appeal deciding officer usfs region 2 740 simms street...

Appeal Deciding Officer USFS Region 2 740 Simms Street Golden, CO 80401

Wyoming Office PO Box 1160 Pinedale, WY 82941 Email: [email protected] Web site: www.WesternWatersheds.org Working to protect and restore Western Watersheds

Appeal Deciding Officer USFS Region 2 740 Simms Street Golden, CO 8040

April 29, 2010 Dear Appeals Deciding Officer, Enclosed, please find our appeal of the Greyrock Grazing Allotment EA and DN. We look forward to working with the Forest Service in fulfilling the intent of NEPA, ESA, NFMA and the other statutes and regulations the Forest Service works within, through a complete and accurate analysis of the impacts of the plan. Sincerely,

Jonathan B. Ratner Director – Wyoming Office

Working to protect and restore Western Watersheds

Wyoming Office PO Box 1160 Pinedale, WY 82941 Tel: (877) 746-3628 Fax: (707) 597-4058 Email: [email protected] Web site: www.WesternWatersheds.org

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APPEAL TO THE REGIONAL FORESTER, USDA FOREST SERVICE FROM A DECISION ON THE ARAPAHO-ROOSEVELT NATIONAL FOREST –

CANYON LAKES RANGER DISTRICT Western Watersheds Project

) APPELLANT )

) v. ) Notice of Appeal, Statement of Reasons,

) and Request for Relief on the Decision to Kevin Atchley District Ranger Canyon Lakes Ranger District ) Allotments in the North ) Range RESPONDENT ) )

NOTICE OF APPEAL

STATEMENT OF REASONS

RELIEF REQUESTED

NOTICE OF APPEAL

On March 11th, 2010, Canyon Lakes District Ranger Kevin Atchley signed the Decision Notice for the Greyrock Grazing Allotment EA (hereinafter, “DN”) following the issuance of the Greyrock Allotment EA (hereinafter, “EA”). This is a timely Notice of Appeal of that decision pursuant to 36 C.F.R. Part 215.

Western Watersheds Project (WWP) has members who use and enjoy the

Arapaho - Roosevelt National Forest and the project area and are affected by this decision. We submitted a wide range of comments to this NEPA process and review a large number of documents obtained through FOIA regarding this NEPA process.

Appellants will demonstrate that the District Ranger's decision is arbitrary and in

error and not in accordance with the legal requirements of federal statutes and regulations. Consequently, Appellant requests that the DN be withdrawn, a proper and defensible NEPA process be conducted and a new decision issued.

Notice of Appeal Pursuant to 36 CFR 215, Statement of Reasons and Request for Relief Regarding the Greyrock Grazing Allotment EA and DN Signed by District Ranger Kevin Atchley, Dated March 11th, 2010

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THE APPELLANT

Western Watersheds Project is a regional, membership, non-profit conservation organization with over 2,000 members, based in Hailey, Idaho with offices in Idaho, Montana, Wyoming, Arizona, California and Utah. WWP’s members use the area for a variety of activities, including hiking, hunting, wildlife viewing, spiritual renewal, biological, and botanical research, photography, and for other forms of recreation. They will be adversely affected by the decision as proposed. WWP claims partial ownership in the public lands covered by this decision and consequently has legal standing to participate in the process and challenge those decisions it finds unacceptable.

STATEMENT OF REASONS

The EA and DN are based on flawed and/or inadequate information. By selecting the Preferred Alternative, the Forest Service is in violation of the ESA, NEPA, NFMA and the APA.

There is the letter of the law and the spirit or intent of the law. Later on we will

discuss the letter of the law but here we would like to briefly discuss the spirit of the law. Land managers must take the long view and understand the history as well as the current conditions of the land. For over a century the Forest Service, the Bureau of Land Management, range managers, researchers, Congress and the public have been aware of the severe degradation that has occurred and is continuing to occur as a result of domestic livestock grazing on public lands. Over a century of research, analysis, and reports have documented this degradation of our public lands. For an excellent historical perspective to better understand where we stand today would be the report submitted to Congress in the 1930s titled The Western Range. In addition, the 1999 book titled The Western Range Revisited provides an excellent and detailed review of the current situation since The Western Range was published. Other useful works include the 1994 Rangeland Reform FEIS produced by the Bureau of Land Management as well as Welfare Ranching – The Subsidized Destruction of the American West (Island Press).

What these and many other texts show is that we have known about the causes and

solutions to our degraded public lands for well over a century yet the problem has always been taking effective action to correct these well-known problems. This current NEPA analysis and decision is a classic example of why our public lands continue to be degraded by unsustainable livestock grazing. A thorough reading of the EA describes a wide range of significant impacts that have degraded and continue to degrade our public lands. Many of the impacts discussed such as severe overstocking, soil loss, invasive species and other issues are essentially permanent in nature. The DN fails to take the actions necessary to address issues. Instead, it takes the approach of ‘kick the can down the road’ which essentially puts off decisions which the Forest Service knows are necessary but doesn't want to take them now for fear of upsetting permittees. This is the same spineless management that has led to the problems that we currently are experiencing. This is not the leadership that we need.

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The Forest Service manages these lands which are held in common for the American people. This public trust responsibility that the Forest Service is constrained by has been violated for all too long. In nearly every example that I review, the Forest Service implements the interests of a tiny few at the expense of the interests of the American people as a whole. The intent of NFMA, NEPA and the various other laws and regulations governing the administration of our public lands is to preserve, protect and restore the resources held in common by the American people.

The following analysis details how these federal statutes and agency regulations

will be violated by the project’s implementation: THE EA, DN AND FONSI VIOLATE THE ESA The ESA requires that the Forest Service, under Section 7(a)(2), authorize no

actions that are likely to jeopardize the continued existence of ESA listed species. Well beyond this, the Act requires agencies “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” 16 USC Section 1531(b).

The ESA also affirmatively requires that the Forest Service “seek to conserve

endangered species and threatened species” 16 USC 1531©(1), 1536(a)(2). These statutory provisions specify that the Forest Service must do far more than

simply ensure that its actions are not likely to jeopardize the continued existence of ESA listed species. The ESA imposes upon the federal agencies an affirmative duty to use all methods necessary to ensure that ESA listed species recover to the point of delisting. See Carlson-Truckee Water Conservation District v. Clark, 741 F. 2d 257, 261 (9th Circuit, 1984), Defenders of Wildlife v. Andrus, 428 F Supp. 167, 170 (DDC 1977)

In Bennett v. Spear, 520 U.S. 154 (1997) The Supreme Court stated that the

obvious purpose of the requirement that each agency “use the best scientific and commercial data available” is to ensure that the ESA is not implemented haphazardly, on the basis of speculation or surmise.

In this case, there are a number of issues: 1) While the EA is completely silent regarding the current plant composition

within riparian areas or critical habitat within the allotment what small amount of information that is provided clearly shows severely degraded conditions. "The riparian vegetation along the North Fork has been reduced or the composition changed, leaving the river banks vulnerable to trampling and chiseling by livestock" DN at 27. What this generally means is that riparian areas, due to excessive grazing pressure, have been converted from deeply rooted native riparian obligate species to often invasive, shallow rooted species such as Kentucky bluegrass and dandelion. In addition, the EA states "In the Greyrock Allotment, the dominant species along the North Fork (outside the 4 to 5 foot width of riparian vegetative cover) is cheatgrass. A minor intermix of other native and introduced species also exists along the riparian corridor,

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including: fringed sage (native - Artemisia frigida), needle and thread grass and green needlegrass (native - Stipa spp.), Indian ricegrass (native - Oryzopsis hymenoides), slimflower scurfpea (native - Psoralea tenuiflora), mustard (tumble, introduced - Sisymbrium spp.), clover (introduced – Medicago polymorpha), horsetail (introduced - Equisetum spp.), timothy (introduced - Phleum pretense), western wheatgrass, smooth brome (introduced - Bromus inermis), and Kentucky bluegrass (introduced - Poa pratensis). Kentucky bluegrass replacing native plant species is found to be an indicator of moderately heavy grazed wet meadows (Schulz 1990).” Again, the description is one of significantly degraded conditions. EA at 58. Nearly all of the riparian areas within the allotment has been rated as Functional at Risk. All monitoring done use the Proper Functioning Condition method, which a rating of PFC is actually far below the level required in the WCPH which is "robust stream health".

2) The DN implements the usual Forest Plan Guideline of 6” stubble height on “tall sedges” “at the end of the grazing season” on riparian areas in unsatisfactory condition, to “protect” Prebble’s meadow jumping mice (PMJM) but provides no rationale as to how this 6” stubble height meets the habitat needs of PMJM, which the Forest Service describes as “riparian meadows where tall grass/shrubs are common” and “The jumping mouse requires dense ground cover” and “virtually continuous, dense, tall, grassy vegetation”. See USDA Forest Service, Region 2 - Biological Evaluation for the Preble's Meadow Jumping Mouse - R-2 Range Grazing Permit Issuance (1995). In addition, this BE states that this species feeds on seedheads: “The mice reach as high as they can on grass stems, or climb stems to bite through the stems to cut off the seed head for consumption”. The BE also requires that the Forest Service “insure seed production for jumping mouse forage during the majority of the growing season” but a 6” stubble height allows for no seed production at all for virtually all herbaceous species that inhabit riparian areas. The Forest Service, likewise, fails to provide any rationale as to how the 6” stubble height provides protection from predators, sufficient thermal protection, sufficient overhead cover or sufficient habitat complexity to provide for this specie’s other habitat needs. The Forest Service fails to provide any rationale as to how the amount of livestock use that would occur to reach a 6” stubble height would not trample nest sites, day beds, or individuals, or not collapse burrows and burrow entrances. The Forest Service failed to provide any rationale as to how compacted soils common within riparian areas grazed by livestock would impact burrowing activities. The USFWS’s Designation of Critical Habitat stated that “It is likely that Preble’s abundance is not driven by the diversity of plant species alone, but by the density and abundance of riparian vegetation (Schorr 2001).” The NEPA document and the BE fail to discuss this need, compare it to current conditions or implement actions to provide this. This failure violates the ESA as well as NEPA and is an excellent example of arbitrary and unsupported decision-making.

3) While the DN is silent as to stubble height requirements for species other than “tall sedges”, we can only assume that since the DN failed to implement site-specific utilization levels as required by the Forest Plan (90. (GL) Develop site-specific vegetation utilization and residue guidelines during rangeland planning,

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and document them in allotment management plans.) that the Forest Plan default stubble height of 2” on Kentucky bluegrass would be in place. The Forest Service failed to provide any rationale as to how this 2” stubble height would achieve the above mentioned habitat needs for PMJM or why it failed to implement site specific utilization levels as required by the Forest Plan. This again violates the ESA, NEPA and FLPMA.

4) Given the degraded conditions within riparian areas on this allotment and the descriptions of conditions within the EA and DN it is extremely likely that most of the riparian areas have been converted to shallow rooted species such as Kentucky bluegrass. Since the Forest Service only mentions a stubble height requirement for "tall sedges" we can only assume that since tall sedges most likely do not occur anymore within the riparian areas that the Forest plan guideline for riparian areas in unsatisfactory condition to be grazed to 2 inches for Kentucky bluegrass. The result is that, while on paper it appears that the Forest Service is implementing actions to protect the habitat of this species, in reality it is doing nothing. Even if the 2 inch stubble height were met by the permittees this would in no way provide habitat necessary for this species. In other words the consultation process was a fraud. The information provided to the US Fish and Wildlife Service indicated one thing but failed to mention the critical element that most of these areas have been converted to Kentucky bluegrass and the result will be at best a 2 inch stubble height.

