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28 January 2009

Appeal by the High Uintas Preservation Council of the Wild and Scenic River Suitability Study for National Forest System Lands in Utah, Final Environmental Impact Statement and Forest Plan Amendments and Record of Decision.

This is an appeal by the High Uintas Preservation Council of the Wild and Scenic River Suitability Study for National Forest System Lands in Utah Final Environmental Impact Statement (FEIS) and Forest Plan Amendments and Record of Decision (ROD) specific to the decision on the Ashley National Forest (ANF), signed by Kevin Elliott, Forest Supervisor, and the Uinta-Wasatch-Cache National Forest (UWCNF), signed by Brian Ferebee, Forest Supervisor. While our appeal specifically focuses on rivers on the High Uinta Mountains located on these two forests and the Kamas, Evanston/Mt. View, Roosevelt/Duchesne, Vernal and Flaming Gorge Ranger Districts, many of the appeal issues and concerns must be directed at the broader structure of the FEIS and ROD.

We have actively and formally participated throughout the lengthy process involving the preparation of this FEIS including comments during the suitability scoping process, Draft EIS and the eligibility determination processes.

We are deeply distressed by this project in that the Forest Service had a remarkable opportunity to proceed with a meaningful Wild and Scenic River suitability recommendation while meeting the vast and broad array of public concerns raised throughout this process. A notable opportunity existed to designate dozens of river segments while impacting few foreseeable development opportunities and having no economic or social impacts thrust upon local communities. Rather the decision cast those opportunities aside choosing to hide behind near xenophobic opposition and fear surrounding the National Wild and Scenic River System (NW&SRS). Sadly, the process didn’t work!

Hopefully, this appeal will find a more responsive hearing and get beyond the rationalization of the selected alternative in an attempt to focus on the best decision, given the public nature of the process and the fact that the resources being “managed” are part and parcel of that public nature.

Maybe the appeal process will actually implement a more inclusive and collaborative process clearly and obviously missing certainly in this FEIS and ROD.

We all fully know that a proper array of alternatives is the “heart of the environmental impact statement” and that an EIS must “Rigorously explore and objectively evaluate all reasonable alternatives” to the specific project and that the decision maker must explore alternatives in sufficient detail to “sharply define the issues and provide a clear basis for choice among options by the decision maker and the public.” Alternatives must not foreclose options that may protect or enhance the environment.

We also fully recognize that the Forest Service does not want, need, or even must have a breathtakingly vast array of alternatives that make an analysis unwieldy. But it is proper and imperative that the agency analyze alternative ways to meet the Purpose and Need and, in this case, that should have included a suitable determination for all 86 rivers in the analysis. After all the FEIS harbors a not suitable determination for all 86 rivers, Alternative 2, and a no suitability determination on all 86 rivers while maintaining the eligibility, deferring the suitability study on each river indefinitely.

The all rivers suitable determination alternative was dismissed in an almost unbearably biased, unprofessional and unethical manner. The FEIS notes:

This alternative was dismissed from detailed study because it is too expensive and not practical. This alternative assumes all the costs, while not recognizing competing trade-offs for other planned development and uses on these river segments. It fails to recognize the differing levels of support that exist for and against designation.

There is nothing the least bit impractical about including an alternative that discloses precisely what would happen to tradeoffs if all eligible rivers were found suitable and protected under the NW&SRS. It is no different in context than the not suitable determination ( Alt.2) which forecloses and fails to recognize all suitable/eligible river values and fails to recognize any level of support that exists for designation. It is only logical and professional to include such an alternative and, in fact, it is hard to see how Forest Service policy is met by excluding such an alternative. It is a clear and eminently reasonable alternative that assists in sharply defining issues and offering a full array of choices to all public interests and concerns.

It seems without dispute, that the Forest Service is willing to dismiss supportive comments for river suitability but not oppositional comments!

The simple matter of fact is if there is no all suitable alternative in the FEIS, there should not be an all not suitable alternative.

An FEIS of this nature and magnitude is simply deficient in this context without a full disclosure and analysis of an all suitable alternative.

An attempt to argue that Alt. 1, a no suitable determination while maintaining the eligibility status of all 86 rivers, satisfies the concerns above is nonsense in that no suitability analysis can be offered because the determination of suitability is deferred indefinitely. The matter of fact is this is actually not an alternative as it does not shed the least bit of light on defining issues or offering an array of choices for river suitability since no study or analysis is complete or even in the works. It is indefinite in every context.

As to costs the appropriate way to handle that issue, of course, is to do and disclose the full analysis and make it part of the assumptions and criteria of the alternative in the the context of selecting that alternative. Rather than simply dismissing an analysis of the alternative by concluding, without analysis, that it is too expensive, the issues/concerns associated with management expenses should be documented and analyzed and become part of the record as to why the alternative was not selected.

