in the Forest?
b. Sage Nester MIS: Sage thrasher is in a dramatically downward trend in Utah over 30 years. Rodriguez (2004) notes that between 2002-2003 there were 14 detections of sage thrasher on the Fishlake National Forest. These detections occurred on the Richfield Ranger District in the Hell's Hole area. The results (trend) of these transect studies on the Forest are not stated(Rodriguez 2004, p. 77). As well, the coverage of the sage thrasher monitoring is not provided. Is it only in the Hell's Hole area?
c. Sage Nester MIS: Brewer's sparrow . The WSR estimates stable to slightly up on Forest based on increased numbers of transects on which the sparrow has been observed but the WSR doesn't state whether the numbers of transects have increased or remained the same in the same locations (see Rodriguez 2004, p. 72). Rodriguez (2004)says Breeding Bird Survey data show Brewer's sparrow up in Utah 1968-1998; but in fact, Breeding Bird Survey (BBS; Sauer etr al. 2005) data for 1968-2004 show downward trend 1968-1979 and 1980-2004 [4]
d. Sage Nester MIS: Vesper sparrow -- Again, there is no indication of number of transects run over different years and there are limited data on the Forest (perhaps data has been gathered only in the "Burnt Flat" area), but Rodriguez (2004) estimates that this population is stable or slightly up in trend, and likely viable across the Forest. Rodriguez (2004) says the Vesper sparrow displays an upward trend in Utah 1968-1998 in BBS, but in fact BBS for 1966-2004 as well as 1966-1979 shows downward trend[5] of Vesper sparrow in Utah. Rodriguez does indicate that Nature Conservancy data (for Utah? unstated) indicate Vesper sparrow is "imperiled."
e. Riparian Guild MIS: Lincoln's sparrow -. Appears transects have been run only in Burnt Flats area (Rodriguez 2004; p. 94) though the conclusion is that Lincoln's sparrow is likely stable or in a slightly downward trend on the Forest; again not clear how many transects.
The DEIS does not provide readable, scientifically sound information regarding evidence for trends of its MIS bird species. This is of particular concern, as the viability and trends of MIS species are supposed to indicate trends and viability of numerous other species represented by the MIS species. If even these MIS species are not monitored well, or their trend is downward, then the proposed maintenance of, e.g., 7.4 miles of route per square mile of riparian guild habitat in the Fillmore District or 6.2 miles of route per square mile of riparian guild habitat in the Forest under Alternative 3, may be dooming riparian-dependent species. The Draft EIS fails to address this issue.
The following bird species examined in the WSR are experiencing the following trends in Utah according to the Breeding Bird Survey; the unreadable nature of Fishlake NF monitoring (Rodriguez 2004) is shown for those birds showing upward trends in Utah:
DOWNWARD
All three sage nester guild birds:
Brewer's sparrow
Vesper sparrow
Sage thrasher
Hairy Woodpecker
Northen goshawk
Mountain bluebird (1980-2004)
UPWARD
Song sparrow (although no Utah trends are cited for 1980-2004)
--- SLIGHT DOWNWARD on small sampling on the Fishlake (Rodriguez 2004)
Yellow warbler
---Undecipherable for Fishlake NF in Rodriguez 2004: "In 1998 the number of presence/absence observations of this species along each transect line totaled 14. In 2002 the total number of transects recording this species totaled 19. As a result of these data collected over the past 8 years, this species has demonstrated an increased in presence/absence numbers across the Forest.:
MacGillivray's warbler
---No trend observable yet fpr Fishlake NF in Rodriguez 2004: "Between 2002-2003 there were 6 incidental detections of MacGillivray's warbler on the Richfield Ranger District of the Fishlake National Forest."
Lincoln's sparrow
--3 surveys in the Burnt Flats area between 1994-2002 - no indication of how many transects run in each year
Mountain bluebird (1966-2004)
---Unknown number of transects run in the Burnt Flats area between 1994 and 2002. Trend not decipherable from description (Rodriguez 2004)
Western bluebird
---Undecipherable for Fishlake NF in Rodriguez 2004: "Data has been collected between 1994-2003. In 1994, and 1998 surveys were conducted in the Burnt Flat area, and other areas of the Forest. No birds were encountered in this area. In 2001, this species was detected by Utah State University along 3 transect lines while conducting specific cavity nesting surveys [WHERE???]. In 2002 the presence of bluebirds was detected along 1 transect line. The number of detections has increased to 14."
