Challenging government's deforestation policies

Todd C. Tucci (MSB # 648652)
LAND AND WATER FUND OF THE ROCKIES
P.O. Box 1612
Boise, ID 83701
(208) 342-7024
(208) 342-8286 (fax)

Laurence ("Laird") J. Lucas (ISB # 4733)
LAW OFFICES OF LAURENCE J. LUCAS
P.O. Box 1342
Boise, Idaho 83701
(208) 424-1466
(208) 342-8286 (fax)

Attorneys for Plaintiffs American Lands Alliance, Committee for Idaho’s
High Desert and Western Watersheds Project
Henry Egghart (NSB # 3401)
Attorney at Law
317 S. Arlington Ave.
Reno NV 89501
(775) 329-2705
(775) 323-0466 (fax)
Local Counsel for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

AMERICAN LANDS ALLIANCE,)
COMMITTEE FOR IDAHO’S HIGH DESERT )
, and WESTERN WATERSHEDS PROJECT, )
Case No. ______________ )
Plaintiffs,)
)

vs.

COMPLAINT

GENE KOLKMAN, Ely Field Office )
Manager, ROBERT V. ABBEY, )
Nevada State Director, and BUREAU )
OF LAND MANAGEMENT, )
Defendants. )

NATURE OF ACTION

1. This action challenges the Final Decisions of Defendants Bureau of Land Management et al. ("BLM"), in authorizing two projects which will clearcut nearly 50 square miles of existing Pinyon-juniper forests in the vicinity of Ely and Mt. Wilson, chip the felled trees, and spread between 315 to 945 million pounds of wood chips to an average depth of two (2) inches across the entire project area. Despite BLM’s protestations that it is undertaking these projects in the name of "ecological health" and to "reduce risks of catastrophic wildfires," sound science and modern developments in controlling wildfires reveal these to be ecologically destructive projects that fail to adequately address the threat of wildfire at the urban interface.

2. BLM has violated the National Environmental Policy Act ("NEPA"), by failing to prepare an Environmental Impact Statement ("EIS") for the projects, instead relying on two nearly identical Environmental Assessments ("EAs") that do not examine and assess the significant environmental impacts which the projects will have, individually and cumulatively. Additionally, BLM’s implementation of the projects will violate the mandate of the Federal Land Policy and Management Act ("FLPMA") that BLM must manage the affected lands for multiple use and sustained yield, and will further violate the applicable land use plans for the affected BLM lands.

3. Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., Plaintiffs thus seek judicial relief reversing and remanding BLM’s approval of the two projects. In addition, because BLM intends to imminently proceed with the projects, causing irreparable ecological and other harms to Plaintiffs and the public, Plaintiffs seek immediate injunctive relief preventing implementation of the projects until the Court has ruled on the merits of these claims.

JURISDICTION AND VENUE

4. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 (federal question) because this action arises under the laws of the United States, including the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq. An actual, justiciable controversy now exists between Plaintiffs and Defendants, and the requested relief is therefore proper under 28 U.S.C. §§ 2201-2202 and 5 U.S.C. § 701-06

.

5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because all or a substantial part of the events or omissions giving rise to the claims herein occurred within this judicial district, and Defendants and the affected public lands and resources are located in this judicial district.

6. The federal government has waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.

7. Plaintiffs have exhausted all administrative remedies required by the APA, 5 U.S.C. § 704, and BLM’s regulations prior to bringing this action.

PARTIES

8. Plaintiff AMERICAN LANDS ALLIANCE ("American Lands") is a not-for-profit conservation organization representing citizens nationwide who are working to protect wildlife and wild places. American Lands’ mission is to protect forest, grassland, and aquatic ecosystems; preserve biological diversity; restore landscape and watershed integrity; and promote environmental justice in connection with those goals. American Lands has an office and staff in Reno, Nevada, which has a primary focus of working to protect and restore the lands and resources of the "Sagebrush Sea" high desert ecosystem of Nevada and surrounding states.

9. Plaintiff COMMITTEE FOR IDAHO’S HIGH DESERT ("CIHD") is a non-profit membership organization, having about 200 members, which is dedicated to the protection, restoration, and wise use and enjoyment of public lands and high desert resources. CIHD, as an organization and on behalf of its members, is concerned with and active in seeking to protect and improve the riparian areas, forests, water quality, fisheries, wildlife, and other natural resources and ecological values of the Great Basin and other high desert regions of Nevada, Idaho and Oregon, including the Pinyon-juniper forests within the Proposed Action areas.