5) The DN at 23 even states that 8 inches is what is needed for vegetation "of sufficient height to provide cover to a Preble's mouse"

6) The ESA and its regulations also prohibit “take” of listed species, where take includes harassing, harming, wounding, or killing the species. 16 U.S.C. §§ 1538; 1533(d); 1532(19). Harm is further defined to include significant habitat modification or degradation that injures a listed species by significantly impairing its breeding, feeding, or sheltering behaviors, while harassment is an act that creates the likelihood of injury by annoying a species to the extent that it significantly disrupts breeding, feeding, or sheltering behaviors. 50 C.F.R. § 17.3. Livestock grazing on Forest Service lands is a discretionary activity. It is well-known that cattle spend the vast majority of their time in riparian areas. It is well-known cattle completely utilize riparian vegetation prior to moving to upland areas. Also, it is well researched that cattle have significant impacts on riparian vegetation, seral stage progression, woody species structure and density. It is also well-known that PMJM is a riparian dependent species requiring tall herbaceous species as well as significant woody species cover. Therefore, to posit that continued livestock grazing will neither harm, harass or kill this species, nor cause “significant habitat modification or degradation” thereby “impairing its breeding, feeding, or sheltering behaviors” compared to not authorizing grazing within this area is absurd.

7) There is no evidence in the record that the Forest Service complied with the fundamental ESA mandate to “use all methods necessary to ensure that ESA listed species recover to the point of delisting”. This violates the ESA.

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THE EA, DN AND FONSI VIOLATE NFMA Below are a sampling of applicable Forest Plan Standards and Guidelines. We see

no defensible rationale provided in the EA, DN or FONSI regarding how the current decision is in compliance with these requirements:

8. (ST) In watersheds containing aquatic TES species, allow activities and uses

within 300 feet or the top of the inner gorge (whichever is greatest), of perennial and intermittent streams, wetlands, and lakes (over 1 acre) only if onsite analysis shows that long-term hydrologic unction, channel stability, and stream health will be maintained or improved.

10. (ST) Conduct actions so that stream pattern, geometry, and habitats are

maintained or improved toward robust stream health. Robust Stream Health as defined by and required in the Watershed Conservation

Practices Handbook is in no way comparable to PFC. PFC is merely the minimum physical functioning to withstand a 20 year flood event (See TR 1737-15). Robust Stream Health is defined as “Stream exhibits high geomorphic, hydrologic and/or biotic integrity relative to its natural potential condition (as represented by a suitable reference condition). For a quantitative analysis, high integrity is indicated by conditions that are 74-100% of a reference condition (after Plafkin et al. 1989, EPA 1999, CDPHE, 2002). Physical, chemical and or biologic conditions suggest that State assigned water quality uses are supported.”

Discussions and monitoring using PFC in no way correlate with Robust Stream

Health. Therefore, the EA and DN are not in compliance with NEPA or this Standard. 11. (ST) Do not degrade ground cover, soil structure, water budgets, and drainage

patterns in wetlands. The EA discusses significantly impacted wetland conditions in a number of

allotments. 21. (ST) Place new sources of chemical and pathogenic pollutants where such

pollutants will not reach surface or ground water. As is well defined in case law, the permitting of livestock grazing on public lands

is a discretionary act. In addition, the renewal of permits as is the case here is a new authorization. The EA and DN does not comply with this Standard.

44. (GO) Restore, protect and enhance habitats for endangered, threatened and

proposed flora and fauna species listed in accordance with the Endangered Species Act and sensitive species appearing on the regional sensitive species list to contribute to their stabilization and full recovery.

45. (GO) Habitats for federally-listed threatened, endangered, and proposed

species and regionally-listed sensitive species are protected, restored, and enhanced.

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Habitat on National Forest System lands is managed to help assure that those species, whose viability is a concern, survive throughout their range, that populations increase or stabilize, or that threats to populations are eliminated.

The mere implementation (as has been the case since the 1997 Forest Plan ROD

was signed) of a 6” stubble height does not comply with the above to requirements. If such requirements were useful why would the riparian areas continue to be in severely degraded condition after nearly 15 years of implementation?

47. (GO) Prepare species management guides to address the effects of land

management activities on local populations of sensitive species at a broader scale, and to identify opportunities to enhance and develop habitat.

48. (GO) Develop conservation strategies as scientific information becomes

available to specify the management considerations needed to maintain viable populations of sensitive species. When the Forest Service and the Fish and Wildlife Service of the US. Department of Interior have approved conservation agreements for sensitive species, provisions will be incorporated into the Forest Plan by amendment or revision, as appropriate, to protect the habitat for the species. We see no evidence that the Forest Service has implemented these two requirements.

51. (ST) Close areas to activities to avoid disturbing threatened, endangered, and proposed species during breeding, young rearing, or at other times critical to survival. Exceptions may occur when individuals are adapted to human activity, or the activities are not considered a threat. The EA and DN fail to close areas to avoid disturbing ESA listed species. Clearly, summer cattle grazing in riparian areas disturbs PMJM which is a riparian dependent species. The EA, DN and FONSI provided no logic as to how this Standard will be complied with.

53. (GO) When competing uses arise, favor habitat specialists that are characteristic of restricted niches present in rare or declining habitats, over species which are habitat generalists, characteristic of common or expanding habitats.

Again we see no evidence of the implementation of this requirement. 87. (ST) Phase out season-long grazing in an allotment, except where it is

determined to achieve or maintain the desired plant community. From what we can tell season long grazing is going to be continued to be

authorized on by this DN. 88. (GL) The site-specific rangeland analysis necessary for preparation of

allotment management plans shall document these elements of riparian communities: a. desired plant communities

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b. site-specific mitigation measures This was not done.

90. (GL) Develop site-specific vegetation utilization and residue guidelines during

rangeland planning, and document them in allotment management plans. In the absence of updated planning or an approved allotment management plan, the utilization and residue guidelines shown in Tables 1.14 and 1.15 will apply.

This was not done. For all riparian habitat the Forest Plan requires: a. Avoid season-long grazing in riparian pastures.

b. Implement short-duration spring grazing where possible to provide greater opportunity for regrowth and to avoid utilization of willows. c. Implement total rest where possible in riparian pastures with deteriorated range where conditions are not likely to improve with livestock grazing. e. Remove livestock from a grazing unit when streambank disturbance (trampling, exposed soils, etc.) from the current year’s livestock grazing reaches 20 to 25 percent of the key area stream reach. f. Limit utilization of woody plants to 15 to 20 percent of current annual growth. h. Limit utilization of herbaceous species to 40 to 45 percent of weight. Season long grazing is continued in some allotments, short duration grazing is not

implemented. The DN only requires that "livestock will be moved to another distribution unit or area if allowable use design criteria are reached during the grazing season on any key area within the distribution unit. Neither the EA nor the DN provide a map or any description regarding what these "distribution units" are. Further, the DN does not require remove livestock when these disturbance criteria are reached.

Cowley, 1999 shows a 1” POPR stubble equating with 90% utilization and a 4”

stubble on equates to 68% utilization. GTR-INT-308 provides similar information. Clearly, the default 4” and 1” do not comply with this direction.

WCHP 12.1(h) requires the Forest Service to manage riparian areas that have

been invaded by POPR and upland species to achieve “more mesic native plant communities”

Nowhere within the various NEPA documents did we find an analysis of the use of Best Available Science (BAS) as required by current regulations.

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Likewise, the EA’s treatment of MIS and Sensitive Species provides no population data, trends analysis or habitat condition analysis as is required by a wide range of case law, much of it from the 10th circuit.

FSH 2209.13 93.3a requires:

“The team, using an interdisciplinary approach, should identify the desired

rangeland conditions within the analysis area. Desired conditions should be specific, quantifiable, and focused on rangeland resources.”

The EA and DN do not comply with this requirement. FSH 2209.13 93.3c requires:

“Identification of resource management needs is simply the comparison of desired

conditions with existing conditions to determine the extent and rate at which current management is meeting or moving toward those desired conditions.” (emphasis added)

The EA failed to meet this requirement. To say conditions are “moving toward” is meaningless without this information. For instance, everyone admits these lands were basically unmanaged until about the 1950’s. Given how severely degraded these lands were up through that time, it would not be surprising that things look better than 1950, but is that “moving towards” sufficient?

FSH 2209.13 93.3f requires:

“There is a two-part decision to be made for authorizing livestock grazing. The first part is whether livestock grazing should be authorized on all, part, or none of the project area.”

The EA failed to provide any information at all regarding the first requirement.

As is universal within Forest Service grazing NEPA processes, the defining of the adaptive management process in this case is woefully inadequate. While the EA cites both FSH 2209.13 and the Quimby document, the EA does not actually implement the requirements of either. We request that you review the R2 Adaptive Management Guidance document which clearly defines the minimum level of adaptive management.

FSH 2209.13 93.3g defines adaptive management as:

Adaptive management is an interdisciplinary planning and implementation process that provides for: 1) identification of site specific desired conditions; 2) definition of appropriate decision criteria (constraints) to guide management; 3) identification of pre-determined optional courses of action, as part of a proposed action, from which to adjust management decisions over time; and 4) establishment of carefully focused project monitoring to be used to make adaptive adjustments in management over time.

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As stated previously, the DC’s laid out for benchmark areas don’t meet the requirement of the FSH. Additionally, as discussed in more detail in the Quimby document, “pre-determined” means “if this… then that”, not just a general ‘toolbox’ with everything stuffed into it. And lastly, the EA’s “monitoring plan” could hardly be called “carefully focused”

We attach the cited Quimby document with key sections highlighted. These sections need to be thoroughly reviewed as the EA does not implement most of them.

We also include as an attachment a useful document written by the US Fish and Wildlife Service on how to write goals and objectives. This document meshes closely with the R2 document discussed above.

In every grazing NEPA process the Forest Service conducts, the principal need is

"for greater management flexibility" but little rational justification for this need is provided. Virtually every so-called "tool" the Forest Service wishes to have as part of adaptive management, has been available to it for decades. Most of these tools are part of the normal permit administration process.

The falsity of the Forest Service’s purported need for “flexibility” is clearly exposed in FSH 2209.13 – 92 which states:

“The majority of these changes can be implemented administratively, provided the changes do not fall outside the scope of the NEPA decision. Examples of actions that may be taken without further NEPA analysis include alteration of management to respond to Biological Opinions or other ESA, Clean Water Act, or other consultation requirements; changes in specific dates of grazing, class of livestock to be grazed, grazing systems, or livestock numbers based on evaluation of monitoring results; and, implementation of the LRMP through modifications to the term grazing permit. Administrative actions to implement higher level decisions or to respond to monitoring results should be undertaken as a routine administrative action prior to initiating NEPA.”

In the species calls sections the Forest Service lists most species as "may adversely impact individuals, but not likely to result in a loss of viability on the planning area, nor cause a trend to federal listing or loss of species of viability range wide" but the document fails to provide any information regarding current populations or trends which is of course fundamental to a supportable call. For instance, if there are 30 individual plants of a particular species in the planning area or even in the forest as a whole is that a viable population? Would affecting 6 of those individuals not likely result in a loss of viability, assuming viability currently exists? This information is not provided.

The EA fails to discuss actual use within the allotments. Actual use is critical because frequently actual use is significantly lower than permitted use. Therefore the analyses of current conditions must be based on the fact of actual use not permitted use. For instance if 1000 head are permitted on a particular allotment but the 20 year average is only 500 head then current conditions are, of course, the result of actual use half that of permitted use. So analyses based on full permitted use would be vitiated. Such information is fundamental to a valid NEPA process.

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FSH 2209.13 94.2 requires:

“The evaluation of a proposed action’s environmental effects must include the

potential effects of all adaptive management options that may be implemented at some future point in time. For example if one potential option is to fence off a riparian area, the effects of that fence must be evaluated even if that management option may never actually be implemented.”

