April 15, 1999 Pat Flowers Forest Management Bureau DNRC - Trust Land Management Division 2705 Spurgin Road Missoula, MT 59804 Dear Mr. Flowers, Thank you for the opportunity to comment on the Rollins Chunck Timber Sale. We appreciate the time and effort it takes to thoroughly analyze these and other comments on these projects. These comments are submitted on behalf of the Alliance for the Wild Rockies and the Ecology Center, Inc. Our comments and concerns are focused in three major areas, the insufficiency of alternatives in your EA, the inadequate cumulative effects analysis in your EA, and the inadequate economic analysis in your EA. Please fully consider these comments in making your decision on this project. 1. Insufficient Range of Alternatives - We recognize that as a State Agency entrusted with the management of state lands, you are not subject to the provisions of NEPA, its implementing regulations, or those federal cases interpreting its mandates. However, because MEPA caselaw has largely followed NEPA's interpretation, the following discussion should be considered in your decision-making. The EA presents the public with only two alternatives, the "No Action" or status quo alternative, and the "Action Alternative". This "range" of alternatives subverts the intent of both NEPA and MEPA to fully inform the decision maker and provide the public with a better understanding of the Agency's rationale for its decision. The range of alternatives in an [EA] must promote a reasoned choice and provide the agency with enough information to make a truly informed choice. State of California v. Block supra, 690 F.2d at 762. See also 40 C.F.R. 1502.14 (a) (Agency must rigorous and objectively evaluate all reasonable alternatives in [EA]). An [EA] is rendered inadequate by the existence of a viable, but unexamined alternative. Citizens for a Better Henderson v Hodel, 768 F2d 1051, 1057 (9th Cir. 1985). The necessity of examining all reasonable alternatives was recognized by the federal District Court of Montana over a decade ago: The Court recognizes the broad scope of an agency's duty to study all reasonable alternatives. Appearing twice in the text of NEPA, the duty is more pervasive than the duty to prepare an [EA]. Bob Marshall Alliance v. Watt, 685 F.Supp. 1514, 1521 (D. Mont 1986)(emphasis added). Consideration of a reasonable range of alternatives is the "heart" of the public participation process, "sharply defining the issues and providing a clear basis for choice among options by the decision maker and the public." 40 C.F.R. 1502.14. A number of issues were raised in the scoping stage of the project. (See pp. 3-5, EA). Yet, your EA provides no discussion of any alternatives other than either maintaining the status quo or employing the action alternative. In essence, your EA considers only one viable means by which to meet the purpose and need of the project while adequately addressing the range of issues identified. Your mandate is to "administer trust lands to produce the largest measure of reasonable and legitimate return over the long run" specified beneficiary institutions (See, MCA sec. 77-1-202)(emphasis added). Clearly, there are other alternatives which would accomplish this goal other than the Action Alternative. Simply stated, you have the option of cutting far more trees to obtain a greater monetary return in the short term and manage these lands for long-term regeneration, or you may choose to cut far fewer trees in the short-term and maintain this area as a "reserve" forest should there be a greater need in the future. The EA contains no explanation or justification for failing to consider such viable alternatives. As a trustee of these lands, this failure is wholly inadequate. We are cognizant that MEPA does not mandate any particular substantive result. See, Ravalli Co. Fish and Game Ass'n. Inc. v. Dept. of State Lands, 273 Mont. 371, 377, 903 P.2d 1362, 1367 (1995). However, the presentation of alternatives must be undertaken in good faith and is not to be employed to justify a decision already reached. Citizens Against Toxic Sprays Inc. v. Bergland, 428 F.Supp. 908 (D. Or. 1977). We therefore ask that you forego the present action until such time as you abide by your fiduciary duty and further consider other viable alternatives or otherwise supplement the EA. 2. Inadequate Cumulative Effects Analysis There are a number of flaws in the cumulative effects analysis. These flaws include a failure to integrate data on a comprehensive level throughout the project area, breaking the project area down into smaller components such that the impacts in any given component are not significant by themselves (even though they may pose significant cumulative impacts on the resource of the project area (a problem in the scope of analysis), merely describing the present condition of a resource without adequately showing how that resource will be cumulatively affected by the Action Alternative, and a general failure to consider future activities across the board. a. Failure to integrate data on a comprehensive level - In order to adequately analyze the cumulative impact of the project on a particular resource, it is necessary to have an understanding of the present conditions of that resource and to fully comprehend the past activities that have resulted in the present status of the resource in question throughout the project area as a whole. Although the EA does include some description of the cumulative effects of past activities, it fails to address this issue when considering the cumulative impacts of this project on Soils and Geology (EA, p. 13-15). In discussing the cumulative impacts of this project on soils, the EA divides the project area into smaller, drainage level components for analysis of past activities and description of existing conditions. While this may suffice as an initial step toward a comprehensive picture of the cumulative effects from past activities, the EA fails to take the next step in integrating the data from individual drainages. Because of this, the EA's discussion of the cumulative effects of this project cannot be correlated on a comprehensive level in order to provide an overall picture of this project area. As such, the cumulative impacts discussion for soils found in the "affected environment" chapter can only be correlated to each geographic component of the project area. This does not provide the public or the deciding officer any meaningful idea of what the cumulative effects from this project will be on the project area as a whole for these resources. b. Individually insignificant but cumulatively significant impacts - In a similar manner, the EA fails to comprehensively consider the cumulative impacts of this project on the Watershed resource. The EA states that this project is located in Birch Creek, Big Lodge Creek, and Forrey Creek. (EA, p. 15). However, for at least Big Lodge and Birch Creeks, the EA states that: " A Level I screening was described in the SFLMP Record of Decision, was used to assess cumulative impacts for the [Big Lodge, Birch Creek Watersheds]. Due to the connectivity of the stream, and the scale of the project in the