Appealing Forest Service & Other Federal Actions

After an agency has proposed an action, allowed the public a chance to comment on it and then responded to those comments, the agency must make a final decision. Sometimes, the hard work of citizens activists who find the legal and factual flaws of a proposal early on force the agency to change the action significantly or to abandon it. However, many times, the agency will go ahead to do what it had planned to do all along.

It can often be frustrating, after so much work goes into showing the agency how it has erred, to have the agency cavalierly say "Thank you for your participation" and then go right ahead with the destructive proposal it had originally. It is true that many times a proposal is a "done deal" and that an agency will do what it wants no matter what you say or do. Nonetheless, it is very important that you participate fully in the public comment phase of a proposal for two reasons: one, occasionally an agency will listen and change course, and two, many times you will lose any right to challenge an agency action on appeal or in court if you do not participate in the initial decision-making process.

Every federal agency has a different way that it goes through its NEPA review and public notice and comment. Some agencies like the Forest Service will seek public comment at several stages in the process before a final decision is made. Many agencies, like the Army Corps of Engineers, will give just one chance to comment on a proposal.

They are also different in how you can challenge a bad decision once it is made. The Forest Service have administrative appeal procedures whereby you can challenge a decision by asking some higher office of the agency to review it; a timber sale decision made by a forest ranger or forest supervisor is appealed to the regional forester. Some agencies like the Nuclear Regulatory Commission and the EPA have an administrative appeals procedure that is set up like a miniature court system; the appeal is heard by one or more administrative law judges who work for the agency in a quasi-independent status.

If you do not succeed in the administrative appeals process in such agencies, then afterwards you can sue the agency in federal court. It may seem nonsensical to some to think that one part of an agency will veto the decision of another part of the very same agency, and that expectation would not be cynical or misplaced. In the normal set of circumstances, an appeal to a different level of an agency often gets a cold reception. It is unusual for one agency official to publically say that a brother or sister bureaucrat messed up. But sometimes that will happen, and the agency appeal process will work as it is supposed to do. And normally, despite the usual futility of doing so, you must exhaust all appeal procedures provided by the agency itself before you go to court, or you will get kicked out of court for "failure to exhaust administrative remedies."

Some agencies, like the Corps of Engineers and the Fish and Wildlife Service, have no administrative appeals procedure at all, and to challenge their decisions, you must sue them in federal court immediately. Some agencies have appeal processes for some things, like personnel decisions, and not for others like environmental decisions.

Those agencies that have a quasi-judicial process for appeal, where a hearing will be held before an ALJ and testimony taken, have a lot more requirements for prosecuting an appeal. These appeals are enough like a court case and trial that you should normally have a lawyer handle them. For appeals in agencies like the Forest Service where it is all on paper, you can handle such an appeal without an attorney.

Whatever the administrative appeals process for an agency will be set forth in the agency's regulations in the Code of Federal Regulations. These regulations implementing and interpreting environmental laws are often amended and changed; the process of changing regulations is much less difficult than passing a bill through Congress to amend a statute. One can ask an agency for a copy of its latest regulations under a particular statute and its general regulations for certain purposes such as appealing an agency action; that agency must provide you with their regulations when you request them.

Also, once a decision on a proposal is made, the agency decision-maker will inform you in the decision document of any administrative appeals process and how it can be initiated. Normally, there is a time limit, like 30 or 45 days, in which you must file an administrative appeal or else you will lose you right to challenge the action.

Often, an appeal can be initiated with little more than a letter setting forth the decision you are appealing, explaining what issues you have with the decision, why the lower office of the agency erred, and what do you want done. A simple letter is usually not enough, but the long and complex legal pleadings and arguments of a lawsuit are more than is required. Often, the agency regulations will require certain mandatory information like the name and address of the appellant, the reasons for the appeal and some sort of factual and legal statement, but great formality is not necessary. Also, most appeals rarely cost anything to file.

In an administrative appeal, you can challenge whatever errors, legal or factual, you want. Often it will be a strategic decision, like in a lawsuit, of whether to attack on only the strong issues or fight on everything you can think of. Since an agency appeal is usually much cheaper, simpler and less complex than litigation, you can often raise more issues than you could practically do so in court.

As an example of a successful administrative appeal, below is a copy of an appeal of a Forest Service timber sale filed by WildLaw. It is longer and more detailed in its arguments than most appeals will require, but it gives a good example of how you can take the agency to task on many issues.

____________________

April 17, 1997

USDA Forest Service

Southern Region

ATTN: Appeals Deciding Officer

1720 Peachtree Road, NW, Suite 876S

Atlanta, Georgia 30367-9102

Re: Notice of Appeal of the Decision Notice and FONSI for the Rebecca Mountain Sale, Compartments 264, 269 and 273, Talladega Ranger District, Talladega National Forest, Alabama.

Dear Reviewing Officer:

The Alabama Wilderness Alliance, the Alabama Chapter of the Sierra Club and The Wilderness Society hereby file this Notice of Appeal of the "Decision Notice and FONSI for the Rebecca Mountain Sale, Compartments 264, 269 and 273, Talladega Ranger District, Talladega National Forest, Alabama" pursuant to 36 C.F.R. § 215.

Pursuant to 36 C.F.R. §215.14(b), the Appellants provide the following information:

(1) This is a Notice of Appeal filed pursuant to 36 C.F.R. 215.

(2) The name, address and telephone numbers of the Appellants are:

Alabama Wilderness Alliance

P.O. Box 223

Moulton, Alabama 35650

205/974-7678

Alabama Chapter of the Sierra Club

3809 Diamond Lane

Northport, Alabama 35476

205/333-9153

The Wilderness Society

Southeastern Office

Atlanta, Georgia

All correspondence or contacts about this appeal should be directed to Ray Vaughan at the address and number below.

(3) The Appellants object to the decision to adopt the Proposed Action (Alternative 2) from the Environmental Assessment prepared for the decision of the "Decision Notice and FONSI for the Rebecca Mountain Sale, Compartments 264, 269 and 273 Talladega District, Talladega National Forest, Alabama" made by Kent Davenport, District Ranger for the Talladega Ranger District, Talladega National Forest, dated April 7, 1997.

(4) The Appellants object to the Forest Service adding 103 acres to the adopted alternative without ever giving the public notice and an opportunity to comment on that additional acreage and without ever preparing an EA on that additional 103 acres of timber sales. The Appellants object to the decision and preparation of an EA without any cumulative impacts analysis, without an adequate range of alternatives, and without adequate site-specific data or information. This is a "cook book," "boiler plate" EA that totally fails to comply with NEPA and its implementing regulations. The Appellants also object to the failure of the District to prepare a full EIS on this and numerous other timber sales in the area, such as the nearby Union-T sale. The failure to identify and consider cumulative impacts means that the Talladega District is conducting or planning to conduct thousands of acres of timber harvests with significant impacts to the environment without ever considering the cumulative impacts from those combined actions. The Appellants object to the failure of the District to consider the roadless characteristics of Rebecca Mountain before deciding to cut in it. The Appellants also object to the cutting of timber during nesting season for migratory birds and the failure of this decision to identify and consider those impacts or to take any measures to prevent them. The Appellants also object to the conversion of hardwood or hardwood-pine or pine-hardwood areas without site-specific data or information showing that such conversion is appropriate, and the Appellants object to the use of the RCW EIS as an excuse to convert hardwoods to pine. The Appellants also object to the lack of District and sale area surveys and data on sensitive species and their populations and the violations of the viability regulations. The Appellants also object to the emphasis given to even-aged management in the Land Resource and Management Plan for the National Forests in Alabama, which is reflected in the failure of the District to consider an alternative based upon uneven-aged management.

(5) This decision is vastly different from the preferred alternative in the EA prepared on this proposed sale. In the EA, both alternatives proposed cutting 164 acres. In the final decision, the Ranger has decided to cut 267 acres, an addition of 103 acres. At no time did the Ranger ever give public notice and an opportunity to comment on this greatly increased acreage for the proposed sale. At no time did the Ranger ever prepare a new or supplemental EA in order to identify those new 103 acres of cuts and analyze the environmental impacts from them, and no such new or supplemental EA was ever sent out for public notice and an opportunity for comment.

I. Failure to Put the EA out for Public Notice and Comments

After the District issued the draft EA on this proposal, the Ranger then made the decision to cut 103 more acres than were identified in the EA. The Ranger, however, never sent anything out on these 103 acres of additional cuts to the public for notice and an opportunity to comment. At no time did the Ranger prepare a new or supplemental EA to address those 103 additional acres in cuts.

The Appeal Regulations state:

"For proposed actions requiring an environmental assessment, the Responsible Official shall promptly mail the environmental assessment along with a letter identifying the proposed action to any person who has requested it and to persons who are known to have participated in the environmental analysis process."

36 C.F.R. § 215.5. No EA including these 103 acres of additional cuts was ever sent to the Appellants.

There is no exception for EAs that have been substantially changed. The proposed action was dramatically changed, adding an additional 39 percent more acres to be harvested. Thus, the draft EA never identified or considered those cuts, the environmental impacts from them or cumulative impacts of them with the other proposed acres. For those 103 acres, there is a COMPLETE FAILURE of the Ranger to comply with NEPA.

Additionally, the CEQ Regulations state:

"NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."

40 C.F.R. § 1500.1(b)(emphasis added.)

Because the District failed to send out an EA for public comment that contained these 103 acres in it, no one had any opportunity to comment on the total lack of environmental information for those 103 acres. Therefore, the Ranger is required to prepare a new EA and send it out again for public notice and comment.

Citizens have a Constitutional Right to "petition the Government for a redress of grievances." Amendment One to the Constitution. Because the Appeal Regulations only allow someone who commented on the EA to file an appeal, if the EA and Decision are changed without another comment period, citizens are denied their Constitutional Right to petition the government via the appeals process. Thus, the Ranger illegally denied the public their Constitutional Rights.

This failure to provide public notice and an opportunity to comment was also in violation of the Due Process Clause of the Constitution and of NEPA, NFMA and their implementing regulations. The initial EA had no site-specific information in it. This decision to add another 103 acres to the sale without ANY information at all on those 103 acres shows that due process has been totally circumvented by the Ranger. If the District had complied with the requirements of public notice and comments, the Appellant and others would have had the chance to comment on the District's failure to include any site-specific information on these 103 acres and its failure to consider sufficient site-specific information, cumulative impacts and other alternatives.

Appellants Sierra Club (Alabama Chapter) and The Wilderness Society have joined this appeal to show the severity of this lack of public notice and opportunity for comment. When the AWA and other parties commented on the draft EA, they had no way of predicting that the Forest Service would slip another 103 acres of cuts into the deal without telling anybody until after they did it. Because the District changed this decision so dramatically without public notice and opportunity for comment, groups such as the Sierra Club and The Wilderness Society were denied any chance to comment on the failings of this EA.

As this very Regional Forester ruled on March 20, 1997, in Appeal 97-08-00-OQ28 of District Ranger Emanuel Hudson's December 16, 1996, "Decision Memo for the Salvage Logging of Storm Damaged Timber on the Shoal Creek District, Talladega National Forest, Alabama":

"The implementing regulations for NEPA, 40 CFR 1506.6(d), states, 'Solicit appropriate information from the public.'

"The Forest Service Handbook, (FSH) 1909.15, Section 11, Conduct Scoping, states:

"'(a) As part of the scoping process the lead agency shall: (1) Invite the participation of . . . other interested persons (including those who might not be in accord with the action on environmental grounds), . . .'

"This sale was originally prepared in accordance with the salvage provisions in Section 2001 of the Rescissions Act, Public Law 104-19, as disclosed in the District Rangers October 2, 1996, Scoping letter. Such projects 'will comply with existing environmental laws except where expressly prohibited by P.L. 704- 49, notably in the areas of administrative appeals and judicial review'(Memorandum of Agreement, August 9, 1995). This includes scoping.

"However, sales that normally would fall within a categorical exclusion (CE) required no documentation if extraordinary circumstances were not involved; sales that would ordinarily require an EA required an EA/BE, circulated for 20 days public review and comment. This salvage sale falls within the parameters of a CE.

"The record includes one scoping letter dated October 2, 1996, which states that, '[a] decision will be made after an interdisciplinary review and public comment period.' However, as you point out, the letter does not request comments nor give a date for conclusion of the 'comment period'. Regardless, two response letters were received; one was from you asking if the District was conducting scoping and stating that, if so, they wished to submit comments. No specific response to your letter was found in the record.

"A Notice of Decision was signed on November 18, 1996, and sent to you on the same date. The legal notice advertising the sale was published on December 16, 1996, but was withdrawn because the provisions of the Rescissions Act had been rescinded and all associated sales not advertised by December 13, 1996, were stopped.

"The notice of Decision was re-issued as a DM granting appeal rights on December 16, 1996, with no changes in the original decision.

"The Ranger followed public notice and scoping direction as required for salvage sales under the Rescissions Act, although the initial scoping letter contained questionable language. However, after the sale was withdrawn, the decision was reconsidered per FSH 1909.15 Section 18.3, but no documentation of the review could be found in the record as required.

