United States
Department of
Agriculture
Forest
Service
Daniel Boone NF
1700 Bypass Road
Winchester KY 40391
File Code:
Date:
1570-1
06-08-02-0035
May 22, 2006
CERTIFIED MAIL R.R.R.
Kentucky Heartwood
ATTN: Mr. Homer Paul Lovelace
P.O. Box 329
Morehead, Kentucky 40351
RE:
Appeal 06-08-02-0035 of District Ranger Fred Noack’s February 6, 2006
Decision Memo for the Jellico Prescribed Burn Project on the Stearns
Ranger District of the Daniel Boone National Forest
Dear Mr. Lovelace:
According to the authority granted me by 36 CFR 215, this letter contains my decision
on your appeal of the Jellico Prescribed Burn Project on the Stearns Ranger District of
the Daniel Boone National Forest.
BACKGROUND
On February 6, 2006, District Ranger Noack signed the Decision Memo for this project;
the legal notice of the decision was published on February 21, 2006. It has been verified
that Perrin deJong of Kentucky Heartwood provided comments prior to the end of the
comment period meeting 36 CFR 215, regulatory requirements for eligibility to file an
appeal on this project. Therefore, the timely appeal was accepted on April 28, 2006.
The Forest advised us that Ranger Noack attempted to contact you on May 18, 2006 to
offer to meet with you to discuss the issues in your appeal. Since no resolution was
reached, we continued with our review.
RECOMMENDATION OF APPEAL REVIEWING OFFICER (ARO)
I received the ARO's recommendation that the District Ranger’s decision be affirmed.
The ARO’s recommendation is based on your issues and a review of the project record.
A copy of that ARO recommendation is enclosed.
RELIEF REQUESTED
Your appeal requests reversal of the decision.
Caring for the Land and Serving People
Printed on Recycled Paper
Appeal 06-08-02-0035 KY-Heartwood
Pg 2
CONCLUSION
My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR
215.18 to ensure the analysis and decision are in compliance with applicable laws,
regulations, policy and orders. I have reviewed the appeal record and the ARO's
recommendation, which includes a discussion of the issues raised in your appeal.
Based on my review, I conclude that the decision for the Jellico Prescribed Burn Project
was adequately documented by the District Ranger in the Decision Memo and project
record. I find that these activities do fit within the categories listed for the project and
that the Decision Memo and project record support the finding that there are no
extraordinary circumstances. Additionally, there is no provision for an automatic stay of
implementation of a Forest Plan when that Forest Plan is appealed (36 CFR 217.10).
Therefore, it is appropriate to propose and make project decisions that implement the
forest plan. The scope of the review of this project-level appeal is limited to the record
for this site specific decision and any review of the forest plan appeal is outside the
scope of this review. Therefore, I am affirming the District Ranger’s February 6, 2006
decision.
This constitutes the final administrative determination of the Department of Agriculture.
Sincerely,
/s/ Jerome E. Perez
JEROME E. PEREZ
Appeal Deciding Officer
Forest Supervisor
Enclosure
Appeal 06-08-02-0035 KY-Heartwood
United States
Department of
Agriculture
File
Code:
Route To:
Subject:
To:
Forest
Service
1570-1
Pg 3
Osceola
Ranger
District
P. O. Box 70
Olustee, FL 32072
904/752-2577
Date:
May 15, 2006
ARO Recommendation KY-Heartwood-Lovelace Appeal 06-08-02-0035
Jellico Prescribed Burn Decision Memo, Stearns Ranger District, Daniel
Boone NF
Appeal Deciding Officer
This letter contains my recommendation for the subject appeal filed by Homer Lovelace
of Kentucky Heartwood for the Jellico Prescribed Burn Decision Memo on the Stearns
Ranger District of the Daniel Boone National Forest.
My review was conducted pursuant to 36 CFR 215. To ensure the analysis and
decision are in compliance with applicable laws, regulations, policies and orders, I have
reviewed and considered each of the points raised by the appellant and the decision
documentation submitted by the Daniel Boone National Forest. My recommendation is
based upon review of the Appeal and Project File, including but not limited to the
scoping letter, public comments and the Decision Memo (DM).
ISSUES
The issues raised in the appeal that are within the scope of this review and meet the
requirements of 36 CFR 215.14 are:
Issue 1
Whether the project is “illegal” since it is based on an “illegal” Forest Plan.
[Reference II, p. 2]
Issue 2
Whether the use of a Categorical Exclusion (CE) is appropriate due to
extraordinary circumstances. [Reference III, pp. 2-7]
Appeal 06-08-02-0035 KY-Heartwood
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Issue 3
Whether the use of a CE is appropriate because there are several projects in
the same area that should all be considered in the same analysis. [Reference
III. A. 2., p. 3]
Issue 4
Whether the purpose and need for the project is appropriate. [Reference IV,
pp. 7-8]
Issue 5
Whether the responsible official adequately considered public comments as
required by (40 CFR 1503.4). [Reference V, p. 8]
Discussion of Issues
Issue 1
The project is “illegal” since it is based on an “illegal” Forest Plan
The appellant contends that “[t]he Appellant’s Appeal of the Daniel Boone Forest Plan
explains how the Plan is illegal. The project is illegal since it implements an illegal Plan”
(Appeal, p. 2).
