| Appeal of Decision on WPG Permit Renewal |
| NOTICE OF
APPEAL
November 15, 1999 TO: JACK BLACKWELL, Regional Forester BERNIE WEINGARDT, Forest Supervisor Re: Wasatch Powderbird Guides FEIS/ROD Gentlemen: We want to acknowledge the obvious efforts the personnel of the Wasatach-Cache National Forest expended in attempting to find "common ground" in a public lands issue that has dragged on for nearly three decades. However, for the reasons stated within this document, the undersigned organizations and individuals appeal the decision in the Record of Decision (ROD) by Forest Supervisor Bernie Weingardt (the "Deciding Officer") to issue a 5-year Special Use Permit to Wasatch Powderbird Guides. SUMMARY OF APPEAL The Final Environmental Impact Statement (FEIS) and its draft predecessor are critically flawed in containing serious omissions of data, outright biases, inconsistencies, and contradictions. Frequent failures to respond adequately (and sometimes not at all) to critical issues---especially those related to public safety and wildlife habitat and management---make this FEIS seriously flawed as a guide to rational decision-making. Because of the deficiencies in the FEIS, the Record of Decision should be considered as an "arbitrary and capricious" decision, rather than as a decision based on the NEPA mandated "hard look" necessary for proper decision-making process. The Forest Service's reliance on inadequate and often vague mitigation measures to ensure public safety and protection of wildlife and its habitats also make this decision "arbitrary and capricious." RELIEF SOUGHT We request the Reviewing Officer to either: (1) Change the Decision to issue the heli-ski permit by substituting approval of Alternative A, the "No Action" alternative that would forbid issuance of a Special Use Permit to the concession. or (2) Remand the Record of Decision to the Deciding Officer with instructions: (A) to remedy the deficiencies in the FEIS detailed in this Appeal,HISTORY OF THE HELICOPTER SKIING CONTROVERSY Wasatch Powderbird Guides (WPG) commenced operations in the early 1970's, with the Forest Service assuming the role of a kindly mentor to the fledgling enterprise. As early as 1976 officials of the Salt Lake Ranger District began to have concerns over potential conflicts between the helicopter concession and other users of the public forest lands. In the April, 1976 report titled Survey of Winter Recreation for the Salt Lake Ranger District district officials Matt Dahlgreen and Rick Thorim urged against use of a "laissez-faire management approach" in management of the concession's Special Use Permit. They warned that "helicopter skiing may prove to be a sleeping dragon that will finally rear its head with myriad management problems." Nearly thirty years later the Forest Service has received more written complaints against the heli-ski operators than they have received against all other permittees who conduct business on the Wasatch-Cache National Forest. Leaders of a Girl Scout camp near Provo have threatened to have heli-skiers arrested for trespassing. Wasatch Mountain State Park and Provo City officials have complained of WPG's unauthorized use of public roads for staging. A canyon landowner has complained of unwelcome landings on his property. Salt Lake resident Ellie Ienatsch has observed the WPG copter repeatedly spook a golden eagle from its nesting site in Big Cottonwood Canyon. The Forest Service has also reprimanded WPG for unauthorized blasting of terrain outside of their permit area and for unauthorized heli-skiing on a peak within a critical (and protected) Salt Lake City watershed canyon. During the last decade, as WPG accumulated its demerits, the local Wasatch canyons were attracting ever increasing numbers of backcountry recreationists. Concerned users soon began asking Forest officials how they could justify allowing a very small and exclusive group of heli-skiers to spoil and endanger the back country recreational experiences of so many. When the five year heli-ski Special Use Permit came up for renewal in January, 1991, forest officials initiated a mediation process to resolve friction between back country skiers and heli-ski operators. During mediation, use patterns proposed by back country advocates (that would have assured both user groups equal access to undisturbed terrain) were continually rejected by heli-ski officials. After the failure of mediation, Forest officials continued the permit renewal process, eventually granting the permit. Early in 1997 (during the next permit renewal cycle) WPG officials contracted the Forest Service to perform the Environmental Assessment (EA) required for renewal of the Permit. Salt Lake District Ranger Mike Sieg and his staff had wanted to make a decision that would be easy to understand, easy to monitor, fair to backcountry users and would be "relevant to the situation today." WPG's effects on wildlife (primarily golden eagles), public safety, and private property rights would have been subjects of analysis. Proposed alternatives, officials stated, would have considered "limits on the number of helicopters used and or helicopter days in certain circuits." As the Draft EA took shape WPG ordered termination of all work. They then appealed to Forest Supervisor Bernie Weingardt to issue a "temporary" 1 year extension to the expired permit. Utilizing a Categorical Exclusion provision the Supervisor granted the extension. During the public input phase ("scoping") of the aborted EA process issues relevant to public safety and impacts on protected wildlife surfaced, necessitating expansion of the EA to a more comprehensive Environmental Impact Statement (EIS). The summer of 1998 rolled by with no EA, no EIS, and no permit for WPG. Throughout that year, and on numerous public occasions, Forest Supervisor Weingardt had stated unequivocally that no "second temporary extension" would be granted by his office. WPG's management appealed to the Regional Forester (RF) for intervention on their