This was not done in the EA.

THE EA, DN AND FONSI VIOLATE NEPA NEPA regulations require that agencies should “(r)igorously explore and objectively evaluate all reasonable alternatives…”1 Furthermore, “NEPA requires that federal agencies consider alternatives to recommended actions whenever those actions ‘involve […] unresolved conflicts among alternative uses of available resources’2… (C)onsideration of alternatives is critical to the goals of NEPA...”3

Similarly, the FSH states that the purpose and intent of alternatives are to ensure the range of alternatives does not foreclose prematurely any option that might protect, restore and enhance the environment. FSH Chapter 20, 23.2l. Similarly, case law has established that consideration of alternatives, which lead to similar results, is not sufficient to meet the intent of NEPA.4

The existence of even one viable but unexamined alternative renders an analysis inadequate.5 Not even an incomplete alternative solution to the problem before the agency can be disregarded by the agency.6

However, it is the Forest’s, not appellants’, duty to come up with alternatives. “Compliance with [NEPA] is a primary duty of every federal agency; fulfillment of this vital responsibility should not depend on the vigilance and limited resources of environmental plaintiffs.”

7 As the Seventh Circuit recently noted, “[w]hat other alternatives exist we do not know, because the [government] has not looked.”8

“Carrying capacity calculation estimates using Forest Service generated Geographical Information System data based on primary range indicates the current permitted stocking rate is heavy for the existing condition of the rangeland.” EA at 55.

1 40 CFR 1502.14[a] 2 42 USC 4332[2][E][1982] 3 See id. 4332[2][E] 4 Citizens for Environmental Quality v. United States, 731 F.Supp. 970, 989 [D.Colo. 1989]; State of California v. Block, 690 F.2d 753 (9th Cir. 1982) 5 Alaska Wilderness Recreation & Tourism Association v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995) 6 Natural Resources Defense Council v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972) 7 City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975). 8 Simmons v. United States Army Corps of Engineers, 120 F.3d 664, 670 (7th Cir. 1997). See also City of Carmel-by-the-Sea, supra (government, not plaintiffs, has the burden of describing cumulative impacts).

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“Carrying capacity calculations using Natural Resource Conservation Service data indicates the current permitted stocking rate is heavy for the apparent condition of the rangeland as well.” EA at 56.

An obvious alternative would have been to reduce stocking rates to current

capacity. Further undermining the alternatives that were analyzed is the fact that current

management and the adaptive management alternatives are basically the same. Virtually all of the actions listed under the adaptive management alternative have been available to the Forest Service for years or decades. The Forest Plan has been in effect for well over a decade. So the real difference between these alternatives is semantics. This violates NEPA.

We are expected to believe that somehow by applying the name "adaptive

management" the Forest Service will now begin implementing the direction and requirements that had been in place for a long time. As we have said before the problem has not been a lack of tools, it has been the long-term failure to implement these tools that has been the problem. Nothing presented in the adaptive management alternative would lead to a reasoned conclusion, given the past evidence of failure, that the Forest Service will do any better implementing these tools than it has in the past.

Adaptive management is frequently abused by agencies in a number of critical

ways, as has been done in this case:

a. Failure to follow the implementation criteria contained in the literature on the use of adaptive management.

b. Failure to properly define triggers, actions based on those triggers and timelines.

c. Failure to properly design, fully fund and properly implement the monitoring needed for a defensible adaptive management strategy.

d. Failure to take needed actions now by putting off needed actions for some future.

Given the large scale of the NEPA analysis along with the major environmental

degradation that is described, an EIS should be prepared. R2 has issued direction on the implementation of adaptive management in A

Practical Approach to Adaptive Management With a Specific Focus on Livestock Management NEPA Based Decisions Version 4. The EA and DN fail to implement this direction.

In the EA, the Forest Service lays out various "desired conditions" and supposed

"indicators" for when desired conditions are met. Unfortunately, all of these sections fail to implement measurable objectives specifically targeted to the issues. Here, we again request the Forest Service to carefully review the Regional Office’s guidance document for the implementation of adaptive management and compare that to what the existing

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EA provides. A thorough and honest review will indicate significant areas of improvement needed. We often find in NEPA documents implementing adaptive management that the adaptive management options listed are not actually analyzed within the document. For instance, the document proposes various structural actions but fails to provide any site-specific impact analysis of these actions. This violates NEPA. The EA also fails to provide any impact analysis of the various adaptive management “actions” which are authorized in the DN. The so-called "design criteria" of the adaptive management alternative are basically entirely tools that have been in the hands of the Forest Service for decades. These "design criteria" includes such things as complying with forest plan utilization standards, not having livestock in trespass and other such basic management requirements that are part of any grazing permit. The same section states that a criteria is "keep livestock distributed as evenly as possible throughout suitable range within pastures or allotments" but fails to provide any information of how this will be accomplished. This is of course one of the fundamental reasons for the degraded conditions we see throughout the West as a result of livestock grazing because permittees no longer wish to be cowboys but use the Columbus method where they turn up their livestock spring and pick them up in the fall with little attention on them in between.

The EA fails to provide any analysis of permittee compliance with current and past AMP’s, permit terms and conditions and Forest Plan Standards and Guidelines. Without such an analysis the EA and DN can not determine the likelihood of success of the proposed management. Nearly every AMP I have ever reviewed from the 1950’s to present has, at best, only been partially implemented. The public and the decision-maker must be aware of the successes and failures of the past and current AMP’s and management in order to make an informed decision. Anything less violates the letter and intent of NEPA. This is the very foundation on which all NEPA assumptions must be based. Without this the EA and DN are fatally flawed. This violates NEPA.

We are gravely concerned by the poor and indefensible cumulative effects

analyses contained in the EA. Clearly, the EA’s cumulative effects analyses are woefully inadequate in light of the case law on the subject.

According to the Council on Environmental Quality, the entity created by

Congress to oversee the NEPA process, cumulative impact assessment may be one of the most critical components of a NEPA analysis as:

Evidence is increasing that the most devastating environmental effects may result not from the direct effects of a particular action, but from the combination of individually minor effects of multiple actions over time (Council on Environmental Quality 1997)

A wide range of case law surrounds cumulative effects such as:

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In Klamath-Siskiyou Wildlands v. BLM (2004; 387 F.3d 968) the Bureau of Land Management prepared EA’s for two timber sales – the Indian Soda and Conde Shell – in a single watershed in the Cascade Mountains of southern Oregon. The plaintiff challenged that the two projects were illegally segmented, and that each individual EA did not take into account the cumulative impacts of the other timber sale or two additional sales that were planned in the same watershed. Although the Court found that each of the EA’s did include a section on cumulative impacts, they ruled that the sections did not contain enough analysis to be legally adequate. According to the Court: “The reader is not told what data the conclusion was based on, or why objective data cannot be provided.”

In Lands Council v. Powell (2004; 379 F.3d 738) the U.S. Forest Service prepared

an EIS for the Iron Honey timber harvest and watershed restoration project in the headwaters of the Little North fork of the Coeur d’Alene River on the Idaho Panhandle National Forest. The Court ruled that the cumulative impacts analysis in the EIS was inadequate for several reasons. First, the EIS failed to properly assess past projects in the vicinity. According to the Court: “The Final Environmental Impact Statement generally describes the past timber harvests, gives the total acres cut, with types of cutting, per decade, and asserts that timber harvests have contributed to the environmental problems in the Project area. But there is no catalog of past projects and no discussion of how those projects (and differences between the projects) have harmed the environment. Apart from a map in the Project file that shows past harvests, with general notes about total acres cut per watershed, there is no listing of individual past timber harvests.” The Court concluded on this point, the EIS “…should have provided adequate data of the time, type, place, and scale of past timber harvests and should have explained in sufficient detail how different project plans and harvest methods affected the environment.” The Court also found that the cumulative impacts assessment of the project’s impacts on Westslope Cutthroat Trout was inadequate because it was outdated (it was thirteen years old). According to the Court: “We do not suggest that all data relied upon by the agency to be immediate, but here the data about the habitat of the Westslope Cutthroat Trout was too outdated to carry the weight assigned to it.” Finally, the plaintiffs argued that the Forest Service used an inadequate scientific methodology in assessing cumulative impacts. Although courts are generally reluctant to overrule agencies’ choice of scientific methods in their analyses, in this instance the Court ruled against the agency due to lack of disclosure of the inadequacies of the model used to analyze sediment impacts to water quality. According to the Court: “The Forest Service’s heavy reliance on the WASTSED model in this case does not meet the regulatory requirements because there was inadequate disclosure that the model’s consideration of relevant variables is incomplete. Moreover, the Forest Service knew that WATSED had shortcomings, and yet did not disclose these shortcomings until the agency’s decision was challenged on the administrative appeal. We hold that this withholding of information violated NEPA, which requires up-front disclosures of relevant shortcomings in the data or models.”

In Neighbors of Cuddy Mtn. v. U.S. Forest Service (1998; 137 F.3d 1372) the Forest Service prepared an EIS for the Grade/Dukes timber sale on the Payette National Forest in Idaho. The Court ruled that the cumulative impacts analysis was inadequate in the EIS because it failed to properly take into account other proposed timber sales in the project vicinity. According to the Court: “In the original EIS, USFS included a section

15

describing the cumulative effects on wildlife habitat. Other than general statements regarding the pileated woodpecker and old-growth habitat, USFS provided no detail regarding the extent to which the proposed sales would cumulatively impact and reduce old-growth habitat. USFS failed to mention the old growth trees that would be destroyed by the three other proposed sales, and whether the sales would affect the same pileated woodpecker home ranges that would be affected by the Grade/Dukes sale. The sole reference to future sales stated that they would ‘propose to treat additional old-growth habitat.” The Court concluded: “General statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.”

In spite of these clear legal ruling, the cumulative analyses in the EA contain all

the weakness that have been found to be illegal for years.

It is not sufficient to merely state that all alternatives will comply with forest plan guidance, laws, and regulations. There must be a specific listing of each applicable forest plan direction, regulation, and law and exactly how the proposed action complies with that direction.

General statements that grazing will "meet wildlife habitat objectives" without specifying exactly what those habitat objectives are will lead to failure.

The objectives listed in Chapter 2 are far too general to be implementable. Further, they lack time frames and methods. And like all Forest Service adaptive management processes monitoring is not mandatory which vitiates the entire process of adaptive management.

Such statements as on page 55 "limiting the time and frequency forage producing plants are grazed and allowing plans to set seed should also improve rangeland conditions" the problem with this kind of statement is that it is mere fluff because the proposed action does not change or limit the time or frequency because it continues season-long grazing which has been known for over a century to be incompatible with arid ecosystems.

The proposed action implements various utilization levels as did the previous NEPA document but those utilization levels were continuously exceeded in the past so how will setting new levels be met. The reason that utilization levels were exceeded is because of overstocking, a lack of management and lack of action being taken by the Forest Service to ensure compliance. Nothing within this document would provide a reasoned conclusion that things have changed. So in other words, we are expected to ignore the long history of failure and assume that these 50 or so pages will somehow magically correct the situation. How can this be seen as anything other than arbitrary decision-making?

A common problem in Forest Service NEPA is the failure to analyze the action

alternatives against the no action alternatives. All impacts of action alternatives must be compared only to the no action alternative in order to understand the impacts of the actions.

16

The NEPA document discusses a number water developments were installed on

the allotment over a decade ago and this document proposes more of the same. Clearly, from this NEPA document the previous water developments failed to improve conditions. Why are we to believe that more of the same will lead to different results? This can only be seen is arbitrary.

