January 18, 2007

 

                                                       

Salem District BLM

1717 Fabry Road SE

Salem OR 97306

Hand delivered on January 16, 2007

 

Cc:

 


Office of Hearings and Appeals

Interior Board of Land Use Appeals

801 N. Quincy St. Suite 300

Arlington, VA 22203

 

Regional Solicitor

USDI PNW Region

500 NE Multnomah Street #607

Portland OR 97232


Hampton Tree Farms

PO Box 2315

Salem OR 97308

 

Association of O&C Counties

PO Box 2327

Harbor, OR 97415

 

Anita Bilbao, OSO (931)

BLM – Oregon State Office

PO Box 2965

Portland, OR 97208


 

 

RE: NOTICE OF APPEAL AND REQUEST FOR STAY OF THE CLEAR DODGER TIMBER SALE, EA# OR-080-03-03

 

This letter serves a notice of appeal and request for stay from Bark of Cascade Resource Area Field Manager Cindy Enstrom’s July 7, 2006 decision to deny our protest (dated November 15, 2006) of the Clear Dodger Timber Sale. 

 

We received the protest denial letter on December 15, 2006. This notice of appeal is timely because it is delivered to your office on or before January 16, 2007, pursuant to 43 CFR part 4. Appellants may elect to file additional statements of reasons with the IBLA on or before February 14, 2007, pursuant to 43 CFR part 4.  

 

The IBLA may confirm service to the Regional Solicitor, and all other adverse parties requiring service under 43 CFR §4.413 by using the “track and confirm” feature for certified mail on the US Postal Service’s web site, at http://www.usps.com.

 

Project description: The Clear Dodger Timber Sale is located within the Lower Clackamas River and Middle Clackamas River 5th field Watersheds, Cascade Resource Area, Salem BLM District, Clackamas County Oregon. The Clear Dodger timber sale calls for logging 120 acres of late-successional old growth forests, and 23 acres of young plantations. Approximately 1.7 mmbf are proposed for logging. The project is located in T.4 S., R. 4E.,  and T.4S., R.5E., Willamette Meridian.

 

Location: T4S, R4E, sect. 13, 23-25 T5S, R3E, sect. 13 T5S, R4E, sect. 19.

 

Deciding Official Name and Title: Cindy Enstrom, Cascade Field Manager.

 

 

I.  Appellant’s Interest

 

Bark has a specific interest in this sale, and that interest will be adversely affected by this timber sale.

 

Bark has conformed with all necessary BLM and IBLA rules in pursuing its interests and the interest of its members in regard to the Clear Dodger project. Appellants submitted timely comments on the Clear Dodger Environmental Assessment (EA), and timely protested the sale on March 10, 2006. We have previously expressed our interest in this specific sale, and have standing to appeal this decision to the IBLA.

 

Bark is a 501(c)(3) Oregon non-profit corporation with offices in Portland, Oregon, dedicated to the preservation and restoration of biological diversity in the Mount Hood region of northern Oregon. Bark and its members will be irreparably injured by the Clear Dodger project. Many of Bark’s nearly 5,000 members live in the communities surrounding the Cascade Resource Area and use the area extensively for recreation, viewing wildlife and wildflowers, hunting, fishing, overall aesthetic enjoyment, and other purposes.  Specifically, members and/or staff of Bark have used the Clear Dodger Project area for recreational, aesthetic, and scientific pursuits.  For example, I am the Executive Director and a member of Bark. I have visited the forest in and around the Clear Dodger project area on several occasions and have definite plans to return to the area. I am an amateur mushroom hunter and have found a variety of mushrooms in the Clear Dodger project area that I have not found elsewhere.  Among other aesthetic values found in a mature forest, it contains conditions for growing mushrooms found nowhere else in the world.  The value of the activities engaged in by Bark members and staff, such as myself, will be irreparably damaged by this project. The BLM proposes to log within mature and late-successional forests in an ecosystem where Bark's members, including myself, regularly derive substantial recreational and aesthetic benefits from hiking and wildlife observation. The values that Bark's members, including myself, appreciate and enjoy in this forest will be harmed by the logging that will occur there. It is far more pleasurable to me and Bark's other members to hike in a mature or late-successional forest that has not been logged or has recovered from past logging because it contains many of its natural characteristics and aesthetic beauty. The law is well-established that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity.  Friends of the Earth v. Laidlaw, Envirronmental Services, Inc., 528 U.S. 167, at 183; 120 S. Ct. 693 (2000), citing, Sierra Club v. Morton, 405 U.S. 727, 735, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). See also Defenders of Wildlife, 504 U.S. at 562-563.

