HomeMy WebLinkAbout2012-0320 Documents Submitted at Mtg Julie Kay Norman V�U Yvk
S96 Helman
Ashland,OR 97S20
juhe(a juliekaynorman.com
March 20, 2012
David H. Lohman, City Attorney
City of Ashland, Oregon USA
RE: Next Steps for Oversight of Mt. Ashland Ski Area Expansion
Dear David,
Here are some documents that frame the ongoing discussion about what role the
City should play in the planning of the recreational ski area n top of Mt. Ashland.
It has been a rocky road for many. —TkL �,0WA� .
Most recently litigation has played a major role. I am a member of the Rogue
Group Sierra Club, and as a volunteer I have been tracking this issue for years.
At your convenience, I could give you a briefing.
We need your guidance on this matter.
Thank you and welcome to town,
Norman
j�T��CMs✓� . m � � � 1F � RESPONSe To
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Marianne Dugan,OSB# 93256
259 E. 5th Ave.. Suite 200-D
Eugene, OR 97401
Tel. (541)338-7072
Fax no. (866) 650-5213
E-mail address mdugan@mdugan.com
Chris Winter, OSB# 98435
Crag Law Center
917 SW Oak St.,Suite 417
Portland, OR. 97205
Tel. (503)525-2725
Fax, no. (503) 296-5454
E-mail address chris@a,crag.org
Attomevs for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
OREGON WILD, an Oregon nonprofit corporation; Case No. 05-3004-CO(Lead Case)
SIERRA CLUB,a California nonprofit corporation: CONSOLIDATED CASES
and GEOS INSTITUTE,' an Oregon nonprofit corporation;
Plaintiffs. PLAINTIFFS'RESPONSE TO
DEFENDANTS' "NOTICE OF
V. SATISFACTION OF TERMS OF ,
INJUNCTION OR. IN THE
KENT CONNAUGHTON.z Regional Forester, Pacific ALTERNATIVE; MOTION TO
rvn:ihwest Reeion; and i iN1 T ED ST A e S FOR E'.ST DISSOLVE INJUNCTION
SERVICE, a federal a-oencv.
Defendants. ORAL ARGUMENT
--EV_ur-n LED
MT. ASHLAND ASSOCIATION. dba SKI ASHLAND.
Defendant-Intervenor.
iNm.Itrai Nego4;r.^.25!:nt l^..^.:1 nqq cnnnirt- as^.;^.:2:,. . ::nn vv ti,-V a^..^.
Headwaters has chaneed its name to Geos Institute. V
2 Linda GnOdmin_ oreviousiv named�nc a defendant. is no jonoer Reoionli Fomster,
�.
('qtr Prnr 7 i,tt
P.AOF t - PI..A!NTIFFS' P.FSP0NSF TO DEFENDANT 4' °NO T If'FiMOTION"
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
A. Effect of Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
B. NFMA Claims ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .I. . . . . . . . . . 2
1. The APA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. NFMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. DEFENDANTS'THEORY THAT THEY CAN SIMPLY GIVE"NOTICE" OF
COMPLIANCE WITH THE INJUNCTION IS GROUNDLESS: THEY MUST WAIT
UNTIL A COURT HAS DISSOLVED THE INJUNCTION . . . . . . . . . . . . . . . . . . . . . . 4
Ill. THE SUPPLEMENTAL UPPLEMENTAL RECORD OF DECISION DOES NOT COMPLY WITH THE
NINTH CIRCUITS ORDER ENJOINING THE PROJECT . . . . . . . . . . . . . . . . . . . . . . 6
A. The SEIS Does Not Comply with the Ruling Regarding the Pacific Fisher . . . . . 7
I. Pacific fisher and the Rogue River LRMP . . . . . . . . . . . . . . . . . ... . . . .. 7
2, The Ninth Circuit's ruling regarding Pacific fisher . . . . . . . . . . . . . . . . . . 8
3. The legal test for when "prow" analysis is allowed has not changed since
the Ninth Circuit issued its opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4. Defendants'new habitat information is insufficient to serve as a"proxy"
for determining the viability of the Pacific fisher . . . . . . . . . . . . . . . 11
a. Defendants relied on canopy cover and live tree diameter as a
"proxy" for Pacific fisher habitat . . . . . . . . . . . . . . . . . . . . . . . . . 12
b. Undisputed scientific evidence in the record shows that Pacific
fisher selects sub-canopy forest structure for denning, resting, and
forage behaviors essential to viability . . . . . . . . . . . . . . . . . . . 13
c- Defendants i--nored sub-canor)v forest structure in its "oroxv" for
P
acilic iishley- re-suning in exaggeration of nabnaL and population
PAGE ii-PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE,/'MOTION"
size, and understatement of project effects to local and total
populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. The SEIS Does Not Comply with the Ruling Regarding the Northwest Forest
Plan's Aquatic Conservation Strategy (ACS) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. Riparian Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. "Landslide Hazard Zones" (LHZs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. The Ninth Circuit's ruling regarding Riparian Reserves . . . . . . . . . . . . . 18
4. Defendants have not demonstrated that the Supplemental Record of
Decision complies with the ACS regarding Riparian Reserves . . . . . . . 19
a Defendants relied on mitigation and planned restoration as a
substitute for preventing habitat degradation in Riparian Reserve20
b. Defendants failed to ensure compliance with Aquatic Conservation
Strategy Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. The SEIS Does Not Comply with the Ruling Regarding the MS-22 Land
Designation in the Forest Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. The MS-22 designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2. The Ninth Circuit's ruling regarding MS-22 . . . . . . . . . . . . . . . . . . . . . . 36
3. Defendants failed to correct the violation regarding MS-22 lands . . . . . 36
IV. THIS COURT SHOULD ALLOW PLAINTIFFS TO AMEND THEIR EXISTING
COMPLAINT TO CHALLENGE THE SUPPLEMENTAL E1S . . . . . . . . . . . . . . . . . . 33
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
PAGE iii -PLAINTIFFS' RESPONSE TO DEFENDAi* TS'"NOTICE.IMOTION"
TABLE OF AUTHORITIES
CASES
Bellevue Manor Assocs. v. United States, 165 F.3d 1249(9th Cir. 1999) . . . . . . . . . . . . . . . . . . 2
Bowen v. American Hosp. Ass'n, 476 U.S. 610, 106 S. Ct. 2101 (1986) . . . . . . . . . . . . . . . . . . . 2
Clark v. Coye, 60 F.3d 600(9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059(9th Cir. 2004) . . . 11
Idaho Conservation League v. Mumma, 956 F.2d 1508(9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 4
Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) . . . . . . : . . . . . . . . . . . . . . 3,4
Idaho Sporting Congress v. Thomas, 137 F.3d 1146(9th Cir. 1998) . . . . . . . . . . . . :. . . . . . 3, 10
Inland Empire Public Lands v. U.S. Forest Service, 88 F.3d 754(9th Cir. 1996) . . . . . . . . . . . . 3
Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 3, 7, 11, 17, 32
Moon v. GMAC Mortg. Corp., 2008 U.S. Dist. LEXIS 90912 (W.D. Wash. 2008) . . . . . . . . . . 1
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mot. Auto. Ins. Co., 463 U.S. 29, 103 S.
Ct. 2856(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 33
Native Ecosystems Council v. Tidwell, CV 09-79-M-DWM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Native Ecosystems Council v. U.S. Forest Service, 428 Fad 1233 (9th Cir. 2005) . . . . . . . 10, 11
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1997) . . . . . . . . . . 3
Nicacio v. United States Immigration &Naturalization Serv., 797 F.2d 700(9th Cir. 1985) . . . 1
Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108(9th Cir. 2004) . . . . . . . . . . 2
Oregon Natural Resources Council Fund (ONRC)v. Goodman, 505 F.3d 884
(9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Pacific Coast Federation v. Nat. Marine Fisheries, 482 F. Supp. 2d 1248 (W.D. Wash.
2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PAGE iv-PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
Pac. Coast Fed'n of Fishermen's Assns, Inc- v- Nat'l Marine Fisheries Serv-,265 F.3d 1028(9th
Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . — - - - - - - - - - . . . . . . . . . . . . . . . . . . . . . . . . . 26
PCFFA v. NMFS II, 71 F. Supp. 2d 1063 (W.D. Wash 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rufo v. Inmates of Suffolk County Tail, 502 U-S. 367 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sharp v. Weston,233 F.3d 1166 (91h Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4
United States v. Swift&Co., 286 U.S. 106(1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
U.S. for Use of Atkins v. Reiten, 313 F2d 673 (9th Cir. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . 34
STATUTES
5 U.S.C. 706 . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
16 U.S.C. 1600-87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
16 U.S.C. 1604(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
16 U.S.C. 1604(g)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10
16 U.S.0- 1 604(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
RULES AND REGULATIONS
64 Fed. Reg. 55228, 55229(Oct. 12, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
74 Fed. Reg. 67,059, 67,074,col. 1 (Dec. 18,2009) (codified at 36 C.F.R. 219.35, App- B . . . . 3
Fed. R. Civ- Pro. 15(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
PAGE v -PLAINTIFFS' RESPONSE TO DEFENDANTS'"NOTICE/MOTION"
INTRODUCTION
Plaintiffs hereby submit their response to defendants' "Notice of Satisfaction of Terms of
Injunction or,in the Alternative, Motion to Dissolve Injunction." As explained herein,
defendants'theory that they can simply give"notice" of compliance with the injunction has no
legal authority. They must wait until a court dissolves the injunction.
Defendants have not demonstrated that they have complied with the requirements set ,
forth in the Ninth Circuit's order enjoining the project. Therefore,dissolution of the injunction is
unwarranted.
There are additional problems with the new decision, due to new information that has
developed since the Ninth Circuit issued its injunction; therefore plaintiffs request that the Court
allow them to file a supplemental complaint addressing those issues,and maintain the injunction
until those issues can be addressed on the merits.
I. STANDARD OF REVIEW
A. Effect of Injunction
"A court)vhich issues an injunction retains jurisdiction to modif,the tenors of the
injunction if a change in circumstances so requires." Nicacio v. United States Immigration&
Naturalization Serv.. 797 F.2d 700, 706(9th Cir. 1985). See also Clark v Cove_ 60 F.3d 600.
606(9th Cir. 1990 t"a federal court which has imposed an injunction also retains the power to
susuend or modify it".).
A oarty seekine dissolution of an injumction"bears the burden of estabLshing that a
Stgmficant change to fads or law warrants revision or dissolution of the intnlctidn." sharp y.
Weston_ 233 F.3d 1166. 1170 (9th Cir. 2000). "A siotuficant change is one that. pertains to the
underlving reasons for the injunction." Moon v: GNL'C Mort g_ Corp.- 2008 U.S- Dist. LENS
PAGE I -PLAIN FIFFS'R ESPONSE TO DEFENDANTS' "\OTICEYMOTION"
90912,5-6(W.D. Wash. 2008). Moreover, the moving party must show that its proposed
modification is "suitably tailored to the changed circumstance." Bellevue Manor Assocs. v.
United States, 165 F.3d 1249, 1255 (9th Cir. 1999)(quoting Rufo v. Inmates of Suffolk Comity
Jail, 502 U.S. 367, 393 (1992)). In "determining whether to modify or vacate a prior injunction,"
the Court "take[s] all the circumstances into account." Bellevue Manor Assocs, 165 F.3d at
1256.
B. NFMA Claims
1. The APA
The Court's review of the National Forest Management Act(NFMA)claims is addressed
within the framework of the Administrative Procedures Act(APA). Under the APA,this Court
must reject agency action that is not in accordance with law, or is without observance of
procedures required by law, or is "arbitrary and capricious." 5 U.S.C. 706. Although the
"arbitrary and capricious" standard of review applied in APA cases is deferential,the agency
must"articulate a satisfactory explanation for its action including a'rational connection between
the facts found and the choice made."' and this Court must"consider whether the decision was
based on a consideration of the relevant factors and whether there has been a clear error of
judgment." Motor Vehicle Mfrs. Assn of U.S.. Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
X9. 43. 103 S. Ct. 2856.2866-67 (1983) (citations omitted). "Agency deference has not come so
far that we will uphold regulations whenever it is possible to'conceive a basis' for administrative
action." Bo4ven v. American Hosp. Assn_ 476 U.S. bil). 026. 106 S. Ct. 2101. 2112(1986)
Reviewing courts must not mere!v "rubber-stanio administrative decisions.' Ocean Advocates v.
U.S_ Armv Coms of Engineers. 361 F.3d 1108. 1119(9th Cir. 20!A,). Under the Administrative
Procedures Act. the Court is to consider whether detend_nns decision "was based on a
PAGE 2 -PLAINTIFFS`RESPONSE TO DEFENDANTS' "NOTICE/NIOT1ON"
consideration of the relevant factors and whether there has been a clear error of judgment."
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149(9th Cir. 1998).
2. NFMA
NFMA imposes constraints on the Forest Service's management of national forests. 16
U.S.C. 1600-87. As the Ninth Circuit has explained, "NFMA sets forth the statutory framework-
and specifies the procedural and substantive requirements under which the Forest Service is to
manage National Forest System lands." Lands Council v. McNair, 537 F.3d 981, 988(9th Cir.
2008)(en bonc).
NFMA places a duty on the Forest Service to"provide for diversity of plant and animal
communities based on the suitability and capability of the specific land area-" 16 U.S.C.
1604(g)(3)(B); Inland Empire Public Lands v. U.S. Forest Service, 88 F.3d 754, 759 (9th Cir.
1996). These mandatory provisions apply to site-specific timber sales. Id. at 760-61 n.6.
Procedurally,the law requires the Forest Service to develop a land and resource
management plan, also referred to as a"forest plan," for each forest it manages. 16 U.S.C.
1604(a). "[A]II management activities undertaken by the Forest Service must comply with the
forest plan, which in turn must comply with [NFMAJ." Idaho Sportin Cg ongv. Rittenhouse,
305 F.3d 957,962 (9th Cir. 2002)_ See also 16 U.S-C- I604(i):Neighbors of Cuddy Mountain v.
U.R. Forest Serv., 137 F.3d 1372, 1377-78 (9th Cir, 1997).'
The Rogue River Land and Resource Management Plan(LRMP)is a"land management
plan." Dkt 11. Answer 1(Q 120, 132. 143. Defendants amended the LRMP with a region-wide
the
3 The fact that the NFMA regulations have been modified does not retroactive) alter___
� Y
plain language of the LRMP. Even the"transitional" 2000 NFMA regulations require the Forest
Service to Comply with the LRMr. 74 Fed. Reg. 67.052 67,074_ col. 1 (Dec. 18, 2009)(codified
at 36 C.F.R 219.35_App. B).
PAGE 3 - PL_ TNTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION'
1994 Record of Decision commonly referred to as the Northwest Forest Plan(NWFP), which
sets forth standards and guidelines that are in effect in addition to those set forth in the LRMP.
"In order to ensure compliance with the forest plan and [NFMA],the Forest Service must
conduct an analysis of each'site specific' acti on,such as a timber sale, to ensure that the action is
consistent with the forest plan." Idaho Sporting Cone. v. Rittenhouse. 305 F.3d at 972-73.
"Direct implementation of the LRMP occurs . . . when individual site-specific projects are
proposed and assessed. The Forest Supervisor must ensure that all projects are consistent with
the plan. 16 U.S.C. 1604(1); 36 C.F.R. 219.1 l(e)." Idaho Conservation League v. Mumma 956
F.2d 1508, 1512 (9th Cir. 1992).
H. DEFENDANTS' THEORY THAT THEY CAN SIMPLY GIVE "NOTICE" OF
COMPLIANCE WITH THE INJUNCTION IS GROUNDLESS; THEY MUST
WAIT UNTIL A COURT HAS DISSOLVED THE INJUNCTION
Defendants present their filing as a"notice" or"in the alternative," a"motion to dissolve
the injunction." They offer a groundless theory that they may give "notice" to the Court that the
2011 Final Supplemental Environmental Impact Statement(SEIS)satisfies the Ninth Circuit
injunction and proceed to implement the ski area expansion at their discretion. However,
defendants are barred by law from unilaterally declaring that the Court's judgment is met or
taking any step to implement action previously found to be unlawful. Scrutiny from the Court is
required in this case.
The Court retains jurisdiction over its injunction_ even in the absence of an express
statement to that effect. United States v. Swift& Co.. 286 U.S. 106, 114 (1932). As noted
sup Ca the party seeking dissolution of an injunction"bears the burden of establishing that a
significant change in facts or law warrants revision or dissolution of the injunction." Sharp v.
Weston. 233 173d 1166, 1170(9th Cir. 2000).