There is no management cost associated with this analysis anymore than any of the other seven alternatives analyzed in the FEIS.

Using management costs as a reason not to analyze an alternative makes no sense and borders on a deeply serious judgmental error by the EIS Team and Forest Supervisors. It adds to the sense that this whole process was predetermined and analysis and disclosure completed only where it was wanted and not within the context of policy, statute and regulation, not to mention professional behavior.

For each of the action alternatives the FEIS analyzes costs to prepare river management plans for a 2-3 year period and annual costs after that. It is noted that for each alternative “...economies of scale resulting from combined planning and administration processes...” would help minimize costs. In fact, it is noted that, “Savings of 20 to 40% off the stand-alone costs are projected.” Alt. 5 recommends 50 suitable rivers with the FEIS, noting:

Thus, total estimated costs to develop CRMPs for all 50 rivers in this Alternative is $1,025,347 to $1,367,130 per year for the 2- to 3-year process; estimated total annual administration cost is $1,025,347 to $1,367,130.

Yet the FEIS dismisses an analysis of the all suitable alternative on the basis of costs noting “it would cost approximately $17.2 million the first two to three years to develop comprehensive management plans.” On the surface this makes no sense that an additional 36 rivers would cost some 15-16 million additional dollars and that there would be no economies of scale or projected 20-40% reduction from the stand alone projects.

From any perspective or context this determination makes no sense and a serious analytical flaw and/or judgment exists. It seems the Forest Service simply did not want to analyze an all suitable alternative and built a deeply flawed rationale to dismiss it improperly.

While the agency certainly has limited authority to incorporate a new alternative in a FEIS, the inclusion of the new recommended/selected alternative, Alternative 7 - Recommend river segments that reflect the broad range of public comments and emphasize specific suitability factors, tramples that authority.

The literal context and content of this new recommended alternative has no connection or bearing upon the Draft EIS (DEIS). The DEIS preferred alternative (PA), Alt. 3, recommended 24 river segments (212 miles) as suitable under the NW&SRS. This new Alt. 7 has reduced those numbers to 10 rivers, less than half of the DEIS PA, and 108 miles, half of the DEIS PA. On the High Uintas the difference is every bit as deep and out-of-context from what we were commenting upon in the DEIS. Of the 24 DEIS river segments, 11 (131 miles) were on the High Uintas. This was reduced to 4 rivers (71 miles) with two of these rivers not included in Alt. 3 of the DEIS.

This isn’t a slight modification of an old preferred alternative based on information and data analyzed in the DEIS. It is a new alternative.

The number and miles of river segments found suitable are not simple or slight modifications. The context and content of recommendations represents a new alternative and direction not subject to public comment or disclosure prior to its inclusion in the FEIS.

The suitability criteria and factors considered within Alt. 7 in the FEIS are largely new and were not included in the DEIS. For the most part, they do not represent modifications of earlier criteria. They are new criteria providing new direction and were not subject to public review or disclosure which would have helped define the criteria and provide accountability in the suitability determination. There is no thread between the two DEIS preferred alternative criteria

  1. Recognized those segments that contribute uniqueness and/or diversity of ORVs to a national system as represented by the best examples on the National Forests in Utah.
  2. Reasonably foreseeable future water resources projects include those dams, diversions, or other modification of waterways that have existing decisions, funding or identified plans.

connecting to the six FEIS recommended alternative criteria

  1. The river segment contains multiple ORVs, ORVs underrepresented in the National System, or significant nationally. This factor helped determine river segments with ORVs or a combination of ORVs significant at a national scale.
  2. The river segment contains multiple ORVs, ORVs underrepresented in the study segments, or significant within Utah’s five National Forests. This factor helped design an alternative with representative rivers across the five National Forests in Utah.
  3. The river segment(s) contribute to a river system. This factor recognizes the importance of managing some rivers at a watershed scale to best protect values.
  4. The river segment would be best managed through designation under the Wild and Scenic Rivers Act. This alternative contains those segments where the river’s free-flowing condition, water quality and ORVs would be best protected if designated under the Wild and Scenic Rivers Act.
  5. Designation of the river segment would be compatible with, or will enhance other federal agency wild and scenic river plans and recommendations, will complement other national forest management activities, and has potential to stimulate tourism and related economic growth if designated.
  6. Support from a broad range of public entities (federal agencies, state, local and tribal governments; and national and local publics). Through this factor river segments were included if supported by all parties, or with only limited opposition. This factor helped identify those segments that generally have a broad base of support.

