United States

Department of

Agriculture

Forest

Service

Pacific

Southwest

Region

Regional Office, R5

1323 Club Drive

Vallejo, CA 94592

(707) 562-8737 Voice

(707) 562-9240 Text (TDD)

America’s Working Forests - Caring Every Day in Every Way Printed on Recycled Paper

File Code: 1570 Appeal No.: 11-05-00-0041-A215

Date: September 12, 2011

Denise Boggs CERTIFIED - RETURN

Conservation Congress RECEIPT REQUESTED

P. O. Box 2076

Livingston, MT 59047

Dear Ms. Boggs:

On July 14, 2011, you filed a Notice of Appeal (NOA) on behalf of Conservation Congress

pursuant to 36 CFR 215. Shasta-Trinity National Forest Supervisor J. Sharon Heywood signed

the Record of Decision (ROD) approving Alternative 2 of the Mudflow Vegetation Management

Project Environmental Impact Statement (FEIS) on June 7, 2011.

I have reviewed the entire appeal record, including your written Notice of Appeal (NOA), the

ROD, FEIS, DEIS, and supporting documentation. 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 the

appeal and on the specific relief requested.

FOREST ACTION BEING APPEALED

The decision will treat approximately 2,957 acres. Thinning will occur in 1,626 acres of

overstocked mixed-conifer forest and 121 acres to establish a shaded fuelbreak along the border

of the Shasta-Mudflow Research Natural Area. Additional treatments will thin 594 acres of

older plantation, remove encroaching conifers from 189 acres to restore the historic size and

function of meadows, and thin 45 acres of California black oak forest. Treatments to address

areas infected with black stain and annosus root disease include sanitation of 185 acres and

regeneration of 197 acres of ponderosa pine forest. Follow-up treatment includes broadcast

burning of 177 acres to maintain wet meadow habitat after conifer removal, and machine piling

and hand piling and burning to decrease excess ground fuels after treatment. Connected actions

include road reconstruction, construction and decommissioning of temporary roads, closing

access to six miles of National Forest Transportation System road, and restoring passage for

aquatic organisms and hydrologic connectivity.

The Mudflow Vegetation Management Project is intended to aid in restoring natural ecosystem

function in the project area by implementing integrated silvicultural and fuels reduction

treatments. These treatments are needed to improve forest health, tree growth, and stand

Appeal #11-05-00-0041-A215, Mudflow, Shasta-Trinity, Conservation Congress 2

resiliency where trees are infected with root disease, and where overstocked conditions exist or

where there is inadequate stocking; reduce ground and ladder fuels to reduce the potential for

catastrophic fire while meeting other resource needs; and, to restore the size, continuity, and

function of historic wet meadow ecosystems.

In response to informal disposition discussions, the Forest Supervisor made the following

changes to the project:

“Reduce disturbance from new temporary spur road construction on 2.1 miles by using

existing old roads or skid trails that would need to be brushed or bladed. Although the

temporary road segments were included to provide opportunities to reduce skidding

distances during implementation, adjustments will be made so that only existing old

roads or skid trials will be utilized” (Informal Disposition letter, August 25, 2011).

APPEAL REVIEWING OFFICER'S FINDINGS and RECOMMENDATION

Documentation demonstrated compliance with applicable laws, regulations and policies in light

of the appeal issues raised by appellant.

Appeal Reviewing Officer (ARO) Michael A. Valdes, Acting Forest Supervisor Eldorado

National Forest, found that the project is an appropriate and reasonable response to direction in

the Shasta-Trinity Forest Land and Resource Managment Plan and is in compliance with the

plan.

The purpose and need for the project were clear. The Forest Supervisor’s logic and rationale

were clear and well documented. The Forest Supervisor was responsive to public concerns.

ARO Valdes recommended affirming the Forest Supervisor’s decision on all issues and denial of

all requested relief.

DECISION

I agree with the ARO’s analysis as presented in the recommendation letter. The issues are

similar to the comments made during the comment period. All appeal issues raised have been

considered. I affirm the Forest Supervisor’s decision to implement Alternative 2. I deny all

requested relief.

Appeal #11-05-00-0041-A215, Mudflow, Shasta-Trinity, Conservation Congress 3

The project may be implemented on, but not before, the 15th

business day following the date of

this letter (36 CFR 215.9(b)). My decision constitutes the final administrative determination of

the Department of Agriculture [36 CFR 215.18(c)].

Sincerely,

/s/ Ronald G. Ketter

RONALD G. KETTER

Deputy Regional Forester

Appeal Deciding Officer

Enclosure

United States

Department of

Agriculture

Forest

Service

Pacific

Southwest

Region

Regional Office, R5

1323 Club Drive

Vallejo, CA 94592

(707) 562-8737 Voice

(707) 562-9130 Text (TDD)

Caring for the Land and Serving People Printed on Recycled Paper

I am the designated Appeal Reviewing Officer for this appeal. This is my recommendation on

disposition of the appeal filed by Denise Boggs for Conservation Congress appealing the Shasta-

Trinity National Forest Supervisor, J. Sharon Heywood’s, Record of Decision (ROD) for the

Mudflow Vegetation Management Project Final Environment Impact Statement (FEIS). The

decision was signed on June 7, 2011, and the legal notice of the decision was published on June

14, 2011.

DECISION BEING APPEALED

The Shasta-Trinity National Forest (STNF) proposes silvicultural and fuel treatments within the

Shasta-McCloud Management Unit within the Upper McCloud River and Squaw Valley Creek

Watersheds northeast of the rural community of McCloud, California. The project area is within

the McCloud Flats, a large expanse of ponderosa pine and mixed conifer forest on mostly flat

terrain east of Mount Shasta and north of State Highway 89. The project area encompasses

13,830 acres and consists of 10,430 acres of National Forest System lands and 3,400 acres of

private, rural, residential, and industrial timber lands.

