United States

Department of

Agriculture

Forest

Service

Rocky

Mountain

Region

740 Simms Street

Golden, CO 80401

Voice: 303-275-5350

TDD: 303-275-5367

It’s Cool to Be Safe Printed on Recycled Paper

File Code: 1570 Date: May 5, 2011

Mr. Matthew R. Jones

Double Heart Ranch

7500 County Road 887

Gunnison, CO 81230

Dear Mr. Jones:

On March 25, 2011, you filed a timely notice of appeal of Forest Supervisor Charles Richmond’s

Decision Notice and Finding of No Significant Impact (DN/FONSI) for the Geothermal Lease

Nomination COC-73584 Environmental Assessment (EA). This project is located on the

Gunnison Ranger District, Grand Mesa, Uncompahgre and Gunnison National Forests. Your

appeal was filed pursuant to 36 CFR 215 and challenged Supervisor Richmond’s decision to

select the Proposed Action – Consent to Lease with Stipulations. Your appeal was assigned

number 11-02-00-0016 for tracking purposes.

This letter constitutes my decision on your appeal, including the specific relief requested. Prior

to arriving at my decision, I reviewed the appeal record, including your appeal, the DN/FONSI,

the EA, and all of the supporting documentation in the project record. I also weighed the

recommendation from the Appeal Reviewing Officer (ARO) and incorporated that information

into my own decision. A copy of the ARO’s recommendation is enclosed for your review.

Forest Action Being Appealed

Forest Supervisor, Charles Richmond, signed the DN/FONSI to implement the Proposed Action

– Consent to Lease with Stipulations on February 4, 2011. The legal notice initiating the appeal

period was published in the Grand Junction Daily Sentinel, the newspaper of record, on February

10, 2011.

Supervisor Richmond’s decision provides the BLM-Colorado State Office consent to lease 3,765

acres of National Forest System (NFS) lands included in Geothermal Lease Nomination COC-

73584. The decision also includes stipulations, as identified in Appendices B and C of the

DN/FONSI, to protect surface resources on NFS lands.

Appeal Reviewing Officer’s Findings and Recommendation

Your appeal was formally reviewed by a Regional Appeal Review Team (RART) led by ARO

Jane Darnell. This team provided an objective review of the appeal record and found that Forest

Supervisor Richmond’s decision was an appropriate and reasonable response to: a) help meet the

increasing interest in geothermal development on Federal lands (Energy Policy Act of 2005,

Section 211); b) further respond to policy directives calling for clean and renewable energy to

meet the nation’s increasing demand for energy; and c) respond to direction in the GMUG Land

and Resource Management Plan (LRMP) Plan which emphasizes environmentally sound mineral

and energy development (LRMP, page II-61). The RART further found that the Forest

Mr. Matthew R. Jones Page 2

Supervisor provided information supporting the logic and rationale in selecting the Proposed

Action and that his decision demonstrated compliance with applicable laws, regulations, and

policies as related to the appeal issues raised by the appellant. In light of this information, ARO

Darnell recommended affirmation of the Forest Supervisor’s decision.

Decision

After reviewing the appeal record, I agree with ARO Darnell’s analysis as presented in the

enclosed recommendation letter. I believe the appeal record supports these conclusions that

there was no evidence of a violation of law, regulation or policy associated with the issues raised.

I affirm Forest Supervisor Charles Richmond’s decision in whole, denying your request for

relief. This decision constitutes the final administrative determination of the Department of

Agriculture (36 CFR 215.18(c)).

Sincerely,

/s/ Randall Karstaedt

RANDALL KARSTAEDT

Acting Deputy Regional

Forester, Resources

cc: Charles S Richmond

Sherry Hazelhurst

Jeff Burch

Melissa M Martin

Encl (1)

1

APPEAL OF DECISION NOTICE, GUNNISON RANGER DISTRICT Grand Mesa, Uncompahgre and Gunnison National Forests

DOUBLE HEART RANCH, ON BEHALF OF LOCAL LANDOWNERS AND INTERESTED CITIZENS APPELLANTS

Notice of Appeal, Statement of Reasons and Request for Relief Regarding the Geothermal Lease Nomination COC-73584 EA and DN

v. CHARLES RICHMOND GMUG FOREST SUPERVISOR AND JOHN MURPHY GUNNISON RANGER DISTRICT RESPONDENTS

NOTICE OF APPEAL

STATEMENT OF REASONS

AND RELIEF REQUESTED DATED this 25th day of March, 2011

Matthew R. Jones Double Heart Ranch 7500 County Road 887 Gunnison, CO 81230 Direct: (512) 635-7814 Fax: (214) 378-7501 Email: jonesmatthewr@yahoo.com David Brown Ranch Manager: (970) 641-0690

2

NOTICE OF APPEAL

On February 10, 2011, Forest Supervisor Charles Richmond signed the Decision Notice

for Geothermal Lease Nomination COC-73584. This is a Notice of Appeal of that decision

pursuant to 36 C.F.R. Part 215. The Double Heart Ranch, Local Landowners, and a great many

others use and enjoy the Tomichi Dome, and the surrounding lands covered by this decision.

Further, DH Ranch submitted comments at every stage of this process to every agency involved

to be considered for this National Environmental Policy Act process. DH Ranch also attended

every public meeting, even when notice was grossly insufficient and public comment was

inappropriately restricted and prevented. This appeal is timely pursuant to 36 C.F.R. §215.14.

Appellant requests that the DN be withdrawn, a proper NEPA process be conducted, and

a new decision of No Action be issued, protecting our public resources.

THE APPELLANTS

The Double Heart Ranch is a historic Colorado property wholly situated on or around the

Tomichi Dome and the property encompassed by this decision. DH Ranch consists of more than

9,000 acres and leases approximately 45,000 acres. DH Ranch employs more than a dozen

cowboys, guides, and cooks each year, is home to several families, and has been in operation for

over 110 years. Among the original ranches to settle the Gunnison area, the Double Heart

remains a proud reflection of Colorado history, where herding cattle still takes place from the

back of a horse.

