P.O. Box 12065
Portland, OR 97212
Butte Creek Timber Sale Environmental Assessment (EA# OR080-04-09)
US Department of the Interior and Rudy Hefter, Field Manager
Office of the Secretary Cascades Resource Area Manager
Office of Hearings and Appeals Bureau of Land Management
Board of Land Appeals Salem District Office
4015 Wilson Blvd. 1717 Fabry Rd. S.E.
Arlington, Virginia 22203 Salem, OR 97306
Regional Solicitor, PNR
Portland, OR 97212
1840 – 5409 (084.0)
Butte Creek, Timber Sale
This letter serves as a notice of appeal, request for stay, statement of reasons, and request for relief from Bark of the Cascades Resource Field Manager Rudy Hefter’s January 19, 2006 decision to deny our protest of the Butte Creek Timber Sale.
Pursuant to 43 CFR Part 4, Bark has the right to appeal the denial of our protest of the Butte Creek Timber Sale. This notice of appeal is timely because it is delivered to your office on or before February 17, 2006.
Description of sale:
Butte Creek Timber Sale
EA # OR080-TS2001-501
Butte Creek, Pudding, and Molalla watersheds
Cascades Resource Area, Salem District BLM
Legal Description: Sections 19, 25, 27, 29 and 35; T6S, R2E, and Sections 1 and 25; T7S, R2E, W.M. Clackamas County
EA and FONSI signed December 1, 2004
Final Decision Documentation and Decision Rationale signed November 2, 2005
Deciding officer: Rudy Hefter, Cascades Resource Area Acting Field Manager
I. Appellants’ Interests
Bark has a specific interest in this sale, and that interest will be adversely affected by this timber sale. We have previously expressed our interest in this specific sale, and have standing to appeal this decision according to 36 CFR § 215.11 (a)(2). Bark is a 501(c)(3) Oregon non-profit organization based in Portland and has worked to protect the Mt. Hood National Forest since 1999. Many of more than Bark’s 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 Butte Project area for recreational, aesthetic, and scientific pursuits. The value of the activities engaged in by Bark members and staff will be irreparably damaged by this project. We have a long-standing interest in the sound management of this area, and the right to request agency compliance with applicable environmental laws.
II. Request for Stay
Bark formally requests a stay of implementation of portions of this project in units 2. This includes sale preparation, layout, road planning, logging, road construction, or any site preparation of sale unit 2, also known as B, as well as any advertising, offering for bids, or auctioning of the project that includes this unit.
This stay is essential to prevent unnecessary expenditure of taxpayers’ money, an irretrievable commitment of agency resources, and irreversible environmental damage. Without a stay, the federal government may waste taxpayer money preparing a sale that may later be cancelled. Because we might pursue a legal challenge to this sale with or without this stay, offering this timber sale may unnecessarily expose the government to liability and the purchaser to financial losses. Appellants petition the Board of Land Appeals (the Board) for a stay of the decision pending appeal, pursuant to 43 C.F.R. 4.21(a), (b) for the reasons described below.
A stay is necessary because award and full implementation of the sale will occur before the appeal is decided upon (an average of two years). This will cause immediate and irreparable harm to the forests, soils and wildlife of the watersheds if the stay is not granted. The project is likely to be partially or completely implemented before the Board ruling. Once the trees are cut, they cannot be put back.
As discussed above, denying the stay will have real environmental impacts, whereas no harm would be incurred by the government if a stay is granted. The government can simply award the project at a later time. The purchasers of these sales currently have numerous government timber sales under contract, as well as a plentiful supply of private timber available, and they will not be harmed by a delay in the award.
The courts have found that “[e]nvironmental 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).
When environmental injury is “sufficiently likely, the balance of harms
will usually favor the issuance of an injunction to protect the
environment.” Id. In contrast, any harm to the government would
be economic and “the Government’s 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) (citing Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1157
(9th Cir. 1988)). The only possible
injury to BLM is monetary -- an injury which is not “irreparable” in the
equitable sense. Sampson v.
The likelihood of success of this appeal on the merits is demonstrated in the comments and information we have submitted to the BLM, and by the reasons outlined in our Statement of Reasons below.