 

Bark also has an organizational interest in providing its members and the general public with information which the National Environmental Policy Act (NEPA) requires the BLM to compile and disclose in its environmental documents.  Members and staff of Bark have a right to know the environmental costs and tradeoffs involved in site-specific resource management decisions such as the one to log timber from the Clear Dodger planning area. Bark has a long-standing interest in the sound management of this area, and the right to request agency compliance with applicable environmental laws. These interests are adversely impacted by the BLM’s failure to comply with NEPA in this case.

 

The harm to appellants’ interests is therefore an “injury in fact,” and satisfies IBLA standards for review.  Appellants have a long-standing interest in the management of public forestlands in the Salem District, and the right to ensure the BLM complies with resource management plans and federal policies.  Appellants have provided information (see above) necessary for the IBLA to conclude that we in fact have standing to appeal this project and would be harmed by the project’s implementation. 

 

II.  Request for Stay

 

Appellants request a stay of any sale preparation, layout, contract award, road renovation, landing construction or reconstruction, logging, or any other site preparations in Units 3, 4, 5, 6, 7, 9 of the Clear Dodger Timber Sale by the purchaser or the BLM, pending a final decision on this appeal by the IBLA, pursuant to 43 CFR 4.21(a) and (b). 

 

A. Relative harms to the parties if the stay were granted or denied. 

 

Denial of the requested stay will have real and immediate environmental impacts, yet no cost will be borne by the government or the high bidder if the stay is granted. 

 

Appellants will be harmed by implementation of the Clear Dodger timber sale.  Certain conditions desired by appellants, described above, exist in those forest stands now.  Commercial logging would alter the late-successional forests. The losses of effective soil cover, soil porosity, canopy closure, multiple canopy layers, large woody habitat (snags and down logs), mistletoe brooms, and other features that contribute to the forests’ structural complexity would be irreversible because recovery would take decades or centuries.  Logging would destroy soils, open the forest canopy, dry out the forest floor, create flammable slash, and degrade many of the non-commodity values that appellants want to maintain. Logging operations also would accelerate run-off and deliver sediment to tributary streams in the Lower and Middle Clackamas watersheds outside of their natural timing and intensity. Proposed logging will also occur in suitable habitat for the threatened Northern Spotted Owl and in the habitat of “survey and manage” plants and animals.

 

In contrast, no harm would be borne by the government if the stay were granted. The timber purchaser was fairly notified at the time of auction that delays resulting from appeals and/or litigation could affect this timber sale.  A federal court may enjoin the BLM from implementing the illegal Clear Dodger timber sale based on substantive violations of federal environmental laws, described in the merits below.  A stay would shield the BLM and the public from illegal harm to irreplaceable late-successional forest ecosystems.

 

Any monetary costs to the government resulting from a stay can be recovered within a short period of time.  Moreover, monetary costs to the government are outweighed by the harm to appellants’ interests in the environment if the stay were denied.  The U.S. Supreme Court found: "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."  Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 1404 (1987).  Any harm to the government would be economic, yet "economic loss cannot be considered compelling if it is to be gained in contravention of federal law."   Wilderness Society v. Tyrrel, 701 F. Supp. 1473, 1491 (E.D. Cal. 1988), rev’d on other grounds, 918 F.2d 813 (9th Cir. 1990).

 

A political promise by the government to expedite timber sales does not outweigh environmental injury in this case.  Such thinking leads to pre-determined outcomes and prejudices the NEPA process, which is illegal.  Inland Empire Public Lands Council v. USFS, 88 F.3d 754, 758 (9th Cir. 1996). 

 

There will be no harm to the timber buyer if the stay were granted. Hampton Tree Farms

was informed of the existence of an administrative protest regarding this timber sale at the time of the auction.  Additionally, Hampton Tree Farms has significant private timber holdings and is a regular purchaser of federal, state and county timber throughout the region. It is highly unlikely that its short-term operation hinges on this request for stay.

 

There will be no harm to local counties if the stay were granted.  P.L. 106-393 mandates annual payments from the U.S. Treasury to the O&C counties comparable to the peak timber payments of the late 1980’s, even if not one stick of timber is sold from the federal lands.  

 

Local communities will not be harmed if the stay is denied.  Clear Dodger would cause real damage to forests, soils, water quality, and wildlife.  Environmental degradation harms the ability of local communities to attract new residents and businesses, and harms economic diversification, which is critical to the long-term success of rural communities of the western United States (Power 1996, Neimi and Whitelaw 1997). 

