BEFORE THE SECRETARY OF THE UNITED STATES ......6277 A1A South, Suite 1010 St. Augustine, FL 32080...
Transcript of BEFORE THE SECRETARY OF THE UNITED STATES ......6277 A1A South, Suite 1010 St. Augustine, FL 32080...
BEFORE THE SECRETARY OF THE UNITED STATES DEPARTMENT OF
AGRICULTURE AND THE CHIEF OF THE UNITED STATES FOREST SERVICE
PETITION FOR RULEMAKING
IMPLEMENTATION OF RULES TO ADHERE TO
MANAGEMENT MEASURES FOR THE MAINTENANCE
OF WILDLIFE HABITAT ON NATIONAL FOREST LAND
IN THE OCALA NATIONAL FOREST AND ENFORCE
THE TERMS OF THE STATE SPECIAL USE PERMIT
December 5, 2016
Respectfully submitted by:
Jane West, Esq.
Jane West Law, P.L.
6277 A1A South, Suite 1010
St. Augustine, FL 32080
(904) 471-0505
Attorney for Petitioners
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PETITION FOR RULEMAKING ...................................................................................................1
INTRODUCTION ...........................................................................................................................1
INTEREST OF THE PETITIONERS .............................................................................................2
HISTORICAL BACKGROUND ....................................................................................................3
LEGAL AUTHORITY ....................................................................................................................6
THE TERMS AND CONDITIONS OF THE SPECIAL USE PERMIT ........................................6
THE FAILURE OF THE USFS TO ENFORCE THE TERMS AND CONDITIONS OF THE
SUP EFFECT A VIOLATION OF THE NATIONAL FOREST MANAGEMENT ACT.............9
WILDLIFE IMPACTS ..................................................................................................................11
WATERSHED IMPROVEMENT AND RIPARIAN AREA MANAGEMENT .........................13
FAILURE TO COMPLY WITH THE OBJECTIVES AND POLICIES OF THE FOREST
SERVICE MANUALS EFFECTS A VIOLATION OF THE NFMA ..........................................15
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TABLE OF AUTHORITIES
CASES PAGE
Campos v. I.N.S.,
70 F. Supp. 2d 1296, 1307 (S.D. Fla. 1998) ........................................................................1
Environmental Defense Fund v. Corps of Engineers,
324 F.Supp. 878 (D.D.C. 1971) ...........................................................................................3
Inland Empire Pub. Lands v. United States Forest Serv.,
88 F.3d 754, 757 (9th Cir. 1996) .........................................................................................9
Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008) ...............................................................................................9
Ohio Forestry Ass’n, Inc. v. Sierra Club,
523 U.S. 726 (1998) ............................................................................................................9
Sierra Club v. Robertson,
28 F.3d 753, 755 (8th Cir. 1994) .........................................................................................9
The Canal Authority of the State of Florida v. Callaway,
No. 71-92-Civ-J, No. 71-486-Civ-J, No. 71-489-Civ-J, No. 71-652-Civ-J,
No. 71-26- Civ-Oc (M.D. Fla. Feb 4, 1974) .......................................................................3
U.S. v. 2,997.06 Acres of Land,
471 F.2d 320, 325 n.8 (5th Cir. 1972) ................................................................................3
UNITED STATES CODE
5 U.S.C.A. § 553 ........................................................................................................................1, 15
16 U.S.C.A. § 1532 ........................................................................................................................11
16 U.S.C.A § 1602 .....................................................................................................................2, 10
16 U.S.C.A § 1604 ...........................................................................................................2, 9, 10, 15
CODE OF FEDERAL REGULATIONS
36 C.F.R. § 200.4 .....................................................................................................................10, 15
36 C.F.R. § 219 ................................................................................................................................9
36 C.F.R. § 251.60 ...........................................................................................................................6
ENDANGERED SPECIES ACT 16 U.S.C.A §1536 (Endangered Species Act §7) ...................................................................11, 12
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BEFORE THE SECRETARY OF THE UNITED STATES DEPARTMENT OF
AGRICULTURE AND THE CHIEF OF THE UNITED STATES FOREST SERVICE
BRUCE KASTER and JOSEPH LITTLE,
Petitioners,
SECRETARY OF THE DEPARTMENT
OF AGRICULTURE AND CHIEF OF THE
UNITED STATES FOREST SERVICE,
Responsible Officials.
