BEFORE THE REGIONAL FORESTER, USDA FOREST SERVICE, NORTHERN REGION, MISSOULA, MONTANA

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1 BEFORE THE REGIONAL FORESTER, USDA FOREST SERVICE, NORTHERN REGION, MISSOULA, MONTANA Via In Re: Objection to the Draft Decision ) Notice & Finding of No Significant Impact ) and accompanying Final ) Environmental Assessment ) for the Elkhorn Gravel Pit ) on the Dakota Prairie National Grasslands ) Amy Cole National Trust for Historic Preservation 1420 Ogden Street, Suite 201 Denver, CO acole@savingplaces.org Elizabeth S. Merritt National Trust for Historic Preservation The Watergate Office Building 2600 Virginia Ave. NW, Suite 1100 Washington, DC emerritt@savingplaces.org OBJECTOR OBJECTION NO. OBJECTOR STATEMENT OF FACTS ARGUMENTS in SUPPORT OF OBJECTION SUGGESTED REMEDIES DATED this 13th day of June 2014 By Amy Cole, Senior Field Officer and Attorney, National Trust for Historic Preservation 1

2 By Elizabeth Merritt, Deputy General Counsel, National Trust for Historic Preservation OBJECTOR NOTICE IS HEREBY GIVEN that the NATIONAL TRUST FOR HISTORIC PRESERVATION files this Objection pursuant to 36 C.F.R to the Deciding Officer, Faye Kruger, Regional Forester of the Northern Region of the United States Forest Service, from the Draft Decision Notice & Finding of No Significant Impact and accompanying Final Environmental Assessment (EA) for the Elkhorn Gravel Pit on the Dakota Prairie National Grasslands. The responsible official for the Elkhorn Gravel Pit project is Ronald W. Jablonksi, Jr., District Ranger, Medora Ranger District, USFS Dakota Prairie Grasslands, Dickinson, ND. The National Trust has a long-standing interest in the preservation of our nation s irreplaceable historic resources. In 1949, Congress chartered the National Trust as a private charitable, educational and nonprofit organization to facilitate public participation in historic preservation, and to further the purposes of federal historic preservation laws. 16 U.S.C. 461, 468. Congress intended that the National Trust mobilize and coordinate public interest and participation in the preservation and interpretation of sites and buildings from voluntary resources. S. Rep. No. 1110, 81 st Cong., 1 st Sess. 4 (1949), reprinted in 1949 U.S. Code Cong. & Ad. News 2285, With a million supporters nationwide, the National Trust has been involved in helping federal, state and local agencies effectively address and resolve issues affecting historic resources for more than 60 years. Because Theodore Roosevelt s Elkhorn Ranch and Greater Elkhorn Ranchlands National Historic District (National Register District) is nationally significant for its association with Theodore Roosevelt, and because it is faced with various threats to its integrity (including the proposed gravel pit), the National Trust named it to our 2012 list of America s 11 Most Endangered Historic Places and has also named it a National Treasure, making it part of a program through which we mobilize our more than 60 years of expertise and resources and take direct action to protect threatened buildings, neighborhoods, communities, and landscapes that stand at risk across the country. The National Trust is entitled to file an objection pursuant to 36 C.F.R , because we have filed timely, specific written comments on this project. We submitted scoping comments on the EA on November 4, 2011, and later submitted comments on the Draft 2

3 EA on June 8, 2012, and those comments are incorporated by reference as provided for in 36 C.F.R (b). In addition to issues raised in these comment letters, we also raise a new matter, which is based on new information first presented in the Final EA, and therefore, could not have been previously commented upon. 36 C.F.R (c). STATEMENT OF FACTS The Legal Notice announcing the publication of the Final EA and Decision Notice (DN) appeared in the Bismarck (ND) Tribune on April 29th, The proposed gravel pit would occur on 24.6 acres within the National Register District in the Medora Ranger District, Dakota Prairie Grasslands, near Medora, ND. The Draft Decision Notice approved Alternative 2 for the project. This alternative would enable a Forest Service Surface Occupancy Permit for the development of the gravel pit and for special use and road use authorizations for the use of the existing Forest Service road system. ARGUMENTS IN SUPPORT OF OBJECTION I. We object to the Forest Service s approach to compliance with Section 106 of the National Historic Preservation Act (NHPA) as described in the EA, and we contend that the EA lacks adequate assessment of impacts to tourism at Theodore Roosevelt National Park. In previous project comment letters, which are incorporated into this objection by reference, the National Trust has consistently raised concerns about the direct and indirect effects that the gravel pit would have on historic properties, including the National Register District within which the gravel pit would be constructed. These concerns include impacts on tourism; impacts from additional traffic; the need for noise mitigation, hour limitations, and site reclamation; and the visual impact the gravel pit would have. A. Deferred Compliance with NHPA as reflected in the EA In addition to NEPA compliance, the Forest Service must comply with Section 106 of the NHPA, prior to making its decision on the project. 16 U.S.C. 470f. Although discussion of NHPA compliance is woven throughout the EA, we believe the Forest Service (FS) has inadequately met its Section 106 obligations, because it has failed to complete the Section 106 review process prior to issuing its Decision Notice (DN). The approach taken by the agency is also incongruous with the March 2013 Council on Environmental Quality and Advisory Council on Historic Preservation 3

