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

jane@janewestlaw.com

Attorney for Petitioners

i

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

ii

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

1

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)

2

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).

3

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).

4

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.

5

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.

6

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).

7

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.

8

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.

9

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).

10

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).

11

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.

12

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.

14

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.

15

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).

16

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

jane@janewestlaw.com

Attorney for Petitioners