"When the decision became appealable after the Rescissions Act expired, direction in 36 CFR 215 applied. The appeal regulations at 36 CFR 215.5(b) specify that; (1) notice of proposed action shall be published in a newspaper of general circulation and (2) a letter, briefly describing the proposed action, shall be mailed to persons interested in the proposed action for a 30-day notice and comment period. The content of the public notice for decisions subject to appeal is found in 36 CFR 215.5(c).

"Neither the December 16, 1996, legal notice nor the October 2, 1996, scoping letter meet this criteria.

"Finding

"I find that the District Ranger did not follow the appeal regulation procedures at 36 CFR 215.5 for a proposed action that is categorically excluded from documentation in an EA or EIS.

"....

"Based on the discussions above and the ARO'S recommendation, I conclude that the District Ranger has not followed the appeal regulation procedures at 36 CFR 215.5. Therefore, I am reversing the decision."

If a decision initially subject to a CE must be re-noticed, then certainly a decision adding 103 acres that have never had any notice and comment period nor any environmental analysis done on them must be sent out for public notice and opportunity for comment after such a change.

II. Conversion of Hardwoods

The Forest Service has not provided the research and data to support the conversion of hardwoods in these areas to longleaf. The EA lacks adequate site-specific data and information; the EA is a "boiler plate" product that does not comply with NEPA.

NFMA commands preservation and promotion of natural forest conditions. 36 C.F.R. § 219.27(g). Yet, the EA does not set out any data or research that shows that the elimination of hardwoods in favor of longleaf pine is "natural" for that particular site, and the agency has not considered such preservation and promotion of natural forest conditions where they already exist. That failure not only violates the Forest Service's NFMA duty but its NEPA duty as well.

There is no data to show that the planned regeneration of longleaf is correct on these sites. The Forest Service does not have the historic data to show that these particular sites did indeed have pure longleaf stands on them prior to their alteration in the early settlement years. The District did not cite any such data, even in response to comments. The District merely claims that they are restoring longleaf to places that now have "offsite" species. They did not even cite any data that pure longleaf sites existed in any abundance in the District historically. Just because longleaf grows best on certain sites does not mean that it did so naturally. The Mountain Longleaf Pine often occurred in stands with other species; large areas of pure stands were not the rule.

The Ranger is trying to "restore" more longleaf in compartments that already have a very large longleaf component spread over a wide range of ages. 43 percent of these compartments are already in longleaf, and 55 percent are in pinus species. That is way over the historical percentages of pine shown for the Talladega from the Wills study of the original surveys done in the early 1800s. Certainly, any additional longleaf should not come at the expense of hardwoods but should come from the hundreds of acres of off-site loblolly that was improperly planted in these compartments years ago.

Members of the appellants have surveyed these sites where this cutting is to occur, and the EA never identified that the proposal is to cut down older longleaf pines in order to "restore" longleaf pines. This is Orwellian double-speak at its worst. In Stand 13 of Compartment 269, there already is longleaf that is almost 65 yrs old, thus it is already useful for RCW foraging habitat and will be available for nesting in just a decade or two. The RCW EIS is a 30-year document. It is designed to do things to recover the RCW over the next 30 years. In this stand, there are trees that can be used to assist the RCW recovery effort now and over this 30 year period, but if they are all cut down, the saplings planted in their place will be of absolutely no use to the RCW for at least 40 years or more. The Forest Service is making an illogical and arbitrary decision here; if the recovery of the RCW is the real motive for this cut, then the agency should not cut down trees that benefit the RCW now for those that will have no benefit for the bird for decades to come. This is clearly a lame attempt to use the RCW and the RCW EIS as a justification to get the cut out without ever doing any site-specific data collection or analysis, as required by NEPA. The cook-book EA says that this will be good for the RCW, but the reality on the ground is that it will not.

Also, since the Talladega District has only one active cluster of RCW, there is no chance that this area in this sale will actually be used by RCWs in the foreseeable future That one cluster is nowhere near these compartments and the agency is making no efforts to bring RCWs into these compartments. The EA shows no efforts whatsoever to bring RCWs into these compartments, and even if there were some such efforts, these cuts will not benefit those birds for more than 40 years, long past the lifespan of the RCW EIS.

The hardwood-pine site in Stand 2 of Compartment 264 is another clear case of a failure of the Ranger to conduct any site-specific analysis. The agency proposed in the EA to clearcut and in the decision notice to shelterwood cut 62-year old longleaf in this stand to "recreate" longleaf pine. This is more nonsensical paperwork. This stand has older longleaf in it. It is arbitrary to cut that down in order to put more longleaf there. This stand has hardwoods in the bottoms and drainages with longleaf on the ridges. Also, there are a number of relic longleaf pines on these ridges that are significantly older than 62 years, and the EA does not reflect this site-specific fact.

Indeed, the EA reads like it was written by someone in an office getting everything off a computer and never actually going out into the woods; there is nothing in it that shows a familiarity with the land itself. Stand 2 is a clear indication of this problem. This stand is exactly what the agency claims it is trying to "restore" through these logging operations, but the agency is going to destroy natural longleaf stands on ridges that have recovered for decades on their own in order to set back recovery on this site by 65 years or more.

A reasonable alternative would have clearly presented itself if the EA had addressed the reality of what is in Stand 2. Instead of clearcutting this stand, the agency could leave the hardwoods in the drainages alone and thin along the ridges to free up the longleaf somewhat, but even that would be a minimal operation. If the agency's goals are really restoration of mountain longleaf stands and benefitting the RCW, such an alternative is infinitely superior to the pre-picked alternative of clearcutting this stand no matter what.

In a letter from District Ranger Kent Davenport to the attorney below of December 6, 1996, referencing the Union-T sale to the northeast of this sale, the Ranger stated, "Our timber management goal is to manage for longleaf pine on the dry ridges and upper-slopes and to manage for hardwood on the lower-slopes and and [sic] along the streams." (Copy attached.) Cutting Stand 2 will do the exact opposite of what the agency claimed in that letter. That stand already has longleaf on the ridges (with some hardwood component) and hardwoods on the lower slopes and along the stream courses. Cutting all that down to plant new longleaf seedlings exclusively will not advance these management goals and is arbitrary and capricious decision-making.

Another major problem with the proposed cuts in both Stand 2 and Stand 13 is that both are in the viewshed of the cliffs and scenic viewpoints along the top of Rebecca Mountain. Almost all of the major views from the mountain are to the west, and these cuts will be very visible and will damage the recreational potential of this area. Yet, the EA includes no identification or analysis of the impacts to scenic and recreational aspects of this area due to this planned logging.

As the agency knows, a number of groups and individuals have already presented to the Forest Service during the current LRMP revision a proposal to make the area around Rebecca Mountain a scenic or recreation area that would be managed to maintain its older forests and its scenic beauty. Part of that proposal is a proposed wilderness area covering the Sherman Cliffs portion of Rebecca and all the slopes below; that includes both stands 2 and 13.

If the agency goes ahead with this proposal, it will basically destroy any chances those proposals have before they even get considered during the Plan revision process. Cutting off the public's options for management under the new plan, especially since the new plan is so close to adoption, is not in the best interest of the public or these special lands. Rebecca Mountain has real potential to benefit the forest, the area and Alabama through non-consumptive recreational use rather than as more surplus timber, which private lands can and should provide in this state.

The EA shows that, under the proposed alternative, pine stands will account for at least 55 percent of these compartments, which is over the historic level of pine in the Talladega National Forest in total, as the District was aware from the Wills Study. The Forest Service simply has not made any supporting arguments and documentation for doing this. The District also failed to show that there are indeed Red-cockaded Woodpeckers in the vicinity that will colonize this compartment if they make these changes. It looks like the District is again using the RCW EIS as an excuse to make habitat that will never be used by the intended species.

The conversion of hardwoods to pine plantations was identified in the scoping process for this proposal. See EA at 11. But the Ranger did not develop an alternative responsive to that significant issue, as required by NEPA and the Forest Service Handbook, FSH 1909.15, § 12.3c. In this Regional Forester's decision on the Pilgrim's Rest Timber Sale in the Shoal Creek District (November 26, 1996), he required the Ranger to provide additional information to justify the conversion of mixed forest stands to longleaf. No such justification was done here.

Therefore, the Appellants also object to the final RCW EIS and its failure to prevent the use of the RCW EIS as an excuse to unnecessarily convert hardwoods to pine.

III. Lack of Cumulative Impacts Analysis

There is absolutely no cumulative impacts analysis in this EA. The EA very briefly looked at some things called "cumulative impacts," but these were actually indirect impacts. "Cumulative impacts" are not the things that happen later or some distance from this proposal, such as downstream sedimentation five years from now. Those are called "indirect impacts," which NEPA also requires the agency to consider. However, the Forest Service cannot forego its legally mandated consideration of cumulative impacts by mislabeling indirect impacts as "cumulative."

The District is still apparently under the mistaken impression that cumulative effects are effects caused by the logging after the cutting is done. This, however, is what "indirect effects" are. As a result of the mistaken impression, the EA does not have any discussion of cumulative effects (i.e., there is no discussion of the impacts from other projects).

Further, because the Ranger has added 103 acres of cuts to his decision without ever doing any kind of analysis on those 103 acres, it is clear that the EA totally fails to comply with the cumulative effects analysis requirements.

The EA is required to identify and consider cumulative effects:

"For each alternative, estimate the direct, indirect, and cumulative environmental effects, including the effectiveness of the mitigation measures, that would result from implementing each of the alternatives, including the no action alternative. Also, identify any additional mitigation measures that may be required, such as measures common to all alternatives."

1909.15 FSH § 15.

Additionally, a FONSI cannot be issued without an analysis of cumulative effects.

Both the CEQ Regulations and the Forest Service Handbook are clear that cumulative effects involve impacts from other projects, but this EA neither mentions nor identifies the impacts from a number of similar projects being proposed in this area.

The CEQ Regulations define "Cumulative impact" as:

"the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

40 C.F.R. § 1508.7 (Emphasis added.)

The CEQ Regulations also state:

"'Effects' include: . . . (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems."

40 C.F.R. § 1508.8.

Several Sections of the Forest Service Handbook also make it clear that this EA has failed to consider cumulative effects:

"Individual actions when considered alone may not have a significant impact on the quality of the human environment. Groups of actions, when added together, may have collective or cumulative impacts which are significant. Cumulative effects which occur must be considered and analyzed without regard to land ownership boundaries. Consideration must be given to the incremental effects of past, present, and reasonably foreseeable related future actions of the Forest Service, as well as those of other agencies and individuals."

1909.15 FSH § 15.1.

"Cumulative Impact. . . . the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

1909.15 FSH § 05.

The EA labels a few discussions as cumulative effects. Those discussions, however, disclose only indirect effects of the project. An example is that the EA discusses "cumulative" impacts on water quality from this proposal and this proposal alone. The EA assumes that impacts from this proposal several years from now, such as from the prescribed burns and herbicide treatment, are "cumulative" impacts. EA at 32. Those are indirect impacts. Nowhere does the EA discuss the impacts of this proposal in addition to other similar actions in the area, whether on Forest Service land or the intermingled private inholdings.

The EA has a discussions of soils, yet the EA does nothing more than identify the soil units that are within the stands proposed for cutting. The EA fails to disclose which ones are in which stand. The EA provides a range of slopes (apparently from the soil survey). The site-specific information of the slopes for the individual stands, however, are not disclosed. The EA points out that the roads and skid trails will cause erosion. The EA, however, does not disclose how much soil will be lost from the particular roads and trails and more importantly where the soil will go.

The EA contains a one paragraph visual quality analysis. This section has absolutely no site-specific analysis on what will be seen from the roads, Rebecca Mountain or from surrounding forest areas. The Ranger merely stated that the VQO will stay the same no matter what the agency does, but that is an administrative category, not an identification or consideration of the actual, site-specific, real world visual impacts of what this proposal will do to these real places. In reality, the visual impacts of these cuts will be significant and clearly visible from the cliffs along the top of Rebecca Mountain. Again, the EA lacks ANY site-specific analysis; it is a cook-book document prepared in an office.

All wildlife discussion in the EA is based upon computer models and generic statements. There is no site-specific data on wildlife in these compartments, and there is no survey data showing what numbers of sensitive species occur in these areas such that the agency can adequately determine that the proposal will not adversely impact the viability of these species. Without actual site-specific data showing the number of individuals of a species and how many will be killed or displaced by this proposal, the agency cannot logically conclude that the viability of these species is assured in this District. NFMA requires that the agency compare data from these sites to the data on the overall populations of the district, and again, this must be real data, not just unverified assumptions from a generic computer program.

Another good example is that this whole project is ostensibly to benefit the RCW, yet the Ranger never mentioned the very important site-specific facts of where are the nearest RCWs in the District and what actions are being conducted to bring them into these compartments. With only one active RCW cluster in the District, one would think that its proximity to these compartments would be a vital site-specific detail that should be identified and considered.