It must be noted that these new criteria were not found in other DEIS alternatives--they are largely new and out of the blue.

This new alternative and new selection criteria are not menial. They represent a notable and meaningful flaw.

Criteria 6 is as cynical as can be!

Support from a broad range of public entities (federal agencies, state, local and tribal governments; and national and local publics). Through this factor river segments were included if supported by all parties, or with only limited opposition. This factor helped identify those segments that generally have a broad base of support.

The language, the result and intent, is indisputably clear--local governmental entities largely had the equivalent of a veto power. If their opposition was stated in almost any fashion then the river was not considered for suitability. There is no disputation!

Public support or opposition ought to be based on a quality-of-comment test. Opposition based on arguments not consistent with the NW&SRS and the data specific to rivers as it relates to suitability for inclusion in the NW&SRS ought not to be given consideration in opposition (or support) to suitability.

This criteria simply devalues meaningful public input and so biases the decision-making process that it renders it both useless and unprofessional. This is evidenced, as one of numerous kinds of examples, where public comment has been deeply twisted by noting public comment was not stand-alone support because connected segments were also mentioned. Reader Creek and the Whiterocks drainages and Black Canyon and Ashley Gorge are two examples. Seeking a way to delimit the content of the NW&SRS on Utah’s forests has no role in the process.

Criteria 5

Designation of the river segment would be compatible with, or will enhance other federal agency wild and scenic river recommendations, will complement other national forest management activities and has potential to stimulate tourism and economic growth. This includes: segments that are compatible with other federal agency wild and scenic river plans and recommendations; segments that would have the potential to stimulate tourism and related economic growth through designation; and segments that, if designated, would complement other national forest resource management activities.
has no connection to the NW&SRS simply because the criterion requires a river that is found suitable to also have “potential to stimulate tourism and economic growth.” No such requirement exists with respect to the NW&SRS.

Criteria 1, 2, and 4 require that rivers found suitable must harbor multiple Outstanding River Values (ORVs) and would be “best protected if designated under the Wild and Scenic Rivers Act” (W&SRA). The issue is not regional or statewide significance, multiple ORVs--some kind of uniqueness--or whether an area is best protected under the W&SRA. The W&SRA simply requires rivers to have one or more ORVs and a determination of which characteristics “do or do not make the area a worthy addition to the National System.”

If deemed not worthy, the decision must be based on suitability criteria--clearly defined specific reasons/rational--laid out in the W&SRA and the Forest Service Handbook (FEIS, pp.1-3 - 1-4). For the most part, the assumptions/guidelines referred to as criteria utilized in the FEIS, and particularly Alt. 7, are additional layers to restrict consideration of river suitability and are not consistent the with actual decision framework that must be engaged.

These criteria employ a process that results in an arbitrary and capricious suitability exclusion/inclusion of rivers with a clear intent, the alternative speaks for itself, to delimit river suitability outside of the regulatory decision making framework. The effort used is not to determine the characteristics that do or do not make a river worthy for inclusion in the NW&SRS and then determine the specific reason/rationale why a river should not be found suitable. Rather it is a process to develop extra-criteria enabling the Forest Service to minimize river suitability.

There is simply no way to track how a river was determined to be not suitable within the context of Alt. 7. While in the DEIS we were able to make specific suggestions as to how the preferred alternative could be enhanced, no such option is allowed here even though the alternative is substantially different and, furthermore, guided by notably different assumptions. While we appreciate the statement that the Forest Supervisors believe that by choosing this alternative they have “concluded that it is an informed choice...”, simply stating that this is an informed choice does not make it so. A conclusory informed choice does not satisfy the requirements as to how this process must unfold. There is simply no way or ability to track how a river was included in Alt. 7 or why it was excluded particularly utilizing the amorphous and extra-procedural criteria.

At this point we feel it is important to examine 3 or 4 river segments on the Ashley to further highlight the inconsistency and lack of coherence in Alternative 7.

Reader Creek

The way in which the FEIS evaluates Reader Creek in the Ashley National Forest illustrates both the arbitrary nature of Alternative 7 and the failure to thoughtfully apply those criteria. Depending on how one rates Outstandingly Remarkable Values, Reader Creek may be the second highest rated river in the inventory with the Green being the most. Reader Creek has 6 ORVs. One is national. Four are regional. The sixth is less than regional (ROD-34). The average number of ORVs for the ten recommended rivers is 2.8 (ROD 8-9).

Additionally, no conflicts with planned development exist. The Suitability Evaluation Report (SER) for Reader Creek notes that there are no proposed water development projects on this segment (FEIS, A-46). Consequently, if Reader Creek were the only one of the five Whiterocks segments to be designated, there would be only limited opposition (ROD-34).

