January 10, 2008

Edward W. Shepherd

State Director, Oregon Bureau of Land Management

ATTN: Western Oregon Plan Revisions

P.O. BOX 2965

Portland, OR 97208

Re: Forest Service Employees for Environmental Ethics comments on the
Western Oregon Plan Revision Draft Environmental Impact Statement.

Dear Mr. Shepherd,

Please accept these comments on the Western Oregon Plan Revision (WOPR)
Draft Environmental Impact Statement (DEIS) from Forest Service
Employees for Environmental Ethics (FSEEE). Our organization has a
long-standing commitment to the conservation of Bureau of Land
Management (BLM) Northwest Forest Plan lands, on which hinges the
success of the NFP on national forests in our region. More information
about FSEEE can be found on our web page at
[www.fseee.org](http://www.fseee.org/).

**I. The O&C Act does not relieve the BLM of its responsibility to
comply with applicable environmental laws.**

The O&C does not mandate any particular amount of timber be sold nor
that all forested land be committed to timber production. In *Portland
Audubon Society v. Lujan*, 998 F.2d 705 (9th Cir. 1993), the BLM argued
that a court injunction barring logging from spotted owl habitat would
violate the O&C Act. The court rejected this argument, declaring:

> We find that the plain language of the Act supports the district
> court's conclusion that the Act has not deprived the BLM of all
> discretion with regard to either the volume requirements of the Act or
> the management of the lands entrusted to its care. Because there does
> not appear to be a clear and unavoidable conflict between statutory
> directives, we cannot allow the Secretary to "utilize an excessively
> narrow construction of its existing statutory authorizations to avoid
> compliance \[with NEPA\]."

Id. at 709.

The plain thrust of the WOPR is to undercut the conservation measures of
the Northwest Forest Plan (NWFP), for instance, by reducing the size of
late successional reserves and riparian reserves. The WOPR repeatedly
asserts that this is necessary to meet the O&C Act's mandate. However,
the Washington District Court (affirmed by the 9^th^ Circuit Court of
Appeals) has found that the NWFP meets the O&C Act mandate. *Seattle
Audubon Society v. Lyons*, 871 F. Supp. 1291 (W.D. Wash. 1994). There
has been no court decision that the O&C Act is inconsistent with the
NWFP. Instead, the BLM relies on a settlement agreement in *AFRC v.
Clarke,* Civil No. 94-1031-TPJ (D.D.C) for its assertion that the O&C
Act requires diminution of NWFP environmental protections. The 9^th^
Circuit is not going to vacate existing case law because of a settlement
agreement in a different district.

**II. The WOPR fails to disclose the environmental consequences of
abandoning NWFP protections for aquatic systems.**

The Northwest Forest Plan is a "coordinated management direction for the
lands administered by the Forest Service and BLM within the range of the
spotted owl \[that will also\] protect and enhance late successional and
old-growth forest ecosystems." US Fish and Wildlife Service (UWFWS)
Northwest Forest Plan Biological Opinion (Feb. 10, 1994) at 2. USFWS
relies on two key assumptions in opining that the NWFP will meet the
ESA's mandate to conserve endangered species: 1) "Riparian and
Late-Successional Reserves (LSRs) will retain reserve status and will
not be available for timber production other than asprovided in
Alternative 9;" and, (2) "Alternative 9 applies to Forest Service and
BLM lands; all future actions on these lands would be consistent with
Alternative 9, as adopted in the Record of Decision (ROD)." Id. at 4.

The WOPR throws these assumptions out the window, without any
explanation as to how endangered species or other species of concern
will remain viable. The courts have admonished federal land management
agencies that only the strictest implementation of NWFP legal
protections will suffice to comply with environmental laws. For
instance, in *Seattle Audubon Soc'y v. Lyons*, 871 F. Supp. at 1322, the
court wrote: "The effectiveness of the \[Aquatic Conservation Strategy\]
is still subject to debate among scientists. If the plan as implemented
is to remain lawful the monitoring, watershed analysis, and mitigating
steps call for by the ROD will have to be faithfully carried out, and
adjustments made if necessary."

The DEIS asserts (without any scientific support) that 1) large wood
contribution would remain the same under the action alternatives, 2)
fish productivity would remain the same under the action alternatives,
3) increases in fine sediment delivery would be less than 1% under the
action alternatives, 4) that none of the action alternatives would
result in "increases in peak flows... to a level that would affect fish
habitat," 5) none of the action alternatives would result in "increases
in stream temperature that would affect fish habitat or populations
(although there would be some localized increases in stream temperature
in the Coquille management area)," 6) that the action alternatives would
maintain effective shade cover, 7) that the "existing road network's
potential for fine sediment delivery to streams would far outweigh the
slight potential for additional fine sediment delivery from roads," and
that 8) application of best management practices would "reduce
contamination sources and improve water quality." DEIS at 723-764.

These unsupported assumptions and assertions will not satisfy the courts
that the BLM is meeting or exceeding the baseline environmental
protections established by the Northwest Forest Plan because:

1\. *The Aquatic Conservation Strategy does more than protect fish runs,
it protects the suite of species, ecosystem structure, functions,
processes associated with aquatic and riparian areas*. NWFP ROD at B-11.
The WOPR DEIS concerns itself only with a few particularized indices of
fish population health.

2\. *The ACS provides for the broader protections necessary to recover
fish runs.* The WOPR concerns itself only with large wood, peak flows,
stream temperature, and sediment delivery. The ACS, however, explicitly
acknowledges that the difficult task of recovering fish runs requires
attention to more than these very particular variables. A holistic
approach is needed, and the ACS contemplates a holistic approach,
including protection of wetlands, restoration of the structural
diversity of plant vertebrate, and invertebrate communities, regulation
of thermal regimes during different seasons, maintenance of bank and
channel morphology, maintenance of the chemical characteristics of
waterways, spacing and timing of flooding and meadow and wetland
inundation, and, perhaps most importantly, spatial and temporal
*connectivity* within and between watersheds. The WOPR is silent on
these issues. The ACS requires the BLM to comply with nine discreet
objectives, the WOPR does not. Plainly, the WOPR contemplates less
environmental protections for aquatic systems than the NWFP, yet fails
to disclose the environmental consequences of providing less protection.

