Pacific Northwest Region. CERTIFIED MAIL RETURN 52 Thurlow Rd. RECEIPT REQUESTED Twisp, WA NUMBER:

Transcription

1 United States Department of Agriculture Forest Service Pacific Northwest Region 333 SW First Avenue PO Box 3623 Portland, OR File Code: 1570 Date: February 17, 2012 Mr. Bernard and Mrs. Dianne Thurlow CERTIFIED MAIL RETURN 52 Thurlow Rd. RECEIPT REQUESTED Twisp, WA NUMBER: Dear Mr. and Mrs. Thurlow: This constitutes my decision, pursuant to 36 CFR (b)(1), on your appeal (# ) of Forest Supervisor Rebecca Heath s Decision Notice (DN) and Finding of No Significant Impact (FONSI) for the Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision Environmental Assessment (EA). Background On September 29, 2011, Rebecca Heath, Forest Supervisor for the Okanogan-Wenatchee National Forest, signed a decision notice (DN) and finding of no significant impact (FONSI) for the Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision EA. The decision to implement Alternative 2 includes: Revising the allotment management plans (AMPs) to allow grazing in the Libby, Little Bridge, Newby, and Poorman allotments and address resource concerns. Livestock numbers on the Little Bridge allotment will be reduced from 232 to 200 cow/calf pairs and the season of use will be from May 16 to September 16 using a rest/rotation system. The Libby, Newby, and Poorman allotments will be combined into one allotment called Lookout Mountain and would be managed as one allotment with 14 total grazing units. The permitted use for the Lookout Mountain allotment will be equivalent to 296 cow/calf pairs from May 16 to September 30, with 1, 2, or more permits that total 296 cow/calf pairs. Improvements include constructing almost 10 miles of new fencing throughout the allotments; installing two guzzlers (rainwater collection devices); developing one new water development and reconstructing some existing developments; and removing the eastern most section of the Libby allotment and northern most section of the Newby allotment from the new Lookout Mountain allotment to better protect resources. Standard livestock management practices will be included in the AMPs, including requirements for salting and range riding to improve livestock distribution. Mitigation measures will be incorporated to further minimize resource impacts and address concerns about interactions between gray wolves and grizzly bears and livestock, and monitoring will be conducted to ensure that activities are implemented as designed and to determine the effectiveness of Alternative 2 at minimizing resource impacts. Alternative 2 includes an adaptive management strategy; monitoring would occur to determine streambank alteration levels; if met, cattle would be moved off the pasture right away. Caring for the Land and Serving People Printed on Recycled Paper

2 Mr. Bernard and Mrs. Dianne Thurlow 2 Pursuant to 36 CFR , an attempt was made to seek informal resolution of the appeal. The record indicates that informal resolution was not reached. My review of this appeal has been conducted in accordance with 36 CFR , Formal review and disposition procedures. I have reviewed the appeal record, including the recommendations of the Appeal Reviewing Officer. A copy of his recommendation is enclosed. The Appeal Reviewing Officer focused his review on the appeal record and the issues that were raised in your appeal, as well as issues raised by other appellants. Appeal Decision After a detailed review of the record and the Appeal Reviewing Officer s recommendation, I affirm the Responsible Official s decision for the Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision Project and deny your requested relief. This decision constitutes the final administrative determination of the Department of Agriculture [36 CFR (c)]. A copy of this letter will be posted on the national appeals web-page at Sincerely, /s/ Nora B. Rasure (for): KENT P. CONNAUGHTON Regional Forester Enclosure cc: Debbie Anderson Maurice L Moss Ann Fink Becki L Heath