__________________________________________/
PETITION FOR RULEMAKING
IMPLEMENTATION OF RULES TO ADHERE TO MANAGEMENT MEASURES FOR
THE MAINTENANCE OF WILDLIFE HABITAT ON NATIONAL FOREST LAND IN
THE OCALA NATIONAL FOREST AND ENFORCE THE TERMS OF THE STATE
SPECIAL USE PERMIT
I. Introduction
Pursuant to §553(e)1 of the Administrative Procedure Act (“APA”), Bruce Kaster and
Joseph Little (“Petitioners”) hereby petition the Secretary of the United States Department of
Agriculture (“USDA”) and the Chief of the United States Forest Service (“USFS”) to issue and
implement rules to enforce the terms of the Special Use Permit issued by the USFS to the Florida
Department of Environmental Protection (“FDEP”) on January 21, 1994. The failure of an
agency to follow its own regulations constitutes arbitrary and capricious conduct.2 The
Petitioners also seek the issuance of certain rules to redress the continuing failure of the Forest
Service to manage its lands—specifically, the Ocala National Forest—in a manner that furthers
1 Each agency shall give an interested person the right to petition for the issuance, amendment, or
repeal of a rule. 5 U.S.C.A. § 553 (West).
2 Campos v. I.N.S., 70 F. Supp. 2d 1296, 1307 (S.D. Fla. 1998)
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the desired future conditions, goals and objectives listed in the Forest Plan for National Forests in
Florida. By law, the USFS must specify guidelines for land management plans developed to
achieve the goals of the Renewable Resource Program3 which (among other requirements)
provide for diversity of plant and animal communities based on the suitability and capability of a
specific land area in order to meet overall multiple-use objectives, and insure research on and
evaluation of the effects of each management system to the end that it will not produce
substantial and permanent impairment of the productivity of the land.4
II. Interest of the Petitioners
Mr. Bruce Kaster lives in Ocala, Florida. He is a former US Army Corps of Engineers
officer and is currently a practicing lawyer. He has a long history of environmental activism and
has been a member of Florida Defenders of the Environment (“FDE”) for over thirty years. He
is currently a member of the Board of Trustees for FDE. FDE was founded in 1969, and is one
of the oldest environmental non-profit organizations in Florida. FDE’s primary focus is the
preservation, protection, and restoration of Florida’s freshwater resources, but over its long
history, has expanded to include environmental education initiatives and the conservation of
public lands. Initially organized for the purpose of addressing the threat posed to the Ocklawaha
River by the Cross Florida Barge Canal (“the Canal”), FDE has continued to focus its efforts on
repairing the damage caused by that project since the deauthorization of the Canal in 1990.
FDE has also helped to protect the Osceola National Forest from mining, and has worked
to improve the management of Ocala National forest and several state parks. Most notably, FDE
played a key role in the designation of former Barge Canal lands as a greenway managed for
3 16 U.S.C.A. § 1602 (West). 4 16 U.S.C.A. § 1604(B), (C) (West).
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conservation. The resulting green corridor is named the Marjorie Harris Carr Cross Florida
Greenway in honor of one of FDE’s founders, and former client of Bruce Kaster. He also was
appointed by Governor Lawton Chiles to the Ocklawaha Basin Board in 1983 where he served as
Chairperson until 1987. Since that time, he has had special and unique concerns about the water
management issues regarding the Ocklawaha River Basin, an area he has been recreating on for
decades.