Alternative 3 contains those rivers which best represent Utah ORVs and which would have the least affect on existing or future development activities. It served the function of the preferred alternative at the Draft EIS stage. Reader Creek was one of those rivers (DEIS, page 2-3). Although Alternative 3 has lost its preferred status, the actual criteria have not changed, and Reader Creek continues to be listed in that alternative as well as in Alternatives 5 and 6 (FEIS 2-3, 2-9 and 2-13). An alternative constructed in a way which results in an unsuitable recommendation for Reader Creek is unsound.

Nevertheless, if the criteria of Alternative 7 had been applied with a degree of logical rigor, Reader Creek would have been included. That was not done.

To begin with, the Record of Decision concludes that Reader Creek meets only two of the criteria in Alternative 7, but it is unclear which two. Clearly, the first criterion, the presence of a nationally significant ORV, is satisfied. The second satisfied criterion could be either criterion two (under-representation or significance in Utah) or criterion six (general support/limited opposition). However, the Record of Decision contains qualifying language for each of those criteria which make it unclear which one was satisfied. A proper application of either criterion two (state under-representation or significance) and criterion six (general support) would have found that both criteria were satisfied.

The fact that Reader Creek has six ORVs should, in and of itself, mean that it satisfies criterion two. (Compare the Record of Decision for Ashley Gorge Creek, ROD-37, which is similarly confusing but contains enough wording to discern the intent). But the Record of Decision can be read as ruling that out because it states that “ORVs and ecological characteristics are not significantly different among eligible Utah streams” (ROD-34).

The conclusion that Reader Creeks “ORVs and ecological characteristics are not significantly different” from other waterways in the FEIS is completely unsupportable. It has six Outstandingly Remarkable Values. That by itself makes it significantly different.

More broadly, Reader Creek is included in Alternative 3 which itself requires a finding that it is one of those rivers which best represents Utah ORVs (FEIS 2-3). In fact, each river listed in Alternative 3 logically meets the definition confusingly embodied in Alternative 7’s second criterion, but that fact seems to have been ignored consistently throughout the Record of Decision.

In addition to the multiplicity of ORVs, Reader Creek is distinguished in another way. It is home to genetically pure endangered Colorado River Cutthroat Trout (FEIS A-49). As a result, the Reader Creek “corridor is the epicenter of Colorado River Cutthroat Trout reintroduction, and is essential for genetic interaction” (FEIS A-46).

The Kokanee salmon in Lower Main Sheep Creek compelled the Ashley’s supervisor to conclude that the segment satisfied criterion two (ROD-33). The presence of relic Colorado River Cutthroat (CRCT) in Reader Creek is far more important than Kokanee in Lower Main Sheep Creek because CRCT are native!

If it was not the under-representation or significance in Utah criterion that was found to be satisfied, it would have had to have been the general support/limited opposition criterion. As previously noted the Record of Decision states that there was limited opposition to Reader Creek by itself. It further states that Reader Creek was “[O]ften mentioned in comment letters,” but then the ROD seems to qualify that support by saying that when Reader Creek was mentioned, it was “almost always in conjunction with other Whiterocks segments.” Continuing its efforts to discount support, the analysis goes out if its way to parenthetically conclude that the support was not support for a stand-alone recommendation (ROD-34).

Reader Creek, Upper Whiterocks River, East Fork Whiterocks River, West Fork Whiterocks and Middle Whiterocks River (the Whiterocks segments) drain a remarkable area of meadows, forests and canyons located in the “bollies” region of the High Uintas. These connected rivers drain the western half of a spectacular roadless area called the South Slope High Country. Below the South Slope High Country’s “border,” the Whiterocks River continues to form the core of the Lower Whiterocks Undeveloped Area. The split between the two inventoried roadless areas is artificial, and the five river segments are as connected as the two roadless areas are. The two roadless areas are contiguous and could be considered one large roadless area. The five river segments could similarly be considered together much like the Upper Uinta River, Gilbert Creek, Center Fork and Painter Draw were.

While it may be true that commentators who supported Reader Creek also supported other connected rivers, it can hardly be concluded that those supporters would not support Reader Creek if it were a stand-alone recommendation. In fact, the opposite inference is far more likely to be true. If faced with a choice between no recommendation for any of the Whiterocks segments and the recommendation of Reader Creek only, certainly most, and probably all, Whiterocks supporters would choose the Reader Creek only position. The gratuitous qualification of Reader Creek support in the Record of Decision was arbitrary. The inclusion of connected segments by Reader Creek supporters is natural, and it is bitterly ironic to see that support used in a way detracts from what was intended.