3\. *There are specific areas where there will be notable and
significant environmental impacts that would have been avoided with
implementation of the NWFP.* The WOPR DEIS admits that there will be
increased stream temperatures in the Coquille Watershed, a critical
refugia for endangered salmon runs, and (in contradiction to claims
elsewhere in the document) that there will be increased peak flows in
four sixth field watersheds. DEIS at 745. Again, this implies a
significant departure from NWFP protections, the consequences of which
go un-evaluated by the BLM.

4\. *Significant environmental consequences go undisclosed.* The DEIS
claims that the "existing road network's potential for fine sediment
delivery to streams would far outweigh the slight potential for
additional fine sediment delivery from roads." DEIS at 723. A proper
analysis of environmental impacts would disclose a) how much sediment is
contributed from the existing road system (baseline), b) how much
sediment would be contributed by the additional 1,000 miles of road
contemplated by the WOPR, and c) a reasoned discussion that qualifies
the difference. Stating that fine sediment delivery from existing roads
far outweighs the sediment delivery from roads is, in fact, nonsensical.

5\. *Cumulative impacts go undisclosed.* The DEIS fails to disclose the
cumulative environmental impacts of the proposed action, current
conditions (such as the existing road network), and reasonably
foreseeable future activities. For instance, the DEIS is utterly silent
about the cumulative impact of the proposed action along with private
land logging on private parcels interspersed within the planning area.
This failure is particularly acute with regards to a discussion of
aquatic impacts. Although the BLM may assert that sediment delivery to
streams from 1,000 miles of new roads and hundreds of thousands of acres
of new clearcuts is negligible, the sediment delivery from these actions
in combination with private land logging can be expected to be
significant.

6\. *The efficacy of mitigation measures must be assured.* See Pt. VIII
below.

7\. *The ACS requires a* process *that assures protection for aquatic
systems.* The NWFP requires substantive action on the part of land
managers. The NWFP explains:

> Complying with the Aquatic Conservation Strategy objectives means that
> an agency must manage the riparian-dependent resources to maintain the
> existing condition or implement actions to restore conditions. The
> baseline from which to assess maintaining or restoring the condition
> is developed through a watershed analysis. Improvement relates to
> restoring biological and physical processes within their ranges of
> natural variability \... The intent is to ensure that a decision maker
> must find that the proposed management activity is consistent with the
> Aquatic Conservation Strategy objectives \... In order to make the
> finding that a project or management action "meets" or "does not
> prevent attainment" of the Aquatic Conservation Strategy objectives,
> the analysis must include a description of the existing condition, a
> description of the range of natural variability of the important
> physical and biological components of a given watershed, and how the
> proposed project or management action maintains the existing condition
> or moves it within the range of natural variability. Management
> actions that do not maintain the existing condition or lead to
> improved conditions in the long term would not "meet" the intent of
> the Aquatic Conservation Strategy and thus, should not be implemented.

NWFP ROD at B-10. This rigorous analytic process will not be implemented
for projects contemplated by the WOPR.

**III. The DEIS fails to provide adequate environmental protections for
the northern spotted owl.**

**A. Reliance on spotted owl recovery plan and revised critical habitat
proposal.**

In 1996, the USFWS found that NWFP late successional reserves (LSRs)
"are plan-level designations with less assurance of long-term
persistence than areas designated by Congress. Designation of LSRs
\[late successional reserves\] as critical habitat compliments and
supports the Northwest Forest Plan and helps to ensure persistence of
this management directive over time." 61 Fed. Reg. at 26265. Removing
and shrinking critical habitat units for owls by 1.5 million acres of
protected habitat undermines the effectiveness of the Northwest Forest
Plan, which in turn will harm the owl. As with the discussion of aquatic
impacts above, the WOPR DEIS simply fails to explain how a decrease in
environmental protections meets the BLM's legal mandates.

There are 1,009,000 acres of lands that would be managed under the WOPR
that have previously been designated as critical habitat for the owl.
DEIS at 262. Under the BLM's preferred alternative, the average suitable
habitat on BLM-administered lands in critical habitat units would
decline to 51% in 2016, and then fluctuate until reaching an average of
54% of the habitat-capable acres on BLM-administered lands by 2016. DEIS
at G-1043.

The BLM will argue that removing owl habitat within critical habitat
units will not adversely affect the bird. But this argument applies the
wrong legal standard. The courts have ruled that modification of
critical habitat must be evaluated in terms of whether the modification
promotes the "conservation" (equivalent with "recovery") of the owl, not
just whether it puts the species in jeopardy. In other words, promoting
the recovery of the spotted owl is the goal of critical habitat, and any
modification of critical habitat that does not promote recovery will be
found to be illegal. *Gifford Pinchot Task Force v. United States Fish &
Wildlife Service*, 378 F.3d 1059 (9th Cir. 2004). The recovery legal
standard will similarly be brought to bear when the court's record
review turns to the USFWS's decision to shrink critical habitat as part
of the draft recovery plan.

Much of the rationale for decreasing protection for the owl is found in
the USFWS's proposed revision of northern spotted owl critical habitat
and the Northern Spotted Owl Draft Recovery Plan. 72 Fed. Reg. 32450
(June 12, 2007). These documents when completed will be evaluated as
part of the record in any Sec. 7 consultation litigation, and subject to
the same "searching and careful" inquiry into the validity of
conclusions. In our comments on the recovery plan, which we here
incorporate by reference, FSEEE noted, among other things that:

1\. The draft plan asserts that competition from the barred owl is the
most important threat facing the spotted owl. Draft Plan at vi. However,
the plan fails to consider in any manner whatsoever the considerable
scientific literature regarding the nominal, if any, effect
inter-species competition for food and other resources has on species
extinction.