A fundamental aspect of NEPA is to take a “hard look” at current management,

conditions, assumptions and implementation. A NEPA document that fails to analyze the following violates the purposes of NEPA:

1) Validity of assumptions from previous NEPA processes 2) Accuracy of predictions from previous NEPA processes 3) Adequacy of Forest Service implementation of previous decisions 4) Permittee compliance with permit terms and conditions, AMP's, AOIs and other

requirements 5) effectiveness of actions taken in previous decisions

These above items are absolutely critical to be part of this NEPA process. Without

this critical link the validity of the current assumptions are baseless. Let's look at each one of these individually. Without analyzing the accuracy and validity of the assumptions used in previous NEPA processes one has no way to judge the accuracy and effectiveness of the current analysis and proposals. This vitiates the NEPA process.

The predictions made in previous NEPA processes also need to be disclosed and

analyzed because if the accuracy was not there most likely you are making the same predictions in the current process and does you are process again will be vitiated.

A review of the adequacy of the Forest Service's implementation of current AMP's, AOIs and Forest Plan standards is essential to a valid NEPA process. For instance, if in previous processes, the Forest Service said they were going to do a certain monitoring plan or implement a certain type of management or require certain impact limits, that these were never effectively implemented, that is incredibly important for the reader and the decision maker to know. If there have been problems with Forest Service implementation in the past, it is not logical to assume that implementation will now all of a sudden the appropriate.

Another critical component is permittee compliance. If the permittee has have failed to properly comply with their permit terms and conditions and AMP and AOI requirements, including utilization requirements, rotation requirements and fence maintenance then it is absolutely critical to discuss this in the document and its effects on the proposed action. Permittee failure to comply with permit terms and conditions and other requirements shows two things, firstly that the permittee has a mail to implement even the minimal standards that are currently in place and secondly, it shows that the Forest Service has failed to take decisive permit action to ensure compliance. Both of these are very important aspects that must be discussed for a valid NEPA process, most especially when the FS as here is relying on adaptive management promises.

17

Another critical component is an examination of the effectiveness of the actions taken in previous decisions. A classic example of this is fences and water developments. Often, new fences and water developments are proposed to solve riparian issues in spite of the fact that these have been used for many decades without correcting riparian issues. Doing more of the same that has not lead to good results is not an effective strategy for public lands management.

REQUEST FOR RELIEF

Pursuant to 5 USC § 555(b), we hereby request the following relief from the

Appeals Deciding Officer on this issue. If the foregoing request for relief is denied in whole or in part, we are entitled to a full statement of reasons as to the grounds for denial in accordance with 5 USC § 555(e).

The EA and DN fail to meet their legal requirements as laid out in the Statement

of Reasons Section. Therefore the decision must be withdrawn as it is not based on high quality information and analysis, is not well-informed, clearly errs in its assumptions and analyses and does not meet is legal requirements. If the Forest Service issues a new decision, the Forest must first be instructed to prepare a thorough, rigorous, accurate, non-arbitrary analysis and assessment of impacts that fully address the issues raised in this appeal and comply with the ESA and the Forest Plan.

CONCLUSIONS

The APA prohibits an agency from acting in an arbitrary and capricious fashion. Fair and honest procedures are also an element of complying with NEPA (40 C.F.R. 1502.1). To assure that a fair discussion occurs, agencies are required to obtain high quality information, including accurate scientific analysis (40 C.F.R.1500.1 (b)). The regulations are very explicit that: Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements (40 C.F.R. 1502.24). CEQ regulations also require that: Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made (40 C.F.R. 1502.2(g)).

The policy behind NEPA is to ensure environmental considerations are integrated

into agency planning (40 C.F.R. §1501), and that the public be informed in agency planning decisions (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken....Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40 C.F.R. §1500.1(b) (emphasis added). "NEPA ensures the agency ...will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience.” Idaho Sporting Congress v. Thomas, 1998 WL 89066 (9th Cir. (Idaho)). Citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA’s disclosure goals are “to

18

insure the agency has fully contemplated the environmental effects of its actions and to insure the public has sufficient information to challenge the agency (Idaho Sporting Congress v. Thomas, 1998 WL 89066 (9th Cir. (Idaho)). Citing Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 758 (9th Cir. 1996).”

The flaws in the EA and DN identified in this appeal violate the requirement of NFMA, NEPA, APA and agency regulation. Appellants are willing to meet with the Project Deciding Officer to discuss the issues raised in this Appeal, in order to attempt to resolve them, and to ensure that the Forest is managed in a way that complies with federal law. RESPECTFULLY SUBMITTED this 29th day of April, 2010.

________________________________ Jonathan B. Ratner Director Western Watersheds Project - Wyoming Office P.O. Box 11160 Pinedale, WY 82941 Telephone: (877) 746-3628

United States

Department of

Agriculture

Forest

Service

Arapaho and Roosevelt

National Forests and

Pawnee National Grassland

2150 Centre Avenue, Building E

Fort Collins, CO 80526-8119

Voice: (970) 295-6600, TDD: (970) 295-6794

Web: www.fs.fed.us/r2/arnf

Fax: (970) 295-6696

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570-1 Date: June 4, 2010

Jonathan B. Ratner

Western Watersheds Project CERTIFIED MAIL – RETURN

P.O. Box 1160 RECEIPT REQUESTED

Pinedale, WY 82941 NUMBER: 7007 1490 0004 1863 8404

Dear Mr. Ratner:

On April 29, 2010, you filed a notice of appeal on behalf of Western Watersheds Project. Your

appeal was timely filed pursuant to 36 CFR 215 and challenged District Ranger Kevin Atchley’s

March 11, 2010 decision on the Greyrock Grazing Allotment. Your appeal was assigned number

10-02-10-0019.

I have reviewed the appeal record, including your appeal, the DN, and supporting documentation

in the project record. I have weighed the recommendation from the Appeal Reviewing Officer

and incorporated it into this decision. A copy of the Appeal Reviewing Officer's

recommendation is enclosed. This letter constitutes my decision on your appeal including the

specific relief requested.

Action Appealed The Canyon Lakes Ranger District on the Arapaho and Roosevelt National Forests proposed to

allow continued permitted livestock grazing under an adaptive grazing management strategy for

the Greyrock Allotment. In addition boundary adjustments were proposed.

You requested relief by asking that the DN be withdrawn. In addition, you asked if the Forest

Service issues a new decision, the Forest must first be instructed to prepare a thorough, rigorous,

accurate, non-arbitrary analysis and assessment of impacts that fully address the issues raised in your

appeal and comply with the ESA and the Forest Plan.

Appeal Reviewing Officer’s Findings and Recommendation Appeal Reviewing Officer (ARO) Randy Hickenbottom found that your appeal focused on 23

main issues which are summarized in the attached recommendation letter. ARO Hickenbottom

recommends the District Ranger’s decision be affirmed.

Decision

After reviewing the appeal record, I agree with ARO Hickenbottom’s analysis as presented in the

recommendation letter. I believe the appeal record supports ARO Hickenbottom’s conclusions

that there was no evidence of a violation of law, regulation or policy associated with the issues

raised. I affirm District Ranger Atchley’s decision in whole. The project may be implemented

on, but not before, the 15th

business day following the date of this letter (36 CFR 215.9(b)).

This decision constitutes the final administrative determination of the Department of Agriculture

(36 CFR 215.18(c)).

Sincerely,

/s/ Glenn P. Casamassa

GLENN P. CASAMASSA

Forest Supervisor

Enclosure

cc: Kevin Atchley

Kenneth K Tu

Randy Hickenbottom

Forest

Service

Rocky

Mountain

Regional Office

740 Simms Street

Golden, CO 80401-4702

Voice: 303-275-5350

TDD: 303-275-5367

It’s Cool to Be Safe Printed on Recycled Paper

File Code: 1570-1 Date: June 2, 2010 Route To:

Subject: Recommendation Memorandum Letter for the Greyrock Grazing Allotment

10-02-10-0019

To: Glenn Casamassa, Appeal Deciding Officer

I have reviewed the notice of appeal dated April 29, 2010 (#10-02-10-0019) of Kevin Atchley,

District Ranger, Arapaho Roosevelt National Forest, Canyon Lakes Ranger District, decision

concerning the Greyrock Grazing Allotment. My review focused on the decision documentation

developed by the District Ranger in reaching his decision, issues raised during the appeal, and

comments submitted by interested parties. The appeal was submitted by Jonathan B. Ratner on

behalf of the Western Watersheds Project. Pursuant to 36 CFR 215.13(f)(2), this will constitute

my written recommendation concerning the disposition of the appeal. I am forwarding the appeal

record to you.

BACKGROUND

On March 11, 2010 District Ranger Kevin Atchley signed the decision on the Greyrock Grazing

Allotment. The decision was to select Alternative 3 (EA pp.27-39). Alternative 3 continues

grazing on the allotments based on developing new Allotment Management Plans, incorporating

adaptive management that will provide the Forest Service and permittee the flexibility to change

overall management, if necessary, within the permit limits and adaptive options analyzed to meet

desired conditions and management objectives.

RELIEF REQUESTED

Appellant requests that the decision be withdrawn. If the Forest Service issues a new decision,

the Forest must first be instructed to prepare a thorough, rigorous, accurate, non-arbitrary

analysis and assessment of impacts that fully address the issues raised in this appeal and comply

with the ESA and the Forest Plan.

ISSUES:

Appeal Issue 1A: The EA, DN and FONSI violate the ESA. The DN implements the usual

Forest Plan Guideline of 6" stubble height on "tall sedges" "at the end of the grazing

season” on riparian areas in unsatisfactory condition, to “protect” Prebble‟s meadow

jumping mice (PMJM) but provides no rationale as to how this 6” stubble height meets the

habitat needs of PMJM.

Appeal Issue 1B: The EA, DN and FONSI violate the ESA. The Forest Service failed to

provide any rationale as to how compacted soils common within riparian areas grazed by

livestock would impact burrowing activities.

Discussion: Forest Service policy requires that a review of programs and activities through a

Biological Evaluation be conducted to determine their potential effect on threatened and

endangered species (FSM 2670.3). Biological Assessments are often prepared to address

federally listed species when proposed actions may affect listed species.

The Biological Assessment (BA) analyzed effects of livestock grazing on Preble's meadow

jumping mouse (Documents J-10 and J-11), including but not limited to application of the 6”

residual stubble height guideline listed in the Forest Plan (pages 26-27, GL #90 and 91). The BA

concluded that application of design criteria including the 6" stubble height "may affect but is not

likely to adversely affect" Preble‟s meadow jumping mouse or its designated critical habitat due

to the expected improvement in riparian and Preble‟s habitat from the 3 years of rest from

grazing and the changed grazing system. The BA was submitted to the U.S. Fish and Wildlife

Service (USFWS) for concurrence. The Service concurred that the proposed action, including

application of design criteria and 6" stubble height "may affect, but is not likely to adversely

affect Preble's and Preble‟s critical habitat (Document J-5). All requirements under Section 7 of

the Endangered Species Act (ESA) of 1973, as amended, and direction provided under Forest

Service Manual 2670 (management of federally listed threatened and endangered species) have

been met.

Conclusion: I find no violation of law, regulation or policy, and recommend the District Ranger

be affirmed on this issue.

Appeal Issue 1C: The EA, DN and FONSI violate the ESA. The USFWS‟s Designation of

Critical Habitat stated that “It is likely that Preble‟s abundance is not driven by the

diversity of plant species alone, but by the density and abundance of riparian vegetation

(Schorr 2001).” The NEPA document and the BE fail to discuss this need, compare it to

current conditions or implement actions to provide this. This failure violates the ESA as

well as NEPA and is an excellent example of arbitrary and unsupported decision-making.

