Dick Artley 415 North East 2nd Grangeville, ID 83530

Transcription

1 United States Department of Agriculture Forest Service Region One Northern Region 200 East Broadway Missoula, MT File Code: (215) # Date: March 17, 2008 Dick Artley 415 North East 2nd Grangeville, ID Dear Mr. Artley: This is my decision on disposition of the appeal you filed regarding the Integrated Weed Mangement Plan Record of Decision (ROD) on the Lolo National Forest. My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR to ensure the analysis and decision are in compliance with applicable laws, regulations, policy, and orders. I have reviewed the appeal record, including your arguments, the information referenced in the Forest Supervisor s February 19, 2008, transmittal letter, and the Appeal Reviewing Officer s analysis and recommendation (copy enclosed). The transmittal letter provides the specific page references to discussions in the ROD and project file, which bear upon your objections. I specifically incorporate in this decision the appeal record, the references and citations contained in the transmittal letter, and the Appeal Reviewing Officer s analysis and recommendation. The Appeal Reviewing Officer has considered your arguments, the appeal record, and the transmittal letter and recommends the Forest Supervisor s decision be affirmed and your requested relief be denied. Based upon a review of the references and citations provided by the Forest Supervisor, I find the objections were adequately considered in the ROD. I agree with the Appeal Reviewing Officer s analysis and conclusions in regard to your appeal objections. I find the Forest Supervisor has made a reasoned decision and has complied with all laws, regulations, and policy. After careful consideration of the above factors, I affirm the Forest Supervisor s decision to implement the Integrated Weed Management project. Your requested relief is denied. Caring for the Land and Serving People Printed on Recycled Paper

2 Dick Artley - # My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR (c)]. Sincerely, /s/ Kathleen A. McAllister KATHLLEEN A. MCALLISTER Appeal Deciding Officer Enclosure cc: Appeal Reviewing Officer Responsible Official Forest Coordinator

3 Dick Artley - # File Code: Date: March 7, 2008 Route To: (1570 (215)) Subject: 1570 (215) - ARO Letter - Integrated Weed Management Plan ROD - Lolo NF - Dick Artley - # To: Appeal Deciding Officer This is my recommendation on disposition of the appeal filed by Dick Artley protesting the Integrated Weed Management Plan Record of Decision on the Lolo National Forest. The Forest Supervisor s decision adopts Alternative 2, which includes treating up to 15,000 acres a year, depending on funding, with a combination of ground and aerially applied herbicides, goat and sheep grazing, biological control agents, mowing, pulling, seeding and fertilizing, and implement specific monitoring requirements. The decision better prioritizes where the Forest would spend their weed management funding, and allows them to more promptly treat new weed species and new weed infestations that are discovered in weed free zones of the forest. My review was conducted pursuant to, and in accordance with, 36 CFR to ensure the analysis and decision is in compliance with applicable laws, regulations, policy, and orders. The appeal record, including the appellant s objections and recommended changes, has been thoroughly reviewed. Although I may not have listed each specific issue, I have considered all the issues raised in the appeal and believe they are adequately addressed below. The appellant alleges violations of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The appellant requests the decision to be withdrawn, the ID team analyze safe herbicides, prohibit spraying in grizzly bear management units, initiate postproject monitoring specifically looking for physical ailments caused by the herbicides, conduct unbiased analysis, drop all consideration of the use of clopyralid, dicamba, glyphosate, imazapic, imazapyr, picloram, triclopyr and 2, 4-D, and to use every fiscal trick to generate enough funding to eradicate and stop the spread of noxious weeds without harming any natural resource or humans. The appellant refused the offer of an informal meeting. In Mr. Artley s comment letter on the DEIS he states, In (sic) could write multiple pages detailing your errors, but I won t. There are too many people on the Lolo and close by in the RO that are paid to do this. Neither will I cite the environmental law(s) and section(s) that you violate. I ll save that for my appeal. I was disappointed when I read that. Without specific information about the concerns the public has about a project the ID team and decision maker cannot respond to their concerns. In a number of appeal issues below I point out where the appellant did not inform the decision maker about his concerns in a timely manner, but rather waited until the appeal period to voice his concerns. This is too late in the process because it does not allow the decision maker the opportunity to consider the impacts of the project in light of public concerns.