The lack of site-specific analysis is a clear violation of NEPA. All of the analysis in the EA could be cut and paste into another thinning and poisoning EA anywhere else in the Talladega District, or even the Shoal Creek District for that matter. Indeed, it has been. The language of this EA is virtually identical in every respect and even on every page to the Union-T EA and to other EAs prepared by the District. Site-specific analysis cannot be cut and paste because it deals with the specifics of the project. The District must address the impacts to the specific streams, plants, animals, etc. in the project area. While it is certainly appropriate to include general programmatic discussion, the EA must also include analysis of the site-specific impacts of the project such as how much the project will increase the sedimentation in specific creeks and what species occur in the stand scheduled to be cut and in what population amounts.

Even as fatally flawed as the "cumulative impacts" analysis is, there is a further problem in that the EA only identifies and considers "cumulative impacts" for water quality. Nowhere is there even an attempt to identify and consider cumulative, or even indirect impacts for that matter, for wildlife, forest types, old growth, recreation, or visual impacts.

Also, despite initial comments from the AWA, this EA still fails to identify and consider the cumulative impacts of this proposal with other Forest Service timber sale proposals in this very area. It is clear that this proposal will have impacts outside the watershed, such as wildlife impacts (particularly on migratory birds and the Red-cockaded Woodpeckers), scenic impacts, recreational impacts, and the viability of hardwoods in this District. None of these impacts were ever identified or considered in this EA, and none of these impacts were considered as to there cumulative impacts with other Forest Service timber sale proposals such as the Union-T sale, the Cedar Mountain sale and others.

The EA is legally insufficient in that there is no identification and consideration of cumulative impacts. Cumulative impacts are those of this project added to other similar projects in the area. Failure to identify and consider these cumulative impacts is fatal to the EA's legality

The Forest Service must also identify and consider other planned and recently completed cuts and sales and consider their cumulative impacts when added to this proposal. The Forest Service must also consider nearby cuts on private lands and their impacts added to this proposal. In this EA, no cuts on private lands were identified, even though, there have been cuts on private lands very close to these proposed cuts.

IV. Lack of Site-Specific Analysis

The EA contains no adequate site-specific analysis. The EA is filled with cookbook programmatic analysis that deals with logging and poisoning in general. The EA does not address the site-specific impacts of the project. In response to the AWA's appeal of the first Union-T EA, which was almost identical to this EA in every word, the Ranger withdrew the Union-T EA and prepared a new one that did finally contain some site-specific features of the sale area. But that new Union-T EA never included any site-specific analysis of the impacts. Here, this EA is worse, as it contains no site-specific information at all. The impacts analysis is as generic and "cook book"as it can be. This violates NEPA.

The Court in Sierra Club v. Martin, No. 1:96-CV-926-FMH (N.D. Ga., Sept. 17, 1996), expressly condemned the type of "canned," "boiler-plate" language used in this EA:

"Finally, the Court notes the Defendant Forest Service's repeated use of 'canned language' time and time again in the BEs and the EAs. Notwithstanding the fact that different biologists and interdisciplinary teams prepared each BE and EA, they somehow always reach the same results about sensitive species and employ the exact same language in reaching said results. The similarity of the language employed in all of the BEs and EAs strikes the Court as illustrative of the lack of facts, evidence, and analysis that the BEs and EAs are supposed to represent.

"For example, all of the BEs and EAs contain the following statement regarding PETS species in the seven project areas: 'Cumulative effects from past, present, and reasonably foreseeable future actions will not adversely affect [these sensitive or endangered] species.' Notably, while the language is identical for all seven projects, none of the seven projects discusses any prior or reasonably foreseeable future actions. There is no baseline data, much less cumulative data, in the administrative record for these conclusions. Thus, even the omissions in the BEs and EAs for the seven timber projects are identical.

"The following language also appears in all seven BEs or EAs: 'The timber project area may impact only individual members of these species but is not likely to result in a trend to federal listing of any of these species under the Endangered Species Act, or a loss of viability on the forest.' While this opinion can be expressed in a number of ways, all the BEs and EAs use the same language. The same is true of the following language which appears in all the BEs and EAs: 'Potential habitat for [these species] may be present in the project area . . ., but they were not found during the survey. Therefore, the proposed project will not impact these species.' The uncanny way the language in each project's BE and EA mirror or parrot each other further undermines the conclusions they purport to support. As discussed above, the Court has no basis to determine whether the identical language in each project is based on any facts, evidence, or analysis the Court could find reasonable. Without adequate facts, evidence, or analysis in the administrative record for the agency's conclusions, a court would have no alternative but to set aside the Defendant Forest Service's actions as arbitrary and capricious, an abuse of discretion, and contrary to law."

As in that case, the project here lacks baseline data, site-specific data or any data at all other than generic computer modeling that shows no verification from real-world data. The language in this EA is identical in almost all areas to the first Draft EA on the Union-T Sale and to EAs and BEs used by this District in previous timber sales, such as the EA for Compartment 252 and 263, the EA and BE for Compartments 249, 250 & 251, and the EA and BE for Compartments 238-242 (Blue Mountain Sale).

Forest Planning is a two step process. At the Forest Plan level, general programmatic analysis is done. When a project is proposed, site-specific analysis is required. Forest Plan analysis would contain general programmatic statements like, "clearcutting reduces visual quality and increases sediment in creeks." Site-specific analysis should have statements like, "this clearcut will impact the view from Talladega Mountain and increase the sediment load of Mump Creek by 5%." The EA, however, just discloses general effects of poisoning and logging. It does not deal with the specific impacts for this particular site.

The Ninth Circuit Court of Appeals has explained the relationship between programmatic and site-specific analysis. The Court held:

"The critical inquiry . . . for a large scale, multi-step project is not whether the project's site specific impact should be evaluated in detail, but when such detailed evaluation should occur. . . . When a programmatic EIS has already been prepared, we have held that site-specific impacts need not be fully evaluated until a 'critical decision' has been made to act on site development. This threshold is reached when, as a practical matter, the agency proposes to make an irreversible and irretrievable commitment of the availability of resources to a project at a particular site."

California v. Block, 690 F.2d 753, 761 (9th Cir. 1983).

The decision to cut and poison an area is a critical decision that requires site-specific analysis. The Forest Service Manual states:

"Planning for units of the National Forest System involves two levels of decisions. The first is the development of a Forest Plan . . . The second level of planning involves the analysis and implementation of management practices designed to achieve the goals and objectives of the Forest plan. This involves site specific analysis to meet NEPA requirements for decision making."

FSM § 1920. (Emphasis added.)

The Chief held in the Flathead Plan Decision:

"The [Forest Plan] and FEIS establish a broad programmatic system for management of the National Forest. . . . It is unrealistic to expect that a broad programmatic look at all resources for such a large area over a long period of time would completely satisfy environmental laws that require site-specific review and analysis."

Appeal Decision NFS # 1513 & 1467 at 9.

The Flathead Decision, which provided the frame work for most Forest Plan Appeal Decisions, went into great detail explaining that site-specific analysis is required at the project level.

Here are some samples of the inadequacy of the analysis in this EA:

The EA contains several pages of general programmatic discussion of the effects of logging and poisoning. The EA acknowledges that logging has effects such as increases in sedimentation and water yield. The EA also discusses the potential for impacts. The EA, however, has no site specific discussions of these issues. For example, the EA does not discuss the streams in the project area and the impact the timber sale will have on them. How far is each cut from each stream? The EA does not say. The EA does not identify the streams in the project area and discuss what their existing sedimentation level is and how the level will be impacted by the logging from each planned cut. Additionally, the EA does not disclose the existing stream flows and what impact the logging will have on them.

The EA has a discussions of soils, yet the EA does nothing more than identify the soil types that are generally within the area proposed for cutting. The EA fails to disclose which ones are in which stands. The site-specific information of the slopes for the individual stands is not disclosed. The EA points out that the roads and skid trails will cause erosion. The EA, however, does not disclose how much soil will be lost from the particular roads and trails and more importantly where the soil will go.

The EA contains a one paragraph, two-sentence visual quality analysis. This section has absolutely no site-specific analysis on what will be seen from the roads or from surrounding forest and mountain areas. It does not even identify and discuss impacts, apparently feeling that none will occur. The EA merely states that the VQOs will stay the same no matter what is done, but those are administrative categories, not an identification or consideration of the actual, site-specific, real world visual impacts of what this proposal will do to these real places.

All wildlife discussion in the EA is based upon computer models and generic statements. There is no site-specific data on wildlife in these compartments, and there is no survey data showing what numbers of sensitive species occur in these areas such that the agency can adequately determine that the proposal will not adversely impact the viability of these species. Without actual site-specific data showing the number of individuals of a species and how many will be killed or displaced by this proposal, the Forest Service cannot logically conclude that the viability of these species is assured in this District. The agency must compare data from these sites to the data on the overall populations of the district, and again, this must be real data, not just unverified assumptions from a generic computer program.

Another good example is that this whole project is ostensibly to benefit the RCW, yet the EA never mentions the very important site-specific facts of where are the nearest RCWs in the District and what actions are being conducted to bring them into these compartments. With only one active RCW cluster in the District and none in this project area, one would think that its proximity to these compartments would be a vital site-specific detail that should be identified and considered.

The lack of site-specific analysis is a clear violation of NEPA. All of the analysis in the EA could be cut and paste into another thinning and poisoning EA anywhere else in the Talladega District, or even the Shoal Creek District for that matter.

Because of this error in confusing indirect impacts with cumulative impacts, the EA is legally insufficient in that there is no identification and consideration of cumulative impacts. The EA does not have a adequate discussion of the site-specific cumulative effects of other past, present, and reasonably foreseeable related future actions. Nowhere does the EA identify and discuss the impacts of this proposal in addition to other similar timber sale actions in the area.

And there are similar and related timber sales that have occurred and that are proposed for this District. None of them and their cumulative impacts were considered in the EA. Indeed, none of them were even mentioned. Some of these related proposed sales are the Union-T Sale: Compartments 234, 235, 236, 243 & 244; Hubbard Creek Sale: Compartment 222, 223, 224, & 229; Horn Mountain Sale: Compartments 254, 255, 260, 263, & 270; Trammell Timber Sale: Compartments 288, 289, 290 & 297, Cedar Mountain Timber Sale: Compartments 225, 226, 227 & 228, and Berneys Sale: Compartments 237, 256, 257, 258 & 259.

Further, the EA fails to consider the economics of recreation. Forest Service figures show that recreation in the National Forest created over 33 times as many jobs as Forest Service logging did in 1994. The figures also show that recreation contributed 38 times more to the economy than logging did. (National Summary Timber Sale Program Annual Report Fiscal Year 1994 and Explanatory Notes for the 1997 Forest Service Budget.) The project area is in the viewshed of the most scenic mountain range in the District and an area with great recreational potential that the Forest Service has not promoted; indeed, the Forest Service seems to discourage recreation in this area. As such, that is a violation of the requirements of multiple use. The economic analysis in the EA, however, neither addresses the economic value of the recreation of the project area nor discloses what the economic impact of the logging will be on recreation. For example, the analysis fails to disclose how much recreational use will be lost and how many jobs and how much income the local economy will lose as a result of the logging.

There are countless legal requirements to consider the economic impacts of logging. Some of these include:

"(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations ...."

NEPA Section 102, 42 U.S.C. § 4332.

"For each alternative, estimate the direct, indirect, and cumulative environmental effects . . .

"Express the effects in terms of changes that would occur in the physical (land, water, air), biological (plants and animals), economic (money passing through society), and social (the way people live) components of the human environment."

1909.15 FSH § 15.

"Compare alternatives on the basis of their effects on the human (physical, biological, social, and economic) environment."

1909.15 FSH § 16.

"In meeting the requirements of the National Environmental Policy Act, the Forest Service seeks to: 2. Fully consider the impacts of Forest Service proposed actions on the physical, biological, social, and economic aspects of the human environment (40 CFR 1508.141508.14)."

FSM 1950.2.

"Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative."

40 C.F.R. § 1508.8.

The analysis pretends that cutting down the forest has no adverse effects. This is like saying if someone destroyed the Forest Service's office it would have no adverse effects on the Forest Service. Recreational users don't come to the area to see stumpland or polluted streams. There are no recreation jobs in a clearcut. Most species of wildlife that currently inhabit the areas that will be cut down don't live in a clearcut. The Forest Service has an obligation to disclose these effects. It is not legal to pretend they do not exist or to ignore them.

The Forest Service Handbook states:

"The disciplines and skills of this group must be appropriate to the scope of the action and the issues identified. The team will consist of whatever combination of Forest Service staff and other Federal Government personnel is necessary to provide the necessary analytical skills. . . . Also, the team must have the expertise to identify and to evaluate the potential direct, indirect, and cumulative social, economic, physical, and biological effects of the proposed action and its alternatives."

