Well reasoned argument against approval of Idaho Fish and Game’s plans to chase wolves, dart them, land and collar them in Idaho’s sacred central Idaho Wilderness-

Wow, this fellow knows what he is talking about. Ralph Maughan
– – – – – – – – – –

January 2, 2010

Dear Mr. Tidwell Chief, U. S. Forest Service

ttidwell@fs.fed.us

I am a retired USFS forest planner from the Nez Perce National Forest in Idaho.  I have a masters degree in forestry from Oregon State University.  While still employed by the USFS I knew that in order to do my job effectively and efficiently, I must learn to quote several of the environmental laws of the United States from memory.  This included the Wilderness Act of 1964.

I’ll try to make this comment letter short.  I could write pages on this illegal action.

When I first heard that Regional Forester Forsgren had approved helicopter landings at the request of the Idaho Dept. of Fish and Game (IDFG) to dart wolves (for an undisclosed reason) in the Frank Church River of No Return Wilderness (FCRONRW) I thought is was a joke.  The very essence of the Wilderness Act of 1964 is to exclude ALL (emphasis added) motorized equipment from ANY and ALL congressionally designated Wilderness.  Section 4. (c) of the Wilderness Act of 1964 says:

“PROHIBITION OF CERTAIN USES

(c) Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.”

The part of the Wilderness Act that motivated RF Forsgren to make this illegal decision is Section 4. (d)(8) of the Wilderness Act of 1964 which says:

“Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.”

Section 4. (d)(8) above does not say that the States may used motorized vehicles to carry out their responsibilities with respect to wildlife and fish in the national forests.

The first sentence of Section 4. (c) says: “Except as specifically provided for in this Act.”  If congress had intended the States to use motorized vehicles to carry out their responsibilities with respect to wildlife and fish in the national forests, Section 4. (d)(8) would have specifically had wording that allows the States to use motorized vehicles in Wilderness.  Since Section 4. (d)(8) makes no mention of motorized vehicles, it is not specifically provided for in the Act as is required.

In summary, Regional Forester Forsgren has violated the Wilderness Act of 1964.

Regional Forester Forsgren’s decision sets a tragic precedent.  In the future any State agency could cite Section 4. (d)(8) of the Act and receive permission to carry out their responsibilities with respect to wildlife and fish using 4-wheelers, motorcycles and snowmobiles in congressionally designated wilderness.

Regional Forester Forsgren plans to Categorically Exclude this decision from the NEPA.  Had Regional Forester Forsgren planned to cover this decision with an EA/DN it would have been impossible for him to write a truthful FONSI.  This means that the decision by Regional Forester Forsgren must be covered by an EIS/ROD.

The CEQ Regulations for implementing the NEPA state:

“The regulatory definition of the term “human environment” at 40 CFR 1508.14 — impacts on the quality of the human environment being the subjects of any EIS — includes “the natural and physical environment and the relationship of people with that environment.”

“The definition of “effects” at 40 CFR 1508.8 — as in “effects on the quality of the human environment” — includes changes in the human environment that are “aesthetic, historic, cultural, economic, (or) social.”

There is no question that landing a helicopter in Wilderness will: 1) “impact on the quality of the human environment” and 2) “effects on the quality of the human environment include changes in the human environment that are aesthetic, historic, cultural, economic, or social.”

Clearly Regional Forester Forsgren has violated 40 CFR 1508.14 and 40 CFR 1508.8.

Regional Forester Forsgren may believe that Wilderness helicopter landings do not impacts on the quality of the human environment because no member of the public will be near when the helicopter lands.

This logic has no merit. Wilderness has intrinsic value to millions of American citizens by just existing in its primitive state.  Most members of the public may never visit a Wilderness.  However, just by knowing it is there and they could visit it has great value. Economists quantify this value by using a tool called “contingent valuation.”  Contingent valuation uses polling data to determine what the average person would pay to keep an area pristine.

Lastly Regional Forester Forsgren has violated the NEPA by telling the public that his decision is not appealable.