NO BBS UTAH STATEWIDE TRENDS AVAILABLE:
Sage grouse
Mexican spotted owl
Bald eagle
Flammulated owl
Three-toed woodpecker
6. Guild species are lumped for analysis, with impacts to their "habitat" treated superficially as one analysis, though they may have differing relationships to roads.
a. Example: Flammulated owl and three-toed woodpecker. These two MIS species (cavity nesters) are lumped together in the WSR (see, e.g., WSR 82), although a habitat suitability index for three-toed woodpecker year-round habitat (Zapisocki, et al.2000) indicates "Three-toed woodpeckers are unaffected by the proximity of human developments or roads" while a management document indicates otherwise for flammulated owl (Canings and van Woudenberg 2004): "Do not construct roads. Deactivate or control road access on existing roads" and "Do not develop trails, roads, or recreation sites within core area."As for cumulative impacts on flammulated owl, this document cites research indicating , "Flammulated Owls were not observed nesting in areas they had previously occupied after grazing had reduced grasses <10 cm (van Woudenberg 1999)." Neither the Draft EIS nor the WSR take a hard look at the cumulative impacts of livestock grazing and the proposed level of designated routes (see DEIS 136 and Appendix C 190)[6].
The DEIS makes no mention of the potentially significantly different responses of flammulated owls and three-toed woodpeckers to roads and road use. Instead, it simply writes (WSR 83):
There would be few changes to the miles of roads and motorized trails proposed in the action alternatives. At the Forest level, road density would drop by 0.2-0.3 miles of roads per square mile [from the current 0.9 miles/square mile) . These changes would not measurably improve habitat effectiveness for the flammulated owl or three-toed woodpecker.
7. Most conclusions are unreferenced to scientific information. A few examples follow:
a. The phrase "may therefore impact [a species'] individuals, but would not likely contribute to a trend toward federal listing or cause a loss of viability to the population or species" is invoked 49 times in the WSR, as in: "Implementation of this alternative may therefore impact sage grouse, but would not likely contribute to a trend towards federal listing or cause a loss of viability to the population or species" (WSR 95)
What evidence is being relied upon for claiming that potential impacts of the proposed route density/use on the few sage grouse individuals and populations on the Fishlake does not contribute to a trend towards federal listing of this species? What does contribute toward a trend towards federal listing of the sage grouse if it is not the impacting of individuals and populations? What evidence is the basis for claiming that the proposed ORV use/route density will not cause a loss of viability to a small population that may be impacted on the Fishlake?
b. The WSR indicates that thee are only two known populations of pygmy rabbit on the Fishlake (WSR 101) One of the population is on Monroe Mountain and the Forest proposes that unrestricted, off-route driving would continue through this population (WSR 109). What evidence is the basis for saying that unrestricted driving through this pop7ulation would not "likely" cause a "loss of viability to the population"? (WSR 109).
c. "Several known [goshawk] territories that have nest structures within 1/10 mile of existing roads have been successful raising young. Other nest territories seem to have a low tolerance for any kind of nearby disturbance." (WSR 71)What is the source for this information? Documentation on the Fishlake? Reference to a scientific study elsewhere?
8. Readily available scientific literature regarding the effects of roads on the species was not utilized.
a. The following examples, for instance, were rapidly found by a word search on Google
1. Example: Brewer's sparrow. Research by Ingelfinger and Anderson (2004) aimed at determining "...how roads associated with natural gas extraction affect the distribution and densities of songbirds in sagebrush habitats of western Wyoming. Surveys were conducted to measure species density at multiple distances perpendicular to roads with varying traffic volumes. Density of sagebrush obligates (Brewer's and Sage Sparrow was reduced by 39-60% within a 100-m buffer of dirt roads with low traffic volume). The response may be related to a synergistic effect of road noise, edge effects, habitat fragmentation, or competition with other species, such as Horned Lark, which occurred in increased densities along road corridors. Species composition shifted with an increase in Horned Lark abundance relative to sagebrush obligates along road corridors. Close to roads, Horned Larks accounted for 31% of all detections, whereas, beyond 100-m from roads they accounted for only 16%. The authors used a GIS to calculate a total area impacted within the gas development they studied by buffering all roads by 100-m and calculating the percentage of the total area impacted (14.6% of the land base is within 100-m of roads)" (emphasis added)
This is important in part because, contrary to the WSR's statement that BBS data show an upward trend of Brewer's sparrow in Utah between 1968 and 1998 (WSR 71), in fact, BBS data for Utah show a downward trend for Brewer's sparrow 1966-2004, 1966-1979, and 1980-2004.[7]
2. Example: Sage grouse.Research by Wisdom, et al. (2002) "validated the performance of two models that were developed to assess landscape conditions for Sage Grouse across 13.6 million ha of sagebrush steppe in the interior Columbia Basin and portions of the Great basin. ... Input variables included habitat density, departure from historic range of variability, grazing effects, road density, and human population density. .... To evaluate model predictions the authors examined output values in areas where sage grouse have been extirpated in the last 30 years to areas identified as strongholds based on current population surveys. The models performed very well - the highest probability of extirpation was predicted in areas from which sage grouse were extirpated and lower probability in areas still occupied" [emphases added]. Density of roads and human activity were one factor that distinguished between occupied and unoccupied habitat: "..subwatersheds in extirpated areas had higher densities of roads and human populations than did those in occupied areas (Fig. 4)." Figure 4 shows that sage grouse habitat is more likely to be occupied than extirpated only when roads are "very low to none."