Any decision to proceed with the sale would decision violate BLM’s duty under FLPMA to “take any action necessary to prevent unnecessary and undue degradation of the [public] lands.” 43 U.S.C. 1732(b). “Failure to comply with applicable environmental protection statutes and regulations thereunder will constitute unnecessary or undue degradation.” 43 C.F.R. 3809.0-5(k)(4). The appeal merits are as follows:
Public interest clearly favors granting the stay. Refusal of administrative agencies to comply with environmental laws “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, 1096 (W.D. Wash. 1991), aff’d, 952 F.2d 297 (9th Cir. 1991). Local citizens oppose this project and deserve to have the issues reviewed by the Board.
A stay will be in the public interest, because it will protect the status quo of the environment on, near, and downstream of the project area, and will protect the interests of appellants and local citizens until the Board can make a decision on the merits.
III. Requested Relief
1. Withdraw the Decision Notice and issue a new decision that excludes Unit 2.
2. Modify the sale to meet the objections presented in Appellants' Statement of Reasons and consistent with the National Environmental Policy Act (NEPA), Federal Land Policy and Management Act (FLPMA), these statutes' implementing regulations, and the Northwest Forest Plan (NFP).
IV. Statement of Reasons
Bark feels that Unit 2 offers features that are not present in the other units included in this proposal. We feel that this area should not be included in this project because of the remnant old growth trees in the area and the higher number of large snags and downed logs within this unit. This seems especially relevant in light of the condition of the surrounding lands. For example, Unit 2 has cleared fields on the west and east side and to the south the land was recently logged. We are also very concerned about the undetermined and undisclosed placement of roads in unit 2.
a. Purpose and Need Is Not Justified
The third listing under Purpose of and Need for Action is, “A healthy forest ecosystem can be maintained with habitat to support plant and animal populations and protect riparian areas and water resources.” (EA, p. 5). The very premise of logging is that the forests targeted are in fact unhealthy. Later, the EA notes that thinning these stands “encourages the development of larger diameter trees and creates more diversity within stands.” (EA p. 30). Yet nowhere in the analysis does the BLM provide any scientific basis for this assumption. While the BLM experts’ opinions are entitled to deference, the agency may only rely on expert opinion where the agency discloses the underlying data that serves as the basis for that opinion. Idaho Sporting Congress v. Thomas, 137 F.3d at 1150; 40 C.F.R. § 1502.24 (the agency “shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions” in the EA).
The Pacific Northwest Science Update “Restoring Complexity: 2nd Growth Forests & Habitat Diversity” states that “crowded trees are tall but skinny; little vegetation grows on the forest floor.” Unit 2 has a rich diversity of life on the forest floor as well as other characteristics of a mature forest including course woody debris, large snags, and a mid-level canopy. There was much Oregon grape, vine maple (some 15 feet in height), and even Calypso bulbosa and Hypopitys monotropa, which are generally only found in old growth forests. Unit 2 does not fit into the description of an impaired plantation stand that might benefit from human intervention.
b. Effects of roadbuilding not addressed
The Decision calls for construction of one mile of new road
spurs. One-half mile of new road would
be constructed to access units 3, 9, 10, and 13. An additional one-half mile of
new road construction could be constructed in units 2 and 14 (Decision,
p 2) Referring to potential road-building in Unit 2, the Decision Rationale states,
“new road construction could be built by the purchaser if necessary to
facilitate ground-based logging.” (2) The route of a potential road is not
disclosed in the Decision, including the map of Unit 2 (Exhibit A, Page 1).
Upon a recent (
Nothing is worse for sensitive wildlife than a road. Over the last few decades, studies in a variety of terrestrial and aquatic ecosystems have demonstrated that roads aggravate many of the most pervasive threats to biological diversity -habitat destruction and fragmentation, edge effects, exotic species invasions, pollution, and overhunting -. Roads have been implicated as mortality sinks for animals ranging from snakes to wolves; as displacement factors affecting animal distribution and movement patterns; as population fragmenting factors; as sources of sediments that clog streams and destroy fisheries; as sources of deleterious edge effects; and as access corridors that encourage development, logging and poaching of rare plants and animals. Road building in National Forests and other public lands threatens the existence of de facto wilderness and the species that depend on wilderness. Reed Noss, The Ecological Effects of Roads, http://www.wildrockies.org/WildCPR/reports/ECO-EFFECTS-ROADS.html
See also NRDC Report: “End of the Road: The Adverse Ecological Impacts of Roads and Logging: A Compilation of Independently Reviewed Research” (1999) which discusses the fact that roads:
1. Harm Wildlife
2. Spread Tree Diseases and Bark Beetles
3. Promote Insect Infestations
4. Cause Invasion by Harmful Non-native Plant and Animal Species
5. Damage Soil Resources and Tree Growth
6. Adversely Impact Aquatic Ecosystems
While wildlife harassment is abated by ripping the temporary roads and blocking the permanent ones, these roads still degrade soil, increase the risk of sedimentation, and provide vectors for invasive weeds to spread. The BLM states that the road construction, temporary and permanent “would displace topsoil and severely compact subsoil on less than 3.4 acres of forested land, converting it to non-forested land” (EA pg. 22). This will cause long-term reduction in soil productivity. The BLM provides no evidence to support your assertion that erosive effects would be “non-measurable”. The EA lacks analysis and quantified data of effects on soil and water from past and foreseeable timber harvest elsewhere in the watershed.
