Linda Goodman, Regional Forester Scott Conroy, Forest Supervisor

Appeals Deciding Officer, Region 6 USFS Siskiyou/Rogue River NF

ATTN: 1570 Appeals 333 W. 8^th Street

P.O. Box 3623 P.O. Box 520

Portland, OR 97208-3623 Medford, OR 97501-0209

Dear Reviewing Officer:

Friends of Living Oregon Waters (FLOW) hereby files this Notice of Appeal of the Decision Notice and FONSI for the Petite Placer Mining Plan of Operations, pursuant to 36 C.F.R. § 215.

Pursuant to 36 C.F.R. §215.14(b), the Appellant provides the following information:

(1) This is a Notice of Appeal filed pursuant to 36 C.F.R. 215.

(2) The name, address and telephone numbers of the Appellant is:

Friends of Living Oregon Waters (FLOW)

Attn: Joe Serres

P.O. Box 2478

Grants Pass, OR 97528

541-846-0159

(3) The Appellants object to the decision to implement Alternative D with modifications from the Environmental Assessment prepared for the decision of the Petite Placer Mining Plan of Operations, Siskiyou National Forest, made by Scott Conroy, Forest Supervisor, dated March 17, 2003.

The deadline for postmarking the appeal is May 8, 2003 and this appeal was sent via certified mail-return receipt to the Appeals Deciding Officer and Forest Supervisor on the morning of May 8, 2003.

(4) The Appellants’ objections and issues:

Appellants request a remand of the Decision Notice, and a stay of all mining or sampling operations until a valid final Environmental Impact Statement is prepared that is in conformity with existing law.

(5) The Forest Service has clearly failed to comply with the National Environmental Policy Act (NEPA) and the National Wild and Scenic Rivers Act.

Friends of Living Oregon Waters (FLOW), P.O. Box 2478, Grants Pass, Oregon, 97528, is an IRS-determined 501(c)3 organization comprised of hundreds of individuals dedicated to advocating for the protection and restoration of Oregon’s waters. FLOW uses legal oversight and public education to help protect Oregon’s rivers, watersheds, lakes, wetlands, and groundwater from the impacts of pollution and development. The Petite Placer Mining Plan of Operations adversely affects FLOW members use and enjoyment of the Illinois River in which FLOW members hike, raft, swim, photograph, view wildlife and birds, study, and find solitude.

FLOW has an organizational interest in providing its members and the public with the information that NEPA requires the Forest Service to compile and disclose in environmental documents. Members of FLOW have a right to know the environmental costs and tradeoffs involved in resource management decisions. The Appellant has a right under NEPA to review and comment upon proposals for major federal actions that may significantly effect the environment, such as the approval of this project.

FLOW is a "party to the case" as comments were provided for the Environmental Assessment. The interests of the Appellant and their members have been adversely affected by the Siskiyou National Forest’s failure to prepare an adequate NEPA document for this decision. FLOW therefore appeals, pursuant to 36 C.F.R. 215, the decision to proceed with this project, the Environmental Assessment and the Finding of No Significant Impact (FONSI).

A full stay is necessary to prevent irreversible environmental damage, damaging the interests of FLOW members and to prevent unnecessary expenditure of taxpayer money on this project.

When environmental injury is "sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Production Co. v. Village of Gambell, U.S. 545 (1987). There is evidence of the Petite Placer Mining Plan of Operations immediate adverse impact on the recreational interests of FLOW members and the adverse impacts that the project will have on the plant, fish, and wildlife species and the physical and chemical integrity of project area riparian areas. On the other side of the balance there are not any countervailing equities that would suggest a stay is inappropriate, or even counterproductive. Furthermore, we are not aware of any irreparable injury to third parties that would be caused by the entry of a stay against development of this project. The only interest on the other side of the balance is the income derived from mining activity implementing the Petite Placer Mining Plan of Operations.

There are substantial questions as to whether the Petite Placer Mining Plan of Operations may have a significant effect on the environment. In this circumstance, the Forest Service must prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C).