3 Forest Service Deschutes National Forest Deschutes Market Road Bend, OR File Code: 1570 Date: February 16, 2012 Route To: Subject: Appeal Reviewing Officer Recommendation for the Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision To: Regional Forester, R-6 On September 29, 2011, Rebecca Heath, Forest Supervisor for the Okanogan-Wenatchee National Forest signed a decision notice (DN) and finding of no significant impact (FONSI) for the Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision EA. The decision to implement Alternative 2 includes: Revising the allotment management plans (AMPs) to allow grazing in the Libby, Little Bridge, Newby, and Poorman allotments and address resource concerns. Livestock numbers on the Little Bridge allotment will be reduced from 232 to 200 cow/calf pairs and the season of use will be from May 16 to September 16 using a rest/rotation system. The Libby, Newby, and Poorman allotments will be combined into one allotment called Lookout Mountain and would be managed as one allotment with 14 total grazing units. The permitted use for the Lookout Mountain allotment will be equivalent to 296 cow/calf pairs from May 16 to September 30, with 1, 2, or more permits that total 296 cow/calf pairs. Improvements include constructing almost 10 miles of new fencing throughout the allotments; installing two guzzlers (rainwater collection devices); developing one new water development and reconstructing some existing developments; and removing the eastern most section of the Libby allotment and northern most section of the Newby allotment from the new Lookout Mountain allotment to better protect resources. Standard livestock management practices will be included in the AMPs, including requirements for salting and range riding to improve livestock distribution. Mitigation measures will be incorporated to further minimize resource impacts and address concerns about interactions between gray wolves and grizzly bears and livestock, and monitoring will be conducted to ensure that activities are implemented as designed and to determine the effectiveness of Alternative 2 at minimizing resource impacts. Alternative 2 includes an adaptive management strategy; monitoring would occur to determine streambank alteration levels; if met, cattle would be moved off the pasture right away. Three appeals (# , , and ) were filed by Donald Johnson, Bernard and Diane Thurlow, and Kevin Kane respectively. An additional appeal was filed by Aaron Crary on behalf of the Libby Creek Watershed Association; however, a review of the record indicates that neither Mr. Crary nor the Libby Creek Watershed Association has standing. I did review his appeal and found that the issues he raised were nearly identical to Mr. Johnson s. Mr. Johnson requested that additional analysis occur including examining the effects of grazing and maintenance practices on the Libby Creek allotment, consideration of a full range of alternatives, establishment of a multi-user group to conduct an allotment by allotment survey America s Working Forests Caring Every Day in Every Way Printed on Recycled Paper

4 Regional Forester, Region 6 2 to determine and monitor the condition, maintenance needs, and legitimate use of each allotment; protection of the Libby Creek watershed for its intrinsic values; and formation of an advisory council for the Libby Creek Watershed to lessen landowner and agency conflicts. Mr. and Mrs. Thurlow requested that the Forest be honest, not discriminate, use good science, and follow the law. Mr. Kane did not request a particular relief. Review and Findings My review was conducted in accordance with 36 CFR to ensure that the analysis and decision are in compliance with applicable laws, regulations, policies, and orders. The appeal record, including the appellant s issues, has been thoroughly reviewed. Having reviewed the EA, DN/FONSI, and the project record as required by 36 CFR (b), I conclude the following: 1. The decision clearly describes the actions to be taken in sufficient detail that the reader can easily understand what will occur as a result of the decision. 2. The selected alternative will accomplish the purpose and need established. The purpose and need stated in the EA reflects consistency with the Recission Act which requires the agency to prepare NEPA analysis on grazing allotments. 3. The decision is consistent with policy, direction, and supporting evidence. The record contains documentation regarding resource conditions and the Responsible Official s decision document is based on the record and reflects a reasonable conclusion. 4. The record reflects that the Responsible Official provided adequate opportunity for public participation during the analysis and decision making process. The Responsible Official s efforts allowed interested publics the opportunity to comment and be involved in the proposal. After considering the claims made by the appellants and reviewing the record, I found that the Responsible Official conducted a proper and public NEPA process that resulted in a decision that is consistent with the Okanogan National Forest LRMP, as amended. I found no violations of law, regulations, or Forest Service policy. Recommendation After reviewing the appeal record, I recommend affirming the decision. I believe that the project documentation adequately supports the Forest Supervisor s decision with regards to all appeal points raised by the appellants. Enclosed with this memo are my responses to each appeal issue. /s/ John Allen JOHN ALLEN Forest Supervisor