c. Spread of noxious weeds does not meet RMP objectives
In a recent letter received by the Appellant,
Gary Larsen, Supervisor,
According to the USDA’s Pacific Northwest Region Invasive Plant Program Final Environmental Impact Statement (Invasive EIS),
Roads and roadside habitats are particularly susceptible to plant invasions for a number of reasons. Roads eliminate some of the physical and environmental barriers that prevent plan invasions by increasing light availability and opportunities for dispersal. Micro-environmental changes along roads can provide opportunities for invasion because many invasive plants are favored by open, disturbed habitats. Disturbance closely associated with roads and the establishment and spread of invasive plants are vehicular traffic and maintenance activities, road, grading, roadside mowing, and keeping roads free of fallen or overhanging vegetation. These activities can increase invasive plant introductions because open spaces with higher light availability, invasive plants can follow roads by natural dispersal mechanisms or be transported along them by animals or humans. For this reason, roads are primary vectors for the spread of invasive species (pp 3-18, emphasis added).
The costs associated with the treatment of invasive plants
ranges from $40-$340 and annually costs USDA Forest Service Region 6 $4.8
million (Invasive EIS, 4-94).
Furthermore, the treatment of invasive plants requires measures that
themselves have significant impacts on the human and natural environment. The Proposed Action referred to in the Update
Letter from Gary Larsen includes the treatment of 13,000 acres in the
The Butte Creek EA states, “Any ground disturbing activity may lead to an increase in the invasive/non-native plant populations in project area…Adverse effects from invasive/non-native are not anticipated” (EA pg. 28). Given that the Decision includes approximately 3 miles of road construction and/or reconstruction, there is a very high likelihood of spreading noxious weeds. This directly conflicts with the objectives in the Salem District Record of Decision and Resource Management Plan, “Avoid introducing or spreading noxious weed infestations in any areas.” (p 64)
Appellants believe that this violates FLPMA requirements for projects to comply with land use plans (ie RMPs). 43USC Sec. 1732, 43CFR Sec. 1610.5-3(a)
d. Degradation of ecological functions in Unit 2 does not meet RMP objectives
The Salem District RMP Objectives for General Forest Management states, “Provide for important ecological functions such as dispersal of organisms, carryover of some species from one stand to the next, and maintenance of ecologically valuable structural components such as down logs, snags, and large trees.” (p 20) Appellants believe the following reasons disqualify Unit 2 from meeting this objective.
i. Retention of large old trees
to the Decision, “The project is designed to leave the largest and best trees.”
(p. 16) Yet in the southern Portion of Unit 2 there are two remnant
We strongly feel that because of the old growth features in these units they should be excluded. According to page C-42 of the Northwest Forest Plan ROD Standards and Guidelines, retained trees in the matrix “should include the largest, oldest live trees.” The markings in this unit suggest that this is not being achieved. We feel that it would be in the best interest to exclude these units to preserve these legacy features.
In Unit 2 there are Hypopitys monotropa, growing in the forest understory. Recent studies have shown that this plant is no longer to be considered a saprophyte but that instead is parasitic. Studies now show that this plant instead taps into the mycorrhizal relationship between tree and fungus. The reason we cite this is because the presence of this plant in the unit indicates that this area has developed a mycorrhizal relationship between trees and fungi to such an extent that it can now support Hypopitys monotropa. We have never found this indicator species in logged areas and it is generally abundant in old growth stands. One can only surmise from this distribution that compaction from logging is disrupting the mycorrhizal relationship. Within this planning unit, the presence of these parasitic plants suggests that this area of the forest is in a healthy subsurface condition. Scientific evidence suggests those mycorrhizae and other soil organisms and processes are extremely important and are easily destroyed by logging. The EA did not recognize the importance of mycorrhizal fungi on forest growth and productivity, and failed to discuss within the EA how mycorrhizae will be impacted by the proposed timber project. In fact, this resource’s important function in forest ecology was completely overlooked in the EA. The EA failed to address how past logging has affected mycorrhizae in areas within the analysis area that have been logged.
