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FAXED TO Dale Bosworth, Chief of Forest Service August 27, 2004

August 11, 2004
Rick Cables
Regional Forester
USDA Forest Service, Rocky Mountain Regional Office
740 Simms Street
Golden, Colorado 80401

Re: Bighorn Roadless Inventory and Draft EIS Errors

Dear Mr. Cables:

Pursuant to 5 U.S.C. § 553, 5 U.S.C. § 555(b), and 40 C.F.R. § 1502.9(c), we the undersigned hereby petition the U.S. Forest Service (“USFS”) to prepare a revised or supplemental Draft Environmental Impact Statement (“DEIS”) for the Bighorn National Forest’s Revised Forest Plan.

As discussed below, a revised or supplemental DEIS is needed to properly evaluate – and disclose for public review and comment -- a reasonable number of wilderness alternatives covering the full spectrum of possible wilderness recommendations. The current DEIS virtually ignores wilderness options by presenting the public and decisionmaker with only two possible choices: recommend no new wilderness for the Bighorn or recommend only 125,569 acres for wilderness.  This does not meet the USFS’s obligation to ensure the Draft EIS satisfies all legal requirements applicable to a final EIS.  In addition, the DEIS’s roadless area inventory is based on erroneous assumptions and methodology which have resulted in a significant underestimate of the actual acreage of land on the Forest that may qualify for wilderness designation.  Accordingly, we are also petitioning the USFS to prepare a revised or supplemental DEIS to correct these serious errors in the inventory process.

BACKGROUND

The Bighorn National Forest (“BNF”) spans the Bighorn Mountain range in northern Wyoming. The range is a biogeographic island that has been isolated from other forest ecosystems in the Rocky Mountains for hundreds of thousands of years. This isolation has created a host of unique subspecies. For instance, black bear, mountain vole, American pika, snowshoe hare and least chipmunks are all genetically distinct from similar species living on other forests in Wyoming. DEIS at 3-398. The Bighorn range is also geologically unique, with remarkable limestone, sandstone, and granite formations exposed throughout the Forest.

Despite the uniqueness of the Bighorn range, there is currently only one Wilderness area established on the entire Forest -- the Cloud Peak Wilderness. This area, comprising 189,039 acres, was designated by Congress in 1984 through the Wyoming Wilderness Act, PL-98-550 (“WWA”). The Cloud Peak Wilderness is predominately alpine “rock and ice” with some high-elevation forest communities around the margins. There are a number of ecological communities on the Bighorn that are not represented in or protected by this lone Wilderness. For example, Cloud Peak contains virtually no aspen, shrub, or Douglas fir, and it only has a small amount of lodgepole pine habitat.  Moreover, the Bighorn National Forest hosts some of the most spectacular wild canyons in the country, yet none of these areas has been protected through wilderness designation.

In the two decades that have passed since 1984, demand for wilderness opportunities has been increasing, as evidenced by the resource damage occurring from over-use in certain parts of the Cloud Peak Wilderness.

The USFS normally proposes new wilderness on a National Forest in conjunction with the development of a Forest Plan. The BNF is currently being managed under a Forest Plan that was issued nearly 20 years ago in 1985. This Forest Plan was only designed to last 10- 15 years. The 1985 Forest Plan did not propose any new wilderness for the BNF even though the RARE II inventory identified 17 roadless areas comprising 689,770 acres that were potentially eligible for wilderness designation.

In 1999, the USFS began the process of revising the BNF’s 1985 Forest Plan.  To identify public issues and concerns about management of the Bighorn, a scoping process was conducted and public meetings were held in communities surrounding the Forest. Through these various forums, the USFS received numerous comments urging the agency to designate more wilderness areas on the Bighorn.  In particular, a coalition of non-profit organizations – collectively representing roughly one million Americans -- submitted a proposal to the USFS urging the agency to recommend approximately 433,400 acres of land on the BNF for wilderness designation. This proposal was described in a detailed document called the Citizens Conservation Alternative (“CCA”).  The areas petitioned for wilderness include a number of beautiful and relatively undisturbed areas on the BNF which citizens surveyed and -- using USFS’s own roadless and wilderness evaluation criteria -- documented to be eligible for wilderness designation. Several members of the Bighorn National Forest Steering Committee also urged the USFS to evaluate wilderness alternatives and to include wilderness recommendations in the agency’s preferred alternative.