United States District Judge James K. Singleton’s July 2995 2005 opinion in the court case Earth Island Institute et. al. v. Del Pengilly et.al, is shown below.

“IT IS THEREFORE ORDERED:

The following regulations are invalid as stated in this Order and will be severed from the Forest Service regulations: 36 C.F.R. § 215.4(a) (excluding from notice and comment procedures projects and activities that are categorically excluded from documentation in an EIS or EA); 36 C.F.R. § 215.12(f) (excluding from appeal procedures decisions that have been excluded from documentation in an EIS or EA); 36 C.F.R. § 215.20(b) (exempting from notice, comment, and appeal procedures decisions signed directly by the Secretary); 36 C.F.R. § 215.10(a) (permitting delegation of the determination that an emergency situation exists); and 36 C.F.R. § 215.18(b)(1) (providing that an appeal decision will be sent to appellants five days after the decision is rendered).”

One would expect a Regional Forester to keep up on such things

I know that a Chief has the authority to overturn any illegal decision made by a Forest Service line-officer.  It’s your job!  Please intervene and overturn Regional Forester Forsgren’s illegal decision as soon as possible.

Sincerely,

Dick Artley

Dick Artley (retired forest planner, NEPA legal compliance reviewer, 1900-1 NEPA instructor, forest NEPA coordinator, and appeals/litigation coordinator, Nez Perce National Forest, Idaho)

Grangeville, Idaho     83530


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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides, and he is President of the Western Watersheds Project.

29 Responses to Retired Forest Service NEPA legal compliance reviewer on landing in the Frank Church Wilderness

  1. avatar Nathan says:

    Awesome.
    Lets hope his words are considered.

  2. avatar nabeki says:

    Very impressive. I hope his words are heeded:

    “I know that a Chief has the authority to overturn any illegal decision made by a Forest Service line-officer. It’s your job! Please intervene and overturn Regional Forester Forsgren’s illegal decision as soon as possible.”

  3. avatar Pronghorn says:

    Not to belabor the point, but Tester’s Forest Jobs & Recreation Act sets yet another “tragic precedent” where wilderness is concerned, allowing motorized use as special provisions in two wilderness areas that S.1470 will designate. You have until Jan. 8 to send your comments to the Senate Energy & Natural Resources Committee. Click here http://testerloggingbilltruths.wordpress.com/ then choose “Make your voice heard” from the page menu at the right.

  4. avatar JB says:

    I’m happy to support IDF&G studying wolves in the FCW; but helicopters and wilderness do not mix. Frankly, I don’t even like the idea of helicopters flying over the wilderness.

  5. avatar JEFF E says:

    Like I said, the whole thing smells like a back alley drug deal

  6. avatar jdubya says:

    I like this:

    “”Regional Forester Forsgren may believe that Wilderness helicopter landings do not impacts on the quality of the human environment because no member of the public will be near when the helicopter lands.

    This logic has no merit. Wilderness has intrinsic value to millions of American citizens by just existing in its primitive state. Most members of the public may never visit a Wilderness. However, just by knowing it is there and they could visit it has great value. Economists quantify this value by using a tool called “contingent valuation.” Contingent valuation uses polling data to determine what the average person would pay to keep an area pristine.””

    I want to remember the term “contingent valuation”: what a great concept!!

  7. avatar Salle says:

    All I can say is:

    Thank you, Dick Artley for speaking up as a voice of knowledge and authority to an authority who holds the power to stop this insanity. Thank you for representing me, as a citizen, in this issue.

  8. avatar bob jackson says:

    When the Thorofare illegal wilderness salting issue was going hot and heavy in the press in 1999 there were two reactions by both Wyo. G&F and Bridger – Teton forest similar to what I see now happening in Idaho.

    The first was by G&F, who not only looked the other way (there were four heavily used illegal salting stations within sight of the G&F wardens cabin.) but basically said they had rights over any supposed G&F violation and Forest Service
    needed to stay out of the issue….and two, the forest service said G&F, not them, should handle their “hunting” situation.

    Wyoming G&F stated their opinion in the AP press out of the state offices that “….although salting was not something they preferred it was not illegal”, thus why all the commotion?

