BEFORE THE REGIONAL FORESTER, USDA FOREST SERVICE, NORTHERN REGION OF THE UNITED STATES FOREST SERVICE

BEFORE THE REGIONAL FORESTER, USDA FOREST SERVICE, NORTHERN REGION OF THE UNITED STATES FOREST SERVICE Via e-mail: appeals-northern-regional-office@fs.fed.us In Re: Objection of the Draft Decision ) Notice and accompanying Finding of ) No Significant Impact for the ) Elkhorn Gravel Pit ) ) on the Dakota Prairie Grasslands, ) Medora Ranger District. ) National Parks Conservation Association Northern Rockies Regional Office Tim Stevens, Northern Rockies Regional Director 109 W. Callender St., Suite 4W Livingston, MT 59047 OBJECTOR OBJECTION NO. OBJECTOR STATEMENT OF FACTS ARGUMENTS SUGGESTED REMEDIES DATED this 12th day of June 2014 By Tim Stevens, Northern Rockies Regional Director National Parks Conservation Association 1

OBJECTOR NOTICE IS HEREBY GIVEN that the NATIONAL PARKS CONSERVATION ASSOCIATION, NORTHERN ROCKIES REGIONAL OFFICE files this Objection pursuant to 36 CFR 218.8 to the Objection Reviewing Officer, Regional Forester of the Northern Region of the United States Forest Service from the Draft Decision Notice and Finding of No Significant Impact for the Elkhorn Gravel Pit Project on the Medora Ranger District of the Dakota Prairie Grasslands. The Proposed Decision to approve the Elkhorn Gravel Pit was made by the District Ranger, Ronald Jablonski. The National Parks Conservation Association (NPCA) is a non-profit 501 (c) (3) organization incorporated in the District of Columbia, whose mission is to protect National Parks for future generations. NPCA has an organizational interest in the proper and lawful management of federal lands in western North Dakota and are near Theodore Roosevelt National Park, specifically on the Dakota Prairie Grassland. NPCA s members, staff, and board members participate in a wide range of wildlife viewing and other recreational activities on the Dakota Prairie Grasslands and the adjacent Theodore Roosevelt National Park, including the project area and surrounding landscape. NPCA represents individuals, organizations, and businesses, many of whom have visited the Dakota Prairie Grasslands, adjacent lands and the watersheds and associated lands that will be impacted by the gravel mine project, and have a direct interest in its management. NPCA claims standing to participate in the public land decision-making process on the grounds that NPCA has been involved in public land management issues in western North Dakota for many years. Our members have hiked, photographed and camped within portions of the project area and adjacent lands that would be effected by the gravel pit project. The procedural harm and direct physical impacts associated with this decision detract from the ability of our members to be involved in the decision-making process of our public lands as well as the outstanding natural beauty and historic significance that makes these lands in and adjacent to the gravel pit project area so appealing to our members who utilize these lands. In addition, as citizens of the United States and being that these are public lands, NPCA claims partial ownership of the public lands covered by this 2

decision and consequently has legal standing to participate in the process and challenge those decisions it finds unacceptable and inconsistent with applicable laws and regulations. STATEMENT OF FACTS The Legal Notice appeared in the Bismarck Tribune on April 29, 2014. NPCA has submitted timely comments on the draft EA and those comments are incorporated by reference as provided for at 36 CFR 218.8(b). The Elkhorn Gravel Pit is located on a portion of section 34 T144N R102W, completely within the boundaries of Theodore Roosevelt s Elkhorn and Greater Elkhorn Ranchlands National Historic District within the Dakota Prairie Grasslands. The gravel operation would be located east and across the river from the Elkhorn Ranch Historic Site at a distance of.8 miles to about a mile, depending on the phase of operation. The Elkhorn Ranch Historic Site is a unit of the Theodore Roosevelt National Park, managed by the National Park Service. The Elkhorn Ranchlands Historic District was listed on the National Register of Historic Places on September 28, 2012. The Historic District is 4,402 acres in size. Operations would occur between April and November and the gravel pit would be approximately 24.6 acres in size; and area to be mined is approximately 19.4 acres. The mining would occur in five phases. ARGUMENTS IN SUPPORT OF OBJECTION I. THE ENVIROMENTAL ASSESSMENTS RANGE OF ALTERNATIVES IS INADEQUATE IN VIOLATION OF NEPA. NPCA raised this issue on page 3 of our draft EA comments. A) The FEIS analyzes only two alternatives the no action and the preferred alternative. The Forest Service dismissed two other viable action alternatives an exchange of rights for somewhere else on the Grassland, and an outright purchase for unsupportable reasons that will be raised later on in this objection but for the purposes of the Forest Service s failure to analyze an 3

