VIA FACSIMILE AND CERTIFIED MAIL

February 8, 2000

Federal Emergency Management Agency
Region 9
Building 105
Presidio of San Francisco
San Francisco, CA 94129

North Coast Railroad Authority
4 West Second Street
Eureka, CA 95501

Re: "Continuous Noise Disturbance"/Bird Hazing Activities Draft EA on the Restoration of the Northwestern Pacific Railroad, Humboldt, Trinity and Mendocino Counties

To Whom It May Concern:

Upon reviewing the draft Environmental Assessment referenced above, it has come to our attention that avian species, including those protected under the federal Endangered Species Act (ESA) and the Migratory Bird Treaty Act, may currently be subject to harassment as part of the North Coast Railroad Authority/Federal Emergency Management Agency project proposed in the EA. The draft EA states on page 3-16 that "a continuous noise disturbance would be created starting January 1 to deter birds from nesting in the vicinity of the project area." Page 4-43 similarly states that

"If construction activities cannot begin by January 1, then a continual noise disturbance would be generated along the entire railroad corridor by other means. The noise disturbance would be a recording of construction and train noise, and would mimic the frequency and volume of actual noise from construction and train operation."

The stated purpose of such disturbance is to "prevent birds from establishing in the project area" by mimicking the noise that would be generated by the project and the reopening of the railroad. Simultaneously, however, the EA acknowledges that noise disturbance resulting from the project "can disrupt nesting activities, …can also reduce breeding success and disrupt foraging activities… [and] could have substantial impacts if it causes a specific long-term or irreversible effect on listed species" (EA 4-43).

This statement and this activity represent a reckless disregard for the fundamental requirements of the National Environmental Policy Act (NEPA), which requires that the potential impacts of a project, and alternatives to the project, be analyzed before the project commences. In this case, a component of the project acknowledged to have a potentially significant environmental impact may already be underway despite the fact that this project has not yet been authorized. This fundamental abrogation of the requirements of NEPA threatens our public trust resources.

We request that you immediately cease all harassment activities.

NEPA, codified at 40 C.F.R. §1506.1, explicitly prohibits this type of activity while analysis of a project and its alternatives are underway:

(a) Until an agency issues a record of decision as provided in §1505.2…, no action concerning the proposal shall be taken which would:

(1) Have an adverse environmental impact; or

(2) Limit the choice of reasonable alternatives.

The hazing of birds to prevent nesting by producing a loud, continuous noise disturbance clearly has an adverse environmental impact, obviously limits the choice of reasonable alternatives, and therefore is in clear violation of the law. The draft EA acknowledges that numerous bird species are present or may be present within the proposed project area and that the loss of available nesting habitat is a potentially serious impact of the project. Allowing these environmental impacts to occur before the NEPA process is completed is an obvious attempt to circumvent the law.

The Eel River and its tributaries provide crucial habitat for a large number of bird species, many of which are severely imperiled and at risk of extinction. We are extremely alarmed that you may be presently engaging in activities explicitly designed to harm and harass these animals, including the bald eagles that forage along the Eel River throughout the winter season. We believe these hazing activities are quite likely impairing the bald eagle's and other species' ability to feed and may also be disrupting or otherwise disturbing other essential behavioral patterns in violation of the federal Endangered Species Act.

We hereby notify you that unless you immediately cease any hazing activities that may be underway at this time, we will have no other recourse than to file suit in federal district court. We respectfully request that you act in accordance with the law, and put an immediate end to this illegal action.