    They didn’t even consult with the Forest Service on this statement, thus one sees where state G&F agencies, such as Idaho, feel they have the right to do as they please.

    As for the forest service, the wilderness act states there is to be no unnatural items placed or used within its boundaries (add to this, in Bridger-Tetons case the present administrators overlooked a regulation in 1991 specificly further spelling out salting as an illegal act…an omission soon to haunt them in the publics eye) . Thus by their statements in the press the forest service didn’t want to take on the areas of enforcement and management by the states in G&F issues.

    I’d say Idaho and the forest service has the same skewed relationship as Wyoming and this is why G&F sees no problem running amouk on federal wilderness lands.

    It is also why the district forester rubber stamped this request. Only in such a volatile issue such as wolves I believe this district forester notified before hand everyone all the way to the top of regional and Washington offices.

    Their reaction to the request probably went along the lines of,”we were basically a logging agency and we still are uncomfortable with this wilderness concept”. “Plus we have always let state G&F take care of resource issues in these wildernesses. And since we have gotten rid of most all our law enforcement officers we have to depend even further on the states and their law enforcement. Thus lets see how this flying in the wilderness all plays out. If there is too much clamour we can go back to plan b, which means we appease Idaho G&F with a pilot run study of flying in these wilderness areas”.

    F&G of course already has had discussions of what happens if public opinion gets too hot. Hopefully it does all get very hot!!

  9. avatar bob jackson says:

    Oh, I forgot to add where Idaho’s MSG fits in this equation.

    His strong statements lately to others on this blog that “they are wrong” is meant to further bring out any additional facts and stats the opposition has to wolf issues…such as population densities…all so the Idaho G&F can counter any delisting or wilderness attempt.

    It is like pre trial disclosure meetings where both sides present their “evidence”. Marks willingness to spend a lot of time quoting his “professionals” and the states claims are there mostly to see how it plays in the oppositions ranks. Then they can adjust their arguments when it comes time not only to flying in wilderness areas but the larger issue of Judge Malloy taking up the need to delist the wolf again.

    The major disadvantage they have is any agency like this ends up with group think. They think they can have a strong case when it is not there. It is why I won against them when it envolved govt. choreographing all the way to the White House.

    So I say, continue to have some bantering with MSG. Just understand he doesn’t care of what you say other than what info he gleans to further Idaho F&G causes.

    MSG loses big time in the end, however. If regional office is putting this stuff out there it means lots of underlings are “listening in” to responses. Since they aren’t as brain washed they are going to see the snow job fallacy of their superiors logic and apply it to their relationship with their bosses. Thus watch for more “uprising” by the peasants in Idaho G&F in the years to come.

  10. avatar JimT says:

    Good, cogent presentation of the relevant language of the WA, and the conflict with NEPA requirements. Let’s hope some judge some place agrees with us if Salazar doesn’t take action and Vilsack doesn’t reign in his USFS.

    Maybe we should take a page from the Republican playbook, and organize a media interview blitz where folks call for Fosgren to be fired. A bit outrageous, but then, it seems to work for the conservative side…;*) Problem is, liberals are just too damned nice for our own good…~S~

  11. avatar dewey says:

    So , who is the closest prosecuting U.S. Attorney with jurisdiction here ?

  12. avatar Wilderness Muse says:

    Good luck to Mr. Artley. I hope he prevails in his appeal, however, I am not optimistic for the following reasons.

    Judge Singleton’s decision quoted by Artley, was 2005 not 1995. The decision was appealed to the 9th Circuit, which in 2006, reversed in part, and remanded to the trial court for further proceedings. The trial court decision was affirmed only as to the FS violation of 36 CFR 215.12(f) (appeals). This case had to do with the FS promulating regulations and its avoidance of NEPA processes, not issuance of a special use permit covering a discrete time and place for specified activities to occur within discrete portions of the FCW. How persuasive Singleton’s or the 9th Circuit rulings are in this particular matter is questionable.