10. Plaintiff WESTERN WATERSHEDS PROJECT ("WWP") is a non-profit membership organization, having over 1200 members, which is dedicated to protecting and conserving the public lands and natural resources of watersheds in the American West. WWP, as an organization and on behalf of its members, is concerned with and active in seeking to protect and improve the wildlife, riparian areas, water quality, fisheries, and other natural resources and ecological values of watersheds throughout the West, including Nevada.

11. Members and staff of the Plaintiff organizations work, live and/or recreate throughout the high desert ecosystem of Nevada and the surrounding region, including within the Proposed Action area. Plaintiffs’ members and staff derive commercial, aesthetic, recreational, scientific, inspirational, educational, and other benefits from the ecosystem, including from the Pinyon-juniper forests located within the Proposed Action areas, on a regular and continuing basis and intend to do so frequently in the immediate future.

12. Plaintiffs observe and study the Pinyon-juniper forests within the Proposed Action areas, as well as the larger high desert ecosystem, and derive commercial, recreational, aesthetic, scientific, inspirational, educational, and other benefits from these activities and have an interest in preserving the possibility of such activities in the future.

13. Implementation of Defendants’ Proposed Actions will adversely and irreparably injure Plaintiffs’ above-described aesthetic, commercial, conservational, recreational, educational, and wildlife preservation interests. These are actual, concrete injuries to Plaintiffs, caused by Defendants’ violations of NEPA, FLPMA, and the APA, and their implementing regulations. The relief sought herein would redress these injuries. Plaintiffs have no adequate remedy at law.

14. Defendant GENE KOLKMAN is the Field Manager of BLM’s Ely Field Office, and upon information and belief is the principal BLM official responsible for approving the Proposed Actions and EAs challenged herein. Defendant Kolkman is sued solely in his official capacity.

15, Defendant ROBERT V. ABBEY is the Nevada State Director of the Bureau of Land Management, based in Reno, Nevada, and has supervisory authority over BLM’s management decisions in Nevada, including the Proposed Actions challenged herein. Defendant Abbey is sued solely in his official capacity.

16. Defendant BUREAU OF LAND MANAGEMENT is an agency or instrumentality of the United States, within the U.S. Department of Interior; and is the federal agency charged by law with administering the public lands of the Proposed Action areas.

LEGAL BACKGROUND

National Environmental Policy Act

17. The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq., is the "basic national charter for protection of the environment," and its primary purposes are to insure fully informed decision-making and to provide for public participation in environmental analyses and decision-making. The Council on Environmental Quality (CEQ) has promulgated regulations implementing NEPA that are binding on all federal agencies. See 40 C.F.R. §§ 1500 et seq.

18. NEPA requires that federal agencies prepare an Environmental Impact Statement (EIS) for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C § 4332(2)(C). NEPA requires that the decisionmaker, as well as the public, be fully informed – i.e., "that environmental information is available to public officials and citizens before decisions are made and before action is taken." 40 C.F.R. § 1500.1(b). NEPA ensures that "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." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). See also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (agency analysis must be "fully informed and well-considered").

19. NEPA requires that federal agencies conduct a complete and objective evaluation of beneficial and adverse environmental impacts resulting from a proposed action, and all reasonable alternatives. See 40 C.F.R. § 1502.1 (an EIS "shall provide full and fair discussion of significant environmental impacts and shall inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment"). BLM’s NEPA policies require the same. See BLM Handbook H-1790-1, NEPA Handbook, pg. V-1 ("BLM Handbook").

20. The threshold question in a NEPA case is whether a proposed agency action may "significantly affect" the environment, thereby triggering the requirement to prepare an EIS. See 42 U.S.C. § 4332(2)(C). See also Blue Mtns. Biodiversity Project, 161 F.3d at 1212. An agency may first prepare an Environmental Assessment (EA) to decide whether the environmental impacts of the proposed action are significant enough to require preparation of an EIS. An EA "briefly provide[s] sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact [FONSI]." 40 C.F.R. § 1508.9.

21. If an agency decides not to prepare an EIS, it must provide a "convincing statement of reasons to explain why a project’s impacts are insignificant." Blue Mtns. Biodiversity Project, 161 F.3d at 1212. The agency must show that it has taken a "hard look" at the environmental impacts of the proposed action. Id., 161 F.3d at 1211; Nat’l Parks & Conservation Ass’n. v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001)("NPCA"); Wetlands Action Network v. U.S. Army Corps of Eng., 222 F.3d 1105, 1114 (9th Cir. 2000).