The Forest has been monitoring the incidence of both black stain and annosus root disease on the

McCloud Flats for several decades through establishment of plots, field surveys, and aerial

surveys. As individual tree vigor, health, and resilience are weakened from disease and spread,

insect activity and mortality increase within forest stands with a subsequent accumulation of

dead trees and down fuels. Fuels reduction projects have reduced some of the resulting fuel

accumulations in the project area; however, the underlying forest health problems of root

disease, reduction in individual tree health and stand vigor due to overstocking and the high

levels of conifer mortality in historic wet meadows, have not been addressed.

The project was developed to aid in restoring natural ecosystem function in the project area by

implementing integrated silvicultural and fuels reduction treatments that:

Improve forest health, tree growth, and stand resiliency where trees are infected with root

disease, where overstocked conditions exist, or where there is inadequate stocking.

Reduce ground and ladder fuel levels to reduce the potential for catastrophic fire while

meeting other resource needs.

Restore the size, continuity, and function of historic wet meadow ecosystems.

File Code: 1570-1 Date: September 7, 2011

Subject: Mudflow Vegetation Management Project

Appeal No. 11-05-00-0041-A215

Shasta-Trinity National Forest

To: Appeal Deciding Officer

2

This project was designed to meet and implement Forest Plan objectives and direction for Late-

Successional Reserve (LSR), Special Area, Matrix and Riparian Reserve land allocations, and is

almost wholly within the Wildland Urban Interface (WUI) surrounding the rural community of

McCloud. There are several rural subdivisions within the project area that are directly adjacent to

National Forest lands proposed for treatment.

Additional management direction, objectives, and recommendations for the project area are

found in the forest-wide Late-Successional Reserve Assessment (LSRA, 1999), the Shasta

Mudflow Research Natural Area Management Plan, the McCloud Flats Ecosystem Analysis

(September 1995; February 2007) and the Mudflow Project Roads Analysis (November 2010).

The project is consistent with the National Fire Plan‘s focus for federal agencies to conduct fuels

reduction in and around WUI to reduce the risk of catastrophic wildfire to people, communities,

and natural resources while restoring forest ecosystems to more closely match their historical

characteristics. The project is also compatible with four recovery actions from the 2008

Recovery Plan for the northern spotted owl that are specifically applicable to the project area.

The need for this action was determined by comparing existing conditions of the project area

with the desired future conditions as described in the Forest Plan for the McCloud Flats and Mt.

Shasta Management Areas and land allocations within these Management Areas. The

discrepancies between desired and existing condition (purpose and need) enumerated below,

provided the basis for developing the proposed action.

1. Reduce tree densities to levels that restore and maintain individual tree vigor, forest

health, and resiliency to natural disturbance.

2. Break the cycle of re-infection in areas heavily infected with black stain and annosus root

disease.

3. Prevent the spread of annosus root disease to freshly cut stumps.

4. Protect and enhance the conditions of the McCloud MLSA and Mt. Shasta LSR within

the project area by reducing the risk of large-scale disturbance, including insect and

disease impacts, including stand-replacing fire.

5. Reduce existing concentrations of woody ground fuels on approximately 760 acres and to

avoid additional accumulation of ground fuels resulting from project activities; reduce

fuel ladders of understory vegetation; reduce the overstory crown density in overstocked

forest conditions.

6. Reduce the potential for fire in the RNA consistent with its objectives and management

direction.

7. Restore the size and spatial connectivity of wet meadow ecosystems in the project area;

restore riparian vegetation and hardwood habitat in wet meadows; restore natural

ecosystem functions in wet meadows; improve fish and other aquatic organism passage

and restore hydrologic connectivity at two existing stream crossings.

The Shasta-Trinity Forest Supervisor selected Alternative 2, as analyzed in the Final

Environmental Impact Statement, for implementation. Alternative 2 treats a total of 2,957 acres

and includes the following activities:

Thinning 1,626 acres of overstocked mixed-conifer forest.

Thinning 594 acres of older plantations, including biomass removal.

3

Thinning 121 acres of mixed-conifer forest to establish a shaded fuel break along the

eastern border of the Shasta-Mudflow Research Natural Area.

Sanitation of 185 acres of acres of ponderosa pine forest infected with black stain and

annosus root disease.

Regeneration of 197 acres of ponderosa pine forest heavily infected with black stain and

annosus root disease; 63 acres at 15% retention and 134 acres <15% retention.

Removing encroaching conifer from 189 acres to restore historic size and function of

meadows.

Thinning 45 acres of California black oak forest.

Broadcast burning 177 acres to maintain wet meadow habitat after conifer removal.

Machine piling and burning and hand piling and burning excess ground fuels on 708 and

52 acres, respectively, upon completion of thinning, sanitation, and regeneration

treatments.

Connected road actions include reconstructing 1.1 miles of existing National Forest

Transportation System (NFTS) road, closing access to six miles of NFTS roads,

constructing and decommissioning approximately 4 miles of temporary road,

decommissioning an additional 7.5 miles of NFTS roads and existing non-NFTRS routes

and restoring passage for aquatic organisms and hydrologic connectivity at two stream

crossings. There will be no new system road construction.

APPEAL SUMMARY

The Mudflow Vegetation Management Project has been listed in the Schedule of Proposed

Actions since May 2003. The Notice of Intent (NOI) to prepare an EIS was published in the

Federal Register on April 24, 2007. The scoping letter was mailed to approximately 26 local

tribal organizations, other agencies, individuals, and groups potentially interested in or affected

by the Proposed Action. The project was developed in collaboration with the McCloud Fire Safe

Council and was presented at monthly Council meetings. The proposed project was presented to

property owners in the Mount Shasta Forest subdivision at their annual meeting on July 27,

2007. The Forest Service has meet with both the Winnemem Wintu and Pit River Tribes on the

proposed action.