    In the helicopter special use permit decision, Regional Forester Forsgren was careful to point out the action was exempt from NEPA in this statement:
    “This action is categorically excluded from documentation in an environmental impact statement or an environmental assessment because it qualifies under 7 CFR 1b.3(a)(3) “Inventories, research activities, and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity.”

    He states other NEPA exemption reasons, as well. Maybe somebody needs to challenge the decision.

    Apparently, the state is already doing overflights in fixed wing aircraft for wildlife inventory, and has been doing so for sometime.

    Mr. Artley’s accusation of violatoin of the Wilderness Act would also have to jump a hurdle including the very specific 1990 Congressional direction set forth in House Report 101-405, which gives legislative clarification and sets forth guidelines regarding research studies in Wilderness, which includes the use of mechanical equipment including helicopters.

    And, of course, the biggest political hurdle of all is that Idaho claims the research is justified for the purpose of gathering data to meet its state management responsiblity for an endangered species – the Gray Wolf- and that it has tried unsuccessfully at substantial cost to gather the data from ground work.

    __________

    Indeed, the continual erosion of Wilderness is disturbing, and every step taken which allows more mechanical intrusion is a step backward.

  13. avatar George Vincent says:

    Wilderness Muse makes important legal points, which cannot be ignored. The one point I would come back on is the use of the wolf’s endangered status as justification. Idaho G&F worked hard to get the gray wolf removed from that status in their state. They don’t land helicopters in the Frank Church to radio collar elk, do they?

  14. avatar Ken Cole says:

    WM,
    As far as the date, I changed the date in the post because it originally said 2995. I assumed that it was 1995 rather than 2005. I presume Mr. Artley knows this and maybe I should change it to reflect his intention.

    The problem with Mr. Forsgren’s decision, in my estimation, is that collars are NOT needed to monitor wolf populations in the FCWA. There are other methods for monitoring which will meet the requirements of the ESA which include, but are not limited to, hair snares, howl boxes, systematic sampling of likely habitat etc. The ESA does not specify that collars are necessary in their monitoring efforts and the State Management Plan calls for less invasive monitoring techniques when populations are high as they claim they are now.

    The Decision memo even says that there are 8-10 packs in the Wilderness. It’s not like they don’t already know what they’re dealing with population wise.

    In addition, if they wanted to maintain collared wolves in the wilderness they would not have allowed hunters to kill collared wolves there which has happened. It even happened to one of the few wolves that have dispersed from Yellowstone which is a double whammy.

    This collaring effort is not just for monitoring, and Mark Gamblin says:

    “In previous threads, several have suggested that at least one consequence of collaring wolves in the FCW is that accurate accounting of wolf numbers could lead to wolves being removed. That is a possibility if wolf numbers are above the wolf population management objectives for the wolf management zones within the FCW. There’s nothing sinister in that possibility. It would be another example of managing wolves as we do other valued game species.”

    http://wolves.wordpress.com/2009/12/22/forest-services-issues-the-decision-memo-on-the-helicopter-landings/#comment-96735

  15. avatar izabelam says:

    JB,
    exactly. it is not collaring..it is preparation for a kill.
    MG says: That is a possibility if wolf numbers are above the wolf population management objectives for the wolf management zones within the FCW. There’s nothing sinister in that possibility. It would be another example of managing wolves as we do other valued game species.”
    Managing wolves as other valued game…jeeeeez..what a statement full cows’ pies. If wolves are valued game species – don’t kill it. This whole counting thing is just a reason to kill. Who is going to know if the counts are correct..huh? Double and triple vision and suddenly we have 10K of wolves…

  16. avatar Save bears says:

    iz,

    all valued big game species have hunting season…and are killed….

  17. avatar Salle says:

    These “valued game” animals have value because the state can get people to pay to kill them. I guess that’s what they mean by “sporting ventures”. Its all about the money.

    The former Sen. “wide-stance” Craig used to whine about the value of the elk that wolves eat and wanted the feds to pay for each one, I think he was using some formula based on $/pound for his assessed value of them because he sure wanted a lot more than a tag cost. He called them “domestic wildlife” as did all his followers.