b. Relevant scientific documents submitted to the Fishlake National Forest Planning Team during 2004 were not utilized. Some examples follow:
1. Example 1. Cumulative impacts of livestock grazing and roads. Gelbard and Harrison (2003), examine non-serpentine grasslands in California found cumulative impacts: Cover and number of native species, and native grass diversity were greatest in sites >1000 m from roads and lowest in sites 10 m from roads, while exotic cover showed the reverse pattern. Native cover was greater on cool and relatively flat slopes and on ungrazed compared to grazed cool slopes, but was not significantly affected by livestock grazing on warm or neutral slopes. The Draft EIS does not discuss vegetation in terms of native or exotic; nor does it discuss the cumulative impacts of livestock grazing and road density.
2. Example 2. Lag time in loss of biodiversity. Findlay and Bourdages (2000) found that many negative environmental impacts are unnoticeable for many years, sometimes decades. The model that best fits wetlands species richness measurements was the model that took into account past densities of roads rather than current densities of roads. This means declines in biodiversity may not be observable for decades after road construction.
3. Example 3. Impacts on reptiles and small mammals. Berry (1980) cited studies of impacts of ORVs on birds indicating that ORVs can have profound and highly significant negative impacts by reducing abundance, variety, and biomass. Berry notes that similar results have been obtained in studies of other vertebrate species, particularly reptiles and small mammals. Numbers, diversity, and biomass are markedly reduced in most species exposed to moderate and intensive ORV use. (p. 455). Neither the Draft EIS nor the WSR mention impacts of route density/ORV use on reptiles or small mammals.[8]
According to the Forest Service, the DEIS eliminates detailed discussion of socio-economic impacts because "[t]hese issues create minimal risk or are eliminated by project design." DEIS at 24. In its single-paragraph analysis of socio-economic aspects of the project, the Forest Service simply "recognizes that motorized recreation plays an important role in local economies." DEIS at 206. The Forest Service never analyzes its funding capabilities to implement the measures anticipated by the project, such as maintenance and road signing, never balances the environmental costs with purported financial benefits, and continues to rely on the unsupported assumption that user creations of trails and enforcement of ORV restrictions will be decreased by the project.
Inaccurate economic information may defeat the purpose of an EIS by "impairing the agency's consideration of the adverse environmental effects" and by "skewing the public's evaluation" of the proposed agency action. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir.1996); see also Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1157 (W.D.Wash.2002) ("An EIS that relies upon misleading economic information may violate NEPA if the errors subvert NEPA's purpose of providing decision makers and the public an accurate assessment upon which to evaluate the proposed project."). NEPA requires agencies to balance a project's economic benefits against its adverse environmental effects. Calvert Cliffs' Coordinating Comm. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1113 (D.C.Cir.1971).
The Forest Service acknowledges that this project "may result in an increase in the mileage of classified routes, which could lead to increased maintenance costs." RAR Supp. at 17. In addition, the Forest Service recognizes that "[t]here will be an increase in signing costs during the initial project implementation and additional funding will be needed to implement road closures using gates, barriers, or obliteration." Id. Additional costs include providing free travel maps and repairs from vandalism. Id. Despite acknowledging the need for additional funding to cover additional costs, the Forest Service has made no attempt whatsoever to place a value on these additional costs; analyze the capacity to receive the necessary funding to implement their proposal; or to assess whether these costs outweigh the environmental harm of allowing motorized use on any given route. Each of these analyses must be completed to provide the public with the full picture of the project and the agency's ability to implement necessary measures to "reduce the potential for motorized conflicts and impacts to other resource uses and values" (DEIS 10).
The Forest Service also guaranteed in Roads Analysis Reportthat "[e]quity of the proposed route designations will be evaluated by the decision maker using socio-economic and bio-physical resource tradeoffs presented in the Fishlake OHV Route Designation Project EIS, Forest Plan revision information, and based on applicable environmental laws." RAR Supp. at 18. Where is this evaluation? This is the exact type of analysis the Forest Service must complete in order to comply with NEPA. See Calvert Cliffs', 449 F.2d at 1113.