The Draft Environmental Impact Statement (DEIS) was published on March 2, 2011. The

Notice of Availability was published in the Federal Register on March 4, 2011. Copies of the

DEIS were sent to over 47 individuals, organizations, tribes, and government agencies. The

DEIS was also placed on the Shasta-Trinity National Forest web page. There were 11 comments

received by the close of the comment period on April 18, 2011. Conservation Congress

submitted timely comments and is eligible to appeal this decision.

The legal notice of decision was published June 14, 2011; the deadline for filing appeals was

July 29, 2011. The current appeal was filed on July 14, 2011, and is timely.

On July 19, 2011, and on July 29, 2011, appellant was sent an email offering a meeting or

conference call. On July 28, 2011, appellant sent an email stating that she was undecided about a

meeting. No further communication was received and no meeting or conference call took place.

As a result of meetings with other appellants, the Forest Supervisor adjusted the project to:

4

―Reduce disturbance from new temporary spur road construction on 2.1 miles by using

existing old roads or skid trails that would need to be brushed or bladed. Although the

temporary road segments were included to provide opportunities to reduce skidding

distances during implementation, adjustments will be made so that only existing old

roads or skid trials will be utilized‖ (Informal Disposition, August 25, 2011).

As relief, the appellants request a full remand of the ROD/FEIS signed by Forest Supervisor J.

Sharon Heywood on June 7, 2011.

ISSUES AND RESPONSES

Issue 1: The Forest failed to take into account an accurate assessment of the environmental

baseline for the northern spotted owl, or to analyze how the project, in combination with

future actions, will affect the owl’s survival and recovery (appeal, pp. 5-6).

(a) The baseline relies on 2003 RSL data as a proxy for impacts of actions completed

prior to 2003 for cumulative effects.

(b) Past effects are assumed to be within the baseline of analysis, but the Forest

can’t assume anything due to poor record keeping and failure to comply with

USFWS enforceable terms and conditions.

(c) There are 3,400 acres of private lands in the project area and private timber

companies regularly remove NSO habitat on private lands in the McCloud area,

yet there is no analysis of these ongoing and foreseeable impacts to owl habitat.

Response:

The appellant contends that the environmental baseline and the cumulative effects analysis for

the northern spotted owl were not adequate. The environmental baseline is the ―existing

condition‖ and is based on past effects and current conditions (50 CFR 402.02(d) effects of the

action). Cumulative effects are the effects of future state or private activities reasonably certain

to occur within the action area (50 CFR 402.2(d) cumulative effects).

(a) The appellant asserts that the environmental baseline for northern spotted owls is not

accurately assessed. The 2003 Remote Sensing Laboratory (RSL) vegetation data

represent the best available data that would allow establishment of an environmental

baseline for habitat availability and quality (FEIS, pp. 96-97). The STNF field-

verified the RSL ―typing‖ of habitat. The 2003 RSL data provide the best scientific

information of a starting point, or baseline, for conducting analyses of effects to NSO

habitat. The FEIS contains additional discussion about the use of RSL data for the

baseline (FEIS, pp. Q-67-68).

(b) Per Endangered Species Act direction, past effects are considered part of the baseline

of analysis (50 CFR 402.02(d)). For threatened or endangered (T/E) species, the

environmental baseline includes all past and concurrent projects for impacts to

species and the habitat (FEIS, pg. I-15). The EIS contains a list of previous

consultations for northern spotted owls on the STNF (Tables 3-12 and 3-13; FEIS, pp.

99-100). The USFWS affirmed the STNF analysis when they concurred with the

Forest‘s determinations of effects (8/1/2008).

5

(c) The effects of non-federal actions are to be considered in the Cumulative Effects

analysis. Under the Endangered Species Act, ―cumulative effects‖ only consider

future non-federal activities that are reasonably certain to occur. Future federal

activities or activities permitted by federal agencies are not included under ESA

―cumulative effects‖ because any proposed future federal activities or federally

permitted activities must undergo Section 7 consultation with the USFWS (50 CFR

402.2(d)).

The geographical setting discussion in the FEIS (pg. 51) states:

―Where appropriate, the cumulative effects analysis considers the effects of activities on

adjacent private lands. Habitat in the rural subdivisions within or adjacent to the project

area is highly fragmented by roads, structures and clearings for fire protection. This

condition is not expected to change in the foreseeable future and therefore, these lands

are not expected to provide late-succession or closed canopy habitat conditions. Future

residential development, including clearing, within the private subdivisions is expected to

occur. Private industrial timberlands within or adjacent to the project area are managed

for timber production on an ongoing basis. The habitat on these lands is currently highly

fragmented from past management activities and residual stands are generally maintained

in conditions that do not currently provide late-succession or closed-canopy habitat.

These lands are not expected to provide this habitat in the future‖ (See also, FEIS, pp.

96, Q66, I-16; Management Indicator Assemblage Report, pg. 33).

Therefore, for the Cumulative Effects analysis, the Forest assumes that non-federal

lands are unsuitable. The Forest has taken the conservative approach and assumed

that all suitable spotted owl habitat is on Forest Service lands. The analysis was

performed as if only federal land provides habitat.

I find that the Forest Service adequately established an accurate baseline based on the best

available science. I also find that Forest performed adequate analysis of the cumulative effects

for the Mudflow project. USFWS‘s concurrence supports this determination.

Issue 2: The Mudflow project relied on the 2008 recovery plan for the northern spotted

owl, but the Forest should have been aware of, and used, the 2010 recovery plan (appeal,

pg. 6)

Response: The appellant asserts that the 2010 Draft Revised Recovery Plan for NSO should have been used

in the analysis rather than the 2008 Recovery Plan. While the 2008 Recovery Plan was remanded

by the courts on 9/1/2010, it was not vacated and was still the most current Recovery Plan when

the decision for this project was signed (FEIS, pg. Q-65 Comment #116).

The content of the Recovery Plan is part of the analysis of effects. USFWS concurred with the

STNF determinations of effects (USFWS 8/1/2008) and considered the Recovery Plan in their

evaluation.