Whatever was intended by the Record of Decision, three, not just two, of Alternative 7’s criteria are satisfied. Reader Creek has a nationally significant ORV. It has statewide significance because of its multiple ORVs and its inclusion in Alternative 3. It is underrepresented in Utah because of its relic Colorado River Cutthroat Trout and its multiple ORVs. It also has broad support with only limited opposition. Because of the ambiguity inherent in the way in which Alternative 7 was cobbled together, it is unknown whether an awareness that three of the Alternative’s criteria are met would have changed the Ashley supervisor’s decision. But that shouldn’t matter. Reader Creek should have been recommended as suitable.

Nevertheless, simply to demonstrate how arbitrary the Wild and Scenic suitability decision is, Reader Creek can serve as a vehicle for further exploration of Alternative 7 and the way it which it has been applied.

The Record of Decision on Reader Creek acknowledges that “two additional criteria (contribution to system integrity, WSR as best management tool) are only partly met.” With respect to the system integrity criterion, it is curious that three of the other four Whiterocks segments were found to have met that criterion. (ROD 35, 36) The ROD’s wording on the system integrity criterion is substantially the same for Reader Creek, West Fork Whiterocks, Upper Whiterocks and East Fork Whiterocks. It is unclear what, if anything, distinguishes Reader Creek from these three segments as far as system integrity is concerned.

With respect to the best management tool criterion, the Reader Creek situation is substantially like the situation presented when an eligible segment is located within a designated Wilderness. The problem faced throughout the FEIS is that there doesn’t seem to be anything which distinguishes how the Wilderness factor is applied to the management tool criterion.

Of the 108 miles considered suitable, 70 are within designated Wildernesses (ROD 8, 9, 15, 17, 19, and 22). In those cases it was determined that “[D]esignation would protect free flow and ORVs for future generations to enjoy and appreciate and complement and enhance the intent of the Wilderness management strategies” even though “substantial protections are already in place” (ROD 20, 22, with substantially the same language found on ROD 16, 18). However, where eligible segments inside Wildernesses are found to be unsuitable, invariably the management tool criterion is not satisfied because the relevant segment “[O]ccurs in existing Wilderness, substantial protections already in place” (e.g. ROD 37, 38, and 39). What distinguishes the differing application of the best management tool criterion to similarly-situated rivers is not stated.

The alternate management scheme which is used to assert that the best management tool criterion is not satisfied is that “adequate existing management direction for the Fisheries ORV.” (ROD-34) However, the situation presented by the various plans which exist to restore Colorado River Cutthroat Trout is indistinguishable from the Wilderness situation. WSR designation would be “consistent with the joint efforts of the Ashley National Forest and the Utah Division of Wildlife Resources in restoring and improving native Colorado Cutthroat trout habitat” (FEIS, A-49). As long as WSR status would not be inconsistent with the Colorado Cutthroat plans, it would be another cruel irony to use those plans as a reason not to designate Reader Creek as suitable.

In any event, the plans to restore Colorado Cutthroat do not necessarily address the other ORVs which Reader Creek has. With respect to values not covered by fish restoration efforts, WSR status “would complement the existing direction in management prescription areas and inventoried roadless areas” (FEIS, A-49).

Whiterocks River Segments

As with Reader Creek, supporters of the other Whiterocks segments would probably support each of the Whiterocks segments alone if that were the only alternative. As with the Reader Creek, the way in which the FEIS has twisted supportive comments is unsupportable.

Unlike Reader Creek, the Record of Decision does not contain any indication that opposition to any given segment was “limited.” However, West Fork Whiterocks River has “no dams, diversions, or other channel modifications on” the eligible segment, and “[N]o future developments are known or expected at this time” (ROD A-52). Upper Whiterocks and East Fork Whiterocks have experienced the construction of small dams augmenting existing lakes upstream from the eligible segments, but WSR status would not affect operation or those structures.

These three segments are included in Alternative 5 which would recommend designation for eligible streams which, among other things, would have “limited negative impact to community economic development” (FEIS, 2-9, 10). If Alternative 5 in its entirety were to be adopted, the economic and social impacts “are expected to be negligible” (FEIS 3-113).

In Utah, the opposition of rural elected officials to wilderness and wild and scenic river designation is almost a given. However, when the Forest Service explained to the Sevier County Commissioners that designation would not impact water rights and other economic rights, that opposition appeared to diminish (ROD -26). Conceivably, the same thing could happen with respect to four of the five Whiterocks segments.

Of the Whiterocks segments, only the Middle Whiterocks segment is left out of Alternative 5. There have been a couple of inchoate plans to construct dams that could affect part of that segment even though those plans do not meet the definition of being “reasonably foreseeable.” Attempting to ameliorate local opposition to that segment would be unlikely to produce results analogous to Fish Creek, but continued opposition to the three segments discussed would be far less understandable.