iii. Snag retention
One of the main reasons why thinning natural stands is so problematic is that any prospective benefits to complexity and diversity accomplished by thinning these stands will be negated by the certain loss of snags--the most important structural components of older, complex stands. BLM states on page 10 that “landing and skyline corridor locations would be designed to avoid destruction of any snags larger than 20” diameter at breast height (DBH) or remnant old growth found in the project area.” Yet on page 12, we discover that the vast majority of the project will be yarded with ground-based systems (501 acres) and only a small portion will be skylined (22 acres). And on page 8 it states that, “new skid trails would be spaced approximately 150 feet apart.” Therefore, this safeguard provides very little protection for snags. In addition, many valuable snags that have a large diameter are less than 15 feet tall. These snags are usually the easiest to save (because they are short and therefore are less of a hazard.)
While the BLM has described the measures used to minimize impacts to soils (running on top of slash on designated skid trails) no measures are discussed to protect snags. Given that the yarding corridors are 75’ apart, it is very likely that this network of skid trails will impact snags greater than 19 inch snags over 15 feet tall in units 2, 9, 10, and 11.
The EA states that there are very few snags in the project area. “Some residual snags (20” DBH +) are present, but are widely scattered and in advanced decay classes. The stands are generally snag deficient (EA pg 19).” “There are snags and scattered remnant old-growth trees with bark attached that may provide suitable habitat for bats; however, this resource is very scarce in these mid-seral stands (EA pg 24).” These statements point out very clearly that there is a paucity of snags. BLM has an obligation to promote viable populations of snag dependent species. All large old snags regardless of decay class must be retained.
On the chart on page 24 of the EA it notes that there are 17 snags greater than 19 inches DBH in unit B (unit 2) and 15 snags greater than 19 inches DBH in units K and L (units 9, 10, and 11). The remainders of the units have only 2 or 4 snags of similar size. This shows that while the rest of the planning area may be snag deficient as the EA suggests these three units are an exception. This becomes especially relevant; as the surrounding lands are farms, clearcuts, and dog-hair stands that offer no habitat. The Salem District RMP objectives for General Forest Management include:
The surrounding acreage offers plenty of “younger forests” and the latter, these units are especially important for providing attributes of the former.
While the “project design features reduce the risk to CWD habitat” in page 7 of the EA, the BLM later states that “existing snags and CWD habitat may be degraded” (page 25). This section of the EA suggests that the project design features that reduce the risk to CWD are outlined on page 7 of the EA. There is no mention of mitigation measures to protect legacy features on page 7 of the EA (BLM refers to this page for snag retention mitigation a second time in the EA). The words “snag”, “CWD”, “legacy” or any other words that describe large dead material standing or laying down in the forest do not even appear on page 7 of the EA, much less measures that are designed to protect them. BLM made the identical mistake in the B cubed project and the BLM continues to refer to language that simply does not exist in the EA.
The measures that are actually mentioned in the EA are essentially management by caveat techniques that call for the retention under the “greatest extent possible under standard contractual logging procedures, BMP, and OSHA requirements. If a snag is determined to be a safety hazard, after inspection by the contract administrative officer, and it is determined that it needs to be felled, the snag would remain on site for coarse woody debris.” (EA pg 11). This essentially allows snags to be felled if they interfere with logging operations. In order to protect snags, BLM must make adjustments to yarding and falling operations to simultaneously protect workers and snags.
Protecting snags except where safety is an issue should no longer be used as a blanket loophole to cut existing snags. It must be noted that OSHA revised the federal Logging Standard (29 CFR 1910.266) in order to clarify its intent that danger trees and snags may be avoided, rather than being felled. The revised rule allows some discretion in determining the hazard area around a danger tree, by allowing work to commence within two tree lengths of a marked danger tree, provided that the employer demonstrates that a shorter distance will not create a hazard for an employee (OSHA Logging Preamble, Section V).