PAGE 4 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
The Ninth Circuit's order in this case states: "Until the Forest Service conducts a proper
Biological Evaluation establishing the size of the local fisher population and its relationship to
its habitat,there remains a'sufficient possibility of environmental harm'to justify injunctive
.relief." Oregon Natural Resources Council Fund(ONRC) v. Goodman F.3d 884, 898(9th
Cir. 2007). The Ninth Circuit further stated: "Similarly, until the Riparian Reserve and
Restricted Watershed lands are properly classified and subjected to the additional scrutiny
required by these classifications, the possibility of environmental harm to the ecological health
of the region's waterways remains." Id.
In their brief, defendants opine that the SEIS supplies a"proper" evaluation of Pacific
fisher viability and remedies their failure to properly allocate lands and apply related standards
and guidelines of the applicable forest plans, thus satisfying the requirement of"additional
scrutiny," as required by the Court. Id. at 898. However, the Court never empowered the Forest
Service to unilaterally declare that supplemental analysis satisfies laws that it previously found
the agency violated. The government's view is presumptuous and flouts Supreme Court
precedent. The Ninth Circuit instructed this Court"to promptly enjoin the MASA expansion
project contemplated in the 2004 FEIS until the Forest Service has corrected the NFMA and
NEPA violations we find in this opinion." Id. at 898. Only the Court may determine whether
defendants have done so.
The government further contends that"other courts have found that plaintiffs must
institute separate proceedings to secure judicial review of new and distinct environmental
analysis prepared in response to an injunction." Defs' Br. at 8(emph. added). All of the cases
defendants cite in support of that argument are distinguishable from this case, in which the
Forest Service continues to rely on the 2004 FEIS,not a new or distinct one. If the agency
PAGE 5 -PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTTON"
initiated an entirely new analysis independent of those preceding it,as it did for the ski area
expansion on October 12, 1999 (AR 11494-95),and again on April 1, 2002 (AR 19352-53), then
plaintiffs concede that they would be obligated to initiate a new action." That is not the case here
because the latest final agency action in the SROD merely affirmed the September 13, 2004
Record of Decision without modification, and it expressly relied on the 2004 FEIS for many of
its errant conclusions, as explained infra. Plaintiffs need only to enforce the existing injunction
based on claims raised at the genesis of this action.
In a similar situation in Montana(Native Ecosystems Council v. Tidwell, CV 09-79-M-
DWM),Judge Molloy held that the permanent injunction against a timber sale was not
automatically dissolved by the government's issuance of a supplemental documentation(in that
case, a new biological opinion); and that the government's decision to proceed before the court
dissolved the injunction constituted contempt. See Exhibit A, attached. As Judge Molloy
explained:
Because the Court retains jurisdiction over an injunction, Defendants'unilateral
declaration that they complied with the Court's Order and therefore the injunction.was
automatically dissolved has no legal force other than constituting a violation of law for
which the appropriate remedy is criminal contempt proceedings.
Exhibit A at 6.
III. THE SUPPLEMENTAL RECORD OF DECISION DOES NOT COMPLY WITH
THE NINTH CIRCUIT'S ORDER ENJOINING THE PROJECT
The original Administrative Record("AR') was filed in June 2005, at Dkt 23-26. The
Supplemental Administrative Record("SAR")was filed in September 2005,at Dkt 34-40. The
Second Supplemental Administrative Record("2SAR")was provided to plaintiffs February 15,
2012, and the government stated it was filing that new SAR with the court. However, upon
scrutinizing the Docket tonight plaintiffs' counsel finds no record of that filing.
If for some reason defendants do not file the Second Supplemental Administrative
Record, plaintiffs will submit it to the court prior to oral argument.
PAGE 6 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICEIMOTION"
The SROD does not comply with the Ninth Circuit's ruling which enjoined the project.
Dissolution of the injunction is therefore not warranted. Plaintiffs agree that defendants met
procedural requirements of the Ninth Circuit's decision pursuant to NEPA (National
Environmental Policy Act). But that is not true of the Ninth Circuit's decision addressing
substantive provisions of the National Forest Management Act(NFMA). As the Ninth Circuit
noted in the decision in this case, there is no such thing as a"de minimus" violation of NFMA
that can be excused. Defendants pasted together a story to remedy past violations„but failed to
follow the substantive requirements of NFMA,which are designed to protect the environment.
The SROD must be rejected as a matter of law.
A. The SEIS Does Not Comply with the Ruling Regarding the Pacific Fisher
1. Pacific fisher and the Rogue River LRMP
The Forest Service designated the Pacific fisher a"sensitive species” due to substantial
population declines and the possibility that the fisher could be listed as an "endangered species"
pursuant to the Endangered Species Act. See ONRC v. Goodman, 505 F.3d at 889-90. Under
the Rogue River LRMP, species classified as "sensitive" must be managed by the Forest Service
to ensure that they do not become threatened or endangered due to management activities. Id. at
890.
The Rogue River LRMP requires that where sensitive species occur in lands categorized
as "Developed Recreation," "the Biological Evaluation process . . . will be used during project
planning to display the effects of proposed activities . . . [and]Where such species are present,
field evaluation data will be used to determine the effects and recommend measures to ensure
that species viability is not jeopardized." Id. [emph added.] The Biological Evaluation is a five-
step process which requires the Forest Service to conduct:
PAGE 7 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
a) [a] [p]re-field review of existing information; b) Iflield reconnaissance of the project
area c)[d)eterrmnation of whether local populations listed and PETS species will be
affected by a project, d) [a]nalysis of significance of project effects on local and total
populations of listed and PETS species; e) [wlhen step four cannot be completed due to
lack of information, a biological or botanical investigation is conducted to gather the
information needed to complete step four.
Id.
2. The Ninth Circuit's ruling regarding Pacific fisher
In this case, the Ninth Circuit agreed with plaintiffs that the Forest Service "violated
NFMA by failing to abide by the Rogue River LRMP's requirement that it conduct a compliant
Biological Evaluation to determine the impact of the proposed MASA expansion on the Pacific
fisher," and that"the Forest Service's evaluation of the Pacific fisher in the MASA expansion
area does not comply with the requirements of the Rogue River LRMP and, therefore, violates
the NFMA." ONRC v. Goodman 505 F.3d at 890.
The Ninth Circuit specifically ruled that defendants could not rely on their 1999
Biological Evaluation for the MASA expansion, which concluded that there was no suitable
fisher habitat within the proposed project area and that no impact on fisher or fisher habitat was
expected. As the Court noted,in 2001 and 2002, Eugene Wier, a Forest Service field biologist,
identified Pacific fisher within the project area, and noted that the fisher's presence on Mount
Ashland represented the furthest east and the highest elevation at which the species had been
found within the Siskiyou Mountains. Instead of updating or amending the 1999 Biological
Eva]uation, the Forest Service simply concluded that the project would impact less than one
percent of the similarly forested land within three miles. As the Ninth Circuit noted, "This
conclusion is based on an analysis of habitat in the proximity of the project area rather than
documented local and total fisher populations." ONRC v. Goodman 505 F.3d at 890.
PAGE 8 -PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
The Court found:
We find that in this instance the Forest Service's use of habitat as a proxy for population
violated the NFMA. We have recently explained that species viability may be met b}'
estimating and preserving habitat"only where both the Forest Service's knowledge of
what quality and quantity of habitat is necessary to support the species and the Forest
Service's method for measuring the existing amount of that habitat are reasonably reliable
and accurate." Earth Island Inst. v. U.S. Forest Serv. 442 F.3d 1147, 1175-76(9th Cir.
2006) (hereinafter Earth Island II] (quoting Native Ecosystems Council v. U.S. Forest
Serv., 428 F.3d 1233, 1250(9th Cir. 2005))(emphasis added).
In Earth Island II we examined whether the Forest Service appropriately relied
on habitat monitoring for determining populations trends of the black-backed
woodpecker. Id at 1175. Although the Forest Service's final environmental impact
statement"discuss[ed] various studies of black-backed woodpeckers that confirm[ed]
their preference for burned forest habitat" and presented tables listing areas in the project
area"assumed to provide high and moderate capability habitat," we concluded that
"[t]here is no indication that the USFS consulted current or accurate field studies to arrive
at these numbers, and there is no identification of the methodology used in determining
what constitutes suitable habitat." Id
We find the Forest Service's analysis of the quantity and quality of the fisher
habitat similarly devoid of supporting or explanatory data. In its 2004 FEIS,the Forest
Service stated that "[o]f the land within three miles of the S[pecial] U[se] P[ermit] area,
10,200 acres are in a condition class similar to the forested site where.the fisher was
photographed. The 68 acres of forested area that would be removed if Alternative 2 . . .
is implemented, amount to .7%percent of the available acres [off habitat within three
miles." [FN I] But other than commenting that it was similar to the environment in
which the fisher was actually found, the Forest Service offered little explanation of its
methodology for classifying the 10,200 acres in question as suitable fisher habitat.
FN I. "The FEIS also noted that overall, '[t]he Mt. Ashland LSR [Late-Succession
Reserve] has nearly 15,000 acres of high quality late-successional habitat."'
Furthermore, the 2004 FEIS explicitly states that"ecological relationships between fisher
and habitat are largely unknown" and"[t]he use of habitat per seasonality and topography
is currently unknown in the S[pecial] U [se] Permit] area." Additionally,statements by
two Forest Service biologists, Eugene Wier and William Zilinski, reveal that the Forest
Service had insufficient data and knowledge regarding(1)the population of the Pacific
fisher, and(2)the quantity and quality of habitat preferred by the Pacific fisher to justify
using habitat as a proxy for population. Specifically, Wier observed that the Forest
Service "know[s] nothing about how many individuals there are(within the Ashland
Watershed or in the greater population),where they nest, how large their home ranges
are, and what constitutes the core habitat within the greater Ashland Watershed upon
which these individuals depend for future survival." Zilinski stated that the documented
PAGE 9 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
fisher's purpose in the expansion area was unknown: "was it just foraging, investigating
denning sites, or exploring for new territory?"
Thus, given the dearth of information about the local fisher population generally
and the Forest Service's failure to explain adequately how it identified suitable fisher
habitat, we hold that the Forest Service's habitat analysis was insufficient to satisfy the
demands of the Rogue River LRMP Biological Evaluation process, and is in violation of
the NFMA.
ONRC v. Goodman 505 F.3d at 890-91.
3. The legal test for when "proxy" analysis is allowed has not changed
since the Ninth Circuit issued its opinion
As explained supra the Forest Service has a duty under NFMA to "provide for diversity
of plant and animal communities based on the suitability and capability of the specific land
area" 16 U.S.C. 1604(g)(3)(B). The Ninth Circuit has in some situations allowed the Forest
Service to meet this duty using habitat as a"proxy" for.viable populations. The Ninth Circuit's
analysis in this case regarding the "proxy" approach to maintaining a viable population of Pacific
fisher is still valid.
As the Ninth Circuit has explained, "[o]ur case law permits the Forest Service to meet the
wildlife species viability requirements by preserving habitat, but only where both the Forest
Service's knowledge of what quality and quantity of habitat is necessary to support the species
and the Forest Service's method for measuring the existing amount of that habitat are reasonably
reliable and accurate." Native Ecosystems Council v. U.S. Forest Service_428 F.3d 1233, 1250
(9th Cir. 2005). See also Idaho Sporting Cone. v. Thomas. 137 F.3d 1146 (9th Cir. 1998) ("the
Forest Service's decision to use habitat as a proxy for fish populations was not arbitrary and
capricious").
Thus, reliance on analysis of habitat in lieu of local and total populations of the sensitive
species is permissible only where two conditions are satisfied: First, there must be an accurate
PAGE 10-PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICUMOTION"
and reliable correlation between habitat and its use by the species, and second, the methodology
for measuring habitat must also itself be accurate and reliable. Native Ecosystems Council, 428
F.3d at 1250; Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv. 378 F.3d 1059, 1066
(9th Cir. 2004).
These precedents,cited by this court in 2007,have not changed in any way. In July
2008, the Ninth Circuit issued its en banc decision in Lands Council v. McNair, 537 F.3d 981
(9th Cir. 2008). In that opinion the Court overturned some prior case law, but explicitly
confirmed that "the rule we set forth in Native Ecosystems Council [regarding habitat as a
proxy] remains good law: the Forest Service may meet wild]ife'viability requirements by
preserving habitat, but only where both the Forest Service's knowledge of what quality and
quantity of habitat is necessary to support the species and the Forest Service's method for
measuring the existing amount of that habitat are reasonably reliable and accurate."' Id. at 998-
99.
4. Defendants' new habitat information is insufficient to serve as a
"proxy" for determining the viability of the Pacific fisher
The appropriate testis whether the following are"reasonably reliable and accurate": 1)
the Forest Service's methodology for measuring the habitat; 2)the Forest Service's knowledge of
what quality of habitat is necessary to support the species, and 3)the Forest Service's knowledge
of what guantity of habitat is necessary to support the species. Lands Council v. McNair 537
F.3d at 998-99.
Defendants have not borne their burden of demonstrating that new information in the
SEIS describing Pacific fisher habitat is reasonably reliable or accurate as a proxy for local or
total populations of the sensitive species. The sub-canopy forest structure selected by Pacific
PAGE 11 -PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
fisher for essential denning, resting, and forage behaviors—large dead trees ('snags")and
downed logs— was not mapped or factored into the evaluation of the "fisher home range."
Defendants relied upon canopy cover and live tree diameter, which are detectable from space
using remote sensing technology, and ignored sub-canopy forest structure that strongly
influences fisher habitat selection. The undisputed scientific evidence in the record disqualifies
defendants' choice of how to measure habitat and what habitat to use as a proxy.
a. Defendants relied on canopy cover and live tree diameter as a
"proxy" for Pacific fisher habitat
Defendants used satellite imagery showing forest canopy cover and mean diameter of
live trees as a proxy for fisher habitat in the local population area. See 2SAR 13966-67. They
assume the imagery to be 80 percent accurate, and acknowledge that individual pixels may not
be accurate, but state that the imagery "presents a consistent'snapshot'which is useful for
planning and analysis." Id. at 13966. Using this imagery, defendants defined Pacific fisher
"denning/resting habitat" in the "local population area" as "coniferous forest with >_80 percent
overstory canopy closure and a quadratic mean diameter of z24"dbh." Id. They further stated,
"Fisher dispersal/foraging habitat is defined as coniferous forest(sapling/pole or larger)with
>_60 percent canopy closure." Id That habitat proxy is the sole basis of defendants' conclusion
that the ski area expansion"is likely to remove up to 154 acres suitable denning/resting and
dispersal/forage habitat from within the home range of up to l female fisher and 1 male fisher
causing these animals to avoid those areas where that habitat has been removed as well as much
of the rest of the area due to fragmentation of the remaining habitat." Id. at 13968.
Defendants failed to establish a"reasonably reliable and accurate" measurement of
resting and forage habitat because its proxy (canopy closure and live tree size)omits sub-canopy
PAGE 12 -PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
forest structure that strongly influences habitat use by fishers. As a result,the SEIS overstated
the amount of habitat and the number of fishers in the local population. That error, in turn,
caused defendants to understate the impact of ski area expansion to fisher viability.
b. Undisputed scientific evidence in the record shows that Pacific
fisher selects sub-canopy forest structure for denning,resting,
and forage behaviors essential to viability
Canopy cover and large trees are important to virtually all essential life behaviors of
Pacific fisher. See 2SAR at 14830, 16302, 16598-605, 16791. But the record contains no
explanation why reliance on canopy cover and live tree size as the sole measures of habitat
forms a reliable proxy for the fisher population. "Forest structure should have three functions
important for fishers: structure that leads to high diversity of dense prey populations, structure
that leads to high vulnerability of prey to fishers,and structure that provides natal and maternal
dens and resting sites." 2SAR at 16791.
According to the U.S. Fish and Wildlife Service, which acknowledges that federal
protection of fisher as an endangered species is "warranted but precluded," the presence or
absence of downed coarse wood(fallen logs)on the forest floor strongly influences fisher habitat
selection:
Complex down woody material including large down logs, and multi-layered vegetative
cover are important habitat elements for fishers. Fishers are often detected at sites with
higher amourts of downed logs than at random sites [Klug 1997; Slauson et al. 2003],
and high volumes of coarse woody debris and structural complexity near the forest floor
[Weir and Harestad 20031, at least in part because high structural diversity is associated
with prey species richness and abundance [Slauson et al. 20031 and greater prey
vulnerability to capture [Buskirk and Powell 1994]").