5 Regional Forester, Region 6 2 cc: Debbie Anderson Maurice L Moss Lillian M Compo

6 Libby, Little Bridge, Newby, and Poorman Allotment Management Plans Revision Environmental Assessment (EA) Okanogan-Wenatchee National Forest Appeal Statements and Responses Appellant Appeal Number Donald Johnson (DJ) Bernard and Diane Thurlow (BDT) Kevin Kane (KK) Proposed Action/Issues/Alternatives Appellant Statement #1: Appellant states that the Forest failed to identify the true reasons for the decision to continue to make the Libby Creek allotment available to certain user groups. Appellant states that the EA, decision notice (DN) and finding of no significant impact (FONSI) provide only post hoc rationalizations of a predetermined outcome, and as such are procedurally improper under the National Environmental Policy Act (NEPA). Appellant infers that the purpose and need to continue authorization of livestock grazing means that a decision has already been reached. DJ at 3, 4, and 5. Response: I find that the proposed action s purpose and need is adequately explained (Scoping Notice at 1, EA at 1-11, and DN/FONSI at 6). I also find that the decision was not reached based solely on the purpose and need, but rather after issues and concerns that were solicited through the scoping process (EA at 1-13 and 1-14). Alternatives were considered (EA at 2-1 to 2-4), and the effects of each alternative has been analyzed (EA Chapter 3). The National Environmental Policy Act (NEPA) itself does not explicitly require purpose and need statements in environmental assessments; however, regulations (36 CFR 220.7(b)(1)) and policy (Forest Service Handbook (FSH) , 11.21) do state that an EA must include the need for the proposal and briefly describe the need for the project, and further describe that the need for action discusses the relationship between the desired condition and the existing condition. The EA is consistent with this regulation and policy because it identifies the purpose and need in terms of the difference between the current condition and the desired condition. EA at 1-9 to Multiple alternatives were considered but eliminated from detailed analysis, thorough explanations for which are provided for each in the EA at 2-1 to 2-3 as well as the DN/FONSI at 7 to 9. Therefore, I find that the Responsible Official adequately explained the purpose and need. Appellant Statement #2: Appellant states that livestock grazing is not the top priority use of the Libby Creek watershed and should not be treated as such. DJ at 3. Response: I find that the purpose and need of the proposed project does not prioritize uses of the Libby Creek watershed, nor was the Responsible Official required to do so. The Forest Service is directed to manage for multiple use objectives, including range, by the Multiple Use Sustained Yield Act of 1960, and the Okanogan National Forest Land and Resource Management Plan (LRMP) objectives specifically provide for grazing. The proposed action is consistent with the management direction and guidance described in Chapter 2, as supported by the analyses in Chapter 3 Page 1 of 20

7 (see also EA at Appendix F-22); therefore, the Responsible Official did not prioritize the uses of the Libby Creek watershed and was not required to do so. Appellant Statement #3: Appellant states that the no action alternative was not seriously considered by the responsible official and that alternative 1 would avoid adverse impacts to ESA-listed fish species. DJ at 3, 5, and 27. Appellant disagrees with the Forest that discontinuing a permit is no action and contends that nonrenewal of permits is not considered no action. DJ at 5. Response: I find that the no action alternative was considered by the Responsible Official and that discontinuing a permit is no action. The FSH , requires the Responsible Official to consider a range of reasonable alternatives for range management. The range of reasonable alternatives includes both alternatives that warrant detailed analysis and alternatives that are considered but eliminated from detailed study. In cases where the design and configuration of the proposed action can mitigate resource concerns to acceptable levels, the proposed action may be the only viable action alternative. When there is an issue with the proposed action, an alternative to the proposed action shall be developed and analyzed in detail (FSH , 14). In all cases, the rationale and development of alternatives shall be addressed and disclosed in the NEPA analysis for the project. In addition to the proposed action, the no action alternative shall always be fully developed and analyzed in detail. No action is synonymous with no grazing and means that livestock grazing would not be authorized within the project area. Detailed direction for development of alternatives is found in FSH , 14. The Responsible Official discussed her rationale for not choosing the No Action alternative (DN/FONSI at 7). The effects to ESA-listed fish species is included in response to Appellant Statement #9. Therefore, I find that the Responsible Official did consider a no action alternative. Appellant Statement #4: Appellant states that the proposed action was put forward despite objections of watershed residents. DJ at 3. Appellant repeatedly states that citizens question the economic efficiency of the proposal, stating that the adverse impacts, as well as the costs of the proposal (in terms of new fencing, developments, and monitoring) outweigh any economic benefit gained from beef production. DJ at 3, 4, 25, 27 and 34. Response: I find the Responsible Official considered and completed the appropriate public involvement and environmental analysis of the proposed action, which included an economic analysis. A letter describing the proposed action was sent out on April 14, 2010 (DN/FONSI at 9 and 10). As a result of public and internal scoping, concerns were generated in response to the proposed action. The Draft Allotment Management Plan revision EA was mailed on August 15, 2011 to groups or individuals who expressed interest in the project. A notice of the EA for the 30-day comment period was published in the Wenatchee World newspaper on August 17, Comments were considered in the development of the final EA (see Appendix F). Discontinuing of livestock grazing was considered under Alternative 1 of the EA throughout the document. The analysis is consistent with the Forest Plan Standard An economic analysis was completed in the EA at to Therefore, I find that the Responsible Official did complete appropriate public involvement and environmental analysis, which included an economic analysis. Page 2 of 20

