15 December 2002Ghoti & Co.
December 11, 2002Attention Appeal Reviewing Officer:
Mr. Harv Forsgren, Regional Forester
Southwestern Region 3
333 Broadway SE
Albuquerque, NM 87102-0084Sec. 215.14 Content of an appeal.
(a) It is the appellant's responsibility to provide sufficient written evidence and rationale to show why the Responsible Official's decision should be remanded or reversed.
(b) An appeal submitted to the Appeal Deciding Officer becomes a part of the appeal record.An appeal must meet the following requirements: State that the document is an appeal filed pursuant to 36 CFR part 215;
This document is an appeal filed pursuant to 36 CFR part 215
List the name and address of the appellant and, if possible, a telephone number;
Marc Delany
5755 Kingpin Lane
Walker AZ 86303 928 541-1883Mailing Address:
PO Box 570
Prescott AZ 86302Identify the decision document by title and subject, date of the decision, and name and title of the Responsible Official;
Decision Notice/Finding of No Significant Impact
Blue John Private Access Easement Project
USDA Forest Service
11/1/02
Mike King Forest SupervisorIdentify the specific change(s) in the decision that the appellant seeks or portion of the decision to which the appellant objects;
I object to the entire decision and reason for the decision I specifically object to:
1) The Background
The basis of the proposed action and decision conflicts with the actual events, documents in the public domain, oral histories, oral agreements, written agreements, FS SUP's, FS permit applications, Yavapai County documents, published FS documents, facts known to be true by FS staff and the FS supervisor, USGS maps, FS maps, FS planning documents, past and current FS policy, the current PNF plan and amendments; regulation, law, and convention. The entire decision is invalid and flawed. The decision is the second EA and DM issued on this route since 1998 by Mike King PNF Supervisor. The first EA, within the PAC located on Spruce Mt. has no ROD documents except a single page DM, signed 1998.
This proposed action is needed because the FS manipulated, concealed, circumvented and otherwise expedited the major encroachment of patented Discovery Location Lonestar Mining Claim, discovered by the FS in 1992. From 1992 until 1998 the FS relocated the developed Discovery Location Lonestar claim containing 10 cabins constructed circa 1982-1989. Several of the cabins were on FS property, west of the original deeded location referenced as MS 694 and MS 695. The deed is recorded in the YC recorder's office.
A STE was originally envisioned and initiated by the FS to correct this for the 10 acres involved. Ultimately a scheme to substitute a similar sounding much later, un-patented mining claim called Lonestar Lode MS 1842 of approximately 20 acres was used to correct the major encroachment. This created a new development on formerly public lands from a much less valuable entitlement on a slope too steep to build on. The new location contained approximately 10 developable 1-acre sites worth approximately $35,000 ea. at that time. Planning and Zoning protest eventually reduced the lot split to three, 3.33 acre lots worth $150,000 total.
The new development encumbered the road called Trail 67. Various agencies were involved. They include the SW FS region 3 staff. For this reason I request this appeal be removed from SW R3 review and reviewed directly by the next level of appeal in the WO. The local FS staff responsible for physically closing the road were also closely involved in providing documents of the above record and the records of the road and trail changes necessary for the switch 1992-1998.
For this reason I am requesting the IG office and the GAO be notified and a complete copy of the BJP action, this appeal and all documents pertaining to the encroachment and eventual solution that still exist in the FS files, both PNF and SWFSR3. The Secretaries of the Interior and Agriculture should be provided copies by the SWR3FS. Ultimately the BLM was responsible for perfecting the revised location of the three claims MS 694,695 and 1842.
The PNF has closed many roads under RA/TM. The amendment was never intended to affect residential access. The current FS administration has become aware of the NEPA requirement associated with road access changes through this 2-year process. Many of the road closures based on the FS interpretation of the 1989 RA/TM decision and amendment 4 were erroneously conducted. Great injury has resulted to many residents and many affected routes that were never provided NEPA review, public notice, public collaboration or public consultation as required on an annual basis and specifically for those roads and trails identified in the PNF plan. The FS has informed me that these records were destroyed. As such, unless the FS can produce the correct historic maps as required to be maintained, monitored and reviewed by the public, all such decision should be rescinded, reversed, and those injured compensated for valid claims.
