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# 98-13-00-0001-A215
Date: MAR 12, 1998
Mr. Bob Engelbrecht Vice President TEMSCO Helicopters, Inc. CERTIFIED MAIL-R.R.R. 1650 Maplesden Way
Juneau, Alaska 998C1
Dear Mr. Engelbrecht:
We have completed our review of your January 22, 1998, appeal of Regional Forester Phil Janiks November 25, 1997, Record of Decision, Helicopter Landings in Wilderness Final Environmental Impact Statement. The Regional Forester's decision was to not allow establishment of helicopter access areas within wilderness on the Tongass National Forest (NF) for use by individuals and helicopter companies transporting the general public. This review was conducted in accordance with 36 CFR 215 of the Secretary's Appeal Procedure Regulations.
In accordance with 36 CER 215.16, there were informal disposition meetings held on February 2, 1998, and February 5, 1998, which were attended by you, Regional Forester Janik, and members of his staff. As a result of these meetings, of the seven issues your appeal raised, issues 1, 2, and 7 were resolved to the mutual satisfaction of you and the Regional Forester. There was no resolution of the remaining issues which are the subject of this appeal.
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. As part of this appeal decision, I hereby incorporate (enclosed) the February 25, 1998, recommendation of the ARO.
Appeal Summary
We have conducted a thorough review of the appeal, interested party comments, the appeal record, the ARO's recommendation, applicable laws, regulations, and policies, and procedures. Based on that review I concur with the ARO's recommendations and hereby incorporate them by reference with the following elaboration on the ARO's review.
Although the Regional Forester's February 10, 1998, memorandum to the Chief documents resolution of appeal issues 1, 2, and 7, we offer the following comment on the resolution of issue I. The affidavits submitted to the Forest Service, as well as the Forest Service records and databases concerning pre-1980 use of helicopters, indicates some use of helicopters in some areas subsequently designated as wilderness. However, we find that the documentation of the established use of helicopters in wilderness prior to designation in 1980 does not establish that each of the wilderness areas under consideration
for helicopter access was subject to established use, as the term is used in the Wilderness Act (Act). Further information would be required to demonstrate that pre-1980 use of helicopters occurred in the subject areas and that such use constitutes established use. Even if affidavits and other documents proved that use of helicopters in designated wilderness areas prior to 1980 was established, the Secretary of Agriculture retains the discretion to preclude helicopter use in wilderness areas within the Tongass NF. In Section 4(d) of the Act, Congress authorized the Secretary to permit continued use of aircraft in wilderness areas where these uses have already become established, subject to such regulation as the Secretary deems desirable. Specifically, the Act states in part, "Within wilderness areas . . . use of aircraft . . . where . . . uses have already been established may be permitted to continue subject to such regulations as the Secretary deems desirable." Forest Service wilderness regulations at 36 CFR 293.6 indicate that Forest Service policy is to prohibit motorized use in wilderness: there shall be in Forest Service wilderness . . . no aircraft landing strips, no helicopters or helisports, no use of motor vehicles, motorized equipment, motorboats, or other forms of mechanical transport.