6

An assessment was conducted on how the Mudflow project is consistent with the four applicable

Recovery Actions from the 2008 Recovery Plan (Mudflow Spotted Owl Recovery Plan,

4/21/2011). The 4/21/2011 memo addresses the similarities in ―intent and objectives of the 2010

Draft Revised Recovery Plan and the 2008 Recovery Plan.

I find that the STNF‘s assessment used the proper Recovery Plan at the time of their evaluation

and that this analysis was re-considered after the 2010 Draft Revised Recovery Plan was made

available.

Issue 3:

a) Significant information has become available that was not analyzed in the BA (i.e.,

the 2010 draft recovery plan for northern spotted owl, the presence of barred owls,

and the decreasing population of the northern spotted owl)

b) The new information was never considered by the FWS because the Forest failed to

initiate formal consultation (appeal, pp. 6-7).

Response:

a) The appellant asserts that the analysis of effects to northern spotted owl failed to include

new data and considerations regarding population status, habitat status, threats, etc.

The project area was surveyed per USFWS/FS protocol for northern spotted owl from

2004 through 2011. No spotted owls were detected in or near the 1.3 mile spotted owl

survey radius of the project area during any of those surveys (Consultation Re-initiation

Criteria Assessment, pg. 2; BA update, pg. 2; FEIS, pg. Q-50 and Q-65). Also, no barred

owls were detected within or near the 1.3 mile spotted owl survey radius of the project

area during any of those surveys (Consultation Re-initiation Criteria Assessment, pg. 2;

BA update, pg. 2; FEIS, pg. Q-50 and Q-65). The Biological Assessment analyzed

direct, indirect, and cumulative effects to spotted owls, spotted owl habitat, and

designated Critical Habitat relevant to the project area. USFWS‘s concurrence supports

the Determination of Effects for this project.

USFWS concurred with the STNF determination of ―Not Likely to Adversely Affect‖ in

2008, and the Forest reviewed this concurrence to ensure that the new changes did not

affect the Mudflow project. The FEIS (pg. Q-65, response to comment #116) and several

memos in the Project File (4/21/2011 Memo on 2008 Spotted Owl Recovery Plan;

5/3/2011 Consultation Re-initiation Assessment; 5/3/2011 Biological Assessment

Update) document the assessment that new information and conditions (e.g., change in

the Recovery Plan, changes in Critical Habitat, 2.5 years passing since BA was prepared)

were considered. Both the 2008 Critical Habitat and the revised Recovery Plan (2008),

addressed in those memos, discuss barred owl threats to northern spotted owls.

b) The appellant asserts that USFWS consultation should have been re-initiated for the

Mudflow project. The USFWS concurrence of ―not likely to adversely affect‖ is dated

8/1/2008. The STNF documented in the project record that the need to re-initiate

consultation was analyzed following ESA Section 7 guidelines (5/3/11 Consultation Re-

initiation Criteria Analysis, pg. 1; FEIS, pg. Q-65). The acres of Critical Habitat in the

7

Mudflow project went from 4879 acres in the 1992 Critical Habitat to 534 acres in the

2008 Critical Habitat, with all of the 534 currently-designated Critical Habitat acres being

included in the earlier designation (thus potential effects to those acres were addressed in

the 2008 Biological Assessment) (Consultation Re-initiation Criteria Assessment, pg. 2;

FEIS, pg. Q-65).

I find that the biological documents and the FEIS contain documentation that new data were

considered in the analysis. I find that the potential need to re-initiate consultation was adequately

addressed by the STNF.

Issue 4: The Forest is planning to sanitize 190 acres of the project area and remove habitat

spotted owl habitat all together. This removal of habitat is not analyzed in the EIS for

impacts to designated critical habitat (appeal, pg. 8).

Response: The appellant contends that the proposed sanitation of 190 acres would remove northern spotted

owl habitat and that the impacts to designated Critical Habitat are not addressed in the EIS.

The Biological Assessment (BA) states that 210 acres of NSO foraging habitat in the project area

will be sanitized (BA, pg. 5). The BA Update (pg. 1) corrects that to 185 acres of sanitation. The

ROD (ROD, pg. 12) lists 185 acres of ponderosa pine for sanitation.

The Critical Habitat was designated in 1992, but revised in 2008 after the BA was prepared.

After the Critical Habitat was revised, the STNF prepared an update to the BA to address the

changes (BA Update, pg. 1). The STNF conducted a subsequent assessment to determine if the

2008 revision to the Critical Habitat changed the effects analysis contained in the 2008

Biological Assessment (FEIS, pg. 96, 5/13/11 BA Update, pg.1; 141-

CritHabUnitAcresByAlternative 111810.xlsx). The following table displays a summary of that

comparative analysis for the selected alternative:

Treatment 1992 Critical Habitat 2008 Critical Habitat Totals

Sanitation 184.9 0 184.9

While the regulations would require only an evaluation of the 2008 Critical Habitat designation,

the STNF chose to use the 1992 Critical Habitat boundaries for its cumulative effects analysis

due to uncertainty about a pending revision of the Critical Habitat expected in 2012 and to be

consistent with the Biological Assessment and USFWS concurrence (FEIS, pp. 95-96). The

pending revision of the Critical Habitat is expected to have boundaries that include more land

than the 2008 Critical Habitat and less than the 1992 Critical Habitat (FEIS, pg. 96). The

impacts to the 1992 Critical Habitat outlined in the Biological Assessment are the same as what

would occur to the 2008 Critical Habitat, though effects would be reduced (534 acres compared

to 2442 acres) (5/3/2011 Consultation Re-initiation Criteria Assessment, pg. 2).

The FEIS and BA disclose effects from sanitation to northern spotted owl habitat (FEIS, pp. 106-

107; FEIS, pg. Q-64; FEIS, pp. I-14). The BA and FEIS disclose potential effects to Critical

Habitat (FEIS, pp. 82-93, I-11 – I-16). Additionally, the Management Indicator Assemblage

8

Report addressed effects to late seral and snag/log habitat, both key habitat components that are

important features of Critical Habitat (12/22/2010 MIR, pp. 20-22, pp. 32-34).

