1 Current Issues in NEPA Lessons Learned in Appeals and Litigation Jackie Andrew R6 Assistant Director RPM Lessons Learned in Appeals and Litigation Jackie Andrew R6 Assistant Director RPM

2 T op NEPA T raps... Really good ways to tempt appellants and litigants into challenging a project

Analysis serves as the foundation for the Decision 3

What kind of traps do we fall into that prevent appropriate determinations 4

5 T rap 1 – Not fully understanding or describing the Proposed Action and the Alternatives... Every member of the IDT must understand ALL of the actions Include the mitigation measures and design features Every member of the IDT must understand ALL of the actions Include the mitigation measures and design features

6 T rap 2 – Omitting the measures and values of change... Snags per acre Pools per mile % detrimental disturbance Tons per acre Qualitative and quantitative Snags per acre Pools per mile % detrimental disturbance Tons per acre Qualitative and quantitative

7 T rap 3 – Neglecting the magnitude of change... Extent – how vast ? Direction – how dynamic ? Speed – how rapid ? Duration – how lasting? Extent – how vast ? Direction – how dynamic ? Speed – how rapid ? Duration – how lasting?

8 T rap 4 – Restating the actions themselves as the effects of the actions... Action: The District Ranger proposes to restore the streambank of Cat Creek in 2003 Wrong:This action would restore the streambank of Cat Creek by 2003 Right:This action would increase vegetative cover along the lower 2.1 miles of Cat Creek to 100 percent of its potential by 2006 Action: The District Ranger proposes to restore the streambank of Cat Creek in 2003 Wrong:This action would restore the streambank of Cat Creek by 2003 Right:This action would increase vegetative cover along the lower 2.1 miles of Cat Creek to 100 percent of its potential by 2006

9 T rap 5 – Discounting the effects of the no-action alternative... The evolving conditions of the affected environment Best opportunity to display why action is needed The baseline for comparison of action alternatives The evolving conditions of the affected environment Best opportunity to display why action is needed The baseline for comparison of action alternatives

10 T rap 6 – Excluding the effect and effectiveness of mitigation measures – and even the measures themselves... Avoiding Minimizing Rectifying Reducing Compensating Avoiding Minimizing Rectifying Reducing Compensating

11 T rap 7 – Neglecting to interpret the effects or ask the so what question... Example As a result of the fuel reduction activities, basal area will be reduced to 60 sq ft/acre….So? Example As a result of the fuel reduction activities, basal area will be reduced to 60 sq ft/acre….So?

12 T rap 8 – Incorporating reference material without checking the relevance... New material comes out all the time, review it, incorporate it, check to see if it represents good science…

13 T rap 9 – Writing ad naseum about extraneous information... Frame the analysis Focus the presentation Emphasize the effects Streamline the writing Use plain language (40 CFR c, b, b,c,d,f) Frame the analysis Focus the presentation Emphasize the effects Streamline the writing Use plain language (40 CFR c, b, b,c,d,f) The more we write, the more we must defend

14 T rap 10 – Ignoring cumulative effects... Federal lands Non-federal lands Past projects Present projects Reasonably foreseeable future projects Federal lands Non-federal lands Past projects Present projects Reasonably foreseeable future projects

15 T rap 11 – Stating indirect project effects as a substitute for cumulative effects... Example Describing downstream turbidity as the cumulative effect on water quality instead of as merely an indirect effect of the sediment from a proposed action Example Describing downstream turbidity as the cumulative effect on water quality instead of as merely an indirect effect of the sediment from a proposed action

16 T rap 12 – Omitting assumptions, methodologies, references, conclusions, and rationale... Mouse mortality would increase because ________

17 T rap 13 – Failing to provide a consistency conclusion... You must interpret the effects in relation to law, regulation and policy… Bottom line, is it consistent with your Forest Plan? You must interpret the effects in relation to law, regulation and policy… Bottom line, is it consistent with your Forest Plan?

18 B onus – Preparing effects analysis in an interdisciplinary vacuum with minimal participation from the responsible official... Effects analysis displays inconsistencies among resources in descriptions, interpretations, and conclusions Conflicts emerge among effects analysis, specialists reports, and biological assessments Effects analysis displays inconsistencies among resources in descriptions, interpretations, and conclusions Conflicts emerge among effects analysis, specialists reports, and biological assessments

19 P arting shot... Work interdependently Take a hard look Talk with your peers Consult your references Rely on your judgment, gut feeling, best guess Streamline your analysis and writing Support your conclusions with rationale Work interdependently Take a hard look Talk with your peers Consult your references Rely on your judgment, gut feeling, best guess Streamline your analysis and writing Support your conclusions with rationale

20 T hats all folks! For assistance-ask your NEPA Coordinator or call: Jackie Andrew Assistant Director Resource Planning and Monitoring