Id. at 16304. Moreover, according to defendants,
In addition to a continuous canopy, fishers also prefer forests that have complex physical
structure near the forest floor. This structure is important for maintaining prey
Populations and for providing access to prey during the winter, especially when snow is
PAGE 13 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
on the around. In addition,fishers have very narrow habitat requirements for natal den
sites: all natal dens ever found for fishers(and this number is less than 50,range wide)
were located in caviti es in trees or snags at heights generally exceeding 6 meters.
Clearly,only relatively large trees or snags will serve as natal dens: the mean dbh of 32
natal den sites found in Maine was 51 centimeters. Because a female fisher raises her
young alone, and must leave the kits to secure prey for herself and for them, it is believed
that such sites are necessary for protecting the kits from predators when they are very
young. This rather restrictive habitat requirement may have contributed to the decline of
fishers in the Pacific Northwest, because the conversion of old-growth Douglas-fir
forests to young,even-aged plantations results in the elimination of potential natal den
sites.
Id. at 15873 (emph. added). Other expert comments in the record indicate that complex structure
near the forest floor is determinative of fisher habitat use. See 2SAR at 09090 (Wier states: "In
all the surveys I have conducted on this forest and others, fisher occurrence is positively
correlated with structure on or near the forest floor. Simply using remotely sensed data on over
story stand structure does not take into account structure on or near the forest floor."). See also
id. at 0901:
Remotely sensed data about forest structure based on over story trees, while useful, is not
a fail safe method of predicting fisher habitat as it does not take into account smaller
scale habitat features or the structure present below the over story canopy. The FSEIS
lacks any further investigation into the influence of small scale habitat features, such as
understory vegetation,on the distribution of fishers. There is also a complete lack of
discussion related to how these same understory features that provide resting sites can
influence prey densities, which in turn influence fisher use of the habitats. These
investigations are crucial because without knowledge of how understory density and
structure influence prey and thus fisher, we can not predict habitat occupancy. Canopy
closure and stem size calculated remotely can not begin to capture the diverse and
variable nature of the forest understory. I used the USFS canopy closure data myself
when attempting to identify potential fisher habitat back in 2002-04 and found that these
variables alone did not predict fisher presence when tested with survey stations.
See also id. 16607(active fishers selected habitat with high volumes of coarse down wood and
moderate cover of shrubs).
Systematic surveys in northern California suggested that sites where fishers were
detected were more structurally complex than those where fishers were not detected
(Study Areas 9, 10, 11, 20, 21). Fishers were more likely to visit sites that had greater
PAGE 14 - PLAINTIFFS'RESPONSE TO DEFENDANTS' 'NOTICE/MOTION"
log volume(Study Area 10), greater densities of medium and large dead woody
structures(snags [dead trees], stumps, coarse down wood; Study Area 11), greater
overstory tree or shrub cover(Study Areas 11,21), and large or greater basal area of
hardwood trees (Study Areas 10, 20, 21).
Id. at 16607-08.
Defendants' failure to inventory or measure sub-canopy structure in its habitat proxy is
inexplicable given their own research findings and the site-specific observations of their
biologist, cited above. A habitat proxy that overlooks the importance of forest structure on the
ground to fishers and their prey cannot be judged "reasonably reliable and accurate."
Furthermore, standing dead trees (snags)are important features of fisher resting habitat
that defendants' failed to factor into their habitat proxy. Defendants admit in the SEIS that
fishers "need" snags as resting habitat. See 2SAR at 13960-61. But snags are completely absent
from defendants' definition and calculation of fisher habitat and home range. See id. at 13964-
69. See also id. at 17036("[F]ishers use—and may require—many large trees, snags, and logs
distributed within home ranges").
Fishers in northern California have been observed by defendants to select snags on steep
slopes as resting habitat. See id. at 17030("[R]esting sites had significantly larger maximum
dbh, average canopy closure, and shrub canopy closure, more large snags, and steeper slope than
random sites") (emph. added); 17032("Female fishers selected resting sites that had denser
canopies, larger trees, were on steeper slopes, and included large conifer snags compared to
random sites within their home ranges . . . "); 17035 ("Resting-site choice by females was
influenced by a combination of vegetation and topographic features including canopy closure,
maximum tree dbh, slope, and large conifer snags").
Although large live trees were the most common resting structure(46.4%), dead woody
structures (large snags and logs)were chosen for resting almost as frequently (44.5%) [ .
PAGE 15 - PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICEIMOTION"
] Because large live trees and large snags are less abundant in the Sierra Nevada and
the Pacific Northwest than historically [ . . . ] every management activity designed to
favor fishers should be evaluated as to whether it enhances or reduces the availability or
development of large live and dead trees and large logs.
Id. at 17037. See also id. at 16984("Hardwoods and all large trees and snags are important
predictors of fisher habitat use . . . "); 16794("Fishers are more selective of habitat for resting
sites than of habitat for foraging [ . . . ] [R]esting and denning tends to occur in large trees, snags
and logs that are normally associated with late-successional conifer forests"); 15311 ("Snags
(standing dead trees)are commonly used by fisher for denning and resting . . . ")1- 16302
("[R]iparian areas are important to fishers because they provide important rest site elements,
such as broken tops, snags, and coarse woody debris").
C. Defendants ignored sub-canopy forest structure in its "proxy"
for Pacific fisher, resulting in exaggeration of habitat and
population size, and understatement of project effects to local
and total populations
Defendants seek to predict effects of the project on the local and total populations of
Pacific fisher"based on habitat analysis using satellite imagery (use of habitat as proxy for
population data and knowledge)." 2SAR at 13966. The "local population area" is assumed to be
653 km2 within three miles of the boundary of the Mt. Ashland Late-Successional Reserve,
allegedly comprising 33-65 female home ranges and 15-26 male home ranges. a at 13965-66.
Defendants estimate that 48-91 fishers exist in the local population area,and acknowledge that
the estimate may be "liberal" because "not all suitable habitat within an extant population's range
is likely to be occupied." Id. at 13966. Finally, it defines the "total fisher population" in the
Klamath-Siskiyou Mountains as 1,000-2,000 individuals, based on literature. Id.
Defendants failed to establish a"reasonably reliable and accurate" measurement of
habitat because its proxy (canopy closure and live tree size) omits sub-canopy forest structure
PAGE 16 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICEJMOTION"
that strongly influences fisher selection of habitat for resting and foraging. As a result,they
overestimated the amount of habitat available to fishers, and this error caused them to exaggerate
the number of individuals in the local fisher population. Overstatement of habitat availability
and population size, in turn, likely caused defendants to understate the impact of MASA
expansion to fisher population viability, in violation of the Rogue River LRMP and the NFMA.
The SROD therefore still violates NFMA, because it applies an unreliable and inaccurate
habitat proxy for maintenance of a viable population of Pacific fisher. Defendants'knowledge of
what gualily and guanft of habitat is necessary to support the Pacific fisher is not"reasonably
reliable and accurate." Lands Council v. McNair 537 F.3d at 998-99.
B. The SEIS Does Not Comply with the Ruling Regarding the Northwest Forest
Plan's Aquatic Conservation Strategy (ACS)
1. Riparian Reserves
The defendants'Northwest Forest Plan (NWFP) includes an important component known
as the"Aquatic Conservation Strategy" (ACS). The ACS includes several critical components,
one of which is a system of"Riparian Reserves." As the Ninth Circuit explained in this case:
Riparian Reserves are essentially buffer zones along streams, lakes, wetlands, and
mudslide-risk areas,and"watersheds" are aquatic habitats or other hydrologically
important areas. ee Pac Coast Fed'n of Fishermen's Ass'ns. Inc. v. Nat'l Marine
Fisheries Serv. 265 F.3d 1028, 1031-32 (9th Cir. 2001). Recognizing that riparian
terrain"offer[s] core areas of high quality stream habitat," and that watersheds "are
crucial to at-risk fish species and stocks and provide high quality water," the ACS
standards and guidelines "prohibit or regulate activities in Riparian Reserves that retard
or prevent attainment of the Aquatic Conservation Strategy objectives."
ONRC v. Goodman, 505 F.3d at 893-94.
2. "Landslide Hazard Zones" (L.HZs)
The NWFP assigns the Riparian Reserve designation to streams, ponds, lakes, and
wetlands, including a buffer around these waterways;but also requires that lands that are
PAGE 17 - PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
"potentially unstable" must be designated and managed as Riparian Reserve. ONRC v.
Goodman F.3d at 894.
Defendants used a"Landslide Hazard Zone" (LHZ)technique to assess geologic stability
in the 2004 FEIS for the Mount Ashland expansion. Id. In making the "LHZ" designation,
defendants divided terrain into four hazard zones, wherein Landslide Hazard Zone I (LHZ 1)
encompassed the highest risk terrain, and Landslide Hazard Zone 4 (LHZ 4)encompassed the
lowest risk terrain. Id. The 2004 FEIS found that LHZ 2 "is the second highest risk terrain" and
concluded that the risk of landslides in LHZ 2 is "moderate to high" and the "sediment delivery
potential" is "high." Id. at 895. Yet defendants chose to exclude the LHZ 2 lands from the
designated Riparian Reserves, including only LHZ I lands in that designation. Id. at 894-95.
3. The Ninth Circuit's ruling regarding Riparian Reserves
The court held that defendants' failure to designate the LHZ 2 land as Riparian Reserve
violated the NFMA
because its finding that the land was not "potentially unstable" is contradicted by record
evidence, and(2)this failure to make an appropriate designation resulted in further
violations of the Rogue River LRMP, the NWFP(and ACS), and the NFMA, because a
proper designation as Riparian Reserve would compel specific management practices to
ensure that the terrain is appropriately protected.
ONRC v. Goodman. 505 F.3d at 895. Specifically,the Court noted:
Evidence in the record clearly shows that debris flow landslides persistently originate
from LHZ 2 lands. The 2004 FEIS found that LHZ 2 "is the second highest risk terrain"
and concluded that the risk of landslides in LHZ 2 is "moderate to high" and the
"sediment delivery potential" is "high." Therefore,the Forest Service has failed to
demonstrated that LHZ 2 areas are not"potentially unstable."
The district court sought to avoid this conclusion by reasoning that "[o]ne cannot
make an omelet without breaking a few eggs. The other action alternatives evaluated in
the 2004 FEIS would impact fewer acres of land classified LHZ 1 or LHZ 2. However,
the Forest Service decided that the preferred alternative will better meet the purpose and
need of the expansion project." We disagree. "It is well-settled that the Forest Service's
PAGE 18 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
failure to comply with the provisions of a Forest Plan is a violation of NFMA." Native
Ecosystems Council v. U.S. Forest Serv.. 418 F.3d 953,961 (9th Cir. 2005). The Rogue
River LRMP contains Riparian Reserve requirements and the ACS explicitly requires
that"[w]atershed analysis and appropriate NEPA compliance is required to change
Riparian Reserve Boundaries in all watersheds," but the Forest Service failed to comply
with those requirements. By failing to designate the LHZ 2 terrain as Riparian Reserve,
the Forest Service violated the NWFP,the Rogue River LRMP, and the NFMA. Whether
the acreage at issue is relatively large or small is irrelevant to this inquiry-relevant law
contains no de minimis exceptions.
Id.
4. Defendants have not demonstrated that the Supplemental Record of
Decision complies with the ACS regarding Riparian Reserves
In the Supplemental Record of Decision(SROD), defendants allocate lands which are
LHZ 2 to Riparian Reserve, as required by the Northwest Forest Plan and the Ninth Circuit's
order, adding about 145 acres in the project area to Riparian Reserve more than previously
disclosed in the 2004 FEIS. See 2SAR at 13990(SEIS)and 14141 (SROD). Defendants admit,
for the first time, that direct effects of ski area expansion to Riparian Reserve include clearing
vegetation on 14.82 total acres and mechanical grading of riparian soil on 1.8 acres. Id. at 13992
(SEIS)and 14140(SROD). Vegetation clearing in Riparian Reserves "is an approximate 208
percent increase over the 2004 decision." Id. at 13992. Despite new disclosure of greatly
increased direct effects to Riparian Reserves, as required by the Court, defendants have still
failed to apply the relevant standards and guidelines to those lands.
Riparian Reserves are "Lands along streams and unstable or potentially unstable areas
where special standards and guidelines direct land use." SAR 0304. See also id. at 0309("Once
the Riparian Reserve width is established . . . the land management activities allowed in the
Riparian Reserve will be directed by standards and guidelines for managing Riparian Reserves . .
"). As the Ninth Circuit found, "Designation of land as Riparian Reserve has significant
PAGE 19- PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
consequences for the management of that land." ONRC v. Goodman 505 F.3d at 894. Lawful
management of Riparian Reserves is critical because this project impacts a municipal water
source(Reeder Reservoir)that is already listed as "water quality limited" for sediment pollution
by the Oregon Department of Environmental Quality. AR 603, AR 26620.
Despite the Ninth Circuit's warning that"a proper designation as Riparian Reserve would
compel specific management practices to ensure that the terrain is appropriately protected" —
ONRC v. Goodman, 505 F.3d at 895—and clear evidence in the record that disturbance of"high-
risk" LHZ 2 terrain "will tend to accelerate landslide frequency" —AR 08789 and 08786—
defendants renewed authorization of Modified Alternative 2 "without change." 2SAR at 14134.
That alternative includes clear-cutting vegetation on 14.82 total acres of Riparian Reserve
(including 10.08 acres of LHZ 2)and mechanical grading on 1.8 acres of Riparian Reserve
(including 0.56 acres of LHZ 2). Id. at 13992-93 (SEIS). Specific component actions of MASA
expansion that directly effect LHZ 2 terrain in Riparian Reserves include the proposed "Skiway"
road, the LC-6 chairlift, and Runs 12, 13, 14, 15, 16 and 17. Id. 13993;see also AR 26267; SAR
0732, 0739 and 0820.
a. Defendants relied on mitigation and planned restoration as a
substitute for preventing habitat degradation in Riparian
Reserves
The Ninth Circuit recognized that Standard WR-3 prohibits reliance on mitigation or
planned restoration as a substitute for preventing habitat degradation in Riparian Reserves.
ONRC v. Goodman, 505 F.3d at 894. The Court explained that "[p]riority must be given to
protecting existing high quality habitat' rather than compensating "for management actions that
degrade existing habitat" through mitigation and restoration. Id.
Defendants approved exactly what the ACS prohibits, and failed to demonstrate how the
PAGE 20- PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
expansion project will avoid habitat degradation in the LHZ 2 zones that are now designated as
Riparian Reserve. Instead, defendants continue to rely on mitigation and restoration as a
substitute for prevention of admitted habitat degradation within Riparian Reserves. See 2SAR at .
14142 ("New developed recreation facilities would occur and have an impact within Riparian.
Reserves at the Site Scale. Mitigation measures would be employed to reduce effects at the Site
Scale."); see also SAR 0819("Implementation of various components of the Action Alternatives
can have long-term, direct effects that are adverse to Riparian Reserves through processes such
as: removal of riparian vegetation and subsequent development of an area such that no riparian
vegetation can recover. The Action Alternatives may also cause long-term, indirect effects to
Riparian Reserves that lead to a reduction in stream shading, bank and slope destabilization, and
reduction in [large woody materiall recruitment").
Defendants opine that degradation to Riparian Reserves will be "acceptable" with "the
employment of Mitigation Measures . . . " SAR at 0825. The only two mitigation measures
prescribed by the 2004 ROD, and carved forward in the SROD, related to slope stability are: (1)
divert water runoff from the R-18 Skiway road away from high-risk landslide terrain; and(2)
monitor landslides to "document any changes." Id. at 26276, 26304. Defendants aver, "The
intent of the mitigation measures pertinent to mass wasting are for prevention, not after initiation
of an event." 2SAR at 17653.
However, the record contains no evidence that slope instability or sedimentation resulting
from debris flows can be eflectively.rnitigated with the measures prescribed. Defendants admit
uncertainty regarding the effectiveness of proposed mitigation measures. She AR at 26273 ("At
sites where the prescribed erosion control measures are shown to be less effective than
anticipated, install and maintain additional erosion control materials appropriate for the site
PAGE 21 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
conditions")and 26293 ("The goal of . . . monitoring is to . . . determine whether Mitigation
Measures are adequate to maintain watershed condition within the range of predicted conditions"
(emph. added)).
In addition, defendants continue to ignore findings of watershed analysis regarding
elevated risk of mass wasting that directly results from proposed activities. See id. at 06862
("Clear-cut timber harvesting increases the groundwater available to unstable and potentially
unstable terrain which increases the likelihood of accelerating landslide movements over time"),
06859 ("Sediment delivery potential is high for these weak material types, because the dominant
landslide types are debris flows and torrents which can transport sediments long distances
downslope"); 24649 ("Hazard Zone 2 is somewhat less sensitive than Hazard Zone 1, although it
usually occurs immediately adjacent to or within the groundwater influence zones of Hazard
Zone V); 24650("This experience with the 1997 flood has increased Forest Service confidence
in utilizing the Landslide Hazard Mapping for predicting areas of unstable terrain and ability to
plan activities that avoid landslide acceleration" (emph. added)). Indeed, avoidance of high-risk
landslides is the only effective way to prevent habitat degradation in Riparian Reserves. The
record contains no basis for concluding otherwise. See 2SAR at 14219 (John Arnold of the U.S.
