GIANT SEQUOIA
NATIONAL MONUMENT

Logging in
Trail of 100 Giants (2004-2005)

Analysis of
Answers by Forest Service re: FY 2008 Budget
Hearing

To Written
Questions by Representatives Moran, Hinchey, Olver,

Members of the Interior Appropriations Sub-Committee

Analysis by

Ara Marderosian, Director, Sequoia ForestKeeper

Carl Ross, Director, Save America’s Forests

Forest Service Violations of Law

1.       NFMA – No
Adequate Public Notice

The
Forest Service failed to provide adequate public notice.  When the Forest Service announced the
“Trail of 100 Giants Hazard Tree Fuel Reductions Project” April 29,
2004, the Forest Service did so verbally, not in writing with proper
documentation as required by NFMA.

2.       NFMA and
NEPA – No Adequate Comment Period

The
Forest Service failed to provide adequate public comment period as required by
NFMA.  The Forest Service announced
the project on a public field trip, but did not provide the required 30 day
public comment period

3.       NEPA –
No EA or EIS

The
Forest Service failed to provide an EA or EIS. Forest Service Chief Bosworth
testified in the Committee Hearing in 2006 that he would provide the EA or EIS
to the Committee, but the failure of the Forest Service to provide the
Committee with either an EA or an EIS indicates that the Forest Service did not
prepare a NEPA required EA or EIS for this project.

4.       NEPA and APA
– Illegal Categorical Exclusion

The Forest Service
illegally elected to categorically exclude this project from
documentation in an environmental impacts statement or environmental
assessment even though the decision document titled “Project File
for Monument Proclamation Hazard Tree Felling” indicates that this
project is more than a hazard tree project; the “Need for
Action” statement says, “there
is a need to reduce existing surface fuels.” Case law shows
that fuels reduction projects are
prohibited from being categorically excluded.

The Forest Service
illegally elected to categorically exclude the project when Jim
Whitfield, Acting District Ranger says in the decision document, “I have determined that there are no
extraordinary circumstances.” He ignored the statements in the
5/12/2004 Memorandum from Robin Galloway District Wildlife Biologist,
that indicate extraordinary circumstances due to this project being implemented
in a California Spotted Owl and Northern Goshawk Protected Activity
Center (PAC).

i.
“The trail of 100 Giants encompasses a
portion of both a spotted owl and a northern Goshawk PAC”

ii.
“Review of the wildlife records indicate
sustained occupancy by spotted owl since 1973”

5.       NEPA and NFMA – Arbitrarily Segmented the Project

The
Forest Service arbitrarily segmented the project into a timber sale following
the hazard tree and fuels reduction project.
The November 8, 2004, letter signed by Acting District Ranger, Nancy C.
Ruthenbeck, Subject: “100 Giants Hazard Tree Falling Project – Log
Deck Treatment,” says, “The
file stated that the felled trees which were removed from the trail area by
helicopter would be taken to a landing and piled. The resulting log deck constitutes
an attractive nuisance, thereby creating a safety hazard for the public. The
log deck needs to be removed. The treatments in the project area are consistent
with the Giant Sequoia National Monument
management plan.” No memo in the Forest Service file indicates that
the cut trees were to be sold as a “means of removal.”  Indeed, the Decision memo to the
internal file states that the wood would be used for camp fires and/or chipped
and mulched. Yet, on Wednesday, November 17, 2004, the log deck was offered for
sale, thus confirming that the logging project had been arbitrarily segmented
into two parts.

6.
NFMA – Failed to Conform to Best Management
Practices provided for in the Sequoia LRMP[1]

The
Forest Service failed to conform to the Best Management Practices (BMPs) for
protecting watersheds, which was described in a specialists report dated
7/7/2005 signed by Terry Henry for Joshua Courter Hydrology Trainee, which
says,

“The project
record failed to address water quality concerns . . . ‘

‘Stream-side
management and meadow protection zones were not identified.” But
trees were felled within meadows and across streams and logging slash was
left in streams contrary to the BMPs.

7.
NFMA and APA – Failed to Follow Its Own Hazard
Tree Guidelines for Defect Assessment

The
Forest Service failed to follow the requirements of Sequoia’s Hazard Tree
Guidelines to describe and assess
the severity of each defect for each
tree. The documents submitted indicate that they did not follow Sequoia’s
Guidelines because – the pages from the Cruise book and the R5 Hazard
Tree Inspection Forms provide wildly conflicting data.

Cruise book used to
document the hazard trees in the Trail of 100 Giants does not discuss the defect type –

8/23/04 R5 Hazard
Tree Inspection Form – data
is inconsistent with the data in the cruise book used to document the
hazard trees in the Trail of 100 Giants – Total number of trees,
DBH, and tree species conflict with data presented in the Cruise book
– indicating that they are
not the same data set.

8.
NFMA and APA – Failed to Follow Sequoia’s
Hazard Tree Guidelines for Alternatives

The
Forest Service did not conduct an independent management analysis for each
“hazard tree” as required by Sequoia’s regulations

All of the trees
deemed a hazard by the Forest Service were removed whether or not removal
was necessary.

The Hazard Tree
Guidelines present four management alternatives, in addition to removal,
which were not considered - Target Removal, Topping, Pruning, and
Specialized actions (such as retention by cables)

Forest Service Failure to Provide
Information Requested by the Committee

1.
The Forest
Service failed to provide the requested
set of maps with transparent overlays and digital images of GIS layers of past and planned tree-cutting projects,
including but not limited to logging, thinning, SPLATs and hazard trees. The
Forest Service provided a list of tree removal projects sequentially numbered,
and two .pdf file maps, in digital format only (one of the northern and one of
the southern section of the GSNM), which showed, for each past tree removal
project, a number (a Key field link) on the map that corresponded to the number
in the list of projects, rather than the actual GIS outline of the location of
all the units in the project.