1909.15 FSH § 12.1 (emphasis added).

The ID Team did not contain the expertise necessary to evaluate the economic impacts of the project. Even if the economic impacts were truly to difficult to address, the Ranger still could not refuse to address the issue:

"When evaluating reasonably foreseeable adverse impacts for which essential information is incomplete or unavailable, consider a range of possible scenarios. These should include a scenario that would most likely occur and ones that would be less likely but have the most severe impacts that could reasonably be expected. When possible, include a discussion of relative probabilities of occurrence for each scenario."

1909.15 FSH § 13.03.

Thus, the Ranger has not provided a legally adequate economic analysis.

V. Failure to Consider the Roadless Characteristics of the Area

Another impact that the Ranger never identified and considered is the impact to roadless areas. By "roadless," the Appellants are not just talking about the "inventoried roadless" areas. Roadless also applies to areas of sufficient size that they have the wild characteristics of roadless areas. The AWA identified this issue to the Ranger in its comments, yet he still failed to consider it at all.

The courts have held that the Forest Service must identify and consider the impacts of a logging proposal on roadless or undeveloped areas, even if those areas are not part of the "official inventory of roadless areas." As set forth by the Ninth Circuit in Smith v. U.S. Forest Serv., 33 F.3d 1072 (9th Cir. 1994):

"Smith contends that the NEPA documents prepared by the agency in connection with the Gatorson Sale are inadequate because they fail to address the impact of the sale on a roadless area of more than 6,000 acres to the west of Thompson Ridge Road. This parcel of land is comprised or 4,246 acres of uninventoried land in the Conn Merkel Area as well as about 2,000 acres of inventoried land in the Twin Sisters Area. Under WSWA § 5(b), this court may not review the adequacy of the agency's consideration of the wilderness option for this land because a portion of the land was inventoried pursuant to RARE II and the remainder is smaller than 5,000 acres. Smith's argument, however, is that the WSWA does not excuse the agency from considering the effect of a logging project on the roadless character of inventoried land, and does not prohibit this court from reviewing the agency's failure to do so.

"The Forest Service acknowledges that the proposed sale will affect a 5,000 acre roadless area. The appellees contend, however, that the WSWA relieves them of any obligation to consider the fact that a proposed project will affect a 5,000 acre roadless area that is partially inventoried and has been released for nonwilderness use. They reason that the sole significance of the fact that a parcel of land is roadless is that the parcel is potentially eligible for wilderness designation. Because Congress has, in the WSWA, precluded judicial review of the suitability of inventoried lands for inclusion into the wilderness system, the appellees argue, the fact that a parcel of released land is roadless is, in itself, immaterial and need not be addressed in NEPA documents.

"We rejected similar arguments in National Audubon, which we decided while this case was pending in the district court. In that case, we considered a challenge to the Forest Service's decision not to prepare an EIS in connection with a proposed logging project on inventoried, roadless land in the Oregon National Forest System. The Forest Service argued that § 7(b) of the Oregon Wilderness Act (OWA), Pub. L. No. 98-328, 98 Stat. 272 (1984), which contains language identical to that in § 5(b) of the WSWA, precluded judicial review of the agency's decision not to consider the effect of the proposed sale on roadless parcels of inventoried land. We held that '[t]he prohibition on judicial review found in § 7(b) of the OWA applies not to roadless or roaded determinations, but to the Act's wilderness or non-wilderness designations.' National Audubon, 4 F.3d at 837 (emphasis in original).

"The distinction we drew in National Audubon between wilderness designations and roadless determinations would be meaningless if, as the appellees suggest, an area's roadless character has no environmental significance. As we stated in that case, 'the decision to harvest timber on a previously undeveloped tract of land is "an irreversible and irretrievable decision" which could have "serious environmental consequences."' Id. at 842 (quoting the lower court opinion). That the land has been released by Congress for nonwilderness use does not excuse the agency from complying with its NEPA obligations when implementing a land-use program.

"There is, moreover, an additional significance, beyond the effect on 'roadlessness,' to the agency's decision to approve a logging sale on a 5,000 acre roadless area. Judicial review of the wilderness option is not foreclosed forever by the WSWA. Under that Act, the wilderness option for inventoried lands may be revisited in second-generation Forest Plans. WSWA § 5(b)(2), 98 Stat. at 303; National Audubon, 4 F.3d at 837. Accordingly, when the agency is considering the development of a 5,000 acre roadless area, selection of a no-action alternative, which the agency is required to consider, Idaho Conservation, 956 F.2d at 1515 (citing City of Tenakee Springs v. Block, 778 F.2d 1402, 1406 (9th Cir. 1985)), would preserve the possibility that the area might some day be designated as wilderness. Clearly, under the WSWA, the agency is not required to preserve any released roadless area for wilderness consideration in second-generation Forest Plans. WSWA § 5(b)(3), 98 Stat. at 303. But the possibility of future wilderness classification triggers, at the very least, an obligation on the part of the agency to disclose the fact that development will affect a 5,000 acre roadless area.

"The Forest Service argues that even if the fact that an area is roadless is environmentally significant, the documents it prepared in this case -- the Colville Forest Plan EIS and the Gatorson EA -- are adequate under NEPA. 'Roadless character,' the Forest Service asserts, is merely a synonym for specific environmental resources, including soil quality, water quality, vegetation, wildlife and fishery resources, recreational value, and scenic quality. All of these resources were addressed explicitly in the Gatorson EA, and the Forest Supervisor's finding that the Gatorson Sale will have no significant impact on these resources has not, itself, been challenged by Smith. In addition, the Gatorson EA specifically discussed the effect of the sale on 'unroaded solitude.'

"Nevertheless, we must conclude that the agency's NEPA documents are inadequate. The Gatorson EA addresses only the impact of the sale on resources in the Gatorson Planning Area, the area containing the proposed logging units. This area extends only as far east as the eastern-most proposed logging sites, and, significantly, does not include the remaining thousands of acres of roadless land in the Conn Merkel Area to the west of Thompson Ridge Road that will no longer be part of a 5,000 acre roadless expanse. The effect of the Gatorson Sale on this land was not addressed in the EA.

"The agency has never, in its NEPA documents, taken into account the fact that the sale will affect a 5,000 acre roadless area. In both the Colville Forest EIS and the Gatorson EA, the agency recognized that a portion of the Twin Sisters RARE II Area contains no roads, but dismissed the fact as irrelevant for wilderness consideration purposes because that portion would not stand alone as a 5,000 acre roadless area. Similarly, in both documents, the agency concluded that the Conn Merkel Area cannot stand alone as a 5,000 acre roadless area because of Thompson Ridge Road. But nowhere has the agency disclosed that the inventoried and uninventoried lands together comprise one 5,000 acre roadless area. As discussed above, the decision to harvest timber in a 5,000 acre roadless area is environmentally significant. We held in National Audubon that the agency must, under NEPA, consider the effect of a logging project on such a resource. We now therefore must hold that the agency's obligation to take a 'hard look' at the environmental consequences of the proposed sale and consider a no-action alternative require it, at the very least, to acknowledge the existence of the 5,000 acre roadless area. See Greenpeace Action, 14 F.3d at 1332; 40 C.F.R. §§ 1502.14, 1502.16 (1993).

"The parties have expended considerable effort arguing about whether the agency must prepare a site-specific EIS. In National Audubon, we remanded for consideration of whether the agency's decision not to prepare an EIS in connection with a timber sale on inventoried land was arbitrary and capricious. National Audubon, 4 F.3d at 837-41. Implicit in that remand was our conclusion that an EIS may not be per se required under such circumstances. We leave to the agency the decision of how best to comply with NEPA and its implementing regulations, and hold only that the NEPA documents before us are insufficient."

As set forth by National Audubon Soc. v. United States Forest Serv., 21 ELR 20828 (D. Or. 1990), aff'd in part (on this issue), rev'd in part & remanded (on other grounds), 46 F. 3d 1437 (9th Cir. 1994), the court stated:

"Plaintiffs claim that the Forest Service violated NEPA by entering into the four challenged timber sales because portions of these sales involve unroaded and undeveloped land. Plaintiffs contend that because these sales involve roadless and undeveloped areas, the Forest Service must complete an EIS before it may offer these lands for sale. It is undisputed that the Forest Service has not conducted an EIS analyzing the environmental consequences of these timber sales in terms of their roadless and undeveloped features.

"Defendants argue that no EIS is required for these sales because plaintiffs' challenge is barred by the Oregon Wilderness Act. Defendants claim that 'roadless' is a legal term which is synonymous with those areas that passed through the RARE II process. Defendants claim that Congress passed on the adequacy of the Forest Service's inventory of roadless areas in Oregon through its enactment of the Oregon Wilderness Act thereby settling 'once and for all time, what areas the Forest Service shall evaluate as roadless areas' (emphasis in original), and barring 'all judicial review that could reach a contrary result.' In essence, the Forest Service's argument is that the challenged sale areas are not roadless because the Forest Service has never recognized them as roadless.

"I disagree with defendants' interpretation of the impact of the Oregon Wilderness Act. The designation of an area as 'roadless' for the purpose of determining the broad category of future development possibilities is not synonymous with an assessment of whether an area is in fact roadless or an analysis of whether significant environmental consequences will result from the development of the area. The Ninth Circuit rejected a similar argument in Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985). In Tenakee Springs, the court held that the Alaska Lands Conservation Act which, like the Oregon Wilderness Act, designates wilderness and nonwilderness areas, did not immunize the Tongass National Forest Plan from judicial review relative to management decisions in RARE II roadless areas. Rather, the court held that the Alaska Act

"'immunizes from judicial review only the wilderness/nonwilderness allocations made by RARE II and not the detailed Tongass Plan allocations of nonwilderness areas as suitable for primitive, environmentally compatible, or intensive development.'

"778 F.2d at 1405. Thus, contrary to defendants' contention, I find that it is the on-the-ground situation which determines whether an area is roadless and undeveloped for purposes of assessing compliance with NEPA.

"On the issue of whether the roadless and undeveloped quality of the sale areas requires the preparation of an EIS, NEPA mandates the preparation of an EIS for all 'major federal action significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(C). In determining whether the implementation of a proposal 'significantly' affects the environment, the test is whether 'the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor.' Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 597 (9th Cir. 1981) (emphasis in original). A showing that significant effects on the human environment will in fact occur is not necessary. Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Rather, '[i]f substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared.' Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir. 1982) (emphasis in original). Accord San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). As set forth in Forest Service regulations, one consideration in determining whether a proposed action will significantly affect the quality of the human environment is '[t]he degree to which the effects on the quality of human environment are likely to be highly controversial.' 40 C.F.R. § 1508.27(b)(4). An agency's determination that a particular project does not require the preparation of an EIS will be upheld unless unreasonable. Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d at 1177.

"Having reviewed the record, I find that implementation of the preferred alternative for each sale may significantly impact the environment by irreversibly damaging the recreational value and resources associated with these roadless and undeveloped lands. As plaintiffs' expert Dr. Noss testified in his affidavit, 'logging and associated road-building is the primary threat to biodiversity in the forest ecosystems of the Pacific Northwest.' Roadless areas provide a sanctuary to animal and plant species most sensitive to human disturbances. These animal and plant species may not be able to adapt to new habitat created by fragmentation. Further, timber sale activities may significantly impact recreational opportunities in these unroaded areas. The Forest Service itself has recognized the unique resources and values attributable to roadless areas. Thus, in the EIS for the Rogue River National Forest Land and Resources Management Plan, the Forest Service stated that 'unroaded areas can be considered a special resource unto themselves.' It is undisputed that once a roadless area is developed through logging and road construction, it is irrevocably and irreversibly changed.

"I reject defendants' argument that the environmental consequences highlighted by plaintiffs are adequately addressed by the Oregon Wilderness Act's failure to include these areas in its 'roadless' designation. The Act's designation of 'roadless' and 'nonroadless' areas merely sets future development possibilities for these lands and does not address the site specific environmental consequences as required by NEPA. Thus, even though designated 'roadless,' the Forest Service must still consider whether these lands are in fact roadless and the consequences of this condition in determining which of various development alternatives to pursue. In making this determination, the Forest Service may find that the factors which removed the contract sites from roadless status in RARE II still exist to justify a finding that these roadless areas are nonroadless for the purposes of NEPA. However, a nonroadless determination under the Wilderness Act or RARE II does not satisfy the continuing mandate of NEPA to assess the environmental aspects of a given sale.

"Likewise, I reject defendant's argument that inclusion of a 'no-action' alternative within the environmental assessments ('EAs') for these sale areas satisfies NEPA. The Forest Service's conclusion in the EAs that these four sales would not have a significant impact on the quality of the human environment is based on the assumption that the sales do not involve roadless and undeveloped. As stated above, this assumption is false.