behalf. The RF's office suggested that a second permit extension would be appropriate if it addressed issues that had surfaced during scoping. Early in August, 1998 the Supervisor informed WPG that a temporary permit could be granted under specific conditions that addressed safety, terrain usage, and private property concerns voiced often by many forest users. With an "I concur", seven deputy Regional Foresters endorsed the proposal. WPG's owner responded that the conditions were unacceptable and stated that unless they were relaxed or eliminated there would be no heli-skiing during the 1998-99 ski season. The concessionaire stuck to his guns--but only temporarily. Late in February, 1999 he signed the permit and commenced operations. In June, 1999 the long-awaited Draft Environmental Impact Statement was completed and released to the public for review. The Forest Service received some 2,000 written comments on the DEIS---more public comments than they had received on any issue---ever. Of those comments about 1,700 favored the "No Action" alternative that would have precluded issuance of the Special Use Permit. The Final Environmental Impact Statement and Record of Decision being appealed was issued on October 2, 1999. DEFICIENCIES IN THE PUBLIC SAFETY DISCUSSIONS IN THE FINAL ENVIRONMENTAL IMPACT STATEMENT Through its public "scoping" process the Forest Service identified several issue categories for discussion in the environmental impact analysis process. These were Recreation, Safety, Economics, Wilderness, Wildlife, and Vegetation. Two of the issues, Recreation and Safety were identified as "driving issues" and were used to develop the various alternatives presented in the EIS. Throughout the draft and final environmental impact statements the Forest Service touts its concern for public safety as it relates to backcountry usage and helicopter skiing. "This analysis," the authors of the FEIS point out, "focuses on the potential impacts of helicopter skiing on back country recreationists , with emphasis on the potential for avalanches triggered by the helicopter or helicopter skiers, for collisions involving helicopter skiers and other recreationists, and for any hazards associated with WPG's use of explosive charges in snowpack stability testing." Admirable concerns, each and every one. Unfortunately, on reading the FEIS and agency "responses" to public comments published in its Appendix, it is easy to obtain the impression of hollow rhetoric, that the main concern of the agency is continued and virtually unimpeded operation of the heli-ski concession. Throughout the document, using vague language (such as "risks appear to be low") agency officials ignore or minimize the public's concerns. In several safety-related discussions the Forest Service discounts "anecdotal evidence" used by public respondents to illustrate hazards while at the same time using anecdotal evidence to support the heli-ski concessionaire's contentions. Instances of avalanche releases by helicopter skiers (as reported by public reviewers of the DEIS) are dismissed without response, as are discussions of post-control and sympathetic avalanche releases. Injuries suffered as a result of collisions between other backcountry users and heli-skiers are similarly discounted. Two important safety-related mitigation measures are eliminated simply on the grounds that they may be difficult to monitor and enforce. SAFETY IMPACTS (Sec. 2.5.2) Do Helicopters in Flight Cause Avalanches? In Section 2.5.2 the preparers of the FEIS state that "no evidence exists that helicopters in flight can cause avalanches." Alexis Kelner, (author of several book chapters on avalanche safety) submitted to the "Environmental Coordinator" of the heli-skiing environmental analysis the names and addresses of several international avalanche authorities and scientists who would be familiar with helicopter flight induced avalanches. He also submitted to the coordinator the name of an experienced mountain rescue helicopter pilot who was personally familiar with helicopter flight induced avalanches. None of the suggested experts was contacted by the preparers of the DEIS and FEIS. So, which experts were contacted? And for what purpose? The preparers of the environmental impact statement relied on anecdotal evidence from Wasatch Powderbird Guides (the self-interested permittee!) and avalanche experts from the Utah Avalanche Forecast Center who were consulted (as explained in the Forest Service response on page A-74 ) to "validate WPG's experience." Since heli-ski copters often fly over other backcountry recreationists, and over steep slopes above them, whether a helicopter in flight can initiate an avalanche becomes an extremely important safety-related consideration. According to NEPA law, such an important issue requires "accurate scientific analysis, and expert agency comments." "The information," NEPA directs, "must be of high quality." Several federal cases reinforce the NEPA mandate that a "hard look" is required and that an agency must make a reasoned analysis of the evidence before it and supply the evidence available to all concerned. In the case of helicopters in flight initiating avalanches, the Forest Service preparers of the Wasatch Powderbird Guides DEIS/FEIS have failed miserably on both counts. Collisions Between Helicopter Skiers and Other Backcountry Users. A few lines down from the helicopters-in-flight/avalanche subsection the FEIS states that "there have been no reported collisions between helicopter skiers and other recreationists." In Public Response # 235 (as reprinted in the Appendix) the writer describes witnessing "several collisions, one resulting in a dislocated shoulder of the skier climbing the trail." Helicopter Landings on Ridges Above Other Backcountry Users. Throughout the history of the helicopter skiing Special Use Permit controversy, it became clear that two of the greatest dangers related to helicopter skiing were the possibilities of avalanche releases initiated by