22. In determining whether to prepare an EIS as part of the NEPA planning process, an agency must consider the scope and the significant issues to be analyzed under a proposal. See 40 C.F.R. § 1501.7(a)(2). "Scope" consists of both cumulative actions ("which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement") and connected actions ("which means they are closely related and should therefore be discussed in the same impact statement"). Id. at § 1508.25(a)(1) & (2). In determining whether a proposed action will have a significant effect on the environment, an agency must consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts." Id. at § 1508.27(b)(7). If several actions have a cumulative environmental effect, "this consequence must be considered in an EIS." Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372, 1378 (9th Cir. 1998) (internal quotes omitted).

23. An EIS must be prepared whenever "a federal action is ‘controversial,’ that is, when ‘substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor,’ . . . or there is ‘a substantial dispute [about] the size, nature, or effect of the major federal action.’" NPCA, 241 F.3d at 736, citing Idaho Sporting Congress v. Thomas, 137 F. 3d 1146, 1149 (9th Cir. 1998). "A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI, casts serious doubts upon the reasonableness of an agency’s conclusion." NPCA, 241 F.3d at 736.

24. Further, "[a]n agency must generally prepare an EIS if the environmental effects of a proposed agency action are highly uncertain." NPCA, 241 F.3d at 731, citing Blue Mtns. Biodiversity Project, 161 F.3d at 1213. "Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data . . . , or where the collection of data may prevent ‘speculation on potential effects.’" NPCA, 241 F.3d at 732, citing Sierra Club v. United States Forest Serv., 843 F. 2d 1190, 1195 (9th Cir. 1988).

Federal Land Policy and Management Act

25. The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq., is BLM’s basic "organic act" for management of the public lands under the agency’s administration. FLPMA requires BLM to manage the public lands consistent with "principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). This means that the BLM must "take into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values." Id., § 1702(c).

26. FLPMA’s multiple use/sustained yield mandate further requires that BLM manage the public lands and resources "without permanent impairment" of the quality of the environment. Id. FLPMA also provides that BLM "shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the [public] lands." Id., § 1732(b) (emphasis added).

27. Under FLPMA, the BLM must develop land use plans for the public lands under its control. See 43 U.S.C. § 1712.

28. The BLM is required to "manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed . . . under section 1712." 43 U.S.C. § 1732.

29. All resource management decisions made by the BLM must conform to the approved land use plan. 43 C.F.R. § 1610.5-3(a).

30. To conform with a land use plan, a resource management decision "shall be specifically provided for in the plan, or if not specifically mentioned, shall be clearly consistent with the terms, conditions, and decisions of the approved plan." 43 C.F.R. § 1601.0-5.

31. If a proposed action is not clearly consistent with the land use plan, BLM must amend the plan, complying with NEPA and allowing for public participation. See 43 C.F.R. §§ 1610.5-3, 1610.5-5.

The Great Basin and Pinyon-Juniper Ecosystem

32. The Great Basin comprises a series of mountain ranges and basins centered in north/central Nevada, unique in the American West because they do not drain to any ocean.

33. The Great Basin is divided into four (4) primary vegetation zones, one of which is the "Pinyon-juniper" zone. The Pinyon-juniper zone is dominated by pinyon pine and juniper woodlands, and also includes big sagebrush, snakeweed, rabbit brushes and serviceberries. Pinyon-juniper woodlands occupy a vast portion of the Great Basin ecosystem, including over 56 million acres in the western United States. Pinyon-juniper woodlands are currently recolonizing and regenerating in areas within its native range, from which they were eliminated in the recent past due to human disturbances and activities (such as land development and clearing).

34. It is the official policy of the State of Nevada to "protect the single-leaf pinon pine, the official STATE TREE." See Nevada Rev. Stat. § 527.240.

35. Pinyon-juniper woodlands can be managed for tree products such as fuel, fence posts, resins, and pine nuts. Production of these resources requires healthy functioning of whole ecosystems, providing economic incentive for sustainable ecological practices. Management of woodlands for nut production may yield 100 times more income than will management for livestock forage, and both activities can be permitted on the same land simultaneously.