Forest Service wrote regarding the Ashland Watershed in 1953, "Taking the engineering jargon,
the'design period' for municipal watersheds is forever. The damage should be prevented,not
cured").
b. Defendants failed to ensure compliance with Aquatic
Conservation Strategy Objectives
"Standards and guidelines prohibit and regulate activities in Riparian Reserves that retard
or prevent attainment of the Aquatic Conservation Strategy objectives." SAR 304. See also id.
PAGE 22 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
at 0309,0357. Under the NWFP,
The standards and guidelines are designed to focus the review of proposed and certain
existing projects to determine compatibility with the Aquatic Conservation Strategy
objectives. The intent is to ensure that a decision maker must find that the proposed
management activity is consistent with the Aquatic Conservation Strategy objectives.
The decision maker will use the results of watershed analysis to support the finding. In
order to make a the finding that a project or management action "meets" or"does not
prevent attainment" of the Aquatic Conservation Strategy objectives,the analysis must
include a description of the existing condition, a description of the range of natural
variability of the important physical and biological components of a given watershed, and
how the proposed project or management action maintains the existing condition or
moves it withing the range of natural variability. Management actions that do not
maintain the existing condition or lead to improved conditions in the long tern would not
"meet" the intent of the Aquatic Conservation Strategy and thus, should not be
implemented.
Id. at 0302. The NWFP established nine(9) ACS objectives. Id. at 0303.
Defendants state in the SROD, "the 2004 FEIS and 2004 ROD did not specifically label
or discuss the nine ACS Objectives(based on policy and direction at that time)." 2SAR at
14142. But the SROD cites page numbers of the 2004 ROD as its sole basis for asserting that ski
area expansion will meet or not prevent attainment of the ACS objectives. See id. at 14142-43.
The 2011 SEIS contains no new information about ACS objectives.
Defendants'continued reliance on the 2004 FEIS and ROD for evaluation of project
consistency with the ACS objectives must be rejected because that analysis applied "policy and
direction at the time" which a Court has held to be invalid. The 2004 FEIS and ROD—and by
implication the 2011 SEIS and SROD—failed to implement the 1994 NWFP, including the
ACS, as it is written and currently applicable to the MASA project.
Instead, the 2004 FEIS and ROD only evaluated project consistency with Riparian
Reserve standards and guidelines, and not any of the ACS objectives. See AR 26259-60.
According to the FEIS,
PAGE 23 - PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
The Secretaries of Agriculture and the Interior proposed limited changes to language
about how to implement the ACS. These changes would amend Forest Service and
Bureau of Land Management plans throughout the Northwest Forest Plan Area. USDA
Forest Service and USDI Bureau of Land Management jointly prepared a Final
Supplemental Environmental Impact Statement for Clarification of Language in the 1994
Record of Decision for the Northwest Forest Plan "Proposal To Amend Wording About
The Aquatic Conservation Strategy." This FSEIS was completed in October 2003. A
Record of Decision was signed by Mark Rey, Under Secretary for Natural Resources and
the Environment, USDA; and Rebecca Watson, Assistant Secretary for Land and
Minerals Management, USDI, on March 22, 2004.
These limited changes clarify that the proper scale for federal land managers to
evaluate progress toward achievement of the ACS objectives is the fifth-field watershed
and broader scales. The change also clarifies documentation requirements for land
managers to demonstrate that projects follow the ACS. It would remove the expectation
that all projects must achieve all ACS objectives, but would reinforce the role of
watershed analysis in providing context for project planning. The decision clarifies that
the nine ACS objectives would be attained at the fifth-field watershed scale and not at the
project or site level. All site-scale projects would continue to meet the protective
measures in the Standards and Guidelines such as Riparian Reserve widths.
AR 26624. See also id. at 23471-895 (112003 ACS FSEIS"); 25370-90("2004 ACS ROD");
25691 (Regional Forester letter to Forest Supervisors re: no need to make a finding of
consistency with ACS objectives as a result of 2004 ACS ROD). The 2004 FEIS on the ski area
expansion project explicitly incorporated the new forest plan amendment, stating:
on March 22, 2004, the Northwest Forest Plan was amended to change the
documentation requirements with regard to the Aquatic Conservation Strategy.
Therefore, project documentation requirements have changed for projects affecting
Riparian Reserves. There is now no requirement to document how the project is or is not
consistent with ACS objectives.
SAR at 0818. See also id. at 0819-27 (implementing the 2004 ACS ROD in the ski expansion
analysis and omitting any mention of ACS objectives).
The sole question considered by defendants in the 2004 FEIS and ROD for ski area
expansion was whether the project complied with the"Section C" standards and guidelines for
Riparian Reserves. See id. at 0357-64. According to the 2003 ACS FSEIS, defendants sought to
PAGE 24 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
meet ACS objectives solely through compliance with those standards and guidelines: "No
additional site-scale determinations regarding attainment of the ACS objectives would be
required." AR 23494.
In 2007, the District Court for the Western District of Washington held that the 2003
ACS FSEIS and 2004 ACS ROD violated NEPA,stating: "Both FEMAT [Federal Ecosystem
Management Assessment Team] and the NFP [Northwest Forest Plan] contemplate that projects
must be consistent with ACS objectives." Pacific Coast Federation v.Nat. Marine Fisheries 482
F. Supp. 2d 1248, 1252 (W.D. Wash. 2007). The Court cited expert agency comment:
FWS [Fish and Wildlife Service] scientists submitted comments that the proposed
language would "remove or weaken several key conservation provisions for aquatic
species at the plan level" and eliminate the "assurance that oroiects developed and
implemented under the ACS guidance will contribute to restoring and/or maintaining the
ecological health of aquatic ecosystems-"
Id. at 1253 (emph. added). The Court concluded that defendants had failed to disclose dissenting
scientific opinion when it amended the NWFP to "clarify that the proper scale for federal land
managers to evaluate progress toward achievement of the ACS objectives."
As a result of the District Court's order reinstating the 1994 NWFP as written, including
the ACS objectives, the 2004 FEIS and ROD on MASA expansion are no longer a valid basis for
the decision maker to determine that the project meets or does not prevent attainment of ACS
objectives, insofar as they are tiered to, explicitly invoke, or implement the invalidated 2004
ACS ROD. See Supplemental AR 0819-27 ("Aquatic Conservation Strategy Effects" in 2004
FEIS omitted any consideration of ACS objectives). By implication,the 2011 SROD is likewise
invalid because it explicitly relies on the 2004 FEIS and ROD to support its assertions of ACS
consistency.
Given that overall protection of forest and water resources is the concern of both NFP
PAGE 25 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
and ACS, it does not follow that NMFS [National Marine Fisheries Service] is free to
ignore site degradations because they are too small to affect the accomplishment of that
goal at the watershed scale. For some purposes, the watershed scale may be correct, but
the NFP does not provide support for limiting NMFS review. The purpose of the ACS is
to maintain and restore ecosystem health at watershed and landscape scales to protect
habitat for fish and other riparian-dependent species and resources and restore currently
degraded habitats. This general mission statement in NFP does not prevent project site
degradation and does nothing to restore habitat over broad landscapes if it ignores the
cumulative effect of individual projects on small tributaries within watersheds.
Pac. Coast Fed'n of Fishermen's Ass'ns Inc. v. Nat'l Marine Fisheries Serv. 265 F.3d 1028,
1035-36(9th Cir. 2001). The Ninth Circuit further stated: "Appropriate analysis of ACS
compliance is undertaken at both the watershed and project levels." L( at 1036. In so holding, it
upheld the District Court's finding that multiple spatial and temporal scales are relevant to a
determination that management meets or does not prevent attainment of ACS objectives. See
PCFFA v. NMFS II 71 F. Supp. 2d 1063, 1069-70, 1073 (W.D. Wash. 1999).
Defendants admit that they never rendered any specific finding that the MASA expansion
meets or does not prevent attainment of the ACS objectives. See 2SAR at 14142. Their reliance
on the 2004 FEIS and 2004 ROD fails because those analyses only considered existing
conditions and project effects at the scale of a large "5th-field watershed," roughly equivalent to
Ashland Creek. See AR 26587-621 (existing conditions); Supplemental AR 0786-0813 (effects
to existing conditions) and 0819(describing illegal procedure used to implement the ACS).
In addition, the 2004 FEIS and ROD on MASA expansion applied direction from the
2004 ACS ROD eliminating the requirement to base findings of ACS consistency on watershed
analysis. Compare AR 25378-80 (2004 ACS ROD)and Supplemental AR 0819(describing
procedures used to implement ACS in the MASA project). Under the 1994 NWFP as written,
defendants must "use the results of watershed analysis" to determine whether each project is
consistent with the ACS objectives. SAR at 0302. Such a finding"must include a description of
PAGE 26- PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
the existing condition,a description of the range of natural variability of the important physical
and biological components of a given watershed, and how the proposed project or management
action maintains the existing condition or moves it within the range of natural variability." Id.
The 1995 Bear Watershed Analysis and its update in the 2003 Upper Bear Assessment
both identify desired future conditions and specific actions that would lead toward attainment of
ACS objectives, as well as other management activities that would prevent their attainment. But
as the watershed analyses point in one direction, defendants walk in the other by authorizing
significant ground disturbance on high-risk landslide terrain in the MASA expansion. See AR
06859 (vegetation thinning for fire hazard mitigation should remove "no more than 30 percent of
the existing tree stocking" on LRZ 2 out of concern for triggering landslides); 06862 ("Clear-cut
timber harvesting increases the groundwater available to unstable and potentially unstable terrain
which increases the likelihood of accelerating landslide movements over time."); 08786
ski development will tend to accelerate landslide frequency."). Defendants continue to disregard
findings of watershed analysis as they assert, without basis in fact or law,that the project will
meet ACS objecti ves.
Assuming arguendo that the defendants could rely solely on compliance with Riparian
Reserve standards and guidelines to demonstrate project consistency with ACS objectives, per
the illegal 2004 ACS ROD,they nevertheless failed to update relevant analysis in the 2004 FEIS
and ROD with new facts in the 2011 SEIS. For example, the 2004 FEIS evaluated Alternatives
2 and 6 in relation to Riparian Reserve standard and guideline RM-1, and disclosed total direct
effects to Riparian Reserves under each alternative as "a total of 7.13 acres," and "a total of 4.74
acres," respectively. SAR at 0824. That analysis overlooked newly designated Riparian
Reserves that should have been considered at the site scale because defendants illegally excluded
PAGE 27 -PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
LHZ 2 that they have since designated as Riparian Reserve. Compare AR at 26628 ("Riparian
Reserves cover approximately 333 acres . . . ")and 2SAR at 13992(Riparian Reserves increased
from 333.34 acres to 478.47 acres).
Prior to adopting the illegal 2004 ACS ROD, defendants evaluated consistency of the ski
area expansion with the nine ACS objectives at site-and watershed-scales, as required by the
NWFP. They disclosed that the project will "degrade" 6 of the 9 ACS objectives by impacting
riparian habitat at the site-scale. See AR 22976-83. But defendants omitted that analysis from
the 2004 FEIS, citing the now-vacated 2004 ACS ROD, and failed to include it in the 2011 SEIS
or the SROD. In the SROD, defendants state that they never assessed site-scale ACS
compliance, even though the 2003 Draft EIS disclosed site-scale degradation of several ACS
Objectives. See 2SAR at 14142.
C. The SEIS Does Not Comply with the Ruling Regarding the MS-22 Land
Designation in the Forest Plan
1. The MS-22 designation
The NWFP provides that the standards and guidelines of local forest man agement plans—
including the Rogue River LRMP—remain effective"where they are more restrictive or provide
greater benefits to late-successional forest related species"than the NWFP. ONRC v. Goodman,
505 F.3d at 894. MS-22 is one such more protective provision—it is a"Restricted Watershed"
designation developed by defendants for the Rogue River National Forest to maintain a high-
quality water supply to the City of Ashland. Id. See also AR 03703-12. These management
guidelines provide that "[w]hen conflicts exist between watershed management and other
resources, the conflict will be resolved in the favor of the watershed'resource." ONRC v.
Goodman, 505 Fad at 894. The expansion project includes 35 acres of MS-22. Id. at 895; AR
PAGE 28 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
j'000'09W0 6000 68?L W'dr04W'I
V ;o Z e6ed 60-1 t 'ABU (6Z)HO666
12661, 13182,22372.
As the Ninth Circuit explained,
Designation of land as Restricted Watershed terrain. . . has significant consequences.
The Rogue River LRMP includes specific soil disturbance standards and guidelines for
areas designated as Restricted Watershed terrain and requires that management activities
on Restricted Watershed MS 22 lands not exceed: "a) [f]orty percent mineral soil
exposed on soil classed as very slight, slight, low or moderate erosion hazard soils; b)
[t]hirty percent exposure on high or severe erosion hazard soils; c) [f]ifteen percent
exposure on very high or very severe erosion hazard soils."
ONRC v. Goodman 505 F.3d at 894.
In a 1998 letter discussing a Mount Ashland Association(MAA) proposal to expand the
ski area, the Forest Service acknowledged that an amendment was required to reclassify the MA-
22 land that was included in the Special Use Permit area as "Developed Recreation Management
Strategy 4" (MS-4)and indicated that "[t]his will be accomplished with Forest Plan
Amendment." Id. at 895. The government then published a statement in the Federal Register
acknowledging the need "to adjust the management allocation boundary from the 1990 Rogue
River Forest Land and Resource Management Plan." Id. (citing 64 Fed. Reg. 55228, 55229(Oct.
12, 1999)).
Defendants continued(in 2000) to confirm the existence of MS-22 and MS-4 lands
within the proposed expansion area as well as the need for a plan amendment, stating that"[t]his
adjustment changes(reduces) approximately 35 acres of Restricted Watershed(as mapped in
LRMP Alternative K), and reallocates to Developed Recreation, accounting for the 1991
expanded ski permit area boundary. The Developed Recreation allocation associated with this
area will increase from 870 to 905 acres." Id. The 2003 DEIS also confirmed the existence of
MS-22 and MS-4 lands. Id. at 885-96.
However,in the 2004 FEIS,defendants inexplicably and without support asserted that the
PAGE 29- PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
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NWFP "amended" existing Rogue River LRMP designations to"Administratively Withdrawn
(Special Management)" and stated that "this allocation is complimentary to the Developed
Recreation Rogue] R[iver] LRMP allocation." Id. at 896.
2. The Ninth Circuit's ruling regarding MS-22
The Ninth Circuit rejected defendants'rationalization in the 2004 FEIS, stating: "We
find no explanation in the record that would resolve the conflict between this statement and the
Forest Service's post-1994 statements concerning its intention to reallocate by means of'Forest
Plan Amendment 8."' ONRC v. Goodman. 505 F.3d at 896. The Court noted:
The district court correctly determined that part of the ski area retains the Restricted
Watershed MS 22 designation, but nevertheless found that"the Forest Service
necessarily intended" to depart from the Rogue River LRMP "when it conceptually
approved the expansion in 1991, and approved the site-specific proposal in 2004."
ONRC asserts that the district court erred in its holding because the NFMA clearly
prohibits a departure from the forest management plan without a plan amendment. We
concur. Because there is no amendment to the Rogue River LRMP in the record
permitting the contemplated change to the Watershed, the Forest Service violated the
NFMA by failing to ensure that the expansion will comply with the Rogue River LRMP
standards and guidelines for Restricted Watershed MS 22 terrain.
505 F.3d at 896.
3. Defendants failed to correct the violation regarding MS-22 lands
Defendants explained that standards and guidelines limiting soil disturbance in the
Restricted Watershed allocation are incompatible with ski area development,whereas the forest
plan does not apply any limitation on soil disturbance in its Developed Recreation allocation.
Compare AR 03497-98(MS-4 soil standards) and 03710(MS-22 soil standards); see also AR
26236 (explaining difference of standards among land allocations is "likely due to the fact that
many of the specific features and structures associated with recreation areas(e.g., paved roads
and parking lots, or footings for ski lift towers)could not be constructed to result in limited
PAGE 30- PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
Z 000 0'0000'2100'Z22000 MVEW'I
disturbance below specific thresholds, as is the goal in forested areas."); see also 2SAR at 13985
(" . . . the Developed Recreation land allocation does not.contain standards and guidelines for
detrimental soil conditions."); 14067 ("It should be noted that specific standards and guidelines
for MS-4 (RRNF LRMP page 4-5) do not contain specific thresholds for detrimental conditions
as is the case for many other management strategies"). 'Therefore, a forest plan amendment to
change 35 acres from Restricted Watershed to Developed Recreation would make sense given
the purpose and need of the project and the Court's holding.