Joseph Little received his Bachelor of Science at Duke University before graduating from
the University of Michigan College of Law. Little is currently a Professor of Law (Emeritus) at
the University of Florida where he has taught since 1967. Little has been a member of FDE for
nearly fifty years.
III. Historical Background
Congress authorized the construction of the Canal in 1942, which was originally
designated as a 107-mile ship canal connecting Palatka, Florida on the St. Johns River to
Yankeetown, Florida on the Gulf of Mexico, and included impounding the Ocklawaha River.5
Construction on the Canal began in 1964 and the Kirkpatrick Dam (aka Rodman Dam) on the
Ocklawaha River was built in 1968, creating the Rodman Reservoir. On January 19, 1971,
President Nixon ordered “a halt to further construction of the Cross Florida Barge Canal to
prevent potentially serious environmental damages.”6 This order was issued a week before a
Federal District Court issued a preliminary injunction enjoining further construction of the
5 See, e.g., The Canal Authority of the State of Florida v. Callaway, No. 71-92-Civ-J, No. 71-
486-Civ-J, No. 71-489-Civ-J, No. 71-652-Civ-J, No. 71-26- Civ-Oc (M.D. Fla. Feb 4, 1974)
(Opinion and Judgment). 6 U.S. v. 2,997.06 Acres of Land, 471 F.2d 320, 325 n.8 (5th Cir. 1972).
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Canal, after one-third of the Canal’s structures were completed.7 The Canal was officially de-
authorized by Congress in 19908, and the U.S. Army Corps of Engineers (“Corps”) transferred
their land interests and structures in the Canal to the State of Florida in 1991.
The Kirkpatrick Dam extends 6,800 feet, with approximately 2,800 feet occupying
National Forest System lands. When the Kirkpatrick Dam was completed, its resulting Rodman
Reservoir flooded approximately 9,000 acres of floodplain forest, including approximately 600
acres of National Forest System lands. After the Corps transferred their land interests and
structures in 1991, the State of Florida subsequently applied for and was issued a federal permit
by the U.S. Forest Service to authorize Kirkpatrick Dam and Eureka Lock and Dam to occupy
National Forest lands. That Special Use Permit (“SUP”) was issued on January 21, 1994 and
expired on December 31, 1998, but was extended twice to provide time for the State to “apply
for a new occupancy permit describing their management intentions and environmental analysis
to support their proposal.” These extensions were provided to FDEP to allow the agency to
adhere to the implementation schedule for partial restoration of the Ocklawaha River (discussed
below), but FDEP ultimately refused to adhere to that schedule. The USFS, as a result of
expiration of the extended SUP in 2002, directed FDEP to renew the SUP in 2010 in order to
allow for coordinated maintenance of the USFS lands affected by the FDEP’s occupancy.9 The
order by the federal agency went unheeded by FDEP and to this day, no permit exists authorizing
the State’s continued use and occupation of federal land.
7 Environmental Defense Fund v. Corps of Engineers, 324 F.Supp. 878 (D.D.C. 1971)
(injunction was to apply upstream on the Ocklawaha River from the Eureka Dam and Lock and
any portion east of the completed portion of the western segment of the canal). 8 Pub. L. No. 101-640 sec. 402, 104 Stat. 4644 (Nov. 28, 1990). 9 See Letter from Forest Supervisor Jeheber Matthews to FDEP Secretary Ballard, March 19,
2010.