 

B.  Likelihood of success on the merits.      

 

1.         Cumulative Effects were overlooked in several ways

 

                        a.         Past projects require consideration

 

BLM’s cumulative effects analysis attempts to circumvent the very meaning of the cumulative effects legal requirements under NEPA, resulting in gross oversight in management planning. NEPA requires that the BLM analyze the cumulative impacts, “which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future projects” either federal, local or private. 40 C.F.R. § 1508.7. The heart of Bark’s cumulative effects protests were BLM’s failure to include the U.S. Forest Service’s “Guard,” “Unguard,” and “Clear” sales, and the “Artful Dodger” BLM sale, which have all been logged within the last 5 years.   All are in the Lower and Middle Clack 5th Field watersheds.  In addition, the BLM failed to analyze the cumulative impacts of this sale when added to significant logging of private lands within the same fifth field watersheds. Units 4, 5, 6, 7, and 9 are in the Lower Clackamas 5th Field Watershed and according to the 2002 Clear and Foster Creek Watershed Assessment only 12% of that watershed is in federal ownership.  Very little mature forest remains on the private lands which comprise a vast majority of the watershed, and the BLM must consider the cumulative impacts of private lands logging with the Clear Dodger timber sale, which it has failed to do.  Instead of considering the effects of repeated management prescriptions as required, the Decision Maker dismisses past actions with reference to CEQ guidelines issued on June 24, 2005, in which CEQ points out that “environmental analysis required under NEPA is forward-looking.” BLM’s Response to Protest, p. 4. The Decision Maker also suggests that review of past actions is required “to the extent that this review informs agency decision making regarding the proposed action.” Case law regarding this issue consistently and unequivocally shows that recent past harvests must always “inform [sic] agency decision making regarding proposed actions.” Id.

 

This better reading of NEPA was offered by the Ninth Circuit in Lands Council v. Powell, 379 F.3d 738 (2004), which states: “Cumulative effects analysis requires the Final Environmental Impact Statement to analyze the impact of a proposed project in light of that project’s interaction with the effects of past, current, and reasonably foreseeable future projects. See also, 40 C.F.R. § 1508.7. Later, the Court also says that, “the general rule under NEPA is that, in assessing cumulative effects, the Environmental Impact Statement must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” The Court in Lands Council found authority in these conclusions from Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1379-80 (9th Cir. 1998); and, City of Carmel-By-The-Sea v. United States Dept. of Transp., 123 F.3d 1142, 1160-61 (9th Cir. 1997). Although Lands Council addresses this in the context of an EIS, 40 C.F.R. § 1508.7 applies equally in the context of an EA, as do BLM’s cited CEQ guidelines, and the Lands Council rule should be followed. Oregon Natural Resource Council v. BLM, 470 F.3d 818 (9th Cir. 2006). BLM must consider the effects of past harvests in its cumulative effects analysis.

 

            b.         Enabling Destructive Behavior

 

The Clear Dodger sale will have a cumulative effect with logging on adjacent and nearby public and private lands in enabling destructive behavior on these forest lands. As the road network through the Clear Dodger area expands with each successive sale, more entry points are created to allow for increased human activity. This often takes the form of increased destructive behavior, as well as increased shooting and other fire-risk activities. Dumping and illegal garbage disposal is ubiquitous in the Clear Dodger project area, especially at road intersections and turnouts.  Even when the BLM has successfully closed newly created system and temporary roads, the turnouts created by these roads provide new opportunity for illegal dumping. Illegal dumping is a major problem in this area and entire programs (DumpStoppers for example) have been dedicated to stopping this activity. BLM does nothing in the EA to address how it will manage the increased human presence.

 

One particularly damaging human behavior is Off-Road Vehicle (ORV) use. The thinned timber stands provide greater ORV access in combination with the increased road network bringing these vehicles farther in to previously inaccessible areas. Bark hereby incorporates by reference, Quantifying Threats to Imperiled Species in the United States. David S. Wilcove; David Rothstein; Jason Dubow; Ali Phillips; Elizabeth Losos, BioScience, Vol. 48, No. 8. (Aug., 1998), pp. 607-615.  This article quantifies threats to endangered species.  Looking at U.S. “species, subspecies and populations that have been added to the federal endangered species list or have been formally proposed for such listing by the USFWS as of 1 January 1996,” (609) the authors found that outdoor recreation harms 27% of endangered species (610).  “Within the category of outdoor recreation, the use of off-road vehicles is implicated in the demise of approximately 13% of endangered species” (610). Increased ORV use in the Clear Dodger project area is likely to have detrimental effects on survey and manage species, and other sensitive or listed species. Yet, the BLM fails entirely to address the increased use of these lands by ORV users and others subsequent to the timber sale.