watershed, no further analysis was deemed necessary". (EA, p. 19]. There are two problems with this approach. First, the SFLMP clearly states in relevant part that "[e]xcept for small-scale projects with very low potential for impacts, additional analysis would be required" beyond that employed in Level I screening. [SFLMP ROD, p.22]. The project under consideration will log 5 million board feet. The project area includes 1,657 acres of land. It is hard to believe this project would qualify as a "small-scale" project as intended in the SFLMP. As such, the EA should be include at least a Level 2 - Preliminary Watershed Analysis as directed by the SFLMP. However, as with its analysis of soils, the EA analysis has divided the project area into smaller components, namely, Big Lodge Creek, and Birch Creeks. While doing so may provide an appropriate point from which to begin the cumulative effects analysis, a comprehensive picture of the project area requires the integration of past impacts data from each of the drainages. Only then can the deciding officer legitimately claim to understand the cumulative impacts of this project on the Watershed resource in any comprehensive manner. Because the EA divided the project area into drainages for purposes of cumulative effects analysis, it erroneously concluded that the impacts in any single drainage did not warrant any further (Level 2) cumulative effects analysis for this resource in two out of three major drainages within the project area. The EA's analysis of the cumulative effects of this project on the Watershed resource is sorely lacking. c. Mere description does not equate to cumulative effects analysis - With the exception of its brief analysis for Big Game, the EA is entirely devoid of any meaningful discussion of the cumulative impacts of this project on Wildlife (T and E as well as Sensitive Species). There is no discussion of this issue at all in Chapter Three where the EA should describe the existing conditions of certain Wildlife species within the project area as a whole. In Chapter Four, the EA titles certain sections to include the term "Cumulative Effects" but merely describes the impacts of this project alone. A mere description of the impacts from this project on a wildlife species is wholly insufficient and cannot be considered a legitimate cumulative effects analysis. The EA provides neither the public nor the deciding officer with any substantive perspective of how this project cumulatively effects the resource in question. d. Failure to consider future activities - Finally, there is no indication anywhere within the EA that reasonably foreseeable future projects were considered. This clearly a violation of the DNRC's statutory and fiduciary duties under MEPA. ARM 36.2.524 states as follows: ...the collective impacts on the human environment of the proposed action when considered in conjunction with other past and present actions related to the proposed action by location or by generic type. Related future actions must also be considered...". (emphasis added). The sum total of these comments on the cumulative effects analysis show a pattern of inadequacy, insufficient information, and a general failure to meet statutory and regulatory requirements. We respectfully ask that you forego the implementation of this project until these problems can be corrected. 3. Inadequate economic analysis - The DNRC is charged with managing the State's trust lands. See Enabling Act of February 22, 1889; and 1972 Montana Constitution, Article X, Section 11 (cited in EA, p. 1). As trustor, the DNRC has a fiduciary duty to ensure that it is acting in the best interests of the trustee (the people of Montana), within the guidelines and constraints of the trust. In light of the DNRC's fiduciary duty to the people of Montana, the economic analysis in the EA is inadequate. For instance, because the costs of administering timber sales is tracked at the Land Office and State levels only, the EA can only provide for a "relative comparison" of the alternatives. Moreover, the public (trustee) cannot use the figures in the analysis as even an estimate of "absolute returns" from the project under each alternative. An "educated guess" from your economist does not, under any interpretation, meet the standard of a fiduciary duty. In addition, the economic analysis provided in the EA ignores several legitimate factors when considering the costs and benefits of each alternative. Net public benefit is determined by numerous inputs and outputs, some of which are quantifiable and others which are more qualitative. Economic analysis can provide a useful basis for evaluation only if the economic evaluation is comprehensive and documents all costs and benefits related to the proposed action. Your analysis should therefore: (1) Consider that benefits to the people of Montana include monetary and non-monetary factors. Value of timber sold is only one measure of return to the state school trust fund. Other measures are value of access permits sold to recreationists, value provided through protection of wildlife, water quality and air quality, and long-term integrity of the ecosystems in this state. Also, we feel you should consider the value of existing non-traditional economic assets such as berry picking, mushroom harvest, and any other relevant wild crafting commodities that may be produced from these lands, and how these values may be reduced by timber sales; (2) Adequately assess all current in-place benefits, including hunting, fishing, hiking, bird watching, water quality and air quality; (3) Include any adverse impacts to hunter opportunity and other forms of recreation (how will the proposed project impact the quality of backcountry hiking, for example?); (4) Quantify all induced losses to outfitters and guides who may currently derive economic benefits from the areas, as mentioned in (1); (5) Consider all costs related to the projects, including the costs of preparing the analyses, all specialist support and consultation, costs associated with travel management and administration, road construction and removal and engineering expenses, weed control, reforestation and planting, stand exams, timber stand improvement, etc., and weigh these against returns to the school trust to determine whether real benefits accrue to the state. Finally, EA should document how your decisions and the selected alternatives maximize net public benefit. In other words, you should give consideration to, and adequately document, who benefits by these projects and who "pays" for them. We very much appreciate the opportunity to contribute our comments to your decision-making process. we look forward to reviewing how these comments are considered in your analysis and final decision on this project. Thank you for your time. Alliance for the Wild Rockies Deb Kmon Ecosystem Defense Program The Ecology Center, Inc. P.O. Box 8731 801 Sherwood, Suite D Missoula, MT 59807 Missoula, MT 59802 Very Truly Yours, Michael Wood Ecosystem Defense Program Director _____________________________ Mike Wood (mwood@wildrockies.org) Alliance for the Wild Rockies Box 8731 Missoula, MT 59807 (406) 542-0050