2.
The Forest
Service failed to provide a map, as
requested, to illustrate the “tree falling distance” selected
by the Forest Service immediately surrounding all roads, trails, parking
areas,  and campgrounds.

Background on the Project

The GSNM was created by Presidential
Proclamation in 2000 for the express purposes of restricting new roadbuilding
and logging projects in order to protect the sequoia forests.  However, in 2004 and 2005, a large
logging project was conducted in the premiere tourist destination in the GSNM,
the Trail of 100 Giants, the very spot where President Clinton proclaimed the
Monument.

The Giant Sequoia National
Monument contains 50% of the world’s remaining sequoias, which are the
largest trees on earth and are found naturally nowhere else on earth.  If the ecological well being of these
groves of sequoias were diminished, and if any laws were violated in this
process, it would be a serious violation of the trust of the people of the United States.
The GSNM is one of our greatest national treasures, and is the heritage of
future generations of Americans and of all peoples of the earth. If the Forest
Service, in its testimony about the logging in the GSNM, was not conveying all
the facts accurately, we need to learn why.

In written testimony to the Committee in the spring of
2006, the Forest Service contended that it was not bound by the MSA, a
cornerstone of the operating procedures for managing the GSNM.  The Forest Service contended that the
proclamation creating the GSNM in 2000 superseded the MSA, and declared the MSA
to be no longer in effect. But, in a federal court decision Case
3:05-cv-00397-CRB Document 207 Filed 08/22/2006, Judge Charles R. Breyer
declared that the MSA was and still is in effect. Further, he wrote that the
Forest Service knew the MSA was in effect in 2002 when it wrote to the parties
to the MSA acknowledging that it still was in effect.  Yet, in 2007, in written answers to the
Committee, the Forest Service again stated
that the MSA did not apply, even after the 2006 ruling that the MSA is in
effect.  Additionally, had the
Forest Service followed the MSA all along, as the Judge ruled that they were
required to do, there would probably have been little or no logging in the
Trail of Giants.

Recommendations for the IG to
Investigate all aspects of this project

We recommend that the IG
prepare a comprehensive report on the Trail of 100 Giants logging project,
including a detailed list of any and all instances of violations of laws and
rules, including answers/responses to the following:

Investigate the logging project in the Giant
Sequoia National Monument (GSNM) conducted in the Trail of 100 Giants 2004-2005
that we conclude failed to follow laws and harmed the natural ecology of
the sequoia forest ecosystems and resulted in a number of centuries-old
trees being logged as hazard trees and sent to the local timber mill as
prime sawtimber.

Assess the accuracy of verbal testimony of the Agriculture
Department and the Forest Service to the House Interior Appropriations
Committee in hearings in 2006 and 2007 in which this GSNM logging project
was discussed, and post-hearing written answers, to committee
members’ questions about the GSNM logging project.

Did the Forest Service commit any of the
violations listed above, either of laws, or of rules or regulations, which
according to the Supreme Court[2]
would be a violation of law?

Investigate which Forest Service employees
participated in permitting this logging operation.  These employees may include the
hazard tree specialist, the fire specialist, and any other employees who
participated in the decision process to proceed with the logging operation.

What was their decision process, and were laws
and rules governing decision making followed, because there was not a
required study of and record made of each tree that was felled as a
so-called “hazard tree?”

Were any Forest Service employees directed to
violate or disregard the laws by their superiors in the Forest Service or
Department of Agriculture Department in Washington D.C.
or elsewhere?

Are any criminal penalties such as theft of
government property applicable to those actions?

Were there any employees who opposed the decision
to log in the Trail of 100 Giants, and if so, why were they ignored?

What are the identities of the timber workers
involved with the logging operation and were they legally hired?

How much did it cost the Forest Service to log
the trees, haul and store them, and what was the cost of administering
this logging operation?

How much did the Forest Service receive from the
timber sold from this logging operation, and/or how much did the Forest
Service pay the mill or logging company to remove the logs?

Was there any illegal collusion between Forest
Service employees and employees of the logging company and/or timber mill
which received the timber in designing or carrying out this project?

[1] Neighbors of Cuddy
Mountain v. U.S.
Forest Service, 137 F.3d 1372 (9th Cir. 1998)
at 1377, citing 16 U.S.C. sec. 1604(i); 36 C.F.R. Sec. 219.10(e): “A site-specific
decision, such as one to sell timber, must be consistent with the LRMP for the
larger area. See Inland Empire, 88 F.3d
at 757; 16 U.S.C. § 1604(i)”, and
“Pursuant to the NFMA, the Forest Service must
demonstrate that a site-specific project would be consistent with the land
resource management plan of the entire forest. 16 U.S.C. § 1604(i); 36
C.F.R. § 219.10(e) (“[T]he Forest Supervisor shall ensure that ...
all outstanding and future permits, contracts, cooperative agreements, and
other instruments ... are consistent with the [land management]
plan.”)”

[2] Steenholdt
v. FAA, 314 F.3d 633, 639 (D.C.Cir.2003):“Accardi
has come to stand for the proposition that agencies may not violate their own
rules and regulations to the prejudice of others”, citing Accardi v. Shaughnessy 347 U.S. 260
(1954).