reasonable range of alternatives, it didn t and in doing so it fails to comply with the law. The Forest Service has identified one action alternative and one no-action alternative which it says it cannot legally implement. That leaves us with one viable alternative. This poor range of action alternatives violates the Council on Environmental Quality regulations implementing the National Environmental Policy Act: Agencies shall [r]igorously explore and objectively evaluate all reasonable alternatives. 40 CFR 1502.14. Under case law, the 1-alternative scheme clearly does not pass muster. Case law holds that where the Forest Service considered only a no-action alternative along with "two virtually identical alternatives," the Court held that the agency "failed to consider an adequate range of alternatives." Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 813 (9th Cir. 1999). The highly restricted range of alternatives evaluated and considered violates the very purpose of NEPA's alternative analysis requirement: to foster informed decision making and full public involvement. 42 USC 101; 42 USC 102(2)(E); 40 CFR 1508.9(b); Robertson v. Methow Valley Citizen's Council, 490 US 332, 349 (1989). B) Further, in 2012 the Forest Service signed an Agreement in Principle with the project proponent, committing to pursue an equal-value exchange for less sensitive areas on the Grassland. Shockingly, the DN and FONSI state that the Forest Service decided not to pursue the exchange because it felt it would be difficult to do, resources would be hard to come by and it might not take care of the whole problem at once due to other mineral ownership. Unfortunately for the agency, the reasons given do not pass muster with legal requirements. The Forest Service Handbook, chapter 20, section 23.2 states that the purpose and intent of alternatives are to "ensure that the range of alternatives does not foreclose prematurely any option that might protect, restore and enhance the environment." NEPA regulations (40 C.F.R. 1502.14) require that agencies should (r)igorously explore and objectively evaluate all reasonable alternatives... ". 4

In this case, by only analyzing one action alternative, the Forest Service has precluded at least one reasonable alternative an exchange in rights. It is confounding how less than two years ago, the Forest (presumably in good faith) signed an MOA committing to pursue an exchange yet somehow would argue now that it is actually meeting the mandates of its own guiding regulations by not prematurely foreclosing on an option that would protect this unique place. Clearly, the Forest Service has failed to meet its NEPA obligations as well as the direction of its own handbook. C) Further, while we do not agree with the Forest Services determination that any other action alternative could not be legally implemented, even if one were to agree with the agency, eliminating those other action alternatives from further analysis nonetheless violates NEPA: "An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable." CEQ, Forty Most Asked Questions Concerning CEQ s NEPA Regulations 46 Fed. Reg. 18026, 18027 (March 23, 1981). Q. If an EIS is prepared in connection with an application for a permit or other federal approvals must the EIS rigorously analyze and discuss alternatives that are outside the capability of the applicant...?... A.... Reasonable alternatives include those that are practical or feasible from a technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant." CEQ, Forty Most Asked Ouestions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981) (emphasis in original). Again, given the fact that the Forest Service has deemed each of the other action alternatives reasonable, for example, by its own actions signing an MOA to pursue one of them, it cannot then argue that for the purposes of the NEPA analysis that either of them are now not reasonable to carry forward through full analysis. NEPA, case law and other supporting Forest Service guidance make it clear simply having one action alternative and a no action that the agency says it cannot implement is clearly not what NEPA intended for an appropriate level of analysis and disclosure. II. THE FONSI AND DN FAIL TO MEET THE TEST OF NO SIGNIFICANT IMPACT AND AN EIS IS REQUIRED 5