helicopters landing on ridges above other backcountry users or by heli-skiers descending steep, avalanche-prone slopes above, or through other users. The possibility of such avalanche releases was described in the Draft EIS, as well as in the Final EIS. On page 2-30 the authors of the FEIS state that "WPG helicopters did reportedly trigger a few avalanches early in the company's history by landing on cornices which collapsed, releasing slides on the slopes below." The FEIS concludes that "the risk of this recurring and injuring other backcountry users is low" because understanding of the locations and conditions under which such incidents could occur has improved. That the Forest Service recognized the continuing dangers associated with ridgetop landings and skiing above other users became evident as they proposed terms for the 1998-99 Special Use Permit. They included two simply and clearly-stated sections to the proposed permit: 1) helicopters would not be permitted to land above other back-country users and 2) heli-skiers would not be permitted to ski above other back-country users. Distance limits (300 ft) were included in both sections. When asked by Save Our Canyons representatives to explain the distance parameters, Salt Lake District Snow Ranger Al Soucie responded that inclusion of distances was necessitated by legal considerations. These two important safety-related conditions are missing from the Mitigation Measures of both the Draft EIS and the Final EIS. What reasons are given by the Forest Service as justification for their removal from the EIS? In their Response (p. A-75) the Forest Service claims that these two conditions were included in the previous year's permit "in an effort to conservatively address safety concerns raised during scoping for this EIS." "The decision on whether or not to carry those measures forward," the F.S. respondent continues, "was to be based on the findings of this analysis." The respondent further states that having included these conditions in the current permit's mitigation measures would "virtually eliminate the potential for such an occurrence." The respondent further claims that their "biggest concern" was with implementation and enforcement. The respondent concluded "that whatever stipulations are made regarding the WPG operation should, in order to be credible, also be realistic to monitor and enforce." Should not all safety-related issues be addressed "conservatively?" After reading all 2000 public review comments it became apparent just why such conservative permit conditions are necessary for mitigation of helicopter related hazards. Several letters (such as Public Review Comment #66 ---Appendix p. A-71) refer to avalanches released by helicopter related activities onto other backcountry users. The authors of the FEIS claim that the risk of an avalanche started from above (by heli-ski activities) is low. A "low risk" is not equal to NO Risk! By permitting heli-ski descents and/or heli landings above other winter recreationists, the Forest Service (via its permittee) imposes an unnecessary risk on other forest users. The Forest Service Respondent clearly states that carrying the two mitigation measures forward into the current permit would "virtually eliminate the potential for such an occurrence." Isn't one of the two "driving issues" of this EIS process the elimination of such an occurrence and increased public safety? The Forest Service Respondent claims that the "biggest problem" with inclusion of these two mitigation measures was "implementation" and "enforcement." As with all regulatory laws, implementation and enforcement are facilitated by having included in them clear-cut and well-defined criteria. The courts expect it, as do backcountry winter recreationists! With the "high tech" GPS, etc. equipment to be installed in the helicopters there should be no problem with implementation and enforcement. Having these clearly defined measures (with specific distances--as in the previous permit) in the current permit would make it easy for the Forest Service investigating any violations (or accidents) to define fault. The Forest Service finds itself in a very uncomfortable position with respect to financial liability in the event of an accident that is precipitated by helicopter associated activities above other users: By having included these two safety mitigation measures in last year's permit the Forest Service acknowledged the need for such safety related measures. In the current EIS the Forest Service acknowledges that having these measures in the current permit would "virtually eliminate" the possibility of an accident, and that in the previous permit they were dealing (as they should have with respect to safety) in a conservative manner. By having removed these mitigation measures, the Forest Service (in a potential liability lawsuit for damages in event of a heli-skiing associated accident) may become liable for any damages suffered. In their response (p. A-75) the Forest Service claims that "Section 2.4.8 states that good backcountry ethics, including two specific measures, italics added will be practiced by WPG. This comment is somewhat misleading: While there are two ethical considerations included in Sec.2.4.8, these have nothing to do with the two safety-related mitigation measures discussed." Reliance on undefined and/or vague ethical considerations should not be a substitute for specific, clear-cut regulatory definitions. Use of Explosives in Slope Stability Testing During the Public Scoping process, as well as the Public Review process of the Draft Environmental Impact Statement the use of explosives in snow stability evaluation was questioned from the perspectives of the safety-related issues of "sympathetic" and "post-control" avalanche releases. Sympathetic Avalanche Releases. Anytime an avalanche is initiated (by explosives or other means, natural or artificial) there is a potential that it's release and run downslope may trigger an avalanche release on an adjacent