However, in 2011 SEIS and SROD, defendants invented a brand new, illogical, and
unexplained change of story regarding soil standards and the Restricted Watershed allocation.
As in the 2004 FEIS and ROD,they no longer propose any forest plan amendment. Instead, they
analyzed the entire footprint of the project as if all of the affected lands were allocated by the
forest plan to Restricted Watershed:
For the Mt. Ashland Ski Area Expansion project the"activity area" within MS 22
(Restricted Watershed)is the total developed area for ski expansion within the Upper
Ashland Creek Watershed(74 acres). Activities would include run and lift clearing.
Effects from compaction, puddling or displacement are minimized because of mitigation
measures including the use of low ground pressure construction equipment and the use of
helicopters for tree removal. The 2004 Record of Decision disclosed an estimated
percent of detrimental conditions at 16.5 percent for Modified Alternative 2(the
decision); refer to Table ROD-4(page ROD-20). The estimated 16.5 percent represents
the total detrimental soil conditions for all affected watersheds. The predicted
detrimental soil impact for activities within Restricted Watershed MS 22(specifically the
Upper Ashland,Creek Watershed)is 8.7 percent detrimental disturbance(6.45 acres),
which is in compliance with the 10 percent Standard and Guideline.
2SAR at 13988. See also id. at 13995 (same). This unprecedented shift in defendants' inventory
of lands effectively defines Developed Recreation out of existence, and it flatly contradicts prior
analysis in the record without any explanation for the change of agency position. See AR 22506
(explaining need to amend forest plan to "designate the MASA SUP area as Developed
PAGE 31 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICEIMOTION"
• Z 000'0'EDW 8100'69E000 Mozoo i
Recreation(MA-41" and stating that "The 1991 ROD/FEIS for the MASA enlarged the SUP
area and this area is currently being managed for Developed Recreation under the guidelines of
the RRNF Forest Plan. The currently proposed facility expansion . . . is contained totally
within this expanded permit area"). Instead of amending the Forest Plan or disclosing
detrimental soil conditions or mineral soil exposure on the 35 acres in the project area that are
subject to standards and guidelines for Restricted Watershed, as required by the NFMA,
defendants present anew analysis without explaining(1)how they chanced 39 acres of
Developed Recreation into Restricted Watershed and(2)why forest plan amendment is not
required to accomplish the change.
The presentation of land allocations in the 2011 SEIS and SROD causes defendants to
appear confused on the facts,at best, or deliberately intent on misleading the public and the
Court regarding forest plan requirements, at worst. The SEIS states, on one hand, that "the
'activity area' within MS 22 (Restricted Watershed)is the total developed area for ski expansion
within the Upper Ashland Creek Watershed(74 acres)," and on the other hand it includes a map
indicating that Developed Recreation lands continue to dominate the project area Compare
2SAR at 13988 and 13994 (Figure FSEIS II-11 displaying "supplemental land allocations,"
including "Administratively Withdrawn— Developed Recreation(RRNF)").
The map of land allocations in the SEIS highlights defendants' error in treating the 74-
acre MASA expansion as the"activity area" for Restricted Watershed lands. It does not display
the location or extent of Restricted Watershed within the SUP boundary, in apparent disregard of
the Court's holding. Sep ONRC v. Goodman, 505 F.3d at 896(" . . . part of the ski area retains
the Restricted Watershed MS 22 designation . . . "). Instead, the map shows Restricted
Watershed entirely outside of the SUP boundary, on the fringes of a"Site Scale Analysis Area"
PAGE 32- PLAINTIFFS'RESPONSE TO DEFENDANTS' "NOTICE/MOTION"
Z'000'0'Zow 8LW anmo Fovzoo'1
(which is larger than SUP area—see AR 26589).
Defendants' new definition of"activity area" for Restricted Watershed lands,which now
either overlaps or excludes the Developed Recreation allocation that is so clearly shown to exist
in the project area suggests that they have failed to consider an important aspect of the problem,
or else offered an explanation for its analysis and decision that runs counter to evidence in the
record. Their brand new story claiming that soil standards for Restricted Watershed apply to an
"activity area" that is more than double the actual extent of that land allocation, without any
forest plan amendment, is arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n v. State Farm
Ins. 463 U.S. 29, 57(1983)("agency changing its course must supply a reasoned analysis.").
The SROD fails to remedy the violation of Forest Plan guidelines for Restricted
Watershed by enlarging that land allocation without a forest plan amendment, and defining the
Developed Recreation allocation out of existence. The bottom line is that it remains impossible
to determine whether the expansion would meet the important Forest Plan limit for the 35 acres
of MS-22 Restricted Watershed designation— soil disturbance of less than 20% of an "activity
area."
IV. THIS COURT SHOULD ALLOW PLAINTIFFS TO AMEND THEIR EXISTING
COMPLAINT TO CHALLENGE THE SUPPLEMENTAL EIS
Under Fed. R. Civ. Pro. 15(d)a court may permit a party to serve supplemental pleadings
dealing with occurrences and events that occurred after filing of a prior pleading. District courts
have broad discretion to allow supplemental pleadings to furtherjudicial economy and
convenience; use of Rule 15(d)toward this goal is favored. Keith v. Volpe. 858 F.2d 467, 473,
476(9th Cir. 1988). The goal of judicial economy is served by allowing supplemental pleadings
where the district court and all the parties are already familiar with the underlying action. Id. at
PAGE 33 - PLAINTIFFS' RESPONSE TO DEFENDANTS' "NOTICE(MOTION"
)INVl8 1d3-1 AllVN011N31N1 39Vd SIHl
Yd
476. Supplemental pleadings under Rule 15(d)are "designed t���rmit �t}�si o �he sc� �1
of existing litigation to include events that occur after filing the original complaint" when there
THlS.PAGE INTENTIONALLY LEFT BL NK
is a relationship between new clams and the onginal matter. Id. al;W, 474. See also U.S. for
Use of Atkins v.Reiten, 313 F.2d 673, 675 (9th Cir. 1963)("[T]here is no reason to read into
Rule 15(d) an inflexible limitation upon the broad power vested in the District Court to permit
supplemental pleading.").
In this case, there is a clear relationship between the facts and claims at issue in the
challenge to the Forest Service's earlier EIS, and the facts.and claims that will arise in plaintiffs'
challenge to the supplemental EIS. This Court is also already familiar with the underlying action
giving rise to the SEIS, and expansion of the scope of this litigation through a supplemental
complaint will further judicial economy and convenience. Moreover, if this Court refuses to
dissolve the present injunction in this case, authorizing plaintiffs to file a supplemental
complaint to challenge the SEIS will allow this Court to continue to supervise the injunction
until the Court completes review of the SEIS, at which time the Court can once again decide
whether or not to dissolve the injunction. For these reasons,this Court should permit plaintiffs
to file a supplemental complaint,to allow the Court to review the lawfulness of the SEIS in light
of the full administrative record.
CONCLUSION
Based upon this brief and the record before the Court, plaintiffs respectfully request that
the Court reject the defendants'request(or in the alternative, "notice") to dissolve the injunction.
Respectfully submitted March 14, 2012.
f /s/Marianne Dugan
1 Marianne G. Dugan, OSB # 93256
259 E. 5th Ave., Suite 200-D
)NSE TO DEFENDANTS' "NOTICE/MOTION"
Eugene, Oregon 97401
(541)33&7072
Chris Winter, OSB# 98435
Crag Law Center
917 SW Oak St., Suite 417
Portland, OR. 97204
(503) 525-2725 Page 2 of 4
Attorneys for Plaintiffs
NASA Finds 2011 the Ninth-Warmest Year on Record
01.19.12 January 19, 2012
http://www.nasa.gov/topics/earth/features/201 1-ternps.html
The global average surface temperature in 2011 was the ninth warmest since 1880,
according to NASA scientists. The finding continues a trend in which nine of the
10 warmest years in the modern meteorological record have occurred since the
year 2000.
NASA's Goddard Institute for Space Studies (GISS) in New York, which monitors
global surface temperatures on an ongoing basis, released an updated analysis that
shows temperatures around the globe in 2011 compared to the average global
temperature from the mid-20th century. The comparison shows how Earth
continues to experience warmer temperatures than several decades ago. The
average temperature around the globe in 2011 was 0.92 degrees F (0.51 C) warmer
than the mid-20th century baseline.
"We know the planet is absorbing more energy than it is emitting," said GISS
Director James E. Hansen. "So we are continuing to see a trend toward higher
temperatures. Even with the cooling effects of a strong La Nifia influence and low
solar activity for the past several years, 2011 was one of the 10 warmest years on
record."
The difference between 2011 and the warmest year in the GISS record (2010) is
0.22 degrees F (0.12 C). This underscores the emphasis scientists put on the long-
term trend of global temperature rise. Because of the large natural variability of
climate, scientists do not expect temperatures to rise consistently year after year.
However, they do expect a continuing temperature rise over decades.
The first 11 years of the 21 st century experienced notably higher temperatures
compared to the middle and late 20th century, Hansen said. The only year from the
20th century in the top 10 warmest years on record is 1998.
Higher temperatures today are largely sustained by increased atmospheric
concentrations of greenhouse gases, especially carbon dioxide. These gases absorb
infrared radiation emitted by Earth and release that energy into the atmosphere
rather than allowing it to escape to space. As their atmospheric concentration has
increased, the amount of energy "trapped" by these gases has led to higher
temperatures. OVER >>
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While average global temperature will still fluctuate from year to year, scientists focus on the
decadal trend, Nine of the 10 warmest years since 1880 hdtve occurred since the year 2000, as
the Earth has experienced sustained higher temperatures than in any dectule during the 2011t
century. As greenhouse gas emissions and atmospheric carbon dioxide levels continue to rise,
scientists expect the long-term temperature increase to continue as well (Data source: NASA
Goddard Institute for Space.Studies. Image credit:NASA Earth Observatory, Robert Simmgn)
The carbon dioxide level in the atmosphere was about 285 parts per million in
1880, when the GISS global temperature record begins. By 1960, the average
concentration had risen to about 315 parts per million. Today it exceeds 390 parts
per million and continues to rise at an accelerating pace.
The temperature analysis produced at GISS is compiled from weather data from
more than 1,000 meteorological stations around the world, satellite observations of
sea surface temperature and Antarctic research station measurements. A publicly
available computer program is used to calculate the difference between surface
temperature in a given month and the average temperature for the same place
during 1951 to 1980. This three-decade period functions as a baseline for the
analysis.
For more information:
JULIE NORMAN JULIE®JULIEKAYNORMAN.COM .
Source:
Global Climate Change Impacts in, the U.S. (p. 42)
U.S. Global Change Research_ Program
Projected Changes in the Water Cycle
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rTrends in w�ntec"snow-to totattpree�pitationratio from1949 to�20U5Red Clrc�es �nd�cate
Mess snow, while blue squares indicate more snow tar -ir-% d squares md�cate
��the most significant trends "a Areas south of 37°N 'tatt tude�were�cluded from sheL
�?AS �°j, e °p�'uS q �!fy'' �yy�4 . u- � =
analysis because most^of that area recerves`little snowfall White areas`abo le that line
khave inadequate data,for this anatys�s f ,�� °�� �<te � ` ; ,
Council,
With the release of the Special Use Permit with the Forest Service and the
Lease with the Mt. Ashland Association, the Ashland City Council is now no
longer restricted by the limitations of the Lease and the Court Ruling
against the rty.
We now face a very risky situation where the Mt. Ashland Association and
the Forest Service may attempt to move forward with the ski area expansion
before the Court has ruled on lifting the injunction or an appeal is heard.
This scenario will not only deeply divide our community but could result in
a situation where trees fall but the project cannot be completed because it
is halted by the Court.
The Sierra Club has an agreement that logging will not begin before April
1, however, no guarantee that the legal process will be exhausted before
implementation begins. The City Council has the authority under the 1929
Cooperative Agreement between the City of Ashland and the Forest Service
for the management of the Ashland Watershed, and a Memorandum of
Understanding (MOU) drafted in 1996, and updated in 1999, to make this
request of the Forest Service. It states, ". . . before entering into any
agreement for the cutting of timber or removal of other forest products
from national forest lands within the area, the officials of the City of
Ashland will be consulted and full consideration will be given to any
requirements the City of Ashland may desire to impose as necessary for the
safeguarding of the water supply."
The City has the unambiguous authority to make the request that an Appeal
of the Motion to Lift the Injunction and final Order from the Appellate
.Court is issued before implementation of the project begins.
I apologize for the late notice, however, with April 1 coming quickly, it
is imperative for the health of our community and water supply, that the
Council place this on the upcoming Council Agenda and take action to
immediately send a letter to the Forest Service making this reasonable
request.
Respectfully,
Eric Navickas
GMO-Free Jackson County is a groupof citizens
who are concerned about food sovereignty
and the effects of GMOs on our health. We are
working to ban the cultivation ofGMOproducts FICTION: I would know if a GMO crop was FICTION: Roundup (glyphosate) is a
in Jackson County, and throughout the state of being grown around me. relatively safe herbicide.
Oregon, in order to protect the safety of our
food supply for generations to come. FACT: Syngenta, a corporation from outside FACT: Glyphosate:
the valley,has been leasing fields to grow GMO • Has promoted an increase in plant diseases.
What is GMO? crops. Although farms raising GMO crops are • Has promoted the development of a pre-
"GMO stands for genetically modified organism, required to maintain a 4-mile distance from viously unknown pathogen which has been
which is a plant or animal that has been farms that are growing crops for seed, it is un- linked to infertility and abortions in animals.
modified on the genetic level to include genetic likely that the small farmer or home gardener • Makes minerals inaccessible to plants,
material from organisms that would not mix in will be taken into consideration. which can negatively impact livestock and
possibly humans.
nature.This is different than cross breeding and FICTION: GMO crops and seeds can co-exist • Bioaccumulates in the soil, adversely
grafting, which are techniques which involve with non-GMO crops. affecting future crops.
closely related species." From Oregon Tilth • Kills beneficial soil microbes, damaging soil
Organic Certifiers. FACT: GMO crops cross pollinate with similar g g
g plants and contaminate non-GMO crops. This microecology.
What is being grown locally and where? damage is irreversible. GMO sugarbeets being FICTION: GMO crops do not affect neigh-
GMO sugarbeets have been grown for seed in grown in this area will jeopardize both beets boring farms.
and chard being grown for seed and the plants
the Rogue Valley for at least two years. These that are subsequently grown from that seed. FACT: Growing GMO crops close to an
sugarbeets, grown by the Swiss agribusiness organic farm places an unfair burden on these
company Syngenta, are genetically modified to FICTION: GMO crops have been adequately farmers. They need to pay for costly testing
resist the herbicide glyphosate, which can then tested for safety. to ensure their crop has remained GMO-free.
be liberally sprayed on a field,killing all weeds. FACT: When genetically modified seed was If the crop is contaminated it cannot be sold
Syngenta informs us that they are growing just coming out the U.S.Food and Drug Admin- as organic. Both conventional and organic
crops from Ashland to Grants Pass, and west to istration granted them GRAS(Generally Recog- farmers have been sued and threatened with
the Applegate. A plot on Normal Ave, 2 blocks lawsuits for patent infringement when GMO
nized As Safe)status,which allowed them to be
from the Ashland Middle School garden, was commercialized without any additional study. Pollen has contaminated their non-GMO
planted with GMO sugarbeets last year. Other Independent studies have consistently demon- crops. Defending themselves from these
GMO plots are in the Valley View area. strated serious concerns about safety. lawsuits is a financial hardship for small
farmers.
FICTION: GMO crops use less herbicide than
I hetieve that saving seeds conventionally grown crops.
FACT: Herbicide use has increased 107o j, or j
is our ecottogicar 383 million pounds during the first 13 years
of GMO use, with half of that increase in the
D d, last two years. Farmers of Roundup Ready begin with seed!
Director o GMO crops are applying more Roundup Chris Hardy
on Science, Technology and Ecology (glyphosate),more often, to kill "super weeds'
LocalFarmer
that have become tolerant to Roundup.