The surrounding landowners manage resorts, hot springs, and recreational operations that

rely on and exist solely in this pristine mountain environment. Thus, the Tomichi Dome

provides an irreplaceable habitat for plants and wildlife and an escape from industry, noise, and

3

paved roads. The Tomichi Dome and surrounding terrain is consistently counted among

Colorado and the Rocky Mountain’s fantastic geologic formations.

The appellants have invested significant time, resources, and effort at each stage of the

process by providing considerable input, research, analysis, tours, cooperation, and

communications.

We incorporate herein, all of the points raised in our EA comments as specific appeal

points.

STATEMENT OF APPELLATE REASONS

The EA and DN for the proposed Geothermal Lease Nomination of COC 73584 are

based on flawed and/or inadequate information. Further, the Forest Service’s Proposed Action

will violate multiple federal regulations and environmental protection laws, including, but not

limited, to the National Environmental Policy Act and the National Forest Management Act. As

established herein, the DN must be withdrawn and a No Action Order issued because the DN and

project implementation plan violate these multiple federal statutes and regulations.

I. The DN Violates NFMA and NEPA

A) The DN failed to adequately implement design criteria and mitigation to protect sensitive species and ensure viability throughout the entire DN planning area.

According to U.S. Forest Service policy, the Forest Service “must develop conservation

strategies for those sensitive species whose continued existence may be negatively affected by

the Forest Plan or a proposed project.”1 See FSM 2670.45. These strategies must contain

quantifiable objectives and must be adopted prior to implementation of projects that would

1 USDA Forest Service defines sensitive species as “those plant and animal species identified by a regional forester for which population viability is a concern, as evidenced by significant current or predicted downward trends in population numbers or density, or significant current or predicted downward trends in habitat capability that would reduce a species’ existing distribution.” USFS Official Website (emphasis added).

4

adversely impact that species habitat. See FSM 2622.01, 2670.45. Here, the EA discussion of

these measures is insufficient, and the DN fails to consider or implement any such measures.

This violates NFMA and NEPA.

Similarly, regulations promulgated to ensure such diversity mandate that fish and wildlife

habitat be managed to maintain viable populations and the diversity of species throughout the

planning area. 36 C.F.R. §§ 219.19, 219.27 (emphasis added). Here, the DN only accounts for

national forest land and neglects to address or account for the tremendous impact the plan will

have “throughout the planning area,” which also includes the hundreds of privately held and

managed acres located in the DN planning area.

16 U.S.C. 1604(g) requires the promulgation of regulations that “provide for diversity of

plant and animal communities” in the development and revision of Forest Plans. The 1982

regulations implementing NFMA provide specific direction concerning species viability when

stating, “for planning purposes, a viable population shall be regarded as one which has the

estimated numbers and distribution of reproductive individuals to insure its continued existence

is well distributed in the planning area.” 26 C.F.R. 219.19.

Moreover, Forest Service policy defines, “well distributed” as used by NFMA to mean,

“a population’s unceasing presence ‘throughout its existing range in the planning area.’” USDA

1983 (“Wildlife Resource Planning Assistance To the Payette and Boise National Forests,”

Rocky Mountain Research Center, USFS).

B) The DN will have an immeasurable impact on the protected Gunnison Sage Grouse (“GSG”) found throughout the entire DN planning area.

EA and DN acknowledge the severity of the GSG population, and the imminent listing of

it on the endangered species list, but fail to render a No Action notice saying it will have no

5

effect. To the contrary, a No Action DN could delay, or negate, further development and

exposure of these and other sensitive and endangered species. The GSG is currently listed on

several global Endangered Species lists.

The EA did a thorough job of pointing out the GSG living and breeding areas and

acknowledging that GSG Leks are primarily outside of the U.S.F.S. land, leading to the

reasonable conclusion that these lands can be found on neighboring private lands, and additional

territory proposed as property to be leased under Lease Nomination COC-73584.

i) The DN will have an immeasurable impact on other federally protected species found throughout the entire DN planning area.

Appellants raise similar challenges on behalf of each species listed within the EA and

formally object to the absence of any conclusions or the mandatory analysis considering the

ND’s impact on these species. These species include, but are not limited to, the Canada Lynx,

Bald Eagle, Brewer’s Sparrow, Northern Goshawk, Boreal Owl, and the Pygmy Shrew. Each of

these species live throughout the DN planning area but were not adequately considered.

II. The EA Violates NEPA

A) The EA failed to analyze an appropriate range of alternatives.

NEPA regulations require agencies to “rigorously explore and objectively evaluate all

reasonable alternatives…”2 Furthermore, “NEPA requires that federal agencies consider

alternatives to recommended actions whenever those actions involve […] unresolved conflicts

among alternative uses of available resources.”3 Thus consideration of alternatives is critical to

the goals of NEPA.

2 40 CFR 1502.14[a]. 3 42 USC 4332[2][E][1982].

6

NEPA documents discuss alternatives to the proposed action, to “provide a clear basis for

choice among options by the decision maker and the public.”4 The purpose of this requirement

is “to insist that no major federal project should be undertaken without intense consideration of

other more ecologically sound courses of action, including shelving the entire project, or of

accomplishing the same result by entirely different means.”5

Furthermore, courts have taken federal agencies to task for stating a purpose and need so

narrowly that only the agency’s preferred alternative could meet it, thus subverting NEPA’s clear

requirement to “rigorously explore and objectively evaluate all reasonable alternatives.” 6

NEPA further states that it is the responsibility of the federal government to use all practicable

means to attain the widest range of beneficial uses of the environment without degradation or

other undesirable and unintended consequences.7

Here, the Forest Service did not undertake or meet its burden to consider alternatives.