8 Appellant Statement #5: Appellant states that unresolved conflicts regarding the proposed action identified by Libby Creek residents were not addressed in the EA, and include adverse effects to water quality and quantity, restoration of species of concern (animals and plants), habitat degradation from reduced ground cover, soil erosion, and forage reduction for mule deer and beaver, adverse effects to Endangered Species Act (ESA)-listed salmonids, lack of assurance of adequate monitoring and enforcement, and wasting of public funds. DJ at 4. Response: I find that there are no unresolved conflicts with the proposed action identified by Libby Creek residents. impacts of the proposed action and any alternatives. Direct, indirect, and cumulative effects on mule deer are disclosed in the EA at to The Forest responded to comments related to forage for mule deer in the EA at Appendix F-27 (response 2-40), F-28 (response 2-41), and F-40 through F-41 (response 2-74). While the EA does not specifically analyze the direct, indirect, and cumulative effects of cattle grazing on the beaver; impacts to riparian habitat used by beaver are disclosed in the EA at 3-37, 3-49,3-50, 3-71,3-72 and 3-97 through The Forest responded to comments related to beaver and beaver habitat in the EA at Appendix F-19 (response 2-11), F-28 (response 2-41), and F-36 (response 2-67). Effects to quality and quantity of water are found in the EA at 3-35, 36, 42, 48, 49, 53, 56, 68, 59, 62, 63, 64, 66-75, 78, 79, 82, 87, 91, 92, 98 and 99. In regard to the effects to ESA, see response to Appellant Statement #21. The responsible official described in the DN/FONSI her rationale for selecting Alternative 2. The activities included under Alternative 2 include constructing about 10 miles of riparian fencing to reduce cattle access to streams, protect unique wetlands, and protect abandoned beaver ponds (DN/FONSI at 6 and 7). Activities would also include measures that would improve cattle distribution within the allotments, including maintenance of existing fences and water sources, development of new water sources, and new fence construction. These activities would reduce cattle impacts to riparian shrubs (browse), which provide forage for mule deer and beaver. The Okanogan National Forest Land and Resource Management Plan requires that 85% of annual browse in winter range (over the entire winter range area) be allocated to wildlife. In the Libby, Little Bridge, Newby, and Poorman Allotments, ocular estimates of livestock use of winter range browse indicate that over the entire winter range, livestock utilization of browse is well below 15% (EA at 3-102, EA at Appendix -27 (response to 2-40)). Under the selected alternative, the proposed activities are expected to result in a slight decrease in livestock use of winter range; livestock use of winter range browse would not likely exceed the 15% Forest Plan standard at the scale of the entire winter range (EA at 3-103). As for assurance of adequate monitoring and enforcement, the monitoring requirements are described in the DN/FONSI at 3-5 and in the EA 3-88 (monitoring and enforcement are part of implementation of the decision. Guidance for monitoring is provided in FSH , 40. Appellant Statement #6: Appellants state that NEPA has been violated because the EA failed to consider an adequate range of alternatives. DJ at 5; KK at 2. Appellants state that additional alternatives should have been developed including: one that discontinued grazing in the Libby allotment, and one that discontinued grazing in the Little Bridge, Newby, and Poorman allotments (DJ at 5); one that reduced grazing intensity and one that reduced the total grazing area by using structural improvements. KK at 2 and 3. Page 3 of 20