"Rather, I find that, based on the significant environmental consequences which may result from the development of these roadless areas, the Forest Service's determination that no EIS was required for the four challenged timber sales was unreasonable. The decision to develop a previously undeveloped area is an irreversible and irretrievable decision, the impacts of which must be analyzed in an EIS. California v. Block, 690 F.2d at 763. The irreversible effects of developing these roadless lands also supports the issuance of a permanent injunction pending the Forest Service's completion of an EIS for the roadless portions of the timber sales areas. As the Supreme Court held in Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987), 'environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.' Id. at 1404. For this reason, '[i]f environmental harm is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.' Id. Accord Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir. 1987) (violation of environmental statute causes irreparable injury). By contrast, the only possible harm to the Forest Service resulting from the issuance of an injunction is economic. Financial loss does not constitute irreparable harm. Sampson v. Murray, 415 U.S. 61 (1974)."

As stated by another court, "in many circumstances, the USFS may be required to prepare an EIS or EA before constructing a road in an area that an on-site evaluation demonstrates to be roadless and undeveloped." Hells Canyon Preservation Council v. U.S. Forest Serv., 883 F.Supp. 534 (D. Or. 1995). The operative definition for "roadless," as used by the courts, is not the formal classification of an area as an "inventoried roadless" area; it is whether the area is roadless in fact, as determined by an on-site evaluation. The Ranger made no such on-site evaluation in this proposal as to whether Rebecca Mountain or a portion of it is a roadless area in fact and then what the impacts from this proposal will be to those roadless and undeveloped qualities. Indeed, under the Eastern Wilderness Act, which uses much looser criteria for determining what qualifies as potential wilderness, and under the Forest Service Handbook guidelines for inventorying roadless areas, Rebecca Mountain, or at least the area east of 616/615 would qualify as there are less than ½ miles of passable (by car) of road per 1,000 acres.

The current criteria in the Region for identifying roadless areas are legally flawed and need to be changed to a more-flexible approach that recognizes the realities, the history, the need for wilderness and the resiliency of the forests in the Eastern United States. First, the roadless criteria used in the "official" inventory (½ miles of improved road per 1,000 acres, etcetera) are not realistic in Alabama or anywhere else in the South. They ignore the fact that old roads can quickly become overgrown or otherwise obliterated naturally in the southern climate. Also, there are instances where the Forest Service has intentionally made roads longer than necessary to access the site intended, apparently just so this arbitrary ½ mile per 1,000 acres standard would be violated and remove an area (such as Thompson Creek in the Bankhead) from further consideration as a roadless area. The agency has the legal discretion and ability to change these criteria to reflect the circumstances and needs of Alabama's forests.

Basically, the ½ miles of improved road per 1,000 acres criteria and the definition of "improved" road are too arbitrary if they are not used with some flexibility. Further, the Forest Service repeatedly excluded areas or portions of areas (such as the lands SE of Dugger Mountain), because they had a road that would make the area violate the criteria. Why not close those roads? That is what happened when the Sipsey was expanded.

Where does the definition the agency applied for "improved" road come from? The term as used in FSH 1909.12, Chap. 7, § 7.11b is not defined. Does it allow some discretion and flexibility? Certainly it must in order to be legally defensible.

Also, the road along the top of Rebecca Mountain (600) should not be considered "improved." That criteria really needs some flexibility here. We defy any vehicle that does not have high ground clearance to make it over that road. Normal cars intended for street travel cannot negotiate that road. If FS600 is an "improved" road, that criteria has no relation to reality. Dropping 600 from consideration would mean that Rebecca Mountain is clearly a roadless area that should be included in the roadless inventory. Even considering FS600 as an "improved road," a large section of the Rebecca Mountain area, including where some of these cuts are proposed, would qualify as a "roadless area;" if the 620-acre Reed Brake area qualifies as roadless, then an area of several thousand acres (north of the power line and excluding much of FS600) on Rebecca Mountain qualifies. And as admitted to by the Forest Service on numerous occasions, timber sales that would impact a roadless area must be preceded by an EIS. An EA alone is not sufficient, as impacting a roadless area is, by definition, significant.

If roads being closed were allowed in your criteria, then numerous areas that you rejected would be eligible, such as Rebecca Mountain. Closing FS600 and turning it into a trail would be easy and cheap and would make a large roadless area that has all the other, more-important criteria for wilderness and roadless value.

Why is the amount of young trees in an area mentioned in the selection of "inventoried roadless" areas as if it is a reason not to include it as roadless? Natural wilderness had areas with young trees in them from time to time, and that should not be a criteria for excluding an area. The criteria in FSH 1909.12, Chap. 7, § 7.11b provide that an area still meets the criteria as long as no more than 20 percent has been harvested in the past ten years. Rebecca Mountain meets that. Further, much of these young trees are longleaf pine that was re-established to areas where offsite loblolly once existed; this indicates that the natural forest conditions have been re-established in those portions of this area (albeit the natural forests are still young), and that would be a positive for protecting these areas. To use the current restoration of natural forests due to the mismanagement of the Forest Service decades ago as a reason to exclude an area from roadless classification is clearly arbitrary and unreasonable.

We wish to point out that Rebecca Mountain meets the real and important criteria for roadless designation (natural conditions, opportunity for solitude, protection of biodiversity, recreational opportunities) if the less-important, arbitrary and pro forma criteria (such as "½ mile improved road per 1,000 acres" and the definition of an "improved" road) were given even just a little flexibility in their application.

Failure to adopt flexibility in putting together the final determination for the roadless inventory in the LRMP revision and in considering what impacts this proposal may have on those roadless values is arbitrary and capricious. Instead of biasing the criteria to exclude as many areas as possible, the agency needs to be as fair as possible in determining what areas have future wilderness potential so that valuable public resources will not be lost due to inattention. Given time and the opportunity, due to having so much natural forest on and near it already, Rebecca Mountain can regain its full natural and wild conditions and then provide the citizens of Alabama and the United States with wonderful and unique treasures. The Forest Service makes great efforts and takes great lengths of time to develop and manage vast areas for timber production. We ask that you make just as much of an effort to develop and manage at least a few areas for their wilderness values. The total failure even identify and consider this issue and these environmental impacts is a clear violation of NEPA.

The Forest Service is aware that both the Alabama Wilderness Alliance and the Alabama Environmental Council have proposed the areas covered by this proposal to be part of a scenic or recreation area designated under the Revised LRMP. Also, the AWA has proposed a wilderness area for Rebecca Mountain that includes Stands 2 and 13. Also, the AWA is in disagreement with the Forest Service over whether Rebecca Mountain qualifies as an "inventoried roadless" area under the Forest Service's criteria. As that controversy may not be resolved until the Revised LRMP is finalized, that is another good reason to postpone any further work on this proposal to cut these areas until after the LRMP Revision process is completed.

The Ranger did not consider the relative value of the resources of the project area. The Multiple Use-Sustained Yield Act (MUSY) requires the Forest Service to:

"make the most judicious use of the land for some or all of these resources ... with consideration being given to the relative values of the various resources ...."

16 U.S.C. § 531(a).

Forest Service regulations require the Ranger to consider "the relative value of all renewable resources ...." 36 C.F.R. § 219.1 (b)(2).

Contrary to these requirements, the Ranger did not consider the relative value of the area's resources, especially its recreational and scenic resources. For example, the EA does not consider nearby private land in its consideration of the need for early successional lands. If private land is providing early successional land, this habitat type has very little relative value on National Forest land.

Another example is the analysis' failure to address the relative value of this land as providing habitat for species that require large blocks of forest. Large unfragmented blocks of forests are in short supply. Early successional habitat can easily be provided on private lands and small tracts of National Forest land. The sale area has a high relative value for providing large unfragmented forest due to its containing a de facto roadless area, a high mountain chain with nearly intact forests on its slopes and because it contains large tracts of forest. The analysis does contain any discussion of the relative values of this area.

As this EA does not give any consideration whatsoever to the roadless nature of these areas and the recreational potential of Rebecca Mountain, it is fatally flawed and fails to conform to NEPA's requirements. Further, once the Ranger does actually identify and consider cumulative impacts of this proposal with projects like Union-T, the agency may well find that the cumulative impacts are great enough to require the preparation of a full EIS to address the impacts in this Ranger District, which is something the FEIS done with the original LRMP never did. The LRMP FEIS never gave any consideration to individual districts and the unique environmental impacts that would occur in each; it treated all six districts as if they were the same forest with the same resources and conditions, which is simply not correct. The Forest Service has never considered the cumulative impacts from timber harvests in the Talladega District itself. Doing so requires a Talladega District specific EIS or sufficient consideration in the new EIS being prepared for the Revised LRMP. Either way, this proposal should be postponed until after either of those two NEPA-required events happen.

VI. Need for an Environmental Impact Statement

Clearly, the District is engaged in an large-scale program of timber harvesting, yet is has never considered the cumulative impacts from these proposals. Failure to do so is a clear violation of NEPA, and if the cumulative impacts are significant, then the preparation of a full EIS is required. Never has the Forest Service ever prepared an EIS or made an environmental impacts analysis for the Talladega District. The FEIS for the old LRMP does not address the impacts of sales in the Talladega in anything other than the most vague and general of programmatic discussions. It certainly did not ever address impacts to the roadless characteristics of Rebecca Mountain. Even with a programmatic EIS, if individual actions will still amount to a significant impact on the environment, another EIS must be prepared. Separate EAs for those actions, especially EAs that never identify and consider cumulative impacts, will not suffice legally.

The Union-T Draft EA used the exact same "canned" language as the EAs in this proposal. Therefore, that shows that the District is treating the two sales, with a combined timber cut acreage of 935 acres, as similar actions. Other EAs in the District have also given the same inadequate consideration to the impacts and alternatives. Thus, with such similar and related timber sales covering thousands of acres, the preparation of a full EIS is mandated.

In National Audubon Soc. v. Hoffman, 917 F. Supp. 280 (D. Vt. 1995), the District Court there found that a timber sale covering 300 acres was obviously significant under NEPA and required an EIS. As that Court held:

"On its face, the proposed action, which includes clearcutting of over 300 acres and its admitted attendant effects such as intrusion into bear and neotropical bird habitats, is "significant" under any reasonable construction of the term. See 40 C.F.R. §§ 1508.27(b)(1), (4) and (9); see also Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1250 (10th Cir. 1973) ('The clearcutting of the timber planned obviously will have a significant effect on the environment for many years.')

"Nevertheless, the Forest Service relies on the fact that the administrative record demonstrates its consideration of the issues about which the plaintiffs complain. However, NEPA requires an agency to not only acknowledge these issues, but also to provide a statement of reasons which demonstrates that it took a 'hard look' at the relevant evidence. See Marsh, 490 U.S. at 374; Steamboaters v. F.E.R.C., 759 F.2d 1382, 1393 (9th Cir. 1985); Town of Orangetown, 718 F.2d at 35. The administrative record does not support a finding that the Forest Service took the requisite 'hard look' at all the plaintiffs' reasonable concerns."

The Court went on to hold:

"Furthermore, the EA and DN leave confusion as to the Forest Service's future logging and road building plans. See Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1478-79 (W.D. Wash. 1992) ('An agency must candidly disclose in its EIS the risks posed by its proposed action.') (citation and quotations omitted), aff'd, 998 F.2d 699 (9th Cir. 1993). By its very nature, the Management Area designated as 3.1 requires continuous timber harvesting. See, e.g., Affidavit of Christopher E. Casey at para. 3. The EA describes the FR266 extension as a 'temporary intermittent use' road. See EA at 1, 5. Yet the Forest Service simultaneously maintains that the extension to FR266 will not be maintained after initial logging is completed in an anticipated 3-5 years.

"Overall, the Court finds Alternative E necessarily contemplates a long-term commitment to harvesting trees to keep certain areas thinned or cleared. Because the current plan establishes a precedent which will require an unclear amount of future tree removal activity, preparation of an EIS is appropriate. See 40 C.F.R. § 1508.28(b)(6).

"In sum, inconsistencies in many of the defendants' assertions, and not disagreements with their conclusions, compel this Court to conclude the decision to issue a FONSI was arbitrary and capricious. Furthermore, a review of the administrative record discloses a failure to take the required 'hard look' at all the environmental consequences of Alternative E. Though lengthy, the EA does not adequately address all arguably significant effects of the Lamb Brook proposals. The cumulative effects on Lamb Brook's black bears and neotropical birds of the road extension, the proposed clearcutting, timber sales of uncertain duration, and the admitted but unquantified additional ATV use, require the Forest Service to prepare an EIS analyzing such effects. See Thomas v. Peterson, 753 F.2d 754, 757-59 (9th Cir. 1985) (action to enjoin construction of timber road in National Forest roadless area); see also Natural Resources Defense Council v. Callaway, 524 F.2d 79, 94 (2d Cir 1975) ('By failing to present a complete analysis and comparison of the possible dumping sites, the Final EIS fails to perform its vital task of exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of government.') Accordingly, this Court finds the Forest Service has violated NEPA by failing to issue an EIS for the Lamb Brook project."

It is difficult to see how 935 acres of cuts, especially when combined with other similar and related sales in the area, cannot be considered significant, particularly when the Forest Service has not bothered to obtain site-specific information on the area and on the impacts of this proposal to wildlife, recreation, scenic values, water quality and a host of other things.