Additionally, USFWS concurred with the STNF determination that Critical Habitat would not be

adversely affected by the Mudflow project (8/1/2008 USFWS concurrence letter) when

substantially larger amounts of Critical Habitat would have been treated through sanitation.

I find that the Forest adequately addressed the effects to Critical Habitat from sanitation.

Issue 5: The 3.6 miles of temporary road construction and creation of landings will result

in removal of spotted owl habitat yet this impact is not analyzed (appeal, pp. 9 and 14).

Response: The appellant asserts that temporary road construction and creation of landings would result in

removal of northern spotted owl habitat and that the effect of this was not addressed.

The FEIS contains the following explanation of how the analysis was conducted:

―Temporary road widths (~12 feet) do not involve cut and fill, surfacing or other features

of construction associated with ‗system roads‘. The road widths are comparable to the

leave tree spacing and effects to the stands as related to owl habitat would be similar,

with or without, temporary road construction and thus; effects are included within the

effects of the thinning treatments. Temporary roads would be tilled/sub-soiled to a depth

of 6‖ after use (i.e., soil would be ‗de-compacted‘ through vertical and lateral shattering),

re-contoured to natural slope (if any) and seeded for erosion control. Proposed landings

are all nested within existing units, and as with the proposed temporary roads, will not

impact owl habitat in a manner or extent not already assessed in the biological

assessment. No new landings will be constructed in riparian reserves or nesting/roosting

habitat‖ (FEIS, pp. Q-66-67).

I find that the Forest discussed and analyzed the effects of new road construction on spotted owl

habitat. I also find that changes that the Forest Supervisor made on August 25, 2011 as a result

of informal disposition (discussed above) further address this concern.

Issue 6: The Forest offers no explanation or rationale for how degrading 59% of the owl’s

current habitat in the Mudflow project will not result in any changes to the function of the

current habitat level (appeal, pg. 9).

Response: The appellant asserts that the analysis failed to disclose how northern spotted owl habitat

functionality would not be affected if 59% of the current owl habitat in the project area were

degraded. The FEIS identifies 5,125 acres of foraging habitat in the project area (FEIS, Table 3-

8, and pg. 85) but does not suggest that 3,020 acres (59%) would be degraded.

The analysis of effects in the FEIS and BA evaluated habitat effects by quantifying how many

acres of habitat would be ―removed‖, ―downgraded‖, or ―degraded‖ using clearly-defined

9

standards (FEIS, pg. I-12): Project scale – 19% of the habitat would be ―degraded‖; Owl Home

Range scale – 3% of the habitat would be ―degraded‖; and Owl Territory scale- <1% of the owl

habitat would be ―degraded‖.

The Management Indicator Assemblage Report (MIR) analyzed effects to late seral habitat and

snag/downed log habitat (12/22/2010 MIR, pp. 20-25, 32-35), key habitat components for

spotted owls that would contribute to spotted owl habitat functionality. That report predicted

that the only place that snags/logs would be reduced would be in the shaded fuelbreaks, and that

the effects would be discountable due to the narrow linear nature of the fuelbreaks since

snags/logs are readily available outside the 300 meter wide fuelbreak (12/22/2010 MIR, pp. 33).

That report also documented that there would not be a change in the habitat availability amount

of late seral habitat assemblage if the selected alternative were implemented (12/22/2010 MIR,

pp. 22 Table 14).

I find that the Forest analyzed how the Mudflow project will affect the function of spotted owl

habitat, and that the Forest will not be degrading 59% of the owl‘s current habitat in the project

area.

Issue 7: The Status of predators and competitors does not include Barred owls even though

the recovery plan lists them as a serious threat to the NSO and they are documented on the

McCloud Ranger District and are likely in the project area (appeal, pg. 9).

Response: The appellant contends that the analysis did not address the threat of barred owls to northern

spotted owls.

40 CFR 1502.15 states:

―The environmental impact statement shall succinctly describe the environment of the

area(s) to be affected or created by the alternatives under consideration. The descriptions

shall be no longer than is necessary to understand the effects of the alternatives. Data and

analyses in a statement shall be commensurate with the importance of the impact, with

less important material summarized, consolidated, or simply referenced. Agencies shall

avoid useless bulk in statements and shall concentrate effort and attention on important

issues. Verbose descriptions of the affected environment are themselves no measure of

the adequacy of an environmental impact statement.‖

The project area has been surveyed per USFWS/FS protocol for northern spotted owls from 2004

through 2011. No barred owls have been detected within or near the 1.3 mile spotted owl survey

radius of the project area during any of those surveys (Consultation Re-initiation Criteria

Assessment, pg. 2; BA update, pg. 2; FEIS, pg. Q-50). The BA Update (5/3/11) and the

Recovery Plan memo (4/21/11) assess new information that became available. Both the 2008

Critical Habitat and the revised Recovery Plan, addressed in those memos, discuss barred owl

threats to northern spotted owls.

10

I find that the Forest adequately disclosed the current threats to northern spotted owls for the

project area, and that the USFWS concurrence with the determinations of effects provides further

evidence of the adequacy of the evaluation.

Issue 8: The amount of nesting/roosting habitat in the project area, territories, and home

ranges is significantly under threshold. This project will make this situation worse, and

doesn’t propose any mitigation for the northern spotted owl or its habitat. This is a

violation of the ESA for failing to consider the conservation value of critical habitat

(appeal, pp. 9-10).

