Loading...
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 k10 oCT 0 To ® 'C WC) NHS lfi 5N &t'u 1-J t`� 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" NMdl9 iJ@1 k11VNO1iNDiNl 99'dd SIHl LOLL Oh 58 65800 313 Zt 39Vd • Z'000'0'ENO E LM29MM Z'J9200I 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 >> Global Temperature Difference CQ 0.6 - A -- - t 5f � cv� � 7v.�i 0.4 Annual Mean 1. ,, 5-year Mean i , d�, 0.2 — ( I. i i d 0 — 4 -0.2 — i fro 41 V k -0.4 — yuuceitainvy J I 88 !900 1920 1949 1960 1980 2000 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 In most areas of the country, the frac- I tion of precipitation falling as rain versus snow has-increased during the last 50 years. T�',.a.d°'3 M u'ue L-. *� t� Q4- 1—K-54`ri•v- p...,, .w�F y+v .- Changes in�Snow�faII otibt�ons to Win1040e Pre�clptlyaMAit�onE � 9 9to-2005 �S; �? aw7� r ). ±�� � • .tom +6"_ ��.n. �.yi=� u all Mi `� r3., -app •A , , 16 ;y "\L �M Less snore f% More snow � . Fen? and Hu -n�Z � a3,^ry'l�ww. a.y �i� r-rC w....4-a..C` �.8'L3w�' . i...fi.'a y.n, k � sy K.'6 m a 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. M1rtpleah, assnpaadhg g/hMUtlm of lMSf Ry EngbomNtaND=913 'Fallurem YMtEvalua @gtM1efMNmn�raofC ticnBy E�gNmWCmpa Daug GUdanSMnurt llnbnofCm[em[d Sdentb[;ApII Y109,R13 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 "Swn f ang,5evenyear glitch:Carrell wamv tlut Chines GIA conon horns are bLng money tlue m'secantlsM Peso'Correll Chronkk Ongne,l5 Ady,MO6, 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. Page Institute for a . a Technology • • Box N • i 'i STITUTE FOR D ESPONSIBLE TECHNOLOGY 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 r • ` h o a LS TITUTE FOR 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 Page 2 Responsible Institute for . . • Box 469-Fairfield, [A 52556 t • �.Y q ^" STtTUTE FOR 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 r . h o A STITUTE FOR _ G ESPONSIBLE TECHNOLOGY 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. Page 2 Institute for Responsible Te • • r • Box 469-Fairfield,IA 52556 t • h � o sTITUTE Fop. 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 0• '`y 4 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 Institute for • •nsible Technology-Pe Box 469-Fairfield,[A 52556 r'