 

                        c.         Fire

 

The EA does not adequately address cumulative effects relating to fire. Cumulative effects analysis is particularly crucial in assessing fire risk, because fire spreads, and thus surrounding areas have a high risk of affecting the project area.  Significant reductions in canopy cover as authorized in this timber sale will result in drier conditions, and logging will increase the levels of slash. The heavily logged private lands in the area are already at relatively high risk of fire.  Acres of thin, tightly-packed, even-aged trees with a tangle of fine fuels on and near ground level, along with an abundance of roads are a hazardous combination.  Logging these cooler, wetter, native forests is unwise and irresponsible given the above combination of factors. None of these factors are addressed in the EA.

 

Additionally, Bark is distressed to see that BLM has not taken responsibility to consider the effects of global warming on fire. Climate change, which is already increasing the summer drought conditions across the region, is only expected to continue and get more severe, increasing the fire risk further.

 

            d.         Water

 

The Water Available for Runoff (WAR) cumulative impacts analysis does not adequately address the cumulative impacts on the area. WAR only looks at peak flows and is based on a technique developed nearly 25 years ago and recently adapted for application in a different state.  The WAR analysis for Clear Dodger does look at a variety of temporal scales but uses only one spatial scale and does not even define the area for which the analysis was completed.  But even with this flawed analysis, the WAR analysis found that the “threshold value for considering the effects of increased bed mobility and bed scour” has already been exceeded given the current conditions.  BLM has an obligation to maintain and enhance this environment, and at a minimum not sanction activities that degrade it further.

 

In addition, the Clackamas River Corridor portion of the Lower Clackamas River Tributary 6th field watershed has been designated as a Key Watershed. (RMP 6). The EA says, “areas under consideration for this project are not within or tributary to the Clackamas River.”  (EA 9). Yet the units 1, 2, and 8 are all adjacent to tributaries that feed directly into the Clackamas. The Decision Maker replied by stating that these areas are upstream and thus not part of the required planning area. Even if this were true, it still is information that should be considered as a cumulative impact.

 

In addition, on page 39 of the EA the BLM states, "The increase in peak flow over current conditions resulting from a two-year event (unusual storm conditions) was 46.8% for the No Action Alternative and 47.2% for the
Proposed Action."  A two-year storm is not an 'unusual storm event' since the annual probability of occurrence is 50% (1/2).  All municipalities, state agencies, and U.S. Corps of Engineers design their facilities for 20-
to 100-year storms due to the high rainfall intensity of these storms.  To provide a worst case scenario, the WAR analysis should have provided at least a 20-year storm as its 'unusual storm event.'  The EA mentions it
could be a decade before this project is completed.  A 10-year storm is very likely occur within that period.  A 100-year storm could also occur the year the timber sale is logged even though there is an 1% annual
probability for this type of storm (1/100).  Therefore, the BLM needs to analyze an actual 'unusual storm event' instead of a common one.

 

 

            2.         The Clear Dodger Timber Sale will result in insufficient late-successional and old growth (LSOG) retention

FLPMA requires the BLM to “manage the public lands . . . in accordance with land use plans.” 43 U.S.C. § 1732(a). FLPMA’s implementing regulations echo this mandatory language, declaring that “[a]ll future resource management authorizations and actions . . . shall conform to the approved plan.”  43 C.F.R. § 1610.5-3(a). The Salem District Resource Management Plan (“RMP”), as amended by the Northwest Forest Plan, is the land use plan for all projects implemented in the BLM's Salem District.  If a site-specific project does not conform to the RMP, it violates FLPMA, and cannot go forward as planned.  The Clear Dodger Project does not comply with the requirements of the RMP to retain 15% late-successional forest within each fifth field watershed.

 

The EA’s failure to adequately demonstrate that 15% late successional retention will be maintained is a clear violation of the NWFP and NEPA. The NWFP and Salem RMP require BLM to “Retain late-successional forest patches in landscape areas where little late-successional forest persists. This management action/direction will be applied in fifth field watersheds (20 to 200 square miles) in which federal forest lands are currently comprised of 15 percent or less late-successional forest. (The assessment of 15 percent will include all federal land allocations in a watershed.) Within such an area, protect all remaining late-successional forest stands.” NWFP, C-44. The Clear Dodger project will log 120 acres of late-successional forests. Reissue EA at 30. The Clear Dodger Reissue EA does not disclose the percentage of late-successional forests remaining in the affected watersheds, but rather merely asserts that such forest exists on greater than 15% of the acres in the watershed. Re-issue EA at 30. The original 2003 EA for the Clear Dodger timber sale disclosed that the Lower Clackamas watershed contained only 15% late-successional forests in March 2003 when it was written. Original EA at 14. This sale would log approximately 83 acres of late-successional forest within the Lower Clackamas watershed. Re-issue EA at 10, 29 (Table 10). Yet, the BLM fails to explain why such logging does not violate the NWFP. The BLM must disclose its substantive duties and demonstrate compliance with those standards. See Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2004); Or. Natural Resources Council Action v. U.S. Forest Serv., 293 F.Supp. 1200, 1209 (D. Or. 2003). The failure to do so here violates NEPA and FLPMA.