Discussion: Section 7 (a)(2) of the ESA of 1973, as amended, requires federal agencies to

“insure” that actions authorized, funded, or carried out by them are not likely to jeopardize the

continued existence of Threatened, or Endangered, species, or result in the destruction or adverse

modification of their critical habitats (Document J-10, p. 2). The BA for fish and wildlife species

(Document J-10) dated May 8, 2008, addressed the proposed action‟s direct, indirect and cumulative

effects to Preble‟s meadow jumping mouse. The BA was submitted to the USFWS for Section 7

Consultation. The USFWS responded with a letter of concurrence stating the project may affect but

is not likely to adversely affect Preble‟s and Preble‟s critical habitat (Document J-5, p. 6). All

requirements under Section 7 of the Endangered Species Act of 1973, as amended, and direction

provided under Forest Service Manual 2670 (management of federally listed threatened and

endangered species) have been met.



Appeal Issue 1D: The EA, DN and FONSI violate the ESA. While the DN is silent as to

stubble height requirements for species other than “tall sedges”, we can only assume that

since the DN failed to implement site-specific utilization levels as required by the Forest

Plan (90. (GL) Develop site-specific vegetation utilization and residue guidelines during

rangeland planning, and document them in allotment management plans.) that the Forest

Plan default stubble height of 2” on Kentucky bluegrass would be in place. The Forest

Service failed to provide any rationale as to how this 2” stubble height would achieve the

above mentioned habitat needs for PMJM or why it failed to implement site specific

utilization levels as required by the Forest Plan. This again violates the ESA, NEPA and

FLPMA.

Discussion: As stated in the Biological Assessment (Document J-10, page 18) “The river reach

above Seaman Reservoir has been designated as critical habitat by USFWS. Preble‟s are not

known to occur in this reach, but they have been documented on the North Fork Poudre to the south

(just outside the allotment boundary) just above the confluence with the mainstem Poudre, as well as

along the North Fork above the allotment.” Although the species is not known to occur in the project

area, the appellant asserts and assumes that Kentucky bluegrass is the major component within

the potentially suitable Preble‟s meadow jumping mouse habitat. There is no information that

supports this assumption.

As mentioned in the Biological Assessment (Document J-10) “Preble‟s occur mostly in low

undergrowth consisting of grasses, forbs, or both, in open wet meadows and riparian corridors, or

where tall shrubs and low trees provide adequate cover.” Kentucky bluegrass is one of many

grass species present in Preble‟s habitat. Management of Preble‟s habitat is focused on

management of overall riparian habitat rather than management of individual plant species.

Riparian vegetation residue allowances for unsatisfactory areas specify 6” for tall carex species

and 2-3” for Kentucky bluegrass (Document J-10-Appendix B). These guidelines along with

specific design criteria (EA, pp. 28-32), Forest Plan Standards and Guidelines (Document J-10,

Appendix B), and monitoring and adaptive management provisions will move riparian and

Preble‟s habitat toward identified desired conditions. Management under the proposed action

will therefore restore the riparian zone by increasing riparian shrub and tree cover and

maintenance of taller herbaceous cover due to the stubble height standards. As mentioned in the

response provided for 1A and 1B above, the USFWS concurred with proposed action‟s may

affect but not likely to adversely affect determination for Preble‟s and Preble‟s critical habitat,

completing consultation requirements under Section 7 of the ESA.

The appellant provides no information regarding the proposed action‟s violation of NEPA and

FLPMA.



Appeal Issue 1E: The EA, DN and FONSI violate the ESA. Given the degraded conditions

within riparian areas on this allotment it is extremely likely that most of the riparian areas

have been converted to shallow rooted species such as Kentucky bluegrass. The result is

that, while on paper it appears that the Forest Service is implementing actions to protect

the habitat of this species (PMJM), in reality it is doing nothing. Even if the 2 inch stubble

height were met by the permittees this would in no way provide habitat necessary for this

species. In other words the consultation process was a fraud. The information provided to

the US Fish and Wildlife Service indicated one thing but failed to mention the critical

element that most of these areas have been converted to Kentucky bluegrass and the result

will be at best a 2 inch stubble height. The DN at 23 even states that 8 inches is what is

needed for vegetation “of sufficient height to provide cover to a Preble‟s mouse.”

Discussion: Refer to response provided for issue 1D.



Appeal Issue 1F: The EA, DN and FONSI violate the ESA. There is no evidence in the

record that the Forest Service complied with the fundamental ESA mandate to "use all

methods necessary to ensure that ESA listed species recover to the point of delisting." This

violates the ESA.

Discussion: Refer to the response provided for 1C. Additionally, Section 7(a) (1) of the ESA requires

federal agencies to use their authorities to further the conservation of listed species. This authority

has been demonstrated for this project by taking actions that would improve habitat for the federally

listed Preble‟s meadow jumping mouse. The analysis in the Biological Assessment concluded that

the adaptive management grazing system and monitoring proposed is expected to allow for the

restoration of the riparian zone, including increases in riparian shrub and tree cover and maintenance

of taller herbaceous cover due to the stubble height standards (Document J-10, p. 19). These actions

will improve habitat for Preble‟s, thus furthering the conservation of the species.

A Biological Assessment was completed for plants (Document H-1) on October 13, 2009. Letters

were submitted to the FWS on March 4 and February 12, 2010 requesting a review of the proposed

action‟s effects to federally listed species. The FWS responded with a letter dated June 9, 2009

(Document J-5) concurring with the analysis of effects to listed species.

Conclusion: I find no violation of law, regulation or policy, and recommend the District Ranger be

affirmed on this issue.

Appeal Issue 2A: The decision violates the NFMA because there is no evidence that it

complies with Forest Plan Standard 8 (In watersheds containing aquatic TES species, allow

activities and uses within 300 feet or the top of the inner gorge (whichever is greatest), of

perennial and intermittent streams, wetlands, and lakes (over 1 acre) only if on site analysis

shows that long-term hydrologic function, channel stability, and stream health will be

maintained or improved.)

Discussion: Document J-9 (p. 17) lists federally listed aquatic species that may occur on the

ARP, and page 19 lists Region 2 Forest Service sensitive aquatic species for the ARP. As

mentioned on pages 17 and 19, all aquatic species have been excluded from the analysis as there

is no habitat present in the project area. Forest Plan Standard 8 is not applicable for the project.



Appeal Issue 2B: The decision violates the NFMA because there is no evidence that it

complies with Forest Plan Standard 10 (Conduct actions so that stream pattern, geometry,

and habitats are maintained or improved toward robust stream health).

Discussion: The appellant alleges that the Greyrock Grazing Allotment decision does not comply

with Forest Plan Standard 10. He asserts that measurement of PFC (Proper Functioning

Conditions) is not the same as and cannot be used to describe robust stream health.

Forest Plan Standard 10 does not prescribe a particular methodology for assessment of robust

stream health. Monitoring requirements found in Decision Notice Table 2, page 20 outline

watershed specific protocols. The Decision Notice indicates on page 17 that techniques and

protocols listed in the Watershed Conservation Practices Handbook would be used as the basis

for monitoring. In addition, Proper Functioning Condition is one of several assessment methods

available, as are others included in the Decision Notice, Table 2. Quantitative measures from the

Stream Condition Inventory protocol meet monitoring requirements. It is anticipated that if

quantitative measures show improvement, the riparian areas would also progress toward properly

functioning condition.

The description of existing conditions and the effects analysis contained in the Aquatic

Resources Specialists Report (Document F-4) addresses cattle grazing impact to the components

of stream morphology (pp. 6-12). The report also contains a listing of the WCPH Management

Measures that are applicable to the Greyrock Grazing Allotment project.

Based upon a review of the alternatives described in Chapter 2 of the Greyrock Grazing

Allotment Environmental Assessment, no activities have been proposed that have the capacity to

affect stream channel morphology in a way such that the special design criteria listed in the

WCPH likely need to be implemented. The EA at page 90 describes streamside cover and bank

stability improvement, and channel widths and depths have begun to improve. Under the

selected alternative, continued improvements in resource conditions are expected.

Conclusion: I find that the Greyrock Decision Notice does not violate NFMA, and is in

compliance with Forest Plan Standard 10, and recommend the District Ranger be affirmed on

this issue.

Appeal Issue 2C: The decision violates the NFMA because there is no evidence that it

complies with Forest Plan Standard 11 (Do not degrade ground cover, soil structure, water

budgets, and drainage patterns in wetlands).

Discussion: The appellant alleges that there is no evidence of compliance with Forest Plan

Standard 11. The Standard in question actually reads, “Maintain long-term ground cover, soil

structure, water budgets, and flow patterns in wetlands to sustain their ecological function per

404 regulations. The project record clearly indicates that Alternative 3 would comply with this

standard in the Aquatic Resources Specialist Report (Document F-4, p. 15).

Conclusion: I find no violation of law, regulation or policy and recommend the District Ranger


Appeal Issue 2D: Forest Plan Standard 21 requires placement of new sources of chemical

and pathogenic pollutants where such pollutants will not reach surface or ground water.

As is well defined in case law, the permitting of livestock grazing on public lands is a

discretionary act. In addition, the renewal of permits as is the case here is a new

authorization. The EA and DN do not demonstrate compliance with this standard; for this

reason, the decision violates the NFMA.

Discussion: "Where consistent with other Forest Plan goals and objectives, there is

Congressional intent to allow livestock grazing on suitable lands" (Multiple-Use Sustained-Yield

Act of 1960; Wilderness Act of 1964; Forest and Rangeland Renewable Resources Planning Act

of 1974; Federal Land Policy and Management Act of 1976; and National Forest Management

Act of 1976). The decision to continue to authorize livestock grazing on the Greyrock allotment

is an implementing action for the NEPA decision. Livestock grazing has been permitted on this

allotment for over 100 years (EA page 6); issuance of a new permit does not constitute a new

source of pollutants.

Conclusion: I find that the District Ranger did not violate the National Forest Management Act,

and is in compliance with Forest Plan Standard 21, and recommend that the District Ranger‟s

decision be affirmed on this appeal issue.

Appeal Issues 2E, 2F, 2G, and 2I: The EA, DN, and FONSI violate NFMA because they do

not contain defensible rationale for how the decision complies with Forest Plan Goals 44,

45, 47, 48, and 53.

Discussion: The appellant alleges a violation of the National Forest Management Act because the

EA, DN, and FONSI do not contain a rationale for how the decision complies with a number of

different goals identified in the Land and Resource Management Plan for the Arapaho and

Roosevelt National Forests and the Pawnee National Grassland (Forest Plan).

The National Forest Management Act does not contain requirements that pertain to project-level

implementation of Forest Plan Goals. As specified in the Forest Plan, “goals” express priorities

for management emphasis and define long-term desired conditions in broad, general terms.

Achievement of goals is assessed over the life of the Forest Plan and is not expected to occur at

the project level. Projects initiated by the Forest Service are generally responsive to one or more

of the goals outlined in a Forest Plan. The Greyrock Grazing Allotment EA indicates that Forest

Plan goals were considered during project development. It states, for example, that “the need for

action is further defined by the scope of the analysis (i.e., the analysis is limited to evaluating the

appropriate management of livestock grazing, given considerations of rangeland and related

resource condition and trends, and other Forest Plan goals and objectives) (EA, p. 9). In addition,

the Rangeland Resources Report lists the Forest-wide goals applicable to grazing management

(Document G-5, p. 21).

Forest Plan Goals 44 and 45 are related to the restoration, protection, and enhancement of habitat

for endangered, threatened, or proposed flora and fauna consistent with the Endangered Species

Act (ESA). As discussed in other appeal points 1A through 1F in this letter, the project record

shows consistency with the ESA.

Forest Plan Goals 47 and 48 are related to the development of species management guides and

conservation strategies for sensitive species. Achievement of such goals are clearly beyond the

scope of a project such as the Greyrock Grazing Allotment project and are more appropriately

addressed at the Forest level.