36. In Nevada, recent pine nut harvesters have averaged approximately 70-250 pounds per acre of Pinyon-juniper woodland. The average price for a pound of pine nuts from 1988-1992 was $6.00 per pound. An acre of Pinyon-juniper forest, therefore, can yield between $420-1500 per acre in pine nuts.

37. Comparatively, in the greater Great Basin ecosystem, it takes from 10 to 100 acres of Pinyon-juniper forest to produce 1 animal unit month ("AUM") of forage for livestock grazing, depending upon the age and condition of the stand. The value of an AUM is currently $1.35. Thus, an acre of Pinyon-juniper woodland used for livestock forage has an income rate of between $0.0135 and $0.135.

38. Pinyon-juniper woodlands provide shelter and forage for numerous species of wildlife, some of which are "obligate" to these woodlands, such as pinyon mice, woodrats, and pinyon jays, which have evolved a complex interdependence on the pinyon pine. These forests have value as habitat for several large mammals such as mule deer, white-tailed deer, pronghorn, desert bighorn sheep, elk, wild horses, mountain lions, and bears. Gray foxes, bobcats, coyotes, weasels, skunks, badgers, and ringtails search for prey within Pinyon-juniper woodlands. Pinyon-juniper forests are also important wintering areas for Clark's nutcrackers. The quantity and variety of species using the Pinyon-juniper woodlands changes with succession.

39. Many species rely on the pinyon seed for sustenance, including black bears, desert bighorn sheep, Clark's nutcrackers, Steller's jay, pinyon jays, scrub jay, deer, Pinyon mice, deer mice, woodrats, squirrels, and chipmunks. Many of these animals cache seeds for winter use, and such caches are critical for regeneration of single leaf pinyon. Mule deer will also eat pinyon foliage, using the foliage moderately in winter, spring, and summer. The inner bark is a major food of porcupines, and is also eaten by squirrels, raccoons, rabbits, ringtails, coyotes, and gray foxes.

40. Single leaf pinyon removal and woodland conversion projects may increase invasion of undesirable exotic species such as cheatgrass at the expense of the more desirable native forage species.

41. On July 16, 2001, BLM issued two nearly identical draft EAs for the Proposed Actions, one entitled the "Mount Wilson Guest Ranch Community Urban Interface Project," and the second called the "Ely Urban Interface Project."

42. Plaintiffs were provided only a brief period in which to comment on these Proposed Actions, and did not receive adequate notice about the scope, intensity and likely effects of the Proposed Actions. Nevertheless, Plaintiffs CIHD and American Lands submitted comments to BLM about the inadequacies of the draft EAs and expressing their concerns about the likely adverse environmental impacts of the Proposed Actions.

43. On August 3, 2001, BLM, by and through the Eastern Nevada Landscape Coalition, solicited contractor bids on both the Mt. Wilson and Ely Urban Interface Projects, even though NEPA analysis and decision-making was not completed for either project.

44. On August 29, 2001, BLM issued a "Finding of No Significant Impact" ("FONSI") and "Decision Record" ("DR") on the Mount Wilson Guest Ranch Community Urban Interface Project, and a nearly identical FONSI/DR for the Ely Urban Interface Project.

45. By issuing these FONSIs and DRs, BLM has determined not to proceed with any EIS for either or both projects. BLM has asserted that the Mt. Wilson EA is "tiered" to its 1983 Schell Management Framework Plan ("MFP") EIS, despite the fact that such EIS is outdated and does not address the issues raised by the Proposed Actions.

46. The Mt. Wilson Guest Ranch Community Urban Interface Project Environmental Assessment, EA No. NV-040-01-067 ("Mt. Wilson EA"), proposes the felling and chipping of a Pinyon-juniper forest on 22,000 acres (approx. 34 sq. mi.) of BLM-administered land in the general vicinity of the 760-acre privately owned Mount Wilson Guest Ranch Community, south of Ely. The public lands subject to the Proposed Actions lie on the west-facing slopes of Mount Wilson, at elevations ranging from 5,987 to 7,024 feet.

47. The Ely Urban Interface Project EA, EA No. NV-040-01-066) ("Ely EA"), proposes the felling and chipping of a Pinyon-juniper forest on approximately 9,400 acres of BLM and U.S. Forest Service ("USFS") administered lands extending 13 miles south along the lower slopes of the eastern side of the Egan Range, south of Ely. The Ely EA Proposed Action area constitutes over 14 square miles and the private property interface is restricted to the extreme northern portion of the area.