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A Notice of Intent to prepare an Environmental Impact Statement for the Occupancy and
Use of National Forest Lands and Ocklawaha River Restoration was published on March 20,
2001.10 On or about December 17, 2001, Forest Supervisor Kearney signed the Record of
Decision (“ROD”) for the Occupancy and Use of National Forest Lands and Ocklawaha River
Restoration. This decision approved the continued use and occupancy of National Forest lands
by Kirkpatrick Dam, Rodman Reservoir and Eureka Dam and Lock while the State of Florida
was to complete restoration of the Ocklawaha River, and issued the Final Environmental Impact
Statement (“FEIS”) for this project. The availability of the ROD and FEIS was published on
January 18, 2002.11
The Proposed Action in this FEIS and its accompanying ROD authorized the continued
occupancy and use of National Forest System lands for the referenced structures while the State
proceeded to conduct “partial restoration of the Ocklawaha River” over a four-year period. As
outlined in the ROD:
“Allowing the occupancy and use of National Forest land will require the
State of Florida to obtain a Special Use Permit for Kirkpatrick Dam,
Eureka Lock and Dam, and flooding of National Forest land. The
implementation of this decision will be the reissuing of the Special Use
Permit, which allows the continued use as long as progress is being made
on the restoration effort based on the proposed schedule in the Special Use
Permit. . .. If progress is not being made in accordance with the phased
time line scheduled, then that would constitute grounds for revocation of
the Special Use Permit.”12
On or about May 30, 2002, the Forest Service provided the referenced SUP to the Florida
Department of Environmental Protection’s (“FDEP”) Office of Greenways and Trails. However,
on or about July 19, 2002, FDEP refused to accept the permit. As a result, the decision by the
10 66 Fed. Reg. 15,686 (March 20, 2001). 11 67 Fed. Reg. 2,651 (Jan. 18, 2002). 12 ROD, at p.11.
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USFS to authorize occupancy of the structures on National Forest Service lands, and the
resulting flooding of hundreds of acres of additional National Forest lands, was never validly
implemented. The original 1994 SUP, which expired in 1998, was never reissued.
As stated in more detail below, the SUP contains terms that mandate compensation for
damage to natural resources on USFS land by the permit holder, terms that mandate removal of
structures built on USFS land by the holder upon termination or expiration of the SUP, and terms
that mandate restoration of the land by the holder. The continued occupation by USFS land in
Ocala National Forest also has amounted to continuous and damaging practices that run counter
to the USFS Forest Plan for National Forests in Florida, which effects a violation of the National
Forest Management Act.
IV. Legal Authority
A. The Terms and Conditions of the Special Use Permit
Bruce Kaster and Joseph Little submit this Petition to seek issuance of certain rules by
the Secretary of Agriculture and the Chief of the USFS to redress the continuing failure of the
USFS to enforce the terms and conditions of the SUP that was issued to FDEP, the permit
holder, on January 21, 1994.
Upon revocation or termination of a special use authorization, the holder must remove
within a reasonable time the structures and improvements and shall restore the site to a condition
satisfactory to the authorized officer, unless the requirement to remove structures or
improvements is otherwise waived in writing or in the authorization.13 No such waiver, explicit
or implied, exists here. The SUP was terminated when it expired on December 31, 1998. A
special use authorization terminates when, by its terms, a fixed or agreed-upon condition, event,
13 36 C.F.R. 251.60(h)(2)(i).
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or time occurs.14 In the case of FDEP’s expired SUP, the permit itself mirrors the above
language, and provides, “[f]or example, the permit terminates at expiration.”15 If the holder fails
to remove the structures or improvements within a reasonable period, as determined by the
authorized officer, they shall become the property of the United States, but holder shall remain
liable for the costs of removal and site restoration.16 Part IV of the SUP states,
“The holder shall compensate in full the United States for damages
occurring under the terms of this permit or any other law or regulation
applicable to the National Forests. The holder shall be liable for all injury,
loss or damage…or other costs associated with rehabilitation or restoration
of natural resources associated with the holder’s use or occupancy.