The lack of adequate site-specific information and of impacts analysis also cause problems for the Forest Service in their issuance of a FONSI. As stated by the Fifth Circuit Court of Appeals:

"Simmans v. Grant, 370 F.Supp. 5, 17 (S.D. Tex.1974); cf. Vieux Carre Property Owners, 719 F.2d at 1281 ('The proper procedural vehicle for . . . a determination [not to prepare an EIS] is an environmental assessment which provides a reviewable record of the agency's basis for its conclusions.').

"While the administrative record supporting the Negative Declaration need not possess the same detail or clarity as an EIS and may, in part, be informal, mere perfunctory or conclusory language will not be deemed to constitute an adequate record and cannot serve to support the agency's decision not to prepare an EIS. Maryland-National Capital Park & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1039 & 1040 (D.C. Cir.1973)."

Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F. 2d 423 (5th Cir. 1985).

The Forest Plan FEIS is legally inadequate to carry out a timber sale program. The Forest Service is required to assess the cumulative impact of timber sales. This assessment cannot be limited to just the sale area; forest-wide impacts must be addressed. In order to issue a FONSI, the Ranger must determine that the timber sales "will not have a significant impact on the human environment." 40 C.F.R. § 1508.12. The sale's cumulative impacts must be considered in this determination. 40 C.F.R. § 1508.8. The CEQ regulations define "cumulative" impact as:

"The impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

40 C.F.R. § 1508.7

On January 25, 1985, the Office of General Council wrote the Chief:

"A third area of concern is the depth of analysis of the impacts of the timber program in the forest plan EIS's. In many cases, we believe the forest plan EIS's may contain substantially less information on timber harvesting and its environmental consequences than did previous timber management plans on which EIS's were generated. This lack of specificity is of substantial concern when individual timber sales may subsequently be challenged. Such sales will hopefully be supported by a quality EA. For consideration of the cumulative impacts of timber sales, it will be necessary to tier such EAs to a forest plan EIS's or another umbrella EIS. Our concern is that there is insufficient information in the forest plan EIS's to allow EA's on individual timber sales to tier pursuant to 40 C.F.R. § 1508.20. Assuming that the information in forest plan EIS's does not sufficiently detail the limits of disturbance in watersheds, sedimentation levels, wildlife impacts, and other cumulative effects on other resources, the agency will be unable to show adequate consideration of environmental impacts required by NEPA."

James Perry at 3.

The Forest Plan FEIS is flawed in its assessment of cumulative effects in several regards. The most serious is the fact that the FEIS does not contain a section on cumulative effects.

The FEIS's discussions of impacts are cursory at best. For example, the FEIS does not even discuss the impacts of the alternatives on most of the MIS species. The FEIS does not disclose the cumulative Forest-wide impacts to the pileated woodpecker, a MIS. Therefore, the FEIS is legally inadequate to carry out a timber sale program. Reports in the 5th Year Review confirm forest-wide failures to conduct basic monitoring of many MIS species.

The Council on Environmental Quality (CEQ) recently pointed out that Federal Agencies are, in general, inadequately addressing biodiversity. The CEQ stated:

"Finally, and perhaps most importantly, the majority of EISs and environmental assessments deal only with project-specific considerations. If effects on biodiversity are to adequately assessed, it must be done on an ecosystem or regional scale, taking into account cumulative effects. . . . Yet, in the absence of protection at a larger scale, ecosystems patterns and processes so important to biodiversity will not be sustained over the long term."

"Incorporating Biodiversity Considerations Into Environmental Impact Analysis Under the National Environmental Policy Act" at 18.

Clearly, to comply with NEPA, the FEIS needs to address and discuss the issue of biodiversity and forest fragmentation. The FEIS does not contain any analysis or discussion of biodiversity or forest fragmentation. Thus, the FEIS is legally inadequate to rely on for disclosing the effects on biodiversity.

Two recent studies on components of biodiversity point out the severe impacts logging has on herbaceous understory communities and salamanders. Yet the FEIS does not discuss either of these issues. Thus, the FEIS is legally inadequate to carry out a timber sale program.

Here, the merely perfunctory and conclusory language of the EA will not suffice to defend the FONSI. The EA states time and time again that there will be no major impacts, but there is never any scientific or data support for those conclusions. Canned answers supported by boiler-plate analysis is not legally sufficient.

VII. Lack of Reasonable Alternatives

The alternatives in the EA did not consider a broad enough range. Each alternative of the two (excluding the no action alternative) provides for the exact same large amounts of timber harvesting. There is no alternative that considers a lower volume of harvest than the proposed alternative; no alternative that uses any form of uneven-aged management, and no alternative that considers leaving hardwood areas alone. Both alternatives reach essentially the same result; that is not NEPA compliance.

In cases where a timber sale EA's range of alternatives have been upheld, the Forest Service had identified four or five alternatives which included more consideration of old growth. Or for full-blown EISes, as many as 17 alternatives have been used. See Resources Limited v. Robertson, 8 F. 3d 1394, 24 ELR 20026 (9th Cir. 1993); there the court stated:

"The Forest Service is charged to 'rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.' 40 C.F.R. § 1502.14(a). See also 36 C.F.R. § 219.12(f)(1) ('Alternatives shall be distributed between the minimum resource potential and the maximum resource potential to reflect to the extent practicable the full range of major commodity and environmental resource uses and values that could be produced from the forest. Alternatives shall reflect a range of resource outputs and expenditure levels.').

"The 'existence of a viable but unexamined alternative renders an environmental impact statement inadequate.' Mumma, 956 F. 2d at 1519 (citation omitted). An agency's consideration of alternatives is adequate 'if it considers an appropriate range of alternatives, even if it does not consider every available alternative.' Headwaters, Inc. v. Bureau of Land Management, 914 F. 2d 1174, 1180-81 (9th Cir. 1990).

"Resources Limited contends that the Forest Service did not consider an adequate range of timber harvest alternatives, because the Forest Service failed to consider timber harvest levels that were substantially lower than existing harvest levels. Resources Limited suggests that, in computer modeling the different alternatives, the Forest Service skewed the model's calculations by imposing a parameter that the harvest level remain at or near current levels.

"'The Forest Service [i]s entitled to identify some parameters and criteria -- related to Plan standards -- for generating alternatives to which it would devote serious consideration. Without such criteria, an agency could generate countless alternatives.' Mumma, 956 F. 2d at 1522. Here the Forest Service did not, as in California v. Block, 690 F. 2d 753, 767 (9th Cir. 1982), 'consider only those alternatives with [the same] end result.' Of the 17 alternatives considered, five were based on timber harvest levels more than 18 percent lower than existing levels. One alternative was based on a projected average ASQ of 51 mmbf/year.'"

The "range" of alternatives in this proposal flies in the face of these authorities. As in California v. Block, the Forest Service considered only those alternatives with basically the same end result, except that here, the two alternatives are identical in terms of timber cut. Unlike in Resources Limited, the Forest Service did not consider a broad range of alternatives with differing results; arguably, the Forest Service did not consider a "range" of alternatives at all. As stated in Idaho Conservation League v. Mumma, 956 F. 2d 1508 (9th Cir. 1992), the existence of a viable but unexamined alternative renders an environmental impact analysis inadequate. The Ninth Circuit stated:

"Direct implementation of the LRMP occurs at a second stage, when individual site-specific projects are proposed and assessed. The Forest Supervisor must ensure that all projects are consistent with the plan. 16 U.S.C. § 1604(I); 36 C.F.R. § 219.11(e). Further NEPA analysis is conducted to evaluate the effects of the specific project and contemplate a range of alternative actions, including a 'no action' alternative. 40 C.F.R. §§ 1502.14(d), 1508.9(b). See generally Citizens for Environmental Quality v. United States, 731 F. Supp. 970, 977 (D.C. Colo. 1989).

"The alternative section is 'the heart of the environmental impact statement,' 40 C.F.R. § 1502.14; hence, '[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.' Citizens for a Better Henderson v. Hodel, 768 F. 2d 1051, 1057 (9th Cir. 1985). While the practicalities of the requirement are difficult to define, NEPA provides that all agencies of the Federal Government shall, to the fullest extent possible, '[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' 42 U.S.C. § 4332(2)(E). Whether a particular EIS has met this demand can best be determined by its purpose, which is to 'ensure[] that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide[] the public with information on the environmental impact of a proposed action and encourage[] public participation in the development of that information.' Kunzman, 817 F. 2d at 492; see also Citizens for a Better Henderson, 768 F. 2d at 1056.

"As a result an agency must look at every reasonable alternative, with the range dictated by the 'nature and scope of the proposed action,' Block, 690 F.2d at 761, and 'sufficient to permit a reasoned choice.' Methow Valley Citizens Council v. Regional Forester, 833 F. 2d 810, 815 (9th Cir. 1987), rev'd on other grounds sub nom. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)."

A particularly instructive case is Friends of the Bitterroot, Inc. v. U.S. Forest Serv., No. CV-90-76-BU, 25 E.L.R. 21186 (D. Mt. 1994). There, even though the Forest Service identified and considered seven alternatives, the Court held that the Forest Service failed to comply with NEPA because the agency failed to consider just one additional reasonable alternative, namely an alternative to protect roadless areas. The agency claimed that such an alternative would not further the purposes of the proposed action, but the Court disagreed. The Court held:

"In Count II of their complaint, as amended, plaintiffs contend the Trail Creek EIS fails to adequately analyze all reasonable alternatives, including a less environmentally damaging alternative that would exclude logging and road building activity in existing roadless areas within the Beaverhead National Forest. Plaintiffs maintain the EIS should have addressed an alternative exempting the Beaver Lakes roadless area from the timber sale in order to preserve that area's value as secure wildlife habitat. In response, defendants assert the alternative would not have met the management goals, standards, and objectives of the Beaverhead National Forest Plan. Defendants further maintain the development of such an alternative would not have added any new information to the EIS.

"NEPA requires an EIS provide information in detail and consider every reasonable alternative to a proposed action. Citizens for a Better Henderson, supra, 768 F.2d at 1057; see 42 U.S.C. § 4332(2)(c)(iii). An agency's range of alternatives is reviewed under a 'rule of reason' standard that 'requires an agency to set forth only those alternatives necessary to permit a reasoned choice.' California v. Block, 690 F.2d 753, 767 (9th Cir. 1982) ('The touchstone for [a court's] inquiry is whether an EIS' selection and discussion of alternatives fosters informed decisionmaking and informed public participation.'). Additionally, NEPA does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered or which have substantially similar consequences. Northern Plains Resource Council v. Lujan, 874 F.2d 661, 666 (9th Cir. 1989). As a result, an agency's consideration of alternatives is sufficient if it examines an appropriate range of alternatives, even if it does not consider every available alternative. Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1181 (9th Cir. 1990).

"In the case sub judice, the Forest Service examined seven alternate courses of action with respect to the Trail Creek project: six 'action' alternatives (Alternatives B, C, D, E, F, and G) and one 'no action' alternative (Alternative A). The 'action' alternatives proposed timber harvesting in varying locations, amounts, and methods in the Trail Creek area. Moreover, the action alternatives all called for varying degrees of timber harvesting in the Beaver Lakes roadless area.

"Defendants maintain the plaintiffs' preferred alternative 'would not have met the management goals, standards, and objectives defined in the Beaverhead National Forest by the Beaverhead Forest Plan.' Specifically, defendants maintain that 'because the management decisions to harvest timber in those areas have already been made at the Forest Plan level it did not need to be revisited.'

"The fact the Beaverhead Forest Plan designates certain land as suitable for timber management does not, however, obligate the Forest Service to proceed with the timber harvesting, nor does it preclude the Forest Service from exercising its discretion to consider other courses of action. Accordingly, to the extent defendants maintain an alternative aimed at preserving the Beaver Lakes roadless area would be 'pointless,' based upon the goals of the Beaverhead Forest Plan, the court concludes defendants' summary judgment motion is not well taken. Defendants' position is contrary to NEPA's underlying tenet, i.e., that agencies consider all reasonable alternatives so as to ensure an EIS fosters informed decision making. See Idaho Conservation League v. Mumma, supra, 956 F.2d at 1519-20.

"The Forest Service cannot deny there is some benefit to be derived from considering an alternative that preserves the Beaver Lakes roadless area. Plaintiffs, as well as the Montana Department of Fish, Wildlife & Parks, whose considerable expertise in the area of wildlife management is undisputed, expressed concerns that preservation of the Beaver Lakes roadless area warranted full consideration in the Trail Creek NEPA process given the area's high security value for wildlife. Moreover, plaintiffs have alleged the roadless areas provide wildlife corridors essential for maintaining the biological diversity in the Northern Rocky Mountains.

"Given the contentious and long-standing debate in the State of Montana regarding the preservation of roadless lands and wilderness designation, the court concurs with plaintiffs' assertion that the NEPA process would have been properly serviced by development of an action alternative that preserved roadless lands in the Trail Creek area. Such an alternative would have afforded the opportunity for scientific and public participation and debate regarding the delicate balance between preserving natural resources and timber management.