48. The projects would mechanically thin and chip an upland pinyon and juniper forest, leaving behind a wholly artificial "mosaic" of plant communities that BLM terms "rangeland," "savanna-transition," and "woodland." "Rangeland" and "savanna-transition" would be thinned to between zero and 20 trees per acre, and "woodland" would be thinned to 20-60 trees per acre

.

49. The Proposed Actions call for the complete removal of all trees within all drainages across nearly 50 square miles with the project areas.

50. BLM plans on employing 30-ton track-mounted feller-buncher machines to fell the trees, and self-propelled 30-ton whole tree chippers will then chip the trees. Both the feller-bunchers and chippers will travel cross-country throughout the project areas. Trees will be removed from slopes up to a 50% grade on all BLM-administered lands, and up to a 30% grade on USFS-administered lands.

51. The wood chips will be spread on the surface of the land to "an average depth of two inches" across the entire project area, an area totaling almost 50 square miles. BLM proposes to spread approximately five (5) to fifteen (15) tons of chipped pinyon and juniper trees per acre, totaling between 315 to 945 million pounds of chips across the entire project area.

52. Both the Mt. Wilson and Ely EAs are premised on the unsubstantiated proposition that large-scale clearing of a pinyon-juniper forest is required to protect small areas of private property against the threat of catastrophic fires.

53. The proposed actions will significantly affect the environment in numerous respects, which the nearly identical EAs fail to address in any meaningful way. The deficiencies and omissions in the EAs include:

a. the failure to provide site-specific information on forests, forest structure, other vegetation characteristics, soils, livestock grazing impacts, and overall watershed health;

b. the failure to discuss the ecological implications, including the impacts on native herbaceous vegetation, microbiotic crusts, soil-dwelling or burrowing animals, ground-nesting or shrub-nesting birds, and virtually all native biota, of nearly completely denuding almost 50 square miles of forest and spreading wood chips to an average depth of two (2) inches across the entirety of the project areas—i.e., an average of 5 to 15 tons of wood chips per acre;

c. the failure to discuss and assess the fire risks and ecological implications associated with spreading wood chips to an average depth of two (2) inches over 34 square miles within an arid environment;

d. the failure to discuss the effects of the proposed actions on a land area already depleted by past environmentally harmful land management actions including livestock grazing and past wood-cutting or other vegetation removal;

e. the failure to discuss the effects of extensive cross-country travel by heavy equipment (feller-bunchers and chippers) each weighing as much as 35 tons each, including soil compaction, destruction of microbiotic crusts, and disruption of soil-dwelling and burrowing animals;

f. the failure to identify the method(s) to be employed to identify and preserve old-growth trees within the project area;

g. the failure to identify the method(s) by which the specific trees-per-acre in each type of plant community was determined;

h. the failure to address in any detail the effects of implementing the proposed actions on alternative uses of the land, including the burgeoning commercial enterprise of collecting and selling pine nuts, recreational uses, and other economic and non-economic uses;

i. the failure to discuss the need to deforest 34 square miles of public lands in the name of "protecting" approximately 1.2 square miles of private land, a proposition which has no support in modern science;

j. the failure to address the cumulative impacts of the proposed action in conjunction with other related, connected actions in the planning area, in particular the proposed massive, landscape alteration of the 8.5 million acres within the Ely BLM District; and

k. the failure to adequately discuss a range of alternatives to the Proposed Actions that meet the stated need and purpose.

54. The presence of these substantial impacts and unanswered questions about the Proposed Actions means that, as a matter of law under NEPA and its implementing regulations, BLM should have prepared a full EIS for the proposals; and renders arbitrary and capricious the FONSIs and DRs issued by BLM for the projects.

55. Further, the Proposed Actions are both highly controversial and highly uncertain. BLM identifies no previous, similar projects that distribute between five (5) and fifteen (15) tons of wood chips per acre, or any justification for creating wholly artificial woodland communities. BLM identifies no studies that illustrate the likely effect of such an action, and makes no claim to understand the impacts of spreading wood chips.