2\. The draft recovery plan ignores the scientific consensus that the
spotted owl's viability is threatened by "a sharp \[habitat\] threshold
below which populations cannot persist," and that "the basic premises of
these (habitat threshold) models remain as valid now as in 1990 or
1994."[^1]

3\. The proposed revision fails to explain in any site-specific manner
its deletions from previously-designated habitat deemed critical to the
spotted owl's conservation.

**B. Adequacy of Sec. 7 Consultation**

For any federal action that may affect a threatened or endangered
species (or its habitat), the agency contemplating the action (the
action agency) must consult with the consulting agency to ensure that
the federal action is not likely to jeopardize "the continued existence
of" an endangered or threatened species and that the federal action will
not result in the "destruction or adverse modification" of the
designated critical habitat of the listed species. 16 U.S.C. §
1536(a)(2). The action agency typically makes a written request to the
consulting agency and, after formal consultation, the process concludes
with the consulting agency issuing a biological opinion (BiOp). *See*
generally, 50 C.F.R. § 402.14(c), and *Ariz. Cattle Growers' Assoc. v.
United States Fish and Wildlife Serv.*, 273 F.3d 1229, 1239 (9th
Cir.2001). The BiOp should address both the jeopardy and critical
habitat prongs of Section 7 by considering the current status of the
species, the environmental baseline, the effects of the proposed action,
and the cumulative effects of the proposed action. 50 C.F.R. §
402.14(g)(2)-(3).

The ESA requires the USFWS's biological opinions to rely on the "best
scientific and commercial data available" when making determinations as
to jeopardy or destruction of critical habitat. 16 U.S.C. § 1536(a)(2).

The courts will conduct "a searching and careful" inquiry to determine
if the best science is being used to conclude that the continued
existence of the owl is not being jeopardized by implementation of the
WOPR. *Marsh v. Ore. Natural Res. Council*, 490 U.S. 360, 375-76 (1989).
Determinations of the USFWS will be vacated if the agency "entirely
failed to consider an important aspect of the problem \[or\] offered an
explanation for its decision that runs counter to the evidence before
the agency..." *Motor Vehicle Mfrs. Ass'n*[,]{.underline} 463 U.S. at
43. The 9^th^ Circuit Court of Appeals has consistently found agency
action to be arbitrary and capricious when agencies do not consider
relevant factors and cannot articulate a rational connection between the
facts found and the choices made. See, for instance, *Pacific Coast
Federation of Fishermen's Ass'n, Inc. v. Nat'l Marine Fisheries Serv.*,
265 F.3d 1028, 1034 (9th Cir. 2001).

Legal challenges to the consultation between the USFWS and the BLM will
be placed within the context of past spotted owl litigation and recent
scientific study. Federal courts in our region have a long history of
reviewing the adequacy of federal land management plans to protect the
owl. Only one such management plan, the Northwest Forest Plan,
implemented in 1994, "adequately discloses the risks and confronts the
criticisms" and has survived legal scrutiny. *Seattle Audubon Society v.
Lyons*, 871 F.Supp. 1291 (W.D. Wash. 1994). The slim compilation of data
about owl habitat found in the DEIS at Appendix G will compare very
unfavorably to the exhaustive catalog of scientific data and lengthy
dissection of different scientific opinions about spotted owl decline
found in the Northwest Forest Plan. Additionally, numerous recent
scientific studies document the continued decline of spotted owl
populations.[^2] Given this context, it will be difficult for the
consulting agency to rationalize a decrease in the level of protection
provided to the owl by the Northwest Forest Plan.

**C. Quantifying impacts to spotted owls.**

If the USFWS were to conclude that implementation of the WOPR will not
jeopardize the existence of the owl or adversely modify its habitat, it
would be required to provide a written statement with the BiOp that
authorizes incidental takings of owls. 16 U.S.C. § 1536(b)(4); *Ariz.
Cattle Growers' Ass'n v. U. S. Fish & Wildlife*, 273 F.3d 1229, 1233
(9th Cir. 2001). The Incidental Take Statement must: (1) specify the
impact of the incidental taking on the species; (2) specify the
"reasonable and prudent measures" that the FWS considers necessary or
appropriate to minimize such impact; (3) set forth "terms and
conditions" with which the action agency must comply to implement the
reasonable and prudent measures (including, but not limited to,
reporting requirements); and (4) specify the procedures to be used to
handle or dispose of any animals actually taken. 16 U.S.C. § 1536(b)(4);
50 C.F.R. § 402.14(i). (In the past the agency has been reprimanded by
the courts for preparing these documents separately; the regulations
specifically require the FWS to provide the Incidental Take Statement
"with the biological opinion." 50 C.F.R. § 402.14(g), (i)(1).)

Any incidental take statement issued by the USFWS must quantify the
extent of owl take. Critically, neither the DEIS or the draft recovery
plan reference any impacts to owl in terms of number of owls impacted by
a new management regime. The permissible level of take authorized should
be expressed as a specific number. *Ariz. Cattle Growers' Ass'n*, 273
F.3d at 1249. If take is quantified by another measure, "the Fish and
Wildlife Service must establish that no such numerical value could be
practically obtained." Id*.* at 1250.