Research clearly shows that the greatest possible benefit from the proposed geothermal

development would be miniscule compared to the potential damage to the sensitive population

currently using and enjoying the areas proposed for leasing and development. Even the EA

identifies a vast population of endangered and struggling wildlife species that are potential

victims to any exploration and development. Further, this risk of environmental catastrophe

greatly outweighs the greatest possible number of benefiting parties to a successful geothermal

power grid.

NEPA “guarantees that the relevant information will be available to the larger audience

that may also play a role in both the decision-making process and the implementation of that

4 40 C.F.R. 1502.14; see also 42 U.S.C 4332(2)(E); 40 C.F.R. 1507.2(d), 1508.9(b). 5Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974) (emphasis added). 6 40 CFR 1502.14a. 7 NEPA, 42 U.S.C. 4231 Section 101(b)(3)) (emphasis added).

7

decision.”8 In other words, it “prohibits uninformed—rather than unwise—agency action.”9

Yet, the USFS and the BLM presented the proposed leasing and geothermal development as

“speculative” and “a power source we have very little information or research on.”10 Likewise,

“relevant information” was purposefully vague, and withheld in the original “Town Hall”

meeting, as well as from the “decision making process.” These failures clearly violate NEPA as

is emphasized below.

“NEPA ensures the agency…will have available, and will carefully consider, detailed

information concerning significant environmental impacts; it also guarantees that the relevant

information will be made available to the larger [public] audience.”11 NEPA’s disclosure goals

are “to insure the agency has fully contemplated the environmental effects of its actions” and “to

insure the agency has fully contemplated the environmental effects of its actions and to insure

the public has sufficient information to challenge the agency.”12 The lack of scientific or

verifiable data indicating the appropriateness of the proposed action, or geothermal leasing in

general, inhibits the public’s ability to challenge the agency’s determination that such use, and

the amount of authorized use, is appropriate for the project area. Moreover, the process for

determining the appropriateness of development and use of public lands is set forth in NFMA

and is known as a suitability determination. NFMA calls for the consideration and analysis of

“economic and environmental consequences and the alternative uses forgone.”13 If this analysis

resulted in the “stipulations” within the DN that called for restrictions on surface use,

8 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). 9 Custer County Action Ass’n. v. Garvey, 256 F.3d 1024, 1034 (10th Cir. 2001). 10 Original “Town Hall” meeting presentation by BLM in Gunnison (2010). 11 Idaho Sporting Congress v. Thomas, 1998 WL 89066 (9th Cir. (Idaho). (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). 12 Idaho Sporting Congress v. Thomas, 1998 WL 89066 (9th Cir. (Idaho). (citing Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 758 (9th Cir. 1996)). 13 36 C.F.R. § 219.3.

8

Appellants request the same consideration on the lands bordering Federal Forest Lands, as

they host the same sensitive species, economic, and environmental consequences.

Finally, the laws are clear that the Forest Service has an obligation to formulate and analyze

alternatives. It is not the public’s responsibility to provide the alternatives or the analysis of the

alternatives. “Compliance with [NEPA] is a primary duty of every federal agency; fulfillment of

this vital responsibility should not depend on the vigilance and limited resources of

environmental plaintiffs.”14 As the Seventh Circuit noted, “what other alternatives exist we do

not know, because the government has not looked.” And, “the existence of a viable but

unexamined alternative renders an environmental impact statement inadequate.”15 (emphasis

added)

B) The EA failed to analyze past actions

The EA failed to provide acknowledgement and reporting of the results of past

geothermal testing around the Tomichi Dome, and the resulting decisions to forgo geothermal

power development due to the insufficiency of the resource. The Forest Service is required to

“disclose the history of success and failure of similar projects.” 16 This was not done and thus

violates NEPA.

C) The EA failed to analyze impacts of actions

The EA failed to provide sufficient analysis of the impacts of the proposed geothermal

development. The EA failed to provide information as to their exact locations, other than a

general map. It failed or remained very vague in providing information regarding soil properties,

14 City of Davis v. Coleman, 521 F2d 661, 671 (9th Cir. 1975). 15 Alaska Wilderness Recreation & Tourism v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995).(emphasis added) 16 Sierra Club v. Morton, 510 F.2d 813, 824 (5th Cir. 1975); National Wildlife Federation v. USFS, 592 F. Supp. 931, 943 (1984).

9

slope, vegetation, relations to homes, historic geological formations, ranges, streams, wildlife

habitats, and breeding grounds, etc. There is no site specific analysis for any of the proposed

geothermal development, and this violates NEPA. Furthermore, the stipulations calling for “no

surface occupancy” and limitations on forest lands directly impair the equally fragile and

important private lands surrounding the national forests. A DN condoning leasing at any level

points and pushes future developments onto surrounding sage grouse leks, ranches, and basins at

a more accelerated rate.

The EA does provide a clear understanding that geothermal leasing, followed by

imminent development, provides for a future of significant degradation of current conditions, if

not within the National Forest Land, certainly around it. Furthermore, the EA provides no

rationale for the potentially catastrophic effects of such leasing and development aside from

limited and speculative resource development. As has happened in all geothermal development

sights to date, the public should be educated to expect fundamental change to or around the

National Forest Land, including those lands owned and or relied upon by Appellants.

Instead of educating the public and answering questions, the process so far has evaded

public comment, and refused to honestly address concerns. While both “Town-Hall” meetings

avoided and refused public questions and respective answers, the first meeting ended with a “5

minute break” announced by Marnie Medina, of the BLM directly followed by BLM and USFS

employees hastily stacked chairs in order to usher out attendees before public outcry could occur.

The second “town-hall” session was announced on a Sunday night, via email, four days prior to

the meeting. The BLM has been well aware that interested parties live and work out of the area,

so the last minute meeting notice was grossly insufficient. The BLM refused to reschedule or

10

postpone the meeting even though requests for rescheduling occurred minutes after the notice

was sent out.

The process has been conducted outside the spirit of NEPA, as even this very DN was

posted for a brief 6 days before “expiring.” With a 45 day ticking clock for Federal Appeals, a

mere 6 days is grossly inadequate to alert the public.

