Grizzly Access Appeal

April 30, 2004 

USDA Forest Service, Northern Region
Attn: Appeals Deciding Officer
P.O. Box 7699
Missoula, MT 59807

Fax: 406-329-3411 

NOTICE OF APPEAL pursuant to 36CFR217. 

DECISION APPEALED:  Access Management within the Selkirk and Cabinet/Yaak Grizzly Bear Recovery Zones, Kootenai, Lolo, and Idaho Panhandle National Forests. 

 March 24, 2004 Record of  Decision:  Kootenai, Lolo, and Idaho Panhandle National Forests, Forest Plan Amendments for Motorized Access Management Within the Selkirk and Cabinet/Yaak Grizzly Bear Recovery Zone, signed by Forest Supervisors Ranotta K. McNair, IPNF N.F., Bob Casteneda, Kootenai N.F, and Deborah L.R. Austin, Lolo N.F. 

OBJECTIONS:  We object to the entire process of adding amendments, including all the documents that support this action we believe is illegal, because the actions are significant and cumulatively comprise piecemeal revisions at a time when these issues should be addressed in an integrated manner as required by NFMA in Forest Plan revisions. 

STATEMENT OF REASONS: 

The Decision to Amend these forest plans  is illegal:

A.   The “Purpose and Need” statements (ROD, p. 2-3), especially considering the time frames, clearly define a need for Forest Plan Revision, not an amendment.   The 1994  IGBG recommendations, the 1995 USFWS Biological Opinion, the Access Management Task Group recommendations were obviously significant new information that represented “changed conditions” from those on which the existing LRMP (Land and Resource Management Plan) were based.   Any cursory analysis of  these events in relation to current LRMP age and NFMA law, should have triggered a decision to revise the forest plans which were due for revision even without a changed conditions finding (16USC1604.(4) & (5), or a 1999 lawsuit by preservationist extremists.

This decision directs significant revision of the long term land use allocations of current forest plans with no integrated analysis of long term effects, and no public disclosure of how the land will be managed without the roads that supported the current multiple use land management prescriptions, a violation of NFMA and NEPA.  The decision imposes a new “rule set” of grizzly bear security requirements on current forest plans (FEIS, p. 1-7).  The new “rule set” prohibits implementation of existing Forest Plan multiple use prescriptions on thousands of acres (FEIS, p. 3-96, 3-99, 3-104, 3-105, 3-145, 3-146, 3-152, 3-153), and restricts motorized use on millions of acres.   The proposed amendment mandates cumulative project by project site specific changes to existing Land and Resource Management Plans (LRMP) with no analysis or disclosure of long term effects on the availability and suitability of affected lands for resource management as required by NFMA (16USC1604.(c ) (1)).

B.    The proposed amendment imposes a new “rule set” which defines “minimum management requirements”, or criteria for compliance with laws (ESA) and other management requirements (36CFR219.12 ( c) (e)), and as such restricts decision space for legal multiple use alternatives (36CFR219.(b)).  The definition of  “Core Area” as defined (FEIS, p.G-1) precludes the implementation of existing multiple use land allocations for motorized access for recreation, forest protection, and timber management.  The mandate to impose  “Core Area” non-motorized management in place of current multiple use management areas violates existing law relative to timber management (Organic Act, MUSYA, and NFMA), as well as existing laws disclosing the significant resource tradeoffs and opportunity costs associated with the decision (36CFR219.12(I)(4).  Since the rule set is new information, no systematic integrated evaluation of the long term effect of these ESA requirements in the original forest plan nor the proposed amendment FEIS as required by NFMA and NEPA has been accomplished.   The only way statuary requirements can be met in this case is to do the required analysis and disclosures of these new grizzly bear minimum management requirements, along with other requirements mandated by ESA or other laws, to provide the public with the required information on legal constraints and what if any decision space is left to formulate a range of legal multiple use alternatives in a good faith revision process.