Primarily due to the Chepeta Lake Road, four of the Whiterocks segments are classified as “Scenic” rather than “Wild.” Nevertheless, the area that is drained by the Whiterocks segments would qualify for Wilderness designation. All five of the Whiterocks segments were found to be regionally significant for their Scenic values. Three of the five segments were also found to be regionally significant for their recreational values (ROD 34-36).

The reluctance to recommend most of the Whiterocks segments is a missed opportunity. Because the Chepeta Lake Road reaches near the top of the drainage, there is easy access to an important scenic and recreational area. Wild and Scenic designation could enhance visitation to this area as easily as it could anywhere else. WSR status would also complement efforts to restore Colorado River Cutthroat trout to the drainage (FEIS A-55, West Fork Whiterocks, FEIS A-65, Upper Whiterocks and East Fork Whiterocks, FEIS A-71 Middle Whiterocks). The rivers would satisfy Alternative 7’s extraordinary criterion 5 which requires both plan compatibility and the potential to stimulate tourism.

In the Record of Decision, the remaining four Whiterocks segments were considered separately. They could have just as easily been considered together in which case their significance would be enhanced, and enough of Alternative 7’s creative criteria would be satisfied to support an eligible recommendation.

Black Canyon/Ashley Gorge

Like Reader Creek, Black Canyon was included in what was the preferred alternative in the Draft Environmental Impact Statement (DEIS 2-3). Like Reader Creek, Black Canyon is included in Alternative 3 of the FEIS which would recommend those rivers that best represent Utah ORVs while having the least affect on reasonably foreseeable development (FEIS 2-3). Like Reader Creek, Black Canyon has more ORVs than the average number found in recommended rivers and its designation would not affect any known or expected water projects (FEIS A-92). Like Reader Creek, a decision maker must really struggle to find a way to avoid recommending this river as suitable.

Though somewhat opaquely written, Alternative 7’s second criterion can be satisfied either if an ORV is “underrepresented” in the WSR inventory or if it is “significant.” One would expect either that a river included in Alternative 3 in the DEIS and the FEIS and containing 3 ORVs would be considered “significant” at the State level or that there would be a cogent explanation of why this is not the case. The Record of Decision makes no such explanation. It just states a conclusion.

Black Canyon’s sister river, Ashley Gorge, is found to meet the DEIS Preferred Alternative’s second criterion (ROD-37). Admittedly, Ashley Gorge Creek has even more ORVs (5) and more national ORVs (3). But that distinction should not make so great a difference. Like Ashley Gorge, Black Canyon is a “highly scenic canyon…..very similar to the lower portion of Ashley Gorge” with “striking diversity in the landscape” (FEIS, A-91). Like Ashley Gorge, Black Canyon is nationally significant for wildlife (ROD 36, 37).

In addition, the karst system is mentioned as one of the things that supports the river’s Geologic/Hydrologic ORV as is the case with Ashley Gorge Creek and Lower Dry Creek (FEIS A-91, Black Canyon; FEIS A-98, 99, Ashley Gorge Creek; FEIS A-75, Lower Dry Fork). One might further assert that the presence of the curious karst system is something that makes these particular rivers “underrepresented” in the Utah inventory. Not surprisingly, the Record of Decision for Lower Dry Fork Creek does exactly that with an explicit statement that the “[K]arst system makes this interesting and unusual among eligible Utah streams” (ROD-36). Failure to apply the same rationale to Black Canyon is another example of the FEIS’s arbitrary nature.

Nor is the Record of Decision on Black Canyon free from questionable use of factors related other Alternative 7 criteria. For example, the fact that the portions of the river are intermittently dry because water naturally enters the underground karst systems which lie beneath Black Canyon, Ashley Gorge Creek and Lower Dry Fork was cited as an indication of modest State Opposition. But that State objection originated to scuttle Southern Utah situations where streams run dry because of weather. In Black Canyon, the disappearance into sinks is “part of the natural stream environment.” Because of this, the Forest Service was willing to classify Black Canyon as a free flowing stream at an earlier stage (FEIS A-91). The same logic should apply to the State’s objection.

Finally, the Black Canyon exclusion is like the Reader Creek exclusion because the best management tool criterion is opportunistically applied. In the case of Black Canyon, however, the opportunistic use of the management tool criterion is not some alternative official management plan. Instead, it is the corridor’s own rugged topography. The “remote location and steep topography” limit management activities (ROD-36). While this is doubtlessly true, it is philosophically similar to the way in which Wilderness is used generally and the way in which fish management is used on Reader Creek. The Ashley Gorge decision suffers from the same malady (ROD-37). The ubiquity of the problem demonstrates that the criterion itself is too flawed to be a determining factor.