NPCA raised the issue of the need to complete an EIS in our comments on page 2 of our draft EA comments. A) Substantial questions have been raised by both the public and state and federal agency partners. NEPA requires the preparation of an EIS if substantial questions are raised whether the proposed action may have a significant effect upon the human environment. Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988); Foundation for North American Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir 1982). In deciding whether an agency's decision not to prepare an EIS, pursuant to NEPA, is appropriate, the "responsible agency must have reasonably concluded' that the project will have no significant adverse environmental consequences." San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). An agency s decision not to prepare an EIS is impermissible if the agency fails to "supply a convincing statement of reasons why potential effects are insignificant." The Steamboaters v. FERC, 759 F.2d 1382, 1383 (9th Cir. 1985). "[T]he statement of reasons is "crucial" to determining whether the agency took a "hard look" at the potential environmental impact of a project. The Steamboaters v. FERC, 759 F.2d at 1393; Kleppe v. Sierra: Club,.427 U.S. 390, 410, n.21 (1976). An EIS must be prepared if substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor. To trigger this requirement a plaintiff need not show that significant effects will in fact occur, raising substantial questions whether a project may have a significant effect is sufficient. League of Wilderness Defenders - Blue Mts. Biodiversity Project v. Marquis-Brong, 259 F. Supp. 2d 1115 (D. Or. 2003). In the case of this project, substantial questions have been raised regarding the impact of the Gravel Pit by the most reliable and credible voices in the conversation, including sister Federal agencies such as the National Park Service; state agencies such as the North Dakota State Historical Society; issue experts in the private sector, such as the National Trust for Historic Preservation and even by the former Supervisor of the Grasslands who held that position for a decade. As just one example, in its June 11, 2012 letter to the Forest Service, the National Park Service (Theodore Roosevelt National Park Supervisor Valerie Naylor) articulates a long list of NPS concerns related to the project. These concerns include: 6

- The gravel pit would be seen from at least 50% of the NPS unit; - Mining operations would be visible from the park; - TRNP experience would be negatively affected for 2-3 years, and; - It may take decades to reclaim the overall landscape. That does not represent the full list of NPS concerns, but importantly, NPS letter goes on to say that There are additional inconsistencies as well. We ask that the section on historic resources be re-evaluated in an Environmental Impact Statement. (NPS letter, p. 2) While some of the mitigation measures might claim to address concerns (such as addressing noise impacts by requiring mufflers ), the impacts highlighted by NPS cannot be avoided and in fact, the Forest Service doesn t even attempt to say that the impacts will go away, it simply says that the mitigation measures will address the concerns, when in fact, the impacts will still be there. In this case, the test of whether or not there is the need to complete an EIS lies on whether or not there were substantial questions raised on issues that may have a significant impact. It is clear that those substantial questions have been raised and it is the legal obligation of the FS to complete an EIS. Finally, case law has determined that agencies must weigh preparation of an EIS when federal partners call for it: When three federal agencies, one state agency and members of the public have all disputed the Corps evaluation and pleaded with the Corps to prepare an EIS, an EIS would be required. Friends of the Earth, Inc., v. U.S. Army Corps of Engineers, 109 F.Supp.2d 30, 43 (D.D.C. 2000). In this case, the National Park Service has repeatedly called for an EIS and its calls have been ignored. B) The Forest Service makes unsupported conclusory assertions that its mitigation measures avoid the need to complete an EIS. In other words, the agency fails to take the hard look at its claims, as required by NEPA. While disclosing the very significant impacts of the proposed project, the agency makes statements that because of the 3-year duration and the agreed to mitigation measures that the impacts are minimal. The Forest Service fails to directly compare the specific mitigation measures and their impact on the substantial issues that have been raised. For example, there is no substantive over how the project will impact Park visitation and tourism overall. There is no substantial discussion over how the project will impact the experience of solitude in the Park. However, the agency seems to present the mitigation 7