Forest Plan Goal 53 concerns conservation of genotypes by favoring habitat specialists over

habitat generalists where competing uses arise. This particular goal is not relevant to the

Greyrock Grazing Allotment project.



Appeal Issue 2H. The decision violates the NFMA because there is no evidence that it

complies with Forest Plan Standard 51 (Close areas to activities to avoid disturbing

threatened, endangered, and proposed species during breeding, young rearing, or at other

times critical to survival. Exceptions may occur when individuals are adapted to human

activity, or the activities are not considered a threat).

The EA and DN fail to close areas to avoid disturbing ESA listed species. Clearly, summer

cattle grazing in riparian areas disturbs PMJM which is a riparian dependent species. The

EA, DN and FONSI provided no logic as to how this Standard will be complied with.

Discussion: The Biological Assessment includes a detailed analysis of the proposed action‟s potential

effects to Preble‟s meadow jumping mouse. As stated in the BA (J-10, page 18 and 19) “Within the

allotment, potentially suitable Preble‟s habitat occurs along the North Fork Poudre River, with the

exception of along the steep banks of Seaman Reservoir. The river reach above Seaman Reservoir

has been designated as critical habitat by USFWS. Preble‟s are not known to occur in this reach, but

they have been documented on the North Fork Poudre to the south (just outside the allotment

boundary) just above the confluence with the mainstem Poudre, as well as along the North Fork

above the allotment.” In addition to identifying potentially suitable habitat, the analysis identifies

potential impacts by stating “Although unlikely to occur due to the mobility of Preble‟s jumping

mice and their primarily nocturnal behavior, direct impacts to Preble‟s are possible from trampling

by cattle. Cattle tend to concentrate near water and trail along riparian corridors, but the potential for

direct impacts to an individual mouse through trampling is expected to be insignificant and

discountable due the reasons stated above.” The analysis demonstrates that Standard 51 is not

applicable as Preble‟s are not known to occur in the project area. However, the analysis concludes

that potential impacts are possible; therefore, the agency determined that initiating and completing

ESA Section 7 Consultation with the USFWS was necessary. The Service concurred with the

project‟s may affect but not likely to adversely affect determination for Preble‟s and its critical

habitat.

Conclusion: I find no violation of law, regulation or policy, and recommend the District Ranger be

affirmed on this issue.

Appeal Issue 2J: The EA, DN, and FONSI violate NFMA because they do not contain

defensible rational for how the decision complies with Forest Plan Standard 87 (Phase out

season-long grazing in an allotment, except where it is determined to achieve or maintain

the desired plant community). From what we can tell season long grazing is going to be

continued to be authorized by this DN.

Discussion: Season-long grazing refers to the growing season, not the entire summer, and the

Forest Service has specified measures to modify the growing season impact on key areas. The

district responded to the season-long grazing issue in the Response to Comments (DN, Response

to Comments #3 and #55, p. 41 and p. 62, respectively). “The proposed action will implement

design criteria (e.g. timing restrictions, stubble height and utilization guidelines, riding/herding,

and supplement placement) to facilitate management across the allotment. More specifically, the

design criteria will implement a rotation of distribution units on the allotment (EA, pp. 28-32).

Adaptive options from the DN, page 16, include riparian pasture designation through fence

construction to allow modification of grazing period timing throughout the growing season.

Conclusion: The decision to implement Alternative 3 provides compliance with this standard,

with the recommendation that the District Ranger decision be affirmed on this issue.

Appeal Issue 2K through 2L: The EA, DN, and FONSI violate NFMA because they do not

contain defensible rational for how the decision complies with Forest Plan Guidelines 88,

90, or 91.

Discussion: The appellant alleges that the EA, DN, and FONSI violate NFMA because they do

not contain rationale for how the decision complies with Forest Plan Guidelines 88, 90, or 91.

The Forest Plan defines guidelines as, “preferred or advisable courses of action or levels of

attainment designed to achieve goals and objectives” (p. 11). Documentation in the appeal record

demonstrates consideration of and consistency with the referenced guidelines.

With regard to Guideline 88, the EA documents desired plant communities and site-specific

mitigation measures for riparian communities within the Greyrock Grazing Allotment (EA, pp.

10-12; pp. 12-16). Additional relevant documentation can be found in the Range Specialist

Reports (Documents G-1 and G-5), the Aquatic Specialist Reports (Documents F-4 and F-1), the

Air and Soils Reports (Documents F-2 and F-3), and the Wildlife and Fisheries Specialist Report

(Document J-9).

With regard to Guideline 90, the DN and EA include design criteria that describe site-specific

utilization standards to be implemented.

Guideline 91 includes recommended mitigation measures for riparian habitat. The design criteria

associated with Alternative 3 (EA, pp. 28-32) along with the discussion of the effects associated

with Alternative 3 (EA, Chapter 3) indicate that the intent of the Guideline will be met and

riparian habitat will not be degraded.



Appeal Issue 3: Nowhere within the various NEPA documents did we find an analysis of

the use of the Best Available Science (BAS) as required by current regulations.

Discussion: The appellant alleges that the Greyrock Grazing Allotment decision is not based on

the best available science. The appellant states that this is required by the current regulations, but

does not reference those regulations.

Current regulations for National Forest System Land and Resource Management Planning at 36

CFR 219.35[a] require Responsible Officials to consider the best available science in

implementing Forest Plans (effective from November 2000 until a Forest completes its revision

process).

The appeal makes reference to three separate pieces of literature that the appellant identifies as

relevant to the project but that were not considered during project development and analysis.

They are Cowley (1999), GTR-INT-308, and WCHP 12.1(h). Upon review of comments

submitted by the appellant during the formal comment period for the EA, no mention of these

particular works was found. The Forest Service‟s Watershed Conservation Practices Handbook

was mentioned in his comments, but only in a very general fashion.

The Aquatic Resources Specialist Report (Document F-4) indicates that the Watershed

Conservation Practices Handbook was considered in preparation of the effects analysis for the

Greyrock Grazing Allotment EA.

There is no law, regulation, or policy requiring consideration of all possible scientific literature

on a topic. There is ample evidence in the Decision Notice, EA, and Specialist Reports that

recent scientific literature was used in developing the project and analyzing the effects of the

alternatives. For example, the DN indicates that the decision was based on a review of “relevant

scientific information and local historical records” (p. 26). The review of literature cited or

referenced in the EA (pp. 123-131) indicates a wide variety of recent, relevant scientific

literature was used in developing the project and assessing effects. Finally, the record indicates

interdisciplinary team specialists considered recent, relevant scientific literature. The project

record includes evidence of the use of scientific literature.



Appeal Issue 4: Likewise, the EA‟s treatment of MIS and Sensitive Species provides no

population data, trends analysis or habitat condition analysis as is required by a wide

range of case law, much of it from the 10th

circuit.

Discussion: As described in the DN (p. 35) “A requirement of the National Forest Management

Act (as described in the implementing regulations at 36 CFR 219.19) is that fish and wildlife

habitats on National Forest System Lands be managed to maintain viable populations of existing

native and desired non-native vertebrate species (at the Forest Plan scale). These species, called

Management Indicator Species are listed in the 1997 Revision of the Forest Plan (pp. 28-29).”

The Wildlife and Fisheries Specialist Report (Volume III, J-9) identifies 7 MIS and 12 sensitive

species (bighorn sheep is listed as a MIS and sensitive species). A detailed analysis of habitat

condition and population data is documented in the Wildlife and Fisheries Specialist Report

(Volume III, J-9). Population data was reviewed and summarized at various levels (Forest, State,

or large geographic area encompassing the species range) for MIS and sensitive species. The

analysis provided for all MIS and sensitive species quantifies and/or describes existing

potentially suitable habitat in the allotment, and provides a direct, indirect, and cumulative

effects analysis comparing existing habitat conditions with habitat conditions expected under

each alternative. Applicable Forest Plan Standards and Guidelines, project design criteria, and

adaptive management measures were accounted for in determining effects from the project and

the relationship to Forest-level trends. The analysis concludes that “evaluation of Management

Indicator Species and their habitats are not variably affected by the grazing alternatives to any

measureable degree and project effects are not predicted to change their population trends or

viability at the Forest-wide scale” (Volume I, DN-FONSI, page 35). Information regarding

sensitive species populations is addressed in Issue 9.



Appeal Issue 5: FSH 2209.13 93.3a requires: “The team, using an interdisciplinary

approach, should identify the desired rangeland conditions within the analysis areas.

Desired conditions should be specific, quantifiable, and focused on rangeland resources.”

The EA and DN do not comply with this requirement.

Discussion: The Decision Notice contains a description of the existing and desired conditions,

conditions of resources, including rangeland resources (DN, pp. 5-10). Full consideration of

rangeland condition and trends was addressed in the EA (pp. 54 and 57). Adaptive management,

implemented through ongoing monitoring, should result in meeting or making satisfactory

movement toward desired conditions.



Appeal Issue 6: FSH 2209.13 93.3c requires: “Identification of resource management needs

is simply the comparison of desired conditions with existing conditions to determine the

extent and rate at which current management is meeting or moving toward those desired

conditions (emphasis added).

The EA failed to meet this requirement. To say conditions are “moving toward” is

meaningless without this information. For instance, everyone admits these lands were

basically unmanaged until about the 1950‟s. Given how severely degraded these lands were

up through that time, it would not be surprising that things look better than 1950, but is

that “moving towards” sufficient?

Discussion: Resource management needs were identified throughout the review of the project

record. Specifically, in the response to Comment 69, (DN, Appendix A, pp. 68-69),

“Measurements and information relevant to different resources (i.e., fisheries, wildlife,

hydrology, soils) were taken and documented during the summer of 2008 and 2009 to determine

conditions on the allotment, which will be used for comparative measure when assessing future

conditions.” The Rangeland Report (Document G-5, p. 12) lists desired conditions developed by

the interdisciplinary team. The adaptive management alternative defines a process that uses

focused monitoring information to determine if management is meeting or making satisfactory

movement toward desired conditions (EA p. 35 and DN pp. 17-24). Effectiveness monitoring

determines whether the analysis area is meeting or moving toward desired conditions, and if the

range of change is acceptable (within the scope of this analysis).



Appeal Issue 7: FSH 2209.13 93.3f requires: “There is a two-part decision to be made for

authorizing livestock grazing. The first part is whether livestock grazing should be

authorized on all, part, or none of the project area”.

The EA failed to provide any information at all regarding the first requirement.

Discussion: The EA, Purpose of Action states, “the purpose of this action is to continue to

authorize domestic grazing on all, some portion, or none of the Greyrock Allotment.” Under the

Need for Action, page17, with regard to the Greyrock Allotment, there is an overall need to

analysis the possible effects of continuing or modifying the grazing authorization. The EA

continues on page 17 “where consistent with other multiple-use goals and objectives there is

Congressional intent to allow livestock grazing on suitable lands”, and goes on to state on page

20 that “the responsible official will make a decision to authorize some level of livestock grazing

an all or some portion of the analysis area.

The EA includes analysis of three alternatives: one that does not authorize grazing (No Action);

one alternative that authorizes grazing at current levels, and one that authorizes grazing under a

variety of adaptive management actions, including reductions in grazing seasons and modifying

the allotment size. The decision to continue authorizing livestock on the Greyrock allotment is

an implementing action for the NEPA decision.



Appeal Issue 8: As is universal within Forest Service grazing NEPA processes, the defining

of the adaptive management process in this case is woefully inadequate. While the EA cites

both FSH 2209.13 and the Quimby document, the EA does not actually implement the

requirements of either. We request that you review the R2 Adaptive Management

Guidance document which clearly defines the minimum level of adaptive management.

The DC‟s laid out for benchmark areas don‟t meet the requirement of the FSH.

