The Hellbender Chronicles

Re: "Fence Salvage"/Martin Run Project

Ranger John Schultz
Bradford Ranger District
Allegheny National Forest
29 Forest Service Drive
Bradford, PA 16701
(814) 362-4613
(814) 362-2761 fax

Dear Ranger Schultz,

I am writing on behalf of the National Forest Protection Alliance in response to your notice dated March 3, 2004, relating to attempts to categorically exclude certain "Fence Salvage" portions of the Martin Run Project.

1. This is a blatant attempt to circumvent the legally required consideration of environmental impacts and alternatives and is therefore illegal and should be immediately withdrawn as a proposed Categorical Exclusion.

2. The Forest Service has already determined that the activities proposed by the Martin Run Project will have a cumulative significant impact and therefore requires preparation of an Environmental Impact Statement. These activities cannot be implemented through a Categorical Exclusion.

3. The public has already provided public comment on the Martin Run Notice of Intent and is anticipating that public comment will be responded to and addressed within the environmental impact statement for that project. Adopting a Categorical Exclusion for this project would allow the Forest Service to circumvent the detailed consideration of public comments required for environmental impact statements by substituting that process for the far less extensive and far more superficial review allowed in Categorical Exclusions.

4. While the Forest Service contends that this is necessary in order to repair the damaged fences, the Forest Service actually intends to carry out portions of the Martin Run Project as a commercial timber sale as evidenced by the scoping letter: "To expedite repair and maintenance of these fences, this small portion of the salvage harvest contained in the Martin Run Notice of Intent needs to be completed at this time."

5. It is one thing to remove trees that have fallen directly on fences. It is another to say that portions of the Martin Run Project need to be salvaged now through a categorical exclusion while they are still being considered in the scoping period for the Martin Run DEIS. Even the map associated with the CE notice is labeled as part of the "Martin Run" project.

6. By attempting to circumvent the EIS process, the Forest Service is bypassing consideration of more reasonable alternatives such as modifications to the fences themselves or simply moving the trees off of the fence lines themselves instead of removal of the trees. Tree fall along fences is persistent across the forest and the granting of this CE would establish a dangerous precedent for commercial timber sales along fenceways across the national forest in violation of the NEPA. 40 CFR § 1508.25. Alternatives looking at modifications to fence construction and design, as well as alternatives to the fence and log management program itself, are much more reasonable responses to the issue of treefall along deer fencing.

7. The decision to proceed with commercial logging as part of the Martin Run Project prior to the issuance of a Record of Decision is specifically prohibited by the NEPA because it prohibits the careful, detailed consideration of alternatives to commercial logging activities. 40 CFR § 1506.1,Until an agency issues a record of decision as provided in § 1502.2 … shall be taken which would limit the choice of reasonable alternatives. Furthermore, there can be no question that the decision to implement commercial logging now will prejudice the ultimate alternatives considered and decision made in the Martin Run Project.

8. Projects can not be segmented and broken up in order to evade more detailed review as required by the National Environmental Protection Act. This is a long-standing principal of the NEPA which would be violated by the implementation of the NEPA. 40 CFR § 1508.27(b)(7), Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

9. Even if these activities were isolated (and not part of a larger project) they cannot be categorically excluded from consideration in an environmental impact statement or environmental assessment.

a. The Categorical Exclusion for timber harvest relied on for this project, which was adopted specifically in order to address fire hazards, provides as follows:

13. Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than _ mile of temporary road construction. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing.

Examples include but are not limited to:
a. Harvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees.
b. Harvest of fire-damaged trees.

This CE, which is illegal to begin with, does not apply to the project at hand. The commercial logging proposed would occur over a 7 mile linear area. While the non-contiguous acreage of logging is quoted as only 51 acres, this does not cover the miles of skid trails and other disturbance activities that would be required to cover this project.

