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					The Ecology Center
801 Sherwood, Suite B Missoula, MT 59802 (406) 728-5733

December 21, 2002 Ronald Jablonski, District Ranger Medora RD-DPG-FS-USDA 161 21st St. West Dickinson, ND 58601-3135 Ranger Jablonski: The following are comments on behalf of the Ecology Center on the Upton Resources SUPO EA, well pad, production facilities, access road and other associated activities proposed on public land (FS cover letter, dated Nov 25, 2002) Our June 13, 2002 comments on the 1st Upton 12-2 EA, in your possession, are incorporated by reference into this letter. We wish to reiterate each of the points made in that letter in this letter. Virtually all of these comments are germane to the issues in the 2nd EA. In addition: The FS should consider whether this mineral development in a roadless area may have a significant impact on the human environment and necessitates the preparation of an EIS. The Ecology Center believes that an EIS is required for this project. There is an especially strong case for preparing an EIS, given the impacts to a roadless area and the cumulative impacts of other mineral development in and around this roadless area. The Ninth Circuit affirmed the Roadless Area Conservation Rule, and stated the following about roadless areas: "As explained in the Final Rule, roadless areas contribute to the health of the public because they help preserve the forest system's watersheds, the rivers, streams, lakes, and wetlands that 'are the circulatory system of ecosystems, and water is the vital fluid for inhabitants of these ecosystems, including people.' The roadless areas also provide 'important habitat for a variety of terrestrial and aquatic wildlife and plants, including hundreds of threatened, endangered, and sensitive species.' Roadless areas in our national forests also help conserve some of the last unspoiled wilderness in our country." Because roadless areas are so important to the American people, the FS must ensure the public that the project is consistent with RACR and other guidance on roadless areas. Under the CNF Plan, how was it determined that this area is suitable for mineral development? How was it determined what special management is needed to prevent harm to roadless areas, fish, wildlife, native plants, soil, water, cultural resources, municipal watersheds, recreation, and other resources? Did this plan fully examine concerns about roadless areas, fish, wildlife, native plants, soil, water, cultural resources, municipal watersheds, recreation, and other resources such as those expressed above and below? How did this forestwide plan consider FLPMA - 43 U.S.C. sec. 1712(c)(1)-(9) or MUSY - 43 U.S.C. sec. 1702(c)(1)-(5)? Did this plan properly consider surface use prohibitions or restrictions for this area, timing restrictions and other protective measures and stipulations for this area? Was NEPA and NFMA properly adhered to in all phases of developing this forestwide plan. Any defects in the plan and lease should be corrected. The plan and lease should have been formally amended to correct such defects before any mineral development is approved in this area. When the leasing decision was made, how was it determined that mineral development is appropriate in this area? How was it determined whether surface occupancy is appropriate in this area? How was it determined what special management is needed to prevent harm to roadless areas, fish, wildlife, native plants, soil, water, cultural resources, municipal watersheds, recreation, and other resources? Did this leasing decision fully examine concerns about roadless areas, fish, wildlife, native plants, soil, water, cultural resources, municipal watersheds, recreation, and other resources such as those expressed above and below? How did the agencies NEPA, NFMA, FLPMA - 43 U.S.C. sec. 1712(c)(1)-(9), and MUSY - 43 U.S.C. sec. 1702(c)(1)-(5)? Have all procedural and substantive requirements regarding leasing activities and decisions, exploration activities and decisions, and field development been followed? Has the permittee acted truthfully and in good faith in all matters concerning these activities? Have the agencies