2) The Purpose and Need
3) The Decision
I would like the reviewing officer to look at the PNF plan and amendments including access policy pp 59-60 of the original plan, provisions in the plan for access to Mining claims and residential access.
I would like the reviewing office to examine the Resource Access/Travel Management maps indicating this road's status.
I would like the reviewing office to examine the Resource Access/Travel Management maps indicating this road's status along with all of the arterial and collector routes as referenced in the PNF plan for road 52A. This road is the continuation of 52A into and connecting with 57, as does 52. It is an arterial and collector route for 52A.
I would like the reviewing officer to review and confirm those sections of the current plan that specifically changed the access of this travel route from the 1977 TIS inventory showing this route as a system trail.
I would like the reviewing officer to examine and confirm the changes made to the PNF plan after public comment in 1988. Changes show as struck through. A copy of the published comments are available outside of the FS.
I would like the reviewing officer to confirm the policy basis for denying the granting of right of way and use of existing roads and trails for residential access in excess of that guaranted by law in accord with FS policy FSM 2730.
I would like the FS to compensate appellants for preparatory cost and direct cost for preparing this appeal in accord with the principles and requirements of the Equal Access to Justice Act.
I would like the FS to provide legal counsel for any further FS appeals required to remand or reverse this decision. I object to the expenditure required by the FS to prepare this proposed action in light of the facts know to the FS and deciding officer Mike King.
I would like the FS to reverse and remand similar actions taken in violation of the provisions of the PNF plans’ requirements for a full NEPA process for access policy changes and access changes to specific roads and trails.
I would like the FS to republish the one-half inch scale visitors access map to accurately reflect the PNF's road and trail system, as required annually.
I would like the FS to contact those affected individuals who applied for SUP in light of the facts contained in this document, the historic documents and the existing records, policy, regulation and laws affecting the access changes made without requisite NEPA review.
I would like the FS to cease all access policy changes made since the adoption of the 1989 PNF plan and amendments made without benefit of a full NEPA process.
I would like the FS to provide legal counsel and otherwise make whole those affected residents throughout the PNF that were similarly affected by excessive road closures, beyond those totals set forth in the current PNF plan and amendments.
I would like the FS to properly maintain those portions of FS managed roads and trails to the levels described in the current PNF plan
I would like the FS to remove all barriers to those roads improperly closed without benefit of NEPA, including gates, berms, boulders, and all such other administrative and physical barriers preventing the reasonable use of the FS portions of existing roads and trails within the PNF.
I would like the FS to conduct a proper EA for all future changes to trail 67 and all other trails and allow full public participation by giving proper notice as described by law and FS policy.
I would like the FS to fully consider public comments received as required by law and FS policy with respect to this and all other FS conducted access policy changes.
I would like the FS to consult with the affected public and public for each specific road access proposal including this proposed action in accord with current FS policy.
I would like the FS to pay for all cost incurred by the closure, and fencing of this route, prior to this decision.
I would like the FS to address the comments received from the public and the specific concerns for the continuity of a Walker- Spruce Mt. road. (Motorized)
I would like the FS to comply with the comments received and request made from the public and the specific concerns for the continuity of a Walker- Spruce Mt. trail. (Foot, horse, and other, except as set forth in the 1989 RA/TM amendment 4 decision.
I would like the FS to fully address and access the social impacts under NEPA.
I would like the FS to fully address and access the economic impacts under NEPA for this decision, including a cost benefit analysis, a cost accounting of administrative expenditures to date and the economic impacts to the residents and users for this decision as required under NEPA.