Geothermal Lease Nomination COC-73584 will cause more than just the geologic,

biologic, and aesthetic loss and damage. The development that follows will certainly create

economic loss, to landowners, outfitters, and cattle farmers. This imminent damage and loss

cannot be justified through admittedly “speculative” development and tampering with

geothermal resources.

REQUEST FOR RELIEF

Pursuant to 5 USC §555(b), Appellants hereby request relief from the Appeals Deciding

Officer on the issues noted herein. If the foregoing request for relief is denied in whole or in

part, Appellants are entitled to a full statement of reasons as to the grounds for denial in

accordance with 5 USC § 555(e).

The EA and DN fail to meet their legal requirements as explained supra in Appellants’

Statement of Reasons Section. As such, Appellants specifically request that the Forest Service

DN be withdrawn along with its consent to geothermal leasing in Gunnison and around the

Tomichi Dome. This withdrawal will allow the Forest Service to conduct additional analysis

regarding this potentially invasive undertaking. Furthermore, Appellants specifically request that

they be granted opportunities for public participation. Finally, Appellants request a No Action

Order to prohibit geothermal leasing on Forest Service lands and neighboring lands subject to

lease nomination COC-73584.

11

CONCLUSION

The APA prohibits an agency from acting in an arbitrary and capricious fashion. Fair and

honest procedures are also an element of complying with NEPA. 40 C.F.R. 1502.1. To assure

that a fair discussion occurs, agencies are required to obtain high quality information, including

accurate scientific analysis. 40 C.F.R. 1500.1 (b). The regulations are explicit. Agencies shall

ensure the professional integrity, including scientific integrity, of the discussions and analyses in

environmental impact statements. 40 C.F.R. 1502.24 Counsel on Environmental Quality

regulations also require that environmental impact statements shall serve as the means of

assessing the environmental impact of proposed agency action, rather than justifying decisions

already made. 40 C.F.R. 1502.2(g)

The policy behind NEPA is to ensure environmental considerations are integrated into

agency planning, 40 C.F.R. § 1501, and that the public be informed in agency planning

decisions. “NEPA procedures must insure that environmental information is available to public

officials and citizens before decision are made and before actions are taken…Accurate scientific

analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40

C.F.R. § 1500.1(b). “NEPA ensures the agency …will have available, and will carefully

consider, detailed information concerning significant environmental impacts; it also guarantees

that the relevant information will be made available to the larger [public] audience.” Idaho

Sporting Congress v. Thomas, 1998 WL 89066, at (9th Cir. (1998)). (citing Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). NEPA’s

disclosure goals are “to insure the agency has fully contemplated the environmental effects of its

actions and to insure the public has sufficient information to challenge the agency.” Id. (citing

12

Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 758 (9th Cir.

1996)).”

The flaws in the EA and DN identified in this appeal violate the requirement of NFMA,

NEPA, and the Forest Plan and agency regulations. Appellants are willing to meet with the

Regional Forester or the Forest Supervisor to discuss the issues raised in this Appeal in an effort

to resolve them and to ensure that these areas of the Forest are managed in a way that complies

with federal law and the goals and needs of Appellants.

RESPECTFULLY SUBMITTED this 25th Day of March, 2011.

Matthew R. Jones Double Heart Ranch (512) 635-7814

United States

Department of

Agriculture

Forest

Service

Rocky

Mountain

Region

P.O. Box 25127

Lakewood, CO 80225-0127

Delivery: 740 Simms St.

Golden, CO 80401

Voice: 303-275-5350

TDD: 303-275-5367

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570-1 Date: May 2, 2011 Route To:

Subject: Recommendation Memorandum for Appeal of Gunnison Geothermal Lease

Nomination COC-73584 – Double Heart Ranch: 11-02-00-0016 (215)

To: Appeal Deciding Officer

As the designated Appeal Reviewing Officer, this is my recommendation on disposition of the

appeal filed by Matthew R. Jones, Double Heart Ranch, under the regulations at 36 CFR 215.

Forest Supervisor Charlie Richmond signed the Decision Notice (DN) for the Gunnison

Geothermal Lease Nomination COC-73584 on February 4, 2011, and a legal notice of the

decision was published in the newspaper of record on February 10, 2011. My recommendation

is based on the appeal and the decision documentation (36 CFR 215.18(a)).

BACKGROUND

On February 26, 2010, the Forest Supervisor on the Grand Mesa, Uncompahgre & Gunnison

(GMUG) NF issued a letter requesting public comment on the proposed geothermal lease

nomination on the Gunnison Ranger District.

In November of 2010, the Forest Supervisor issued the Environmental Assessment for public

review and comment. Comments were to be submitted by December 31, 2010.

On February 4, 2011, the Forest Supervisor signed a Decision Notice consenting to lease 3,765

acres of National Forest System lands on the Gunnison Ranger District.

RELIEF REQUESTED

―The EA and DN for the proposed Geothermal Lease Nomination of COC 73584 are based on

flawed and/or inadequate information. Further, the Forest Service‘s Proposed Action will violate

multiple federal regulations and environmental protection laws, including, but not limited, to the

National Environmental Policy Act and the National Forest Management Act. As established

herein, the DN must be withdrawn and a No Action Order issued because the DN and project

implementation plan violate these multiple federal statutes and regulations.‖

ISSUES AND DISCUSSION

APPEAL ISSUE I: THE DECISION NOTICE (DN) VIOLATES NATIONAL FOREST

MANAGEMENT ACT (NFMA) AND NATIONAL ENVIRONMENTAL POLICY ACT

(NEPA).

APPEAL ISSUE I.A: The DN failed to adequately implement design criteria and

mitigation to protect sensitive species and ensure viability throughout the entire DN

planning area.

2

Appellant states: ―According to U.S. Forest Service policy, the Forest Service ―must develop

conservation strategies for those sensitive species whose continued existence may be

negatively affected by the Forest Plan or a proposed project. See FSM 2670.45. These

strategies must contain quantifiable objectives and must be adopted prior to implementation of

projects that would adversely impact that species habitat. See FSM 2622.01, 2670.45. Here,

the EA discussion of these measures is insufficient, and the DN fails to consider or implement

any such measures. This violates NFMA and NEPA.