measures as a cure all ills associated with the project. What is lacking is the hard look that case law has stated needs to take place in the context of an EIS. Specifically, in Ocean Advocates v. United States Army Corps, it was found that NEPA aims to establish procedural mechanisms that compel agencies, such as the United States Army Corps of Engineers, to take seriously the potential environmental consequences of a proposed action. This crucial evaluation is termed a "hard look." The Corps cannot avoid preparing an environmental impact statement (EIS) by making conclusory assertions that an activity will have only an insignificant impact on the environment. Ocean Advocates v. United States Army Corps of Eng'rs, 2004 U.S. App. LEXIS 4804 (9 th Cir. 2004). In the case of the proposed Gravel Pit, the Forest Service has failed to take the hard look required by the courts and has instead made conclusory assertions that the proposed activity will have insignificant impacts and therefore it is not required to complete an EIS. C) The extent of the mitigation measures show the project s impacts are significant. The fact this project requires 41 pages of mitigation measures is a strong indicator it can't support a FONSI. Instead of undertaking an EIS and through analysis and disclosure of impacts and remedies to those impacts, the Forest Service negotiated with the proponent a side agreement (41 pages of mitigation measures). The public never had a chance to comment on these mitigation measures, never had an opportunity to understand the mitigation measures' impact on the concerns raised, never were the mitigation measures run by the National Park Service a cooperating agency to understand whether or not NPS felt these measures addressed their concerns. There was no articulation of the science behind those specific mitigation measures and in some cases, not even a comparison of what specific mitigation measures were trying to mitigate. The mitigation measures were negotiated between the Forest Service and the project proponent with no input from the public or other agencies. The point here is that, while we appreciate the effort to mitigate impacts, the appropriate place for such mitigation measures is not a side deal within the context of an EA, it is within the context of an EIS. Secondly, by negotiating such extensive mitigation measures, the actions of Forest Service alone show that this project will have significant impacts on the environment and historic character of the Ranch, and therefore, leads to the need for an EIS. Why else 8

would the agency negotiate 41 pages of mitigation measures if not for the fact that the impacts were significant. D) The agency s own NEPA analysis shows that the impacts are significant, yet the Forest Service chose to issue a FONSI. The EA and DN disclose a host of negative impacts- to historic character, soundscapes, visual impacts- during the lifetime of the project. Further, the EA discloses a host of long term impacts and then determines that the mitigation measures will eliminate any long term impacts. First, the agency cannot simply articulate the significant 3-year long impacts the project will have and then suggest that mitigation measures will make up for those impacts. The agency has failed, for example, to specifically compare the impacts articulated in its own analysis as well as the concerns over the impacts articulated by the NPS. All that is noted is that the 41 pages of mitigation measures will take care of any problems during the lifetime of the project and after without any specific analysis articulating why the public should be placated. In deciding whether an agency's decision not to prepare an EIS is appropriate, the "responsible agency must have reasonably concluded' that the project will have no significant adverse environmental consequences." San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). An agency s decision not to prepare an EIS is impermissible if the agency fails to "supply a convincing statement of reasons why potential effects are insignificant." The Steamboaters v. FERC, 759 F.2d 1382, 1383 (9th Cir. 1985). "[T]he statement of reasons is "crucial" to determining whether the agency took a "hard look" at the potential environmental impact of a project. The Steamboaters v. FERC, 759 F.2d at 1393; Kleppe v. Sierra: Club,.427 U.S. 390, 410, n.21 (1976). In short, the agency has failed to provide a convincing case as to why the potential effects both within the 3-year lifetime of the project and over the longer term--are insignificant. Based on the information provided by the agency itself, it is clear that the agency has failed to reasonably conclude that the project will have no significant impact. E) The Forest Service incorrectly interprets the context of the proposed action which leads to the wrong conclusion regarding the need to complete an EIS. The FONSI states that The site-specific actions of Alternative 2, in both the short and long term, although adverse, are temporal and mitigatable, and therefore not significant. Therefore, preparation of an EIS is not needed. (DN, 9