I would like the FS to analyze the safety of residents and likely impacts of removing this route from the Forest as part of the NEPA
I would like the FS to analyze the safety of the community in light of the evacuation route through the WUI and the current and expected forest conditions.
I would like the FS to consider the extraordinary condition of the Forest in evaluating the need for the road.
I would like the FS to review the DM and prior EA issued in 1998, lack of record of requisite consultation within the PAC along this route.
I would like the FS to review the changes made to access along this route 1992-1998 including easement changes and records pertaining to the 1st North Extension and Discovery Location Lonestar Mining claims MS 694 and 695 (deeded location), now occupied by Lonestar mining claim (MS 1842, not deeded) certified by BLM at the request of the FS to determine what EA was made, what documents exist in R#3 and the PNF and compliance with NEPA and the ESA.
I would like the FS to review the granting of FS lands to developer Dave Albertson, and the obliteration of a segment of trail 67 to public use circa 1992-1998 without NEPA review.
I would like the FS to pay for the cost associate with the resolution of all claims and cost arising from the improper land adjustment of the recent Lonestar subdivision overseen by the FS and subsequent encumbrance of trail 67, for all parties involved.
I would like the FS to pay for all cost associate with removing the fences and gates erected by the FS; along the FS issued FLPMA easement (1998) to the LS/MPOA for use of a segment of trail 67 and another FS managed road segment accessing the central region of the Mohawk claims.
I would like the FS to examine the records, bylaws and minutes of the road association in accord with FS requirements upon request, as the SUP requires.
I would like the FS to review the SUP in light of (forest guardians Vs PNF 1997) issued to LSMPOA for consultation under the ESA.
I would like the FS to document and include all access changes made to trail 67 and 9404H from 1967 to the present under background for legal compliance with applicable laws, rules and regulations.
I would like the FS to reverse, rescind, remand and restore all conditions along trail 67 and 9404H from 1967 to 2002 that were improper are now known by the FS to be improper, unlawful, against regulation and policy.
I would like the FS to correct all signage along trail 67, and 9404H (posted 9267F).
I would like the FS to bear all cost for all actions determined to be inadvertent, unlawful, and harmful under all applicable laws and regulations.
I would like the FS to bear all cost for any STE required to correct FS actions and activities in conducting improper land transfers regarding the Lonestar Mining Claim and additional post 1996 development.
I would like the FS to reroute public trail 67 or otherwise acquire ROW for the public along areas affected by improper FS actions 1992-2002.
I would like the FS to reroute Trail 67 to accommodate the public around all private lands from Walker road to Spruce Mt.
I would like the FS to maintain an MOU for use of trail 67 in perpetuity across all FS managed lands with all fire prevention associations and residents to allow routine maintenance of the existing roads and trails.
I would like the FS to consider future FS needs and use of trail 67 in light of the extraordinary and unprecedented condition of the beetle and fungus tree kill.
I would like the FS to consider the FS use of trail 67 as shown in the current Boundary Proposal.
State how the Responsible Official's decision fails to consider comments previously provided, either before or during the comment period specified in Sec. 215.6 and, if applicable, how the appellant believes the decision violates law, regulation, or policy.
The responsible official (RO) failed to respond to these previously provided comments in part or in full: The partial inventory of all roads and trails in use within the national forest the PNF shows trail 67 as all purpose. In 1977 Mohawk was legally subdivided in 1976 with legal access provided by motorized trail 67 as shown on numerous FS maps and documents, including the RA/TM map, the 1989 “one half inch scale visitors map 1988-1994, a USGS 1927 datum, FS field checked 1967 map used for the APS easement (forest wide); the FS Supervisor was advised of this many times, one attached. The current status is motorized trail 67 according to the TSS inventory and all other FS maps.