Similarly, regulations promulgated to ensure such diversity mandate that fish and wildlife

habitat be managed to maintain viable populations and the diversity of species throughout the

planning area. 36 C.F.R. 219.19, 219.27 (emphasis added). Here, the DN only accounts for

national forest land and neglects to address or account for the tremendous impact the plan will

have ―throughout the planning area,‖ which also includes the hundreds of privately held and

managed acres located in the DN planning area.‖

Rule:

36 CFR 219.35(a): “The transition period begins on November 9, 2000 and ends upon

completion of the revision process (§ 219.9) for each unit of the National Forest System.

During the transition period, the responsible official must consider the best available science in

implementing and, if appropriate, amending the plan.”

36 CFR 219.35 Appendix B(1): This section clarifies the interpretive rule, stating: “ Under the

transition provisions of paragraph (a), the responsible official must consider the best available

science in implementing and, if appropriate, in amending existing plans.”

FSM 2670.45 – Threatened, Endangered, and Sensitive Plants and Animals

FSM 2622.01 – Biological Diversity Requirements

Discussion:

36 CFR 219/35(a) and Appendix B(1): Appellant cites the 1982 planning regulation.

However, this regulation has not been in effect since 2000 and, under the current regulation,

the only requirements for approval of a project are that it be consistent with the Forest Plan and

that the decision maker must have considered the best available science.

A review of the project record demonstrates that the Forest Service did consider species

viability prior to issuing the Decision Notice and Finding of No Significant Impact for this

project. Table 2-3, Comparison of Alternatives, provides a synopsis of impacts to sensitive

wildlife species including, American marten, Gunnison‘s prairie dog, pygmy shrew, bald eagle,

Gunnison sage grouse, Brewer‘s sparrow, northern goshawk, boreal owl, olive-sided

flycatcher, flammulated owl, American three-toed woodpecker, and northern leopard frog (EA

p. 32). The environmental impacts to these species are provided in detail in Chapter 3 of the

EA, Sections 3.9b through 3.9n. The Biological Evaluation (BE) produced in support of the

analysis provides even more detailed analysis of all sensitive species. The biological

determination cited for these species in all of the aforementioned references is as follows:

―May adversely impact individuals, but not likely to result in a loss of viability in the planning

area, nor cause a trend towards federal listing.‖ Given this determination, the Forest Service

was not required to develop specific conservation strategies for sensitive species as Appellant

alleges. See FSM 2670.45.

Neither the 1983 Land and Resource Management Plan (Forest Plan) nor the 1991 Forest Plan

Amendment for the GMUC National Forest speaks to ―species viability‖ per se; however, they

do discuss ―species diversity.‖ According to the 1991 Forest Plan Amendment, species

3

diversity is described as the ability to maintain a diversity of plant and animal species (FEIS

Summary, p. 4). Several biological components are considered when making diversity

determinations, including genetic diversity, species diversity, and community diversity. The

EA and its supporting documentation demonstrate that sensitive species will not be adversely

affected by project implementation and that species diversity will be maintained. Therefore,

the project complies with the requirements of the 1983 Forest Plan and 1991 Forest Plan

Amendment.

FSM 2670.45

The EA incorporated Forest Plan standards and guidelines, conservation agreements, FS policy

and direction, and applicable laws (EA, Chapter 2, Section 2.1, p. 14) into the development of

the ―Purpose and Need for Action‖ and ―Alternatives, Including the Proposed Action.‖ The

DN/FONSI (pp. 6 - 7) further states compliance with the relevant laws and Forest Plan

direction. In addition, the DN/FONSI confirms consideration and compliance with the

Endangered Species Act. Lastly, a Biological Assessment (BA) was prepared in support of

EA, Section 3.8 (Threatened & Endangered Species). The BA did not recommend additional

conservation measures to avoid, minimize, or mitigate adverse effects (BA p. 35).

FSM 2622.01

The Biological Evaluation (BE) produced in support of the EA provides analysis of all relevant

sensitive species and Management Indicator Species. Appendix C of the BE provides a

complete list of MIS species on the GMUG National Forest. In regard to sensitive species, BE

page 22 states:

―The Forest Sensitive Species List was reviewed and those species known or suspected to

occur due to the presence of habitat were brought forward for further analysis (Appendix B).

Information on distribution, dispersal capability, abundance, population trends, habitat

trends, habitat vulnerability, and risks based on life history and demographics for these

species are available on Region 2‘s website (www.fs.fed.us/r2/projects/scp). This

information has been incorporated where relevant, but extensive life histories of species are

not described herein. None of the sensitive plant species on the GMUG are known or

expected to occur in the project area and will not be affected by the project.‖

Recommendation: The DN adequately implemented design criteria and mitigation to protect

sensitive species and ensure viability throughout the entire DN planning area. The environmental

assessment met the requirements 16 U.S.C. 1604(g), FSM 2670.45, FSM 2622.01, 36 CFR §

219.35. I recommend that the Forest Supervisor‘s decision be affirmed on this issue.

APPEAL ISSUE I.B: The DN will have an immeasurable impact on the protected

Gunnison Sage Grouse (“GSG”) found throughout the entire DN planning area.

Appellant states: ―[The] EA and DN acknowledge the severity of the GSG population, and the

imminent listing of it on the endangered species list, but fail to render a No Action notice

saying it will have no effect. To the contrary, a No Action DN could delay, or negate, further

development and exposure of these and other sensitive and endangered species. The GSG is

currently listed on several global Endangered Species lists‖.