C.    The Forest Service violated the Administrative Procedures Act,  NFMA and NEPA by agreeing to “settle” a lawsuit with an amendment in 2001instead of implementing the revision process required by law.  Six years’ experience from similar amendments on  the Flathead National Forest had already demonstrated a high probability of significant effects on  protection and multiple uses of  National Forest lands promised to the public in existing forest plans.   Responsible Officials knew the new standards would be highly likely to produce significant effects on the human and biological environment without doing any analysis.    A decision to settle a lawsuit with an amendment was a predetermined arbitrary and capricious decision to do an  “insignificant amendment” rather than a good faith effort to evaluate significance of the new  “non-discretionary” requirements and benefits of  instead beginning an integrated plan revision (16USC1604.(f)).

D.   This decision mandates site specific changes to current LRMP long term land use allocations without disclosing that is the real consequence of the amendment.  When decision is made to eliminate roads for motorized access, the means to implement current direction for vegetation management, forest protection, and recreation opportunities promised by the current plan is removed.  No alternative “roadless management” prescription is disclosed in this analysis or the site specific analyses as evidenced by experience on the Flathead National Forest.  Justification for road obliteration at the project level is always a simple cite of the new rules set forth in the access amendment.  Local managers claim they have no choice except to implement the access mandate, and never has there been an evaluation of long term or cumulative effect when added to other obliteration  decisions.  The experienced dramatic indicators of the serious adverse cumulative effects of these amendments are readily understood by the public (rapidly declining timber sales, rapidly increasing tree mortality and hazardous fuel accumulations, catastrophic fires with attendant costs and natural resource and private property losses, closure of mills, loss of jobs and recreation opportunities in the last 10 years).  Changes to long term land use are actually being made by these amendment decisions, but there is no disclosure and statutory  requirements for making those changes are ignored. 

The impacts of this decision are cumulative with all preceding decisions to amend these forest plans.  There is no analysis in this EIS or ROD of the cumulative effects of this amendment decision when added to all previous and foreseeable amendment decisions (FEIS, 1-8) in the EIS or Record of Decision on forest plan outputs, costs, environmental effects, opportunity costs, or net public benefits relative to those disclosed in the original forest plans  (NEPA: 40CFER1508.7, 1508.25(a), 1508.25 ( c)).   Arbitrary and capricious discussion statements unsupported by any analysis are labeled as “Cumulative Effects” throughout the document which do not meet the integrated cumulative effects analysis required by NFMA regarding the amendment significance finding.  (e.g. A Regional Amendment has already banned motorized use of any kind off roads or trails in Montana; the proposed rule set effectively mandates destruction of in excess of 500 miles of existing roads that provide potential access, eliminates existing access on 113,000 suitable acres, imposes rules for additional closures and restriction on existing roads within 1.1 million acres, precludes silvicultural treatments on 32,000 acres, prohibits expanding the road system in suitable timberlands (including inventoried roadless areas) as promised in existing forest plans unless more existing  roads are destroyed (hydrologically neutral was not defined in the EIS), and the conclusion is reached that “The management direction of these amendments, in combination with their timing (shown above to be false), does not significantly alter the long-term relationships between the levels of goods and services projected by the forest plans, thereby supporting our determination that the proposed changes do not constitute a significant amendment of the forest plans.”  (ROD, p. 58).  and  “Therefore, we do not expect a significant change in motorized access opportunities as a result of this amendment.(ROD, p.57-58)).  Nothing could be further from the truth and we contend these amendments in combination with other amendments, especially considering their timing, result in an illegal revision of the forest plan.

E.     The arguments presented in the Decision Notice relative to the decision being insignificant are without merit.  The finding that this amendment is “insignificant” is biased and arbitrary and capricious.  A  fair and unbiased analysis of effects of this amendment during environmental analysis process should have identified the effects as significant and recommended Forest Plan Revision.  The analysis is biased to support a predetermined finding of “insignificant” in order to settle a lawsuit illegally, and make the amendment appear to be “mandated by the Court”.  The FEIS admits that the new “non-discretionary” constraints are so significant that continuing to manage under current direction (the no action alternative), would likely result in the USFWS finding current direction to jeopardize the continued existence of grizzly bears, a violation of the  ESA (FEIS, p. 3-20, ROD p. 54).  How can a finding that the new information is so significant that it makes the current plans illegal be judged to be “insignificant”?   That finding alone should have triggered a decision to revise forest plans in 1999.

