CERTIFIED MAIL R.R.R.

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1 United States Department of Agriculture Forest Service Southern Regional Office 1720 Peachtree Road, NW Atlanta, GA File Code: Date: April 8, 2010 Office of the Prosecuting Attorney ATTN: Mr. J. David Maddox 600 Port Arthur Mena, AR Dear Mr. Maddox: CERTIFIED MAIL R.R.R. Re: Appeal of Forest Supervisor Norman L. Wagoner s January 4, 2010, Decision for Alternative E of Travel Management Plan Amendment 3 in the Revised Land and Resource Management Plan for the Ouachita National Forest in Arkansas According to the authority granted to me by 36 CFR 215, this letter contains my consolidated appeal decision on your appeal of the subject Decision. BACKGROUND On January 4, 2010, Forest Supervisor Wagoner signed the Decision for this project with the Notice of Decision being published in the Arkansas Democrat Gazette on February 20, It has been verified that you provided comments during the 30-day Notice and Comment period of February 21, 2008, through March 21, 2008, required for standing to appeal in the proposed action. Therefore, you met the regulatory requirements at 36 CFR for eligibility to file an appeal which was accepted on March 1, The Forest Supervisor notified us that an offer was made to meet and discuss the issues in your appeal in an effort to resolve them informally. As no resolution was reached we continued with our review of your appeal. RECOMMENDATION OF APPEAL REVIEWING OFFICER (ARO) I received the recommendation of the ARO that the Forest Supervisor s Decision be affirmed except for those parts of the decision dealing specifically with the Wolf Pen Gap area. The ARO s recommendation is based on the appeal issues and a review of the project record. A copy of the ARO recommendation is enclosed. RELIEF REQUESTED The appeal requests that the decision be withdrawn. Caring for the Land and Serving People Printed on Recycled Paper

2 Appeal Page 2 CONCLUSION My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR to ensure the analysis and decision are in compliance with applicable laws, regulations, policy and orders. I have reviewed the appeal record and the recommendation of the ARO, which includes a discussion of the issues that were raised in your appeal. Based on this review, I concur with the ARO s recommendation to affirm Forest Supervisor Wagoner s January 4, 2010, Decision except for those parts of the decision dealing specifically with the Wolf Pen Gap area. Based on my review of Issues 1 and 4 in your appeal, I am reversing the Decision, as it relates to Wolf Pen Gap. Specifically, those actions involving use restrictions and/or road closures within the Wolf Pen Gap Trail Complex are not to be implemented with this decision. This constitutes the final administrative determination of the Department of Agriculture. Sincerely, /s/ Jerome Thomas JEROME THOMAS Appeal Deciding Officer Deputy Regional Forester Enclosure (ARO Recommendation)

3 Appeal Page 3 United States Department of Agriculture Forest Service Southern Region Cherokee NF 2800 North Ocoee Street Cleveland, TN File Code: Date: April 5, 2010 Route To: Subject: To: ARO Recommendation Maddox Appeal for the Ouachita Travel Management Project Under 36 CFR 215 Appeal Deciding Officer This letter constitutes my recommendation for the subject appeal filed by the Polk County Prosecuting Attorney David Maddox, for the Ouachita Travel Management Project. My review was conducted pursuant to 36 Code of Federal Regulations (CFR) 215. To ensure the analysis and decision are in compliance with applicable laws, regulations, policies and orders, I have reviewed and considered the point raised by the appellant and the decision documentation submitted by the Forest Supervisor. My recommendation is based upon review of the Appeal and Project File, including but not limited to the Decision Notice and of No Significant Impact (DN-FONSI), Environmental Assessment (EA) and Biological Evaluation/Biological Assessment (BE/BA). ISSUES The Issues raised in this appeal that are within the scope of the review and meet the requirements of 36 CFR are: Issue 1 Issue 2 Issue 3 Issue 4 Issue 5 Whether scoping was inadequate because it did not disclose any closure of the Wolf Pen Gap area [Appeal, pp. 2-4]; Whether the rationale for the decision to close Wolf Pen Gap is arbitrary and capricious [Appeal, p. 2]; Whether economic analysis of impacts to local business were adequately addressed [Appeal, p. 3]; Whether the decision violates NEPAs procedural and informational requirements [Appeal, p. 3]; Whether the analysis of PETS species is inadequate to support decision [Appeal, p. 4];