Rule:

FSM 2670.45 – Threatened, Endangered, and Sensitive Plants and Animals

FSM 2622.01 – Biological Diversity Requirements

4

Discussion: The anticipated impacts to the Gunnison sage-grouse of the no action and

proposed action are disclosed in the EA (pp. 132 - 140) and the BE (pp. 45 - 49). The DN

presents a ‗finding of no significant impact‘ from the implementation of the proposed action

and states:

―During the analysis process USFWS announced that this species warrants protection under

the Endangered Species Act, but that proposing to list the species is precluded by the need to

address higher priority species (September 27, 2010); therefore making it a candidate species.

With this in mind the Forest worked closely with the Colorado Division of Wildlife, USFWS

and the Gunnison Sage Grouse Working Group to formulate No Surface Occupancy

stipulations (Appendix B and C and EA, Section 2.1) for the conservation of this species and

its habitat while being consistent with the Gunnison Sage Grouse Rangewide Conservation

Plan which does not preclude mineral leasing. Additionally, the Forest conferred with

USFWS for this species. Should the species status change or new species information

becomes available, additional review may be required in coordination/consultation with

appropriate agencies‖ (DN pp. 4 - 5).

Recommendation: I recommend that the Forest Supervisor‘s decision be affirmed on this

issue.

APPEAL ISSUE I.B.i: The DN will have an immeasurable impact on other federally

protected species found throughout the entire DN planning area.

Appellant states: ―Appellants raise similar challenges on behalf of each species listed within

the EA and formally object to the absences of any conclusions or the mandatory analysis

considering the DN‘s impact on these species. These species include, but are not limited to,

the Canada Lynx, Bald Eagle, Brewer‘s Sparrow, Northern Goshawk, Boreal Owl, and the

Pygmy Shrew. Each of these species lives throughout the DN planning area but were not

adequately considered‖.

Rule:

FSM 2670.45 – Threatened, Endangered, and Sensitive Plants and Animals

FSM 2622.01 – Biological Diversity Requirements

Discussion: The effects of the alternatives to Canada lynx, bald eagle, Brewer‘s sparrow,

northern goshawk, boreal owl, and the pygmy shrew are described in the DN, EA, BE and

BA.

The Forest Service prepared a BA that describes the anticipated effects of the alternatives to

threatened and endangered species including the Canada Lynx. The BA made the following

determination:

―Implementation of the project “may affect, and is likely to adversely affect” the Canada

lynx. This is based primarily on the potential for permanent loss of suitable habitat within

the lease area. Other impacts such as disturbance to dispersing, foraging, resting, denning,

competition and disturbance from changes in winter access or increased mortality risk are

insignificant and discountable due to the small patch size of lynx habitat, lack of

connectivity of habitat within the lease area to larger contiguous blocks of higher quality

lynx habitat elsewhere within the LAU, lack of adequate structure (abundant dense course

woody debris) to provide den sites for lynx within the lease area as determined by field

verification, and the low probability of incidental mortality due to new roads and increased

traffic associated with geothermal development and operation. Lease stipulations should

minimize impacts to lynx and lynx habitat, but the potential of permanent suitable lynx

5

habitat loss that when combined with past, present, and reasonably foreseeable actions,

leads to an adverse affect determination. As discussed above under direct, indirect, and

cumulative effects, habitat in the lease area provides cover, refuge, and prey for traveling or

dispersing lynx. Thus, a permanent loss of habitat could potentially reduce the

effectiveness of the Tomichi Dome LAU‖ (BA p. 35).

This BA was submitted to the US Fish and Wildlife Service for review and formal

consultation. The FWS returned a Biological Opinion on January 13, 2010 that stated: ―We

conclude that the effects of the project are not reasonably expected to, directly or indirectly,

reduce appreciably the likelihood of both survival and recovery of the lynx distinct

population segment in the wild by reducing the reproduction, numbers or distribution of lynx

(BO p. 8).

The Forest Service prepared a BE that describes the anticipated effects of the alternatives to

sensitive species including the bald eagle, Brewer‘s sparrow, northern goshawk, boreal owl,

and the pygmy shrew. For these species, the BE made the determination that implementation

of the proposed action ―may adversely impact individuals, but is not likely to result in a

loss of viability in the planning area, nor cause a trend towards federal listing‖

(emphasis added).

Recommendation: I recommend that the Forest Supervisor‘s decision be affirmed on this

issue.

APPEAL ISSUE II: THE EA VIOLATES NEPA

APPEAL ISSUE II.A: The EA failed to analyze an appropriate range of alternatives.

Appellant states: ―The Forest Service did not undertake or meet its burden to consider

alternatives. Research clearly shows that the greatest possible benefit from the proposed

geothermal development would be miniscule compared to the potential damage to the sensitive

population currently using and enjoying the areas proposed for leasing and development. Even

the EA identifies a vast population of endangered and struggling wildlife species that are

potential victims to any exploration and development. Further, this risk of environmental

catastrophe greatly outweighs the greatest possible number of benefiting parties to a successful

geothermal power grid.

NEPA ―guarantees that the relevant information will be available to the larger audience that

may also play a role in both the decision-making process and the implementation of that

decision.‖ In other words, it ―prohibits uninformed—rather than unwise—agency action.‖ Yet,

the USFS and the BLM presented the proposed leasing and geothermal development as

―speculative‖ and ―a power source we have very little information or research on.‖ Likewise,

―relevant information‖ was purposefully vague, and withheld in the original ―Town Hall‖

meeting, as well as from the ―decision making process.‖ These failures clearly violate NEPA.

The lack of scientific or verifiable data indicating the appropriateness of the proposed action,

or geothermal leasing in general, inhibits the public‘s ability to challenge the agency‘s

determination that such use, and the amount of authorized use, is appropriate for the area.

Moreover, the process for determining the appropriateness of development and use of public

lands is set in NFMA and is known as a suitability determination. NFMA calls for the

consideration and analysis of ―economic and environmental consequences and the alternative

uses forgone.‖ If this analysis resulted in “stipulations” within the DN that called for

6

restrictions on surface use, Appellants request the same consideration on the lands

bordering Federal Forest Lands, as they host the same sensitive species, economic, and

environmental consequences.”