snowslope, gully, or drainage. Such releases are known as "sympathetic releases." The Wasatch Mountains are known for their sympathetic avalanche releases. The initiation of a recent major avalanche that destroyed an aerial tramway facility in Provo Canyon resulted, according to the area's Avalanche Forecaster, from a sympathetic release initiated by an avalanche in an adjacent drainage. Forest Service manuals frequently warn avalanche workers to be especially cautious of such releases when doing control work to stabilize slopes. Sympathetic snowslides have occurred even on slopes along the opposite side of a canyon from the target slopes. A classic case of sympathetic release occurred during control work at Alta's Greely Hill; it's description in the Forest Service's publication Snowy Torrents--Avalanche Accidents in the U.S. is worth repeating: "Shots then fired on the Greely Hill slopes released slides from adjacent hillsides. The fracturing continued to propagate clear around Albion Basin, releasing several slides in adjacent drainages and eventually releasing two small slides on the south-west face of Mt. Wolverine, across the valley from the original target." Post-control Avalanche Releases. A post-control avalanche is an avalanche that releases some time (from minutes to hours) after explosives have been detonated on its slope. Post-control releases are frequent killers at ski resorts, where ski slopes have been declared safe after use of explosives in attempts to initiate avalanches. "If an explosive fails to release an avalanche," international avalanche authority and author of the Forest Service's Avalanche Handbook Ron Perla writes, "it may in fact weaken rather than stabilize a slope." Perla explains that explosive control is most effective on slopes that are heavily skied, and hence, compacted such that underlying layers offer solid support. "This is usually the case within developed ski areas. In the back-country, this is usually not the case. Any snowslab, over a weak base, that fails to release when bombed, may be made into a hair-trigger trap to be set off by a ski tourer. " It is obvious from Perla's discussion that post-control avalanche possibilities are an especially important issue in the back-country frequented by growing number of ski tourers, ski mountaineers, snowboarders, and snowshoers. Although these issues were brought to the attention of the Forest Service during "scoping" there was no discussion of them in the Draft EIS. The failure to analyze and discuss these issues was again brought to the attention of the Forest Service during the Public Review period of the process, but the absence of discussion and analysis was continued into the Final EIS. In the Response to Comments section of the FEIS the authors of the environmental study quote the warning of deficiency, but say nothing in response. Throughout the draft and final environmental impact statements the Forest Service touts its concern for public safety as it relates to backcountry usage and helicopter skiing. "This analysis," the authors of the FEIS point out, "focuses on the potential impacts of helicopter skiing on back country recreationists , with emphasis on the potential for avalanches triggered by the helicopter or helicopter skiers, for collisions involving helicopter skiers and other recreationists, and for any hazards associated with WPG's use of explosive charges in snowpack stability testing." According to NEPA law, important issues require "accurate scientific analysis, and expert agency comments." "The information," NEPA directs, "must be of high quality." Several federal cases reinforce the NEPA mandate that a "hard look" is required and that an agency must make a reasoned analysis of the evidence before it and supply the evidence available to all concerned. Because of the public safety related deficiencies and the Forest Service's reliance on inadequate and often vague mitigation measures to ensure public safety in the FEIS, the Record of Decision should be considered as an "arbitrary and capricious" decision, rather than as a decision based on the NEPA mandated "hard look" necessary for proper decision-making process. RELIEF SOUGHT WITH RESPECT TO PUBLIC SAFETY: We request the Reviewing Officer to either: (1) Change the Decision to issue the heli-ski permit by substituting approval of Alternative A, the "No Action" alternative that would forbid issuance of a Special Use Permit to the concession. or (2) Remand the Record of Decision to the Deciding Officer with instructions: (A) to remedy the deficiencies in the FEIS detailed in this Appeal, by Ellie Ienatsch (Save Our Canyons Wildlife Issues Coordinator) Canada Lynx, Wolverine, Peregrine Falcon, and Goshawk The Final Environmental Impact Statement (FEIS) to determine if a permit shall be issued to the ski-helicopter company known as Wasatch Powderbird Guides (WPG) continually states that in all issues regarding wildlife, it is following the recommendations of the United States Fish and Wildlife Service (USFWS). "Our position continues to be that the USFWS experts are the authority in wildlife matters, and we are committed to following their recommendations . . ." (FEIS p.A-94) The truth is that, if those recommendations do not benefit heliskiing, the Forest Service (FS) ignores them. In a letter to Bernie Weingardt on August 3, USFWS states the following: "The Department does not agree that the DEIS conclusion of 'unlikely to impact the lynx' should be based in part on the assumptions that lynx are not known to occur in the project area . . . Historical lynx sightings occur on both the Wasatch-Cache and Uinta National Forests . . . Based on historical sightings and habitat conditions, it is reasonable to assume that lynx would utilize the action area . . . Management decisions should err on the side of maintaining and restoring habitat for lynx and their prey."In the FEIS, the FS is permitting business as usual regarding WPG operations and wildlife. The USFWS recommendations are not