4 Dick Artley - # ISSUE REVIEW Issue 1. The EIS fails to discuss any manipulation of animal numbers or closures of livestock allotments to reduce the spread of the noxious weeds. The absence of any domestic livestock manipulation in the ROD to reduce noxious weed spread violates the CEQ regulations for implementing NEPA. Response: The appellant s comment letter on the Lolo National Forest s Integrated Weed Management project, dated June 7, 2007 did not raise the concern of livestock allotments or the manipulation of animal numbers to reduce weed spread. He did not put the agency on notice of his concerns about this issue. The notice and comment period is intended to solicit information, concerns, and any issues specific to the proposed action and to provide such comments to the Responsible Official before the decision is made. The intent in requiring comments is to obtain meaningful and useful information from individuals about their concerns and issues, and use it to enhance project analysis and project planning. Waiting until the appeal period to raise an issue or concern does not give the Responsible Official an opportunity to consider the impacts of the project in light of public concerns. Due to the fact the appellant did not bring his concern to the attention of the Responsible Official at the appropriate time, I will not consider the appeal point on livestock allotments or the manipulation of animal numbers to reduce weed spread. I will point out, however, the FEIS does consider using sheep and goats to reduce weed populations, and discusses the need to adjust cattle and horse numbers. The transmittal letter, dated February 19, 2008, signed by the Forest Supervisor and sent to the Regional Forester indicates where this issue is discussed in the ROD, EIS, and project file. Issue 2. Of the 11 chemicals proposed by this project to be sprayed from the air, none would be considered safe for use on lawns where pets and children play. Nine of these chemicals are extremely dangerous and qualify as poison. Only an uncaring person would even contemplate using these poisons where humans recreate and animals live! Under the selected alternative these chemicals are proposed to be sprayed from the air over 78,443 acres on the Lolo National Forest. This is 123 square miles! Spraying such dangerous chemicals from the air that will kill the majority of all vegetation (of which 99% is native and beneficial) on 123 square miles of land owned by the public. This vegetation all serves as habitat to a large number of mammals and birds, and shade for aquatic creatures. Clearly this does not: 1) encourage productive and enjoyable harmony between man and his environment; or 2) promote efforts which will prevent or eliminate damage to the environment and biosphere. This is a violation of NEPA. Response: As discussed in the abstract (FEIS, p. 1), the Summary (FEIS, pp. 1 and 2), and ROD (pp. 1 and 10), and various other places in the FEIS, the area of weed infestation needing treatment on the Lolo National Forest is 78,443 acres; however, up to 15,000 acres would be treated in any one year. The 15,000 acres include all types of treatment; neither the 15,000 acres nor the 78,443 acres are all aerial spraying treatments. While the appellant did not comment about the scale of weed treatment, another member of the public did, and felt the 15,000 acres per year was too small an amount given the infestation on the Forest (FEIS, p. 17).