Decisions by agencies to quantify take of owl in terms of habitat
acreage lost, as the BLM does in its discussion of impacts to the owl in
the DEIS, have been viewed unfavorably by the courts. In a recent
decision, the court rejected a challenged BiOp because it

> offers no explanation of why the FWS was unable numerically to
> quantify the level of take of northern spotted owls. The BiOp's
> appendix declares that "spotted owl survey data are currently out-of
> date and surveys have been discontinued or reduced." The FWS, however,
> never states that it is not possible to update the survey data in
> order to estimate the number of takings, only that it has not actually
> done the surveys. This does not establish the numerical measure's
> impracticality. We therefore conclude that the FWS' unexplained
> failure to comply with this requirement renders the Incidental Take
> Statement invalid. *See id.*; *cf. Ctr. for Biological Diversity v.
> Bureau of Land Mgmt.*, 422 F. Supp. 2d 1115, 1137-38 (N.D. Cal. 2006)
> (finding that the FWS did not adequately establish that no numerical
> value of take of desert tortoises could practically be obtained where
> Incidental Take Statement relied on fact that the Service simply had
> not estimated the number of desert tortoises in the action area);
> *Natural Res. Def. Council, Inc. v. Evans*, 279 F. Supp. 2d 1129,
> 1184-85 (N.D. Cal. 2003) (rejecting Incidental Take Statement that
> failed to quantify numerically the authorized incidental take of some
> twenty endangered species and offered no evidence that it was
> impractical to obtain such numerical estimates).

*ONRC v. Allen*, No. 05-35830, CV D0.3C-0. 8N8o8. PA, Feb. 16, 2007.

The DEIS fails to disclose the effects spotted owl habitat logging will
have on spotted owl populations. In fact, nowhere in the DEIS are
spotted owl population sizes or rates of change reported or assessed.
BLM may believe that acres of spotted owl habitat are a sufficient proxy
for populations. *Or. Natural Res. Council Fund v. Goodman*, 505 F.3d
884, 889 (9th Cir. 2007). No where in the DEIS does the BLM document how
many spotted owls exist on its land today and how many will exist under
each alternative. Regardless of whether a "a simplistic \"x number acres
= y number of owls\" type of equation" would be sufficient, BLM has not
produced any equation. *Gifford Pinchot Task Force v. United States Fish
& Wildlife Serv.*, 378 F.3d 1059, 1066 (9th Cir. 2004).

In fact, a "proxy-on-proxy" approach would be inappropriate for the
northern spotted owl because its population rate-of-change is not
directly related to acres of habitat. *See* *e.g.,* Lamberson, R., R.
McKelvey, B. Noon, and C. Voss. 1992. A Dynamic Analysis of Northern
Spotted Owl Viability in a Fragmented Forest Landscape. Conservation
Biology 6: 505-512; Lande, R. 1987. Extinction thresholds in demographic
models of territorial populations. American Naturalist 130: 624-635;
Lande, R. 1988. Demographic models of the Northern Spotted Owl (*Strtx
occidentalis caurina ).* Oecologia 75: 601-607. As summarized by
Lamberson, et al.,

> \[i\]n a fixed landscape, the model predicts a sharp threshold below
> which Spotted Owl viability plunges. The underlying cause is dispersal
> failure (the recolonization rate of pair-sites is less than their
> extinction rate), due to a scarcity of suitable habitat or a scarcity
> of available mates in suitable habitat (the so-called Allee effect).
> The location and steepness of this threshold depends on the parameters
> of the model: on the initial number of owl pairs, on the density of
> suitable habitat, on assumptions concerning the owl's biology
> particularly its life history characteristics and its dispersal search
> strategy and efficiency-and finally on assumptions made regarding the
> quality and stability of the owl's environment. Other than refining
> our knowledge of these factors, there is currently no way to pinpoint
> the locus of the threshold, and no direct empirical means to ascertain
> whether the population is currently at high risk of crossing a
> threshold point.

The DEIS fails to acknowledge that the owl faces a "sharp threshold
below which Spotted Owl viability plunges," and fails to acknowledge
that we do not know with precision the amount of habitat necessary to
prevent this threshold from being reached. Thus simply counting acres of
habitat, without monitoring the owl's population, will never tell us if
the owl's population performance plunges. Nor does the DEIS disclose
that even accurate population monitoring may prove insufficient because
the owl's population can crash "long after timber harvest has ceased."
*Id*.

**D. Violations of the National Environmental Policy Act**

The ESA contains a broad mandate to protect endangered species, but
protection of the owl does not necessarily need to be enforced via this
statute. The National Environmental Policy Act (NEPA) requires the DEIS
to inform decisionmakers of the full range of responsible opinion on
environmental effects, including impacts to the owl as they bear on ESA
compliance. *Citizens Against Toxic Sprays, Inc. v. Bergland*, 428 F.
Supp. 908, 922 (D. Or. 1977). An EIS that fails to disclose and respond
to "the opinions held by well respected scientists concerning the
hazards of the proposed action . . . is fatally deficient." *Friends of
the Earth v. Hall*, 693 F. Supp. 904, 934 (W.D. Wash. 1988).

NEPA requires that an agency provide a detailed analysis of the
environmental impacts of the proposed action. 42 USCA §4332(C)(i). As
part of this analysis, the agency must examine and disclose cumulative
environmental impacts. "'Cumulative impact' is the impact on the
environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future
actions..." 40 CFR §1508.7. "Cumulative impacts can result from
individually minor but collectively significant actions taking place
over a period of time." Id.

In its discussion of environmental impacts to the owl, the DEIS analyzes
percent of spotted owl present habitat over a 100 year period, the
extent of large blocks of habitat considered necessary for OWL
viability, extent of habitat between these blocks, suitable habitat
outside of large blocks, dispersal habitat, and "areas of concern"
(areas where owl migration faces habitat bottlenecks). All of this
discussion is interesting, but it utterly fails to inform the reader
about what in particular will happen to owl populations. Consider:

1\. There is no meaningful comparison of implementation of the WOPR vs.
not implementing the WORP. On one hand: "No action would result in the
greatest increase in suitable habitat of all alternatives with 76% of
habitat capable acres in suitable habitat by 2106." DEIS at 635. On the
other hand: "Alternative 2 and Alternative 3 would each result in a
nearly stable amount of suitable habitat until 2026. Alternative 2 would
result in a slight increase in suitable habitat between 2026 and 2056,
followed by a slight decrease to 51% of habitat capable lands in
2106---an amount almost equal to current condition." DEIS at 635-636.