Additionally, as discussed in more detail in the Quimby document, “pre-determined”

means “if this…then that”, not just a general „toolbox‟ with everything stuffed into it. And

lastly, the EA‟s “monitoring plan” could hardly be called “carefully focused”.

Discussion: This issue was brought up by the appellant in comments on the EA (DN, Comment

67, p. 68). There is no specific law or regulation stating that adaptive management principles be

utilized in livestock grazing NEPA. Quimby‟s work, while it is intended to assist land managers

in the practical application of adaptive management principles during project development and

analysis procedures, has not been adopted by Region 2 as official direction. The Responsible

Official decided to follow an adaptive management strategy in the Decision Notice. The

Decision Notice selected Alternative 3, the adaptive management alternative.

The DN identifies design criteria to be met in general terms (pp. 12-15). Monitoring will occur,

and the results will be used to make determinations of rangeland conditions and whether or not

conditions are moving toward the desired future condition in a reasonable timeframe for the

allotment. If not, then an alternative set of management actions would be implemented to achieve

the desired results. These adaptive management actions or tools are listed in the EA (Table 6, p.

46). The tools were developed to address specific deficiencies in rangeland conditions addressed

in this evaluation.

Benchmarks and key areas are relatively small parts of the allotments and represent much larger

areas. Benchmark areas are initially delineated on a map (EA, p. 133) but they can change as

needed depending on such factors as weather fluctuations, past permittee compliance history, and

changes in current resource and/or social issues. Key areas are those areas which are monitored

annually to determine when a threshold (such as stubble height, utilization, or bank trampling)

has been reached. A monitoring plan was developed and included in the EA (pp. 33-38).

Thus, the DN and EA address the applicable concerns and implement the guidance found in

Quimby‟s work.



Appeal Issue 9: In the species calls sections the Forest Service lists most species as “may

adversely impact individuals, but not likely to result in a loss of viability on the planning

area, nor cause a trend to federal listing or loss of species viability range wide” but the

document fails to provide any information regarding current populations or trends which

is of course fundamental to a supportable call. For instance, if there are 30 individual

plants of a particular species in the planning area or even in the forest as a whole is that a

viable population? Would affecting 6 of those individuals not likely result in a loss of

viability, assuming viability currently exists? This information is not provided.

Discussion: Refer to response provided for issue 4. There is no requirement to gather population

or trend information for Forest Service sensitive species. Forest Service policy for sensitive

species as provided in Forest Service Manual 2670.32 provides guidance for conducting

appropriate inventories and monitoring of sensitive species to improve knowledge of

distribution, status, and response to management activities, coordinating efforts within the

Region and with other agencies and partners where feasible. The Wildlife and Fisheries Report

(Volume III, J-9, pages 26-40) includes existing information on species distribution, natural

history, and existing habitat for each sensitive species affected by the proposed action. The

distribution section describes population data collected at various levels (Forest, State, and

Regional levels) and incorporated into the analysis. This information, combined with existing

conditions, habitat conditions expected with implementation of the project and incorporation of

Forest Plan Standards and guidelines and adaptive management measures, provide the basis for

all sensitive species determinations. For these reasons, the analysis is consistent with Forest

Service Manual 2672.43, Procedures for Conducting Biological Evaluations.



Appeal Issue 10: The EA fails to discuss actual use within the allotments. Actual use is

critical because frequently actual use is significantly lower than permitted use. Therefore

the analyses of current conditions must be based on the fact of actual use not permitted use.

For instance if 1000 head are permitted on a particular allotment but the 20 year average is

only 500 head then current conditions are, of course, the result of actual use half that of

permitted use. So analyses based on full permitted use would be vitiated. Such information

is fundamental to a valid NEPA process.

Discussion: The appellant alleges that an evaluation of actual use against permitted use within

the allotment is required under the National Environmental Policy Act.

Forest Service regulations governing procedures for compliance with the National

Environmental Policy Act do not require assessment of the effects of partial implementation of

an alternative. Direction for the components of an effects analysis to be included in an

Environmental Assessment is found at 36 CFR 220.7[b][3][i]. These regulations require the

assessment of direct, indirect, and cumulative impacts of the proposed action and any

alternatives developed (including adaptive management options if any are identified). The

regulations do not require an assessment of impacts resulting from not implementing (fully or in

part) a proposed action or alternatives.

The Greyrock Grazing Allotment Environmental Assessment includes a discussion of existing

conditions of key resources, including rangeland resources (pp. 53-59). This assessment of

existing conditions reflects past management practices and livestock numbers for consideration

in the current analysis. The EA and the specialist reports prepared for the project also include a

discussion of the direct, indirect, and cumulative environmental effects of the proposed action

and alternatives. In addition, documents that relate to the analysis of rangeland conditions and

effects include information resulting from monitoring of past actions (e.g., Documents G-1, G-5,

and G-12 through G-31).

Conclusion: I find that the District Ranger did not violate the National Environmental Policy

Act; therefore, I recommend that the District Ranger‟s decision be affirmed on this appeal point.

Appeal Issue 11: FSH 2209.13 94.2 requires: “The evaluation of a proposed action‟s

environmental effects must include the potential effects of all adaptive management options

that may be implemented at some future point in time. For example if one potential option

is to fence off a riparian area, the effects of that fence must be evaluated even if that

management option may never actually be implemented.” This was not done in the EA.

Discussion: The section of the Forest Service Handbook that the appellant references does not

state what he claims it states. Section 94.2 of FSH 2209.13 is titled “Grazing Permits,” and it

defines grazing permit instruments and describes how they are implemented or modified. The

referenced section of the handbook is not relevant to the Greyrock Grazing Allotment project

planning process.

Nevertheless, the Greyrock Grazing Allotment appeal record does demonstrate responsiveness to

the appellant‟s substantive argument. The record includes evidence that the adaptive

management options were considered in the analysis of effects. The discussion of effects in the

Greyrock Grazing Allotment EA demonstrates compliance with this requirement. On pages 32-

33 of the EA, the suite of adaptive management tools associated with Alternative 3 is described.

The structural activities such as water developments and temporary or permanent fences are tools

identified to help move riparian and rangeland conditions toward desired conditions outlined in

Chapter 1, Table 1 of the EA in the event that the rest period alone does not result in desired

conditions. The effects of Alternative 3 to riparian and rangeland conditions are included in

Chapters 2 and 3 of the EA (pp. 40-41; 46-50; 61-67; and 93-94). More detailed discussions of

effects are included in the resource reports prepared in support of this project. I have determined

that the project record does disclose the likely effects of the adjustments under the project‟s

adaptive management alternative (Alternative 3).



Appeal Issue 12: The FSH states that the purpose and intent of alternatives are to ensure

the range of alternatives does not foreclose prematurely any option that might protect,

restore, and enhance the environment. FSH Chapter 20, 23.21. Similarly, case law has

established that consideration of alternatives, which lead to similar results, is not sufficient

to meet the intent of NEPA.

Further undermining the alternatives that were analyzed is the fact that current

management and adaptive management alternatives are basically the same. Virtually all of

the actions listed under the adaptive management alternative have been available to the

Forest Service for years or decades. The Forest Plan has been in effect for well over a

decade. So the real difference between these alternatives is semantics. This violates NEPA.

Discussion: The appellant alleges that the Greyrock Grazing Allotment decision violates the

National Environmental Policy Act because a) the range of alternatives considered in the

analysis is not sufficient and b) the action alternatives presented are not substantially different

from one another. The appellant cites a section of the Forest Service Handbook as part of the

basis of his appeal point. However, his citation is insufficient to allow review of the reference

handbook section. The handbook‟s organizational schema does not allow one to determine what

part of the handbook FSH Chapter 20 refers to (i.e., there is no FSH Chapter 20).

According to regulations governing the Forest Service‟s implementation of the National

Environmental Policy Act (36 CFR 220.7[b][2]), when an Environmental Assessment is

prepared, the proposed action and any alternatives developed must meet the need for action. The

regulations further state that no specific number of alternatives is required or prescribed and that

when there are no unresolved conflicts concerning alternative uses of available resources, the EA

need only analyze the proposed action and proceed without consideration of additional

alternatives.

The Council on Environmental Quality recognizes that NEPA procedures are intended to foster

excellent action by allowing public officials to be cognizant of the environmental consequences

of decisions prior to making decisions. Further, the Council recognizes that it is the quality of

information provided in a NEPA document rather than the quantity of information that helps

foster excellent decisions:

Most important, NEPA documents must concentrate on the issues that are truly

significant to the action in question, rather than amassing needless detail. (40 CFR

1500.1[c])

The Greyrock Grazing Allotment EA includes analysis of three alternatives: one alternative that

represents the status quo (e.g., allowing grazing at current levels); one that does not allow

grazing (No Action); and one that allows for grazing as well as a variety of adaptive management

actions intended to be responsive to the project area needs specified in the Purpose and Need

section of the EA. The EA also includes discussion of three key issues derived from internal and

external comments on the proposed action. These issues were used in conjunction with the

purpose and need for the project to develop the Proposed Action.

The appellant suggests that the EA should have included an alternative that considered reduced

stocking rates, as the analysis indicated that the current stocking rates is heavy for existing

rangeland conditions. This issue was not raised by the appellant during formal comment periods.

However, review of the proposed action and its adaptive management options indicates that the

alternative is responsive to concerns about carrying capacity and stocking rates. At page 32, the

EA indicates that stocking rates may be adjusted in order to meet desired rangeland conditions.

With regard to the appellant‟s challenge, and in contrast to what the appellants allege, the Forest

Service‟s process for developing and evaluating Alternatives in the Greyrock Grazing Allotment

EA is consistent with the agency‟s regulations for complying with the National Environmental

Policy Act (36 CFR 220). I find that the Forest Service did analyze a range of alternatives

appropriate to the purpose and need for this project and responsive to the key issues that were

raised during scoping processes.



Appeal Issue 13: Given the large scale of the NEPA analysis along with the major

environmental degradation that is described, an EIS should be prepared.

Discussion: The appellant alleges that the Greyrock Grazing Allotment decision violates the

National Environmental Policy Act because an EIS rather than an EA should have been

prepared. This assertion is based on the purported scale of the analysis as well as the impacts

likely to result from the alternatives.

According to regulations governing the Forest Service‟s implementation of the National

Environmental Policy Act (36 CFR 220.7[a]), environmental assessments are prepared for

proposals that are not categorically excluded from documentation and for which the need for an

EIS has not been determined. These regulations also identify classes of actions normally

requiring preparation of an EIS (36 CFR 220.5[a]). An EA must briefly provide sufficient

evidence and analysis to determine whether to prepare an EIS or a Finding of No Significant

Impact (36 CFR 220.7[b][3][i]).

The Greyrock Grazing Allotment EA contains three alternatives. These alternatives represent

actions that are not categorically excluded from documentation (36 CFR 220.6) and that do not

correspond to classes of action that normally require preparation of an EIS (36 CFR 220.5[a]).

Further, the Decision Notice and Finding of No Significant Impact include rationale to support

the decision that preparation of EIS is not required (Decision Notice, pp. 31-34). The District

Ranger found that context and intensity of impacts would not have a significant effect on the

quality of the human environment (Decision Notice, p. 31).

With regard to the appellant‟s challenge, and in contrast to what the appellants allege, the Forest

Service‟s process for determining the appropriate level of analysis for the Greyrock Grazing

Allotment project is consistent with the agency‟s regulations for complying with the National

Environmental Policy Act (36 CFR 220).



Appeal Issues 14 and 15: Adaptive Management is frequently abused by agencies in a

number of critical ways, as has been done in this case:

a. Failure to follow the implementation criteria contained in the literature on the use

of adaptive management.

b. Failure to properly define triggers, actions based on those triggers and timelines.

c. Failure to properly design, fully fund and properly implement the monitoring

needed for a defensible adaptive management strategy.

d. Failure to take needed actions now by putting off needed actions for some future.