 

The BLM asserts that the stands identified as late-successional forest “would remain late successional stands after thinning because the age class of these stands would not change as a result of the proposed thinning.” Re-issue EA at 30. However, the EA also discloses that logging will downgrade 120 acres of suitable spotted owl habitat (generally consisting of late-successional forests, including the 83 acres of late-successional forest slated for logging in the Lower Clackamas Watershed. EA at 48. The NWFP standard requiring retention of 15% late-successional forests within a fifth field watershed is meant to maintain suitable habitat for species dependent on these forests. The assertion that the BLM will downgrade suitable habitat for late-successional forest dependent speices like the spotted owl, yet have no impact on the late-successional forest is entirely contradictory and conflicts with the NWFP.

 

3.         Snags and Coarse Woody Debris planning is insufficient

 

The Clear Dodger planning documents fail to adequately address snags in the project area, and fail to demonstrate compliance with standards for snags and woody debris habitat structures as required by the Salem Resource Management Plan (RMP) and the Northwest Forest Plan (NWFP). The Salem RMP requires the BLM to, “Retain snags within a timber harvest unit at levels sufficient to support species of cavity-nesting birds at 40 percent of potential population levels. Meet the 40 percent minimum throughout the Matrix with per acre requirements met on average areas no larger than 40 acres,” Salem RMP, p. 20-22; and also, “Retain coarse woody debris already on the ground and protect it to the greatest extent possible from disturbance during treatment (e.g., slash burning and yarding) which might otherwise destroy the integrity of the substrate.” Id. These requirements are parallel requirements from the NWFP. NWFP, at C-40.

 

The BLM has failed to analyze whether sufficient snags will remain post-harvest to meet the substantive requirements of the forest plans. Snag and Coarse Woody Debris (CWD) development was intended to proceed under the unapproved Project 2 of Clear Dodger. Project 1, which is the only project at issue, shows no explanation of how the 40% biological potential minimum will be met. The EA is clear that there are less snags than is desirable when it says, “there is likely to be a deficit of large snags in stands throughout the project area.” Re-issue EA at 46. How much of a deficit, and whether 40% biological potential will be met, is not considered. Also, “adequate numbers…of large roosting and foraging snags” for Pileated Woodpeckers “are not present now.” Id. Vaux’s Swift may expect that “some suitable nesting and roosting habitat may be present.” Id (emphasis added). The EA fails to disclose  the substantive requirements of the forest plan, and the text quoted above suggests that those requirements will not be met. As such, Bark’s likelihood of success in on the issue of snags is high, and IBLA should grant a stay while it hears the appeal.

 

The EA fails to disclose the size and length of CWD currently in the project area and how many logs per acre exist as CWD or will exist post-harvest. “Size, species, and number of logs per acre are fundamental descriptors of the suitability of log resources for wildlife.” Bull, Evelyn L. et al., “Trees and Logs Important to Wildlife in the Interior Columbia River Basin,” Companion to General Technical Report PNW-GTR-390.USDA 1997 at 40 (emphasis added). “For down logs, the minimum information needed for wildlife purposes are large-end diameters of logs, lengths, and number per acre.” Id. at 43. The EA contains none of this important information. Instead, the BLM merely states that “[t]opping two green trees per acre could contribute material that ultimately could provide CWD that meets RMP Management direction in the Matrix LUA (RMP, p. 21). Re-issue EA at 50. Such vague disclosures do not amount to a sufficient analysis of impacts of this timber sale on CWD and the species that depend on this habitat.

 

The BLM also has a duty to protect existing snags, but the EA does not explain how this is to be done. Bark members’ visits to the area revealed snags only a few feet from trees to be felled (see pictures contained in Bark’s March, 2006, Protest of Decision), but the EA provides only the cryptic conclusion that, “it is possible that snags of this size class may be cut for safety reasons, or fall incidental to thinning operations.” EA at 49. The EA’s analysis here serves only to eschew the issue of snag retention, and Bark stands a substantial likelihood of succeeding on this issue as well.