Response: The appellant asserts that the conservation value of Critical Habitat was not considered. The

FEIS contained a number of specific resource protection measures designed to reduce effects to

spotted owls, their habitat, and designated Critical Habitat (FEIS, pp. 30-36). The purpose and

need of the project is to:

―Improve forest health, growth and sustainability in areas where trees are infected with

root disease, where overstocked conditions exist or where there is inadequate stocking,

notably in Late-Successional Reserves and Managed Late Successional Areas; reduce

ground and ladder fuels to conditions that reduce the potential for catastrophic fire; and

restore the historic size, continuity and function of wet meadow ecosystems. All of these

objectives would result in a beneficial effect to northern spotted owl and its critical

habitat. The purpose and need recognizes that those lands allocated as LSR or MLSA in

the project area are to be managed to protect and enhance late successional and old

growth forest ecosystems which provide habitat for late-successional associated wildlife

species like the northern spotted owl‖ (FEIS, pp. Q-69-70).

The Biological Assessment (BA) and FEIS analyzed effects to Critical Habitat (FEIS-Chapter 3,

pp. 49-182; FEIS, pp I-11 through I-16). The Management Indicator Assemblage Report (MIR)

analyzed effects to late seral habitat and snag/downed log habitat (12/22/2010 MIR, pp. 20-25,

32-35), key habitat components for spotted owls that would contribute to spotted owl habitat

functionality. The USFWS concurrence with the STNF‘s determination of effects for Critical

Habitat affirms the adequacy of the analysis. The Recovery Plan memo (4/21/2011) in the

Mudflow project record documents the consideration of Recovery Actions and the associated

conservation value of the habitat.

I find that the effects to Critical Habitat for northern spotted owl, including effects to the

conservation value, are considered in the Mudflow project.

Issue 9: The LRMP set a goal of 180 pairs or 360 birds during the second decade of the

LRMP on the 2.1 million acre STNF. There is no evidence to suggest the STNF is meeting

its Forest-wide goals for the northern spotted owl population (appeal, pg. 11).

Response: The appellant contends that the STNF‘s forest-wide goals for northern spotted owls are not being

met based on the LRMP‘s forest objectives for northern spotted owls. The STNF‘s LRMP forest

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objective for northern spotted owl is to go from 97 pairs of owls in 1989 (the base year) to 180

pairs of spotted owls two decades later (LRMP, Table 4-2, pp. 4-10). The LRMP Table 4-2

displays the average annual outputs by decade for certain resource elements in the Forest and

lists the average annual output of spotted owl pairs from the base year (1989) through five

decades (Id.).

However, as described in the LRMP, this table is only displaying the ―planned resource outputs

and activities for decade one and potential resource outputs and activities for decades two

through five‖ (Id. at 4-6). The Forest goal for threatened and endangered species is to ―monitor

and protect habitat‖ (LRMP, pg. 4-5). Since there are several factors that contribute to the

number of managed pairs that could not be foreseen when the LRMP was created, there is little

value in comparing current numbers to these projections, and much more value in addressing the

forest goal of monitoring and protecting habitat.

I find that the STNF did not violate any requirements of the LRMP in regards to forest-wide

management of northern spotted owls.

Issue 10: The documents pertaining to this timber sale make little effort to analyze the

impact that logging in critical habitat will have on the conservation of the owl, and the

documents arbitrarily exclude certain adverse impacts to critical habitat (appeal, pp. 11-

12).

Response: The appellant asserts that the analysis of effects to Critical Habitat is not adequate, but did not

identify which adverse effects they felt were arbitrarily excluded. Without more detail, it is

difficult for the Forest Service to address the appellant‘s concerns.

The BA and FEIS evaluated potential effects to Critical Habitat, including direct, indirect, and

cumulative effects to foraging and nesting/roosting habitat. Among other things, the analysis

addressed canopy cover, habitat availability, habitat quality, snags, large trees, prey-base habitat,

stand conditions, and future conditions (FEIS, pp. 82-93, I-11 – I-16, Q67, Q69-70). The

discussions on pages Q71-72 in the FEIS (FEIS, pp. Q71-72, Comments 1226-1227) clarify

some of the potential effects to Critical Habitat. The Management Indicator Assemblage Report

analyzed effects to late seral habitat and snag/downed log habitat (12/22/2010 MIR, pp. 20-25,

32-35), key habitat components for spotted owls that would contribute to spotted owl habitat

functionality.

The STNF conducted a subsequent assessment to determine if the 2008 revision to the Critical

Habitat changed the effects analysis contained in the 2008 Biological Assessment (5/13/11

Biological Assessment Update; 141-CritHabUnitAcresByAlternative111810.xlsx) and

determined that the 2008 Biological Assessment determinations remain current.

USFWS reviewed the evaluation of effects to spotted owls, including Critical Habitat, and they

concurred with the STNF determination that Critical Habitat would not be adversely affected by

the Mudflow project (58/1/2008 USFWS concurrence letter).

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I find that the STNF analyzed potential effects to northern spotted owl Critical Habitat.

Issue 11: The Forest does not provide documentation identifying all ESA consultations for

CHU CA-2, which the Mudflow project is in (appeal, pp. 12 and 15).

Response: The appellant contends that documentation of Endangered Species Act consultation is not

included in the EIS. The appellant did not address this concern during the comment period.

Tables 3-12 and 3-13 (FEIS, pp. 99-100) display the Determinations of Effects for all projects

completed within Critical Habitat Unit CA-2 since 2001. Project records for those individual

projects would contain complete consultation records. Table 3-15 (FEIS, pg. 101) displays a

summary of current and foreseeable future projects in Critical Habitat Unit CA-2 – all of those

projects have the potential to have ESA consultations.

I find that the Forest Service appropriately considered previous ESA consultations that included

Critical Habitat Unit CA-2.

Issue 12: The Mudflow project consistently violates the LSRA by focusing on logging late-

successional habitat; trees 80 to 110 years old (appeal, pp. 12-13).

Response: The appellant contends that the Mudflow project violates the Forest‘s LSRA direction. Thinning

and fuels reduction in this habitat will reduce the risk for large, uncontrolled disturbances

(LSRA, pp. 2-85, 2-89; See also LSRA Correction Oct. 18, 2009) and will promote future

development of late successional l habitat (LSRA, pp. 2-89).