FONSI, p. 11). The DN/FONSI then discussed whether or not the decision is significant, first by discussing Context : Context: This project is a site-specific action that by itself does not have international, national, regionwide or statewide importance. (DN, p. 11). This is a quizzical statement given the well-known historic importance of the Elkhorn. The Elkhorn Ranch- the cradle of conservation, listed on the National Historic Register, part of which is an NPS unit of national signifcance, listed on the National Trust s 10 most endangered historic sites in the country. A place where thousands of Americans and over 50 organizations combined resources to purchase historic ranchlands and hand off to the Forest Service. A decision that has garnered national attention. A place where scholars note was where America s greatest conservation President discovered his environmental ethic. A place that has been written about by many nationally-known historians. And the agency authorizes a gravel pit in the middle of it and then says the project does not have even local importance. The project and its impacts absolutely have local, regional, national and international significance and importance and the agency s failure to acknowledge that is at the core of what s wrong with the decision. An EIS is the only appropriate level of analysis for this project. F) The Forest Service incorrectly interprets the severity of the impact which leads to an incorrect conclusion regarding the significance of the projects impacts which leads to an incorrect decision to not proceed with an EIS. Under Intensity in the DN/FONSI, the agency discusses the 10 significant criteria described in NEPA in order to justify the FONSI. In each area, the Forest Service fails to meet the test that would lead it to conclude no EIS is needed. For the sake of space, we will not address every one of the 10 points but select a few to make our point: - Point 1 (DN, p. 12): The Forest Service concludes that impacts are short term and mitigatable. The fact is that the agency has failed to show how or where 3 years is short term and has also failed to provide the public with any specific analysis as to why it s mitigation measures directly address the concerns and impacts. - Point 3 (DN, p. 12): Unique characteristics: The agency inaccurately states that the NDSHPO concurred that there will not be a significant adverse effect from the project, citing an October 29, 2013 letter from the state agency. In fact the NDSHPO s letter states: We concur with the Adverse Effect determination for this project (NDSHPO letter, p.1). The Forest Service inaccurately articulates NDSHPO s response to the project- it was not that there would be no significant impact, in fact, NDSHPO concludes the opposite- that there 10

would be an adverse impact on historic resources as a result of the project. In addition, the DN/FONSI fails to mention that the MOA has yet to receive clearance from the Advisory Council on Historic Preservation (ACHP), which it must do before proceeding with the project. - Point 4 (DN, p. 12)- The degree to which the effects on effects on the quality of the human environment are likely to be highly controversial. Here, despite widespread public and state and federal agency condemnation of the project, the DN/FONSI fails to discuss the controversy of the project and instead asserts that the impacts are short term. NPS correspondence (including 6/11/2012, 3/22/2012, 12/22/2010 and 11/3/2011) all very clearly and definitively articulate the degree to which the project will impact Park resources and visitors over a 3-year period. Not only does the DN/FONSI fail to mention these comments from a cooperating agency, it also fails to acknowledge that the project is controversial. The EA also somehow concludes that 3 years is a short term impact. 3 years is a long time and the characterization others seems a bit arbitrary. Overall here though, the Forest has failed acknowledge the controversy surrounding this project and instead only suggests that this decision will not be acceptable to all. In light of the high degree of public controversy over this project as well as the effects on the human environment the Forest incorrectly concludes that a FONSI is warranted. - Point 8 (DN, p. 13): Impact on historic sites: The Forest Service incorrectly articulates its own conclusion regarding the effect of the project on historic resources, stating that a no significant adverse effect determination was made and further, it misrepresents the NDSHPO s October 2013 letter, which clearly states an adverse effect determination. IV. THE FOREST SERVICE FAILED TO DISCLOSE AND RESPOND TO, RESPECTED SCIENTIFIC AND HIGH QUALITY EVIDENCE PRESENTED BY THE NATIONAL PARK SERVICE. NPCA raised the issue of impacts to the NPS unit on pp. 5-6 of our comments. Case law holds that where an agency fails to disclose respected scientific evidence in an Environmental Assessment that runs contrary to its decision, an EA may be held inadequate. Information in an EA must be of high quality because [a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. League of Wilderness Defenders v. Zielinski, 187 F.Supp.2d 1263, 170 (D.Ore. 2002)(emphasis in original). 11