4 Appeal Page 4 Issue 6 Issue 7 Whether the analysis of effects fails to consider impacts associated with nonmotorized activities [Appeal p. 4]; and Whether the analysis supports the closure of county maintained roads [Appeal, p. 4]. DISCUSSION OF ISSUES Issue 1 Whether scoping was inadequate because it did not disclose any closure of the Wolf Pen Gap area. The appellant contends that neither the County nor its residents were consulted or made aware of the potential closures as exist in the decision, in particular that, the plans shown to the public, to our knowledge, never included any closure of the 31 miles of the Wolf Pen Gap Trail. (Appeal, p. 2) The legal notice for the Travel Management Project 30-day notice and comment period states in part: The Ouachita National Forest proposes to designate a system of roads and trails for public use of motorized vehicles, including Off-Highway Vehicles (OHV s) and, at the same time, limit motorized vehicles for the most part to those designated roads and trails. It also states: The proposal also includes limited use of motor vehicles for big game retrieval and dispersed camping.at the same time routes are being considered for various designations allowing public motor vehicle use, approximately 467 miles of currently open National Forest System roads are proposed to be closed. No specific mention is made of potential changes to management of the Wolf Pen Gap area. A letter was sent to interested parties on February 21, 2008 detailing a proposed action containing road designations, camping and game retrieval allowances, following what was presented in the legal notice. Road and trail designations presented on page 2 in the letter included: Roads open to vehicles, yearlong Roads open to highway legal vehicles only, yearlong Roads open to highway legal vehicles yearlong and open to OHV s seasonally Roads open to OHV s yearlong and open to highway legal vehicles seasonally Roads open to highway legal vehicles, seasonally Roads open to all vehicles, seasonally Trails open to vehicles 50 inches or less in width Trails open to motorcycles. The letter also disclosed that alternatives might be considered including the following:

5 Appeal Page 5 Additional Resource Protection This alternative would exclude motorized vehicle use on routes in or near areas found to be particularly sensitive to environmental damage (i.e., locations of PETS species at risk from physical damage or sensitive to sediment increases, drinking water sources, etc.) (February 21, 2008 letter p. 6). No specific mention of potential changes to management of the Wolf Pen Gap area was included in the letter. A Travel Management Project Update was posted on the Forest website in March 2009 that disclosed the significant issues identified from public comments. The update specifically talks about considering the use of OHV s for game retrieval. No mention was made of potential changes to management of the Wolf Pen Gap area. No further updates to the public appear in the record. Alternative E in the EA (EA pp ) and DN published in January, 2010 contain technical requirements (management actions) that are in effect changes to access in the Wolf Pen Gap area. The technical requirements concern: limiting the amount of OHV use on the trails; limiting use to certain days of the week; seasonal limitations; and limiting use after rain events. With the exception of seasonal limitations, these actions are of a different type than what was described in the legal notice and proposed action for the Travel Management project that was released for 30- day notice and comment. The record does not indicate that the public was informed of or had the opportunity to comment on these proposed actions at the Wolf Pen Gap area prior to the release of the DN/FONSI and accompanying EA. I find that no disclosure to the public of potential changes in management of the Wolf Pen Gap area was made prior to release of the Decision. Issue 2 Whether the rationale for the decision to close Wolf Pen Gap is arbitrary and capricious. The appellant states We understand the agency has discretion in formulating management policies, but must avoid arbitrary and capricious rationalization to justify a decision already made. However, it seems obvious to Polk County Officials that here, the forest service made the decision and is now attempting to justify that decision In the unique circumstances here, the Forest s decision to close first and then analyze should place the agency under heightened scrutiny. [Appeal, pp. 2-3]