The RA/TM map as scanned and provided by the FS shows a trail (not trail 67) legend (mostly obscured, but clearly not trail 67 and exclusive of 9404H) Foot, Horse, and Mountain Bicycle Travel Allowed, the map itself does not consider motorized access at all by car, or truck, no motorized roads are cited and the legend pertains only to those vehicles under 40" wide. According to the PNF plan and amendment 4 comment (the FS has responded to a FOIA request for this document as no record. The RA/TM decision was drafted as an amendment to the original plan's limitations on ATV's (OHV's), not cars. This is clear in the FS color version, available from the FS.
The RA/TM map is undated, un-referenced, and is NOT the one-half inch scale supplement, or one-half inch scale visitor's access map which are the official access maps referenced in the plan. The original RA/TM map presented in the FS meeting with counsel (August 2001) is 3/8" scale. The FS was unable to provide any referenced map except the visitor's map according to numerous FOIA requests and responses and appeals through the regional and national levels.
Grant, where appropriate, rights-of-way across National Forest System lands using the following criteria:
a. To owners of non-federal land who have a statutory right of access (FSM 2730).
b. To state, county, and local governments for public roads (FSM 2730).
c. To owners of non-federal land requesting access in excess of that guaranteed by law (FSM 2730).PO Box 570 Prescott AZ 86302 Phone 928-541-1883 Fax 928 -777-0063
MLDelany@aol.com
Bill Townsend TSS inventory map, PNF documents
CFR 212.11 and YC recorder documents
Ghoti & Co.
September 26, 2001Mike King Forest Supervisor
344 South Cortez
Prescott Arizona 86303 520
717-8430 520 717-8408 FaxDear Mike King,
Please review the above for accuracy... [Omitted text] I request that you suspend further actions with respect to all access policy changes and conform to the limitations set forth in the DM #1 dated December 29 1989 and the FEIS. I suggest that your current and past actions no longer conform to 40 CFR 1508.22 and ID No. 2 to FSH 1909.15, Chapter 26.1b. Furthermore extraordinary circumstances have been identified that cause these actions to have significant effects the determinations arising out of the "Los Alamos fire" and the designation of areas within the NFs as WUI areas.
In the August meeting that you attended I was presented with a map titled "Prescott National Forest", below this was a summary copy of the "Resource Access/Travel Management Policy". Below this is a legend titled "Forest Trail System Policy". This map was offered as evidence of the status changes of FS designated "trail 67". If you will please examine this undated document you will note that
1) it is not "The one-half inch scale visitor map supplement," which is "adopted as the official access policy map for the Forest."
2) It is also only designating trail policy, no motorized road use is set forth by this document other that those motorized vehicles "not exceeding 40" in width." No road use is depicted anywhere on this document. Bill and Cynthia offered that all other motorized use is shown by typical map legend. This legend is not apparent to me, further scrutiny of amendment 4 leads me to believe that there must be additional information on roads specifically, not trails.
Under your documents and interpretations offered to date, road use is governed by the "one-half inch scale visitor map supplement" this document you now state is unavailable. The Amendment 4 requires a NEPA each time you revise this document which defines access policy. You have revised this document, but you have not followed any NEPA process in doing so.
Please revise all recent actions pertaining to my road in light of the above.
Thank you,
Marc Delany
cc:
list Attached FOIA request for:
1)"one-half inch scale visitor map supplement"
2) "Overlay of the official access policy map" per 60-1 amendment 4
3) All FONSI, FEIS, and EA pertaining to the revisions of the official access policy governing document revised in 1993, and recently.
Exhibit 1
Exhibit 2
Exhibit 3 PNF plan comments, PNF plan, Amendment 4. Exhibits 1,2,3 PNF Plan and amendment 4 pp 59-61
July 1, 2002June 14, 2002
Mr. Delany:
Our records show that you currently have two pending FOIA appeals.
02-1979-A which was sent to OGC in December and is still in OGC and you can call OGC at 202-720-5565 to check on this appeal.
02-2012-A which appealed failure of region to respond by letter of 1/30/02 closed because region responded on 1/17/2002.
Ghoti & Co.