b. The Categorical Exclusion cannot be used for projects where extraordinary circumstances are present. Nearly all of the proposed logging sites abut or are adjacent to the Tionesta Scenic Area – a National Natural Landmark, documented habitat for the federally endangered Indiana bat, and the largest old growth forest in the entire state of Pennsylvania. In fact, in Curry v. US Forest Service, the presence of logging activity adjacent to Tionesta Scenic Area is part of what defines the need for an environmental impact statement. This is not a single extraordinary circumstance but a series of extraordinary circumstances that are impacted. In addition, these logging activities would occur in such close proximity that noise would be evident from the nearby North Country Trail – a National Scenic Trail. Furthermore, noise disturbances would affect recreationists within and near the Tionesta Scenic Area. Finally, the proposed activities all occur within the proposed Tionesta Wilderness Area (See http://www.alleghenywild.org) and the Tionesta Special Area (as outlined in the Act to Save America’s Forests). See 36 CFR § 219.27(b)(4), consideration of adjacent stands and residual trees.

c. The Categorical Exclusion can not be used to cover projects which may have a significant impact on the environment. It has already been determined that the proposed activities will require a preparation of an Environmental Impact Statement for which a Notice of Intent has already been issued.

d. The NEPA requires that past, present, and future events be considered when considering whether or not an environmental impact statement is required (or when a categorical exclusion may be considered). The decision to maintain fences for the purposes of initiating future regeneration as part of a commercial logging practice itself sets a precedent for future activities which must be considered within the context of this proposal.

e. The Categorical Exclusion standard which the Forest Service hopes to use on this project itself is illegal. In the scoping notice, it suggests that the standard for consideration of whether a Categorical Exclusion can be used is "whether potentially significant effects would occur to any of the following categories of extraordinary circumstances." This is incorrect. The potential for significant effects is what determines whether or not an Environmental Impact Statement is necessary after preparing an Environmental Assessment. The same standard cannot be applied to Categorical Exclusions because then there would be no part in the NEPA process for Environmental Assessments. The presence of extraordinary circumstances requires the preparation of Environmental Assessment. After an Environmental Assessment is prepared then the potential for significant effects, and not just to extraordinary circumstances, is used to determine whether an EIS is required. The Forest Service proposes to apply an incorrect interpretation of law in pushing through this illegal Categorical Exclusion.

f. The Categorical Exclusion #13 is illegal. According to the Federal Register Notice for its adoption, this category is only applicable where target trees "still have some economic value as a forest product." Therefore it is clear, that economic value of the trees is a primary consideration in all cases where this CE may even be considered. This violates the provisions of the NFMA which strictly prohibit the choice of vegetation manipulation primarily for commercial returns. 36 CFR § 219.27(b)(3).

g. The proposed timber sale would exacerbate the potential for future windthrow damage near these fence areas, which is already exacerbated by past logging activity. This has obviously had a past significant impact and will further increase the likelihood of future tree fall as the result of wind disturbances. 36 CFR § 219.27(b)(4), requiring consideration of impacts of logging on residual trees.

10. The proposed "Fence Salvage" portion of the Martin Run Project would "propose to remove these trees through a commercial timber sale and would include fallen trees within a 25 foot zone on either side of the fence (some leaning trees could be as much as 75-100 feet away from the fence)." Yet, the purported purpose of this Categorical Exclusion is to repair fences. Repairing fences does not require commercial logging and the failure to consider alternatives to commercial logging, or to explain why consideration of such circumstances was not given due consideration in the original environmental analysis, undermines the purpose, intent, and letter of the NEPA.

11. There can be no question that the decision to use commercial logging methods to remove timber in this instance, where non-commercial alternatives are clearly available, violates the National Forest Management Act requirement not to choose logging methods primarily on the greatest commercial return. There is no justification for using commercial logging in this instance other than commercial returns which is a clear violation of this premise.

12. The scoping notice acknowledges that the repair to the fences is meant to protect seedlings grown on the site for commercial logging purposes – further exacerbating the link between this proposal and the NFMA prohibition in selecting logging systems primarily for the greatest commercial return.

13. This project is an insult to those who provided public comment on the Martin Run Notice of Intent with the expectation that their public comments would be responded to within the EIS and would not be prejudiced by illegal logging activities implemented through illegal CEs. These citizens have a right to have their public comments on the Martin Run project addressed through the legally required processes outlined by NEPA for Environmental Impact Statements and not circumvented while we await the preparation of that EIS.

We appreciate your immediate attention to these public comments.

Sincerely,

Andrew George
National Forest Protection Alliance
Campaign Coordinator
PO Box 215
Chapel Hill, NC 27514
919/933-3073
andrew@forestadvocate.org

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