In June 2004, Bighorn Forest Supervisor Bill Bass issued a Draft EIS and Proposed Revised Forest Plan for the Bighorn National Forest. In the DEIS the USFS asserts that there are currently only 377,471 acres of inventoried roadless lands remaining on the BNF, distributed among 20 different roadless areas. See DEIS at 3-357. This represents a reduction of more than a quarter of a million acres from the RARE II inventory. Although the DEIS shows the total number of individual roadless areas to be higher since RARE II this is due to fragmentation of the 17 RARE II areas into smaller pieces, not to the Planning Team’s identification of previously unknown roadless areas. The DEIS roadless inventory also represents roughly 55,000 fewer acres than were petitioned for wilderness designation through the CCA.  The DEIS did not provide documentation to show the CCA’s roadless inventory was inaccurate.  n fact, while the CCA proposal was based on field work, the DEIS inventory was largely done in-office with a computer program. And while the CCA proposal was based on the traditional USFS roadless area inventory criteria, the BNF Planning Team used a variety of new and internally-developed roadless inventory procedures to disqualify many areas that were previously classified as “roadless” by the USFS.  For example, vast acreages of otherwise “roadless” lands were disqualified from wilderness consideration due to the presence of “classified” roads and trails, even in cases where the roads or trails at issue are merely unimproved 2-track routes. As a result, the Planning Team “disappeared” many of thousands of acres which the USFS previously recognized to be “roadless” despite the fact that there have been no substantive changes in on-the-ground conditions in these areas. These errors in the inventory process were pointed out by various groups and individuals, well before the DEIS was issued. However, the Planning Team did not take any action to correct the errors when preparing the DEIS. The wilderness evaluation process conducted for the DEIS was also flawed.  For instance, of the 20 inventoried roadless areas that were identified in the DEIS, the Planning Team only reported that only 8 of these areas -- comprising just 214,783 acres -- are available for and capable of wilderness recommendation. See DEIS at 3-358. The Planning team seemed to be more interested in finding ways to disqualify areas from wilderness consideration than in identifying lands that should be designated as wilderness on this Forest.

Compounding the errors in the DEIS’s roadless inventory and evaluation processes, the BNF Planning Team also failed to develop a reasonable spectrum of wilderness alternatives.  The DEIS gave detailed consideration to six alternatives for the Revised Forest Plan, including a “no action” alternative based on the 1985 Forest Plan. Five of these alternatives -- including the USFS’s preferred action, Alternative D -- would recommend no new wilderness designation. Just one alternative -- Alternative C -- involves a scenario whereby the USFS would recommend some lands on the Bighorn National Forest for wilderness designation.  This Alternative was purportedly developed in response to public comment that “the undeveloped land on the Forest should remain undeveloped….”.  See DEIS Executive Summary at 18.  Yet, Alternative C only reflects the option of recommending 125,569 acres of new wilderness on the Bighorn, which does not close to ensuring that all currently undeveloped lands on the Forest will remain undeveloped.

Thus, only two wilderness alternatives were considered: 0 acres of new wilderness or 125,569 acres of new wilderness. It is also evident that Alternative C will not  be seriously considered for selection by the USFS and is being viewed by the agency as an “extreme end-point” designed solely to appease conservation minded citizens. Indeed, in all the years that Forest Plans have been developed in accordance with NEPA, the USFS has never once selected the most environmentally protective Alternative for implementation.  In this light it is clear the only alternatives the USFS is seriously considering would not have any new wilderness designated on the Bighorn.

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The wilderness alternatives evaluated in the DEIS – and presented for public review and comment – are summarized in the following table.