 

The EA does assert that “most if not all” of the snags 20 inches and greater will be retained in this project. Re-issue EA at 49. “Some” snags smaller than 20” will likely be cut or fall due to logging operations. Id. at 50. The BLM states that while some species use this size of snag, none depend on it.  However, large snags are clearly deficient based on the BLM’s effort to use artificial means to create large snags.  Therefore, the distinction seems arbitrary especially given that the EA discloses that some snag-associated species (i.e. Red breasted sapsucker and Brown creeper) utilize snags down to 14 or 16 inches dbh respectively. Further, “Bull and Holthausen (1993) found that in 38 percent of their observations of foraging pileated woodpeckers, the birds used Douglas-fir and western larch logs in mixed conifer stands.  Moreover, these birds favored logs that were 15 inches or greater in large-end diameter and in advanced stages of decomposition.” Bull, Evelyn L, et al. at 38 (emphasis added). Moreover, many species use snags more frequently if they are surrounded by live green trees. “Retaining snags in clusters, as well as the live trees between the snags, keeps workers away from snags and provides canopy cover for wildlife using the snags.” Id. at 28. Retaining live tree clumps is not difficult to do.  In the recent South Fork Timber Sale on Mt. Hood National Forest just east of Clear Dodger Timber Sale, the Forest Service included a provision to mark as leave trees all live trees with crowns touching snags.

 

Providing sufficient snag habitat for Pileated woodpeckers may be especially important because this species has come to be considered a “keystone habitat modifier in the Pacific Northwest.” Aubry, Keith B and Catherine M. Raley,  “The Pileated Woodpecker as a Keystone Habitat Modifier in the Pacific Northwest, ”USDA Forest Service Gen. Tech. Rep. PSW-GTR-181. 2002 at 261.  The Pileated “is the largest woodpecker in this region and the only species that forages primarily by excavating; only pileateds are capable of creating large cavities in hard snags and decadent live trees.” Id. “Over 20 species of secondary cavity users occurring in the Pacific Northwest have been documented nesting or roosting in old cavities or openings excavated by pileated woodpeckers.”  Id. at 259.  These species include Northern saw-whet owl, Vaux’s swift, Northern flying squirrel (primary prey species for Northern Spotted owl), and American marten. Id.

 

The BLM appears to rely on the artificial creation of snags to meet the needs of snag-dependent species. Artificially created snags, especially those created by girdling and topping, only get used by a small percentage of species. A 1997-98 study of 1,267 snags (96 percent artificially created) found little use by pileated woodpeckers, a key cavity-excavator. Pat Boleyn, et al. “Created Snag Monitoring on the Willamette National Forest.” USDA Forest Service Gen. Tech. Rep. PSW-GTR-181. 2002. Only 1.5 percent of the snags studied had new foraging excavations by pileated woodpeckers and sapsucker use was present on only 1.5 percent of the snags.” Id. at 771. New nesting and roosting cavities were present on only 1.2 percent of the snags studied. Id. Artificial snags also have a strong tendency to fall over and are an inefficient use of resources, particularly where snags currently exist for use by snag-associated species (but are likely to be felled for safety reasons or knocked over due to lack of buffers). “In managed stands, retaining existing snags is the most ecologically sound and economical approach to providing wildlife trees.” Bull et al. at 31. “Depending on the method used, killing trees can be costly and may not produce the desired decay conditions.  Years may pass before the decay is sufficiently advanced to promote cavity-nester excavations.”  Id.

 

The Clear Dodger EA is insufficient because it fails to analyze whether the BLM will meet its substantive duty to provide snags to meet a minimum 40% biological potential averaged across 40 acres. Given that the EA admits snag levels are deficient in the stands currently, and that existing snags may be felled for safety reasons or fall as a result of logging adjacent trees, Bark believes the BLM is not meeting the requirements of the NWFP with regards to snags. The failure to disclose the BLM's substantive duties and demonstrate compliance with those duties violates FLPMA and NEPA.

 

4.         The EA failed to analyze significant new information regarding blowdown

 

Bark’s November 15 comments on the Reissue EA addresses concerns over the potential increase in blowdown, or windthrow, that may occur due to the proposed action.  The BLM did not address this concern in the Reissue EA nor in the Decision Rationale, despite repeating Bark’s concern regarding this issue. Decision Rationale #6, p 20. Due to fact that blowdown is a serious concern and the risk of blowdown will be increased due to the proposed action, Bark requests the BLM prepare supplemental NEPA to analyze these impacts.

 

NEPA requires an agency to prepare a supplemental NEPA document if there “are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). When new information is discovered, “the agency must consider it, evaluate it and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures.” Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir. 1980).