5 Dick Artley - # The ROD (pp. 13 to 14) indicates the Forest s current capacity to treat weeds is in the neighborhood of 5,000 to 6,000 acres annually. Aerial application would only occur if certain parameters are met (ROD, p. 12) and the aerial application would be done according to the mitigation measures describe in Appendix E of the ROD. It is clear the Forest would use selective herbicides as much as possible to target weeds rather than kill the majority of the vegetation (FEIS, p. 25). The FEIS considered and displayed the impacts of weed management activities on forest resources, including vegetation, soils, water, and fish, and on human health (pp. 41 to 199). The interdisciplinary team considered the available literature (PF, Docs. E-01, M5-29, -30, -31, -32, - 33, -34, -35, -36, -37, -38, -39, -40, -41, -42, -55, -56), and public comments (FEIS, pp. 15 to 20, and 236 to 303). They developed mitigation measures (FEIS, Appendix E) and a plan in case of herbicide spills (FEIS, Appendix C). The project and analysis are in compliance with NEPA. Issue 3. There are safe alternatives to the toxic chemicals proposed for use in this Decision that respond to the Purpose and Need that aren t even considered by Supervisor Austin. The following were not mentioned in the FEIS: Repellex, Organic and Nature s natural herbicide, Bioganic Weed and Grass Killer, corn gluten, and BurnOutII. This is in violation of NEPA that requires the agency to rigorously explore and objectively evaluate all reasonable alternatives. Response: The appellant s comment letter on the Integrated Weed Management project, dated June 7, 2007 did not mention any of these chemicals. He did not put the agency on notice that he wanted them to consider these chemicals as alternatives to the proposed action. The notice and comment period is intended to solicit information, concerns, and any issues specific to the proposed action and to provide such comments to the Responsible Official before the decision is made. The intent in requiring comments is to obtain meaningful and useful information from individuals about their concerns and issues, and use it to enhance project analysis and project planning. Waiting until the appeal period to supply a list of items that should have been considered does not give the Responsible Official an opportunity to consider them in the NEPA analysis or in the decision. Due to the fact the appellant did not bring this list of chemicals to the attention of the Responsible Official at the appropriate time I will not consider the appeal point here. I will point out, however, the transmittal letter states, out of respect and in the spirit of learning about additional weed control tools, we did a cursory review of the product and websites submitted by the appellant in his appeal. The Transmittal Letter then discusses the information they found. It is clear the Forest is trying to look at information the public considered relevant, even when provided late in the process. If the appellant had presented this list to the Forest at the appropriate time, i.e. during scoping or the comment period on the DEIS, the ID team would probably have analyzed it and the Responsible Official would have considered it.

6 Dick Artley - # Issue 4. Monitoring and Mitigation Measures Issue 4, Contention 1. My comments suggesting post-project monitoring is necessary to determine if there are any adverse immediate or long-term effects on non-target organisms was rudely rejected out of hand. The monitoring crews should be alerted to the presence of dead and dying wildlife and birds with no apparent trauma, and be able to identify herbicide induced cancers, herbicide induced vision problems and blindness, herbicide induced fish kills, and herbicide induced birth defects. Response: The appellant s comments on the DEIS were not rudely rejected out of hand. They were responded to in a straightforward, matter of fact tone (FEIS, pp. 235 to 237). The FEIS (pp. 33 and 34) does include post-project monitoring. The Response to Comments (FEIS, p. 237) indicates the monitoring plan addresses those items where the environmental consequences discussions in the FEIS indicate there may be potential impacts. The Response to Comments also says the wildlife analysis (FEIS, pp. 160 to 196) does not indicate potential impacts to wildlife would reach a level to warrant additional wildlife monitoring. Issue 4, Contention 2. Supervisor Austin should send out a news release before each spraying operation asking for people to submit their names and addresses if they walked in the sprayed areas without protective clothing up to 30 days after the spraying. These people should be followed to determine if the incidence of cancers, birth defects, and neurological disease is higher than the national average. Response: Mitigation measures 18 and 19 describe the public notification requirements to be done before herbicides are applied (FEIS, p. 29; and ROD, Appendix E, p. 11). Mitigation measure number 18 concerns the posting warning signs at forest access points. Number 19 concerns informing permittees. The FEIS (pp. 127 to 148) analyzes and displays the risk to human health, and found there to be a low risk to exposed individuals. With the low risk of health effects from exposure, and the small number of people who may be inadvertently exposed, it would not be possible to draw any statistical inferences about human health. Issue 4, Contention 3. Here are selected mitigation measures with the appellant s questions that should have been anticipated and answered by the Forest Supervisor. The appellant then takes issue with 17 of the mitigation measures. Response: The appellant had an opportunity to raise his concerns and have his questions answered about mitigation measures during the comment period on the draft EIS, but did not take advantage of this opportunity. He did not put the agency on notice of his concerns about the mitigation measures. The notice and comment period is intended to solicit information, concerns, and any issues specific to the proposed action and to provide such comments to the Responsible Official before the decision is made. The intent in requiring comments is to obtain meaningful and useful information from individuals about their concerns and issues, and use it to enhance project analysis and project planning. Waiting until the appeal period does not give the Responsible Official an opportunity to consider other information and concerns about the mitigation measures.