6 Appeal Page 6 The Biological Assessment/Biological Evaluation (BA/BE) [EA, Appendix C] and the November 30, 2009 Amendment to the BA/BE [BA/BE, Appendix B] for the project discloses the rationale for the technical requirements imposed on the Wolf Pen Gap area in the decision. The BA/BE states The Arkansas fatmucket is known to occur eight miles downstream from the Wolf Pen Gap Trail (WPG) system watersheds, and activities associated with the motorized access within and near WPG are considered to detrimentally influence the aquatic habit on and downstream of the Ouachita NF. This species is so rare and appears to be in decline in all watersheds where it is known to occur (population is at very low density and/or at only a few local sites) that random events (accidents, weather events) may place persistence of the species within the Forest at risk. [BA/BE, p. 27] From July through December 2009 a series of discussions took place between USFWS and the Forest Service regarding a variety of OHV use restrictions at the Wolf Pen Gap area in order to, mitigate adverse effects from OHV use inn the watershed and susbsequently effects to the Arkansas Fatmucket. [8/21/ :46 AM from Chris Davidson (USFWS) to Norm Wagoner et al.] The technical requirements ultimately included in Alternative E for the Wolf Pen Gap area were an outcome of this interagency interaction that ultimately resulted in USFWS concurring with the Forest Service finding of may affect, not likely to adversely affect the Arkansas fatmucket. [December 4, 2009 letter from R. Mark Sattelburg to Norman Wagoner] I find the decision regarding the Wolf Pen Gap area was not arbitrary and capricious. Issue 3 Whether economic analysis of impacts to local business were adequately addressed. The appellant contends the Forest Service conducted no study whatsoever on the economic loss to Polk County, Arkansas. (Appeal, p. 3). The NEPA implementing regulations, 40 CFR specify that when economic or social effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment. The EA recognizes the importance of recreation and addresses economic impacts of reduced OHV activities to the local economy, including Polk County (EA, pp 33-36). Potential economic

7 Appeal Page 7 impacts on businesses inclusive in counties occupied by the Forest are discussed. Reduction in revenue of sixteen businesses serving Wolf Pen gap are specifically addressed. I find the EA is in compliance with NEPA regulations in disclosing probable economic effects of the proposed action and alternatives. Issue 4 Whether the decision violates NEPAs procedural and informational requirements. The appellant contends: There is no way to know how the Forest Service arrived at the detailed technical requirements unique to Wolf Pen Gap. A necessary part of such analysis, the causal relationship between specific types of use under certain conditions and adverse impacts to minimized, is completely absent from the EA. Even if the Forest has analyzed these issues and reached a legitimate conclusion, which we fear it has not, the fact that the public was excluded and had no meaningful opportunity to comment upon it creates an independent basis for reversal and remand of the Decision. (Appeal, p. 3) 40 CFR part (b) states: NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. FSH _11.52(4) states in part: Ensure that the level of effort to inform and to involve the public is consistent with the scale and importance of the proposed action and the degree of public interest. FSH _11.7 states in part: Keep the public informed of the progress of the environmental analysis through appropriate means. FHS _12.61 states in part: Consider options for expanding public involvement to keep people informed and involved as the analysis progresses. It is clear through the above citations that the intent of NEPA and Forest Service directives is to keep the public informed throughout the NEPA process, especially for projects that are of great public interest. From the project record it appears the Forest kept the public informed up through March However, the development of the technical requirements that took place between July 2009 and December 2009 and were incorporated into Alternative E in the decision occurred without the

8 Appeal Page 8 public being informed or involved. The public did not become aware of the Wolf Pen Gap management changes until after the decision was made. As these were requirements developed with the USFWS in order to reduce impacts to a federally listed species, such requirements are not typically subject to public involvement from a NEPA perspective. However in this case the technical requirements are in effect changes to management of an established OHV trail system that is of high public interest. The technical requirements for Wolf Pen Gap add up to a proposed action different from the proposed action that the public commented on in The Forest did not meet NEPA procedural requirements in regard to the changes in management of the Wolf Pen Gap area. Issue 5 Whether the analysis of PETS species is inadequate to support decision. The appellant contends, Wolf Pen Gap Trail has been in use extensively and there has been no adverse impact on the environment because of its use to the knowledge of the officials of Polk County. (Appeal, p. 4). The appellant further contends, There is no way to know how the Forest Service arrived at the detailed technical requirements unique to Wolf Pen Gap and there is insufficient analysis to justify closures or vehicle restrictions at Wolf Pen Gap based on alleged impacts to PETS species. (Appeal, p.5). The BA/BE (p. 2) states, The best available information has been used with sources that include element occurrence records from the Arkansas and Oklahoma Natural Heritage Commissions, review of the scientific literature, data gathered during on-the-ground field surveys, review of surveys...conversations with knowledgeable individuals in the academic/scientific/resource management communities, and our best professional judgment in an effort to determine which PETS species occur or may occur within the proposed analysis area. The EA supports this statement (p. 69). The EA explains the ACE model used to determine risk levels associated with subwatersheds (p. 52). The EA then identifies the sedimentation risks for each subwatershed including those in the Wolf Pen Gap area (Camp Creek and Southern Creek, p. 57 and Headwaters Cossatot River, p. 69). The Aquatic PETS species in these watersheds are identified in the Environmental Baseline and effects are addressed for each, including potential harm to individuals and effects of sedimentation. The following PETS species are included: Arkansas fatmucket (p ), leopard darter (p ), Southern hickorynut (p. 126, ), purple liliput (p. 129, ), Ouachita creekshell (p. 130, ), Ouachita shiner (p. 139, ), Peppered shiner (p. 141, ), Caddo Madtom (p. 142, ), and Caddo Mountain Salamander (p ). The BA/BE addresses these species in the same manner (p ). The Appendix B, Amendment to the BA/BE (p ) further addresses effects to leopard darter.