9 Response: I find that the Responsible Official is in compliance with NEPA by considering an adequate range of alternatives. No specific number of alternatives is required (42 USC 4332, 102(C)(iii) and (E)), but rather they are driven by cause-and effect-statements derived from issues raised and the effects expected to result from those issues (FSH , 12.4). Several concerns were raised by the interdisciplinary team, which were addressed by mitigation measures and monitoring activities; no comments were received from the public that resulted in changes to the proposed action and no unresolved conflicts remained that were not addressed by the no-action alternative (EA at Chapters 2, 3 and 4); therefore no additional alternatives were fully developed (EA at 2-1). Appellant Statement #7: Appellant states that the proposed action is dependent on adequate funding of grazing management improvements, and that assurance of the availability of that funding should precede approval of this AMP. DJ at 5, 34, 35, 37, 39, 41 and 42. Appellant further states that the Forest has repeatedly lacked adequate funding for monitoring and maintenance of the grazing allotments. Given the increased importance of recreation and tourism to the local economy, the Forest s limited resources to manage grazing, and the poor current environmental and economic conditions, appellant states that the Libby Creek watershed grazing cattle units should be retired / discontinued. DJ at 5, 6, 8, 35 and 37. Response: I find that by signing the Decision Notice, the Responsible Official is making a commitment to fulfill the activities included the DN such as mitigation measures, monitoring activities, and project design features (DN at 3). Therefore, they are responsible for securing the funding necessary to implement the decision; nothing in the record indicates that the Forest will not be able to successfully implement this decision. Appellant Statement #8: Appellant states that the EAs plans to develop grazing systems have not been developed or presented, and as such, they cannot reasonably evaluate these plans. DJ at 7. Response: I find that within the Libby, Little Bridge, Newby and Poorman AMP EA, grazing systems have been developed. FSH , Chapter 90, Section states that a proposed action must include the basic elements of an AMP (allotment management plan), specifically in section 94.1, because these elements will ultimately be obtained directly from the NEPA-based decision and will be included in part 3 of the grazing permit forms (FSM b and c) as an AMP. The DN/FONSI at 1 to 2 and the final EA describe grazing systems, which include details of the season of use, livestock numbers, and implementation of rest and deferment. Grazing systems are discussed in the EA at 2-4 to 2-10 and are also discussed in the EA s monitoring and adaptive management section at 2-12 to Grazing systems will be further developed in the allotment management plan to implement the details of Alternative 2. Therefore, I find that the plans to develop grazing systems have been presented and can be reasonably evaluated. Page 4 of 20