 

On a February 12, 2006, field trip to Clear Dodger, Bark members counted eight trees marked for harvest blown down in Unit 7.  On a March 6, 2006, field trip to Clear Dodger, Bark staff noted a stand of trees in Unit 4 in which 5 non-harvest trees had recently blown down.  The trees were of varying DBH from 6” to 18.”  This blowdown was documented in photographs included in Bark’s March, 2006 Protest of the Decision.

 

The above particulars are indicative of a general failure by BLM to participate in their required public process throughout planning this action. BLM is required to consider public input, as it may learn it is required to act upon this new information under the Management Plans and other law. Bark has made a showing of BLM’s failure to consider this information. Given the injury if logging commences, a stay should be offered for Bark to show the IBLA that this information is “significant.”

 

Bark does not seek to replace the judgment of BLM in managing public lands, nor does it necessitate a move by the IBLA to do the same. The public comment period is an opportunity to provide the agency with information it might have overlooked or failed to consider. The agency does have a responsibility to consider, and if necessary, act upon this information. Bark has demonstrated the agency's failure to do this, and requests a stay to prevent irreparable injury to Bark’s members' interests.

 

5.         Failure to adequately analyze noxious weeds

 

The Clear Dodger EA makes fatal assumptions regarding species succession and regrowth of ecosystems when it fails to address the impact of noxious weeds. In fact the proposed action clearly states that the wider spacing of residual trees would result in increased growth of understory trees and shrubs, which would provide a richer more diverse habitat for wildlife. RE-issue EA at 30. No evidence is provided that this will indeed become a richer habitat given the stated concern about competition from brush species. The EA suggests only that canopy closure will fight this in 20 years, without explanation of how or why. Id. at 31. In the Lower Clackamas Watershed Analysis (WA), noxious weeds are listed as a major problem, stating that “[t]he introduction of nonnative plant species, especially noxious weeds, is a potential threat to native biological diversity. Noxious weed invasions can reduce biodiversity through the displacement of plant species necessary for wildlife habitat and can also adversely effect reforestation, visual quality, and recreational activities.”

 

A variety of noxious weeds are found throughout the watershed in areas associated with roads, timber harvest activities and recreational use. Nonnative seed can be carried to areas of ground disturbance through vehicle use, logging equipment, and contaminated erosion control and forage seed mixes, as well as by wind and biological vectors.” Lower Clackamas WA at 2-10. The EA states that logging equipment will be washed, but just a few seeds can cause an invasion, particularly where noxious weeds are already a big problem. Re-issue EA at 19. BLM provides no information on the effectiveness of its noxious weed washing program, and does not provide information sufficient for a finding that noxious weeds will not undermine its management requirements. The planning in this project for noxious weeds is no better than that held insufficient in Klamath Siskiyou Wildlands Center v. Symons, in which Magistrate Judge Cooney held an EA with “only one paragraph that discusses noxious weeds, and only one sentence stating that equipment will be washed to help prevent the spread of weeds…is insufficient to show that the BLM took a "hard look" at the effects or cumulative effects…on the spread of noxious weeds. Klamath Siskiyou Wildlands Center v. Symons, Civ. No. 03-3120-CO, Findings and Recommendations at 80, adopted by Klamath Siskiyou Wildlands Center v. Bureau of Land Management, 2006 U.S. Dist. LEXIS 9612 (D. Or. Feb. 21, 2006), rev'd on other grounds, Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549 (9th Cir. 2006).

 

6.         Insufficient analysis on the impact of roads

 

Although BLM made an excellent management decision in reducing road construction in the Reissued EA, it did not fully address the impacts of road reconstruction. Bark’s site inspections have revealed a closed road leading to Unit 4. This road will be reopened and was not addressed at all in the EA. Bark hereby incorporates a photograph taken by its members to be introduced on appeal that shows the sedimentation that can occur when roads cross streams.  This road crosses an intermittent stream and on December 10, 2006, Bark members found that the stream bypassed the culvert by “blowing out” a new channel through the road.  The channel was observed as a tunnel more than 3ft in diameter and through the endtire width of the road. An unknown sediment load was distributed in this event. The reconstruction of this road (and culvert) needs to be considered under a supplemental EA.