4 coordination guidance document NEPA and NHPA: A Handbook for Integrating NEPA and Section 106. This helpful publication outlines which steps from NEPA and NHPA should be undertaken concurrently. The Forest Service is obligated to look for consulting parties to participate in the Section 106 process and to respond to requests initiated by others. 36 C.F.R (f) states that, [i]n consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward. In addition, the same section states that, [t]he agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an undertaking occurs or affects historic properties, determine which should be consulting parties. Throughout the Section 106 process, consulting parties play a valuable role in helping the agency avoid, minimize or mitigate effects on historic properties. Consultation is defined as the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them. 36 C.F.R (f). The National Trust requested to participate as a consulting party in our November 4, 2011 EA scoping letter. However, we did not receive a response to this request until more than two and a half years later, on June 2, 2014, more than a month after the Final EA had been issued, and two days before an FS-signed Memorandum of Agreement was sent to the North Dakota State Historic Preservation Office (NDSHPO). Because the Forest Service failed to respond to our request in a timely manner and did not engage in true consultation where the consideration and discussion of views were addressed, the requirements of Section 106 were not satisfied. In addition to identifying and consulting with consulting parties, there are four basic steps to Section 106 review that must be followed, which are to initiate the process, identify historic properties, assess effects and resolve any adverse effects. 36 C.F.R. Part 800. These steps must be completed prior to the agency s decision. 16 U.S.C. 470f. 1. Initiate the process: The Forest Service did initiate the Section 106 review process by communicating with the SHPO in However, as described above, it did not adequately address the need to identify and include other consulting parties early in the process. 4

5 2. Identify historic properties: We are puzzled by the process by which the Forest Service attempted to identify historic properties, as raised in our two comment letters incorporated by reference. An Area of Potential Effects (APE) should be determined for the project and then historic properties within it should be surveyed or otherwise identified. 36 C.F.R (a)(1), (d). It does not appear that an APE was ever identified, making the identification of historic properties within an unidentified area a challenge. Initially, the nationally significant National Register District was not even described in the Draft EA as being a historic property, although that was corrected in the Final EA. Furthermore, in our June 8, 2012 comment letter we asked for documentation about identification of historic properties, which has not been addressed. While there is some reference to surveys being done in the past, the Final EA makes several curious assertions about the presence of historic properties, including, [n]o prehistoric or historic cultural resource or feature are located directly within the boundaries of the gravel pit. Final EA at 32, 33. Later the Elkhorn Ranchlands Historic District is described as adjacent to the project, although the gravel pit is in fact within the Historic District, not next to it. Id. We also note that the EA explains that site visits with tribes are continuing to occur throughout the spring of 2014, including one planned for June 11, 2014 to further confirm that there are no intact stone features of religious or cultural significance, so it seems apparent that identification of historic properties is in fact still incomplete and ongoing. Final EA, Appendix D at 3, Letter from Dennis Neitzke, Grasslands Supervisor, to National Trust for Historic Preservation dated May 22, The Response to Comment #3 (a comment taken from the National Trust s comment letter of June 8, 2012) generally describes surveys that have not been made available for consulting party review, and then erroneously states that the EA and online documentation does not include any cultural resource specific information because this is protected information under the National Historic Preservation Act and the Archaeological Resources Protection Act (ARPA). Final EA, Appendix D at 3. In fact, there is no blanket prohibition in either cited statute on disclosure of site information. The NHPA allows withholding information about location, character or ownership of historic resources only when an agency determination is made that making that information public would 1) cause a significant invasion of privacy; 2) risk harm to the historic resources and 3) impede the use of a traditional religious site by practitioners and if that determination is made, the agency must then determine who will have access to the information for the purposes of carrying out NHPA. 16 U.S.C. 470w-3(a). In this case, disclosure for the 5