The appellant failed to show in detail the components of the Forest Plan that they
believe are flawed. The project is within the scope of the current Forest Plan. An
appeal decision for a Forest Plan will be made at a higher level, and is outside of the
scope of this project and this review.
Finding
I find that project is not illegal.
Issue 2
Whether the use of a Categorical Exclusion (CE) is appropriate due to
extraordinary circumstances.
The appellant contends that “[t]he determination of a Categorical Exclusion (CE) for the
Jellico Prescribed Burning Project is unjustified due to significant and unusual
circumstances” (Appeal, p. 2).
This project Decision Memo (DM) states on page 3 the “Rationale for Categorical
Exclusion Under the National Environmental Policy Act (NEPA)” and on page 4
identifies the extraordinary circumstances and documents the determination of the
effects respectively. The mere presence of one or more of these resource conditions
does not preclude use of a categorical exclusion. It is the degree of the potential effect
of a proposed action on these resource conditions that determines whether
extraordinary circumstances exist. (Forest Service Handbook 1909.15. Chapter 30,
Section 30.3 Paragraph 2; Decision Memo pages 2-3)
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Finding
I find there is adequate disclosure of extraordinary circumstances and appropriate
application of the categorical exclusion.
Issue 3
Whether the use of a CE is appropriate because there are several
projects in the same area that should all be considered in the same
analysis.
The appellant contends that “[t]he segmentation of analysis for the Jellico Prescribed
Burning and Jellico-area hazard tree removal projects . . . , as well as the Upper Rock
Creek Vegetation Management proposal . . . , is a violation of NEPA.” Another
contention is that “[t]he Jellico burning and Long John Hazard tree projects – proposed
virtually at the same time, and they would be implemented in overlapping areas and at
the same time.” Subsequently, the appellant contends that “. . . it never considers
cumulative impacts of these projects at all, a clear violation of NEPA.” (Appeal. p. 3).
The Forest Service has discretion over packaging proposals. Categorical exclusions
are defined in 40 CFR 1508.4, which states in part: “Categorical exclusion means a
category of actions which do not individually or cumulatively have a significant effect on
the human environment”. The Responsible Official opted to package the project based
on location (geographical) and implementation (time/space). Therefore, the
aforementioned projects do not necessitate analysis in the same document.
Finding
I find that packaging of the project is consistent with the direction in 40 CFR
1508.25(a)(3): that an analysis of cumulative effects was not required for this project.
Issue 4
Whether the purpose and need for the project is appropriate.
The appellant contends that “[b]y rushing ahead with large-scale burning before longterm research is completed, the Forest Service is conducting a grand experiment with
public resources on a premise that has not been proven to be true”, and “[t]he second
purpose/need listed for this project is to reduce fuel loading in order to ‘reduce the risk
of catastrophic wildfire’ in and around the project area” (Appeal, p. 7).
The DM (page 3) states under the heading “Purpose of and Need for the Decision” that
“[t]he absence of controlled burning on a landscape scale along with suppression of
wildfire has resulted in dense wood understory vegetation . . . [c]alculations of fuel
conditions in the project area using on site data collection indicate dead fuel loadings on
the ground between 2.3 and 35.9 tons per acre.” Also, as documented in the DM (page
3) “[t]he fuel loading shown above only includes dead fuel on the ground and does not
represent live understory vegetation that will also support a fire when dormant. By
Appeal 06-08-02-0035 KY-Heartwood
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returning fire to the landscape, the Fire Regime Condition Class would decrease from a
2 and 3 (moderate to severe risk from wildfires) toward a 1 or 2 (low to moderate risk
from wildfires).”
In addition, the DM (page 5) addresses Forest Plan Consistency:
Goal 2: Improve the ability of the Forest’s ecosystems to withstand and recover
from disturbance (Forest Health), especially catastrophic disturbance, either
naturally occurring or introduced. Reduce the compounding impacts of
catastrophic events. (Forest Plan, p. 2-11)
GOAL 2.4 Re-introduce fire use across the landscape to increase biodiversity
and improve resilience and stability of ecosystems.
 Objective 2.4.A. Move acres from Fire Regime Condition Classes 3 and 2
into Classes 2 and 1.
Finding
I find that the purpose and need of the decision is fully supported by the direction
contained in the Forest Plan.
Issue 5
Whether the responsible official adequately considered public
comments as required by (40 CFR 1503.4).
The appellant contends that “[m]any issues raised in the appellant’s comments were
ignored…multiple comments were bypassed“ (Appeal, p. 8).
The DM (page 5) discusses public involvement. A scoping letter was sent that was
dated June 17, 2005. Responding individuals and groups are listed in the public
involvement section of the DM. “Many of the comments or concerns submitted were
either outside the scope of this project or addressed through completion of the
Biological Assessment and Evaluation” (DM, p. 5). A legal ad was placed in the
McCreary County Record identifying the notice and comment opportunity for the Jellico
Prescribed Burning.
Finding
I find there is adequate disclosure and opportunity provided for public comments and
that the responsible official adequately considered the comments.
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RECOMMENDATION
After reviewing the project record and considering each issue raised by the appellant, I
recommend that District Ranger Fred K. Noack’s February 6, 2006, decision memo, for
the Jellico Prescribed Burn Project on the Stearns Ranger District of the Daniel Boone
National Forest, be affirmed.
/S/George V. Foley
GEORGE V. FOLEY
Appeal Reviewing Officer
District Ranger