I also referenced §1110(a) of the Alaska National Interest Lands Conservation Act (ANILCA) which provides in part, that "the Secretary shall permit . . . the use of . . . airplanes . . . for traditional activities . . . (where such activities are permitted by this Act or other law) and for travel to and from villages and homesites." The areas referenced in ANILCA include the wilderness areas specified in the Tongass 1W. Congress used the term "airplanes" rather that the more general term "aircraft" used in the Act. At the time ANILCA was enacted in 1980, 1 surmised that Congress did not consider helicopters to be included within the term "airplanes" and would have used the term "aircraft" if helicopters were intended to be included. I further conclude that, because a much greater portion of these areas specified in §1110(a) could be accessed by helicopters than by fixed wing airplanes, thereby significantly increasing motorized impacts on the areas, Congress chose not to include helicopters in §1110 of ANILCA. In addition, 36 CFR 293.3 provides that "In resolving conflicts in resource use, wilderness values will be dominant . . .". Finally, Forest Service Manual 2320.3 provides that "wilderness values shall dominate over all other considerations except where limited by the Wilderness Act, subsequent legislation, or regulations." Because the Secretary has the discretion (which has been delegated to the agency) to permit or prohibit aircraft use in wilderness areas, and agency regulations elevate protection of wilderness values above other uses and values, the Regional Forester's decision not to allow establishment of helicopter access areas within wilderness on the Tongass NF is consistent with applicable laws and regulations. Established use of helicopters in wilderness areas on the Tongass NF prior to 1980 does not diminish the Secretary's discretion to prohibit helicopter access or alter the regulations' preference for wilderness values. The record includes sufficient rationale for the Regional Forester's decision. The Regional Forester's decision to select the no action alternative provides for the best management of the wilderness resource to ensure its character and
public values are dominant and enduring. The decision best protects the opportunities for solitude, remoteness, primitive recreation, physical and mental challenge and stimulation, inspiration, and undisturbed natural processes provided for in the Act. The selected alternative best minimizes the impact of motorized use generally prohibited by the Act. The Regional Forester, in considering whether additional access into the Tongass NF wildernesses by the use of helicopters is necessary for the use and enjoyment of these areas by the public, concluded there is adequate access provided by other means that are specifically allowed by ANILCA. The use of fixed-wing airplanes, motorboats, and snowmachines in wilderness as provided for in ANILCA is not affected by this decision. The decision will not preclude users of the national forest from experiencing the wilderness of southeast Alaska. Alaska in general and the Tongass NF in particular have many alternative areas where helicopters may be used that have characteristics of wilderness even though they are not in congressionally designated wilderness. It is riot anticipated that this decision will have any short term measurable effect on tourism ano related jobs in Alaska. Findings Accordingly, I find Regional Foresters Janik's decision to not allow establishment of helicopter access areas within wilderness on the Tongass NF for the purposes of transporting the general public into these areas to be consistent with ANILCA, the Wilderness Act, and agency regulations. His decision is not arbitrary and capricious and is therefore affirmed. My decision on your appeal constitutes the final administrative determination of the Department of Agriculture (36 CFR 215.18). Sincerely, GLORIA MANNING Appeal Deciding Officer Interested party comments
United States Forest Washington 14th & Independence SW
Department of Service Office P.O. Box 96090
Agriculture Washington, DC 20090-6090
File Code: 1570 Date: FEB 2 5 1998 Route TO:
Subject: Appeal Reviewing Officer Recommendation Appeal No. 98-13-00-0001-A215
To: Appeal Deciding Officer
I have reviewed Regional Forester Phil Janik's November 25, 1997, decision to not allow establishment of helicopter access areas within wildernesses on the Tongass National Forest (NF) for use by individuals and helicopter companies transporting the general public. Appeal Summary In the December 12, 1997, appeal, TEMSCO Helicopters, Inc. asserts that: 1. The decision ignores documentation of helicopter access that preceded the 1980 establishment of the wilderness; 2. The decision gave more weight to the volume of opposing comments than to substantive issues in the controversy; 3. The record overstates the likely number of landings and resulting impacts; 4. The decision did not adequately consider the intent of the Alaska Interest Lands Conservation Act (ANILCA) to continue traditional access; 5. The decision arbitrarily and capriciously targets only helicopter access; 6. The decision does not consider that a large proportion of the Tongass NP is designated wilderness and generally inaccessible except by air; and 7. The Record of Decision cites the wrong regulation. Informal disposition meeting There were informal disposition meetings held on February 2, 1998, and February 5, 1998. The appellant withdrew appeal issues 1, 2, and 7; however, there was no resolution to appeal issues 3 through 6. I will now address each of the appellant's concerns: 1. The decision did not adequately consider the original Stikine-LeConte Wilderness Plan appeal decision of August 11. 