56. The Proposed Actions, however, represent only a fraction of the radical land alterations that BLM is planning throughout the Ely District. Under the auspices of the Great Basin Restoration Initiative, BLM's Ely Field Office has taken a leadership role in proposing to dramatically alter the existing communities of plants and animals across nearly 10 million acres of public land within the Ely District, alone. Working by and through the Eastern Nevada Landscape Project and Coalition, which is an implementation of the Great Basin Restoration Initiative, BLM’s Ely Field office has proposed the mechanized treatment—using feller-bunchers, chainings and prescribed burns—of nearly six (6) million acres of pinyon-juniper woodlands, and 2.5 million acres of shrub-steppe community.

57. Upon information and belief, the Proposed Actions will likely establish a precedent for the manner in which BLM both treats the expansive Pinyon-juniper woodlands of the Great Basin region, and the manner in which BLM uses its millions of dollars of appropriations under the National Fire Plan and other initiatives, including both the Eastern Nevada Landscape Restoration Coalition and Great Basin Restoration Initiative.

58. Subsequent to the implementation of the Proposed Actions, if allowed to proceed, the public lands subjected to the Proposed Actions will:

a. Have no or little value relating to recreation, wildlife habitat and forage, pine nut harvesting, timber, fuel, natural scenic beauty, scientific purposes, and historic and cultural value, and the Proposed Actions will permanently impair the productivity of the land and the quality of the environment;

b. Become unavailable for periodic adjustments in use to conform to changing needs and conditions because the entire area will become essentially desertified; and

c. Be devoid of annual or periodic output of any and all renewable resources.

59. On September 27, 2001, Plaintiffs filed with the Interior Board of Land Appeals ("IBLA") Notices of Appeal, Statements of Reason and Petitions for Stay concerning both the Mt. Wilson EA and Ely EA.

60. On March 22, 2002, the IBLA denied Plaintiffs’ Petitions for Stay. Accordingly, Plaintiffs have fully exhausted all available and necessary administrative remedies before bringing this action., as provided in BLM’s appeals regulations. 43 C.F.R. § 4.21. Requiring Plaintiffs to exhaust any further administrative remedies or appeals would be futile, would not afford Plaintiffs adequate relief, and would cause Plaintiffs and the environment to suffer irreparable harm as the Proposed Actions will be implemented.

61. Defendants’ proposal to clearcut nearly 50 square miles of existing Pinyon-juniper forests, chip the felled trees, and spread between 315 and 945 million pounds of wood chips to an average depth of two (2) inches across the entire project area, in violation of NEPA and FLPMA, will result in irreparable ecological degradation of the Mt. Wilson and Ely project areas. As a result, Plaintiffs will suffer irreparable injury and harm to their interests

.

62. Plaintiffs have been informed and advised by BLM that the Mount Wilson Guest Ranch Community Urban Interface Project and the Ely Urban Interface Project are on a fast track, and the felling and chipping of Pinyon-juniper forests, and spreading the chips across nearly 50 square miles of denuded forest, is imminent.

63. Plaintiffs have no adequate remedy at law for the Defendants’ violations as alleged herein. Without immediate injunctive relief ordering Defendants to comply with the procedural requirements of NEPA and the substantive requirements of FLPMA, Plaintiffs will suffer irreparable harm. Accordingly, Plaintiffs pray for judicial relief as set forth below.

FIRST CLAIM FOR RELIEF:

VIOLATIONS NEPA AND APA

64. Plaintiffs reallege and incorporate by reference the allegations of all preceding paragraphs.

65. This First Claim for Relief challenges Defendants’ violation of NEPA in failing to prepare an Environmental Impact Statement for the Proposed Actions, and in failing to undertake a thorough and objective assessment of the environmental implications of the Proposed Actions. This claim is brought pursuant to the judicial review provisions of the APA, 5 U.S.C. § 706.

66. NEPA requires all federal agencies to undertake a thorough and public analysis of the environmental consequences of proposed federal actions, including a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA also requires cumulative analyses of the likely environmental impacts of proposed actions. See 40 C.F.R. §§ 1508.7; 1508.25(a)(2). Such analyses must include consideration of a reasonable range of alternatives to a proposed action. 42 U.S.C. § 4332(2)(C)(iii) (alternatives); see also 40 C.F.R. § 1502.14 (alternatives including the proposed action)

.

