23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

Service's decision to grant the Long Draw Easement and exempt Long Draw from the Forest
Plan requirements was arbitrary and capricious and unlawful. Plaintiffs further contend that the
amendment to the Forest Plan was a "significant change" requiring public involvement pursuant
to NFMA.
Congress has authorized the Forest Service to amend forest plans "in any manner
whatsoever after final adoption after public notice, and, if such amendment would result in a
significant change in such plan, in accordance with the provisions of subsections (e) and (f) of
this section and public involvement comparable to that required by subsection (d) of this
section." 16 U.S.C. § 1604(f)(4). Under the regulations in effect at the time of the Forest
Service's decision, the appropriate procedures for amending the plan turned on whether the
amendment is significant or non - significant. When an amendment is non - significant, the agency
need only provide "appropriate public notification and satisfactory completion of NEPA
procedures" before adopting the amendment. Sierra Club v Cargill, 11 F.3d 1545, 1547 (10
Cir. 1993); 36 C.F.R. § 219.10(f) The Forest Service applied the procedures for a non-
significant amendment when it amended the Forest Plan to allow Long Draw reservoir to be
reauthorized without bypass flows. Both the DEIS and the FEIS informed the public that if an
alternative were selected which did not impose bypass flows, the Forest Plan "direction to issue
permits with bypass flows and to maintain habitat potential" would have to be amended. (AR-
LD at 364, 3077 -78.)
The regulations provide little guidance as to when a change is significant,
8 The Government represents that at the time of the Forest' Service's decision in this case, the
forest plant for the Arapaho and Roosevelt National Forests had already been amended nineteen times
since its adoption in 1984.
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