1986, and the comments submitted to the Forest Service regarding this decision. The decision by the Chief in 1986 was based on the assumption that historical he1icopter access did not exist and was therefore inappropriate. The assumption was not correct . Numerous comments were submitted to the Forest Service documenting the historical access by helicopter prior to the establishment of the wilderness area in 1980. The February 10, 1998, appeal resolution signed by Bob Engelbrecht, Vice-President of TEMSCO Helicopters and Regional Forester Janik indicates: "...appeal issue #1 has also been resolved to my satisfaction. Phil agreed to make it clear in the record that there was established use of helicopters in Alaska wildernesses prior to their designation in 1980 and 1990 and that some of this use continued until 1996. He will instruct the Region to maintain all records and databases concerning pre-existing use in the event this decision should be revisited in the future. . . . 2. The decision being appealed was based on the volume of comments in opposition to allowing helicopter landings in wilderness areas. not on the substance and relevance of the issues raised . The above-referenced February 10, 1998, appeal resolution indicates: "In agreeing to withdraw point #2 of my appeal, I understand Phil will issue a letter to employees of the Forest Service in the Alaska Region (particularly public affairs, planning staff and line officers), stressing that he did not base his decision on the volume of comments opposed to the use of helicopters in wilderness. He will also stress that the use of public comments in the NEPA process is not a 'vote-counting exercise' and decisions should not be based on how many comments are received on either side. Future NEPA training sessions in the Region will also stress the proper use of public comments in the decision-making process. This message will clarify perceptions created by the statement in the news release that led to erroneous conclusions about the basis for his decision." 3. The Draft Environmental Impact Statement (DEIS). public notices for comment. and general analysis grossly overstated the likely number of landings and resulting impacts. The Forest Service did not adequatelv consider or correct the information on realistic levels of use based on the comments submitted . The appellant states that the DEIS and Final EIS (FEIS) multiplies a 135-day season times the number of sites to derive the maximum number of landings per year. Contrary to the appellant's assertions (according to page 2-9 of the FEIS) that the FEIS team reviewed all public comments received and fine-tuned the alternatives to respond to public comments. Alternative 33 was created to reflect the number of landings that would be authorized according to historic use, another change in response to public comments. The FEIS clearly identifies how the landing projections were calculated and that this represents the maximum number of landings. I do find that the alternatives present an array of projected landings all the way from 0 to 65,165. The decision conforms to law in that historic uses of the land are permitted by most modes of transportation, but opts not to add helicopters to the list of approved modes of transportation. 4. The decision did not adequately consider the comments relative to the and established means of access . I have reviewed the pertinent sections of .ANILCA. The purposes of the Act are found in Section 101. Subsection (d) finds:. "This Act provides sufficient protection for the national interest in the scenic, national, cultural, and environmental values on the public lands in Alaska, and at the same time provides adequate opportunity for satisfaction of the economic and social needs of Alaska and its people; accordingly, the designation and disposition of the public lands in Alaska pursuant to this Act are found to represent a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition. ..." Section 101 states the Act's intent to balance the needs of the people with preservation of the public lands. Section 1110 (a), Special Access and Access to Inholdings states that: "The Secretary shall permit on conservation system units.. .and those public lands designated as wilderness study (emphasis added) the use of... airplanes.. .for traditional activities.. .f or travel to and from villages and homesites.... Such use shall be subject to reasonable regulations ...to protect natural and other values.... Nothing in this section shall be construed as prohibiting other methods of transportation.. .where permitted by this Act or other law." The Act mandates the Secretary to permit airplanes as a transportation mode for traditional uses of the land subject to reasonable regulations. The Act does not mandate but does not prohibit permitting helicopters for such travel. The Regional Forester determined that there is adequate access into Tongass wildernesses by other means that are specifically allowed through enabling legislation. I find that the Regional Forester exercised proper discretion in this matter. 5. The decision illegally discriminates against one tvpe or class of established access (helicopters) without regard for the relative impacts or consistent standards and is arbitrary and capricious . ANILCA speaks to traditional activities, not traditional modes of access, he is not obligated by law to permit access to those activities by helicopters. 6. The decision does not consider the comments relative to the unique nature of wilderness areas in Alaska. including the large percentage of the Tongass designated as wilderness, the difficulty of access to many of these areas and the relative large size and difficult terrain. The decision to eliminate traditional access by helicopter, because of other opportunities outside of wilderness, did not adequatelv consider the loss of use of these areas for recreational activities. The Congress opted to designate a large area of Alaska's Tongass NF as wilderness. The Regional Forester clearly recognized the unique nature of wilderness areas within the Tongass NP and considered access to these areas. After considering these factors, the Regional Forester determined helicopter access was not necessary for the use and enjoyment of these areas by the American public. Choosing the no-action alternative has no effect on management of the wilderness resource of the Tongass NF. 7. (Other Comments)-- The decision section of the Record of Decision 36 CFR
261.3 is cited as the regulation that currently prohibits helicopter access .