Compensation shall include, but is not limited to, the value of the
resources damaged or destroyed, the costs of restoration, cleanup, or other
mitigation…and all administrative, legal (including attorney fees [sic]),
and other costs in connection therewith.” (emphasis added).17
The loss of floodplain forests along the Ocklawaha River has been extensive. Upon the
completion of Kirkpatrick Dam, which resulted in the creation of Rodman Reservoir,
approximately 4,000 additional18 acres of floodplain forest were flooded, including
approximately 600 acres of National Forest system lands. As a result of this persistent flooding,
seeds did not germinate, trees died, and soil conditions became toxic to plants.19 The damage to
natural resources in the permit area is well-documented in the December 2001 FEIS discussed in
Part III of this Petition: “Major issues presently threatening the ecological integrity of the
Ocklawaha River Basin include chronic flooding and associated alterations in nutrient exchange
and water quality, loss of hydrologic and habitat connections within and between the river and
14 C.F.R. 251.60(a)(2)(iii). 15 See SUP, Part V, Subpart A. 16 C.F.R. 251.60(h)(2)(i). 17 See SUP, Part IV, Subpart B(1). 18 Construction activities associated with the barge canal resulted in the destruction of
approximately 3,400 acres of floodplain forest. FEIS, Page 2-2, §2.4. 19 See FEIS, Page 2-2, §2.4.
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forest, increases in exotic and nuisance species, and changes in timing and quantity of discharges
into the lower Ocklawaha River.”20
The extensive damage to USFS lands has been well documented in the 2001 FEIS,
published 3 years after the SUP expired. Now, 18 years later, the USFS has done nothing to seek
compensation for any damage done to its lands caused by FDEP’s ongoing and unpermitted
activities. The same regulations that form the basis for the terms and conditions of the SUP also
explicitly apportion liability on entities that occupy USFS lands without a permit.21
Upon termination of the SUP, the USFS has also continually failed to require the holder
(FDEP) to remove, within a reasonable time, all structures and improvements (the Kirkpatrick
Dam, among others) from Forest Service land, and has failed to require the holder to restore the
site, as required by the conditions of the permit. The SUP states:
“Upon abandonment, revocation, termination, or expiration of this
authorization, the holder shall remove within a reasonable time prescribed
by the authorized officer all structures and improvements, except those
owned by the United States, and shall restore the site. If the holder fails to
remove all structures or improvements within the prescribed period, they
shall become the property of the United States and may be sold, destroyed
or otherwise disposed of without any liability to the United States.
However, the holder shall remain liable for all costs associated with their
removal, including costs of sale and impoundment, cleanup, and
restoration of the site.”22
There is no exact time period designated for a “reasonable time prescribed by the
authorized officer” in the SUP, but no plausible argument can be made for the proposition that
18 years is at all “reasonable”.
20 See FEIS, Page 1-1. 21 Those that temporarily occupy National Forest System lands without a special use
authorization assume liability, and must indemnify the United States, for all injury, loss, or
damage arising in connection with the temporary occupancy. C.F.R. 251.50(b). 22 See SUP, Part V, Subpart D.
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B. The Failure of the USFS to Enforce the Terms and Conditions of the SUP Constitute
a Violation of the National Forest Management Act.
Congress enacted the National Forest Management Act of 1976 (“NFMA”) to reform
USFS management of the National Forest System. The NFMA sets requirements regarding the
development and implementation of land and resource management plans for national forests and
grasslands.23 In addition to providing substantive and procedural requirements on the agency, it
requires the development of resource management plans by every forest and grassland in the
U.S. National Forest System. Under the NFMA, the Secretary of USDA is required to specify
procedures to ensure that land management plans are prepared in accordance with the National
Environmental Policy Act of 1969 (“NEPA”), which in turn encompasses a duty to prepare
environmental impact statements.24 Standards are legally enforceable, binding and mandatory
requirements placed on the agency through either NFMA planning regulations (covering all
national forests) or individual forest plans. Once a forest plan has been approved, subsequent
actions must be consistent with that forest plan.25
The NFMA sets a two-stage approach to forest planning.26 First, the USFS must develop
a comprehensive forest plan, which may also be referred to as a Land Resource Management
Plan (“LRMP”), and an EIS for the entire forest.27 All site specific actions, as well as “plans and
permits, contracts, and other instruments for the use and occupancy of National Forest System
land shall be consistent with the land management plans.”28 Direct implementation of the LRMP
23 16 U.S.C. § 1604(c) 24 See 16 U.S.C. § 1604(g)(1). 25 See 16 U.S.C. §1604(i); Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008). 26 Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998). 27 Id; 36 C.F.R. § 219(a), (b). 28 16 U.S.C. § 1604(i); Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir. 1994).