Legacy features of native forests are structurally the most important for habitat and the most difficult to replace if they are lost. The BLM is obligated to use the best available science to protect public resources. The Northwest Forest Plan ROD is clear that “a renewable supply of large down logs is critical for maintaining populations of fungi, arthropods, bryophytes and various other organisms… Models for computing expected numbers and sizes of logs should be developed for groups of plant associations and stand types which can be used as a baseline for managers to develop prescriptions for landscape management.” (C-40)
BLM should use the DecAID decision support tool and consider all the many values of snags and down wood presented in Rose, C.L., Marcot, B.G., Mellen, T.K., Ohmann, J.L., Waddell, K.L., Lindely, D.L., and B. Schrieber. 2001. Decaying Wood in Pacific Northwest Forests: Concepts and Tools for Habitat Management, Chapter 24 in Wildlife-Habitat Relationships in Oregon and Washington (Johnson, D. H. and T. A. O'Neil. OSU Press. 2001)
Other important research that BLM must use to develop projects is PNW Research Station, “Dead and Dying Trees: Essential for Life in the Forest,” Science Findings, Nov. 1999 (http://www.fs.fed.us/pnw/sciencef/scifi20.pdf) (“Management implications: Current direction for providing wildlife habitat on public forest lands does not reflect findings from research since 1979; more snags and dead wood structures are required for foraging, dinning, nesting, and roosting than previously thought.”)
See also: Jennifer M. Weaken and John P. Hayes, HABITAT USE BY SNAG-ASSOCIATED SPECIES: A BIBLIOGRAPHY FOR SPECIES OCCURRING IN OREGON AND WASHINGTON, Research Contribution 33 April 2001, http://www.fsl.orst.edu/cfer/snags/bibliography.pdf and check out Science Findings Issue 57 (October 2003) Coming home to roost: the pileated woodpecker as ecosystem engineer, by Keith Aubrey, and Catherine Riley http://www.fs.fed.us/pnw/sciencef/scifi57.pdf. Determining pileated woodpeckers population potential based on nesting sites alone will not provide adequate habitat for viable populations of this species, or secondarily, the habitat they provide to other cavity nesters.
http://www.nwhi.org/nhi/whrow/chapter24cwb.pdf See Rose, et al., Decaying Wood in Pacific Northwest Forests: Concepts and Tools for Habitat Management, Chapter 24 in Wildlife-Habitat Relationships in Oregon and Washington
e. Illegal Avoidance of Survey and Manage Regulations
It is unknown to Appellants whether the proposed action complies with the 2001 Record of Decision to Amend the Survey and Manage Guidelines of the Northwest Forest Plan. The November 2005 Final Decision Documentation and Decision Rationale provided the following analysis: “…the proposed project follows the survey requirements for mollusks from the Record of Decision and Standards and Guidelines for Amendments to the Survey and Manage, Protection Buffer, and other Mitigation Measure Standards and Guidelines (“2001 ROD”) and that the proposed project was screened for and found to comply with the Record of Decision to Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines in Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (“2004 ROD”).
This analysis is far from a comprehensive assessment of impacts or disclosure of impacts.
recent relief ruling in the case of Northwest
(1) The Record of Decision dated March 22, 2004, entitled “To Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines in Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl” (the “2004 ROD”) is hereby set aside, and Defendants shall not rely on it or implement it.
(2) The Record of Decision dated January 2001, entitled “Record of Decision and Standards and Guidelines for Amendments to the Survey and Manage, Protection Buffer, and other Mitigation Measure Standards and Guidelines” (the “2001 ROD”) is hereby reinstated, including any amendments or modifications to the 2001 ROD that were in effect as of March 21, 2004.
(3) Defendants shall not authorize, allow, or permit to continue any logging or other ground-disturbing activities on projects to which the 2001 ROD applied unless such activities are in compliance with the provisions of the 2001 ROD (as the 2001 ROD was amended or modified as of March 21, 2004).
(4) No project or activity enjoined under this Order may occur unless and until this Court modifies or vacates this Order.
FLPMA and its implementing regulations clearly require the Forest Service to comply with the Northwest Forest Plan and Survey and Manage Standards and Guidelines. The Butte Creek EA only alludes to complying with Survey and Manage for mollusk species but provides no information as to how this determination was made nor discusses the findings of other required pre-disturbance surveys. Thus, the BLM has not demonstrated that it has met its requirements under the Northwest Forest Plan and has not disclosed information as required by the National Environmental Policy Act (NEPA). Because of the higher level of legacy features and remnant old growth found in Unit 2, Appellants believe that removing this Unit from the Decision will remedy the situation.
Thank you in advance for your consideration.
Alex P Brown