In the case of the Gravel Pit project, the Service first solicited the expert agency comment and active participation from the National Park Service as a cooperating agency and then it was largely unresponsive to the agency s concerns. Significantly, the Forest Service failed to disclose the strongly-worded input from NPS that run contrary to the decision not to pursue an EIS. In its June 11, 2012 letter, NPS concludes: Due to the considerable concern about this project among local citizens, as well as among our visitors and stakeholders from throughout the country, we ask that you deny this permit to mine gravel until you have completed the required amendment to the LMRP and have prepared an Environmental Impact Statement. (NPS letter June 2012, p.4) NEPA is about analysis and disclosure. Nowhere in the EA, DN or FONSI did the Forest Service disclose NPS request to complete an amendment to the LMRP and prepare an EIS. This is not a trivial point such information would have been critical in order for the public to understand the consequences and tradeoffs of the proposed action. V. AN LRMP AMENDMENT IS REQUIRED FIRST BEFORE ENVIRONMENTAL ANALYSIS AND CONSIDERATION OF THE PROPOSED PROJECT This issue was raised by NPCA on p. 1 of NPCA s comments. The proposed project is located on lands that were acquired with great effort thanks to over 50 national wildlife and natural resource-related organizations, not to mention strong partnerships with federal land managers. The Forest Service has had since 2007 to complete the amendment process so that the agency has the best management direction possible in order to protect this place of national historic significance. In justifying the failure to complete the LRMP amendment prior to permanently altering this piece of ground, the Forest issues a statement that it agreed to honor all valid existing mineral rights (DN/FONSI p. 2) and with that statement justifies not completing the amendment. The error is that the Forest Service equates honoring valid existing rights with approving the gravel pit, when in fact, there are several other options that honor those rights that also serve to preserve the historic character of the place. In fact, the Forest Service itself at one point committed itself to a course of pursuing the win-win path of honoring existing rights while protecting the ranchlands through the MOA seeking an exchange. 12

Unfortunately, and without notifying the public nor federal partners, the Forest decided to not pursue an exchange. In so doing, the agency committed to a course of action that permanently alters the historic character of the ranchlands. There will not just be a 3-year negative impact period but permanent with increased public access through improved roads, altered topography, constant threat of non-native weeds, etc., the ranchlands that the public worked so hard to acquire and hand off to the Forest Service to protect will be permanently altered. Mitigation measures make things less bad but the impacts are generational. For example, the EA discloses that Mining would permanently alter the elevation of the pit area of the plateau (EA, p. 33) and It may take decades to reclaim the overall landscape of the area. (EA, p. 33). Had the Forest engaged in a plan amendment process, it would have resulted in site-specific management objectives that served to help protect the historic character of the acquired ranchlands. Without the amendment, the existing LRMP only provides general guidance; none of which is specific enough to provide managers with the tools to adequately protect the historic character of the ranchlands. Without first completing an amendment to the LRMP, the Forest is making an irretrievable commitment of resources by authorizing an activity that will have short and long term impacts on the historic character of the ranchlands. VI. AS A RESULT OF BIASED DECISIONMAKING AND USE OF INACCURATE INFORMATION, THE FOREST HAS VOILATED THE ADMINISTRATIVE PROCEDURES ACT NPCA generally raises adequate and accurate analysis and disclosure of impacts starting on page 1 of our comments. The Federal Administrative Procedure Act, 5 U. S. C. 706 (2) (A), prohibits an agency from acting in an arbitrary and capricious fashion. Fair and honest procedures are also an element of complying with NEPA. Under NEPA regulations, an EIS "shall provide full and fair discussion of significant environmental impacts." 40 C.F.R. 1502.1. To assure that a fair discussion" occurs, agencies are required to obtain "high quality" information, including (a)ccurate scientific analysis." 40 C.F.R. 13