10 Direct, Indirect, and Cumulative Effects Wildlife Resources Appellant Statement #9: Appellant states that NEPA has been violated because the EA fails to identify and analyze the adverse direct, indirect, and cumulative effects of cattle grazing on watershed functions and fish and wildlife species and their habitat, including mule deer, western grey squirrel, beaver, waterfowl and ESA-listed grey wolves and salmonids. DJ at 6 and 17. Response: I find the EA identifies and analyzes the direct, indirect, and cumulative effects of cattle grazing on watershed functions and fish and wildlife species and their habitat, including mule deer, western grey squirrel, beaver, waterfowl and ESA-listed gray wolves and salmonids. impacts of the proposed action and any alternatives. The DN/FONSI discusses the consultation and findings for listed fish and wildlife species at 9, 10, 12, and 13. The Forest Service prepared a biological assessment for bull trout, steelhead, gray wolf, and other listed wildlife (Project Record Folder 15, Biological Assessment). Other references to direct, indirect, and cumulative effects to salmonids are included in the following locations: EA at 2-5, 2-12, 2-16 to 2-17, 3-37, 3-52 to 3-60, F-15 (response 1-48), Project Record Folder 17, Biological Opinions, NMFS BiOp, pages 30 and 31, Project Record Folder 17, Biological Opinions, USFWS BiOp, pages 58 to 74, Folder 35, Laws/CEQ Guidance, Endangered Species Act. Direct, indirect, and cumulative effects to wildlife and wildlife habitat are disclosed in the EA at 3-93 to and in the Letter of Concurrence received from the US Fish and Wildlife Service on June 17, 2011 (Project File, File 16, Letters of Concurrence. In the EA, effects to the mule deer are disclosed at and 3-103; for the western gray squirrel at and 3-124; for migratory birds and waterfowl at 3-107, 3-108, and 3-118; and the gray wolf at through While direct, indirect, and cumulative impacts to the beaver are not specifically analyzed in the EA; this species is not Endangered, Threatened, or Sensitive species for the Okanogan National Forest (EA at 3-94, 3-108, and 3-109). Impacts to riparian habitat used by beaver are disclosed in the EA at 3-37, 3-49, 3-50, 3-71,3-72, 3-97 through The Forest responded to comments related to beaver and beaver habitat in the EA at Appendix F-19 (response 2-11), F-28 (response 2-41), and F-36 (response 2-67). Therefore, based on the analysis of direct, indirect, and cumulative effects of livestock grazing provided in the EA and Project Record (as referenced above) for watershed functions and fish and wildlife species and their habitat, including mule deer, western gray squirrel, beaver, waterfowl and ESA-listed grey wolves and salmonids, the requirements of the NEPA (36 CFR 220.7(b)(3)(iv)) for disclosure have been fulfilled. Appellant Statement #10: Appellant states that cattle impacts to streambanks, groundwater, and streamflow will interfere with the Forest s efforts to restore beaver in the area. DJ at 7, 8, 9, 16, 24, 26 and 39. Response: I find that the EA does identify and analyze the direct, indirect, and cumulative effects of cattle grazing on watershed function, stream banks, and stream flow, which is the habitat for the beaver. In addition, the Forest responded to appellant s concerns about beaver in the response to comments. impacts of the proposed action and any alternatives. Page 5 of 20

11 The proposed activities would improve riparian habitat conditions within portions of the analysis area, and would therefore complement restoration efforts for riparian-associated species such as the beaver. The beaver is not Endangered, Threatened, or Sensitive for the Okanogan National Forest (EA at 3-94, 3-108, and 3-109). Impacts to riparian habitat used by beaver are disclosed in the EA at 3-37, 3-49, 3-50, 3-71,3-72 and 3-97 to The Forest responded to comments related to beaver and beaver habitat in the EA at Appendix F-19 (response 2-11), F-28 (response 2-41), and F-36 (response 2-67). The responsible official described in the DN/FONSI her rationale for selecting Alternative 2. The activities included under Alternative 2 include constructing over 11 miles of riparian fencing to reduce cattle access to streams, protect unique wetlands, and protect abandoned beaver ponds (DN/FONSI at 6 and 7). Activities would also include measures that would improve cattle distribution within the allotments, including maintenance of existing fences and water sources, development of new water sources, and new fence construction. These activities would reduce cattle impacts to riparian habitats. This alternative was chosen because it best meets the purpose and need for the project by reducing impacts to federally listed fish species and their habitat and reducing grazing impacts to unique riparian habitats. By providing for improved riparian habitat conditions, habitat for beaver would also be improved through implementation of the selected alternative. Appellant Statement #11: Appellant states that mule deer winter range has not been adequately protected and that the direct and indirect impacts (fencing and browse utilization) of cattle grazing and management on mule deer have not been adequately disclosed. DJ at 27 and 34. Appellant further states that utilization by cattle has exceeded 15%, which does not leave 85% of the browse for wildlife, as required. DJ at 28. Response: I find the EA identifies and analyzes the direct, indirect, and cumulative effects of cattle grazing on mule deer, and adequately protects mule deer winter range habitat. impacts of the proposed action and any alternatives. The Okanogan National Forest Land and Resource Management Plan (LRMP) also provides direction for the allocation of browse in mule deer winter range management areas. The Forest Plan standard is for 85% of annual browse on the entire winter range to be for wildlife and 15% for domestic livestock. Direct, indirect, and cumulative effects on mule deer are disclosed in the EA at to The Forest responded to comments related to forage for mule deer in the EA at Appendix F-27 (response 2-40), F-28 (response 2-41), and F-40 through F-41 (response 2-74). The potential effects of fences within the allotment on mule deer are described in the EA at for Alternative 2. It is stated that cases of movement boundaries or entanglements have not been reported in the project area (EA at 3-102). While livestock use in specific Designated Monitoring Area (DMA)s that lie within the winter range may be higher than 15%, across the entire winter range (landscape area), ocular estimates indicate that livestock utilization of browse is well below 15% (EA at F-28, Response 2-40). Much of the upland browse utilized by mule deer during the winter occurs on steep slopes that are not accessed by cattle (EA at 3-102). Under the selected alternative, the proposed activities are expected to result in a slight decrease in livestock use of winter range; livestock use of winter range browse at the scale of the entire winter range would not likely exceed the 15% Forest Plan standard (EA at 3-103). Page 6 of 20