Rule:

36 CFR § 220.7(b)(2) – Environmental Assessment and Decision Notice

42 U.S.C § 4332 (2)(C)(iii)

40 CFR § 1502.14 – Alternatives Including the Proposed Action

40 CFR § 1502.16 (h) – Environmental Consequences

Discussion:

Background / Scope: Leasing geothermal resources on Federal lands is authorized under the

Geothermal Steam Act of 1970 as amended by the Energy Policy Act of 2005. The EA

Purpose and Need and Proposed Action sections (EA Sections 1.3 and 1.4 pages 3,4) clearly

define what requirements the Forest Service must achieve when completing a geothermal

leasing analysis. They include: (1) giving consent to the BLM to lease NFS lands by

competitive bid, and (2) identifying lease stipulations for the protection of other resources.

The Purpose and Need for Action section also discusses under what conditions lands should be

leased to facilitate environmentally responsible exploration and economic development of

public resources and under what reasonable and justifiable terms (EA, Section 1.3, p. 7). The

conditions would provide protection for surface resources while allowing optimum subsurface

geothermal resource recovery (EA, Section 1.3, p. 7).

The FS tiered their EA to the Final Programmatic EIS for Geothermal Leasing in the Western

United States (Geothermal PEIS 2008) (EA p. 2). This document assessed the direct, indirect,

and cumulative effects of leasing, exploration and development of geothermal resources on

high priority areas (critical locations) on BLM- and FS-administered lands. It also provided

suitable information to the FS to facilitate its subsequent consent decision to the BLM for

leasing on NFS lands. The geothermal PEIS evaluated one (1) no action and two (2) action

alternatives in detail.

The GMUG Geothermal Lease Nomination COC-73584 Environmental Assessment evaluated

one (1) no action and one (1) action alternative in detail (EA Chapter 2). The analysis also

considered five (5) additional alternatives that were eliminated from detailed study (EA

Chapter 2).

Reasonable Range of Alternatives: The EA, Section 2.1, pages 13 - 27, provides descriptions

of the alternatives analyzed in detail. The issues identified in the EA Chapter 1, Section 1.8,

pages 8 – 11 were incorporated into the EA as proposed lease stipulations and are part of the

proposed action (EA, Chapter 2, Section 2.1, pp. 13 - 27). The issues identified in the EA

Chapter 1, Section 1.8 were also carried into the environmental consequences analysis by

resource in Chapter 3 of the EA. With all issues adequately addressed in the Proposed Action,

no additional action alternatives were developed. This is consistent with the requirements of

36 CFR § 220.7(b)(2) – Environmental assessment and decision notice – which states:

―Proposed action and alternative(s). The EA shall briefly describe the proposed action and

alternative(s) that meet the need for action. No specific number of alternatives is required or

prescribed.‖

The Proposed Action fully met the Purpose and Need for this analysis. All issues identified in

Chapter 1, Section 1.8 were effectively carried throughout the analysis.

7

Several public comments were received in response to the Proposed Action that provided

suggestions for alternative methods for achieving the Purpose and Need (EA, Section 2.2, p.

27). As mentioned above, the suggested alternatives were given consideration, but eliminated

from detailed study. Section 2.2 in the EA (pp. 27 - 29) provides an adequate and reasonable

discussion as to why the alternatives suggested by public comment were eliminated from

detailed study.

Finally, the EA is clear that potential future impacts from exploration, drilling, utilization or

reclamation phases of geothermal development will be analyzed and disclosed during future

site-specific NEPA analyses. This was a geothermal leasing analysis which relied on

Reasonable Foreseeable Future Development estimates for the development of alternatives and

the environmental consequences analysis. As such, anything beyond this would have been

speculative in nature and arbitrary and capricious. During the site-specific NEPA analysis,

when concrete project proposal details are known and no longer speculative in nature, a

reasonable range of alternatives would most likely be developed to analyze the potential

impacts from any of the four phases of geothermal development.

Recommendation: The environmental assessment considered a sufficient range of alternatives

to the proposed action and the requirements of 36 CFR § 220.7(b)(2), 42 U.S.C § 4332

(2)(C)(iii), 40 CFR § 1502.14, and 40 CFR § 1502.16 (h) were met with the GMUG analysis.

I recommend that the Forest Supervisor‘s decision be affirmed on this issue.

APPEAL ISSUE II.B: The EA failed to analyze past actions

Appellant states: ―The EA failed to provide acknowledgement and reporting of past geothermal

testing around the Tomichi Dome, and the resulting decisions to forgo geothermal power

development due to the insufficiency of the resource. The Forest Service is required to

―disclose the history of success and failure of similar projects.‖ This was not done and thus

violates NEPA.‖

Rule:

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 Section 102(c)(i))

40 CFR § 1508.7 – Cumulative impact

40 CFR § 1508.8 – Effects

40 CFR § 1508.25 – Scope

Discussion: As cited in the EA (p. 212), the area has received potential geothermal

development evaluation and research (Zacharakis, Ted G. 1981. Geothermal Resource

Assessment of Wuanita Springs, Colorado. Colorado Geological Survey). This report used

different direct and indirect analysis methods to determine potential. It appears that the

findings were inconsistent: some findings indicated low potential; others showed moderate to

high potential. Ground-disturbing activities did occur during these evaluations: eight one-

hundred meter (100m) temperature gradient holes were drilled approximately 30 years ago.

The exact locations and the extent of the disturbances are unknown. This drilling was not

identified on the BE‘s Appendix A: ‗Acres of Recorded Activities in the 39,848-acre

Cumulative Effects Area since 1970.‖

The EA (Section 3.2, p. 41) states:

―Geothermal Resource Occurrence Potential

8

The RFD projects that all the nominated lands within the national forest have high

potential for geothermal resources to occur except for a small portion on the northeastern-

most corner of the North Parcel. The potential for geothermal resources to occur is

linked to the presence of the Dakota Sandstone.