9 Appeal Page 9 Appendix B, Amendment to the BA/BE (p. 3-4) outlines the process used to develop the technical requirements through the informal consultation process. The rationale for the development of the technical requirements is detailed in correspondence between the FS and USFWS, including s between Chris Davidson and Alan Clingenpeel (August 21-31, 2009), letters from the FWS in Arkansas (October 28 and December 4, 2009), letters from the FS (November 30, 2009), and the FWS in Oklahoma (December 9, 2009). I find that the analysis of PETS species is adequate to support the decision for Wolf Pen Gap Trail. Issue 6 Whether the analysis of effects fails to consider impacts associated with nonmotorized activities. The appellant contends, To the extent trail-related recreation can have adverse impacts on PETS species or other aspects of the physical environment the EA fails to acknowledge this proposition and therefore omits any analysis of impacts associated with non-motorized activities. (Appeal, p.5). The effects of impacts associated with non-motorized activities are incorporated into the existing condition and associated transportation analysis. The EA (p. 23) identifies other past, present and reasonably foreseeable future actions as new, unauthorized and unclassified roads added to the system, and road closures. Other activities have been found to be outside the scope of this project. The EA (p. 43) states Activities that contribute to erosion, soil compaction, and displacement include vegetation management; recreation, including OHV use; grazing; and minerals management. (EA, p. 43). FINDING I find that the analysis of the effects adequately considers impacts associated with non-motorized activities. Issue 7 Whether the analysis supports the closure of county maintained roads. The appellant states that, this proposal will close several miles of roads used by County residents and visitors and several miles of the roads have been maintained by the County for at least 30 years and that the County believes that the analysis used by the Forest Service to support the closure was not adequate (Appeal, p. 4).

10 Appeal Page 10 The EA (on page 39) states that Maintenance Level (ML) 3, 4 and 5 roads are the passenger roads that are regularly maintained. It goes on to state that the miles of maintenance level 4 and 5 roads would remain unchanged for all alternatives. As for the ML 3 roads, the EA discloses that only 10 miles out of 1,084 miles of ML 3 roads will be changed. In analyzing the transportation system to determine what changes to make, spreadsheets in the project record document that in the soil and water effects analysis various combinations of roads open or closed were considered. The EA on pages 69 thru 267 document the effects of the transportation system on proposed, endangered, threatened and sensitive species as well as on management indicator species. The project record shows that hundreds of comments were received which included route specific information. Both the DN (p. 7) and the EA (p. 15) state that Comments received on the Proposed Action included specific route designation requests. These specific requests were evaluated and those justifying changes were incorporated into the alternatives. Other specific route designation requests were eliminated from detailed study because they did not meet the purpose and need of this project or they did not meet the environmental screening criteria for designation. See also the responses to the other issues in this appeal decision that address the adequacy of the analysis used. I find that an appropriate level of analysis was conducted to make the route specific determinations. RECOMMENDATION After reviewing the project record and the issues raised by the appellant, I recommend that Forest Supervisor Norman L. Wagoner s January 4, 2010, Decision for the Ouachita Travel Management Project, be affirmed except for those parts of the decision dealing specifically with the Wolf Pen Gap area. Based on my review of Issues 1 and 4, I recommend that the Decision Notice as it relates to Wolf Pen Gap be reversed. /s/ H. Thomas Speaks, Jr. H. THOMAS SPEAKS, JR Appeal Reviewing Officer Forest Supervisor