67. The BLM violated NEPA and the implementing NEPA regulations in multiple respects through issuance of the FONSIs and DRs for the Mt. Wilson and Ely EAs, including:

a. Failure to prepare one or more EISs addressing the proposed actions and alternatives to them;

b. Failing to take the requisite "hard look" at all the significant and potential environmental impacts of the proposed actions in the EAs;

c. Failure to fully consider the cumulative effects of the proposed action in association with past, present and reasonably foreseeable future actions, including the planned landscape alteration of the pinyon-juniper forests within the Ely BLM district in cooperation with the Eastern Nevada Restoration Project;

d. Failing to consider an adequate range of alternative courses of action that meet the proposals’ stated need and purpose.

68. BLM’s failure or refusal to undertake lawful and proper environmental review as required by NEPA is arbitrary, capricious, an abuse of discretion, not in accordance with law and/or constitutes agency action unlawfully withheld or unreasonably delayed under the APA, which has caused or threatens serious prejudice and injury to Plaintiffs’ rights and interests.

WHEREFORE, Plaintiffs pray for relief as set forth below.

incorporate by reference the allegations of all preceding paragraphs.

70. This Second Claim for Relief challenges Defendants’ violation of the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and its implementing regulations, with respect to approval of the Proposed Actions. This claim is brought pursuant to the judicial review provisions of the APA, 5 U.S.C. § 706.

71. FLPMA states that the BLM shall manage the federal public lands for purposes of "multiple use and sustained yield." 43 U.S.C. § 1701(a)(7). FLPMA states:

(c) The term ''multiple use'' means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.

***

(h) The term ''sustained yield'' means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.

43 U.S.C. § 1702(c) and (h).

72. FLPMA mandates that the BLM "shall take any action necessary to prevent unnecessary or undue degradation of the [public] lands." Id., § 1732(b).

73. FLPMA and its implementing regulations further mandate that BLM must develop land use plans for the public lands under its control, see 43 U.S.C. § 1712, and all resource management decisions made by the BLM must conform to the approved land use plan. See 43 C.F.R. § 1610.5-3(a).

74. Upon implementation of the Proposed Actions, BLM will violate FLPMA, 43 U.S.C. § 1701 et seq., and federal implementing regulations in multiple respects. Such FLPMA violations include, but are not limited to, the failure to manage public land in a manner that will:

a. Permit the on-going commercial harvest of pine nuts, and allow present and future use of lands for scientific, recreational, commercial, fuel, aesthetic, inspirational, educational, cultural and wildlife habitat purposes;

b. Allow certain latitude for periodic adjustments in the use of the lands subject to future needs and conditions;

c. Avoid permanent impairment of the productivity of the lands and the quality of the environment;

d. Avoid unnecessary and undue degradation of the lands;

e. Foreclose the achievement and maintenance of annual or periodic output of renewable resources, including pine nuts, timber, and forage on the lands subject to the Proposed Actions; and

f. Avoid inconsistency with the Egan and Schell Management Framework Plans, the applicable "land use plans" for the affected areas under FLPMA.

75. BLM’s failure or refusal to manage these public lands subject to the FLPMA mandates, failure to prevent unnecessary and undue degradation of these federal lands subject to its jurisdiction, and permitting of actions which are inconsistent with its own Management Framework Plans is arbitrary, capricious, an abuse of discretion, not in accordance with law and/or constitutes agency action unlawfully withheld or unreasonably delayed under the APA, which has caused or threatens serious prejudice and injury to Plaintiffs’ rights and interests.

WHEREFORE, Plaintiffs pray for relief as set forth below.

PRAYER FOR RELIEF

Plaintiffs respectfully request that the Court grant the following relief:

A. Order, declare, and adjudge that Defendants’ Proposed Actions in the Mount Wilson Guest Ranch Community Urban Interface Project EA and the Ely Urban Interface Project EA are unlawful and violate NEPA, FLPMA, and/or the APA;

B. Reverse and remand the FONSIs and DRs for the Mount Wilson Guest Ranch Community Urban Interface Project and the Ely Urban Interface Project;

C. Issue such temporary restraining order(s) and/or preliminary injunction(s), as hereafter requested by Plaintiffs, barring Defendants from implementing the Proposed Actions until such time as Defendants have complied with the procedural requirements of NEPA and the substantive requirements of FLPMA;

D. Award Plaintiffs their reasonable costs, litigation expenses, and attorney’s fees associated with this litigation pursuant to the Equal Access to Justice Act and all other applicable authorities; and

Grant such further relief as the Court deems just and proper.

Dated this ___ day of April 2002.

Respectfully submitted,

______________________________

Todd C. Tucci

Attorney for Plaintiffs

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