INFORM AND ACTIVATE RESOURCES
Books
Become Personally Activated • Seeds of Deception,Jeffrey Smith, 2006. •
• Educate yourself. • The World According to Monsanto,
• Talk to your family, friends and Marie-Monique Robin, 2010.
neighbors about what you've learned. • Seeds of Destruction:The Hidden Agenda of JACKSON COUNTY
• Check out resources on the back panel. Genetic Manipulation, William F.Engdahl, 2007.
• Purchase and consume GMO-free foods. • Genetic Roulette: The Documented Health
• Plant a garden. Risks of Genetically Engineered Foods,Jeffrey
Smith, 2007.
Become Active Locally Videos
• Get connected through our website: • The Future of Food,A Documentary, 2007.
www.gmofreejacksoncountyorg, • Scientists Under Attack: Genetic Engineering `,1�\�\U\ 1 ♦, s
and through the GMO-Free Jackson in the Magnetic Field of Money, 2011.
• Dr. Mercola interview with plant pathologist,
GMO-Free-Jackson-County.
County Facebook page: Don Huber, Ph.D.: www. me cola.om, then
search for Don Huber interview.
• Attend our weekly organizing meetings. • Monsanto vs. U.S. Farmers—www.centerfor-
• Joinacommittee—outreach/education, foodsafety.org/pubs/CFSMonsantovsFarmer-
political political action, technology,,health
R ty g/Pubs/CFSMonsantovsFarmer-
eport1.13.05.pdf.
• Donate money. j� s Websites
r
Become.,Active a#the`State Level www.responsibletechnology.org/
www.saynotogmos.org/
•:Advocatefor G O abe m
x organic-center.org/science.tocreports.html The mission of GMO-Free
gle ego ig o .t � i t protect
C
k
www.or aricconsumers.or / Jackson County s 0
ab )I III, � g g p
www.stonyfield.com/why-organic/genetically- the growth and propagation
modified-organisms-gmos of non-genetically engineered
www.naturainews.com/032510_unborn_babies
No ONE G E
_
TS UF IN TFIE
GMOs.html plants and animals by banning
MORNING SAYING I WANT www.ucsusa.org/food_an d_agriculture/saence_ the cultivation Of GMOS In
TO GO BUY A GENETICALLY and_impacts/science/failure-to-yield.html Jackson County.
ENGINEERED FOOD. 'I'l-IFY OFFER NO BENEFITS — NO MORE
Shopping Guide
NUTRITION, NO MORE FLAVOR, www.nongmoshoppingguide.com/
NO MORE ANYTHING. -1-1-II.Y Free Jackson County
Advocacy Organizations GMO-
ONLY OFFER RISKS. Institute for Responsible Technology On Facebook: GMO-Free Jackson County
The Center for Food Safety Website: www.gmofreejacksoncounty.org
Lawyer, Center for Food Safety Non-GMO Project Email: gmofreejacksoncountygkmail.colm >
The Organic Center Phone: 541-708-3151
Oregon State University Extension
Small Farms Program
presents
Public Information Session
Genetically Modified Organisms (GMO)
Monday,March 26th
6-8pm
soothe.Oregon g earch 8 EMmlon Centef
Auditorium
569 Hanley goad
Central Paint
more information:
561-776-7371 W 3pg
Dr.Carol Mallory-Smith
OSU Professor of weed Science
Department of Crop and Soil Science
Topics to include:
how GMOs work in seed crops `
isolation distances required for vegetable families
the use of pinning maps for seed growers
regulation of transgenic crops
State Administrative Rules for Control Areas
a Mag>v-smltn vm e..gn.n on u eff...E.rh.n6.
FrMar.Mud,6Ld p g.m /�
Oregon StateO`�tnwm.
{{ii
MAL INSTITUTE FOR ✓ �� �
V RESPONSIBLE TECHNOLOGY ryo m
GMOs Inevitably Contaminate and Persist
Incompetent Regulation of Field Trials
Field trials are conducted without third party verification that contamination has not occurred.Oftentimes,the
government jurisdiction overseeing the site does not even have the capabilities of testing the crops.And the
companies never provide insurance to cover the costs or clean up if contamination occurs.
"Illegal GM seeds are present in several provinces because of weak management"
--Chinese environment ministry official
A 2005 report by its Office of Inspector General,concluded that the US Department of Agriculture(USDA)was not
competently overseeing the nearly 50,000 field trials it had approved since 1986.It said,"current regulations,policies,
and procedures do not go far enough to ensure the safe introduction of agricultural biotechnology"In addition,"at
various stages of the field test process—from approval of applications to inspection of fields—weaknesses in APHIS
[a USDA department's] regulations and internal management controls increase the risk that regulated genetically
engineered organisms will inadvertently persist in the environment before they are deemed safe to grow without
regulation"
Illegal L3 rice has,,beennspread for years•in China,and
wRirnynd in F n eeaan'food importrat+least 11 S times
between 2006 and May 201x1+'
-• � , mwmm_,
Field tests ofMOnsanto's,GMbentgrassin2003 Jack A.Heinemann,Hope Not Hype:The Future of Agriculture Guided
by the International Assess-
ont aminated naturdl ssat lea . ment ofA Agricultural Knowledge,Science, forDevelop ment,ThirdWoddNetwork,
<YRR Penang,Malaysia,2009.
'TheyC Ontaminatlon'COr1YIn1125,inthe,area. Risky business:Economic and regulatory impacts from the unintended release of genetically en-
gineered rice varieties Into the rice merchandising system of the US.Report for Greenpeace,2007.
EvenarumorthatGMpapayawasstolenfroma 'Mexico Halts US Rice Over GMO Certification.Reuters,16 March 2007.
a yM 'William Freese,'The StarLInk Affair,Submission by Friends of the Earth to the FIFRA Scientific
Thailand field teal'interruptedsales'toEuropean Advisory Panel considering Assessment of Additional Scientific Information Concerning Stanink
marketsin 2004 I "ji, %
Corn,July 17-19,2001,
'The United States District Courtforthe Northern District of California.Case 3:06-cv-01075{RB
Document 199 Filed 05/0312007:Memorandum and Order Re:Permanent Injunction.
�,/,C_anola seeds imported into Japan havespilled;from Coexistence of plants and coexistence of farmers:is an individual choice possible?Binimelis,R,
Journal of Agricultural and Environmental Ethics,21:437-457,2008.
trucks at the ports;causing contaminatiorrof i"Ile al
9 CDC Triffid Flax Scare Threatens Access To No.I EU Market Allan Dawson.Manitoba Co-operator,
GM,GanolagrowinginthatGOUntry.1°Now GMcanola 17 September 2009;Changes Likely For Flax industry.Allan Damon.Manitoba Cooperator,24
September 2009.
a�rossedwithi__ ii 2—u–S a Panneseweedsintne •BiotechcompaniesfuelGMcontaminationspread.GreenpeaceInternational,29February 2008.
same area.Hundreds of.GMrplants were.found along http7/www.greenpeace.org/international/news/gm-ge-contamination-repon290208
roadways inNorthDakota,USA."GMeanola spread 'AgenceFrancePress,asreportedinIndependentonSunday,19June,2011.http9/wwwJndepen-
dentco.uk4ife-style/health-and-families/gm-dce-spreads-prompts-debate-in-china-2299847.html
from`fieldtrlalsinGaliforniaandlhas•beenfound 10 National Institute for Environmental Studies(NIES):A monitoring survey concerning the environ.
growing wild'alongside;roadSandhighways.12gnd32 mental impact caused by Genetically Engineered Iiving organ Isms(canola),February 2005httpJ/
of:33'ba s of non- Canola-seed in Canada were www.bch.bioditgojp/download/natane/rapewecLreponI6.pdf
g n Presentation at the Ecological Society of American,6 August,2010,we httpJ/newswire.uark.
contt urinated -ith GMvarieties.13 Such ContaminatlOn edu/articleaspx?id=14453
fro mum¢anolahasmadeTtvirtuallyimpossibleto v Ken Roseboro,'GM canolais herbicide-resistant weed inCalifornia,'The Organic and Non-GMO
y Report,May 1,2011 httpJ/www.non.gmoreport.com/articles/may2011/gmcanolaherbicideresls-
cult" iv_ate:organic,non-GM oilseed rape." anweed.php
i ' « - "Friesen,L-Nelson,A.&Van Acker,R.(2003)Evidence of Contamination of Pedigreed Canola
(Brassica napus)Seedlots In Western Canada with Genetically Engineered Herbicide Resistance
^'T Tralts'Agronomy Journal 95,2003,pp.1342-1347,cited In NFU(2005b),
"Organic farmers seek Supreme Court hearing.Press release,Organic Agriculture Protection Fund
Committee,Saskatoon,Canada,1 August 2007.
's
USDA-Office of Inspector General report,'APHIS controls over issuance of genetically engineered
organism release permits;Washington,DC,December,2005,
httpVAw .usda.gov/oig/mbdoW50601-08-TE.pdf
Page 2
Institute for Responsible r r r • Fairfield,
STITUTE FOR
MESPONSIBLE TECHNOLOGY
N ,,. ;, GM®s -Ine� t�abl Conit�aminate and Pers.'�st
GM crops are a source of self-propagating y J
genetic and environmental pollution.The
experience over the last 15 years demonstrates
that GMOs are uncontainable.They inevitably / }
contaminate non-GM crops and sometimes
wild relatives,and will persist in nature for riA
many years.' The industry idea that their crops
can"coexistence and remain segregated is
short-sighted and ignores the impacts of wind, - p '
insects,floods,animals,theft,and human error.
The entry of GM crops into a country generally
removes choice,where everyone that type of
species is gradually forced to grow GM crops
J
or to have their non-GM crop contaminated. In 2006 GM rice grown for one year infield trials five
Those seeking to remain non-GMO are years earlier was reported to have contaminated the
burdened with the costs of buffer zones, US rice supply and seedstocks,' and found in Africa,,
testing,segregated storage and shipping,and Europe,and Central America.US rice futures dropped
losses due to contamination. immediately by$150 and exports dropped by about
20%from the previous year.3The total cost could reach
The spread of GMOs as high as$1.2 billion:
takes place through • Contamination of US corn by Starl-ink.in 2000
cross pollination, halted exports and cost about$1 billion,in recalls;
seed movement, j lost markets,price reductions,clean up,and lawsuits."
"volunteer"crops ? Five years later,US corn exports again suffered
(growing from additional losses when 1300—not approved for
commercialization—contaminated US stocks.
previous years'
unharvested seeds), US courts acknowledge that approval of GM alfalfa
and accidents by I '-threatened the existence of non-GM alfalfa through
seed companies �'�y cross-pollination'
and farmers.It G ' ;
occurs not only from Cross-pollination problems by Spain's GM corn
commercialized production caused theirorganic corn production to .
drop significantly.'
GMOs, but also
field trials of In 2009,the Canadian flax seed export market to
unapproved varieties. Europe collapsed after widespread contamination '
Contamination can with an unauthorized GM variety was discovered.'
impair the ability of organic and non-GMO
farmers to receive premiums,create super ( • In 2007 alone,there were 39 new instances
{ contamination in 23 countries,and 216 incidents have
weeds,permanently alter a species gene pool, lieen reported'between 2005-2007.8
and block export and specialty markets.
Responsible Institute for . . . • Box 469-Fairfield,IA 52556
0.
1�
Ail
1 STITUTE FOR
® ESPONSIBLE TECHNOLOGY
GM Cre s Do Net Increase Yield Pet4en vial
From the start,GM crops have performed no better than their non-GM counterparts.
Evidence for the"yield drag"of Roundup Ready soybeans,for example,has been known for
over a decade'—with the disruptive effect of the GM transformation process accounting
for approximately half the drop in yield 2 Field tests of Bt corn showed that they took
longer to reach maturity and produced up to 12%lower yields than non-GM counterparts.'
In spite of these and other studies,the biotech industry continues to claim that GMOs are
j the answer to higher yields.Two reports have conclusively contradicted these claims.
y The International Assessment of Agricultural Knowledge,Science and Technology for
t ; Development(IAASTD)report 4 authored by more than 400 scientists and backed by 58
governments,stated that GM crop yields were"highly variable"and in some cases,"yields
�•
declined.'The report noted,"Assessment of the technology lags behind its development,
information is anecdotal and contradictory,and uncertainty about possible benefits and
damage is unavoidable."This assessment was based on a comprehensive evaluation of
yield since the introduction of commercial GM crops.
The Union of Concerned Scientists'2009 report Failure to Yield is the definitive study to
date on GM crops and yield'Authored by former US Environmental Protection Agency
scientist Doug Gurian-Sherman,PhD,it is based on published,peer-reviewed studies
conducted by academic scientists using adequate controls.The study concludes that
genetically engineering herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields.Insect-resistant
corn has only marginally improved yields.Yield increases both crops over the last 13 years were largely due to traditional
breeding or improved agricultural practices.Dr.Gurian-Sherman states,"Traditional breeding outperforms genetic
engineering hands down 116
Although there are few peer-reviewed papers evaluating the yield contribution of GM crops in developing countries,
data from Argentina suggest that yields are the same or lower than
conventional non-GM soybeans.' CommercialGEcropsih�av enoinroo ss Rinto
raising thFintrinsic or potential yield ofanycrop.Bycon-
In the West,crop failure is often accompanied by government bail trust,traditional breedinghasbeenspectacularlysuccessful
outs.Sometimes even seed companies are forced to reimburse in rhisregard,•itcan beso/elycre�`�tlired�`wiinrrinstcyield
inereasesin the United States and other parts of the world
farmers,as happened when GM cotton was first grown in the US. that characterized theagricultureofthetwentieth century.
Unanticipated plant deformities and failures caused Monsanto to —Failure to Yield:Evaluating the Performance of
pay farmers millions of dollars for their losses' Genetically Engineered Crops
In developing countries,crop failure can have severe consequences.This is illustrated in India,where a large number of
cotton farmers,unable to pay back high interest loans,have committed suicide.Several investigations have implicated the
unreliable performance of Bt cotton as a major contributor.10
"GEcropsovailableforcommercialusedonotincrease Bt cotton was also overrun by pests in Indonesia0 and China10.in South
shell, t d potential.ofa varie-717facct v'ield Weven Africa,farmers faced pest problems and no increase in yield.The 100,000
decrease....Perhops,the blggestussue rased by,these results hectares planted in 1998 dropped 80%to 22,500 by 2002.As of 2004, 85%
showtoexplain therapidadopt ionofGEcropswherrfarm of the original Bt cotton farmers had given up.Those remaining had to be
financialimpactsappeartobemixedorevennegitive.."" subsidized bythegovernment.","Similarly in the US,Bt cotton yields are
—US-f)epartmentof Agriculture.report not necessarily consistent or more profitable."
Institute for Responsible Technology • Box 469-Fairfield,IA 52556
r
t
STITUTE FOR
L . _
P ESPONSIBLE TECHNOLOGY
GM Crops 19001 Not Increase Yield P Mile"ntrial
The biotech industry promotes higher in Uganda,developed in less time and at improvements in other indicators of food
yield myths a fraction of the cost,has"raised yields by security.19
It is common for the chemical/ roughly 100%.711 Similarly,conventional
biotechnology companies to use (non-GM)breeding produced virus "Organic agriculture has clearly produced
conventional or marker assisted breeding resistant cassavas that do well in Africa increases in food production.Moreover,a
to produce higher-yielding crops and even under drought conditions,"while the switch to organic farming has led to other
afterward cross the variety with a GM highly promoted GM cassava project has improvements including environmental
crop to add herbicide tolerance or insect thus far been a failure. improvements,strengthened
resistance.In these cases,higher yields communities,improvements in the
are not due to genetic engineering but to What is the way forward? education and health of individuals and a
conventional breeding. A stunning multi-year study in Africa reduction in poverty.20
by the United Nations Environment
There has also been substantial media Programme provides an answer.High The lesson here is that these gains
coverage of supposed GM successes in external inputs of chemicals and did not require GM plants.In fact,the
Africa and elsewhere that never actually fertilizers are needed for conventional agricultural industry that promotes GM
materialized.The GM virus-resistant industrial agriculture and it is for this plants promotes a form of agriculture
sweet potato,for example,has been a kind of agriculture that GM crops are that is neither sustainable(IAASTD)nor
showcase project for Africa,generating designed.UNEP found in side-by-side conducive to promoting food security and
significant media coverage.Although trials conducted in multiple countries food sovereignty.When asking whether
Florence Wambugu,the Monsanto-trained that farmers using agroecological or not to adopt GM,the question is not
scientist,claimed the GM sweet potato science outperformed farmers using whether GM has benefits within a non-
doubled output in Kenya,the actual field conventional approaches by up to 179%: sustainable agroecosytem such as in the
trial results showed the GM crop to be a In addition,communities that were in USA,but whether it has benefits when
failure.1 ,"By contrast,a conventionally- the agroecological trials saw significant compared to agroecological approaches.
bred,high-yielding,virus-resistant variety
References:
`EWknceof.Maynhude and Cmugwnea of inelmuMUp R.ady Sobean YkPJ DnyfmmUnierd ftWNMlal Trhh In 1998.BenbmokC&nanooKowuN,g Sarnoes SalMpoat Main.A9 Ww ti IMolietiechnkalINWNVMer
1,13 M 1993.