being followed. The standard FEIS response to all discussions concerning lynx, wolverine, peregrine, and goshawk is this: After it has issued a permit to WPG, the FS will look around for these animals. If any sign of them is found, some general and often undefined mitigation measures will be implemented. In this cart-before-the-horse reasoning, the FS completely ignores what is obvious to USFWS and to the government agencies which notified the FS after reading the Draft Environmental Impact Statement: If populations of lynx, wolverine, peregrine falcon, or goshawk are to continue to live in these areas where they were once abundant, then loud,intense,intrusive human activity in these areas must be curtailed in some meaningful way. Lynx are now proposed for listing as threatened under the Endangered species Act. Animals that have been proposed for listing must receive honest attempts by the FS to reestablish healthy populations. To issue a permit for an intensely intrusive human activity to continue to operate in an area traditionally used by lynx, and then propose, in the midst of that noise and activity, to go looking for signs of that rare animal is useless mitigation, certainly not action erring "on the side of maintaining and restoring habitat." Not only is the FS ignoring the recommendations of USFWS, it is violating the requirements of the National Environmental Policy Act (NEPA). NEPA regulations state: "The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." (15001.1)In addition to ignoring the recommendations of USFWS and violating NEPA regulations, the FS takes no heed of suggestions from other concerned federal agencies. After reading the Draft Environmental Impact Statement, The Department of Natural Resources wrote: "The areas should be surveyed prior to permit issuance to determine if habitat is occupied by either of these two species (lynx and wolverine)". Survey protocol should follow Forest Service procedures for hair-snag and DNA analysis. If habitat is found to be occupied, the area should be excluded from the permit." (FEIS p.A-105) The response of the FS is to ignore the all-important words "prior to permit issuance", and to repeat exactly what they say throughout the entire FEIS discussion on wildlife: The FS will, after the permit is issued, survey the area. (FEIS p.A-105) In no way does that mitigation measure address the recommendation of the Department of Natural Resources. The FEIS pretends to show the FS as being an agency that is truly concerned with protection and restoration of wildlife. In discussing WPG impact to lynx, the FS says that it agrees with USFWS, that the FS will identify lynx habitat, maybe even look into lynx reintroduction. (FEIS p.A-102) They neglect to add, of course, that lynx surveys will take place after the WPG permit is issued. This type of meaningless mitigation measure placed in a document to placate concerned citizens and agencies is unacceptable. It is a distasteful ploy to convince the public that the FS is wildlife's big buddy when, in truth, it is illustrating that it is anything but that. In reality, it is business as usual for the ski helicopter. No terrain restrictions in the Wasatch, restrictions which would seriously advance the protection and restoration of lynx or wolverine, have been given consideration in the FEIS. The recurring USFWS theme, to assume the presence of lynx and wolverine until proven otherwise not only in the High Uintas but also in the Wasatch is the exact opposite of the FS position throughout the FEIS. The FS assumes there are no lynx or wolverine left in the area, so the ski helicopter can operate as usual. In regard to the wolverine, not currently a listed species but likely to receive additional consideration in the future as threatened or endangered, the USFWS says that there is recent evidence to suggest that wolverine do indeed exist not only in the Unitas but also in the Wasatch. They state: "Wolverine dens are typically located in rocky glacial cirques, talus slopes, alpine and timberline rock slides, etc. Denning activity occurs from January through April, concurrent with the heliski season. Data indicates that wolverine are very sensitive to disturbance near den sites and will readily abandon them. . .Similar to our previous comments on Canada lynx, we do not believe that the Forest Service should conclude that wolverines have been displaced from the permit area. . .Heliskiing operations should be planned to avoid sensitive wolverine habitat areas." (FEIS p.A-106) The above description giving the type of terrain and the time of year of wolverine denning activity defines the type of terrain and the time of year used by the ski helicopter. In their August 4 letter to the Forest Supervisor, USFWS specifically states that surveys are necessary and that terrain restrictions for helicopter-skiing may be appropriate. USFWS asks the FS to resolve this problem in the FEIS. The FS pretends to study the problem, closes the three High Uintas permit areas which WPG never uses anyway, and dismisses the issue. No plans to have WPG "avoid sensitive habitat areas" in the Wasatch are even discussed. Save Our Canyons (SOC) offers to take the FS into the permit areas of the Wasatch and show them the many "rocky cirques, talus slopes, alpine and timberline rock slide areas", habitat for wolverine which are now habitat for ski helicopter. In addition to using the pretence of showing concern regarding the restoration of wildlife, the FEIS often resorts to ambiguous language in an attempt to cover up the fact that it is not taking the action which government agencies and the public urge it to take. Here is one example of this rhetoric: "Although the USFWS believes lynx quite likely to inhabit the permit area, this agency (that must mean the FS?) along with others (who?) contend that the absence or presence of Canada lynx in the permit area is a moot point." (FEIS p.A-100) The dictionary gives two definitions of "moot": 1) "debatable"; "resolved and thus not worthy