Furthermore, these informed choice non-suitable determination Ashley Rivers

Carter Creek
Reader Creek
West Fork Whiterocks
Upper Whiterocks
South Fork Ashley
Black Canyon
Ashley Gorge
West Fork Rock Creek
Upper Yellowstone Creek
Garfield Creek

have two or more ORVs, clearly contribute to a river system (being the primary river within the drainage or tributaries to one another), have no foreseeable conflicts, are within roadless areas, the High Uintas Wilderness (HUW) (making them suitable as Wild and Scenic thus minimizing management costs) and are obviously consistent with extant Forest Service plans and the NW&SRS. They seem to be excluded because of an arbitrary standard of who opposes them and an undefined determination that the ORVs are not unique enough. It is as though because the Uinta and Green Rivers were included the others are not worthy. There is no explanation as to why the ORVs are not meaningful enough to include them as suitable other than the Uinta and Green Rivers were the informed choice thus, by definition, all others are unsuitable.

The point is clear enough--Alt. 7 itself is highly irregular and the criteria inappropriate, cynical and utilized inconsistently. If the criteria are going to be utilized then they must be consistent with all of the rivers analyzed. The Forest Service can’t argue that this river, Z, meets most of the criteria and even though these rivers, A-Y, meet most of the criteria they are not suitable because we have made the informed choice that river Z is and thus rivers A-Y aren’t.

Informed choice seems nothing more than granting the decision to local officials

The informed choice represented by the UWCNF presents an even more confusing and sullied decision-making picture within the FEIS. The rivers on the Uintas proposed as suitable in Alt. 7 were not within the DEIS PA, Alt. 3. The 5 rivers in the DEIS Alt. 3 are now found unsuitable. There is no explanation offered as to how this came about. NEPA requires connection between data and decisions.

These informed choice non-suitable determination UWCNF Rivers

East Fork Smiths Fork
Henry’s Fork
Middle Fork Beaver Creek
West Fork Beaver Creek
West Fork Blacks Fork

have two or more ORVs and were found suitable in the DEIS PA and now found unsuitable while clearly contributing to a river system (being the primary river within the drainage or tributaries to one another), having no foreseeable conflicts, are within roadless areas, the HUW (making them suitable as Wild and Scenic thus minimizing management costs) and are obviously consistent with extant Forest Service plans and the NW&SRS. They seem to be excluded because of an arbitrary standard of who opposes them and an undefined determination that the ORVs are not unique enough. It is as though because the Stillwater and Ostler Fork were included the others are not worthy. There is no explanation as to why the ORVs are not meaningful enough to include them as suitable other than the Stillwater and Ostler Fork were the informed choice thus all others are unsuitable.

Furthermore, highlighting a deeply flawed suitability analysis, while the Stillwater and Ostler Fork were found suitable, in part, because they are within the HUW, the rivers noted above are denied suitability, in part, because they are within the HUW.

These informed choice non-suitable determination UWCNF Rivers

Left, Right and East Forks Bear

have two or more ORVs and support from Summit County and clearly contribute to a river system (being the primary river within the drainage or tributaries to one another), have no foreseeable conflicts, are within roadless areas, the HUW (making them suitable as Wild and Scenic thus minimizing management costs) and are obviously consistent with extant Forest Service plans and the NW&SRS. They seem to be excluded because of an unidentified arbitrary standard and an undefined determination that the ORVs are not unique enough. It is as though because the Stillwater and Ostler Fork were included these rivers are not worthy. There is no explanation as to why the ORVs are not meaningful enough to include them as suitable other than the Stillwater and Ostler Fork were the informed choice thus all others are unsuitable.

Furthermore, highlighting a deeply flawed suitability analysis, while the Stillwater and Ostler Fork were found suitable, in part, because they are within the HUW, the rivers noted above are denied suitability, in part, because they are within the HUW.

These informed choice non-suitable determination UWCNF Rivers

Boundary Creek
Main Fork Weber
Middle Fork Weber

have ORVs and support from Summit County, UT, clearly contribute to a river system (being the primary river within the drainage or tributaries to one another), have no foreseeable conflicts, are within roadless areas with the two Weber drainages being within the UWCNF formally proposed wilderness (all 3 are recommended as either W of S, minimizing management costs) and are obviously consistent with extant Forest Service plans and the NW&SRS. They seem to be excluded because of an unidentified arbitrary standard and an undefined determination that the ORVs are not unique enough. It is as though because the Stillwater and Ostler Fork were included these rivers are not worthy. There is no explanation as to why the ORVs are not meaningful enough to include them as suitable other than the Stillwater and Ostler Fork were the informed choice thus all others are unsuitable.

