Lead Objector: Michael J. Edmondson 289 Main St., Elk City, Id (208)

Transcription

1 OBJECTION To the Crooked River Valley Rehabilitation Project Nez Perce-Clearwater National Forests Red River Ranger District Cheryl F. Probert-Forest Supervisor Lead Objector: Michael J. Edmondson 289 Main St., Elk City, Id (208) Michael J. Edmondson Objector: Idaho County Commission 320 W. Main St., Grangeville, Id (208) Jim Chmelik, Chairman, Idaho County Commission Objector: Jon Menough Ph.D.P.E. P.O. Box 357, 1907 Elk Creek Rd. Elk City, Id (208) Jon Menough Objector: Jamie K. Edmondson 289 Main St., Elk City, Idaho (208) Jamie K. Edmondson Specific Written Comments on Draft EIS received by USFS 5/12/2014 This objection will follow a format that correlates to Appendix F, Crooked River Valley Rehabilitation FEIS. I have been identified as Letter #15 1

2 Purpose and Need 1. Comment (Letters #04,05,09,11,12,15,22,23,24,25) Historic Conditions in Project Area 2. Comment (Letter #15) OBJECTION: The forest has failed to substantiate/justify a purpose or need for such a major intrusive action that has no measurable means identified to measure/monitor the outcome against documented pre-existing/historical conditions and establishes a precedent for potential unquantifiable future projects of like questionable merit or science. It is salient to the issue that the FEIS has removed the last portion of the first sentence under Purpose and Need for Action found in the DEIS, to wit, (a lower [fish] density that the stream historically supported). The forest has never provided/established what the [fish] density of the stream historically supported. The FEIS has also changed the definition used for restoration to an EPA version more relevant to what the project may actually be. The addition of the definition of rehabilitation as found in the name of the project is still misleading (restoring a thing to a previous condition or state), as it infers. Based on the data/information that the forest appears to justify, one can equally assert that there was never a fishery on Crooked River prior to historic mining activities and that those activities have actually had a positive impact on whatever fishery now presently exists. The response to my comments also states that the Forest Service attempted to locate historic photos of the valley, but has been unable to locate photos or information on pre-mining conditions. I am in receipt of a 1931 USGS Buffalo Hump, Ida quadrangle map that reflects the project area river course differently than the proposed changes. The response also inadequately addresses water temperatures. Although temperatures are lower at the downstream end, it continues to assert that the tailing piles have elevated water temperatures, apparently based on the conclusion, these slightly lower temperatures at the downstream end are also elevated above standards. 2

3 The forest and the state of Idaho have already established the fact that numerous streams/creeks/rivers on the Nez Perce Forest have water temperatures above standards established by the state (SFCWR Subbasin Assessment and TMDLs- Subbasin-wide temperature analyses were conducted in light of an extensive database indicating that no stream in the SF CWR Subbasin, not even in relatively pristine condition, meets the Idaho numeric criteria for salmonid spawning. ). A number of these are located in the Wilderness areas (where there are no established tailing piles/human impact) and cannot be explained. Based on the lack of established historical water temperature/conditions data, it is very possible that the proposed project will actually elevate downstream water temperatures. There is currently a fish hatchery that some governmental entity believed was going to be beneficial, a few miles upstream from the proposed project area that is now non-functional. Local residents claim it had a post, adverse effect on the fishery. This current project has the potential to improve nothing and potentially have adverse impacts while obliterating forever the existing historically significant features now present. Further, lacking documented, verifiable historical project area conditions (water temps, stream course, fisheries, etc.), there has been no attempt to collect living, eye-witness accounts of habitat conditions in the project area over the past 70 years. There has been no evidence provided: 1) Crooked River ever had a fishery. 2) If a fishery existed, what it consisted of. 3) Historical water quality conditions. 3) That proposed actions will result in measurably quantifiable improvements. Suggested remedies that would resolve this aspect of the objection: The Forest has to establish a baseline/control of environmental/habitat conditions that is scientifically based and historically documented, specifically, but not limited to water temperature and fisheries. The proposed project contains no quantifiably measurable methods to ascertain both short and long term 3

4 effects/consequences/benefits/detriments. It is possible that proposed actions will have detrimental impacts that will not be identified and repeated on future projects. NEZ PERCE/TRIBAL TREATY RIGHTS 54. Comment (Letter #15) OBJECTION: The forest has ceded jurisdiction over land within their management control to the Nez Perce Tribe that perpetuates an ongoing overreach and influence by the Tribe not granted by any legal authorities. In the DEIS, pg. v, In addition, the proposed action responds to the objectives of the Nez Perce Tribe by protecting, restoring, and enhancing watersheds within proximity of their ceded territory. However, pg of that DEIS states, These rights include the right to fish, hunt, and gather within the Nez Perce- Clearwater National Forests, including Crooked River watershed. Crooked River lies entirely within the ceded territory of the Nez Perce Tribe The Draft ROD, pg. ROD-26 states, The Nez Perce-Clearwater National Forests lie within the Nez Perce Tribe s ceded territory and are central to both tribal and federal efforts to recover imperiled species. In Article 3, its 1855 Treaty with the United States, the Nez Perce Tribe explicitly reserved for itself certain rights, including the right to fish, hunt, and gather within the Nez Perce- Clearwater National Forests, including Crooked River watershed Crooked River lies entirely within the ceded territory of the Nez Perce Tribe. In the FEIS, pg. 1-19,20 The Crooked River watershed is a part of the more than 13 million acres in central Idaho, northeastern Oregon, and southeastern Washington included in the pre-treaty area of use by the Nez Perce Tribe. Prior to the treaty of 1855, the Nez Perce used Crooked River and the South Fork Clearwater Sub-basin for hunting, fishing, gathering food, horse pasturing, and other cultural uses. In 1855, the United States negotiated a treaty with the Nez Perce Tribe: Treaty of June 9, 1855, 12 Stat.957. In article 3 its 1855 Treaty with the United States, 4