properly monitored the activities of the permittee? Did the agencies properly consider surface use prohibitions or restrictions for this area, timing restrictions and other protective measures and stipulations for this area? Any defects in the leasing decision/leasing process must be corrected before any mineral development is approved in this area. All impacts of oil and gas development throughout the entire life cycle of the development should have been analyzed. Do not ignore impacts, for example, simply because they occur off-site or because they may take place at a different point in time from the activities disclosed in the EA. For example, what are the impacts of seismic exploration, geochemical surveys, wells, well pads, collector pipelines, wellhead compressors, separators, dehydrators, storage tanks, noise, air emissions, water discharges, drilling derricks, stimulation, fracing, injection, cavitation, explosives, venting, personnel traffic, and reclamation activities? What are the impacts of on-site and larger scale (often off-site) infrastructure such as roads, pipelines, powerlines, buildings and facilities, treatment facilities, compression stations, waste disposal facilities, gathering pipelines, transportation pipelines, distribution facilities, and other production, transmission, and marketing facilities? How long could the gas development operations last at the site? Many gasfields are expected to produce for 20 to 50 years. Some gasfields in the western U.S. have been operating for over 100 years. The EA only estimates 5-25 years. Is this a reasonable estimate? What are the impacts of reclamation and abandonment activities? What are the long-term impacts of oil and gas development here (over the entire life cycle)? What are the irreversible and irretrievable impacts of oil and gas development planned here (over the entire life cycle)? An adequate range of alternatives is still not considered in this second EA. The FS considered only the single action alternative and a no-action alternative the FS already has, in effect, said it will not approve. It appears that the decision has already been made on this project, in violation of NEPA. In addition, alternatives that better protect resources in our previous comment letters were not considered. For example, alternatives that would have moved the roads and drilling infrastructure further from the boundaries of roadless areas were not considered. Roadless areas, wildlife habitat, non-motorized recreational opportunities and other resources and values are not adequately considered in the range of alternatives. See our section entitled Consideration of Additional Protective Measures from the first EA comment letter, for example. The FS proposes constructing 2,720 ft. of new access road (EA 3) and additional infrastructure. Impacts associated with motorized use, road densities, roads and other access routes (including any infrastructure that can be used by motorized vehicles) are not analyzed in this EA. The degree to which this project could facilitate illegal or environmentally destructive use is not analyzed. What are the recommendations of the roads analysis conducted to analyze roads that should be decommissioned to reduce environmental impacts or fiscal costs of maintenance. There is no evidence that all existing access routes have been ground-truthed to determine impacts. We request that a copy of the roads analysis for this project area be mailed with the decision. There is no economic analysis. Who benefits and who pays for this project? This analysis presumes that the direction provided for in the Forest Plan is appropriate. However, as recent case law and appeals have documented, Forest Plan direction must be validated at the project- and site-specific levels. Thus, we would like to see the analysis team validate the suitability assumptions made in the Forest Plan for the acres under consideration. These assumptions include land suitability for oil and gas drilling, (both physical and economic), and the degree of success at reclaiming drilling site and refurbishing them within the required period of time. We are concerned that the required reclamation will not be completed due to complications on the ground. The EA admits that a sharp-tailed grouse lek may exist in the area and the project contains mule deer and pronghorn antelope habitat (EA 33). The FS, however, simply assumes that these (and possibly other species that may exist in the area) can simply coexist in the area without being harmed. This is not demonstrated by sound research or population data. Nor is the critical role that roadless areas such as these may play for key species considered. Viability of these species is not assured. The EA merely states that the agency wildlife biological believes there will be no significant impact on diversity, without any basis provided. We are concerned that important vegetative and biological communities in the PA and vicinity could be impacted. The Southern Little Missouri Oil and Gas FEIS (SLMOG FEIS) identifies ponderosa pine, limber pine, native grasslands, woody draws, sagebrush, and other important or unique vegetative or biological communities in the SLMOG FEIS