Much of the Forest Service's minimal socioeconomic discussion appears to derive from the continued assertion that accommodating motorized use on the Forest is necessary to support local communities. However, the documents cited by the Forest Service do not support this assertion. The "Social and Economic Assessment" by the Utah's Governor's Office acknowledges that "ATV tourism is growing, but some communities are uncertain about its benefits versus the costs it incurs." Dixie, Fishlake & Manti-La Sal National Forest, People and the Forest: Social-Economic Assessment Tools and Data for Forest Plan Revision, prepared by the Utah Governor's Office of Planning and Budget at 49. The Governor's Office notes that "[w]ildlife-watching is also becoming a profitable enterprise. More than $555 million dollars was spent on wildlife watching in Utah, more than double the amount spent five years earlier." Id.
Moreover, the Governor's Office recommended that the Forest Service "[a]nalyze the management costs and economic benefits of new activities and Forest uses, in particular . . . ATVs and other motorized recreation." Id. at 166 (emphasis added). However, despite recognizing the necessity for such an analysis, the DEIS is completely devoid of any cost-benefit analysis that takes into account management costs, let alone non-market valuations .
Accordingly, the Forest Service, in a re-issued DEIS must conduct a thorough assessment of the additional costs associated with the project, balance these costs with economic, social, and ecological benefits/costs, and reach the appropriate decision based on this assessment.
The summary of the DEIS states that "the desired result from this project is to provide ample motorized recreational opportunities that minimize the potential for user conflicts and resource impacts, and to create a system that can be maintained over time with the resources available to the Forest" (p. 1). This desired result would meet the requirements of Executive Order 11644 with the exception that the Nixon presidential order does not require the agency "provide ample motorized recreational opportunities."[JK1] However, the proposed plan for achieving the desired result is based on insufficient analysis and faulty assumptions.
As society increasingly relies on non-wilderness public lands to provide environmental services and values such as clean water, natural quiet, wildlife habitat, as well as opportunities for recreation, the need for projects to minimize user conflicts and resource impacts grows. In order to meet these critical needs, the summary correctly suggests, the Forest must design the off-road vehicle route system (as well as the rest of the travel system, we would argue) so that it can be maintained over time with resources available to the Forest.
However, Chapter 1: Purpose of and Need for Action dismisses important factors which must be analyzed if the Forest is to propose a successful plan in the final EIS. Aspects of these sections also rely on unrealistic assumptions that contradict available social research and needed economic research that is particular to the Fishlake National Forest. As such, the Fishlake National Forest cannot expect to achieve the desired results based on the information they have considered and assumptions they have made in making their proposal.
For instance, although the plan is intended to result in a route system that minimizes user conflicts, the table and discussion on "management considerations and issues" (p. 20-23) does not call for an analysis of conflicts among visitors to the National Forest. Nor does it consider conflicts created when off-road vehicle use occurs on public lands that are near private property or on public lands where a local rancher is affected by fence cutting, damage to livestock improvements and equipment. This glaring omission may be attributed to one of several reasons: perhaps the Fishlake does not have a system for reporting and tracking user conflicts; perhaps the existing route network is too large and dispersed to be monitored and enforced by agency staff; or perhaps due consideration of this issue would point to the obvious need for comprehensive travel planning to designate foot and hoof trails as well as passenger vehicle access to trailheads, instead of the compartmentalized approach to designating only off-road vehicle routes which the Forest has chosen. Regardless, a thorough analysis of user conflicts associated with off-road vehicle use is essential to planning for a route system, which minimizes opportunities for user conflicts to occur.
In the purpose and need, the Fishlake National Forest rightly recognizes the ecological and social threats posed by unmanaged off-road vehicle use. However, its response of proposing designation of an extensive and dispersed route system invites ever-expanding damage and conflicts caused by a minority of users and at the expense of a majority of users and the ecological values and services that would otherwise flourish. After full consideration of sideboards for designations which depend on the ecological capacity of the land to withstand off-road vehicle use, the Forest should plan to scale back the off-road vehicle system in order to better serve the majority of visitors to the Fishlake. According to the Forest Service's National Visitor Use Monitoring Program found at www.fs.fed.us/recreation/programs/nvum, the Fishlake reported in August 2003 that only 11.5% of visitors primarily came to the Forest to ride their off-road vehicles, while 25.8% participated in that activity (Table 13. Fishlake NF activity participation and primary activity). The 31.5% of visitors who participated in "driving for pleasure on roads" designed for standard passenger vehicles are not participating in off-road vehicle use. In contrast to the relative minority of folks visiting the Fishlake to ride off-road vehicles, hunting and fishing were recognized as the leading primary activities on the Forest at 21.6% and 35.5%, respectively. Both ac