F.    The argument presented in the Decision Notice relative to the decision being insignificant because of the short period of time it would be in effect is misinformation deviously crafted to mislead the public. In fact if the amendment is approved as proposed, there is no possibility of not continuing these standards into the revision.   There is every intention on the part of responsible officials to continue the requirements of these cumulative significant 11^th hour amendments of  outdated forest plans into the revision process as “current direction” just as the Flathead National Forest has done (Bitterroot, Flathead, Lolo National Forests Forest Plan Revision Proposed Action (p. 2))..  By law, Current Direction is a benchmark that is used for comparing all other revision alternatives. If the requirements of the new “rule set” are in fact the “non-discretionary” minimum requirements necessary to avoid jeopardizing the continued existence of the grizzly bear as alleged (ROD, p. 4), there is no decision space to formulate any alternative to revise forest plans without these requirements as alleged (ROD, p. 57).   Leading  the public to believe that these requirements will only be in effect two or three years until the forest plans are revised, thus making the amendment “insignificant” when officials know better, is just plain dishonest and a breach of public trust.

The entire EIS is full of bias and misleading figures and statements.  (e.g. FEIS, p.3-96 claims the amendment would not affect 200,000+ of timber lands in roadless areas determined to be suitable by current forest plans.  The ROD, p. 62, admits that the Forest Service has been permanently enjoined from implementing the Roadless Area Conservation Rule.  Under current plans, legal project proposal for vegetation management supported by roads can be made and this amendment prohibits implementation of existing forest plan direction on those acres within roadless areas as well as outside.  The FEIS is inaccurately portraying potential effects of the rule set by falsely claiming they will not constrain suitable timberlands in roadless areas.   Although the decision is a programmatic decision, the FEIS claims to know in advance of site-specific analysis the physical attributes of the roads to be obliterated currently are blocked by brush, windfalls, etc. (FEIS, p. 117), and “Therefore, this change in access would not affect motorized dispersed summer activities.”   The FEIS p.3-152-153 predict possible severe adverse effects regarding increased probability of catastrophic fire, increased cost of fire suppression, reduced opportunity to conduct high hazard fuel management, yet the ROD, p. 51 concludes with irrational arbitrary and capricious conclusions,  “…any potential increases in fire fighting costs will be minimal and can be mitigated by the specific decisions on which roads to restrict and which roads to decommission with the specific project analyses.” and “…we expect that existing amounts of access will continue to be provided in these areas.” 

G.    The kind of arbitrary and capricious biased actions documented above is supported with illegal encyclopedic EIS’s that required almost 100 pages of bureaucratic spin in the Record of Decision designed to confuse and mislead the public (The Record of Decision for the entire integrated Forest Plans were only 25-30 pages).  This manipulation of current laws and regulations is contrary to Congress’ intent for Agencies to make good faith efforts to do a fair evaluation of actions required by law, and make concise disclosures of their reasons for decisions ( NEPA and NFMA). 

RELIEF REQUESTED: 

Request for Withdrawal or Stay of Action:  As we have proven in the forgoing arguments, this decision will not stand a legal challenge because it brazenly violates the laws cited as well as the public trust.  The Forest Service has already wasted way to much of the public’s resources in attempting to disguise cumulative significant actions as insignificant.  We request this action be stayed pending outcome of our lawsuit regarding these matters or withdrawing the proposed amendments and channel available resources into a good faith effort to integrate these new rule sets into the revision process as required by law. 

Sincerely, 

/s/ Fred D. Hodgeboom 

Fred D. Hodgeboom, President

Montanans For Multiple Use 

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