analysis areas (Affected Environment and Environmental Consequences Sections). The SLMOG FEIS may have missed other such important areas. How will these areas be identified and protected? We are particularly concerned about the direct, indirect and connected impacts of the project on such areas, including the potential for displacement, disturbance, and invasive plant infestation and encroachment resulting from this project. How does the project affect all of these? We are concerned that possible sharp-tailed grouse, bighorn sheep, antelope, mule deer, ferruginous hawks, sage grouse, sturgeon chub, loggerhead shrikes, prairie falcons, merlins, golden eagles, sensitive plant species, TES/MIS butterflies, TES/MIS amphibians, candidate ESA species (SWMOG FEIS Affected Environment and Environmental Consequences Sections), other TES/MIS species, BLM listed species or their habitat in the SLMOG FEIS analysis area. What were the findings of the Moody Plateau Bighorn Sheep Study? Based on the findings in the study, how could bighorn sheep or other important wildlife species be affected by oil and gas development? According to the SLMOG FEIS, "noxious weeds are spreading rapidly through the state of North Dakota"(P. III-94). Activities such as oil and gas development contribute towards the spread of invasive plants. However, the FS has not analyzed the full impacts of invasive plants in this area, the degree to which projects such as this one (by itself and cumulatively) will contribute to the spread of invasive plants. This project could be a vector of invasive species. Yet the EA doesn't even considers measures that could prevent the spread of invasive species in the first place; presumably, it emphasizes a "herbicide use plan" (EA 12&13) which will spread more poisons in the ground and impact more plants, wildlife, and watersheds. The EA fails to examine the degree to which repeated applications will occur because of this project, or the cumulative impacts of such repeated treatments. The FS should have considered preventive measures, including foregoing or greatly reducing the footprint of this project, in order to better address the problem of invasive plants. The project is located 1/2 mi. from Davis Creek and a few hundred yards from another small drainage (EA 14). Impacts to water and water quality could be serious. However, watershed impacts are not considered at all (EA 14). The NEPA document should have contained a careful analysis of all reasonably past, present and foreseeable impacts to fisheries and water quality. The District should use a worst case scenario in analyzing the potential effects of the proposed project. The EA should have analyzed the effects of a major spill on fisheries, water quality, and riparian areas. Instead, the EA easily dismisses these potential problems with a cavalier lack of analysis. For example, the EA states that if a pipeline were to break it would not catch fire, but the FS does not even disclose what would happen to the substances from the pipeline once they reach the ground! (EA 16). Soils in the project area could be adversely affected. The SLMOG FEIS states, "soils that are located on steep topography, are highly susceptible to wind or water erosion, have high potential for mass failure, are shallow to bedrock, are saline or alkaline, or soils which are virtually impossible or extremely difficult to reclaim are considered fragile (USFS 1974; and Mertes 1978)"(p. III-10). The EA admits that soils in the project area are "subject to erosion" (EA 12) and that "some"erosion would occur during the construction process - but does not explain how much erosion would occur or analyze its impacts. Post-construction soil problems are likewise not discussed. Impacts of emissions, flaring, and other air quality problems (and groundwater problems) should not have been dismissed because regulatory authority resides with another agency. The FS is supposed to use interdisciplinary analysis before making NEPA decisions that may effect the environment. The FS cannot simply pretend that these effects don't exist before approving a mineral development project like this. The FS should analyze impacts to human health associated with this project. These impacts were not clearly analyzed. Cumulative impacts analysis is lacking. The 1st EA stated that 75% of this project area could see leased mineral development. This EA says it could be more. Cumulative impacts appear to be growing. How are enforceable reclamation and bonding provisions incorporated into the design criteria (EA 19&20). The project could allow toxic chemicals to affect the surface. The waste products are stored in earthen berms and could seep into the ground (EA 20).

Effectiveness of BMPs and design features was not analyzed (EA-mitigation measures). The project analyses should have described the all the applicable Visual Quality Objectives for the areas (and nearby public land or other sites of high visual concern), and properly assessed how the project would meet those VQOs. Viewpoints in the area, including FS-listed viewpoints and other visual areas of concern, the Custer Trail, the Wildlife Circle Tour route, and important access routes to the roadless area, should have been taken into consideration. The FS does not explain how it differentiates between major and minor biological corridors, or the degree to which biological corridors would actually be impacted (EA 17). What does the FS mean when it says that areas "important for some species ' daily travel patterns" "do not exist…or are avoided" (EA 17). Does this mean that some species would be displaced? What are the impacts to these species? Consideration of cultural resources should have been fully addressed in the analysis. Consultation with Native Americans and other knowledgeable persons should have occurred. There is no information in the EA on whether these persons were even consulted before this drilling proposal will begin. The EA should have fully considered the potential impacts of power transmission on wildlife, particularly the MIS, TES species and other CNF/DPG Plan recognized species, including impacts related to site-related electrical equipment. Would this project necessitate any powerlines here or offsite, for example? This project takes place in or around areas now classified as "non-motorized backcountry recreation" and "rangelands with diverse natural appearing landscapes" which have limits on facilities to maintain a natural appearing landscape (EA 5; DPG Plan 3-32). The backcountry and roadless areas of this project area are certainly some of the most sensitive and remote roadless areas of the DPG. The EA does not analyze the degree to which such recreation opportunities are limited throughout the general area, throughout the DPG or other surrounding non-FS lands. This project may have significant impacts on backcountry and roadless recreation in the DPG Again, we believe that the disturbed surface figures in the EA is dramatically understated and request that the Forest Service further substantiate its conclusions including the projected acreage of disturbed surface area required for each well pad, associated road(s), pipeline(s), power line(s) and other associated infrastructure. The FS hedges on disclosing the amount of infrastructure that could be required (EA 3). What impacts could there be under the worst case scenario or under the best possible scenario? What is most probable? How would resources be impacted? Are FS reclamation standards adequate for a roadless area (EA 6)? Should any additional provisions be imposed to adequately protect resources? Who hired and paid for the consultant(s) who did the botany and wildlife surveys? Were adequate, unbiased surveys conducted? What potential TES plant habitat exists in the project area (EA 11)? How will it be impacted? Road construction could "fragment" native plant communities; the project has the potential to facilitate leafy spurge and other invasive plants (EA 11). Did the FS fully consider the impacts of this project over time and over a wide enough geographical area? What will happen over the long term? How will native plant populations and biological communities be impacted "Uncontrolled herbicide use" is a concern (EA 13). How will non-target plant species and resources be protected? Were streams, seeps, bogs, and other riparian/water resources surveyed at times when these resources might best be detected (EA 15)? What time of year was the area surveyed and what were the prevailing weather conditions during this time? Why were SIOs determined to be low in this area (EA 13)? How do the presence of roadless areas, backcountry, the historic Custer Trail, the wildlife touring route, the presence of wildlife and scenic topographical features taken into consideration. There is an issue that as recent case law and appeals have documented, Forest Plan direction must be validated at the projectand site-specific levels. Thus, we would like to see the analysis team validate the suitability assumptions made in the Forest Plan for the acres under consideration. These assumptions include the scenic integrity objectives and other visual designations for this area. "[P]eople expect to see a naturally appearing character within each general region" (VMS Handbook Vol 2, p
2). See also the new Scenery Mgmt. System handbook which states that remote, rarely visited areas can have high scenic value.