All of the informed choice unsuitable Uintas rivers rivers on the UWCNF harbor this conclusion, “This segment meets some of the criteria of Alternative 7.” There is no rationale presented why this, then, does not qualify these rivers as suitable since it is entirely unclear as to how many of the criteria or which criteria must be met to find suitability.

At this point we feel it is important to examine a number of river segments on the UWCNF to further highlight the inconsistency and lack of coherence in Alternative 7.

Henry’s Fork

Henry’s Fork has 4 ORV’s listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include possible future restriction of access to Kings Peak and that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria. River status would have no impact on access to Kings Peak.

Local government, particularly county governments seem to be given more weight in a suitability determination than the public in general. “During the Draft EIS comment period comments were received in opposition and support for the Henry’s Fork segment. Daggett County and interests from Lyman, Wyoming did not support designation of this segment.”

From the SER: “Of the three organized campaign responses all three supported a positive suitability finding for the Henrys Fork.” Those three campaigns, no matter scope of ideas or number of people represented, seem to fall below the influence of Daggett County and a few people in Lyman WY.

West Fork Beaver Creek

In the SER West Fork Beaver Creek has 2 ORV’s listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include . . .that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria but seem to be applied here.

This note, “Contributes to basin integrity only if other segments in the Beaver Creek Drainage were also found suitable,” was mentioned in the reasons why West Fork Beaver Creek was not selected as suitable. Rather self serving in that the UWCNF also recommended the Middle Fork Beaver Creek is not suitable!

Concerns about private lands were noted but are not an issue under any condition since the portion of the river that would be considered part of the NW&SRS is wholly on National Forest land!

Middle Fork Beaver Creek

In the SER Middle Fork Beaver Creek has 2 ORV’s listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include . . .that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria but seem to be applied here.

This note, “Contributes to basin integrity only if other segments in the Beaver Creek Drainage were also found suitable,” was mentioned in the reasons why Middle Fork Beaver Creek was not selected as suitable. Rather self serving in that the UWCNF also recommended the West Fork Beaver Creek is not suitable!

Concerns about private lands were noted but are not an issue under any condition since the portion of the river that would be considered part of the NW&SRS is wholly on National Forest land!

West Fork Blacks Fork

In the SER West Fork Blacks Fork has 2 ORV’s listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include . . .that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria but seem to be applied here.

Concerns about managing timber do not apply to the segment inside HUW and would not be altered by the portion of the river outside of the wilderness.

Managing livestock was not an issue in selecting Stillwater but seems to be an issue here. No reason is offered other than it seems to be an attempted rational to oppose suitability designation. Grazing would not be inherently altered by suitability designation.

East Fork Smiths Fork

In the SER East Fork Smiths Fork has 4 ORVs listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include . . .that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria but seem to be applied here.

The “Stated opposition from water users and grazing permittees” are not noted specifically in the SER. The SER notes one comment that notes a concern about grazing restrictions and timber harvesting. Grazing was not a disqualifying issue for the Stillwater but seems to be an issue here. No reason is offered other than it seems to be an attempted rational to oppose suitability designation. Grazing would not be inherently altered by suitability designation.

Eleven of the 11.8 miles of this segment is within the HUW where timber harvesting is not allowed and would not be altered by the portion of the river outside of the wilderness.

Left, Right, and East Forks Bear River

In the SER Left, Right, and East Forks Bear River have 3 ORVs listed. For the recommended rivers on the North Slope of the High Uintas, Stillwater has 2, Ostler Fork only 1. There are no reasons/guidelines given as to how many or which ORV’s needed to be present to declare a segment suitable.

Local governments were allowed to “create” a criterion for the selection process. That is, from the SER: “Daggett County and interests from Lyman, Wyoming did not support designation of this segment. Reasons given for not supporting the segment include . . .that the stream is not regionally or nationally significant.” National or regional significance are not mentioned as suitability criteria but seem to be applied here.

“Some public support” includes Summit County, which should be construed has having a “broad base of support” rather than dismissed as less important than other opposition.

Relief Requested

In light of the breadth and depth of issues and concerns associated with the Wild and Scenic River Suitability Study for National Forest System Lands in Utah, Final Environmental Impact Statement (FEIS) and Forest Plan Amendments and Record of Decision (ROD), we believe it is warranted and reasonable to remand the decision.

Appeal prepared by Dick Carter, Coordinator, and Dave Jorgensen and Mark Mckeough, Board Members, HUPC


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