2\. The difference between implementing the WOPR and not implementing
the WOPR is qualified with vague terms like "lower:" "Under Alternative
2, the percentage of suitable habitat outside of large blocks would
steadily decrease over the next 100 year. Alternative 2 would result in
a lower percentage of suitable habitat outside of large blocks than
Alternative 1, because Alternative 2 would allocate fewer acres to
riparian management areas." DEIS at 656.

3\. The effect on habitat that results from implementing the WOPR is
qualified with vague terms like "decrease": "In almost all
District/Province divisions, the No Action Alternative and Alternative 3
would increase the amount of suitable habitat, and Alternative 2 would
decrease the amount of suitable habitat.

4\. Different alternatives are ranked in terms of habitat capability
with no meaningful qualification or quantification of difference between
the alternatives: "In all District/Province divisions except Klamath
Falls/Eastern Cascades, Alternative 2 would result in the least suitable
habitat outside of late-successional management areas." DEIS at 657.

5\. The amount and type of habitat available for owls is compared
without any explanation as to how habitat availability actually affects
owls: "Under Alternative 2, the amount of total dispersal habitat would
decrease, although it would fall only to 77% of habitat-capable acres on
BLM-administered lands by 2056 and then increase to 82% by 2106.
However, the amount of suitable habitat would not increase over time as
in the No Action Alternative and Alternative 1; it would fluctuate
between 49% and 53% to end at 49% by 2106. Therefore, Alternative 2
would decrease the total quantity of dispersal habitat, and would
maintain approximately the current quality of dispersal habitat over
time." DEIS at 661.

6\. "Areas of concern" to owls are admitted to be critical in terms of
the owl's long-term survivability, but the DEIS offers the same
non-descriptive disclosure of impacts to habitat: "Alternative 2 would
result in the least suitable habitat." DEIS at 668.

This cumulative effects analysis will be viewed in the same light as the
cumulative effects analysis rejected by the 9^th^ Circuit in *Neighbors
of Cuddy Mountain v. US Forest Service*, 137 F.3d 1372 (9th Cir. 1998)
and *Klamath-Siskiyou Wildlands Center v. BLM*. 387 F.3d 989 (9^th^ Cir.
2004). The court in *Klamath Siskiyou* evaluated a cumulative effects
analysis almost identical to the WOPR and found that: "A calculation of
the total number of acres to be harvested in the watershed is a
necessary component of a cumulative effects analysis, but it is not a
sufficient description of the actual environmental effects that can be
expected from logging those acres."

The Court went on to state that the NEPA document in question:
"...cannot simply offer conclusions. Rather it must identify and discuss
the impacts that will be caused by each successive timber sale,
including how the combination of those various impacts is expected to
affect the environment, so as to provide a reasonably thorough
assessment of the project's cumulative impacts."

In *Neighbors*, the court held that the cumulative impacts analysis for
a timber sale and the other sales proposed for the area "was very
general, and did not constitute the hard look that the (government) is
obligated to provide under NEPA." In that case, the Forest Service had
stated that the cumulative impact of timber sales could cause isolation
of pileated woodpecker populations, and acknowledged "(t)here is some
risk that the remaining mature and old growth forests on Cuddy Mountain
may not be adequate in size, if isolated from adjacent suitable habitat,
to maintain the dependent species," and that "It is not known to what
degree this (isolation) may be occurring." The court rejected this
analysis and held that to "consider" cumulative effects, some quantified
or detailed information is required. Without such information, neither
the courts nor the public, in reviewing the Forest Service's decisions,
can be assured that the Forest Service provided the hard look that is
required to provide. The court repeatedly admonished the Forest Service
that statements about "possible" effects and "some risk" do not
constitute a "hard look" absent a justification regarding why more
definitive information cannot be provided.

...

Given the above noted deficiencies, an injunction against implementation
of the WOPR is likely to issue that is eerily similar to the spotted owl
injunctions of the late 1980s and early 1990s:

> The Environmental Impact Statements prepared between 1979 and 1983 do
> not address the issues of adequate population size or the effects of
> habitat fragmentation upon the long-range survival of the spotted owl
> species. Neither does the Spotted Owl Environmental Assessment
> prepared in 1987. This is a significant omission from the Spotted Owl
> Environmental Assessment in light of the new information available at
> the time it was prepared. Since the Spotted Owl Environmental
> Assessment does not address the critical issues of adequate population
> size and the effects of habitat fragmentation upon the long-range
> survival of the spotted owl, the court concludes that the decision of
> the BLM not to supplement the Environmental Impact Statements prepared
> between 1979 and 1983 was arbitrary and capricious in light of the
> new, significant, and probably accurate information that the planned
> logging of spotted owl habitat raises uncertainty about the ability of
> the spotted owl to survive as a species.

*Portland Audubon Soc'y v. Lujan*, 712 F. Supp. 1456, 1485 (D. Or.
1989).

**IV. The DEIS fails to provide adequate environmental protections for
the marbled murrelet.**

If anything, existing environmental protections for the marbled murrelet
are more central to the viability of this species than for the spotted
owl. The 1997 Marbled Murrelet Recovery Plan provides a stark view of
the importance of maintaining NWFP reserves, noting that "virtually all
remaining potential habitat in the \[Oregon\] Coast Range is on Federal
lands," and that "\[a\]mong all Pacific Northwest birds, the marbled
murrelet is considered to be one of the most sensitive to forest
fragmentation." Murrelet Recovery Plan at 45 and 48.

The Northwest Forest Plan provides a "substantial contribution" towards
protecting nesting habitat on Federal lands, especially habitat that is
currently occupied by marbled murrelets, and represents "the backbone"
of this Recovery Plan strategy. Id. at 23.

**V. The DEIS fails to provide adequate environmental protections for
endangered fish runs.**

As is the case with its analysis of spotted owls and marbled murrelets,
the WOPR DEIS completely fails to provide an analysis of the *viability*
of at risk fish populations.