of discussion". If the FEIS "moot" means "debatable", then the FS, as it states it is doing throughout the document, is obliged to take the debate position of USFWS and "be making decisions that foster, rather than hinder, the reestablishment of the Canada lynx in the permit area". (FEIS p.A-100) At present, the FS is supporting the debate position of the ski-helicopter company. If the FEIS "moot" means that the Wasatch-Cache National Forest Service believes the question of the presence or absence of lynx has been resolved and is therefore not worthy of discussion, then the representatives of this group need to be replaced immediately. The lynx will soon be federally listed as threatened. The wolverine is now listed as a FS Sensitive Species and a Utah Threatened Species. It will undoubtedly be considered for federal listing in the near future. The FS is mandated by law to promote and/or restore the continued existence of these species. By allowing the highly intensive human activity of helicopter skiing in the areas likely to be habitat for lynx and wolverine before a serious program of surveying is planned, implemented, and analyzed, the FS is saving itself the trouble of promoting and restoring habitat, since lynx and wolverine would surely not return to an area under this type of harassment. In dealing with goshawk and peregrine falcon protection, the FEIS arrives at the same decision that it did concerning lynx and wolverine. It will be WPG business as usual, and while that is going on, there will be a little monitoring done. The FS no doubt breathed a big sigh of relief recently at the removal of the peregrine falcon from the Endangered Species list. Had it not been removed, the FS would most certainly have been stopped from its standard policy of "heliski now, research later". In a big-hearted show of being pro-wildlife, the FS states in the FEIS that, in spite of its being delisted, the peregrine is still protected under the Migratory Bird Act, and so a one-mile buffer zone will be placed around any nest site that is found. (FEIS p.2-16) It is important to note that the promise is a fairly safe one since, although there have been sightings of peregrine in the permit area as late as 1998 (FEIS p.3-38), no nests have been found. The FS promises to make one visit in mid-to-late March into the American Fork drainage where sightings occurred to look for a nesting peregrine. Since WPG will have been operating in this area since December 15, it is not likely that a nesting peregrine will be found. The FEIS extends this type of faulty logic in further comments on the peregrine. It states: 1. "Although suitable nesting habitat does exist within the permit area, any potential impacts to peregrines would be tempered by the seasonal separation between their possible occurrence/nesting activities and WPG's window of operations." (FEIS p.3-38) "The latter end of this range" includes late March/early April. Ski-helicopter operations continue until April 15. This is not the "seasonal separation" the FEIS wants the public to believe. Also, the question must be asked: When a pair of peregrines is deciding on a nest site, probably during March, would these raptors choose one in an area already occupied by a huge, noisy, extremely frightening bird? Hardly. Other questions must be asked: Why will the FS make only one visit to determine if peregrines are in the area? And why will the FS time this visit to take place in mid-to-late March when nesting could occur in April? Undoubtedly it is because they believe, as the public believes, that unless WPG activity is curtailed, no ski-helicopter buffer zone will need to be implemented because no peregrine will be nesting. Regarding the goshawk, the FS says there is no specific survey data available for the permit area, but they concede goshawks may be present. (FEIS p 4-39) Then they add, again with faulty logic, that goshawk remain in forested areas while the helicopter operates in open space. Anyone who has watched a ski helicopter and watched a goshawk knows that the helicopter continually flies low over forested areas and that the goshawk often forages in open areas. "Further", the FEIS continues, "goshawk nesting begins later in the season, in March". The FS seems to need constant reminding that WPG will operate until April 15. The arguments presented in the FEIS concerning the goshawk and the peregrine are ridiculous and unacceptable. Besides being false arguments, they have at their base the false assumption that these fiercely brood-defensive birds will choose to nest in an area severely disturbed by ski-helicopter operations. The ambiguous language used throughout the wildlife sections of the FEIS to confuse the reader into believing that the FS is truly concerned about wildlife and would curtail WPG operations if there was a valid reason to do so, is evidenced in the following statements: "The Biological Evaluation prepared for this project found that the Proposed Action may adversely impact individual goshawks, but would not be likely to result in al loss of viability on the planning area, nor cause a trend toward federal listing or a loss of species viability rangewide." (FEIS p.4-39) What do these almost identical statements mean? It is difficult to translate the confusing language accurately, but it appears that the FS is saying this: After sitting around talking about it for a while, we decided that the ski helicopter may affect a couple of goshawks or wolverines, but we won't have to worry because that probably won't cause enough stir in Washington to put them on the Endangered Species List. Several questions concerning the above ambiguous quotations must be asked: Are not "populations" of species composed of "individuals"? If the ski-helicopter interferes with even a single pair of goshawk or wolverine and causes the animals to desert the habitat that is rightfully theirs, will not the helicopter do so again and again, thwarting any effort these species might make in trying to return to