The Petite Placer Mining Plan of Operations would have a significant effect in its intensity. Intensity is evaluated in part by the "unique characteristics of the geographic area, such as proximity to… wild and scenic rivers." 40 C.F.R. § 1508.27(b)(3). The EA failed, however, to adequately analyze the mining operation in light of the proposed activity within the wild and scenic river corridor of the Illinois River. The Petite Placer Mine would be located within the wild and scenic river corridor but no part of the EA evaluates the significance of the operations in light of its activity within the corridor. An EA is illegal if it fails to analyze significant environmental concerns to form the basis for a "fully informed and well-considered" decision that an EIS is not required. Jones v. Gordon, 792 F.2d 821, 828 (9^th Cir. 1986); Foundation on Economic Trends v. Heckler, 756 F.2d 143 (D.C. Cir. 1985).

A federal action is significant where it "is related to other actions with individually insignificant but cumulative significant impacts." 40 C.F.R. § 1508.27(b)(7). The consequence of several "actions [that] will have cumulative or synergistic environmental impacts… must be considered together." Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed. 2d 576 (1976). The EA did not adequately analyze cumulative effects of this mining plan of operation with future mining operations within the watershed or even within the same mining claim of 80 acres. The agency must perform a cumulative impact analysis that includes "other past, present, and reasonably foreseeable future actions." 40 C.F.R. § 1508.7. The EA also failed to analyze the cumulative effects of mining activities in conjunction with other activities in the watershed.

In Sierra Club v. Penfold, 857 F.2d 1307 (9^th Cir. 1988), the Bureau of Land Management prepared EAs before approving mining in four watersheds in Alaska that previously had had good water quality. After mining had commenced and water quality degradation resulted the district court entered a judgment ordering the BLM to halt the mining and prepare an EIS to address cumulative impacts and effects on fisheries. On review, the BLM concluded that the EAs were inadequate and did not challenge the district court’s judgment on that ground. 857 F.2d at 1320 n.18. For further comparative analysis note that Rogue River National Forest is preparing an EIS for an open-pit mine on Steamboat Mountain of similar size. An EIS is a reasonable and logical level of analysis for the proposed Petite Placer Mining Plan of Operations.

The Supervisor must perform a cumulative impact analysis that includes "other past, present, and reasonably foreseeable future actions." 40 C.F.R. § 1508.7 (1991)(emphasis added); Fritiofsen v. Alexander, 772 F.2d 1225, 1242 (5^th Cir. 1985). The EA fails completely to note or assess activities in the Illinois River watershed that will, in conjunction with the Petite Placer Mining Plan of Operations, cause a significant effect.

The EA mentions no past or present activities that have led to effects such as turbidity levels. The EA mentions no reasonably foreseeable activities in the watershed. Specifically, the EA fails to note or analyze the cumulative effects on ORVs of the proposed mining and planned timber sales, other mining projects, recreational impacts, Biscuit Fire erosion, Biscuit Fire salvage logging activity, and roadbuilding in the watershed. An EIS must be prepared to assess all of these impacts.

Approval of mining operations constitutes a significant federal action because it "threatens a violation of Federal, state, or local law… imposed for the protection of the environment." 40 C.F.R. § 1508.27(b)(10). By approving the Petite Placer Mining Plan of Operations without protecting the outstandingly remarkable values of the Illinois River the Siskiyou National Forest threatens a violation of the National Wild and Scenic Rivers Act. Further, the Environmental Analysis document was inadequate and has not met the substantive and procedural requirements set forth by the National Environmental Policy Act. In addition, the mining operation is planned within a riparian reserve and is not consistent with the Aquatic Conservation Strategy of the Northwest Forest Plan.

An environmental assessment is "a concise public document" that serves to "briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement." 40 C.F.R. § 1508.9(a)(1). The Supervisor must take a "’hard look’ at the potential environmental impacts" of the mining and "supply a convincing statement of reasons why potential effects are insignificant." Steamboaters v. F.E.R.C.U, 759 F.2d 1382 (9^th Cir. 1985).

The EA fails to demonstrate the effectiveness of mitigation measures. The EA must explain in advance exactly how certain measures will mitigate the impact of mining. LaFlamme v. F.E.R.C., 842 F.2d 1063, 1071 (9^th Cir. 1988), citing Jones v. Gordon, 792 F.2d 821, 829 (9^th Cir. 1986) (emphasis added). Although the EA appropriately identifies botany, water quality, fisheries, recreation and scenic quality as important values of the river, the impact of mining on river values is mitigated primarily through confining the area to be impacted. However, there is inadequate support to link those measures with the conclusion that the harm to river values will be "insignificant."