5 the Nez Perce Tribe explicitly reserved for itself certain rights, including the right to fish, hunt, and gather within the Nez Perce-Clearwater National Forests, including Crooked River watershed. Crooked River lies entirely within the ceded territory of the Nez Perce Tribe. Federal courts have recognized that it is undisputed that Indian tribes have legally protected interests within their aboriginal Territory (Idaho v. Forest Service, No N-EJL, slip op. at 3 [D. Idaho Sept. 8, 2000]. By virtue of its treaty and trust obligations to the Nez Perce Tribe, the United States and its agencies, including the Forest Service, have substantive duties to consult with the Nez Perce Tribe and to implement measures necessary to protect and enhance tribal resources (Klamath Tribes v. U.S., 24 Ind. Law Rep. 3017, 3020 [D. Or. 1996]). Treaty tribes, such as the Nez Perce, have been recognized as managers of their treaty reserved resources (U.S. v. Washington, 384 F. Supp. 312, , 403 [W.D. Wash. 1974]). Further, in the FEIS, pg. F-36, The Treaty of 1863 reduced the size of the Nez Perce Reservation from about 7.5 million acres to roughly 750,000 acres; however, it did not affect the rights the Nez Perce had reserved in the 1855 Treaty. According to Article 8 of the 1863 Treaty, all provisions of the 1855 Treaty which are not abrogated or specifically changed by any article herein contained, shall remain the same to all intents and purposes as formerly, in the same obligations resting upon the United States, the same privileges continued to the Indians outside the reservation Draft ROD pg. ROD-69 The Nez Perce Tribe and USDA Forest Service are proposing the Crooked River Valley Rehabilitation Project (CRVR).. The Nez Perce Tribe (Tribe) is the project sponsor and administers BPA funding. The project is on the Nez Perce-Clearwater National Forests (NPCWNFs) land and therefore they are the lead agency. The Tribe and NPCWNFs have partnered on similar restoration projects for the past 15 years. False Forest Assertion #1 13+ million acres of pre-treaty area of use by the Nez Perce Tribe that includes all of the Nez Perce-Clearwater National Forest and beyond infers that this defines the boundaries of their legally protected interests within their aboriginal Territory. False Forest Assertion #2 That, the exclusive right of taking fish in all the streams where running through or bordering said reservation is further secured to 5

6 said Indians; as also the right of taking fish at all usual and accustomed places in common with citizens of the Territory, and of erecting temporary buildings for curing,..article 3of the 1855 Treaty infers a right beyond taking fish, erecting temporary buildings, including hunting, fishing, gathering food, horse pasturing, etc. False Forest Assertion #3 That Article 8 of the 1863 Treaty somehow expands rights beyond the only right delineated in the 1855 Treaty, specifically the exclusive right to take fish, erecting temporary buildings. False Forest Assertion #4 That although Article 1 and 2 of the 1863 Treaty changed the physical boundary/parameters of the reservation granted in the 1855 Treaty, the forest presumes that the now non-existent 1855 boundary/parameter still defines a geographic location where the exclusive right of taking fish exists. The only rights, exclusive or otherwise, secured to said Indians (Nez Perce Tribe) was the right of taking fish, with specified limitations, and the right of erecting temporary buildings. There is a privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land. Further, the right associated with the exclusive right of taking fish in all the streams where running through or bordering said reservation. is defined by the boundary of the 1863 reservation, specifically, in all the streams where running through or bordering said reservation Further, the right associated with taking fish at all usual and accustomed places in common with citizens of the territory is not a right distinct from citizens of the territory. It is the same right that citizens of the territory possess. This proposed project has been unduly influenced, directed and exploited by the Nez Perce Tribe. The Forest has abetted and expanded the involvement of the Tribe beyond consulting to that of a special interest through misconstruction of both its treaty rights and its boundaries. This taking results in direct inurement to the Tribe, both financially as well as expanded long term control over the public, their rights, resources and property. Suggested remedies that would resolve this aspect of the objection: The proposed project needs to go back to the drawing board and reanalyzed/reevaluated without the presence of the Tribe component. The forest plan directed 6

7 that no changes were to be made to the section of Crooked River involved in this proposed project. Until the USFS can establish clean hands, this project needs to be halted. 7