6 purposes of complying with Section 106 would be warranted. Section 9 of ARPA relates to the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission, and permits disclosure if it would further the purposes of ARPA and not create a risk of harm to resources. 16 U.S.C. 470hh. In this case, ARPA likely does not apply to the circumstance of reviewing survey documents for the purposes of NHPA compliance, and redaction of specific location information for archaeological resources in a broader survey document is always an option. In any event, whether or not the Forest Service chooses to include survey information in the EA, that data was otherwise not made available for consulting party input or review, as required by 36 C.F.R (d)(2). 3. Assessment of effects: There has also been considerable agency confusion about the assessment of potential effects of the gravel pit on historic properties. Initially, the Draft EA did not even recognize that the project would have an adverse effect on the National Register District, although the gravel pit would be directly within it. It was also unclear whether other historic properties had been identified, and if so, what effect the project could have on those sites. These concerns were raised in the National Trust s comment letter of June 8, Copies of correspondence obtained from the NDSHPO shows that on October 29, 2013, the NDSHPO did concur with the Forest Service s revised determination that the project would have adverse effects. However, the EA says that the NDSHPO [stated] that there is an adverse effect to historic properties; however, it will be mitigated so that it is not a significant adverse effect. Final EA at 35. This is not an accurate characterization of the SHPO s letter. Moreover, there is no such thing as not a significant adverse effect in the Section 106 regulations. The SHPO s October 29, 2013 letter states: We reviewed ND SHPO REF: USFS DEA on Braunberger Mineral Pit in portions of [144N R 102W Section 34] Billings County, North Dakota. We concur with the Adverse Effect determination for this project and recommend that an MOA be drafted to address the mitigation of those effects. Mitigation measures can include reseeding and replanting, re-contouring, educational panels or programs, evaluation and reporting of any residual effects (those expected to last several years after the anticipated closure of the gravel operation), and other measures. Further consultation among consulting parties is recommended for a clearer understanding of the impacts, especially those that would remain after the mining ceases. Thank you for the opportunity to comment. 6

7 We agree there is information in the EA that attempts to identify the nature of these adverse effects. See, e.g., EA at 33. However, as cited above, that information was otherwise not made available for consulting party input or further consultation as required by 36 C.F.R , and as specifically recommended by the SHPO. 4. Resolution of effects: Once adverse effects are identified, per 36 C.F.R (a) the agency must engage in consultation to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or mitigate adverse effects on historic properties, and then continue to consult with all parties to resolve adverse effects. Id (b). The National Trust, and presumably other parties, were not given this opportunity. Although the Forest Service did include some mitigation for the project Operating Plan, some of the suggestions from the NDSHPO letter of October 29, 2013 were not addressed - e.g., educational panels or programs, evaluation and reporting of any residual effects, etc. Again, the resolution of adverse effects requires input from all parties. The Forest Service is also required to notify the Advisory Council on Historic Preservation (ACHP) about an adverse effect, and invite the ACHP to participate in the consultation to resolve the adverse effects. Id (a)(1). Although the adverse effect determination was made in October 2013, the ACHP was not notified until more than seven months later, after the final decision was made, during the week of June 2, As recommended by the NDSHPO letter of October 29, 2013, and as described in the regulations at 800.6(c), a Memorandum of Agreement (MOA) should be developed to document the successful completion of the Section 106 process. We were very surprised to learn that the Forest Service unilaterally drafted and executed an MOA, without the participation or review by any consulting parties, include NDSHPO, and sent it to the NDSHPO and ACHP the week of June 2, 2014, well over a month after the Final EA was published. Among its other flaws, this MOA does not meet the duration, amendment and termination language for an MOA required in the regulations. 36 C.F.R (c)(5)-(8). Although the list of substantive stipulations in the MOA does contain a number of mitigation measures that we support, others listed (such as controlling noxious weeds) do not seem related to historic property concerns and therefore should not be included. Again, since this document was not 7

8 discussed with consulting parties, there was no opportunity to address either the ideas presented or other measures that would avoid, minimize or mitigate adverse effects. For example, additional mitigation could address limitations on the frequency and routes for truck trips, which contribute to both a noise and visual adverse effect (now estimated to be between 3-6 or 4-6 per hour over 215 days); educational programs (e.g., interpretive materials about the National Register District and the role of place in shaping Theodore Roosevelt as a conservationist); and stronger reclamation requirements to return the gravel pit area to pre-project conditions more quickly than is now proposed, so that it would not take decades to reclaim the overall landscape of the area. Final EA at 33. B. Inadequate assessment of impacts to tourism In addition, the EA fails to adequately assess impacts to heritage tourism. As raised in the National Trust s comment letter of June 8, 2012, we do not believe the EA adequately analyzes the possible tourism and economic implications of a degraded visitor experience and thus reduced visitation to Theodore Roosevelt National Park. In fact, the EA states that the visitation to the Elkhorn Ranch Unit has never been tracked or estimated and that therefore it would be speculative to consider any potential economic impacts. Final EA at 44, Appendix D at 17. When necessary data is lacking, a logical step is to acquire the necessary data and then act upon it accordingly. However, there is no suggestion in the EA that a solution to the lack of data would be to conduct a visitor study or poll, and that information gained there could be used to consider economic effects. The Forest Service arbitrarily decided it didn t have data, didn t want to get any, and therefore would not pursue any analysis about potential tourism impacts. Based on the preceding rationale, a complete Section 106 process must be undertaken prior to issuing a decision, and additional analysis of impacts to tourism must be evaluated through the preparation of a supplemental EA. II. We object to the fact that the Forest Service did not adequately consider a reasonable range of alternatives as required by NEPA, by failing to address the possibility of a land exchange as an alternative in the Draft EA, then adding it as an alternative but dismissing it without further consideration in the Final EA. The Draft EA set forth three initial alternatives. These included an alternative that would have purchased the mineral rights from the Operator, but this alternative was not carried forward in the Draft EA for further analysis. Draft EA at 21. Thus the only two alternatives analyzed in the Draft were the No Action Alternative and 8