The FEIS clearly summarizes the objectives and need for treatment within the LSR (FEIS, pp. 1-

3, 9-12), outlining the leave tree criteria (FEIS, pg. 24) and resource protection measures specific

to the LSR (FEIS, pp. 30-31). The project targets early and mid-seral stage trees (trees < 110

years old) within the LSR with thinning treatments that emphasizes removal of trees from the

lower crown classes.

―Large trees significantly taller than the surrounding general crown canopy, trees in the larger dominant

crown classes and any old growth trees will be retained. Thinning will retain crown canopy at 40 to

55 percent while opening the understory to improve foraging maneuverability; will accelerate

development of forest stands with larger diameter trees; will result in a layered stand structure; and will retain any existing old growth trees as an important component of developing late-succession

forest‖ (FEIS, pg. Q-73).

I find the Forest did not violate the LSRA in the design of this project.

Issue 13: The FEIS failed to consider the benefits of fire to the habitat; the LSRA direction

regarding fire in LSR habitat; or the fact that owls use burned forest as habitat (appeal, pg.

13).

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Response: The appellant asserts that the effects of fire in spotted owl habitat and that the direction for fire in

LSR habitat is not considered. One of the expected outcomes of the Mudflow project is changes

in fire behavior that will reduce the likelihood of extreme fire behavior (FEIS, pp. 70-82, FEIS

Table 3-4). The FEIS and BA identify this type of fire as a threat to LSR and MSR habitat and

spotted owls (FEIS, pp. ii-iii, 1-4, and I-14). The contention that fire is beneficial for spotted owl

habitat is complex, controversial, and highly variable depending on conditions and scale.

The FEIS and BA address fire and management of stands for fire behavior goals, including

LSRA management direction, in a number of places (FEIS, pp. ii-iii, 3, 10-14, 70-82, I-4-I-5, I-6,

and I-14, Q18-Q19, Q30-Q31, Q40, and Q73-Q74).

Forest Ecologist, Jerry Franklin has recognized that taking no action in regards to developing and

maintaining late-successional stands is not an acceptable alternative for protecting forests that

support northern spotted owls:

―We will lose these forests to catastrophic disturbance events unless we undertake

aggressive active management programs. This is not simply an issue of fuels and fire;

because of the density of these forests, there is a high potential for drought stress and

related insect outbreaks. Without action, we are at high risk of losing these stands—and

the residual old-growth trees that they contain--to fire and insects and the potential for

these losses is greatly magnified by expected future climate change. We know enough to

take action (uncertainties should not paralyze us). Inaction is a much more risky option

for a variety of ecological values, including preservation of Northern Spotted Owls and

other old-growth related species. We need to learn as we go, but we need to take action

now‖ (FEIS, pg. Q-19).

The Mudflow project analysis indicates a reduction in the likelihood of extreme fire behavior

that results in large, uncontrolled fires that could seriously degrade spotted owl habitat and MSR

and LSR.

I find that the Mudflow project complies with LRMP standards and guidelines for treatment of

LSRs relative to the risk of wildfire. I also find that the FEIS adequately addressed the effects of

wildfire in the Mudflow project, including in spotted owl habitat.

Issue 14: The removal of habitat (i.e., snags) is not analyzed and is disregarded by claiming

adequate snags exist in adjacent stands to meet snag requirements in the general area

(appeal, pg. 14).

Response:

The appellant asserts that the removal of snags is not adequately analyzed and is disregarded by

the Forest.

The need to retain adequate snag habitat was recognized in the development of the alternatives

and snag management was incorporated into the project design. The selected alternative

(Alternative 2) was developed to respond to the need to manage long-term snag recruitment in

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spotted owl habitat (FEIS, pg. 20). The FEIS contains a Snag Management Plan (FEIS, pp. N1-

N4) that includes snag survey results from the project area. The Snag Management Plan would

guide the retention of snags during implementation of the project and strategy for recruitment of

snags. The Resource Protection Measures for the Mudflow Project also include snag retention

criteria that describe the minimum number, size, and type of snags to be retained (FEIS, pp. 31).

The BA and FEIS contained analyses of snag retention in the project area (FEIS, pp. 30-31, 83-

120, 117, 180, I-1-I-17, J1-J35, K31-K35, Q70). The Management Indicator Assemblage Report

contains an analysis of effects to the snag/downed log habitat assemblage. It disclosed that 121

acres would have a reduction in snags/logs under the selected alternative (12/22/2010 MIR, pp.

33). That report predicted that the only place that snags/logs would be reduced would be in the

shaded fuelbreaks and the effects would be discountable due to the narrow linear nature of

fuelbreaks since snags/logs are readily available outside the 300 meter wide fuelbreak

(12/22/2010 MIR, pp. 33). The Decision Maker recognized the importance of snag retention in

selecting Alternative 2 (ROD, pp. 6-7, 10-11).

The Recovery Plan Memo (4/21/2011) also analyzed snag habitat in terms of Recovery Actions.

That memo confirms consistency of Recovery Actions 6 and 32 which both address protection of

habitat, including snags, important to the recovery of spotted owls.

I find that the Forest adequately analyzed the retention of snag habitat for the Mudflow project.

Issue 15: The DEIS failed to adequately analyze the effects of the Mudflow project on 2

spotted owl centers (Activity Centers ST-211 and ST-213) within the project area (appeal,

pg. 16).

Response: The appellant asserts that the analysis of effects to the two spotted owl centers in the Mudflow

project is not adequate.

The selected alternative (Alternative 2) was developed to respond to the need to manage long-

term snag recruitment in spotted owl habitat (FEIS, pg. 20). The Resource Protection Measures

for the Mudflow Project also include a number of measures designed to limit effects to

individual owls and to protect important habitat components (snag/log retention, riparian

protection, limited operating periods, etc.) (FEIS, pp. 30-36).

