United States Forest Washington 14th & Independence SW
Department of Service Office P.O. Box 96090
Agriculture Washington, DC 20090-6090
File Code: 1570-1(L)
NFS# 97-13-00-0004-A215
NFS# 97-13-00-0005-A215
Date: November 29, 1996
Mr. Wayne D. Iverson
115 Highland Road CERTIFIED MAIL-R.R.R.
Sedona, AZ 86336
Ross Forney, President
Responsible Residents of the CERTIFIED MAIL-R.R.R.
Red Rocks, Inc.
P.O. Box 1655
Sedona, AZ 86339
Dear Appellants:
We have completed our review of your appeals of H. Wayne Thornton, Southwestern Regional Office Director of Lands and Minerals' August 21, 1996, Decision Notice and Finding of No Significant Impact (DN/FONSI) to exchange approximately 42 acres of National Forest System (NFS) land for approximately 277 acres of non-federal land. The NFS land to be exchanged is located in the Coconino National Forest and the non-federal land is located within the Apache, Prescott and Tonto National Forests. The exchange is being processed by Federal Land Exchange, Inc. (FLEX) for the benefit of James and Karin Offield and the El Rojo Grande Ranch. This review was conducted in accordance with 36 CFR 215 of the Secretary's Appeal Regulations.
In accordance with section 215.16, an informal disposition meeting was conducted by telephone on November 1, 1996, with the appellants, Ross Forney,
Joan McClelland, June Cornelison, Joann Johnson, Fred Johnson, and
Clyde McClelland, representing the Responsible Residents of the Red Rocks (4Rs). On November 12, 1996, Ross Forney and Joan McClelland participated in a follow-up conference call.
The issues raised on appeal were not resolved through either of the telephone calls. All issues in each appeal can be addressed from the appeal record.
In accordance with 36 CFR 215.19, the Appeal Reviewing Officer (ARO) has reviewed the appeal record and has written a recommendation on the disposition of the appeal. A copy of that recommendation is enclosed and incorporated herein.
Appeals Summary
The issues appealed include inadequacy of analysis and consideration of the range of alternatives, public comments, the size of the Dry Creek parcel, scenic quality, potential for commercial development, and land valuation. Also appealed is the authority to make cash payments for the exchanged lands and obsolescence of the Forest Plan.
There have been no requests for interested party status, nor comments by interested parties on these appeals.
Due to the similarities of the issues, we have combined the two appeals and the issues will be summarized and addressed in this decision letter.
The EA is fatally flawed because it does not provide a reasonable range of alternatives and does not address the impact for commercial development.
The EA contains two fully developed alternatives: 1) the proposed action and 2) no action. The EA also considered and dropped four other alternatives because they were not feasible (EA, page 18). The EA discloses that impacts on visual quality were analyzed and considered.
The initial exchange proposal was modified to include land use covenants and restrictions in the Dry Creek parcel to preclude commercial uses on the 42-acre parcel. This was in response to issues raised during the scoping meetings. (EA, page 17 ).
Covenants and Restrictions (C&Rs) were developed which documented agreements by both parties to the land exchange. The C&Rs limit the maximum amount of development that can occur after the federal parcel becomes private property by providing conditions in the exchange deeds. (DN/FONSI, pages 5 and 6)
In addition, foreseeable uses of the federal land after exchange were considered based upon present land and zoning restrictions. Future uses of any kind will be subject to and governed by State and local zoning requirements.
I find the record supports that the range of alternatives developed were responsive to the issues raised for a site specific proposal. Additionally, the EA relies upon the National Environmental Policy Act (NEPA) disclosure and Environmental Impact Statement (EIS) associated with the 1987 Apache-
Sitgreaves, Coconino, Prescott, and Tonto National Land and Resource Management Plans (Forest Plans) identifying base lands available for exchange.
Scoping/Public Notification/Participation Process
Extensive and adequate public involvement process is documented in the administrative record. Comments received from the public participation process during the development of the EA, and from notice and comment on the completed EA were taken into consideration in the development of the EA and DN/FONSI. (4R appeal, page 3).
The record shows that the required notices were advertised for a four-week period describing the lands proposed for the exchange in the newspaper of general circulation in the involved counties. Additionally, over 300 letters were sent to private interests, adjacent landowners, and agencies announcing public meetings on the proposal and asking for comments. Public meetings were announced and the comments received were considered in developing the EA. Copies of the EA were sent to all requesting parties and the comments were considered and addressed as part of the final EA and DN/FONSI.
The Forest Plans
The Forest Plans were prepared in accordance with established rules, regulations and agency guidelines and are considered current until amended. Therefore, the base land identified in the Forest Plans for exchange remains the current management direction.
The DN/FONSI states that approval of this exchange is consistent with the management direction, standards, and guidelines for the Forest Plans. The non-federal land meets the criteria for land acquisition.
The FS must pay cash to the private party to equalize the value of the lands offered in exchange.
The appeal record documents that the non-federal and federal lands in the exchange have been appraised to appropriate federal standards. The agency-approved value of the federal land is less than the non-federal land. Therefore, a payment of cash is required to equalize values. (DN/FONSI, page 3).
Findings
There is no violation of any statute, regulation or policy. The use of cash payment to equalize property values is required by Section 206(b) of the Federal Land Policy and Management Act and is consistent with the requirements of the General Exchange Act of 1922. Requirements under the National Forest Management Act, the NEPA, the Endangered Species Act, the National Historic Preservation Act, and the Federal Administrative Procedure Act have been met.