9 the Proposed Action Plan of Operations with Additional Stipulations. There was no alternative presented that could have resulted in the project being relocated, although this would clearly be the most beneficial alternative for historic properties about which we are now concerned. The Final EA added a fourth alternative, which had not previously been disclosed. The exchange alternative would have exchanged the surface mineral rights between the Operator and the Forest Service. Final EA at 18. The addition of this new alternative is new information under 36 C.F.R (c) and therefore appropriate subject matter for this objection. We believe that the exchange should have been further analyzed and carried forward, rather than raised only in the Final EA and summarily dismissed. The reasons cited for dismissing this alternative from further analysis included: (1) an agreement to pursue a mineral exchange was signed by the FS and the Operator; (2) potential liability could result from partial federal mineral ownership and therefore would have required 100% acquisition of the mineral ownership; and (3) the agreement cited in (1) was withdrawn by the Operator. Although the EA says the government would have been required to obtain 100% of the mineral ownership, there is no agency policy or law that prohibits the Forest Service from acquiring partial interests in land ownership in this case. In fact, there is an entire section of the Forest Service Land Acquisition Handbook dedicated to the subject of partial interests and partial interest acquisition that may be undertaken to accomplish management objectives. FSH Although the Forest Service has not yet undertaken the plan amendment needed to specifically address the management of the Elkhorn Ranchlands parcels acquired in 2007, the existing 2001 Grassland Land and Resource Management Plan (LRMP) does set forth several general management objectives for heritage resources, including: 4. Prohibit disturbance of heritage resources by management activities or vandalism through project design, specified protection measures, monitoring, and coordination. (Standard) and; 6. Limit non-research oriented ground-disturbing activities on heritage districts and sites eligible for the National Register Historic Preservation (NRHP) that creates adverse impacts to the district or site. (Guideline) LRMP at 1-24, 25. This direction from the LRMP should be relied upon as management objectives referenced in FSH , and therefore, supports the FS s ability to pursue acquisition of partial interests in order to prohibit disturbance of heritage 9

10 resources and limit... ground disturbing activities on... sites eligible for the National Register. Furthermore, agency policy stated in Forest Service Manual 2830 also allows the acquisition of mineral rights when there is conflict and when the public benefits derived from surface values are deemed to justify the cost of acquisition. FSM In this case, protection of the National Register District, which is nationally significant, is a clear public benefit derived from surface values. Pursuing an exchange would also comply with the Forest Service s stewardship responsibilities under Section 110(a) of the NHPA, which require the agency to ensure that its historic properties are managed and maintained in a way that considers the preservation of their historic, archaeological, architectural, and cultural values in compliance with section 470f of this title and gives special consideration to the preservation of such values in the case of properties designated as having National significance. 16 U.S.C. 470h-2(a)(2)(B). Finally, there is inconsistent information in the EA about how and/or whether the exchange alternative is still being pursued. While it is described as dismissed from further analysis on page 18 of the EA, contradictory information is presented in Appendix D Response to Comments. For example, Response to Comment #19 states, [w]hile the Forest Service and the Applicant entered into an Agreement in Principal to start feasibility discussions on a potential exchange [sic]. This was very preliminary and non-binding with the intent to work towards identifying potential exchange options that hopefully can be carried forward to a more formal agreement. The entire process could take several years to complete. The Applicant is still willing to consider a potential exchange in the future. EA Appendix D at 9. This statement leads the reader to assume that the exchange is still being pursued. Based on the preceding rationale, we believe that additional analysis is required for the exchange alternative through the preparation of a supplemental EA. SUGGESTED REMEDIES In accordance with 36 C.F.R (c)(5), objector recommends the following changes: 1. Rescind the Decision Notice for the project. 2. If the project proceeds, do the following: 10

11 a. Prepare a supplemental EA that analyzes the previously rejected exchange alternative and further analyzes effects to tourism; b. Complete the NHPA Section 106 process in accordance with the regulations found at 36 C.F.R. Part 800, prior to issuing a new Decision Notice. 11