12 Appellant Statement #12: Appellant states that the proposed action may prevent recolonization of the Methow Valley by gray wolves and that similar management may already be responsible for the eradication of the Lookout pack. DJ at 43. Response: The DN/FONSI provided rationale for the decision that was made and the EA also discussed the potential impacts on gray wolves. DN at 2, 6, 10, and 12. impacts of the proposed action and any alternatives. The EA at to discusses potential impacts to the gray wolf. The effects were concurred on by the US Fish and Wildlife Service on June 17, 2011 (Project Analysis File, Folder 16, Letters of Concurrence). Determining whether the Lookout Pack has been displaced or the reasons for this are not within the scope of this project. The DN/FONSI and EA contain conservation measures to reduce potential impacts of livestock on the gray wolf. The US Fish and Wildlife Service stated in their Letter of Concurrence that effects to the gray wolf would be insignificant and discountable and that implementation of conservation measures and monitoring would likely be effective at minimizing direct disturbance to the gray wolf. Therefore, it is unlikely that the selected alternative, in combination with conservation measures, would preclude the use of the area by gray wolf. Thus, I find that the Responsible Official considered the effects of the proposed action on the colonization of the gray wolf. Critical Habitat/Listed Wildlife Species Appellant Statement #13: Appellant states that cattle allotments in areas where grizzly bear and wolf populations are recovering should be retired to avoid conflicts between these species and commercial interests of cattle ranchers, which would also be economically efficient. DJ at 12. Response: I find that the effects to grizzly bear and wolf, including discussion of potential conflicts between these species and livestock, and the effects of discontinuing livestock grazing in the project area were adequately disclosed in the document. impacts of the proposed action and any alternatives. The effects of livestock grazing on the grizzly bear and gray wolf are disclosed in the EA at to and to Effects are also described in the Biological Assessment that was prepared for the US Fish and Wildlife Service (Project Analysis File, Folder 15, Biological Assessment). It was determined that there would be a potential for bear and livestock interactions, and an increased potential for wolf and livestock interactions under Alternative 2 (EA at 3-111, 3-113, and 3-114). The USDA Forest Service responded to comments related to the effects on the gray wolf, EA at Appendix F-20 (response 2-13), F- 21 (response 2-15), F-23 (response 2-23), and F-41 (response 2-75) and the grizzly bear, EA at Appendix F-20 (response 2-13), F-21 (response 2-15), and F-23 (response 2-23). The Forest also described conservation measures designed to reduce effects on the gray wolf and grizzly bear (EA at 2-11). The US Fish and Wildlife concurred with the effects determinations made for the gray wolf and grizzly bear in the Wildlife Report and Biological Assessment on June 17, 2011 (Project Analysis File, Folder 16, Letters of Concurrence). An economic analysis was completed and is located in the EA at through Page 7 of 20