The project could also impact a high SIO area (EA 14). The FS asserts that the objective could be met, but does not explain how it would do so. The FS should ensure that TES species (and other CNF/DPG listed species) are adequately protected. Thorough plant and animal surveys, over an appropriate period of time, should take place. These surveys should be conducted by appropriately trained personnel and should take place at times of the year when applicable plant and animal species are likely to be detectable and identifiable. The analysis should disclose whether any factors could have affected the ability of surveyors to detect applicable species and should disclose whether any species could have been present, but may have been undetected. Were all TES and other listed species considered (EA 10& 11, 16)? Suitable habitat for Bairds sparrow, loggerhead shrike, Spragues pipit, northern leopard frog, Dakota skipper, Ottoe skipper, and tawny crescent exists in the project area (EA 16). What habitat do these species require and how will the project affect these species and their habitat? Please send a copy of the BE and BA. The FS stated that several TES plant and animal species did not have suitable habitat in the project area. Were all potential micro-habitat sites considered? Several important raptor species are known to the DPG area, including ferruginous hawks, golden eagles, prairie falcons and merlins. The EA states that the project contains raptor habitat (EA 17). What kind of raptor habitat? How will raptors be affected? For what periods of time have surveys and for raptors (and other plant and animal species) been conducted? Are these surveys and monitoring efforts been consistent and thorough? Could raptors exist in any areas but be undetected? How would sharp-tailed grouse be affected by activities between 9AM and 5 PM if activities are permitted at these times (EA 19)? Could animals (antelope, mule deer, for example) be affected by activities at other times that restricted seasons (EA 19)? What specific access restrictions would be imposed to protect mule deer? For who? How much traffic would occur under restrictions (EA 19)? How will the FS prevent permittees or others from disturbing raptors and other animals, forcing them to move, so their presence cannot be detected by surveys prior to operations or while operations are ongoing (EA 19,etc)? How visible will facilities be even with mitigation (EA 19&20)? If the historical integrity of military tails, camping sites, and battle sites will not be adversely affected, will they be affected at all (EA 29)? To what degree? And how will the overall landscape of the historic area be affected? To what degree is the overall landscape a part of these historic areas? How will views of the landscape be degraded or diminished? How many sites like this are left? What opportunities does this area offer for historical interpretation, general landscape, and visual impression that other sites do not offer. We note that the EA states that "due to settlement and cultivation, the Davis Creek area may contain the only intact segments of the Custer Trail" (EA 30). What significant impacts to this resource could occur as a result of this project? The FS implies that the project is consistent with the Executive Order on Migratory Birds (EA 35). What migratory birds could be impacted by this project? What Species of Concern listed under provisions of the executive order? You state that the project would have no effect on minority or low income populations protected under the Environmental Justice EO (EA 35). Have you considered whether it would impact Native Americans? Thank you for considering our comments. Sincerely,

Sherman Bamford The Ecology Center

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