Mitigation measures and how they will actually be used on the ground with site-specific details are needed in this NEPA analysis. Courts have found that merely listing mitigation measures without site-specific discussion of how they will be really used is not legally sufficient. As stated in Neighbors of Cuddy Mountain v. United States Forest Serv.,137 F.3d 1372, 1338 (9^th Cir. 1998):

"The Forest Service’s perfunctory description of mitigating measures is inconsistent with the ‘hard look’ it is required to render under NEPA. ‘Mitigation must "be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated."’ Carmel-By-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1154 (9th Cir.1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). ‘A mere listing of mitigation measures is insufficient to qualify as the reasoned discussion required by NEPA.’ Northwest Indian Cemetery Protective Ass’n. v. Peterson, 795 F.2d 688, 697 (9th Cir.1986), rev'd on other grounds, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)."

As that Court held in a companion case, Idaho Sporting Congress v. Thomas,137 F.3d 1146, 1151 (9^th Cir. 1998):

The mitigation measures must be supported by data and site-specific information that shows they will be effective on preventing significant impacts.

The Illinois River is included under the Wild and Scenic Rivers Act as a protected component. The primary objectives of the Act are to preserve the free flow of component rivers and to protect the outstandingly remarkable values of the river that led to their designation. Siskiyou National Forest should "protect and enhance" the outstandingly remarkable values of the Illinois River as designated by Congress. These values include: recreation, scenic (visual quality), botany, water quality, and fisheries.

Under the Wild and Scenic Rivers Act, Siskiyou National Forest must administer the corridor of the Illinois River protected under the Act by protecting and enhancing its values. 16 U.S.C. § 1281(a)(1985). "Primary emphasis" must be given to "protecting [the river’s] esthetic, scenic, historic, archaeologic, and scientific features." Id. The Supervisor may permit activities in the corridor only if the activities do not "substantially interfere with public use and enjoyment of its values." Id. The Supervisor has failed to either protect or enhance the outstandingly remarkable values of the Illinois River. The mining threatens to impair recreational use of that section of the Illinois River corridor, scenic quality of the area, botany, water quality and fishery values of the Illinois River. The mining presents risk of sedimentation that may impair water quality and destroy fish habitat. As stated in the EA on page 28: "Under Alternative D, there would be a localized effect on sediment production due to ground disturbance from road improvements and excavation resulting in a short-term degradation of the relevant indicator sediment within the immediate project area."

Further, Alternative D (with modification) presents additional risk of water quality impacts by not requiring Road 4201-016 to be closed during the wet season. Allowing 4201-016 to be improved and then opened through the wet season will significantly increase use and risks of direct impacts to Illinois River water quality from off-road vehicles.

To prevent long-term erosion and degradation of water quality there should be an adequate reclamation plan currently in place. As of now there is no reclamation plan and the Supervisor should not have approved the project without such a plan in place. Even the Standard and Guidelines of the Northwest Forest Plan pertaining to mining express the intent that a reclamation plan be in place before a mining project is approved. As stated in MM-1 (a): "Require a reclamation plan, approved Plan of Operations, and reclamation bond for mineral operations within Riparian Reserves." The proposed Petite Placer Mine is within the Riparian Reserve of the Illinois River.

Moreover, the mining will substantially interfere with public use and enjoyment of the values of the Illinois River. Recreational use along the Illinois River is heavy and the increased truck traffic combined with the site impacts of the mining present a serious degradation of the recreation ORV as designated by Congress. Further, this excavation mine will significantly degrade the Scenic Quality ORV for the public use of the Illinois River. The Illinois River can offer peace and solitude for river visitors. The mining proposal will entail crushing machinery, excavating machinery, ore trucks and other disturbance in a Wild and Scenic River corridor. The mining will take place in the summer months when hikers, fishermen, rafters, plant enthusiasts, wildlife viewers, and others who enjoy the river corridor are in the area. The mining will interfere with and destroy public use and enjoyment of the natural beauty of this section of the Illinois River.

