The WildLaw Letter

For Members and Friends

May 2004

Due to the extreme volume of work, we have been late in getting this newsletter and annual report out. We apologize, but the work comes first over all other things.

WildLaw had a great year fund raising in 2003, and we thank all our supporters for making it such a successful year. In 2003, we had a total income of $542,122, the first time we have ever gone over the half-a-million dollar mark. Of that, $392,246 were donations from individuals; $144,160 were from grants. The rest was from interest ($1,607), expense reimbursements ($3,519), court ordered costs ($128), and tax refunds.

Our expenditures in 2003 totaled $468,335, just under our budget of $469,679. Of that, $395,970 (84.6%) was for program work; $17,486 (3.7%) was for administrative expenses, and $54,879 (11.7%) was for fund raising and development work.

Thank you for all your support of WildLaw. We especially want to thank our major donors:

* Fred and Alice Stanback

* The Mennen Environmental Foundation

* The Curtis and Edith Munson Foundation

* The Town Creek Foundation

* The Merck Family Fund

* The Moriah Fund

* The Norcross Wildlife Foundation

* Patagonia

* The Environmental Support Center

On behalf of the Southern Appalachian Forest Coalition (SAFC), Wild South, The Wilderness Society, the Sierra Club, and many other regional and local organizations, WildLaw and the Southern Environmental Law Center (SELC) filed appeals on all five of the newly revised management plans for the National Forests in the Southern Appalachians. The appeals cover 3.2 million acres, and are the largest, most comprehensive set of appeals in US Forest Service history. The appeals themselves are 250 to 350 pages each.

The groups are challenging the plans because the Forest Service failed to incorporate the public to the full degree of the law, according to the appeal. In addition, the plans violate federal laws by not protecting "roadless areas" (special places identified by the agency as generally pristine), by not expanding wilderness designations to meet public demand for backcountry recreation, and by not protecting wildlife. Furthermore, they charge the USFS with opening the entire forests to mining and oil and gas drilling without doing the environmental analysis required for that decision.

These plans took a fundamental shift after the 2000 elections. Over the last several years we've seen a breakdown in communication between the public and Forest Service, and the increase in logging targets and decrease in wild land protection has been the end result. 78% of concerned citizens in Alabama, as well as special interest groups and independent scientists who commented on the plans, wanted to see more protection. But the Forest Service ignored these comments. Furthermore, they failed to provide all the relevant data or even adequately analyze some of their proposed actions. This is in direct violation of the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedures Act.

According to the appeals, the Forest Service violated laws in some of the following areas:

* Mining and Drilling: The new plans allow oil and gas drilling and coal mining on almost all forest service lands. For the Alabama Plan, the agency inserted these provisions after the public comment period ended and did not consider the cumulative impacts of such actions.

* Logging: While the plans have good language about scientifically valid restoration work, they still allow for large-scale commercial logging, even in old growth and roadless areas. Comments that timber harvesting should be limited to scientifically valid restoration were not responded to -- a NEPA violation.

* Burning: The plan also calls for increased prescribed burns. While appropriate in Longleaf Pine areas, regular prescribed fire in hardwood areas is not scientifically valid. A Forest Service employee, Quentin Bass, provided historical USFS documents showing that burning was not needed in the hardwood areas of the forests, but this data was ignored. Failure to consider submitted information by experts is a NEPA violation.

* Roadless areas: Approximately 91% of Alabama's roadless areas would be vulnerable to logging, roadbuilding and other harmful activities under these plans. In the Chattahoochee in Georgia, 87% of the roadless areas are not protected; in the Jefferson in Virginia, 79% are not protected. For the Cherokee in Tennessee, 31% of the roadless areas are not protected, and the Sumter in Souther Carolina has 86% of its roadless areas left out of protective prescriptions. This is not in compliance with the Roadless Rule, which the Bush Administration continues to attempt to dismantle. The failure to discuss this adequately is a violation as well.

* Wilderness areas: Although, 90% of comments on special lands asked for more wilderness, the highest type of forest protection, the Forest Service did not evaluate adding any additional Wilderness Areas in most of these forests, a violation of NEPA. Alabama has 39,679 acres that were championed for wilderness, but the plans call for adding only 540 acres to an existing wilderness, despite USFS studies showing a 171% increase in demand nationwide and showing that Alabama has less wilderness per capita than most other states.

* Wildlife: There are no requirements to actually survey for and protect wildlife that could be adversely impacted by logging, mining, and oil and gas drilling. This is a violation of NFMA.

* Old Growth and Wild & Scenic Rivers: In both of these cases there was little information about the current status of these resources on which to make decisions. Maps of Old Growth were not provided, which violates NEPA, and supporting research was never done.

* Economics: The plans do not comply with NFMA and NEPA to identify and consider economic issues and impacts.

* Other NEPA violations: The Forest Service added new materials to the final plans AFTER the public was allowed to make concerns known.

To read a White Paper summarizing the five appeals, visit http://www.safc.org/campaigns/white_paper.htm.

On April 7, 2004, WildLaw filed extensive comments on the new interim regulations for predecisional protests on projects under the new Bush Administration Healthy Forests Restoration Act (HFRA). While the regulations largely follow the requirements set forward in the HFRA, there are a few requirements that deviate from the HFRA and/or cannot be legally justified. These new regulations limit citizen participation and public input into projects proposed under the HFRA more than the HFRA requires.