From this table it is evident that:

• No alternative evaluated in the DEIS would implement the Citizen’s Conservation Alternative by recommending 433,400 acres for wilderness designation;

• No alternative evaluated in the DEIS would recommend all 20 DEIS-inventoried roadless areas -- comprising 377,471 acres -- for wilderness designation;

• No alternative evaluated in the DEIS would recommend the 8 roadless areas, comprising 214,783 acres, which the DEIS itself acknowledged are available for and capable of wilderness designation; and

• No Alternative evaluated in the DEIS would recommend 2-4 new wilderness Areas for designation even though this is not only a very reasonable option but is also an option that some local citizens and local government officials would find more appealing than recommending 5 or more areas for wilderness designation.

As discussed below, the failure to evaluate such alternatives violates NEPA’s requirement that the USFS rigorously explore and objectively evaluate all reasonable alternatives, including a representative sample of alternatives covering the full spectrum of wilderness recommendation options.

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OBLIGATIONS TO EVALUATE WILDERNESS ALTERNATIVES

The National Environmental Policy Act and NEPA implementing regulations require the USFS to rigorously explore and objectively evaluate all reasonable alternatives to proposed agency actions.  42 U.S.C. § 4332(2)(C)(iii) and 40 C.F.R. § 1502.14.  This includes alternatives designed to address unresolved conflicts over possible alternative uses of available resources.  42 U.S.C. § 4332(2)(E) and 40 C.F.R. § 1501.2(c).

Admittedly, there is an infinite number of possible alternatives for wilderness recommendation on the Bighorn.  The possibilities run from recommending 0 acres of new wilderness to recommending nearly 500,000 acres of new wilderness.  In cases such as this, NEPA does not require the agency to evaluate a very large number of alternatives.  However, NEPA does require the agency to evaluate a reasonable number of wilderness alternatives that cover the full spectrum of possibilities.  This “full spectrum” requirement has been articulated by the U.S. Council on Environmental Quality (“CEQ”) – the nation’s authority on NEPA:

“For some proposals there may exist a very large or even an infinite number of possible reasonable alternatives.  For example, a proposal to designate wilderness areas within a National Forest could be said to involve an infinite number of alternatives from 0 to 100 percent of the forest.  When there are potentially a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS.  An appropriate series of alternatives might include dedicating 0, 10, 30, 50, 70, 90, or 100 percent of the Forest to wilderness.  What constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case.”

See The Forty Most Asked Questions about CEQ’s National Environmental Act Regulations, 46 Fed. Reg. 18026-18038 (Mar. 23, 1981), Answer to Question 1b. The USFS has included this CEQ direction in the Forest Service NEPA Handbook, FSH 1909.15, 65.12, Exhibit 01. The U.S. Supreme Court has also ruled that CEQ’s interpretations of NEPA are entitled to substantial deference. See, e.g., Andrus v. Sierra Club, 442 US 347, 358 (1979).

Thus, in the Bighorn Revised Forest Plan Draft EIS, the USFS should have analyzed and compared a reasonable number of wilderness alternatives, covering the full spectrum of wilderness recommendation possibilities, ranging from 0 acres up to the maximum possible wilderness recommendation on the Forest.  For example, the full spectrum of wilderness possibilities would be represented by alternatives that recommend for designation 0 acres, around 40,000 acres, around 80,000 acres, around 125,000 acres, around 160,000 acres, around 200,000 acres, around 240,000 acres, around 300,000 acres, around 377,000 acres, and around 433,000 acres.  Yet the DEIS only evaluated the options of recommending 0 acres or 125,569 acres, again excluding all other possible and reasonable wilderness options.  In terms of the number of wilderness areas recommended, the full spectrum could be represented by alternatives that recommend 0, 3, 6, 9, 12, 15, 18, and 20-22 new wilderness areas.  The DEIS only considered recommending 0 or 5 new wilderness areas, thereby omitting all other possibilities within the spectrum of wilderness options.

