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ALERT - December 4, 2006: Protect Our Woods joins allies to submit a response to the Draft Supplement to the Final Environmental Impact Statement (FEIS) for the German Ridge Restoration Project in Hoosier National Forest18. Illegal Hoosier-Shawnee Ecological Assessment is Heavily Relied Upon in the Hoosier PlanThe ROD from the Hoosier LRMP indicates that the Forest Service relied heavily on the Hoosier-Shawnee Ecological Assessment in developing some of the most controversial aspects of the LRMP. Since the German Ridge Project is tiered to the Hoosier LRMP, and is a logging and burning plan that relies very heavily on ideas first outlined in the Hoosier-Shawnee Ecological Assessment, we feel this issue is important to bring up at this time.For example, the ROD states, “The Hoosier-Shawnee Ecological Assessment which considered parts of Southern Indiana, where the Hoosier National Forest occurs, as well as portions of Kentucky, and far southern Illinois where the Shawnee National Forest lies indicated concerns for early successional species and their habitat throughout the assessment area. Three species of concern were identified throughout the area, those being the American woodcock, ruffed grouse and yellow-breasted chat. Ruffed grouse is one of the most widely distributed of North America's resident game birds, historically occurring in Illinois, Indiana, and Kentucky (Hoosier-Shawnee Ecological Assessment, page 210)....Changes in land use, maturation of mesic forests, and loss of disturbance all contribute to the loss of early successional mesic forest habitats desired by this species.” As you can see, the Hoosier-Shawnee (H-S) Assessment document is being relied upon as the source of a need to provide “Early successional habitat,” which the agency is using as a justification for many of the most controversial practices in the German Ridge FEIS and DSFEIS, such as logging, burning, and mowing. Yet, this very assessment, which was done under contract by a team of mostly non-public, hand-picked scientists, out of the light of public scrutiny and public involvement, was ruled to be in violation of the Federal Advisory Committee Act, or FACA, by a U.S. District Court in Washington, D.C. (Case 1:02-cv-01898-RWR, DC Dist. 2006) In that order, the court found that: "...FEDERAL ADVISORY COMMITTEE ACTCongress passed the Federal Advisory Committee Act (FACA) in part to ensure thatthe public could remain apprised of the existence, activities and cost of advisory committees. See Public Citizen v. Dept of Justice, 491 U.S. 440, 446 (1989) (citing 5 U.S.C. app. II ' 2(b) (2000)). Enacted in 1972 as a response to the numerous committees, boards, commissions and other groups that had been established to advise officers and agencies in the executive branch of the federal government, one goal of the Act was to prevent wasteful expenditure of public funds. See Public Citizen, 491 U.S. at 453. Additionally, Congress sought to counter the fear that committees would be dominated by representatives of industry and other special interest groups seeking to advance their own agendas. See Cummock v. Gore, 180 F.3d 282, 284" (D.C. Cir. 1999) (citing H.R. Rep. No. 92-1017 (1972). The FACA provides, in part, that: ‘Subject to [the FOIA], the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the -92- advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. ’5 U.S.C. app. II ' 10(b). Under the FACA, advisory committees must also “file a charter; announce their upcoming meetings in the Federal Register; hold their meetings in public; and keep detailed minutes of each meeting. In re Cheney, 406 F.3d 723, 727 (D.C. Cir. 2005) (citing 5 U.S.C. app. II ' 9(c); '' 10(a)(1), (2), (b) & (c); ' 11). Finally, the “committee must be fairly balanced in terms of the points of view represented, and may not be inappropriately influenced by the appointing authority or by any special interest.” Id. (quoting 5 U.S.C. app. II '' 5(b)(2), (3) & (c)). The FACA defines an advisory committee as “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. app. II ' 3(2). The Supreme Court has given a narrow interpretation to the words “established and utilized.” An advisory panel is established when it has been formed by a government agency, and utilized if it is “amenable to . . . strict management by agency officials.” Public Citizen, 491 U.S. at 457-58; see also Food Chemical News v. Young, 900 F.2d 328, 332-33 (D.C. Cir. 1990) (finding that a committee is “established” when it is “a government formed advisory committee”). In Food Chemical News, the court found that a panel advising the Federation of American Societies for Experimental Biologies, which in turn advised the Food and Drug Administration on food safety, was not an advisory committee subject to the FACA because the panel was neither established by the FDA nor “amenable to [any] management by [FDA] officials.” Id. at 333 (quoting Public Citizen, 491 U.S. at 457 458); see also Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 246 (D.C. Cir. 1999) (finding that a committee providing recommendations to the Eastern Research Group which had contracted to provide recommendations to the Environmental Protection Agency, was not established by the EPA and therefore not an advisory committee subject to the FACA, even though the EPA conceived of the need for the committee). Unlike the committees in Public Citizen, Food Chemical News and Byrd, which the federal agencies did not directly convene but were aided by, the USFS formed the HSEAC. (Pls.