APPEAL TO THE CHIEF
July 16, 2002USDA Forest Service
ATTN: Chief's Office, Dale Bosworth
Stop 1143 1400 Independence Avenue, SW
Washington, DC 20250-1143Fax 703-605-5104
Dear Mr. Bosworth:
This is an appeal and complaint for actions by the FS, regarding requests under the Freedom of Information Act.
I just received this letter from Rita Morgan (FC 6270-1). On July 1st 2002 I sent your office a letter complaining about the “run around” I was getting from the local office concerning a set of maps and other documents requested under a series of FOIA requests. The FS was requested to provide the maps associated with the 1989 Prescott National Forest plan, the Records of Decisions associated with those maps and maps indicating the current status of all roads and trails in the PNF. The FS wrote that this information would cost $200, which I agreed to pay. Instead of providing the agreed upon and requested information the FS supplied a set of maps the local FS staff described only as “planning documents” limited to just the current classified roads. No 1989 documentation, no decision documents were provided. Hence no comparison can be made with respect to changes since 1989.
The requested maps were discussed at the April 1st meeting in Albq. N.M. R3 headquarters and were determined by Wayne Thornton (R3 Dir. of Lands, representing acting Regional Forester Abel Camerena) to require clarification, to be provided by PNF staff S. Sams. This has not been done, despite 4 subsequent requests.
I requested the FS clarify and provide the balance of the documents for the fee I agreed to immediately upon review in January, again in February, again in March, again at a meeting in Albuquerque on April 1st, again in June at a meeting in Washington and again in July. There were request made on other correspondence beginning January. To date the FS has not provided the documents, nor clarified the meaning of the partial documentation supplied. I appealed this lack of response to your office directly on July 1st.
The response, file code 6270-1 (02-2012-A) dated July 2nd continues to ignore the fact that the FS has identified the documents, as provided are “non responsive” to the original request. Yet, with this letter, the FS presses a claim for payment.
I am filing this complaint against the WO FOIA officer Rita Morgan, and the local PFS Supervisor Mike King for failure to respond to the Freedom of Information Act request in a timely manner, failure to process the original FOIA requests and for demanding payment for documents deliberately non responsive to the original requests. Furthermore I am protesting the delay in processing the overdue FOIA requests pending PNF #02-09-11 (WO02-03-R3), PNF # 02-09-17 (WO 02-31-R3) and PNF #02-09-22 for non-payment. These request predated the request for the maps by months. The maps provided are non-responsive to a clearly defined FOIA request. The maps as provided are not even a partial response based on the FS determination as published in the Blue Jon Proposed Action.
I am requesting your help in obtaining this basic information required to be maintained as part of the transportation atlas for the Prescott National Forest.
I again request a waiver of all outstanding fees as this information is vital to the public’s understanding of the operations of the Prescott National Forest, the maps have already been placed in the public domain (Prescott Public Library). They are the basic documents needed to review the PNF access policy changes. This policy is to be reviewed annually by the public as part of the access monitoring process defined in the PNF plan, page 60.
My prior request was assigned the following identification number: 02-2012-A. I received a response to my request in a letter signed by Rita Morgan. I appeal the delay in responding to my request.
The documents that were withheld must be disclosed under the FOIA because they are ROD made regarding a specific road or trail, or access policy change requiring a NEPA process with full public participation.
I will be in Washington on August 1st and am requesting a meeting with your office to review this matter in detail. I can be reached at (928) 541-1883 Thank you for your consideration of this appeal (attached).
Sincerely,
Marc Delany
cc:
Senator John McCain attn: Nick Matiella
Jim Snow OGC -WO
Jack Craven Lands - WO
Rita Morgan
Craig Steedman PNF
PNF Supervisor Mike King
Wayne Thornton Lands R3
Joe Sedillo FOIA R3PO Box 570
Prescott AZ 86302
Phone 928-541-1883
Fax 928 -777-0063
MLDelany@aol.com