"Accordingly, the EIS' failure to address an alternative preserving existing roadless lands in the Trail Creek area renders compels this court to REMAND this matter for further administrative proceedings."

An alternative with a lower volume of cut and an alternative that places emphasis on selective (uneven aged) cutting would both be possible in this proposal and would meet the LRMP goals.

With all the longleaf already in these compartments, why is there a need to create more? In light of that fact, a recreation alternative that seeks to maximize these compartments recreational potential and that limits cutting to those things that are needed to enhance the existing longleaf stands (thinning, seed tree removal) would also be reasonable.

An alternative that left the hardwood areas in Stand 2 alone, as the District elsewhere claims it does with such areas, is also a viable alternative that would meet the LRMP goals much better than any of these two alternatives. An alternative that leaves hardwood areas alone and meets the cut demand through cuts in unnatural loblolly plantations would also be viable, as 11 percent of these compartments as in unnatural loblolly plantations.

That means we have identified five alternatives that the EA did not. As we have outlined at least five viable but unexamined alternatives that would meet the current LRMP's goals and management objectives, the EA is inadequate and must be done again.

Why does the EA purport to show that if no action is taken, all breeding pairs of hooded warblers will disappear? Yet, if warbler habitat is cut, the EA claims their numbers will only edge down slightly. This is obviously incorrect. Leaving alone hardwoods that support hooded warblers will not cause them to disappear at all, let alone entirely, in a ten year period, or any period for that matter. This kind of sloppy typographical or computer data entry error is a prime example of what happens when an EA uses boilerplate, cook book language instead of actual site-specific field data. Again, actual site-specific data on the hooded warblers in these areas would be much better and would fulfill the agency's legal duties.

Another contradictory set of statements in the EA can be found on water quality. On page 32, the Ranger stated that the herbicide alternative could improve water quality "since this treatment does not create sedimentation as compared to a ground disturbing site preparation method." But then on page 33, the Ranger states, "Manual site preparation and release treatments should not create any discernable erosion and offers the lowest chance for water quality pollution of both action alternatives." Is the Ranger saying manual prep is "ground disturbing"? If so, then one of these two statements is wrong. Or is the Ranger just comparing herbicide prep to something like roller drum chopping? If so, why make such a statement when a "ground disturbing" alternative like that is not even being considered?

Also, the Ranger ignores the fact that no action or an alternative that did not clearcut or shelterwood these areas would have better water quality than clearcutting with herbicide site prep. The statement that the herbicide prep "could" improve long-term water quality is false, in that not doing these cuts will obviously leave the water quality in a better state than cutting, and cutting a 65-year old forest CAN NEVER IMPROVE water quality over not cutting it. To imply the opposite is not a correct identification and consideration of the environmental impacts from the proposal. Such a statement is correct only in comparing herbicide prep to ground disturbing prep, which is not even being considered in any of the alternatives. This statement has no place in this EA and demonstrates the lack of a through "hard look" analysis that NEPA requires and the pitfalls of a lack of site-specific data.

The EA contradicts itself again. On page 31, the Ranger talked about the "slight" potential for water resource degradation and state that the roads and harvesting will case "some soil displacement" and "elevated levels of sediment," albeit "slight" in the Ranger's opinion. On page 38, the EA states, "Leaving buffer strips adjacent to streams will prevent sediment and herbicide from reaching streams." If no herbicide or sediment will reach streams how can there be any elevated levels of sediment, even "slight" ones? We are not aware of anyone who has yet claimed that the minimal SMZs in the LRMP or similar ones lead to the absolute and complete prevention of sedimentation. Yes, they do reduce sedimentation, usually to "acceptable" levels, but they do not eliminate sedimentation. This shows more inadequate analysis.

The EA made no mention of the fact that logging during nesting season does indeed kill chicks. Certainly the Forest Service cannot contest that fact. Even if the Forest Service is not subject to the Migratory Bird treaty Act (MBTA), to comply with NEPA, any EA must still consider this reality in order to be in compliance with NEPA's requirements to identify and consider all reasonably foreseeable impacts.

Except for a computer model that has no data verifying that it actually fits with the conditions in these compartments, the EA does not identify or consider any of the Neotropical songbirds found in areas like this, except for the hooded warbler. Again, the Forest Service has not done the site-specific research and field surveys necessary to make its analysis valid under NEPA.

Killing of birds during logging IS a reasonably foreseeable impact, and the Forest Service is required to identify it with site-specific data and consider that impact. The District Ranger did not do so in this EA. The EA must also consider what impacts the spring and summer herbicide treatments will have on ground and low shrub nesting migratory birds and their nesting young and thus insure that no deaths of those species will occur during that spraying.

Also, the Ranger ignores the reality that private lands in the area provide vast amounts of early successional habitat. Even if birds that use clearcuts are in decline, the fact that the District can add only a little of such habitat to the vast amounts already provided by nearby private lands shows that the District is not utilizing its resources where they can do the most good for birds and the environment. As the Forest Service's own research shows, only about 0.5 percent of Alabama's forests (pubic and private together) are older than 50 years. 99.5 percent of the state's forests are young and provide enormous amounts of early successional habitat. See Forest Statistics for Alabama Counties -- 1990, (U.S. Forest Service April 1991). If birds needing such habitat are in decline, then it must be for other reasons than a lack of available clearcuts. As the tiny percentage of older forests is almost all on the National Forests in Alabama, the District should consider that fact and plan accordingly to protect and enhance that resource which is clearly not being provided on private lands.

The Ranger has also ignored scientific opinion given to him by an ornithologist knowledgeable in the birds and habitat of Alabama and of the Talladega itself. As explained to the District by Dr. Geoff Hill of Auburn University (letter commenting on the similar Draft Rebecca Mountain EA, on file with the District Ranger)(attached):

"I am greatly concerned about the negative impact that the proposed cut will have on Neotropical migrant birds nesting in the forest.

"I have conducted breeding bird work in the Bankhead National Forest and on the large forested tracts of Fort McClellan which is adjacent to the Talladega NF. In every stand of forest in the northern half of Alabama with a significant component of hardwood (trees approximately thirty or more years of age) I have encountered breeding populations of the following Neotropical migrants: black-and-white warblers, great crested flycatcher, hooded warbler, ovenbird, red-eyed vireo, scarlet tanager, yellow-billed cuckoo, and yellow-throated warbler. Cerulean warbler, Kentucky warbler, and worm-eating warbler are sometimes present but these species are disappearing even from intact woodlands. All of these species of Neotropical migrant birds breed from mid-April until early July. From the end of April until the beginning of June all of these species have young in the nest that would be killed by any tree cutting or movement of workers and machines through the forest. Without detailed population studies it would be impossible to calculate with any precision how many birds would be killed. Given the density of breeding birds in the Alabama hardwood forests that I have censussed, a very conservative estimate would be (on any given day) one Neotropical migrant bird nest per acre with three chicks per nest or about 300 birds killed per 100 acres harvested. I could easily see their being as many as 10 nests per acre with 3000 birds killed per 100 acres harvested. The adult birds would escape immediate death, but they would lose their breeding habitat. Conversion of hardwood forest to a longleaf pine stand would cause black-and-white warblers, hooded warbler, ovenbird, red-eyed vireo, scarlet tanagers, yellow-billed cuckoos, cerulean warblers, and worm-eating warblers, which rely on hardwood forests and will not nest in longleaf pine forests, to disappear as breeding species. I believe that the negative impacts on these declining Neotropical migrant songbirds must be given careful consideration during the environmental assessment stage of any timber harvest.

"Recovery of the red-cockaded woodpecker is a priority issue. As a member of the Alabama Red-cockaded Woodpecker recovery team I am devoted to the restoration of natural stands of longleaf pine in Alabama. However, an equally important issue is the loss of Neotropical migrant birds, particularly those species that require extensive stands of mature hardwood forests. It seems foolish to cut areas of second-growth hardwood forest with breeding populations of Neotropical migrant passerines in the name of Red-cockaded Woodpecker recovery. A better strategy would be to convert pasture land or loblolly/slash pine plantation into longleaf pine stands.

"The bottom line is that any spring/early summer timber operations in hardwood stands will kill many birds that are protected under the Migratory Bird Treaty Act and will have long-term negative impacts on the local breeding populations of these species."

Except for a computer model that has no data verifying that it actually fits with the conditions in these compartments, the EA does not identify or consider any of the Neotropical songbirds mentioned by Dr. Hill as found in areas like this, except for the hooded warbler. Again, the agency has not done the site-specific research and field surveys necessary to make the EA's analysis valid under NEPA.

For the Ranger to reject or ignore such area-specific scientific expertise as Dr. Hill's is arbitrary and capricious.

VIII. Sensitive Species

There are no sensitive species population objectives for this District and Forest. The Forest Service has not provided population and management objectives for the sensitive species in this District or the project area. Before the Forest Service can consider undertaking this project, the Forest Service must first comply with the law on protecting sensitive species. Specifically, the Forest Service must amend the Forest Plan to provide population objectives for these species. Even if the Forest Service had conducted surveys and found that the potential habitat was not occupied, they would still be required to first develop the objectives. For example, the analysis could identify the need to reintroduce a species into suitable habitat. If the logging makes an area that contains suitable habitat unsuitable, the species could not be reintroduced. Thus, the Forest Service must determine if the unoccupied suitable habitat is needed to meet population and management objectives, before a timber sale can be approved.

The Forest Service Manual states: "Develop and implement management objectives for populations and/or habitat of sensitive species." FSM 2670.22 (3). The Forest Service has neither developed nor implemented management objectives for the sensitive species in the project area.

The Forest Service Manual requires the Regional Forester to:

"Ensure that specific management objectives and legal and biological requirements for the conservation of endangered, threatened, proposed, and sensitive plants and animals are included in Regional and Forest planning ...."

FSM 2670.44 (5).

Since there are no specific management objectives for sensitive species in the Forest Plan, the Regional Forester must remand the decision and order the Forest to develop these guidelines.

The Forest Supervisor is required to "Develop quantifiable objectives for managing populations and/or habitat for sensitive species .... Determine distribution, status, and trend of threatened, endangered, proposed, and sensitive species and their habitats on Forest lands." FSM 2670.45. The Supervisor has not developed any quantifiable objects or determined the distribution, status, and trend of sensitive species.

The District Ranger is required to "ensure compliance with procedural and biological requirements for sensitive species . . . manage habitat necessary to meet sensitive species objectives." FSM 2670.46. Before the Ranger can fulfill this obligation (which is a prerequisite to approving the decision), the objectives first need to be established.

The Forest Service Manual requires that:

"Sensitive species of native plant and animal species must receive special management emphasis to ensure their viability and to preclude trends toward endangerment that would result in the need for Federal listing. There must be no impacts to sensitive species without an analysis of the significance of adverse effects on the populations, its habitat, and on the viability of the species as a whole."

FSM 2672.1.

There is no way to assure the viability of the species, without first establishing population objectives. The unoccupied suitable habitat in the project area may be needed to ensure the viability of the species.

The Forest Service Manual states, "For sensitive species, include objectives in Forest plans to ensure viable populations throughout their geographic ranges." FSM 2672.32. The Forest Plan does not contain objectives for the sensitive species.

Biological Evaluations are required to contain "an identification and description of all occupied and unoccupied habitat recognized as essential ... or to meet Forest Service objectives for sensitive species." FSM 2672.42. In order to comply with this requirement, the objectives must fist be established. The unoccupied suitable habitat in the project area could be essential to ensure the viability of the species.

The BE also does not comply with this requirement:

"If impacts cannot be avoided, analyze the significance of potential adverse effects on the population or its habitat within the area of concern and on the species as a whole. (The line officer, with project approval authority, makes the decision to allow or disallow impact, but the decision must not result in loss of species viability or create significant trends toward Federal listing.)"

FSM 2670.32 (4).

The Rebecca Mountain project is in violation of the LRMP, because the Forest Service has not collected population data for certain sensitive species that have a high potential for occupancy in the project area. It is therefore in violation of the NFMA.

NFMA, 16 U.S.C. § 1604(i), states under "Consistency of resource plans, permits, contracts, and other instruments with land management plans; revision":

"Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans. Those resource plans and permits, contracts, and other such instruments currently in existence shall be revised as soon as practicable to be made consistent with such plans. When land management plans are revised, resource plans and permits, contracts, and other instruments, when necessary, shall be revised as soon as practicable. Any revision in present or future permits, contracts, and other instruments made pursuant to this section shall be subject to valid existing rights."

See also 36 C.F.R. § 219.10(e), Forest planning--general procedure:

"(e) Plan implementation. As soon as practicable after approval of the plan, the Forest Supervisor shall ensure that, subject to valid existing rights, all outstanding and future permits contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the plan. Subsequent administrative activities affecting such lands, including budget proposals, shall be based on the plan."

The Rebecca Mountain Project does not comply with the Forest Plan and thereby is not in accordance with 16 U.S.C. § 1604(i) and 36 C.F.R. § 219.10(e), because the Forest Service has not collected populations data for sensitive species in accordance with the Forest Plan.