Compliance with the ESA for listed fish species on BLM lands is
currently based on the assumption that the agency is conscientiously
implementing the Aquatic Conservation Strategy. The courts have noted
that ACS compliance is just one set of criteria that agencies could use
to demonstrate no-jeopardy, but the BLM provides no alternate rationale.
*See PCFFA v. NMFS*, 265 F.3d 1028, 1034-35 (9^th^ Cir. 2001). The DEIS
utterly fails to articulate a scientific rationale as to how abandoning
the ACS will conserve endangered fish runs. Critically, the WOPR DEIS
*models* such habitat variables as large wood, and makes generalized
assertions that these models show requisite habitat will be provided,
but unlike the ACS, the WOPR DEIS does not require techniques, methods
or processes that conserve fish runs.

In terms of cumulative effects analysis, it will not escape the court's
attention that the WOPR DEIS includes private lands in its cumulative
effects analysis when private lands may contribute *positive* ecological
inputs, but *excludes* private lands when they may contribute *negative*
impacts. For instance, the BLM assumes that adjacent private lands will
contribute down wood to streams. DEIS at 345 and 724-725. But the BLM
pointedly refuses to consider sediment delivery to streams from private
land. DEIS at 760.

The analytic deficiencies in the BLM's presentation of the cumulative
effects to spotted owls that we note above apply equally to the agency's
discussion of fisheries and aquatic systems. The DEIS blithely asserts
that changes to stream temperature would be "the same" under all action
alternatives. DEIS at 723. Later, the DEIS represents that there will be
actually be differences in stream temperatures from implementation of
different alternatives, and purports to show these differences in a
graph. But, the data fields in this graph in Appendix I have been left
blank. DEIS at I-1119.

In all probability, the remarkably similar environmental effects
displayed in (most) of the DEIS is the result of less-than-robust
modeling efforts. At any rate, it is highly unlikely that the BLM's
cumulative effects analysis for aquatic systems will meet the standards
set forward in 9^th^ Circuit case law.

**VI. The WOPR DEIS does not meet the O&C Act with regards to watershed
protection.**

The O&C Act provides that forestland managed under the Act:

> shall be managed . . . for permanent forest production, and the timber
> thereon shall be sold, cut and removed in conformity with the
> principal \[sic\] of sustained yield for the purpose of providing a
> permanent source of timber supply, protecting watersheds, regulating
> stream flow, and contributing to the economic stability of local
> communities and industries, and providing recreational facilities.

Because the WOPR DEIS, for the reasons above, does not protect
watersheds, implementation of the WOPR violates the O&C Act.

**VII. The WOPR DEIS does not comply with the Clean Water Act.**

Maintaining water quality on federal forest lands in western Oregon to
the standards required by the Clean Water Act is explicitly tied to
implementation of the ACS in the Northwest Forest Plan Total Maximum
Daily Load (TMDL) plan. The TMDL Implementation Strategy that appends
the NWFP TMDL document states: "Paramount to the recovery \[of water
quality\] is adherence to the Standards & Guidelines of the NWFP to meet
the ACS Objectives, including protection, restoration and active
management of riparian areas." TMDL Implementation Strategy at 45.

The Environmental Protection Agency, acknowledges this issue in an
August 29, 2007 letter to the BLM, which states: "The measures under the
NWFP . . . have successfully demonstrated improvements in water quality
on federal lands," and indicated that implementation of the WOPR could
be a "big step backwards for water quality in Oregon."

The Clean Water Act (CWA) requires the State of Oregon to identify water
bodies that are not meeting or are not likely to meet State water
quality standards. The State must then develop a TMDL for each stream
and pollutant on the 303(d) list of impaired water bodies. Section
313(a) of the Clean Water Act requires federal agencies to comply with
all federal, state and local requirements established for water quality
protection. 33 U.S.C. §1323(a). The Ninth Circuit has held that judicial
review of this mandatory requirement is available under the
Administrative Procedures Act (APA) when a plaintiff organization is
challenging nonpoint source violations of state water quality standards.
*Oregon Natural Resources Council v. USFS*, 834 F.2d 842, 851-52 (9th
Cir. 1987).

There are a number of TMDLs within the WOPR planning area; of particular
interest to FSEEE is the Willamette River TMDL, which establishes
pollution limits for temperature. The DEIS claims that there will be no
increases in stream temperatures as a result of implementing the WOPR,
but it bases this assumption on models that account only for tree height
and slope on every stream. The Willamette River TMDL, however, rejects
this one-size-fits-all approaches and instead analyzes effective stream
shade in different geomorphic units. Willamette TMDL at Appendix C-30.

The WOPR DEIS contains no analysis of Oregon's requirement, where salmon
spawning and rearing is a designated beneficial use, and in which the
surface water temperature exceeds 64 degrees Fahrenheit, to allow no
measurable surface temperature increase from anthropogenic activities.
OAR 340-041-1997(2)(b)(A)(i).

The DEIS also explicitly acknowledges that there will be increases in
stream temperatures in the Coquille management unit. The Clean Water Act
does not permit de minimis degradation of water quality, especially on
streams that are already impaired. 33 U.S.C. § 1323(a)(2)(C).

Despite the acknowledgment that roads deliver a great deal (albeit an
unquantified amount) of sediment to aquatic systems, the BLM proposes to
construct 1,000 miles of new roads, without explaining how this will
meet the agency's CWA burdens. DEIS at 723.

**VIII. The WOPR DEIS does not disclose the efficacy of planned
mitigation measures and best management practices (BMPs).**

The BLM relies on BMPs to ensure, among other things, compliance with
the Clean Water Act. DEIS at I-1132. Reliance on BMPs to comply with the
need to compensate for environmental impacts, however, was rejected by
the Ninth Circuit more than 20 years ago:

> The BMPs, however, are merely a means to achieve the appropriate state
> Plan water quality standards\... Adherence to the BMPs does not
> automatically ensure that the applicable state standards are being
> met.

*Northwest Indian Cemetery v. Peterson*[,]{.underline} 795 F.2d 688, 697
(9th Cir. 1986).