The 1984 Wyoming Wilderness Act reinforces the NEPA requirement obligating the USFS to explore all reasonable wilderness alternatives during a Forest Plan revision.  In fact, the WWA explicitly states that the USFS “shall again review wilderness options for the national forest lands when the forest management plans are revised....”  (Emphasis supplied.)  Congress clearly did not intend for the USFS to limit consideration to just two wilderness options. Likewise, the National Forest Management Act regulations at 36 C.F.R. § 219.17(a) provide that “...roadless areas within the National Forest System shall be evaluated and considered for recommendation as potential wilderness during the forest planning process.”  (Emphasis supplied.)  This requirement does not allow the USFS to merely “evaluate” roadless areas to decide if they may be eligible areas for wilderness designation; the agency must also actually “consider” recommending roadless areas for wilderness designation.  The appropriate way to consider the various wilderness recommendation options is by developing a full spectrum of wilderness alternatives through the NEPA process.  FSH 1909.12, 7.25 Paragraph 3 also states that during the Forest Plan revision process,  the agency must “Develop and analyze an adequate range of wilderness and non-wilderness alternatives.”  This was not done.

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Perhaps the BNF Planning Team feels recommending more than 125,569 acres of new wilderness on the BNF would be unreasonable, so the agency wasn’t obligated to consider such alternatives.  However, an examination of wilderness designated on other National Forests demonstrates that even the CCA wilderness recommendation for the Bighorn is quite reasonable.  For instance, the Bridger-Teton National Forest has nearly 1.2 million acres of designated Wilderness, comprising 35% of the Forest.  And the Shoshone National Forest has 1.4 million acres of designated Wilderness comprising 58% of the Forest.  These other Wyoming Forests show that it is perfectly reasonable for the USFS to recommend all remaining roadless areas on the Bighorn for wilderness designation.  In fact, if all 433,400 acres of roadless lands identified in the CCA were recommended and designated as wilderness, the BNF would then have a total of 625,298 acres of wilderness out of the 1,107,671 acres of National Forest System land;  this would still be less wilderness -- both in terms of total acreage and net percent (56%) -- than has already been designated as Wilderness on the Shoshone National Forest.  The failure to develop even one alternative that would recommend more than 125,569 acres of wilderness on the Bighorn suggests the USFS is biased against wilderness.

Perhaps the BNF Planning Team believes recommending new wilderness on the Bighorn is contrary to public wishes for this National Forest, so the agency wasn’t obligated to consider such alternatives. The DEIS (page C-7) purports to have assessed “Public support/opposition for wilderness recommendation” through a survey of 1,250 randomly selected residents in four counties around the Bighorn.  The DEIS claims the results of this survey show little interest in designating new wilderness on the BNF. However, that very limited local survey does not reflect the national sentiment for wilderness on this National Forest.  For instance, the USFS received over a million comments on President Clinton’s roadless area rule, with the vast majority of citizens commenting in favor of protecting the roadless areas on National Forests throughout the country, including the Bighorn.  The DEIS fails to mention this key result related to national public support for protecting wildlands.  The Bighorn does not belong to the small number of people who live in the four counties around the Forest.  Yet the DEIS seems to be based on the idea that only local views matter.  In any case, local public views do not trump NEPA.  Numerous citizens and organizations asked the USFS to evaluate and select an alternative that would recommend more than 125,569 acres of new wilderness on this Forest, and the DEIS was required to evaluate such alternatives regardless of how the agency perceives public sentiment over such alternatives.

The BNF Planning Team may also believe the DEIS did not have to evaluate and consider other wilderness alternatives because the Team members feel it is not politically feasible to get more than 125,569 acres of new wilderness designated on the Bighorn.  Political expediency is not a factor the agency may consider in deciding on the range of possible alternatives for an EIS.  For one thing, it is not the USFS’s job to decide what is or is not politically feasible.  Through the NEPA process, it is the USFS’s job to fully evaluate and fairly consider a full spectrum of wilderness alternatives and then recommend adding new wilderness areas on the Bighorn to protect special areas and public resources, for the nation as a whole, and for present and future generations.  Congress is free to adopt or reject the USFS’s recommendations.  For another thing, the USFS has no way of actually knowing what is or is not politically feasible since the full Congress decides on wilderness recommendations. It may be that some western members of Congress would oppose more wilderness on the Bighorn, but this does not and cannot reflect the national desire for more wilderness on this National Forest.  Even if the USFS could somehow interact with all members of Congress to sample the political winds, this would violate separation of powers, and it would not even provide an accurate indication of how all the members might ultimately vote when their constituents weigh in on the subject. Congress approved designating 1.4 million acres on the Shoshone -- comprising 58% of all NFS lands on that Forest -- as Wilderness.  Consequently, the USFS cannot say with certainty that Congress would never elect to designate 433,400 acres of the Bighorn National Forest as wilderness.