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occurs at a second stage, when individual site-specific projects are proposed and assessed.29
By allowing the unpermitted continued use and occupancy of Ocala National Forest by
the FDEP, the USFS is failing to comply with its own directives contained in the Forest Service
Manual, which in turn effects a failure to comply with the National Forest Management Act of
1976.
Under NFMA, the Secretary of Agriculture shall promulgate regulations that set out the
process for the development of the land management plans—specifically, land management
plans developed to achieve the goals of the Renewable Resource Program (“the Program”) under
16 U.S.C. §1602.30 The Program shall include recommendations which recognize the
fundamental need to protect and, where appropriate, improve the quality of soil, water, and air
resources.31 More importantly, the Secretary is required to specify guidelines developed to
achieve the goals of the Program which provide for diversity of plant and animal communities
based on the suitability and capability of the specific land area in order to meet overall multiple-
use objectives, insure research on, based on continuous monitoring, evaluation of the effects of
each management system to the end that it will not produce substantial and permanent
impairment of the productivity of the land.32
Administrative policy, procedure, and guidance to Forest Service employees for the
conduct of Forest Service activities are issued as directives, or through correspondence, by the
office of the Chief of the Forest Service and by the field officers listed in § 200.2. Directives are
issued through the Forest Service Directive System, which is comprised of the Forest Service
Manual and related Forest Service Handbooks. The Directive System codifies the agency's
29 Inland Empire Pub. Lands v. United States Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996). 30 16 U.S.C. § 1604. 31 16 U.S.C. § 1602(5)(C). 32 16 U.S.C. § 1604(g)(3)(B), (C).
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policy, practice, and procedure affecting more than one unit and the delegations of continuing
authority and assignment of continuing responsibilities; serves as the primary administrative
basis for the internal management and control of all programs; and is the primary source of
administrative direction to Forest Service employees.33
i. Wildlife Impacts
Allowing the continued use and occupancy of Ocala National Forest by FDEP results in
the USFS’s noncompliance with Forest Service Manual (“FSM”) Objective 2670.21, which
directs the USFS to “manage National Forest System habitats and activities for threatened and
endangered species to achieve recovery objectives so that special protection methods provided
under the Endangered Species Act are no longer necessary.”34 Objective 2670.22 directs the
USFS to (1) develop and implement management practices to ensure that species do not become
threatened or endangered because of Forest Service Actions, (2) Maintain viable populations of
all native and desired nonnative wildlife, fish, and plant species in habitats distributed throughout
their geographic range on National Forest System lands, and (3) Develop and implement
management objectives for populations and/or habitat of sensitive species35.
The USFS has known for years that the dam and lock currently occupying Ocala National
Forest cause harm to manatees by crushing and drowning them in the water control structure and
33 36 C.F.R. 200.4. 34 Forest Service Manual Objective 2670.21(1). 35 “Sensitive Species” are defined as “Those plant and animal species identified by a regional
forester for which population viability is a concern, as evidenced by (a) Significant current or
predicted downward trends in population numbers or density, and (b) Significant current or
predicted downward trends in habitat capability that would reduce a species' existing
distribution. FSM 2670.5.