= Summ. J. Mot., Ex. A.) The USFS identified the members of the team, contracted directly with them for their services, paid them, and provided them with initial questions to answer. (Id.) The USFS established the committee within the meaning of the FACA...The USFS initiated the ecological assessment “[i]n order to develop the future Forest Plans and draft [environmental impact statement] for the Hoosier and Shawnee.” (Id. & 5, 6; see also Pls.= Mot. to Expedite, Ex. A at 8 (stating that the USFS will use the ecological assessment to inform, modify, and develop its forests plans, and to create an environmental impact statement).) Because the USFS has contemplated that the final ecological assessment would play a leading role in developing the forest plan for the Hoosier and Shawnee Forests, the HSEAC provided information “in the interest of obtaining advice or recommendations for . . . one or more agencies” and is subject to the FACA’s requirements. 5 U.S.C. app. II ' 3(2)...the HSEAC is an advisory committee within the meaning of the FACA... Yet, even though some of the appellants had raised a red flag about this committee being run openly under the FACA, the Forest Service went ahead and developed the H-S Assessment without getting a charter, without having public meetings, and without concern for whether or not the committee had any kind of balance. This calls into question the heavy reliance of the Hoosier on this document to support key controversial assumptions which the German Ridge FEIS and DSFEIS are based upon, such as the so-called “lack of early successional habitat,” when, in fact, there is more early successional habitat in the state even now by far than there was “pre-settlement.” We requested that the Forest Service take into account the presence of early successional habitat on private and state lands nearby in the cumulative effects analysis during the comment period for the German Ridge DEIS, to gauge how much this region does have in early successional habitat, so that they could demonstrate a need to create more with this project (a need which we have not conceded). The Hoosier states in their Record of Decision (ROD) that H-S Ecological Assessment document was heavily relied on for supporting the Plan. Page 93: “The Hoosier-Shawnee Ecological Assessment served as an important source of information for addressing issues related to species diversity, viability, and ecosystem sustainability. This assessment helped us develop a revised Forest Plan that addressed biological diversity from a landscape perspective...The Hoosier-Shawnee Ecological Assessment which considered parts of Southern Indiana, where the Hoosier National Forest occurs, as well as portions of Kentucky, and far southern Illinois where the Shawnee National Forest lies indicated concerns for early successional species and their habitat throughout the assessment area...” There are a number of other places in the Record of Decision which prove this points. This indicates that the reliance on the Hoosier- Shawnee Assessment in the development of the German Ridge Project was significant. Courts have found that such violations can lead to “use injunctions” prohibiting the agency from utilizing the material generated by the non-compliant committee. The DC Circuit, in which the current action lies, has found that use injunctions can be proper for giving relief to parties who were harmed by a lack of compliance with FACA. Other circuits have also, including the 11th circuit, where in a similar case dealing with a science committee giving information about whether or not to list the gulf sturgeon on the T and E species list to the U.S. Fish and Wildlife Service, was enjoined from using that information in their decisionmaking process. The same thing should happen here . The HNF Plan relies heavily on the Hoosier-Shawnee Ecological Assessment, and the German Ridge Project and EIS also uses these controversial parts of the HNF Plan. We urge the Forest Service not to utilize this information until they have complied fully with FACA. The HNF and German Ridge Plan and EIS should therefore be withdrawn immediately and either the Hoosier Shawnee Assessment should not be utilized at all, or the agency should immediately undertake a FACA compliance process to develop this information in an open manner. We believe that the outcome of both the HNF Plan and German Ridge Project would be markedly different if the agency would comply with FACA. If the agency can be that blatantly illegal in its operations, then why wouldn’t it violate the environmental laws and regulations which govern the promulgation of projects on the Hoosier National Forest? The Hoosier LRMP , and the German Ridge FEIS both violate NEPA and NFMA’s requirements that the public be fully informed of agency decisionmaking. Click here for Part 19. The Forest Plan is IllegalProtect Our Woods
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