the area? How can a healthy "population" of a species ever be reestablished if "individuals" are not allowed to exist? USFWS appears to understand this. The FS does not. The decisions in the FEIS are unacceptable because the document does not adequately address the impact which the ski helicopter has on wildlife. Wildlife used to live in abundance in the WPG permit area. The FS continually points to the overall increase in backcountry use as being the cause of the problem. The Forest Service is right; no one argues this position. The overall, general increase in backcountry use must be studied and addressed. If restrictions are found to be necessary under USFWS recommendation and NEPA mandate to "protect and restore the environment", those restrictions must be written in a document of their own. As for the immediate decision, whether or not ski helicopter operations must be curtailed because of adverse impact on wildlife, the FS must face the obvious truth that the ski helicopter represents a human intrusion on the land that is abnormally intense, while benefitting relatively few people. To attempt to maintain and restore a healthy ecosystem in these mountains unique because of their proximity to a huge metropolis that wants to love them to death, the FS must begin with the most intrusive of all the varieties of human backcountry interference. At the very least, it must offer meaningful curtailment of ski-helicopter activity until restoration of wildlife has been sincerely attempted. The FEIS, as it is currently written, does not do that. As one concerned citizen wrote: "The basic message here (in the DEIS) is: the situation is already bad for lynx and wolverines; therefore, it's okay to make it worse. Such a logic precludes the possibility of species recovery, should the level of human disturbance somehow be reduced. The FEIS should turn its back on this logic and instead disclose to the public measures that might be undertaken to bring lynx and wolverines back into the area." (FEIS p. A- 104) The FEIS continually states that they are following the recommendations of USFWS on wildlife matters. Yet in the instance of every one of the animals which are given some notice in the FEIS, the FS says that monitor/survey plans will be drawn up and executed after WPG has been issued a new permit to operate in much the same way which it has in past years. That is not the position of the USFWS, the agency which the FS claims has been its authority on wildlife. Furthermore, it is not the position of NEPA, and it is not the position of the federal environmental agencies who were concerned enough about the indifference to wildlife in the Draft EIS to contact the Forest Service. The ski helicopter is being allowed to continue at the expense of wildlife. The issue of the impact to wildlife by the ski-helicopter should be the main focus of the FEIS, not its last. The Chief of the United States Forest Service, Mike Dombeck, said this: "To me a conservation leader is someone who consistently errs on the side of maintaining and restoring healthy and diverse ecosystems even when - no, especially when - such decisions are not expedient or politically popular."(Newsletter: Inner Voice, Nov./Dec. 1998) The FEIS does not show the Wasatch-Cache National Forest Service to be the conservation leader that Chief Dombeck envisions the Forest Service to be. The FS position in the FEIS concerning the ski helicopter is indeed expedient and politically popular. It certainly does not "err on the side of maintaining and restoring healthy and diverse ecosystems". Finally, it is appalling and unbelievable that the FEIS makes the following statement under the heading Irreversible and Irretrievable Commitments of Resources: "No resources would be irreversibly committed under this proposal. The main resource involved is snow and the recreational benefit it embodies, and snow is renewable. The only irretrievable resource commitment possible under this proposal would be any recreational opportunity foregone by issuing the helicopter skiing permit." (FEIS p.4- 46)This short-sighted statement appears to be written by the ski helicopter company itself. By allowing continued, virtually uncontrolled heliskiing, the FS is encouraging the continued demise of wildlife in the national forest they are committed by law and by mission to protect and restore. They are "irreversibly" and "irretrievably" committing the health of a once wild and natural ecosystem. The retrieval of this precious resource could take place, but only if immediate action is begun. The golden eagle is the one wildlife species protected by law that the Forest Service (FS) recognizes as existing within the ski helicopter permit area of the Wasatch Mountains. Consequently, a mitigation measure to reduce the level of disturbance to nesting eagles was included in the 1996/1997 and 1997/1998 temporary permits which the FS issued to the ski helicopter company, the Wasatch Powderbird Guides (WPG). This mitigation measure established a one-half mile no-fly buffer zone around and above each of the six nests in the golden eagle nesting territory of Big Cottonwood Canyon, an area known as the Northern Powder Circuit (NPC). The NPC is, unfortunately for the eagles, also the favored area of heliski operations. In the mitigation measure of the past two years, WPG was not allowed to operate within the one-half mile buffer zones beginning on March 1. No exceptions were to be allowed. The Forest Supervisor stated that violations could cost WPG its permit of operation. A plan to monitor nests and heliski flights was implemented. The Draft Environmental Impact Statement (DEIS) assured the inclusion of a golden eagle mitigation measure in any permit issued to WPG this year. But the mitigation measure which appears in the Final Environmental Impact Statement (FEIS) is not acceptable mitigation. Here the measure as written in the FEIS: "WPG will, beginning February 1 (or earlier, if courtship behavior is reported by an authorized Forest