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lock.36 In a February 2000 letter from the U.S. Fish and Wildlife Service (“USFWS”) to the
Forest Supervisor of National Forests in Florida, the USFWS notes that at the time, there was
“no relief available” to insulate either the USFS or FDEP from the take37 of manatees.38 The
USFWS went on to recommend that, until a complete consultation pursuant to §7 of the
Endangered Species Act was done, FDEP should close Buckman Lock to navigation.39
Although a Manatee Exclusion Device has since been installed at Kirkpatrick Dam and Buckman
Lock (budgeted by FDEP at approximately $600,000.00 to implement)40, this is highly indicative
that manatees are being prevented from assessing their historical natural habitat – a clear §7
violation of the Endangered Species Act. The continued operation of the locks equipped with the
exclusion devices is an ongoing ESA violation by FDEP and inexplicitly condoned by USFS
through its failure to act..
A 1977 letter signed by 184 of Florida’s leading biologists recommended immediate
removal of the then-named Rodman Dam, and among other reasons, supported the
recommendation by stating that “[m]any more endangered and threatened species of plants and
animals would be benefited by restoring the riverine forest than by preserving the reservoir.”41
Over the last 15 years, Florida has experienced actual and potential loss in warm-water refuges
for manatees, resulting in an ever-increasing need to preserve areas manatees are known to
frequent, such as the Ocklawaha River. There is also data which supports the fact that the
36 Letter from U.S. Fish and Wildlife Service to Forest Supervisor of National Forests in Florida,
Feb. 3, 2000, Paragraph 2. 37 The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. 16 U.S.C.A. § 1532(19) (West). 38 Id at Paragraph 6. 39 Id. 40 Florida Manatee Recovery Plan (2001), Page 119. Available at
https://www.fws.gov/northflorida/Manatee/Recovery%20Plan/2001_FWS_Florida_Manatee_Re
covery_Plan.pdf. 41 Letter from 184 Florida Biologists to President Carter, May 20, 1997, Paragraph 2.
13
Ocklawaha River once served as a spawning habitat for sturgeon, a listed species.42
Since the construction of a portion of the Cross Florida Barge Canal and closure of the
Kirkpatrick Dam, blockage of essential migratory pathways and habitats have caused the absence
of self-maintaining populations of Striped Bass and American Eel in the Ocklawaha River—both
of which were historically common species in the area.43 Removal of the dam and restoration of
flows to the River are likely to facilitate an increase in diversity of fish and wildlife, as well as an
increase in the forage fish food base for many larger fish, wading birds and seabirds, reptiles, and
mammals.44 If Rodman Reservoir is drained, long-absent migratory fish populations are
expected to return, and overall ecological function will increase.45 Failing to enforce the terms
and conditions of the SUP and failing to follow the FSM objectives listed above will continue to
cause these issues regarding endangered and listed species, as well as the healthy populations of
species native to the area in general.
ii. Watershed Improvement and Riparian Area Management
The unpermitted operation and occupancy of the Kirkpatrick Dam and related structures
on USFS land effects a failure to comply with FSM Objective 2522.02, which directs the USFS
to “restore degraded watershed conditions by stabilizing soil, controlling surface runoff and
erosion, reducing flood potential, improving long-term soil productivity, and stabilizing the
42 White, David, USDA/USFS Role in Ocklawaha River Restoration: By Requiring the Removal
of Rodman Dam and Reservoir on the Ocala National Forest, National Forests in Florida, May
10, 2011. 43 Lewis, RR. 2012. Management and Restoration of the Fish Populations of Silver Springs and
the Lower Ocklawaha River, Florida, USA. Putnam County Environmental Council, Interlachen,
Florida, Page 3. 44 Id. 45 Id.