7 Dick Artley - # Due to the fact the appellant did not bring his concern to the attention of the Responsible Official at the appropriate time, I will not consider the appeal point about mitigation measures. I will point out, however, the EIS and ROD does discuss the rational for the mitigation measures. The transmittal letter, dated February 19, 2008, signed by the Forest Supervisor and sent to the Regional Forester indicates where this issue is discussed in the ROD, EIS, and project file. Issue 4, Contention 4. The use of herbicide mitigation measures violates several environmental laws, including NEPA because the implementing of mitigation measures increases the adverse effects of the aerial herbicide application, and does not: 1) encourage productive and enjoyable harmony between man and his environment, or 2) prevent or eliminate damage to the environment and biosphere. Response: The mitigation measures (FEIS, pp. 28 to 31) would be implemented in order to minimize the impacts on non-target plants, animals, and the public (ROD, p. 25). The use of mitigation measures is in compliance with NEPA s implementing regulations at 40 CFR Issue 5. The ROD never specifically identifies how many acres will be treated with herbicides annually. Nowhere in the EIS is the reader actually told how many acres (or what percentage) will be treated by herbicides on annual basis. Nothing stops Supervisor Austin from treating 14,999 acres per year with herbicides. In the mind of the appellant, the difference between treating 14,999 acres per year versus 15 acres of public land with extra heavy infestations is significant. Response: The FEIS (pp. i, 1 to 2, 4, 11, 17, 21 to 22) and ROD (p. 6) explain that an upper limit of 15,000 acres per year would be treated. It is this upper limit that was analyzed in Chapter 3 of the FEIS for impacts on the environment. The ROD (pp. 1, 10, and 12) indicates the Forest has a capacity to treat between 5,000 and 6,000 acres per year, which is what the Forest is currently treating under existing NEPA. This is the amount the Forest expects to treat each year. It is not possible to determine exactly how many acres would be treated each year because the amount treated each year is determined by funding, staffing levels, the invasiveness of the species to be treated, the potential for spread, and the ecological importance or rarity of the sites being treated (ROD, pp. 10, 13 to 14). The analysis is in compliance with NEPA. Issue 6. Spraying herbicides from the air on up to 78,443 acres will kill every plant whose foliage is contacted with even a mili-drop of herbicide. Such destruction of non-target vegetation is unacceptable. Response: As discussed in Issue 2, aerial spraying will not be conducted on over 78,000 acres. The FEIS (pp. 6 and 25) points out the Forest will use selective herbicides in most cases. In fact only one of the listed herbicides, glyphosate, is not selective. Glyphosate would be used selectively, i.e. applied to individual plants. Research discussed in the FEIS (pp. 83 to 84) indicates the herbicide treatments are very selective and have a low overall impact on non-target forb species. Not every plant contacted by herbicide would be killed.

8 Dick Artley - # Issue 7. In most cases, negative ecosystem effects to the ecosystem are never mentioned. In the few cases where the text admits the herbicide application might have adverse effects, it was explained away as being short-term. Then in some cases after the undefined short term period is over, the text says that the non-target species will be in better condition than before spraying. The NEPA document violates 40 CFR (b), because it fails to make High quality environmental information available to public officials and citizens before decisions were made and before actions were taken. Accurate scientific analysis, expert agency comments, and public scrutiny of complete and accurate information are essential to implementing NEPA correctly. Response: High quality information and scientific analysis was used in the preparation of the FEIS. The analysis in Chapter 3 is based on a substantial amount of published literature (FEIS, pp. 203 to 231). This includes numerous published papers and research, and the extensive reports and worksheets on human health and ecological risk assessments prepared by Syracuse Environmental Research Associates, Inc. (PF, Docs. M3-11 to M3-44, M5-23 to M5-59, M9-09 to M9-41, M15-55 to M15-80). The analysis is in compliance with NEPA. RECOMMENDATION I have reviewed the record for each of the contentions addressed above and have found that the analysis and decision adequately address the issues raised by the appellant. I recommend the Forest Supervisor s decision be affirmed and the appellant s requested relief be denied. /s/ Jane L. Cottrell JANE L. COTTRELL Appeal Reviewing Officer cc: Forest Coordinator Responsible Official