The February 10, 1998, appeal resolution indicates "I also agree to withdraw my objection to the citation of incorrect regulations in the Record of Decision." Findings I find that the selection of the no-action alternative is within the intent of ANILCA and the Wilderness Act, and that the law does not require access by helicopter. The rationale for the Regional Forester's decision is thoroughly documented and meets Forest Service policy and guidelines for management of the wilderness resource. Recommendation I recommend that the Regional Forester's decision be affirmed. I also recommend that the Regional Forester be instructed to take the action which he agreed to in the February 10. 1998, appeal resolution. As a result of my review, I find that the decision made by the Regional Forester was appropriate and fully supported by the appeal record. ELEANOR S. TOWNS Director of Lands Frank L. Jensen, Jr., President, Helicopter Association International, 1635 Prince Street, Alexandria, VA 22314-2818 Carl Portman, Deputy Director, Resource Development Council for Alaska, Inc., 121 West Fireweed Lane, Suite 250, Anchorage, AK 99503-2035 Bart Koehler, Vice President, Defenders and Friends of Admiralty Island and Tongass Wildlands Watch, Box 201, Angoon, AK 99820 INTERESTED PARTIES--TEMSCO Helicopters, Inc., Tongass National Forest, R-10 Jimmie C. Rosenbruch, Alaska Master Guide & Outfitter Glacier Guides, Inc. P. 0. Box 219 Gustavus, AK 99826 Marc Wheeler, Special Projects Coordinator Southeast Alaska Conservation Council 419 6th Street, Suite 328 Juneau, AK 99801 Brian O'Donnell, Executive Director Alaska Wilderness League 320 4th Street, N.E. Washington, D.C. 20002 James M. Wilson, President Coastal Helicopters, Inc. 8995 Yandukin Drive Juneau, AK 99801 Kimberly S. Ross, Executive Director AK Air Carriers Association 1117 E. 35th Avenue, Suite 102 Anchorage, AK 99508 Bob Engelbrecht 1602 Laurie Lane Juneau, AK 99801 Donald J. Barry, Acting Assistant Secretary for Fish and Wildlife and Parks United States Department of the Interior Office of the Secretary Washington, D.C. 20240 Erik Lie-Nielsen Narrows Conservation Coalition Box 2130 Petersburg, AK 99833 Michael McIntosh The Boat Company (The Tongass Conservancy) 1730 M Street, N.W., Suite 404 Washington, DC. 20036 Steven J. Brantner, Chair The Resource Alliance P.O. Box 20770 Juneau, AK 99802 Tongass Conservation Society Jackie Canterbury, Board Member P.O. Box 23377 Ketchikan, AK 99901 Bruce N. Abel, President Juneau Chamber of Commerce 8800 Glacier Highway, Suite 112 1/2 Juneau, AK 99801 Sitka Conservation Society P.O. Box 316 Sitka, Alaska 99835 Sierra Club Alaska Chapter Cliff Lobaugh, CC Juneau Group of Sierra Club 3340 Fritz Cove Road Juneau, Alaska 99801 Allen E. Smith, Alaska Regional Director The Wilderness Society 430 West 7th Avenue Anchorage, AK 99501
Mr. Bob Engelbrecht Mr. Bob Engelbrecht Appeal Deciding Officer
2Appeal Deciding Officer3Appeal Deciding Officer4cc: COMMENTORSPrinted on Recycled Paper FS-6200-28b (12/93)Enclosures There were 19 comments received.