,.Wl www.Mntlbly.oq/GF/PRS-YkM-0rayh[m
'GIypM1Ont--roan orabeln cuMVarylelds[omeared Mth dshr llv EhroreR.W ot al.Agronomy burnt 93:401141],1001,
'Deveb9mmG ykld grain rtmistee and nitrogen uptakeM StNm hybrids and their comentbnaI reerlsoliner.Ma 1L and SPbe l N.D.fkid Corps Reseortll.93:19Y111.MS.
'Intematbinl Assesrrlw[of pgrkul[unl NrnMMg4 Yience aM Tchmb3y mr DerxbpmenC GbNI SUrtnury br pecidm Ma trn IIM510},&In[m6 N H a4 ZI09.
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r Dwg GmknSheman4uomtlm UnbnofCailarnedlc En rWd Mm1WGurrbuSW mUnM n-agmerre's[bre-and_InpacWsoercaMaRUSm-YkldllvN
rfoadu,Yed:Evaluatingds9 edonmaneolMandcaggEgate welt Cops Doug In M.and G.Tm eL of Agrkul1red5dendsm AM173-ei 13
'Ibe(lena xd/heaard Inirwarias WnswMaM(tWUM.Difa r. cKOalmBuauG.Tntlindwt AOcWu ralE 9.199731]3-08. '
'1Le Gene EmMnpe,aM(heir Nnve;utbniwM Ruben M[CaT/.Dlrtcmt Mlulsilppl Bureau of PNntlndua[ry,O[mber]aM 9,199T,'MOnnmoCM1e[ka Cotbn Probl[m;'Cammerclal Appeal MemPlll;Tenn.AuyuA
h 199]IW Blwmbw9 News onl6el:
'MlsshLppl Investpa0ng Namm�mk COnon'COmmerckl AppaLMemRll;lean.AUpw[14199)IW Bloomberg Nra onMel:B Reld,'P�odems Crap UpwIN New Urton Varkry,'ClarbmLLdpet MCksory Mhs,Ao9us[M
199];&MktGmedc Cotton
Bxlfires.'OaMn{stlgttla<ksort Mks.September 14199];BRNd'Nes Breed ofCOttan Raba Mwe Ouatlom;CkrbmLLdge;hbwn a1h;September N.199];Mishzlppl Depth aM[omme[e Seta AAllratlan Coundl
Rttomnwdstbnotln[tleamC
Pzlilom fame,Raman lndu ,Tale Mentlng Co.v.I3eb arM PUS Za Ine part, and (aeltre, and!IAy,(J11MS'MOnanm ultlapenedcueticorrykbt'KYIIme;RD23/l3/9B;5/L3B,L694b15NBmmersaWmwhh4Barran
Monsantg0.
McCarty,Miss&n.%ant,,kw VoftMcM1Nle tyPa hMeM1NaMCobshw(artASMtla Dena Ps and!Fxt(tutee
"Tremorlu naen,TM$r Bek 141;and Popet Nrran Igh101169
'-S./,lumbiachyyap.c IkB=1141;anFAImNfsrH nW9htsand Global Human PJ9ht;and the Agrarian CrW41n India)New York NYU Xhaol Mlaw,MID.
"5=n Unmple'INWrgliABT 111 ms RasnekneKcN nbIN 15Mayngm1 hrtpy/n9io'l m&ry, 5 amel
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M1rtpl/www.newvm,nellMWSUwkLlulyg4'BtcovanCM1VUSSIIItmkantl SM1engM1Ul WangaaLMOB.BtCOtmnaMk Marypa6lmm�atbrellourlul of BbteNmlag/101/3,
hrtq/vmwaskb`anry=e to mnln t l nSxnM by Co s unftym
"I Disarterd mmn ofopWn oB[Co[mnIn CJa y South Nan A Community M[dkkNd i Nta( and Dean D ll,etetSadery,IlkdembelIMU fedwiry MO].
"ImpactNB onoe,CornponpestkMeaonic and l HnxAbfesrwe�xWedon tlspentISONh AMra).Hah,14etaLCmP PmmNaM1nle 1. S.hwe 9,5eptanber1008�pR984-900.
"TheA Adoption n onomk COmpadunpe.US gelcand NonttamultamCO[mn ProtlY[tbn Sysdmsbdnry ]gronomJber8H/aeUI0pdf Issue 1,MOB er
"The Adoptionai Bits n neeed QUSDepanum. eAgrkultureng<e May1001.wxw.en.usdagov/pubikatons/aeR10/aeRlOgtlf
^GM uMnobgy hits Ieml pommy Gamnye GaNUre.The Dsly Nstbn gempl.39 Ja nuary Moa. ,
"MOnanm'i alnw[aeeprojatln Akkahlb.New XimtlaC VOl1BI,Wt N33,]febtusry M09. -
`•GttwdoRyrrod'dretlwpsaM zuzbinabk pP.aryaBeWtlnbwbSaMnn Alrka:AnassessmmtofNrnnteMms.ASron@f avLTM1td WuMNetwoMAhkilune MJ3.
•Dmwrs getnter.. Shornrewdce polaknntossava BfA3N,Scher.See UV Aeo meWb.UnhMN9lbmfootlaMAgrkuhure OganlMgort 13 Novembers M06
s`Danforth CentnmssandVeal Sealnll[en Atka,' NaNw[h Wn[5dean Cmret3o hme1808.
"VrgankAA.HeinnaMfoolSeotylp:TheFrutted Nations CaMCrerce an TmtleaMDanalAssees will gduInaralMmedge,crsrtme,NOwYarka,M GenvglWB
See also Jack A.Heinema nn,Hope Not Hype:The Ru[u le of AS lkulture GuMetl by the International Assess men[of Agdcu lwral Nnrnvletlge Xle[q and Technobgy for Develop meat ThIN
World!Nawgrk Pea It,Mamysla,1009.
See also l effref M Smith Gene c Roulette:The DocumentM Hn I[h Risks of Genetirally Engineered Eaotl;Yell Boob,fall IheM,IA USA 1007.
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Industry Studies on GMOs Spill e Often Fla ed by Design and Fail to Reueal Effects
A 2011 published paper in thejournal Food
Policy showed how financial or professional
conflicts of interest influence outcomes of
peer-reviewed articles on the health risks or
nutritional value of genetically modified foods.
This comes as no surprise to independent
researchers who,for years, have pointed
out how industry-funded research is often
designed specifically to force a conclusion of
safety. '
When Aventis prepared samples to;see ifdhe potentiaP - b
' allergen inStarLink corn remained intac taftercooking, +-• - r�, i—,�. `�� , �-
instead of using thestandard3aminute treatment,they t "` .ts:,l•_ "'i � (, ' ' �` F
heated corn for two hours.2
• To demonstrate that injections of their GM bovine growth .
hormone did.not,interfere with cow.s fertility,Monsanto
apparently added cows to the study that were pregnant prior `
to injection.' `
• To show that pasteurization destroyed bovine growth
hormone in mllkfrom treated cows;scientists pasteurized the
h
�
milk 120 times longer than normal.l/nableto destroy more I .,;,.
thanI9%;they then spikedthemilkwithahugeamount -
of the hormone and repeated the long pasteurization, r
destroying 90%°(The FDA reported that pasteurization
destroys 90%of the hormone.1) -
i To prove that protein.from GM crops breaks'down quickly.
i during digestion,biotech companies used a.much stronger
acid and thousands of times the amount of digestive enzymes.recommendel by the WHO.°'
i
] • When a 1999 study showed that GM soy contains 12%-14%less cancer-fighting phytoestrogens,Monsanto responded with its owri study;
i concluding that soy's phytoestrogen levels.vary too much to even carry out a statistical analysis.Researchers failed to disclose;however,
that they had instructed the laboratory to use an obsolete method of detection—one that was prone to.high variability.'"
• The levels of certain nutritional components in Monsanto's high lysine cornwere far outside the usual range.for corn;Instead of uurng
normal corn as their control group,:they used-obscure varieties that were also substantially outside the normal,range on precisely i e,
values;Thus,their study found no statistical differences by design.Monsanto also told Australian regulators that the added protein m theisr
high lysine,GM corn is found in soil;therefore it has history,of safe;consumption since people'ingest soil residueson fruits and vegetables:
Based on the amount of this proteiman average US ma le would consume,if all'their coi i were Monsan o s variety,"for equivalent exposure
of the protein from soil"people would have to eat..,nearly as much as 10,000 kg.(every]second 24 hours a,day seven days a week s',J
e
I •Field tests of Monsanto's GM'bentgrass in 2003 contaminated-naturalgrass at least 13 miles away..The contamination continues in the --
area?
w •Even a rumor that GM papaya was stolen from aThailand field trial interrupted sales to European markets in 2004.10
Responsible Institute for • s Box 469-Fairfield,IA 52556
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ESPONSIBLE TECHNOLOGY
In_dustry Studies on GMOs Are Often Flawed by Design and Fail to lseyeal ffects
Roundup Ready Soybeans:Case Study of Flawed Research
Monsanto's 1996 Journalof Nutrition studies on Roundup
Ready soybeans",",have been used often by the industry as
validation for safety claims.Independent experts,however,
T -- published critiques exposing how the research design was
.Other methods used to hide problems are varied and
'r ,tie r =61, - invalid.In the animal stud the used mature animals, not
lentiful For example,researchers: Y2 Y
young sensitive ones,didn't weigh the organs,and diluted
se highly var�ableryar imal starting weights their GM soy 6, 10,and 12-fold.13The"level of the GM soy
detection of.food related changes. ' was too low,and would probably ensure that any possible
• keep feeding tulles short to miss long term lmpactst undesirable GM effects did not occur"Also,the percentage
� & � ,.� ad x„Wtiea st irf"a � of protein in the study was"artificially too high"This"would
•Test ects of, o�ndup Ready soybeans charhave nIV almost certainly mask,or at least effectively reduce,any
been sprayetl with,Roundup
I 1 ., possible effect of the[GM soy]"It was"highly likely that all GM
, Avoid.feeding.anirnalsthe act—IGMcrop,butg1. ethem'`= effects would have been diluted Out.
°14
instead
a singledoseofthe GM protein that was produced
.insideQJ' cteria
Monsanto's compositional studies pooled data from several
Use toofewsubjectstoderivestatisticallysignificant locations,making it difficult for differences to be statistically
results fl " significant. In the only field trial that had side-by-side data,
,=se poor statistical'nethods or simply leave out essential Monsanto mysteriously omitted the results.Years later,a
'::`methods,.data,orstatistics medical writer recovered and published the missing data,
which showed that GM soy had significantly lower levels of
Use irrelevant,controtgroups,and emplopinsensitive protein,a fatty acid,and phenylalanine.Also,toasted GM soy
'evaluation�techniques
meal contained nearly twice the amount of a lectin—an anti-
nutrient,and as much as seven times the amount oftrypsin
References: inhibitor—a known allergen's
'Diels,et al,'Associatlon of financial or professional conflict of interest to research
outcomes on health risks or nutritional assessment studies of genetically modified products;Food Policy(2011)36:197-203.
2 Bill Freese,'The Starl-inkAf fair,Submission by Friends ofthe Earth to the FIFRA Scientific Advisory Panel considering Assessment of Additional Scientific Information Concern ng
Starl-ink
Corn'July 17-19,2001.
2 Pete Hardin,'riaGH:Appropriate Studies Haven't Been Done,"The Milkweed,July 2000.
4 Paul P.Groenewegen,Brian W.McBride,John H.Burton,Theodore H.Elsasser.'Bloactivity of Milk from bST-Treated Cows'1.Nutrition 120,1990,pp.514-519.
'Judith C.Juskevich and C.Greg Guyer.'Bovine Growth Hormone:Human Food Safety Evaluation'Science,vol.249.August 24,1990,pp.875-884.
'See for example,Doug Gurian-Shennan,'Holes in the Biotech Safety Net,FDA Policy Does Not Assure the Safety of Genetically Engineered Foods;Center for Science in the Ptblic Interest,
http://www.cspinet.org/new/pdf/fda-repot_final.pdf
'Marc Lapp6 and Britt Bailey,'ASA Response,'June 25,1999,httpl/cetos.org/anicieslasaresponw.htmi
'M.Cretenet,J.Govan,J.A Heinemann,B.Moore,and C.Rodriguez-Beltran,'Submission on the DAR for application A549 Food Derived from High-Lysine Corn LY038:to permt the use in
food of high-lysine corn,2006,wwwJnbLcanterburyacnz see also Jack A.Heinemann,Hope Not Hype:The Future of Agriculture Guided by the International Assessment of Agricultural
Knowledge,Science,and Technology for Development,(Appendix 3 for soil equivalents using Bt-toxin),Third World Network,Penang,Malaysia,2009.
•Lidia S.Watrud,et al,Evidence for landscape-level,pollen-mediated gene flow from genetically modified creeping bentgrass with CP4 EPSPS as a marker,Proceedings of the 11ati anal
Academy of Sciences,October 5,2004 vol.101,no.40,14533-14538;and Mitch Lies,"Coba presses Scotts for bentgrass plan,Capital Press,Feb.10,2011,http://www.apitalpnss.com/
oregon/ml-coba-letter-021111
10 Kultida Samabuddhi,°Processed papaya exports rejected after GM rumours;Bangkok Post,4 Sep 2004,hnpl/www.biothai.org/cgi-bin/content/news/show.pl?0305
"S.R.Padgette,N.B.Taylor,D.L Nida,M.R Bailey,J.MacDonald,L R.Holden,R.L.Fuchs,'The composition of glyphosate-tolerant soybean seeds is equivalent to that of conventional
soybeans;J.Nutr.126(1996):702-716.
12 B.G.Hammond,J.L.Vicini,G.F.Hartnell,M.W.Naylor,C.D.Knight,E.H.Robinson,R.L Fuchs,and S.R Padgette,'The feeding value of soybeans fed to rats,chickens,catfish,rnd dairy
cattle Is not altered by genetic Incorporation of glyphosate tolerance;J.Nutr.126(1996):717-727.
"A.Pusrtal and S.Bardoq"GMO in animal nutrition:potential benefits and risks;Chapter 17,Biology of Nutrition In Growing Animals(Elsevier,October 2005).
14 Ian F.Pryme and Rolf Lembcke,'In Vivo Studies on Possible Health Consequences of Genetically Modified Food and Feed—with Particular Regard to Ingredients Consisting of Genetically
Modified Plan Materials;Nutrition and Health 17(2003):1-8.
"Barbara Keeler,'News Column;Whole Life Times,August 2000,and A.Pusrtal and S.Bardo¢,'GMO in animal nutrition:potential benefits and risks,'Chapter 17,Biology of Nariclon
InGrowing Animals,R.Mosenthin,J.Zentek and T.Zebrowska(Eds.)Elsevier,October 2005
Photos from:httpl/www.dreamstime.com
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Responsible Institute for . . • Box 469-Fairfield, [A 52556
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ESPONSIBLE TECHNOLOGY
GM Foods Are No Sa e
GM foods are not properly tested for human safety.'el Although
human studies are not conducted,adverse findings in animal
studies have prompted the American Academy of Environmental '*+• �,
Medicine to call for an immediate moratorium on GMOs.They cite '
problems with reproduction,immunity,digestion,aging,insulin { .
and cholesterol regulation,and organ function.The following is a r
selection of studies showing health effects.
• Rats fed Bt corn grew slower,suffered liver and kidney
problems,and had higher blood levels of certain fats'
The stomach lining of rats fed GM potatoes showed excessive
• Rats fed Bt corn over three generations suffered liver and cell growth,a condition that may lead to cancer.
kidney damage and altered in blood chemistry° Rats also had damaged organs and immune systems."