The LRMP was amended to incorporate the Record of Decision for Vegetation Management in the Appalachian Mountains. The Vegetative Management ROD at (2) requires that Site-Specific Analysis include a Biological Evaluation that

"considers all available inventories of threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area. When population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a threatened, endangered, proposed, or sensitive species."

Further, the Forest Service Manual requires a BE to contain:

"An analysis of the effects of the proposed action on species or their occupied habitat ... [and] A discussion of cumulative effects resulting from the planned project in relationship to existing conditions and other related projects."

FSM 2672.42. The BE here, however, does not contain a cumulative effects analysis for any species. This is particularly disturbing considering that several other timber sales are being proposed in the same area of the District. Together, up to several thousand acres of timber will be cut.

There have been no surveys for sensitive species in this project area or on the District as a whole. The EA indicated that the Forest Service has not looked at the project area to determine if listed or sensitive species are indeed present. This is giving priority to getting the cut out over protecting listed species. Additionally, the CEQ Regulations state:

"NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."

40 C.F.R. § 1500.1(b)(emphasis added). This regulation is clearly being violated because no surveys are being conducted before the decision is made.

Additionally, a Federal Judge just ruled that the NFMA requires the Forest Service to have population data for sensitive species. The Court also ruled that it is arbitrary and capricious to issue a FONSI without population data for the Sensitive Species. Sierra Club v. Martin, Civil No. 1:96-CV-926-FMH (N.D. GA September 17, 1996).

This decision makes no provisions for sensitive species mitigation. The Forest Service, has failed to provide any mitigation for the sensitive species. The EA merely makes unsupported claims that the impacts will not affect species. Even if this is true, the Ranger still must provide data supporting such a claim and mitigation.

The decision does not provide for sensitive species protection. The Ranger has not even developed possible measures to protect the sensitive species. He merely makes the unsupported claim that the project will not adversely impact the species viability. Even if this is the case, he still must provide the species the highest possible protection and must have verifiable data or research to support such claims. Currently, there is no such data or research.

IX. Reliance on Even-aged Management in this Decision and in the LRMP

The Decision Notice and EA fail to properly demonstrate that even-aged management is the optimum method. The NFMA only allows the use of even-aged management where it is "determined to be the optimum method . . . to meet the objectives and requirements of the relevant land management plan." 16 U.S.C. § 1604(g)(3)(F). Congress defined the term "optimum method" as "the most favorable or conducive to reaching the specified goals of the management plan." S. Rep. 94-893 at 39.

The Fifth Circuit has held:

"[c]learcutting must be used only where it is essential to accomplish forest management objectives .... these provisions [of NFMA] mean that the Forest Service must proceed cautiously in implementing an even-aged management alternative and only after a close examination of the effects that such management will have on other forest resources .... [The NFMA] requires that the Forest Service meet certain substantive restrictions before it selects even-aged management. To be sure, these restrictions reflect a congressional wariness towards even-aged management, constraining resort to its use. The sluicing effect of the required inquiries must be described as making a decision to employ even-aged management more difficult."

Sierra Club v. Espy, 38 F.3d 792 (5th Cir. 1994).

Although the Fifth Circuit found in Espy that NFMA did not require the Defendants to use even-aged methods only as an exception, a district court in Colorado has found that uneven-aged management is the "preferred cutting method" under NFMA and even-aged logging (both clearcutting and shelterwood) may only be used in "exceptional circumstances." Ayers v. Espy, 873 F. Supp. 445 (D. Colo. 1994).

In Deciding Appeal # 90-09-00-64, the Regional Forester of the Eastern Region reversed a decision to clearcut because:

"[t]he Decision does not provide convincing reasons as to why these units should be clear-cut rather than harvested using some other method .... As you correctly state, it is the Forest Service's responsibility ... to show that clear-cutting is better than all other possible methods ... in achieving the desired future condition as defined in the Forest Plan. The Forest Supervisor's decision has not demonstrated this. The reasons presented by him could be applied to any stand in the area. They are not unique to stands 2, 6, and 8, and therefore, it is difficult to understand why these stands are being clear-cut and others are not."

Appeal Decision at 1-2. On June 13, 1991, the Chief upheld this point.

The emphasis, indeed total usage, of even-aged management in the LRMP for the National Forests in Alabama is illegal. This is reflected in the failure of this EA to consider an uneven-aged management alternative.

As stated in Sierra Club v. Thomas, 105 F. 3d 248 (6th Cir. 1997):

"The Sierra Club contends that the even-aged logging agenda is illegal in that the Forest Service has not complied with the constraints on its choice of even-aged management techniques contained in the National Forest Management Act. In reviewing this record, we have carefully examined the conclusions drawn by the Forest Service to test for internal consistency and reasonableness. Although the Forest Service has the benefit of the presumption of good faith and regularity in agency action, we have attempted to ascertain whether the plan has been improperly skewed. We conclude that the planning process was improperly predisposed toward clearcutting. The resulting plan is arbitrary and capricious because it is based upon this artificial narrowing of options.

"Although it would be impractical to set forth the details of the administrative record here, one example of bias is particularly illustrative. The Forest Service argues that its even-aged management plan is based on evidence that timbering will provide new opportunities for recreation that will, in turn, preserve and enhance the diversity of plant and animal communities in the Wayne National Forest. Most recreation does not require timber harvesting, however. Further, as the Forest Service's own records reflect, the Wayne is surrounded by and intermingled with privately-held land which already contains an abundance of diverse plant and animal life. Timbering simply does not promote the kind of recreational activities that are in demand in the Wayne; in fact, recreation like fishing and hiking is harmed by clearcutting. The planners also failed to recognize that cutting is unlikely to stimulate new and valuable forms of recreation because much of the Wayne has already been cut or developed. In that particular environment, clearcutting loses its value.

"The National Forest Management Act mandates that the Service ensure that even-aged management practices be used in the national forests only when 'consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource.' 16 U.S.C. § 1604(g)(3)(F)(v). The National Forest Management Act thus contemplates that even-aged management techniques will be used only in exceptional circumstances. Yet, the defendants would utilize even-aged management logging as if it were the statutory rule, rather than the exception. By arbitrarily undervaluing the recreational value of wilderness, the Forest Service created a very distorted picture of the Wayne National Forest. Based on false premises such as these, the Forest Service improperly concluded that clearcutting was necessary.

"It is not surprising that the Forest Service came to this conclusion. Created, in part, to ensure a reliable timber supply, the Forest Service has a history of preferring timber production to other uses. Rather than being a neutral process which determines how the national forests can best meet the needs of the American people, forest planning, as practiced by the Forest Service, is a political process replete with opportunities for the intrusion of bias and abuse. Because national forests are located near rural communities, foresters make management decisions to support perceived needs in the communities. By sharing timber proceeds with those communities, the Forest Service strengthens the link between timber sales and the livelihoods of local constituencies. See, Office of Technology Assessment, Forest Service Planning: Accommodating Uses, Producing Outputs, and Sustaining Ecosystems 46 (1992). The resulting dependency of these communities on timber production causes over-harvesting and destructive harvesting methods. The relationship of the Forest Service to the timber industry also constrains the Forest Service's planning freedom. Rural constituencies reliant on timber sale revenues may provoke politicians to place pressure on the Forest Service to sustain that revenue. Consequently, the Forest Service becomes trapped: cutting off timber sales would cause loss of employment and revenue in local communities but continued timber sales risk over-harvesting and below-cost sales.

"The Forest Service budgeting process, which allows the Forest Service to keep a percentage of the funds it realizes from timber sales, provides an incentive for the Forest Service to sell timber below cost or at a loss. See, Randal O'Toole, Reforming the Forest Service 122 (1988). Also, to maximize its budget, the Forest Service uses expensive timber management and reforestation techniques, such as clearcutting. Id. Again, conflicting interests lead to perverse results: clearcutting provides the Forest Service with a higher congressional subsidy because the Forest Service can request preparation and administrative costs. Consequently, decisions may be made, not because they are in the best interest of the American people but because they benefit the Forest Service's fiscal interest.

"Each of these biases undermines even the facial neutrality of the National Forest Management Act. Even when there may be more valuable uses for the land, the above biases and constraints cause the Forest Service to manage primarily to maximize timber outputs.

"The public nature of the planning process and the public's right to appeal timber sales were intended by Congress to be a check on the Forest Service's power and discretion. Judicial review of planning decisions is intended to be a further check. Accordingly, in light of our examination of the structure, legislative history, and purpose of the National Forest Management Act we find the Forest Service has failed to comply with the protective spirit of the National Forest Management Act. We further find that this non-compliance is an arbitrary act in excess of the statutory limitations provided in § 1604(g)(3)(F)(v). The Forest Service's planning process, therefore, was not in accordance with the law. Accordingly, we REVERSE the district court's order for summary judgment and REMAND this case to the district court for further proceedings consistent with this opinion."

So too here in the National Forests in Alabama, reliance on even-aged management has been enshrined in the LRMP as the rule rather than the exception, in contradiction to NFMA requirement that even-aged methods be the exception. See LRMP where it discusses timber harvesting methods for Management Area 16, which includes all of the project area. There, the LRMP states, "Even-aged management will be the silvacultural system for all forest types on lands suitable for timber production." LRMP at IV-106 (emphasis added). Indeed, the LRMP makes even-aged management not just the rule, but the exclusive rule. That is a clear violation of NFMA, and failure to consider uneven-aged alternatives in this EA is a violation of NEPA as well.

X. Lack of Data

The EA needs significantly more data collection before the agency or the public can adequately assess the site-specific impacts that will come from this proposal and an adequate range of alternatives. The Forest Service Handbook states:

"Focus data collection on the current and expected physical, biological, economic, and social conditions affecting or affected by the proposed action. Document the assumptions, methods, and data sources."

1909.15 FSH § 13.03.

The CEQ Regulations state:

"NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."

40 C.F.R. § 1500.1(b).

The EA, however, fails to document its assumptions, methods, and data sources. The Forest Service did not disclose the assumptions, methods, and data sources. Some examples are of data that the EA does not document the assumptions, methods, and the data sources for are:

1) The EA does not give any data or assumption about how the Ranger identified "off-site" or "invader" hardwoods. It appears that the District merely treats all hardwoods on ridges the same, as "off-site," which cannot be factual correct. Further, even as documented in the Ranger's letter of Dec. 6 (which the EA does not reflect any agreement with), treating all hardwoods on ridges as "off-site" and all hardwoods in drainages as "okay" is totally unsupported. Further, the Ranger proposes to cut hardwoods in drainages (in Stand 2), thus showing that even the most meager assumptions that he used are not followed.

2) The EA contains data for the stands proposed for cutting (acres, age and basal area). The EA, however, does not disclose the data sources, the methods used to obtain the data, or the assumptions (how the age is determined, average, etc). There are relic longleaf pines in Stand 2 that are much older than the generic stand age the Ranger gave that stand. Failure to identify and consider this site-specific reality is a violation of NEPA.

3) The EA contains timber volume information. But the EA does not document the data sources, methods, or assumptions for these figures.

4) The EA contains some claims about economics. The EA, however, fails to document the data sources, assumptions, and methods for these numbers.

5) The EA contains some information about the soil types in the project area. The EA, however, does not disclose the data source or methodology. There is no indication if a soil map was used (and if so how up to date and accurate it is) or if the Forest Service went and looked in the project area.

6) The EA has some numbers that it says are effects on habitat capability. The EA indicates the numbers came from the Basic Alabama Habitat Capability Model. The EA does not explain what the model is or what the numbers mean. Additionally, the EA does not disclose the data sources for the numbers fed into the model or explain the methodology or assumptions of the model or if the modeling numbers have in fact been field checked and verified for these areas.

7) The Wildlife Section has several claims about the habitat capability of the Talladega District for several species. The EA, however, fails to document the data sources, assumptions, and methodology for these claims.

Therefore, the EA should be redone with full documentation of the data sources.

CONCLUSION

Therefore, Appellant requests that the Regional Forester reverse the decision to adopt Alternative 2 and order that the District conduct a new EA with a full range of alternatives and site-specific data and analysis (including analysis of Rebecca Mountain's roadless characteristics and the additional 103 acres of proposed cuts) in order to determine if the cumulative impacts of this proposal and other past and proposed timber sales are significant enough to require the preparation of an EIS on timber harvesting in the Talladega District. The Regional Forester should also instruct the National Forests in Alabama to prepare adequate sensitive species population objectives and to conduct adequate sensitive species surveys. The Regional Forester also must instruct the National Forests in Alabama that the RCW EIS is not a mandate nor an excuse to convert hardwood areas to pine. The Regional Forester should also instruct the National Forests in Alabama to revise their choice of timber harvesting methods such that they will comply with NFMA by using even-aged methods only when and where appropriate.

If the decision is upheld, it should be modified to limit all timber harvesting to those times of year when nesting migratory birds will not be killed, to require population objectives and surveys for sensitive species prior to any timber harvesting, and to prevent the conversion of any hardwoods.

Respectfully submitted,

Ray Vaughan

Attorney for the Appellants