R2 has issued direction on the implementation of adaptive management in A Practical

Approach to Adaptive Management with a Specific Focus on Livestock Management NEPA

Based Decision Version 4. The EA and DN fail to implement this direction.

Discussion: The appellant alleges that the Greyrock Grazing Allotment EA and associated

decision are not consistent with USDA Forest Service Region 2 policy because it does not

implement the direction included in Quimby‟s guideline entitled A Practical Approach to

Adaptive Management with a Specific Focus on Livestock Management NEPA Based Decisions

(Version 4, 2007).

Quimby‟s work, while it is intended to assist land managers in the practical application of

adaptive management principles during project development and analysis procedures, has not

been adopted by Region 2 as official direction.

The Greyrock Grazing Allotment EA includes one alternative that employs adaptive

management. The description of this alternative (Alternative 3, EA, pp. 27-38) demonstrates that

the requisite components of an adaptive management alternative are included in the EA.

Furthermore, while Quimby‟s work is not official Region 2 policy direction, a review of

Quimby‟s approach against the information contained in the EA, particularly the description of

Alternative 3, suggests that the interdisciplinary team did apply the basic process for developing

an adaptive management alternative in its development of Alternative 3. The EA contains a

discussion of existing and desired conditions within the project area, resource concerns, the need

for change within the project area, and the proposed action, including applicable design measures

and monitoring protocols.

Based on a review of the Greyrock Grazing Allotment EA and DN/FONSI, Quimby‟s work, and

relevant regulations, the District Ranger did not violate law, policy, or regulation in the

development and selection of an adaptive management alternative for the Greyrock Grazing

Allotment project.



Appeal Issue 16: In the EA, the Forest Service lays out various “desired conditions” and

supposed “indicators” for when desired conditions are met. Unfortunately, all of these

sections fail to implement measurable objectives specifically targeted to the issues. Here, we

again request the Forest Service to carefully review the Regional Office‟s guidance

document for the implementation of adaptive management and compare that to what the

existing EA provides. A thorough and honest review will indicate significant areas of

improvement needed.

Discussion: As in Appeal Issues 14 and 15, the appellant alleges that the procedures outlined in

Quimby‟s A Practical Approach to Adaptive Management with a Specific Focus on Livestock

Management NEPA Based Decisions (Version 4, 2007) were not adhered to and that the

discussion of desired conditions and indicators in the EA could be improved. See responses to

Appeal Issues 14 and 15.



Appeal Issue 17: We often find in NEPA documents implementing adaptive management

that the adaptive management options listed are not actually analyzed within the

document. For instance, the document proposes various structural actions but fails to

provide any site-specific impact analysis of these actions. This violates NEPA. The EA also

fails to provide any impact analysis of the various adaptive management actions which are

authorized in the DN.

Discussion: The appellant alleges that the decision violates the National Environmental Policy

Act because the EA did not disclose the site-specific impacts of the adaptive management option.

The only specific actions identified in this appeal issue are “structural actions,” which are

presumed to be the fencing and water developments identified on page 32 of the EA.

Agency regulations for compliance with National Environmental Policy Act procedures require

that an EA include disclosure of the likely effects of the adjustments that could be made as a

result of implementing an alternative that includes adaptive management options (36 CFR

220.7[b][iv]).

The discussion of effects in the Greyrock Grazing Allotment EA demonstrates compliance with

this requirement. On pages 32-33 of the EA, the suite of adaptive management tools associated

with Alternative 3 is described. The structural activities such as water developments and

temporary or permanent fences are tools identified to help move riparian and rangeland

conditions toward desired conditions outlined in Chapter 1, Table 1 of the EA in the event that

the rest period alone does not result in desired conditions. The effects of Alternative 3 to riparian

and rangeland conditions are included in Chapters 2 and 3 of the EA (pp. 40-41; 46-50; 61-67;

and 93-94). More detailed discussions of effects are included in the resource reports prepared in

support of this project. I have determined that the project record does disclose the likely effects

of the adjustments under the project‟s adaptive management alternative (Alternative 3).



Appeal Issue 18: The EA fails to provide any analysis of permittee compliance with current

and past AMP‟s, permit terms and conditions and Forest Plan Standards and Guidelines.

Without such an analysis the EA and DN cannot determine the likelihood of success of the

proposed management. The public and the decision maker must be aware of the successes

and failures of the past and current AMP‟s and management in order to make an informed

decision. Anything less violates the letter and intent of NEPA. This is the very foundation

on which all NEPA assumptions must be based. With this the EA and DN are fatally

flawed. This violates NEPA.

Discussion: This issue was addressed in the response to comments (DN, p. 45). The Range

Specialist Report (Document G-5) and EA (pp. 51-59) contain a summary of Rangeland

Resources History and Condition. The report also describes the existing conditions compared to

what is actually desired in terms of meeting the desired conditions, not meeting the desired

conditions or moving toward meeting the desired conditions within a reasonable timeframe. This

examination provides, in general terms, the effectiveness of AMP implementation. The Proposed

Action describes how the AMP is designed to move the allotment towards the desired conditions

(EA, p. 16). The EA contains information on existing and desired conditions as well as the need

for action (EA, pp. 10-15).

Together, the Range Specialist Report (Document G-5) and EA discuss past management and

how current management is meeting or trending towards desired conditions. Based on past

success/failure, the document identifies the need for action and proposed future management

based on the evaluation and effectiveness of past management. The adaptive alternative defines a

process that uses focused monitoring information to determine if management is meeting or

making satisfactory movement toward desired conditions. Formal implementation and success of

this process will require improved cooperation and communication between the permittee and

Forest Service to manage compliance through the Term Grazing Permit administrative process.



Appeal Issue 19: We are gravely concerned by the poor and indefensible cumulative effects

analyses contained in the EA. Clearly, the EA‟s cumulative effects analyses are woefully

inadequate in light of the case law on the subject.

A wide range of case law surrounds cumulative effects, including Klamath-Siskiyou

Wildlands v. BLM (2004; 387 F.3d 968), Lands Council v. Powell (2004; 379 F.3d 738), and

Neighbors of Cuddy Mtn. v. U.S. Forest Service (1998; 137 F.3d 1372). In spite of these

clear legal ruling, the cumulative analyses in the EA contain all the weakness that have

been found to be illegal for years.

Discussion: The appellant takes issue with the quality of the cumulative effects analysis

contained in the Greyrock Grazing Allotment EA. He states that it is inadequate and cites a

variety of case law purported to support his perspective. In his discussion of case law, the

appellant makes no clear tie between the findings of the courts in those cases and the character of

the cumulative effects analyses presented in the Greyrock Grazing Allotment EA. Further, the

appellant does not indicate what law, regulation, or policy the Forest Service has allegedly

violated.

The EA includes discussion of cumulative effects at pages 44; 65-67; 73; 92-94; 97-102; 113;

and 122. The specialist reports included in the project record include additional discussions of

cumulative effects. I have determined that the project record does disclose the cumulative effects

associated with the alternatives and does not violate law, regulation, or policy.



Appeal Issue 20: The objectives listed in Chapter 2 are far too general to be implementable.

Further, they lack time frames and methods. And like all Forest Service adaptive

management processes monitoring is not mandatory which vitiates the entire process of

adaptive management.

Discussion: In this appeal issue, no discernible appeal point can be found. The appellant fails to

identify a violation of policy, regulation, or law. The Decision Notice, page 11 quite clearly

requires monitoring associated with implementation of Alternative 3, as described in the EA (p.

33-37). Monitoring will occur over the life of the permit, with evaluation of the results by the

Forest Service to make appropriate adjustments in management, as needed. Monitoring

objectives, designed cooperatively by the Forest Service and U.S Fish and Wildlife Service are

also included in the decision.



Appeal Issue 21: The proposed action implements various utilization levels as did the

previous NEPA document but those utilization levels were continuously exceeded in the

past so how will setting new levels be met. The reason that utilization levels were exceeded

is because of overstocking, a lack of management and lack of action being taken by the

Forest Service to ensure compliance. Nothing within this document would provide a

reasoned conclusion that things have changed. So in other words, we are expected to ignore

the long history of failure and assume that these 50 or so pages will somehow magically

correct the situation. How can this be anything other than arbitrary decision-making?

Appeal Issue 22: The NEPA document discusses a number water developments were

installed on the allotment over a decade ago and this document proposes more of the same.

Clearly, from this NEPA document the previous water developments failed to improve

conditions. Why are we to believe that more of the same will lead to different results? This

can only be seen is arbitrary.

Appeal Issue 23: A fundamental aspect of NEPA is to take a “hard look” at current

management, conditions, assumptions and implementation. A NEPA document that fails to

analyze the following violates NEPA:

1) Validity of assumptions from previous NEPA processes

2) Accuracy of predictions from previous NEPA processes

3) Adequacy of Forest Service implementation of previous decisions

4) Permittee compliance with permit terms and conditions, AMP‟s, AOIs and other

requirements

5) Effectiveness of actions taken in previous decisions

The above items are absolutely critical to be part of this NEPA process. Without this

critical link the validity of the current assumptions are baseless. Let‟s look at each one of

these individually. Without analyzing the accuracy and validity of the assumptions used in

previous NEPA processes one has no way to judge the accuracy and effectiveness of the

current analysis and proposals. This vitiates the NEPA process.

Discussion: Appeal Points 21, 22, and 23 all concern past administration of the Greyrock

Grazing Allotment permit. The appellant alleges that the District Ranger‟s decision violates

NEPA because the effects analysis does not take into consideration how the grazing permit has

been implemented in the past. The assertion is that the permit has not been properly

implemented, and for this reason unanticipated impacts have occurred. The appellant further

asserts that past administration of the permit is essential to demonstrate that NEPA‟s “hard look”

requirements have been met.

Regulations governing the agency‟s compliance with the National Environmental Policy Act (36

CFR 220) require the assessment of the direct, indirect, and cumulative effects of implementing a

proposed action or alternatives on the human environment. It does not require speculation about

the effects that may occur if the project is not implemented as stated in the environmental

document.

The Greyrock Grazing Allotment Environmental Assessment demonstrates compliance with

regulations. Chapters 2 and 3 contain discussions of the direct, indirect, and cumulative effects of

the proposed action as well as the alternatives considered.

The “hard look” requirement cited in the appeal issue refers to a term that has arisen as a result

of case law (Kleppe v. Sierra Club, 427 U.S. 390 [1976]). Specifically, the court found that it

should not:

“substitute its judgment for that of the agency as to the environmental consequences of its

actions. . . . [T]he only role for a court is to insure that the agency has taken a „hard look‟

at environmental consequences; it cannot interject itself within the area of discretion of

the executive as to the choice of the action to be taken.” Kleppe, 427 US at 410 n. 2l.

The “hard look” requirement, then, relates specifically to the review of environmental

consequences. As stated above, NEPA requires consideration of the direct, indirect, and

cumulative effects associated with project proposals. To the extent that implementation (or lack

thereof) of standards and the requirements of AMPs and AOIs affect the human environment,

these effects should be represented in the existing condition of resources, which is described in

Greyrock Grazing Allotment NEPA documents.

A review of the EA and the specialist reports prepared to develop the EA leads me to conclude

that the District Ranger did take a hard look at the environmental consequences associated with

the alternatives. This is disclosed in Chapter 3 of the EA. In addition, while the “hard look”

requirement does not require an assessment of all the things that the appellant suggests, there is

ample evidence in the project record to conclude that project development did consider existing

conditions (which reflect implementation of past management actions) as well as results of past

activities. For these reasons, I find that the District Ranger did not violate the NEPA.



Randy Hickenbottom

District Ranger, Pike & San Isabel National Forest

Appeal Reviewing Officer