The Secretary of Agriculture has interpreted this section of the Act as stating a "nondegradation and enhancement policy for all designated river areas, regardless of classification." See U.S. Departments of Interior and Agriculture, National Wild and Scenic Rivers System; Final Revised Guidelines for Eligibility, Classification, and Management of River Areas ("Interagency Guidelines"), 47 Fed. Reg. 39454, 39458 (1982).

Simply stated, the Decision of the Supervisor is contrary to the explicit mandates of the Wild and Scenic Rivers Act and the National Environmental Policy Act. The EA describes in some detail certain Standards and Guidelines contained in the Siskiyou National Forest Land and Resource Management Plan, however, it fails to describe in detail the specific statutory and regulatory mandates of the Wild and Scenic Rivers Act and provides a completely inadequate analysis of the relation of the Wild and Scenic Rivers Act to the proposed action. The analysis included in the EA pertaining to the effects of the Petite Placer Mining Plan of Operations upon the Outstandingly Remarkable Values was grossly inadequate (page 32-33 of EA).

The EA fails to discuss adequately the range of conflicts between the proposed action and the objectives the Wild and Scenic Rivers Act. Rather, the EA is characterized by an overemphasis on the objectives of the 1872 Mining Law and certain general standards and guidelines set forth in the Siskiyou Land and Resource Management Plan applicable to mining. The EA completely fails to address the affirmative mandates of the Wild and Scenic Rivers Act.

The EA has an inadequate and too brief discussion of the impacts of the Petite Placer Mine on botanical values. The intent of the Wild and Scenic Rivers Act is to "protect and enhance" the outstandingly remarkable values for which the river was designated. The proposed mine site is located within the Eight Dollar Botanical Area. According to the Siskiyou Land and Resource Management Plan (IV-87), the management goal of the area is to "protect, preserve and enhance the exceptional botanical features of these areas." The Eight Dollar Mountain Area has over 250 species of documented native plants.

The area is known for providing unique plant habitat and according to page 30 of the EA, "most of the suitable ultramafic habitat for serpentine endemic species is intact." According to the Revised Biological Evaluation numerous sensitive plant species are known to inhabit the area including Macdonald’s rockcress, Howell’s mariposa lily, Oregon willow herb, Siskiyou fritillary, Elegant gentian, Purple-flowered rush lily, Slender meadowfoam, Howell’s microseris, Red-root Yampah, Siskiyou butterweed, and Western bog violet.

The EA discussion regarding the Petite Placer Mine impact on botanical values is not adequate and does not fairly represent the risk to impacts to botanical values. The issue to be decided by the Supervisor is whether or not the proposed Petite Placer Mining Plan of Operations "protects and enhances" the outstandingly remarkable values of the Wild and Scenic Illinois River (including botany). According to the EA’s discussion of the impacts to the Botanical ORV of the Illinois River: "All action alternatives (including the selected alternative) may retard the recovery of native vegetation. Vegetation removed from past mining would continue to recover naturally under Alternative A (No Action). None of the action alternatives are expected to have significant adverse effects on the botanical values within the Wild and Scenic River corridor." The statement "significant adverse effects" demonstrates the Supervisor’s lack of understanding of the Wild and Scenic Rivers Act. The Act requires the level of analysis to be whether the proposed action "protects and enhances" the botanical value of the Illinois River. The issue is not whether the effects are moderately adverse or significantly adverse. The legal requirement is whether the action "protects and enhances"- not the degree of "adverse effects".

We must stress again that an Environmental Assessment is completely inadequate to assess the type of operation proposed for the corridor of the Illinois Wild & Scenic River. If the agency proceeds with further evaluation of the Petite Placer Mine, it should be in the context of an Environmental Impact Statement.

Friends of Living Oregon Waters (FLOW) ask that the Regional Forester reverse the decision to implement the Petite Placer Mining Plan of Operations and remand the project back to the District Ranger with orders that a full Environmental Impact Statement is prepared that complies fully with the National Environmental Policy Act and the National Wild and Scenic Rivers Act.

Respectfully submitted,

Joe Serres, J.D., M.B.A.

Co-Director, FLOW