The BA and FEIS evaluated potential effects to each of the two spotted owl activity centers,

including direct, indirect, and cumulative effects to foraging and nesting/roosting habitat.

Among other things, the analysis addressed canopy cover, habitat availability, habitat quality,

snags, large trees, prey-base habitat, stand conditions, and future conditions (FEIS, pp. 83-84,

87-107, I-11 through I-16, Q-70). The Management Indicator Assemblage Report (12/22/2010

MIR) provided supporting analysis of the effects to snag/log habitat and late seral habitat, both

important to spotted owls.

Additionally, response to comment #124 states,

15

―As stated in Appendix I and Chapter 3 (TES section) of the FEIS, no activities are proposed

within the 1.3 mile home range of the northern spotted owl activity center ST-213. No activities

are proposed within ¼ mile of the known nest core ST-211. Within the 1.3 mile home range of

northern spotted owl activity center ST-211 there are 215 acres of foraging habitat that will be

temporarily degraded. Degraded is defined as a reduction in some habitat components, but would

still function at the current habitat level‖ (FEIS, pg. Q-70).

I find that the Biological Assessment and FEIS adequately assessed analyze direct, indirect, and

cumulative effects for the two spotted owl centers in the Mudflow project area.

Issue 16: The project record fails to adequately analyze the project’s effects on northern

spotted owls (appeal, pg. 18).

(a) No surveys for spotted owls have been conducted in the project area’s historical

sites since 2007.

(b) The DEIS did not analyze current or post-project patterns of habitat

surrounding Activity Centers ST-211 and ST-213.

(c) The DEIS failed to address the threat of barred owls.

Response: (a) The appellant asserts that no surveys have been conducted for northern spotted owls in

the project area since 2007. In addition to the surveys that were conducted from 2004

through 2007 (FEIS, I-10), surveys were completed in 2008, 2009, 2010, and 2011

(5/3/2011 BA Update, pg. 2, 5/3/2011 Consultation Re-initiation Criteria Assessment, pg.

2).

I find that the Project Record contains documentation that surveys were conducted each

year since 2007, supporting the adequacy of the analysis of effects to spotted owls from

the Mudflow project.

(b) The appellant contends that the spatial arrangement of northern spotted owl habitat pre-

and post-treatment is not analyzed for the Activity Centers. The Activity Center is

defined as the nest tree or the location best describing the focal point of the activity for a

northern spotted owl or pair of owls when the nest location is not known. Since no

activities are proposed within ¼ mile of the known Activity Center of either territory

(FEIS, pp. I-11; Q70), the pre- and post-treatment patterns of habitat within those circles

would not change.

I find that the Project Record contains documentation habitat assessments of pre- and

post-treatments were conducted for the areas surrounding the two Activity Centers in the

Mudflow project, supporting the adequacy of the analysis of effects to spotted owls from

the Mudflow project.

(c) The appellant asserts that the threat of barred owls to northern spotted owls is not

addressed. See the discussion and response for Issue #7 above.

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I find that the Forest adequately disclosed the current threats to northern spotted owls for

the project area, and that the USFWS concurrence with the determinations of effects

provides further evidence of the adequacy of the evaluation.

Issue 17: The failure to comply with the ESA is a violation of the APA because it is

arbitrary, capricious, or otherwise not in accordance with the law (appeal, pg. 19).

Response: The appellant alleges that the STNF violated the APA by failing to comply with the ESA, 2010

Owl Recovery Plan, STNF LRMP, the NWFP, and the 1999 LSR Assessment, and therefore the

decision on this project is arbitrary and capricious.

Section 706(2)(A) of the Administrative Procedure Act (APA) instructs courts reviewing

regulations to invalidate any agency action found to be "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." The arbitrary or capricious test is used by

judges when reviewing the factual basis for agency rulemaking. Courts can overturn agency

decisions if they find that the underlying rationale or factual assertions are unreasonable.

The Forest Supervisor reviewed the project record and determined that the project is consistent

with all laws and regulations, among them the National Forest Management Act, which includes

Forest Plan consistency, and the Endangered Species Act (ROD, pp. 18-21).

I find that the STNF complied with all relevant laws, regulations and policies, and that the

decision associated with the project is not arbitrary and capricious.

FINDINGS

Clarity of the Decision and Rationale -- The Forest Supervisor‘s decision and supporting

rationale are clearly presented in the Mudflow Vegetation Management Project Record of

Decision. Her reasons for selecting Alternative 2 are logical and responsive and consistent with

direction contained in the Shasta-Trinity National Forest Land and Resource Management Plan.

Comprehension of the Benefits and Purpose of the Proposal -- The purpose of the proposal is

clear and the benefits are displayed.

Consistency of the Decision with Policy, Direction, and Supporting Information -- The decision

is consistent with direction contained in the Shasta-Trinity National Forest Land and Resource

Management Plan.

Effectiveness of Public Participation Activities and Use of Comments -- Public participation was

adequate and well documented. A Notice of Intent to prepare an EIS and Notice of Availability

of the DEIS were published in the Federal Register. The project was added to the quarterly

Schedule of Proposed Actions. The Forest mailed scoping letters, hosted meetings, and

distributed draft and final EISs to interested groups and individuals. The Shasta-Trinity National

Forest has maintained current information on planning and activities on its web page. Responses

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to the comments received are detailed and included as part of the EIS. The decision of the Forest

Supervisor indicates she considered and responded to public input.

RECOMMENDATION

My review was conducted pursuant to and in accordance with 36 CFR 215.19 to ensure the

analysis and decision is in compliance with applicable laws, regulations, policy, and orders. I

reviewed the appeal record, including the comments received during the comment period and

how the Forest Supervisor used this information, the appellant's objections and recommended

changes.

Based on my review of the record, I recommend that the Forest Supervisor's decision be

affirmed. I recommend that the Appellants' requested relief be denied on all issues.

/s/Michael A. Valdes

Michael A. Valdes

Appeal Reviewing Officer

Forest Supervisor, Eldorado National Forest