In short, there is nothing in any law to suggest the USFS is allowed to exclude otherwise feasible alternatives from evaluation in a DEIS due to local public sentiment, political considerations, or the agency’s apparent bias against wilderness.  NEPA requires that a full spectrum of wilderness options be evaluated in the DEIS, and the USFS failed to comply with this requirement.

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OBLIGATIONS TO CONDUCT AN ACCURATE ROADLESS AREA INVENTORY

The Wyoming Wilderness Act and National Forest Management Act require the USFS to evaluate all NFS lands on the Bighorn to identify areas that may be eligible for wilderness designation.  The Wilderness Act of 1964 states that to qualify for such designation, an area must generally appear to have been affected “primarily” by the forces of nature, with the imprint of human work substantially unnoticeable.

The USFS has determined that wilderness designation is not foreclosed by human structures, radio antennas, dams, water diversions, utility corridors, fences, wide trails, unimproved roads, and past timber harvest.  For example, the Black Elk Wilderness on the Black Hills National Forest -- located roughly 100 miles east of the Bighorn Supervisor’s Office -- contains a CCC building, a wide graveled trail, and other developments.  Likewise, the inventoried Sand Creek Roadless Area on the Black Hills contains roads that were bladed to construct a road prism as well as stands that were historically logged.  Nevertheless, this area was deemed by the USFS to be available for and capable of wilderness designation because the area still generally appears to have been affected primarily by the forces of nature with little evidence of human activity.

These examples underscore the importance of on-the-ground inspections when conducting roadless inventories and evaluations.  For the DEIS, the BNF Planning Team did not conduct on-the-ground inspections of possible roadless areas.  Instead, the Planning Team conducted the roadless inventory and evaluation from an office using computer programs.  See, e.g., the minutes of the BNF Roadless Inventory Meeting, March 5, 2004 (documenting that the roadless area inventory conducted for the Revised Forest Plan “was not based on field observation and evaluation” but was done using Arcview GIS).  The agency must evaluate actual on-the-ground conditions to determine whether areas are roadless and suitable for wilderness designation.  This is evident from FSH 1909.12, 7.21 which requires the USFS to evaluate how roadless lands provide visitors “with the opportunity to gain a wide range of experiential benefits such as a feeling of solitude and serenity, a spirit of adventure and awareness, and a sense of self-reliance.”  And the inventory must “[d]etermine the degree to which an area is natural or appears to be natural and free from disturbance so that the normal interplay between biotic species inhabiting the area continues.”  Id.  These determinations cannot be made based on a computer model.

The failure to assess the actual on-the-ground condition of these areas also violates NEPA.  Specifically, NEPA requires the USFS to analyze and disclose the “affected environment” in sufficient detail for the public and decisionmaker to understand the effects of the alternatives.  40 C.F.R. § 1502.15.  Without accurate information about the actual on-the-ground condition of each roadless area, it is impossible for the public and decisionmaker to understand how the various Revised Forest Plan alternatives would impact these areas.  Perhaps that was the Planning Team’s intention.  Whatever the reason, the roadless area inventory prepared for the DEIS does not satisfy NEPA.

Compounding this major error, the Planning Team also used radically new criteria for inventorying roadless areas.  The following examples are some of the more problematic criteria the Team used for the DEIS roadless inventory:

• The Planning Team disqualified otherwise “roadless” lands based on the existence of “classified” motorized routes that are nothing more than unimproved and unmaintained 2-tracks (i.e., Maintenance Level 1 or 2 routes) unsuitable for travel by a standard passenger-type vehicle.  In most cases, these routes were constructed illegally and would quickly become revegetated and unnoticeable if closed to motorized use.  In certain cases, such routes were used to fragment a large roadless area into separately parcels which the Team then deemed too small for wilderness consideration.  Based on discussions with the Planning Team, it also appears that even single-track routes (e.g., motorcycle trails) were used as the basis for disqualifying otherwise roadless lands from the DEIS roadless inventory.