Neither the public nor the decision maker has any way of knowing if the
best management practices contemplated by the WOPR DEIS will be
effective. The courts have ruled that a detailed discussion of
mitigation measures flows from both the language of NEPA and from the
Council on Environmental Quality's regulations. *Robertson v. Methow
Valley Citizen's Council*, 109 S. Ct. 1835 (1989). The court wrote:

> More generally, omission of a reasonably complete discussion of
> possible mitigation measures would undermine the "action forcing"
> function of NEPA. Without such a discussion neither the agency nor
> other interested groups and individuals can properly evaluate the
> severity of the adverse effects.

[Id]{.underline} at 1846-1847.

The BLM's perfunctory description of mitigating measures is inconsistent
with the "hard look" it is required to render under NEPA. "Mitigation
must be discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated." *Carmel-By-the-Sea v. US Dep't
of Transportation*, 123 F.3d 1142, 1154 (9th Cir. 1997), quoting
*Robertson V. Methow Valley Citizens Council*, 490 US 332, 353 (1989).
In the WOPR DEIS, the BLM provides "\[a\] mere listing of mitigation
measures" which is "insufficient to qualify as the reasoned discussion
required by NEPA." *Northwest Indian Cemetery Protective Ass'n. v.
Peterson*, 795 F.2d 688, 697 (9th Cir. 1986), rev'd on other grounds,
485 US 439 (1988).

The 9^th^ Circuit has rejected agencies' "vague and non-specific"
descriptions of environmental impacts in an Environmental Assessment.
The court also ruled that the efficacy of mitigation measures is not
demonstrated by relying on cursory descriptions or the "expert opinion"
of the Forest Service. The court held:

> (A)llowing the Forest Service to rely on expert opinion without hard
> data either vitiates a plaintiffs ability to challenge an agency
> action or results in the courts second guessing an agency's scientific
> conclusions. As both of these results are unacceptable, we conclude
> that NEPA requires that the public receive the underlying
> environmental data from which the Forest Service expert derived her
> opinion.

*Idaho Sporting Congress v. Thomas*, No. 97-35339 (9th Cir., Mar. 4,
1998).

The court went on to hold:

> Substantial questions remain as to the effect that the Miners Creek
> timber sale will have on the human environment. The 1990 report
> indicates that Miners Creek currently has an excess of sediment and
> that "(a)dditional sediment would further degrade the system." In
> light of the failure to provide adequate data to the public, we
> conclude that an EIS is necessary to explore the substantial questions
> in respect to whether and what significant effects the sale may have.

Moreover, "since the effects of the sale will not be known until the EIS
is prepared we cannot know whether the mitigation measures are
sufficient." Id.

In yet another decision, the court held that: "The Forest Service's
perfunctory description of mitigating measures is inconsistent with the
'hard look' it is required to render under NEPA." *Neighbors of Cuddy
Mountain v. US Forest Service*, No. 97-35654 (9th Cir., March 4, 1998).

Clearly, merely listing mitigation measures, without any discussion as
to their efficacy must be held illegal under NEPA. There is absolutely
no discussion in the WOPR DEIS of BMP's implementation, use, efficacy or
anything at all beyond their mere existence.

Instead of asserting that its list of best management practices will
reduce impacts to water quality and other resource values, the BLM must
disclose the consistent failure of its "best management practices" to
prevent significant water quality problems in the past. *Sierra Club v.
Morton*, 510 F.2d 813, 824; *National Wildlife Federation v. USFS*, 801
F.Supp. 360 (D.Or 1984). The BLM must "candidly disclose the risks and
any scientific uncertainty" and scientific opposition to the chosen
practices. *Seattle Audobon Society v. Lyons*, 871 F. Supp. 1291 (W.D.
Wash. 1994). "Conclusory statements which do not refer to scientific or
objective data supporting them do not satisfy NEPA's requirement for a
'detailed statement.'" *Citizens Against Toxic Sprays v. Bergland*, 428
F. Supp. 908 (D.Or. 1977).

There is no good evidence that the application of BMPs can reduce the
impacts of logging and road construction at the watershed scale to an
ecologically insignificant level, especially in light of the generally
poor existing conditions throughout the mixed ownership of the WOPR
planning area. Nor is there any evidence that they will alleviate
cumulative effects at the landscape level.

Monitoring of mitigation measures is increasingly important in sound
forest management. In fact, it is considered a cornerstone of proper
management of public lands. NEPA at §1505.2(c) requires a site-specific
monitoring and mitigation plan:

> State whether all practicable means to avoid or minimize environmental
> harm from the alternative selected have been adopted, and if not, why
> they were not. A monitoring and enforcement program shall be adopted
> and summarized where applicable for any mitigation.

Additionally:

> Agencies may provide for monitoring to assure that their decisions are
> carried out and should do so in important cases. Mitigation
> (§1505.2(c)) and other conditions established in the environmental
> impact statement or during its review and committed as part of the
> decision shall be implemented by the lead agency or other appropriate
> consenting agency. The lead agency shall:
>
> \(a\) Include appropriate conditions in grants, permits or other
> approvals.
>
> \(b\) Condition funding of actions on mitigation.

§1505.3.

The 1,600-page WOPR devotes just 3 pages to a discussion of monitoring,
most of which merely defines the term "monitoring."

**IX. The DEIS fails to disclose the potential for landslides and debris
flows from accelerated logging and road building in the WOPR planning
area.**

A number of studies have documented the Coast Range's unique
susceptibility to landslides and debris flows, and clear relationship
between logging and roadbuilding and an increased incidence of
landslides.[^3] The DEIS acknowledges only that debris torrents play an
important role in delivering large wood to streams, but completely fails
to account for how an increase in landslides beyond the historic range
of variability from logging and road building practices could increase
sediment delivery or have other detrimental effects to streams. DEIS at
342-345.