The federal land that is proposed to go into private ownership is intended primarily for open space and access needs. The EA supports that national forest management objectives will not be adversely affected and that overall, the public interest will be served by making this exchange.
One hundred and three acres of important riparian habitat and almost 2 miles of perennial stream will be acquired. The Verde River parcel below Paulden includes approximately 1 mile of the Verde River and contains 36 acres of riparian habitat, deciduous forest, and stream bed. Acquisition of the Verde River parcel will compliment another upstream acquisition, resulting in protection and management of 2 miles of continuous river and associated habitat.
Moreover, the risk of new isolated developments and subdivisions adjacent to NFS lands will be avoided. The consolidations achieved through this exchange will result in administrative savings, and reduce access needs to private inholdings which would otherwise traverse NFS lands. (DN/FONSI, page 3).
Decision
We have carefully examined the decision made by Mr. Thornton to proceed with the land exchange, and find it reasonable and consistent with the National Forest Plans, policies, regulations, and laws.
Accordingly, Mr. Thornton's August 21, 1996, decision to complete the FLEX/Offield Land Exchange is affirmed.
My decision on your appeal constitutes the final administrative determination of the Department of Agriculture (36 CFR 215.18).
Sincerely,
/s/ Larry O. Gadt
for
JANICE H. MCDOUGLE
Appeal Deciding Officer
Enclosure
cc: Regional Forester, R-3
United States Forest Washington 14th & Independence SW
Department of Service Office P.O. Box 96090
Agriculture Washington, DC 20090-6090
File Code: 1570 Date: November 7, 1996
Route To:
Subject: Appeal Reviewing Officer Recommendation
Appeals No. 97-13-00-0004 and 0005-A215
To: Appeal Deciding Officer, Janice McDougle, NFS
This is my review of the substantive quality and correctness of the
August 21, 1996, decision made by H. Wayne Thornton, Southwestern Region Director of Lands and Minerals in his decision notice (DN) to exchange approximately 42 acres of federal land administered by the Coconino National Forest for approximately 277 acres of non-federal land located within the Apache, Prescott and Tonto National Forests. This decision selects the proposed action alternative for the Offield Land Exchange Proposal Environmental Assessment (EA) which was prepared under the National Environmental Policy Act (NEPA) provisions.
As part of my review, I have considered the arguments presented in the appeals filed by Wayne D. Iverson and by Ross Forney for the Responsible Residents of Red Rocks, Inc (4R). I did not receive comments from interested parties. I have reviewed the decision documentation, its supporting EA, and other documents found in the project record.
In accordance with my authorities under 36 CFR 215.19(c), I have decided to consolidate these two appeals and issue one recommendation.
Appeals Summary
(a) Appellants objections
Wayne D. Iverson, appeal 97-13-00-0004, raised concerns over the range of alternatives, failure to adequately consider public comments, the size of the Dry Creek parcel beyond the acreage needed to serve the proponent's stated needs, and the inadequacy of the effects analysis for scenic quality.
Ross Forney for Responsible Residents of the Red Rocks, Inc. (4R), appeal 97-13-00-0005, raised concerns that the effects of "commercial exploitation" and commercial development were not addressed, and the Forest Service must pay cash to equalize the value of the forest parcel and lands offered in exchange.
(b) Informal meeting results
I was informed that Wayne D. Iverson declined on having an informal disposition meeting.
Through a telephone conference on November 1, an informal disposition meeting was held with Ross Forney and others. Wayne Thornton has indicated he is considering the points made at the meeting but needed to check into a matter dealing with the intent and effect of a phrase in a deed restriction. He further indicated he wanted to discuss the situation with other affected individuals not present at the informal disposition meeting. This process is anticipated to take another two weeks before resolution can be reached.
(c) Interested Party comments
I have received neither requests for interested party status nor comments by interested parties on these appeals.
Findings
(a) How well the decision responds to the issues, public needs, and fits with overall management objectives and national policy.
I focused my review on the questions of whether the public participation process was adequate and if the alternatives developed were responsive to the the issues raised through the public participation process. I find they were.
There is extensive and adequate public involvement process documented in the project record. Public meetings were held. Comments received from the public participation process during the development of the EA, and from notice and comment on the completed EA were taken into consideration in the development of the EA and DN. From the record, I believe that the Forest Service documented and shared with the public what mitigations that could be enforced to protect the visual quality of the land being exchanged, and that there is no evidence that the Forest Service "changed the game plan at the end of the proceedings" (4R appeal, page 3).
The EA contains two fully developed alternatives, the proposed action and no action. The EA lists four alternatives dropped from detailed study because they were not feasible (page 18). The range of alternatives is adequate to make a reasoned choice for this land exchange based upon the project scope, issues, and purpose and need.
(b) Review of the policy aspects and implications of the issues and whether those issues were addressed appropriately, and whether this project, if implemented, is sound and consistent with Forest Service policy, regulation and law.
There is no violation to any statue, regulation, or policy. The use of cash payment to equalize property values is appropriate. The decision and its supporting documents meet agency standards for decisionmaking. Requirements under the National Forest Management Act, NEPA, the Endangered Species Act, the National Historic Preservation Act, and the Federal Administrative Procedure Act have been met.
Appeal Deciding Officer, Janice McDougle, NFS 3
Recommendation
From my review, I find that the decision meets substantive quality and correctness; therefore, I recommend that the Regional Director's decision be affirmed.
Sincerely,
/s/DAVID L. HESSEL
DAVID L. HESSEL
Director, Timber Management
Appeal Reviewing Officer