• Mice fed Bt corn showed disturbances in immune system
cell populations and biochemical activity' Gene Transfer:
For years,regulators and the biotech industry claimed that horizontal transfer of
• Mice fed Bt corn over four generations showed GM genes into human or animal cells,or gut bacteria,would not occur.Research
progressive abnormal changes in the liver,spleen,and findings challenge this claim"
pancreas;major changes in the pattern of gene function . GM DNA was detected in the digestive tract of sheep fed GM feed30
in the gut(affecting,for example,cholesterol production,
protein production,and breakdown);and reduced fertility' . GM DNA in feed is taken up by the animal's organs.Small amounts of GM DNA
appear in the milk and meat that people eat" "'
• Sheep fed Bt corn over three generations showed
disturbances in the functioning of the digestive system of •The only human feeding study ever published showed that portions
ewes and in the liver and pancreas of their Iambs' of the Roundup Ready soy transgene transferred into intestinal bacteria and may
have continued to function"
• Liver,pancreas and testes functions were disturbed in -
mice fed GM Roundup Ready(RR)soy',9•10
The biotech industry claims no one has gotten sick—without
• Mice fed GM RR soy over their lifetime showed more supporting data
acute signs of aging in the liver"
• Rabbits fed G GM RR soy showed enzyme function Biotech advocates often respond to the safety question by asserting that
disturbances the kidney and henry' people have been eating GM foods in the United States for 15 years without
ill effects.But GM foods are not labeled in the US and consumers are not
• A review of 19 rat and mouse studies with BT or RR corn monitored for health effects.To identify GMOs as a cause of problems,
or RR soy shows significant organ disruptions,particularly symptoms would have to be fast-acting,acute,and unique(or unusual).One
in livers and kidneys GM food supplement,L-tryptophan,produced an epidemic of a new disease
with these very characteristics,yet it took four years to discover and was
• GM peas*caused allergic-type reactions in mice 14 almost missed"$`
• Rats fed GM canola developed enlarged livers,often a s Numerous health problems have increased in the US since GMOs were
introduced.A report by the US Centers for Disease Control shows that food-
sign of toxicity related illnesses increased 2-to 10-fold in the years between 1994(just before
• GM potatoes*fed to rats caused excessive growth of the GM food was commercialized)and 1999"Multiple chronic illness rates
lining of the gut,similar to a pre-cancerous condition 16,17 jumped from 7%in 1996 to 13%in 2004.Increases in food allergies,autism,
reproductive and gastrointestinal disorders,and auto immune diseases have
Rats fed GM tomatoes developed stomach ulcerations" studies,been reported.But without post-market surveillance or human feedi ng
studies,any link to GMOs cannot be proved or disproved.
*Experimental food,not commercialized.
Responsible Institute for . . • Box 469-Fairfield,IA 52556
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GM Foods Are Not Safe
References: 10 Ultrastructural analysis of testes from mice fed on 30 Fate of genetically modified maize DNA in the oral
'Safety testing and regulation of genetically genetically modified soybean.Vecchio L.et cavity and rumen of sheep.Duggan P.S.et al.
. engineered foods.Freese W and al.Eur J Histochem.,48:448-454,2004. Br J Nutr.,89:159-166,2003.
Schubert D.Biotechnol Genet Eng Rev.,21: 11 A long-term study on female mice fed on a genetically "Detection of genetically modified DNA sequences
299-324,2004. modified soybean:effects on liver ageing. in milk from the Italian market Agodi A.et
'GMO in animal nutrition:potential benefits and risks. Malatesta M.et al.Histochem Cell Biol.,130: al.Intl Hyg Environ Health,209:81-88,2006.
Pusrtai A and Bardoa S.In:Biology of 967-977,2008. "Assessing the transfer of genetically modified DNA
Nutrition in Growing Animals,eds.R. "Genetically modified soya bean in rabbit feeding: from feed to animal tissues.Mazza R.et al.
Mosenthin,1.Zentek and T.Zebrowska, detection of DNA fragments and evaluation Transgenic Res.,14:775-784,2005.
Elsevier Limited,pp.513-540,2006. of metabolic effects by enzymatic analysis. "Detection of Transgenic and Endogenous Plant DNA
3 New analysis of a rat feeding study with a genetically R.Tudisco et al.Animal Science,82:193-199, in Digesta and Tissues of Sheep and Pigs
modified maize reveals signs of hepatorenal 2006. Fed Roundup Ready Canola Meal.Mazza R.
toxicity.S€ralini,G.-E.et al.Arch.Environ "Gilles-Eric SAralini,et al,'Genetically modified et al.J Agric Food Chem.54:1699-1709,
- Contam Toxicol.,52:596-602,2007. crops safety assessments:present limits 2006.
4 A three generation study with genetically modified and possible improvements;Environmental j4 Assessing the survival oftransgenic plant DNA in the
Bt corn in rats:Biochemical and Sciences Europe 2011,23:10, human gastrointestinal tract Netherwood T.
histopathological investigation.Kilic A and httpl/www.enwurope.comcontent/23/1/10 et al.Nat Biotech.,22:204209,2004.
Akay MT.Food and Chemical Toxicology,46: 14 Transgenic expression of bean alpha-amylase 15 William E.Crist"Toxic L-tryptophan:Shedding Light
11641170,2008. inhibitor in peas results In altered structure on a Mysterious Epidemic,'Investigative
'Intestinal and Peripheral Immune Response to and immunogenicity.Prescott V.E.et al.J report,httpJ/w .seedsofdeception.com/
MON810 Maize Ingestion in Weaning and Agric Food Chem.,53:9023-9030,2005. Public/L-tryptophanAndex.cfm
Old Mice.Finamore A et al.J.Agric Food "Biotechnology Consultation Note to the File BNF 3'Biosafety Assessment Tool,GenOk-Centre for
Chem.,56:11533-11539,2008. No 00077.Office of Food Additive Safety, Biosafety,date accessed:2011-06-21.(
•Biological effects oftransgenic maize NK603xMON810 Center for Food Safety and Chapter 4:Human Health,New threats to
fed 1n long term reproduction studies Applied Nutrition,US Food and Drug human health are difficult to diagnose)
in mice.Velimirov A et al. Administration,4 September 2002. httpsl/bat.genok.org/bat/?sp=html/topic_
Bundesministerium fur Gesundheit,Familie 1'GMO in animal nutrition:potential benefits and risks. guides/ch4_gmos_and_health/main.html
and Jugend Report Forschungsberichte der - Pusrtai A.and Bardocz S.In:Biology of "Food related illness and death in the United States.
Sektion IV Band 3/2008,Austria,2008. Nutrition in Growing Animals,eds.R. Mead P.S.et al.Emerging Infectious
7A three-year longitudinal study on the effects of a Mosenthin,J.Zentek and T.Zebrowska, Diseases,5:607-625,1999.
diet containing genetically modified Btl 76 Elsevier Limited,pp.573-540,2006.
maize on the health status and performance 17 Effects of diets containing genetically modified
of sheep.Trabalza-Marinucci M.et a 1. potatoes expressing Galanthus nivalis lectin
Livestock Science,113:178-190,2008. on rat small intestine.Ewen S.W.and Pusrtai
•Fine structural analysis of pancreatic acinar cell nuclei A.The Lancet,354:1353-1354,1999.
from mice fed on GM soybean.Malatesta M. 18 Food Safety-Contaminants and Toxins.Unpublished
et al.Eur J Histochem.,47:385-388,2003. study reviewed in J.P.F.D'Mello,CABI
'Ultrastructural morphometrical and Publishing,2003.
immunocytochemical analyses 11 See for example lack A.Heinemann,PhD,'Report
of hepatocyte nuclei from mice fed on on animals exposed to GM ingredients in
genetically modified soybean.MalatestaM animal feed,'prepared for the Commerce
et al.Cell Struct Funct,27:173-180,2002. Commission of New Zealand,24 July 2009.
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Institute for Responsible Te • • r • Box 469-Fairfield,IA 52556
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P ESPONSIBLE TECHNOLOGY
Damaging Effects of Roundup (and its active ingredient glyphosa#e)
Glyphosate was patented by Monsanto as the active ingredient in their { Glyphosate: ..
Roundup brand.Monsanto also introduced genetically modified (GM) - promotes more than 40 plant disease's;
"Roundup Ready"(RR) soy,corn,cotton,canola,sugar beets,and alfalfa—all some ofwhich also can produceto
designed to withstand Roundup's normally deadly effect. f .ins that are dangerous to animals and;+;
I ,humans. 4a
Glyphosate by itself is only mildly toxic to plants and doesn't usually destroy
weeds directly.As a broad-spectrum chelator,' it binds with nutrients, . Removes essential nutrients from cr"ops
depriving plants of the minerals needed to help them defend against 1 which can result in deficiencies f live_
disease.At the same time,glyphosate can stimulate disease-creating stock and possibly humans.
organisms in the soil such as fusarium,which then wipe out the weakened
plants.Glyphosate also remains in tact in the soil for months or years,and Can adversely affect future cropse 3
can even be found in the manure of chickens fed RR grains. planted on the same field or treated with.
glyphosate-ridden manure: b;;
Glyphosate also changes soil microbiology in ways that tan reduce plant
nourishment and vitality,particularly nitrogen fixation;interferes with At less than/t oz of glyphosate per acre(11W Of
photosynthesis; reduces water use efficiency;lowers lignin content; recommended rate),I'
damages and shortens root systems;causes plants to release important
sugars;and changes soil pH—all of which can negatively affect crop health.
Glyphosate also accumulates in the food portion of Roundup Ready plants,
for which allowable residue herbicide thresholds have been increased by
up to 200-fold.Glyphosate exposure has been linked to sterility, hormone
disruption,abnormal and lower sperm counts, miscarriages,damaged
human embryonic and placental cells,placental cell death,birth defects,
and cancer.It is also toxic and lethal to amphibians. Fe Mn Zn Fe Mn Zn
Root uptake Transported in plant
GM crops increase Roundup use
Glyphosate chelates iron,zinc,copper,
When Monsanto introduced Roundup Ready crops 1996,they boldly manganese,magnesium,calcium,boron,
claimed that herbicide use would decrease as a result. It did—slightly—for nickel and others,essentially removing
them from the pool
three years.But over the next 10 years it grew considerably.Total herbicide nutrients available
use in the US jumped by 383 million pounds,or about 10%,in the 13 years for plants,animals,and humans.
after GMOs came on the scene.The primary reason for the increase is the Glyphosate-induced mineral deficiencies
can easily go unidentified and untreated.
accelerating spread of herbicide tolerant weeds.These were reported on
30,000 sites,affecting up to 11.4 million acres,up from 3,251 sites on 2.4 Laboratory tests can sometimes detect
million acres in 2007.The cost for farmers is estimated almost$1 billion each adequate minerals,but miss the fact that
year,or$10-20 per acre 2 glyphosate has rendered them unusable.
Farmers are applying significantly more Roundup.Nearly half of the huge
13-year increase in herbicide use took place in just the last 2 years.Although
the biotech industry points to a study claiming that GM crops reduce _
herbicide use,a careful analysis shows how unsupported assumptions and
inappropriate methods were used to arrive at this conclusion.
Responsible IN
Institute for . . . • Box 469-Fairfield,IA 52556
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O STITUTE FOR _
;�RESPONSIBLE.TECHNOLOGY
Damaging Effects of Roundup (and its active ingredient glyphosate)
Roundup persists in the environment
Monsanto used to boast that Roundup is Short-term glyphosate use(fyear) Long-term glyphosate use(Ig years)
biodegradable,claiming that it breaks down quickly in
the soil. But courts in the US and Europe disagreed and
found them guilty of false advertising.Monsanto's own
test data revealed that only 2%of the product broke
down after 28 days. t
The glyphosate concentration in the soil builds up
season after season with each subsequent application.
It can also accumulate for 6-8 years inside perennial
plants like alfalfa.Glyphosate residues in the soil that
become bound can be reactivated by the application
of phosphate fertilizers or other methods. US potato
growers,for example,have experienced severe losses Wheat affected after 10 years of glyphosate field applications'
from glyphosate that has been reactivated.
References:
'A decade before it was patented as an herbicide,glyphosate was patented as a chelator of numerous minerals.
'httpzt/www.biosafety-info.net/article.php?ald=799
List of References on the Plant Effects of 177-188(Chapter 12). • Kremer,RJ.,Means,N.E.,Kim,S.-J,2005.Glyphosate
Glyphosate(Roundup) •Gordon,B.,2006.Manganese nutrition of glyphosate- affects soybean root exudation and
• Bellaloui,N,et al,"Effects of Glyphosate Application resistant and conventional soybeans.Better rhizosphere microorganisms.Int.J.Environ.
on Seed Iron and Root Ferric(III)Reductase Crops 91,12-13. Anal.Chem.85,7165-1174.
in Soybean Cultivars,,°J.Agric.Food Chem. • Hickman,M.V.,Dodds,D.M.,Huber,D,M„2002. • Kremer,RJ.,Means,N.E.2009.Glyphosate and
2009,57,9569-9574 Micronutrient interactions reduce glyphosate-resistant crop interactions with
• Datnoff,L.E.,Elmer,W.H.,Huber,D.M.,2007.Mineral glyphosate efficacy on tall fescue.Proc rhizosphere microorganisms.Fur.J.Agron.
Nutrition and Plant Disease.APS Press, Weed Sci.Soc.Am.42,18. 31,153-161.
St.Paul,MN. • Huber,D.M.,Graham,R.D.,1999.The role of nutrition • Larson,R.L.,HiII,A.L,FenwickA.,Kniss,A.R,Hanson,
•
Dodds,D.M.,Hickman,M.V.,Huber,D.M.,2002a. in crop resistance and tolerance to diseases. LE.,Miller,S.D.,2006.Influence
Micronutrient uptake by isogenic In:Rengel,Z(Ed.),Mineral Nutrition of of glyphosateon Rhizoctonia and Fusarium
glyphosate tolerant and normal corn.Proc. Crops:Fundamental Mechanisms and root rot in sugar beet.Pest Manag.Sci.62,
Proc.Weed Sci.Soc Am.42,2. Implications.Food Products Press,London, 182-192.
•
Dodds,D.M.,Huber,D.M.,Hickman,M.V.,2002b. pp.169-204. • Levesque,GA,Rahe,J.E,et al.,1987.Effects of
Micronutrient levels in normal and Huber,D.M.,Leuck,J.D.,Smith,W.C.,Christmas,E.P., glyphosate on Fusarium spp.:its influence
glyphosate-resistant soybeans.Proc.NC- 2004.Induced manganese deficiency in GM on root colonization of weeds,propagule
Weed Sci.Soc.Am.57,107. soybeans.In:Northcentral Fert.Extension density in the soil,and on crop emergence.
• Dodds,D.M.,Huber,D.M.,Hickman,M.V.,Shaw,D.R., Conf,Des Moines,IA,November 2004. Can.J.Microbiol.33,354-360.
2002c Hybrid and glyphosate application Huber,D.M.,Cheng,M.W.,Winsor,B.A.,2005. Levesque,C.A.,Rahe,J.E,1992.Herbicide interactions
effects on nutrient uptake in corn.Proc. Association of severe Corynespora root rot with fungal root pathogens,with special
Weed Sci.Soc Am.43,4. of soybean with glyphosate-killed giant reference to glyphosate.Annu.Rev.
•
Eker,5,Ozturk,L,Yazici,A.,Erenoglu,B.,Romheld,V., ragweed.Phympathology 95,545. Phytopathol.30,579-602.152 G.S.Johal,
Cakmak 1,2006.Foliarapplied glyphosate •JohaI,G.S.,Rahe,J.E.,1984.Effect of soil borne plant- D.M.Huber/Europ.J.Agronomy 31(2009)
substantially reduced uptake and transport pathogenic fungi on the herbicidal action of 144152
of iron and manganese in sunflower glyphosate on bean seedlings. • Levesque,C.A.,Rahe,J.E,Eaves,D.M.,1993.Fungal
(Helianthus annuus L.)plants.J.Agric Food Phytopathology 74,950-955. colonization of glyphosate treated seedlings
Chem.54,10019-10025. • G.S.JohaI,D.M.Huber,Glyphosate effects on diseases using a new root plating technique.Mycol.
• Englehard,A.W.(Ed.),1989.Management of of plants,Europ.J.Agronomy 31(2009) Res.97,299-306.
Diseases with Macro and Microelements. 144-152 Liu,L,Punja,ZR.,Rahe,J.E.1997.Altered root
American Phytopathological Society,St. • Kremer,RJ.,Donald,P.A.,Keaster,AJ.,Minor,H.C., exudation and suppression of induced
Paul,MN. 2000.Herbicide Impact on Fusarium spp. lignification as mechanisms of
• Evans,I.R.,Solberg,E.,Huber,D.M.,2007.Copper and and soybean cyst nematode in glyphosate- predisposition by glyphosate
plant disease.In:Datnoff,LE,Elmer,W.H., tolerant soybean,Agron.Abstr.,p257, of beanroots(Phaseolus vulgaris L.)to
Huber,D.M.(Eris),Mineral Nutrition and colonization by Pythium spp.Physid.Mol.
Plant Disease,APS Press,St.Paul,MN,pp. Plant Pathol.51,111-127. Page
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