1500.1(b). The regulations are very explicit that: "Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements." 40 C.F.R. 1502.24. CEQ regulations also require that: "Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made." 40 C.F.R. 1502.2(g) (emphasis added). The "hard look" doctrine and the "rule of reason" are integrally locked with the "arbitrary & capricious" standard. A key case interpreting judicial review under the Administrative Procedures Act is Overton Park v. Volpe. Overton Park established the arbitrary and capricious inquiry from the APA as the default standard by which agency actions are to be judged, absent specific judicial review required by statute or other circumstances. Overton Park establishes the basic element of the arbitrary and capricious test: the agency must consider the relevant factors and articulate a rational connection between the facts found and the choice made. Later Supreme Court cases have added the hard look doctrine, under which the courts also consider whether the agency has taken a hard look at the relevant issues. The courts have been fairly consistent in applying this definition related to arbitrary and capricious: An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law. In the case of the proposed gravel pit, the Forest Service has violated the APA in a number of key ways: A) Failed to consider important aspects of the issue In 2012, the Forest Service signed an agreement with the project proponent to seek a fair value exchange for mineral rights on a less sensitive area of the Grasslands. The last time the public was engaged on this issue, the understanding was an exchange was in the works. Nearly 2 years later, the Forest issued a decision that states not only has it pulled out of that agreement since it apparently didn t have the time, expertise or resources to carry it forward in a timely manner, but it also decided to not carry forward an exchange as one of the action alternatives. The critical aspect of this issue that the Forest failed to consider is that the purpose and need of the project did not state that all of the mineral estate issues had to be addressed through completion of this one project the P/N simply stated that it was supposed to address this one proponent s request for a gravel mine. The Forest appears to have changed its focus on the purpose of the project and has justified failure to pursue other alternatives that 14

meet the stated purpose and need because they did not deal with the other 29 mineral owners an issue well outside the Purpose and Need of this project. Therefore, as a result of failing to keep its analysis and decision making to the stated Purpose and Need, the Forest failed to consider other important aspects of the issue, which in turn provided a flawed decision making process which inappropriately excluded key information that would have informed a different decision and has led to an arbitrary decision making process, prohibited by the APA. B) Failed to consider relevant factors and articulate a rational connection between the facts found and the choice made The decisionmaker failed to consider several critical, relevant factors, including the fact that it was not the job of the agency at this point in time to deal with all 29 leaseholders- just the proposal on the table per the purpose and need. In addition, despite crucial information and key issues raised by the National Park Service, a cooperating agency, the Forest failed to consider those factors in any meaningful way failing to respond substantively to NPS comments expressing concerns over the 3-year and longer term impacts of the project on the NPS unit. Further, instead of making a rational connection between the facts and the decision, the Forest chose to switch course as a result of a contact from the proponents lawyer. The end result was that there IS NO rational connection between the course that the FS had taken pursuit of an exchange, the reasons given for failing to carry that alternative forward, the decision and the overall connection with the purpose and need of this project. To readers who have followed this issue for years, it appears as if the Forest Service made a quick decision under pressure and instead of pursuing a process with fidelity to science, law and policy, it cobbled together this DN and FONSI so that it would not get sued by the proponent. C) Failed to ensure fair discussion and obtain high quality information Instead of pursuing gaining partial interest in the mineral estate through pursuit of an exchange, the Forest determined to change course. The Forest fails to disclose that its own Handbook (FSH 5409.13) permits it to acquire partial mineral estates. Instead of ensuring the fair discussion informed by high quality information that could have led to an exchange or outright purchase, the Forest simply falls back on the statement that it does not have the authority to deny the gravel pit and therefore it must approve it. This rationale clearly shows there was no fair discussion and certainly no pursuit of high quality information that would have better informed a decision that honors the mineral rights and also protects the historic ranchlands. 15

D) Based its DN on inaccurate and wrong information and failed to scientifically validate measures to justify a FONSI The DN based its decision on inaccurate and wrong information. In addition, while admitting to a wide variety of negative impacts as a result of the project, the Forest relies solely on the mitigation measures to address those concerns yet its own analysis show the impacts are significant and long term as it relates to the historic ranchlands and resources, thereby failing scientifically validate that the mitigation measures would actually address the concerns raised. E) Acted in an arbitrary and capricious manner in arriving at a decision. In sum, the Forest prematurely eliminated two win-win alternatives and used arbitrary and capricious decision making to justify dropping those alternatives from further analysis and consideration. The public record shows that the Forest Service violated the Administrative Procedures Act and as a result, has handed the public with an unsupportable and unsustainable decision that must be remanded. SUGGESTED REMEDIES Per 36 CFR 218.8(c)(5), objectors recommend the following changes: 1. Rescind the Decision Notice for the project. 2. Pursue completion of the mineral rights exchange with the project proponent per the original Memorandum of Agreement. 3. Complete an amendment of the LRMP for the acquired ranchlands as the agency committed to in 2007. 4. If #2 fails, conduct a full Environmental Impact Statement. 16