    This is just another “poke in the eye” for anyone who is a citizen of the US from a state that thinks it is its own little country that deserves endless subsidies while abusing its partnership with the rest of the country. It will come back to bite them in the butt eventually ~ not soon enough for me though.

  18. avatar izabelam says:

    SB,
    There is not a single animal killed with more hate and cruelty. No one kills little deers or little elks and cuts paws to show off to the buddies in the bar.

  19. avatar Salle says:

    This also shows how slovenly and low-class a state government can get…

    Idaho has some of the most spectacular wilderness and wildlife in the nation, certainly the contiguous US, and all these clowns want to do is trash the hell out of it for personal and political gain and control ~ screw everybody else.

  20. avatar izabelam says:

    Well,
    Somehow the Otter and his buddies got the votes.
    Something must change in the way simple citizen of the state of idaho votes.
    Not to take the subject of topic, but does anyone can hope the the change is in the air?
    How about this guy (sorry, dont’ remember his last name)who opposes Otters in coming elections? Any changes for better possible?

  21. avatar Devin says:

    I don’t think it the wolf itself that is hated (in most cases) but rather the symbolism that it carries with it that is hated. In the view of many, wolves symbolize loss of state and individual rights to a federal bureaucracy. They symbolize loss of capitalistic freedom and a “New” West. While I am sure there are those out there who “hate” wolves just because they are wolves, I don’t think they are the majority.

    Values in the West are changing and for many traditional Westerners the easiest way for them to fight that change is to go shoot a wolf.

    While I don’t agree with their actions, I can understand their feelings.

  22. izaelam,

    Otter could be beaten in the Republican primary, but so far so Democrat has impressed. One Democrat (Allred) has announced and has some backing, but he appears to be another Walt Minnick, Idaho’s “Democratic” U.S. Rep. Minnick might as well be a Republican. Well in fact he had a low level position in the White House way back in the Nixon years.

  23. avatar timz says:

    Let’s not forget Otter’s last opponent (Brady, a Democrat) was also a wolf hater.

  24. avatar izabelam says:

    I think the a party association is less important than the core values the candidate has. Timz, you are right – dem can as bad as a republican and we got burned many times hoping that the dem will be better than rep (gov of Montana is a good example). It is all about power and money.

  25. avatar Save bears says:

    “It is all about power and money”

    Now that is a very prolific statement and until such time as American Citizens are ready to take their government back, it will continue to be the way it is..sorry folks that is the facts of life, I really wish, those of us that post on this as well as other blogs were the majority, but we are only a very small minority of the country as a whole..

  26. Save Bears,

    I have never seen Americans so politically disorganized and led around by rabble rousers who don’t have the people’s interest in mind.

    From what I’ve read of the Great Depression, working people got organized and raised hell and got their wages raised and conditions improved.

    In the 60s, Black people demanded their rights, people experimented with new lifestyles, and protested the stupid war in Vietnam. People should be experimenting with new lifestyles today if only to keep from starving.

    Today nothing but teabaggers worried about the President’s birth certificate.

  27. avatar Save bears says:

    Ralph,

    I agree 110%, during the 60’s there was direction..I am almost ashamed to be an American right now, there is no parties, there are deep rooted politicians, who have a very strong disconnect with those who hire them.

    Despite our differences(Which I suspect are not as much as some think) we need to take the country back! and until such time as we grow balls and do it, we are going to continue to have what we see happening.

    The strong will lead, unfortunately, often times the strong are not right!

  28. avatar Wilderness Muse says:

    SB

    Taking our country back will not happen until Wall Street and corporate America are brought into check. One more example of how the American people will be bypassed is with Northrop Grumman’s announcement today that it is relocating its corporate HQ to the Washington DC area. More cocktail parties with Congressional leadership, Air Force generals and Navy Admirals. This means bigger military appropriations and deals with the likes of Northrop made behind closed doors and paid for with taxpayer dollars.

    And, I was hoping 2010 would the beginning of a better decade, after all the banking and securities crap.

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‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

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