 

In another failure to respond professionally to Bark’s comments, a laundry list of scientific studies, known to BLM, and offered again by Bark to BLM regarding road construction were systematically ignored. The studies cited were:

 

1.      Robert Coats, et al., Assessing Cumulative Effects of silvicultural Activities, (1979) (significant increases in peak flow post-harvest)

2.      Robert Harr, et al., Changes in Storm Hydrographs after Road Building and Clear-Cutting in the Oregon Coast Range, 11 Water Resour. Res. 436-44 (1975) (same; timber harvest leads to soil compactions and increased floods)

3.      Robert Harr, et al., Pacific Northwest Research Station, U.S. Dep’t of Agriculture, Changes in Stream-Flow Following Timber Harvest in Southwestern Oregon, PNW-249 (1979)

4.      Robert Harr, et al., Pacific Northwest Research Station, U.S. Dep’t of Agriculture, Effects of Timber Harvest on Rain-on-Snow Runoff in the Transient Snow Zone of the Washington Cascades, PNW 88-593 (1989)

5.      J. Jones & G. Grant, Peak Flow Responses to Clear-Cutting and Roads in Small and Large Basins, Western Cascades, Oregon, 32 Water Resour. Res. 959-74 (1996)

6.      K. Lyons & L. Beschta, Land Use, Floods, and Channel Changes: Upper Middle Fork Willamette River, Oregon (1936-1980), 19 Water Resour. Res. 463-71 (1983)

7.      M. Reid & T. Dunne, Sediment Production from Forest Road Surfaces, 20 Water Resour. Res. 1753-61 (1984)

 

The Final Decision and the Response to Bark’s Protest did not address the validity of this science in any way. Failure to include a proper scientific basis to its decision making is a violation of BLM’s duty to ensure the professional integrity, including the scientific integrity, of its NEPA documents. See 40 C.F.R. § 1502.24.

 

7.         Wildlife threats were not adequately analyzed

 

The Clear Dodger EA does not adequately account for sensitive species and other wildlife requirements. The RMP at p. 28 requires BLM to "Manage for the conservation of federal candidate and bureau sensitive species and their habitats so as not to contribute to the need to list and to recover the species."  Bark provided timely comments on the failure to meet this requirement. In response to comments on, p. 24, the Decision Maker cites a different policy that does not require BLM to survey for these species. As a result, BLM has yet to properly account for their conformity with this rule, and the EA is thereby insufficient.

 

The Oregon slender salamander receives no consideration under the EA. On p. 45 of the EA, BLM mentions that Oregon slender salamander is expected, but provides no management recommendations.  Recent science shows the critical condition of this species, saying that "protection of habitat will likely prove critical for the long-term persistence of this species." Conservation Genetics, Volume 6, Number 2, March, 2005, p. 257. BLM’s failure to manage for the slender salamander is a violation of its species protection duties, and the EA should not proceed under such potentially dangerous prescriptions.

 

C. Immediate and irreparable harm will result if the stay is not granted.

 

A stay is needed because implementation of the timber sale is likely to occur before the IBLA can rule on the merits of the appeal.  The Clear Dodger timber was sold in July 2002, and a contract exists to implement this illegal timber sale.

 

Once trees are cut, they cannot be put back.  When soils are compacted by bulldozers or eroded from skid roads, logging units, and slash piles, they take decades or centuries to recover.  Altered stream flow regimes resulting from canopy removal and soil compaction would increase stream channel erosion.  The loss of late-successional forest habitat structure would last for the duration of appellants’ lifetimes.  The harm to appellants’ interests in the environment therefore would be irreparable.

 

D.  Public interest favors a stay.

 

Holding the BLM accountable to relevant plans and policies “invokes a public interest of the highest order: the interest in having government officials act in accordance with the law.”  Seattle Audubon Society v. Evans, 771 F. Supp. 1081 (W.D. Wash. 1991), aff’d, 952 F.2d 297 (9th Cir. 1991).  The merits of this appeal demonstrate that the BLM acted in bad faith and out of compliance with its RMP, the NWF, FLPMA, and NEPA.  

 

The requested stay will maintain the status quo and protect the public interest in having government officials obey the law.  It will also shield the government from liability should the IBLA remand the decision to offer this timber back to the BLM.

 

E.  Conclusion

 

The EAs and the DR/FONSI never addressed key direct, indirect, or cumulative impacts of Clear Dodger on the environment.  The timber sale violates the Salem RMP, the NWFP, NEPA and FLPMA.  The reasons for denying appellants’ protest are grounded in bias, arbitrary reasoning and errors of fact.  The deciding official either ignored or defined away facts raised in the protest.

 

The harm to appellants’ interests in maintaining the environmental values that now exist in the Clear Dodger timber sale area would be immediate and irreparable if the stay were denied.  Moreover, the harm to the government and other interested parties either would be negligible or recoverable within a short period of time.  The public interest favors granting the requested stay.