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drainage network”, and to “improve watershed conditions.”46 The USFS also is continually
failing to comply with FSM Objective 2526.02, which directs the USFS to “manage riparian
areas in the context of the environment in which they are located, recognizing their unique
values.”47 The FSM Policy supporting this Objective is to “manage riparian areas under the
principles of multiple use and sustained yield, while emphasizing protection and improvement of
soil, water, and vegetation, particularly because of their effects upon aquatic and wildlife
resources.”48
The USFS opens its Record of Decision for the Ocklawaha Restoration (2001) by noting
that “restoration of the Ocklawaha River is compatible with the long-term management goals of
the State of Florida and the National Forests in Florida.” A 1995 memorandum from FDEP
General Counsel to the FDEP Secretary states, “[t]he upper basin of the Ocklawaha River has
experienced declines in water quality, loss of fish and wildlife habitat, and impediments to the
growth of healthy lake ecosystems due to previous flood control and navigation efforts,
agricultural uses, and urbanization.”49 A 1977 letter signed by 184 of Florida’s leading scientists
recommended immediate removal of the then-named Rodman Dam, and among other reasons,
supported the recommendation by stating that “[t]he flood plain forest performs valuable services
for man, such as water purification and storage, that are accomplished much less effectively and
at a far greater cost in energy and dollars by man-made systems such as reservoirs.” The letter
goes on to support removal of the dam and restoration of the Ocklawaha by noting that the
reservoir, even with intensive management, will still gradually decline in quality and experience
46 Forest Service Manual Objective 2522.02. 47 Forest Service Manual Objective 2526.02. 48 Forest Service Manual Policy 2526.03. 49 Memorandum from FDEP General Counsel to FDEP Secretary, Sept. 29, 1995, Page 12,
Paragraph 4.
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increasing eutrophication, aquatic weed problems, and declining fisheries.50 Failing to enforce
the terms and conditions of the SUP and failing to follow the FSM objectives listed above will
continue to cause these issues regarding watershed quality and riparian area management.
iii. Failure to Comply with the Objectives and Policies of the Forest Service
Manuals Effects a Violation of the NFMA.
As stated above, The NFMA states the Secretary of Agriculture shall promulgate
regulations that set out the process for the development of the land management plans developed
to achieve the goals of the Renewable Resource Program, which include insuring consideration
of the economic and environmental aspects of various systems of renewable resource
management, providing for diversity of plant and animal communities based on the suitability
and capability of the specific land area, and insuring research on and evaluation of the effects of
each management system to the end that it will not produce substantial and permanent
impairment of the productivity of the land.51 The Forest Service Manual and related Forest
Service Handbooks codify the agency's policy, practice, and procedure affecting more than one
unit and the delegations of continuing authority and assignment of continuing responsibilities,
and serve as the primary administrative basis for the internal management and control of all
programs, and is the primary source of administrative direction to Forest Service employees.52
Taking these two provisions together, any regulations effected by the USFS need to be in
harmony with the objectives, goals and policies of the FSM, and where action or inaction by the
USFS does not comply with the FSM, the Secretary of Agriculture must promulgate regulations
that direct the USFS to act in a manner that does comply with the agency’s own directives. The
50 Letter from 184 Florida Biologists to President Carter, May 20, 1997, Paragraphs 4 and 5. 51 16 U.S.C. § 1604(g)(3)(A), (B), (C). 52 36 C.F.R. 200.4(b)(1).
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continuous unpermitted occupancy and use of Ocala National Forest lands by FDEP, as
demonstrated above, not only fails to comply with the objectives and policies of the FSM, but
effects ongoing practice on those lands that run counter to the FSM.
The Forest Service’s failure to insist on a current SUP for the occupancy of federal land
together with the failure to execute on current forest plans, results in the pressing need to act
judiciously and in a timely manner with no further delays. Pursuant to §553(e) of the APA,
Bruce Kaster and Joseph Little petition the Secretary of the United States Department of
Agriculture and the Chief of the United States Forest Service to issue and implement rules to
enforce the terms of the Special Use Permit and to ensure USFS compliance with their own
Forest Service Manuals, and as a consequence, ensuring compliance with the National Forest
Management Act.
Dated this 5th day of December, 2016.
Respectfully submitted by:
Jane West, Esq.
Jane West Law, P.L.
6277 A1A South, Suite 1010
St. Augustine, FL 32080
(904) 471-0505
Attorney for Petitioners