officer) observe "no-fly" buffer zones around all known golden eagle nest sites. These buffer zones will be 0.5 miles in radius around and above each nest site. Site-specific variances will be identified for certain helicopter landing spots and flight paths where it has been determined by the forest Service in coordination with USFWS that flying within 0.5 mile is unlikely to adversely affect the eagles. Once nesting has been confirmed by Forest Service biologists in a given season, buffers will be retained for the occupied nest site and removed from unoccupied sites for the remainder of that season. Nest sites that have not been occupied for a number of years will, in accordance with USFWS guidelines, be periodically evaluated by the Forest Service and USFWS to determine whether they should be considered abandoned and protective buffers removed." Close examination of this statement reveals that, except for an earlier starting date, any golden eagle protection that was originally established in the "no-fly" buffer zone mitigation measure of two years ago has now disappeared. The wording of the mitigtion as it apperas in the FEIS makes the measure entirely worthless. The issuance of any permit to WPG must be delayed until this mitigation measure is rewritten to provide meaningful protection for the golden eagles. The unacceptable portions of the FEIS mitigation measure written above have been underlined and will be discussed in the order they are written:
It should be noted here that Save Our Canyons is concerned over what appears to be an exit-in-progress concerning the Big Cottonwood golden eagles. Their activity has been closely followed. The pair nested successfully in most of the years in the 1980's. In the 1990's, however, there has been only one successful nesting (1993). In l995, E.S. Ienatsch, a Wasatch Front resident who has closely observed the Big Cottonwood golden eagles since 1982, watched as the noise and activity of the ski helicopter caused the nesting eagle to leave the nest. This occurred on April 1 and again on April 11 of 1995. The nest was subsequently abandoned. From 1996 until the present, the golden eagles have not nested at all in the Big Cottonwood nesting territory. But they have been observed performing their courtship ritual around the nest sites in that area each January, February, and March. The mitigation measure concerning golden eagle protection which is written into any permit issued to WPG must contain the following:
The golden eagle is federally protected by the Eagle Protection Act and the Migratory Bird Treaty. Therefore, sufficient protection for these birds on national forest land must be given priority by the Forest Service, protection that actually works. The golden eagles of Big Cottonwood Canyon are in the process of leaving. The buffer zone mandate of the past two years has been inadequate. The eagles, although they used the nest sites for courting in the early months of both 1997 and 1998, once again did not nest in the territory in either of those years. Because of this, Save Our Canyons recommended, in their comments on the DEIS, that the FS close the Northern Powder Circuit to helicopter skiing from February 1 until the end of the season in a sincere effort to keep yet one more important wildlife species from leaving the Wasatch Range. Save Our Canyons recognizes that closure of the Northern Powder Circuit for that length of time each year could cause financial hardship for the ski helicopter company. Although the mitigation measure concerning golden eagles is inadequate as written at present, the FEIS suggests two important requirements which lead Save Our Canyons to agree that a buffer zone mitigation might, if written correctly, provide true protection for the eagles. One of those requirements is that the ski helicopter be equipped with adequate GPS and videocamera equipment to verify with certainty the flight paths/landing sites used by the helicopter on any given day. Another positive step in the FEIS mitigation discussion is the recognition by the FS of the need to begin buffer zone closure earlier in the year in order to provide protection during the courtship period. Therefore, Save Our Canyons is supporting the buffer zone mitigation measures if they follow the recommendations in the USFWS Utah Field Office Guidelines for Raptor Protection. A one-half mile buffer zone around and above each nest will begin on January 1. No variances will be allowed in landing sites or flight paths. If violations are observed, it will be the responsibility of WPG, through its recording equipment, to prove that the violation did not take place. Appropriate action for violations, as well as adequate plans for monitoring, will be in place, before any permit is issued. The USFWS Utah Field Office Guidelines for Raptor Protection (p.2) points out that raptors are widely accepted indicator species of environmental quality due in part to their position at the top of biological food chains. In the same paragraph, the guidelines note that raptors are highly regarded by the public as symbols of nobility, bravery, and wisdom. The first statement offers the scientific reason, the reason of the mind, o protect the golden eagle. The second statement offers the intuitive reason, the reason of the heart. Both are important. Howard Gross, Executive Director of HawkWatch International, wrote the following to Dan Jiron, District Forest Ranger, on August 9, 1999: "These claims (the gradual disappearance of the golden eagles from Big Cottonwood Canyon) are very serious and warrant action by the United States Forest Service to ensure that Golden Eagles do not disappear from Big Cottonwood Canyon. Golden Eagles were probably nesting in the Wasatch long before Anglos settled the Salt Lake Valley, and it is our responsibility to ensure that they continue to do so. The activities of a relatively small population of recreationists should not be allowed to jeopardize the habitation of Big Cottonwood Canyon by Golden Eagles." |