Some of the problems with the new rules are:

* Calculation of the objection deadline is the responsibility of the objecting party. This provision is a measure to discourage meaningful public participation and further alienates the public from the public comment process. The public will likely have to search in rural or small local papers for comment deadlines if they would like to participate in the public comment period. Many Americans do not have access to these local papers and finding the comment deadline dates could be very difficult.

* The comment period for an Environmental Assessment (EA) is to be during the scoping period only, and "environmental assessments are not circulated for public comment in draft form." The public would not have the opportunity to review and comment on the draft EAs for projects under the HFRA. Scoping documents are notoriously cursory and vague. The agency rarely even announces the entire geographic scope or a wide range of management actions of a project in the scoping process. The first time the public would see the completed EA would be after the Forest Service publishes the announcement that the EA is finalized in the local paper. Once the EA is finalized and notice is published in the local paper the "objection" process begins and the public will only have 30 days to raise objections to the project. These regulations make it so that the only participation route in the process available to the public will be to object and sue over the project. Providing for public comments that might change a project for the better short of legal action is no longer an option.

* Incorporation of documents by reference in not permitted. This requirement is burdensome because it will require large volumes of material and could make faxing or e-mailing comments difficult or impossible. There is absolutely no reason for prohibiting objectors from incorporating by reference documents that are already in the possession of the agency such as Forest Plans or the Forest Service Handbook. Also, the requirement is unfair as the agency routinely incorporates by reference in its own documents.

* The publication date of the legal notice of the EA or EIS in the newspaper of record is the exclusive means for calculating the time to file an objection. Often the newspaper of record is a very small local or rural paper, which many citizens may never have heard of or have any access to. This requirement is deliberately exclusive.

* Decisions signed by the Secretary or Under Secretary are not subject to the objection procedures. This provision is not authorized by the HFRA and ignores current case law on similar Forest Service actions under the Appeals Reform Act.

Working with the American Lands Alliance, WildLaw pulled together 37 national, regional and local conservation organizations from Alaska to Florida to comment on these new rules.

On March 4, 2004, WildLaw filed on behalf of Wild South two rule-making petitions with the Alabama Environmental Management Commission (AEMC) seeking rule-making procedures on improving two sets of regulations for the Alabama Department of Environmental Management (ADEM). The two petitions sought to (1) change the stay request procedures for appeals of ADEM permits before the Commission, and (2) adopt rules enforcing Best Management Practices (BMPs) for forestry operations in Alabama.

The first petition sought to turn the nation's most onerous rule for receiving a stay of administrative permits to a nearly automatic stay. Both the EPA and the State of Georgia have automatic stay provisions for citizens who appeal pollution permits. The current ADEM rule clearly favors polluters over the public. The current stay provision strongly encourages permitted polluters to delay and drag out proceedings before the Commission in order to get their facilities in full operation under their permits before the issues involving the permit are even heard by the Commission.

The second petition tried to make BMPs for forestry mandatory and enforceable. The Alabama Forestry Commission has already adopted Best Management Practices (BMPs) for forestry operations in Alabama in January 1993. Those BMPs, however, are voluntary in nature, but they are better than nothing. Yet, many forestry operations do not follow all these BMPs. These proposed rules were designed to give the Department the ability to halt forestry operations that do not comply with all BMPs, but no prior notification or other reporting requirements on the part of loggers, landowners, foresters or operators will be required. Violations would be required to be self-reported, as are violations for almost all environmental laws like the Clean Water Act, and the Department would also be able to respond to complaints of violations made by adjacent landowners, citizens and the Alabama Forestry Commission. Currently, violations of BMPs referred by the Forestry Commission to ADEM are not usually acted upon by ADEM due to the lack of regulations.

Not surprisingly, the AEMC denied both petitions, refusing to even begin the administrative rule-making process in order to give people a chance to review, comment on and negotiate over the proposals. One good thing, though, is that ADEM claimed publically, for the very first time, that it does have the authority to enforce the voluntary BMPs when failures to follow them do cause water quality problems. In the past, ADEM had usually claimed that it had no such authority, but to defeat the need for detailed regulations, the agency stated that it does have this authority. People in Alabama would be wise to hold ADEM to its word, as violations of the BMPs are rampant.

The Osceola National Forest in Florida proposed a 3,200-acre salvage timber sale after a prescribed fire, set by the Forest Service itself, went out of control and burned over 17,000 acres of the forest. Most of the proposed sale was in areas with little to no damage and would have logged healthy trees in the name of "salvage." Surveys by WildLaw showed that most of the proposed sale was not seriously damaged by the fire, which mostly burned at ground level. A wilderness study area (WSA) and a roadless area were also part of the proposed logging.

Keep your calendar open for July and August 2005! Due to this tremendous opportunity to protect millions of acres of African rainforest in Gabon and the corresponding level of work to make a trip like this successful on every level, we have moved the initial Destination Gabon trip to the summer of 2005. We want to do this inaugural trip right in every way, and we just needed a bit more time to do that. All other aspects of what we plan to do are the same.

The amount of support we have received for this eco-tour from the Gabonese government and from all departments in the United States government with programs on Gabon has been tremendous. We have made numerous trips to Washington, DC to meet with department staff and leaders and to meet with Gabonese officials.

Joe Turnham and Sandy Nichols of our staff traveled to Gabon in January and early February to tour the sites the eco-tour will visit. They had a great trip, confirming that the country is all that we have heard it is. Many of the photos from their trip can be seen on the Gabon page on our web site.