Development Potential

For the NFS lands, the RFD projects that development potential is high around the

Tomichi Dome and eastern third of the North Parcel and moderate for western two thirds

of the North Parcel. The areas of high development potential are those most likely to see

exploratory efforts. Table 3-2 shows the projected amount of activity by phase.‖

Recommendation: If, as appellant suggests, the potential for geothermal development is

less than assumed in the RFDS that does not violate NEPA or make the stipulations less

effective for any development that does occur. I recommend that the Forest Supervisor‘s

decision be affirmed on this issue.

APPEAL ISSUE II.C: The EA failed to analyze impacts of actions.

Appellant states: ―The EA failed to provide sufficient analysis of the impacts of the proposed

geothermal development. The EA failed to provide information as to their exact locations,

other than a general map. It failed or remained very vague in providing information regarding

soil properties, slope, vegetation, relations to homes, historic geological formations, ranges,

streams, wildlife habitats, and breeding grounds, etc. There is no site specific analysis for any

of the proposed geothermal development, and this violates NEPA. Furthermore, the

stipulations calling for ―no surface occupancy‖ and limitations on forest lands directly impair

the equally fragile and important private lands surrounding the national forest. A DN

condoning leasing at any level points and pushes future developments onto surrounding sage

grouse leks, ranches, and basins at a more accelerated rate.‖

Rule:

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 Section 102(c)(i))

Discussion: Background / Scope: Leasing geothermal resources on Federal lands is authorized under the

Geothermal Steam Act of 1970 as amended by the Energy Policy Act of 2005. The Energy

Policy Act of 2005 encouraged the Bureau of Land Management (BLM), the federal

government‘s mineral estate manager, to promote the responsible development of geothermal

resources. Geothermal leasing procedures at 43 CFR 3200 allow the BLM to grant access to

geothermal resources through a formalized leasing process based on end use. The end use for

the geothermal lease nomination, COC-73584, is electrical generation. Electrical generation is

considered an indirect use. Indirect uses require the lands to be competitively leased. In order

for National Forest System (NFS) lands to be available for competitive geothermal lease sales,

the Forest Service needs to provide consent to the BLM for nominated NFS lands. The

determination to consent to lease NFS lands is made after a decision is made on the appropriate

level of environmental analysis. The Final Environmental Assessment Geothermal Lease

Nomination COC-73584 (EA COC-73584) prepared by the Gunnison Ranger District is that

analysis. The BLM Gunnison Field Office issued a Decision Record (25 March 2011) on the

FS EA COC-73584. This BLM decision adopts the FS decision and will allow the BLM would

to make an independent decision to include the NFS lands on a competitive lease sale with any

additional terms, conditions or stipulations that it deems necessary and/or appropriate.

9

The administrative procedures to process geothermal lease nominations are outlined in the

Memorandum of Understanding between the United States Department of the Interior and

United States Department of Agriculture for Implementation of Section 225 of The Energy

Policy Act of 2005 Regarding Geothermal Leasing and Permitting (National Level MOU).

The National Level MOU committed the FS and BLM to jointly prepare NEPA documents that

will meet the requirements of both agencies in reaching their independent leasing decisions. In

this case, the FS prepared the environmental assessment for geothermal lease nomination,

COC-73584, with the BLM Gunnison Field Office serving as a Cooperating Agency.

Leasing geothermal resources on Federal lands is authorized under the Geothermal Steam Act

of 1970 as amended by the Energy Policy Act of 2005. The EA Purpose and Need and

Proposed Action (EA Sections 1.3 and 1.4 pages 3,4) clearly define what requirements the

Forest Service must achieve when completing a geothermal leasing analysis. They include: (1)

giving consent to the BLM to lease NFS lands by competitive bid, and (2) identifying lease

stipulations for the protection of other resources.

Cumulative Impact / Effects: Appellant claims that the EA failed to provide sufficient analysis

of the impacts of the proposed geothermal development and failed to provide information as to

their exact location as required by the National Environmental Policy Act 42 U.S.C. 4321

Section 102(c)(i)). As described above in the background section, the Purpose and Need for

Action of this EA was to (1) give consent to the BLM to lease NFS lands by competitive bid,

and (2) identify lease stipulations for the protection of other resources. This decision approves

no ground disturbing activity and there is no development associated with the Proposed Action

(EA, Section 1.2, page 3). Additional site-specific NEPA would be completed if the lands are

leased a geothermal development proposal is submitted to the FS (EA, Section 1.2, p. 3).

For the geothermal leasing analysis being appealed, the effects analysis was laid out stating

there would be no direct effects (EA Chapter 3) from the decisions made on this analysis. The

EA, in Chapter 3, goes on to fully disclose the indirect and cumulative impacts, to include

adequate disclosure of the effectiveness of lease stipulations, for the potential indirect and

cumulative effects from potential disturbance estimates identified in the EA (Chapter 3,

Section 3.2, Table 3-2, pp. 43 - 44).

The effects analysis for this EA was completed based on projected disturbance estimates in the

Reasonable Foreseeable Development Scenario (RFDS) prepared by the BLM for geothermal

lease nominations COC-73584 and COC-73585. The EA provides the projected disturbance

estimates in Table 3-2 (pages 43 and 44). The disturbance estimates include road disturbance.

The road disturbance estimates were carried into the effects analysis in Chapter 3 and

specifically in the environmental consequences section for Gunnison sage grouse on page 136.

Section 3.1 of the EA (pp. 35 – 40, Existing Activities in Proposed Leases & Cumulative

Effects Areas) identifies past, present, and reasonably foreseeable future actions for use in the

cumulative effects analysis. This list, along with the RFDS estimates mentioned above, were

used to complete the cumulative effects analysis for Gunnison sage-grouse within the

cumulative effects analysis defined in the BE (p. 21) and described in the following manner:

―A larger cumulative effects area was used for Gunnison Sage-Grouse that includes the

area described above, as well as adjacent BLM and private lands within four mile of the

FS lease parcels.‖