**X. Establishment of new OHV areas does not meet executive direction.**

The WOPR DEIS preferred alternative would establish several new OHV
areas, most notably opening up the Haceta Dunes Area of Critical
Environmental Concern to OHV use. The BLM provides no rationale for
allowing OHV's to degrade this ecologically sensitive site, except for
an "increased demand" for OHV recreational facilities.

BLM regulations, however, require that the creation of new OHV areas "be
based on the protection of the resources of the public lands, the
promotion of the safety of all the users of the public lands, and the
minimization of conflicts among various uses of the public lands."
Executive Order No. 11644 (1972) No. 11989 (1977) recquire the BLM to
ensure that new OHV facilities:

1\. Minimize damage to soil, watershed, vegetation, air, or other
resources of the public lands, and to prevent impairment of wilderness
suitability;

2\. Minimize harassment of wildlife or significant disruption of
wildlife habitats, and

especially for protection of endangered or threatened species and their
habitats;

3\. Minimize conflicts between ORV use and other existing or proposed
recreational uses of the same or neighboring public lands and to ensure
compatibility with populated areas, taking into account noise and other
factors.

4\. Be located outside existing designated wilderness areas or primitive
areas and in natural areas only if BLM determines that ORV use will not
adversely affect their natural, esthetic, scenic, or other values for
which such areas are established.

The BLM meets none of these criteria in allowing the dunes at Haceta
Head to be trampled by OHVs. There is no analysis of potential impacts
to endangered species like snowy plover. There is not even an indication
that there is any demand for this area to be opened up to OHVs. The BLM
simply asserts that allowing OHVs in this critical area of environmental
concern "offers an open sand dune riding experience for OHV riders." An
open dune riding experience is already provided for by the Oregon Dunes
Recreation Area immediately to the south.

**XI. The DEIS does not disclose the environmental impact of aggressive
fire suppression tactics.**

The BLM appears to be calling for more aggressive fire suppression
tactics than are being employed now:

> Immediate action to control and suppress all wildfires would be taken
> in all areas, except in the large contiguous blocs of BLM Lands, which
> include Galice, Wild Rogue Wilderness, Rogue River Wild and Scenic
> River in the Medford District, and the Gerber Block in the Klamath
> Falls Field Office, where aggressive initial attack and direct control
> procedures would be employed.

DEIS at 33.

The BLM's proposal to suppress all wildfires is a major federal action.
*Envtl. Prot. Info. Ctr. v. United States Forest Serv.*, 2003 U.S. Dist.
LEXIS 18241 (D. Cal. 2003) (policy of suppressing fires is a major
federal action); *Forest Serv. Emples. for Envtl. Ethics v. United
States Forest Serv.*, 397 F. Supp. 2d 1241, 1251 (D. Mont. 2005) (use of
fire retardant subject to NEPA because Congress intended NEPA to apply
to the "fullest extent possible.").

Fire suppression also has significant environmental effects. *See*
*e.g.*, Backer, D., S.E. Jensen, G.R. McPherson, 2004, "Impacts of
Fire-Suppression Activities on Natural Communities," Conservation
Biology 18(4): 937-946; Schimel, D., 2004, "Mountains, Fire, Fire
Suppression, and the Carbon Cycle in the Western United States," USDA
Forest Service Gen. Tech. Rep. PSW-GTR-193 ("Wildfire suppression in
regrowing stands is thought to have a significant effect on carbon
sequestration in western U.S. forests."); Conner, R.N., et al., 2005,
"The Effects of Fire Suppression on Bachman's Sparrows in Upland Pine
Forests of Eastern Texas," Bull. Texas Ornith. Soc. 38(1): 6-11 (Fire
suppression had significant effect on Bachman's Sparrow abundance).

BLM's failure to disclose any of the significant environmental effects
of fire suppression, including the use of aerial fire retardant,
violates NEPA.

Sincerely,

\_\_\_\_\_/s\_\_\_\_\_\_
![](media/image1.png){width="1.7916666666666667in"
height="0.5416666666666666in"}

James Johnston Andy Stahl

Policy Analyst Executive Director

[^1]: Lamberson, R., R. McKelvey, B. Noon, and C. Voss. 1992. A Dynamic
    Analysis of Northern Spotted Owl Viability in a Fragmented Forest
    Landscape. Conservation Biology 6: 505-512. See also: Courtney, S.,
    et al. 2004. Scientific evaluation of the Status of the Northern
    Spotted Owl. Sustainable Ecosystems Institute. Portland, Oregon;
    Doak, D. 1989. Spotted owls and old growth logging in the Pacific
    Northwest. Conservation Biology 3: 389-396; Lande, R. 1987.
    Extinction thresholds in demographic models of territorial
    populations. American Naturalist 130: 624-635; and, Lande, R. 1988.
    Demographic models of the Northern Spotted Owl (*Strtx occidentalis
    caurina ).* Oecologia 75: 601-607.

[^2]: See, for instance, Courtney, S.P., J.A. Blakesley, R.E. Bigley,
    M.L. Cody, J.P. Dumbacher, R.L. Fleischer, A.B. Franklin, J.F., R.J.
    Gutierrez, J.M. Marzluff, and L. Sztukowski (eds). 2004. Scientific
    evaluation of the status of the Northern Spotted Owl. Sustainable
    Ecosystems Institute, Portland, OR. DellaSala, D. A., and J.
    Williams. 2006. Northwest Forest Plan Ten Years Later -- how far
    have we come and where are we going? Conservation Biology
    20:274-276. Thomas, J.W., J.F. Franklin, J. Gordon, and K.N.
    Johowln. 2006. The Northwest Forest Plan: origins, components,
    implementation, experience, and suggestions for change. Conservation
    Biology 20:277-286. Lint, J. 2005. Status and trends of Northern
    Spotted Owls populations and habitat. USDA PNW-GTR-648.

[^3]: See, for instance, Weaver, W and Hagans, D. K., "Aerial
    Reconnaisance Evaluation of 1996 Storm Effects on Upland Mountainous
    Watersheds of Oregon and Southern Washington," 1996.