13 Alternative 1 analyzes the direct, indirect, and cumulative impacts of discontinuing livestock grazing in the Libby, Little Bridge, Newby, and Poorman Allotments. The EA for this project considered a total of 10 alternatives, two of which were analyzed in detail. EA at 2-1. The Responsible Official determined that Alternative 2 best met the purpose and need for the project based on the analysis made in the EA. The US Fish and Wildlife Service stated in their Letter of Concurrence that effects to the gray wolf would be insignificant and discountable and that implementation of conservation measures and monitoring would likely be effective at minimizing direct disturbance. The US Fish and Wildlife Service also stated that the presence of livestock in the allotment increases the likelihood of livestock depredation and could result in the implementation of measures to discourage wolves from further depredation events. The US Fish and Wildlife Service also concluded that proposed conservation measures and the low abundance of grizzly bears in the area would lead to a discountable likelihood of negative interactions between bears and livestock. In the event of confirmed depredation, wolf control actions, if any, would be initiated by the US Fish and Wildlife Service as a separate federal action. Separate consultation would be required in the event of control actions and wolf control actions are not a part of this project. Therefore, the Responsible Official adequately addressed the potential conflicts of the proposed action on grizzly bear and wolf. Appellant Statement #14: Appellant states that the EA does not document the effects to wolves from allotment activities that occur within and outside of the denning area and denning period. DJ at 7. Response: I find that the EA adequately documented the direct, indirect, and cumulative effects to wolves from livestock grazing related activities that would occur within and outside the denning area and denning period. impacts of the proposed action and any alternatives. The EA fully analyzes the potential impacts to the gray wolf and their habitat in areas outside denning and rendezvous sites in the EA at to 3-110, 3-110, and This includes discussion of the no action alternative (Alternative 1), their ability to find prey, and the increased potential for wolf/livestock interactions within the analysis area. Impacts associated with grazing activities in or in close proximity to denning and rendezvous sites are addressed in the EA pages to The Forest Service responded to comments related to the effects on the gray wolf (EA at Appendix F-20 (response 2-13), F- 21 (response 2-15), F-23 (response 2-23), and F-41 (response 2-75)). The Forest also described conservation measures designed to reduce effects on the gray wolf (EA at 2-11). The US Fish and Wildlife concurred with the effects determinations made in the Wildlife Report and Biological Assessment (Project Analysis File, Folder 15, Biological Assessment) on June 17, 2011 (Project Analysis File, Folder 16, Letters of Concurrence). The US Fish and Wildlife Service stated in their Letter of Concurrence that effects to the gray wolf would be insignificant and discountable and that implementation of conservation measures and monitoring would likely be effective at minimizing direct disturbance. The Responsible Official adequately addressed the effects (direct, indirect, and cumulative) of livestock activities on wolves in and outside of the denning area and period. Appellant Statement #15: Appellant states that the Forest s determination of may affect, but not likely to adversely affect for wolves disregards that the Lookout Mountain Pack has been displaced by grazing activities. DJ at 7. Page 8 of 20

14 Response: I find the determination of may affect, but not likely to adversely affect for wolves does not disregard the effects (direct, indirect, and cumulative) on wolves in the project area. impacts of the proposed action and any alternatives. The direct, indirect, and cumulative effects on the gray wolf have been disclosed in the EA at through 3-112; the US Fish and Wildlife Service concurred with these effects on June 17, Determining whether the Lookout Pack has been displaced or the reasons for this are not within the scope of this project. In the event of confirmed depredation, wolf control actions, if any, would be initiated by the US Fish and Wildlife Service as a separate federal action. Separate consultation would be required in the event of control actions. Wolf control is not a part of this project. The rule and more detail are included in the response to Appellant Statements #13 and #14 above. Therefore, I find the Responsible Official did consider the effects on the gray wolf. Invasive Species Appellant Statement #16: Appellant states that the spread and control of invasive plants and weeds was not adequately presented and that cattle management activities would continue to contribute to noxious weed invasion through selective eating of native plants that would leave behind invasive plants, ingesting invasive plants and spreading seed through waste products, skin, fur, and hooves, and scarifying the soil which would create new habitat for invasive species to germinate, thus adversely affecting fish and wildlife habitat, in violation of ACS objectives and the Northwest Forest Plan. DJ at 14, 36, and 37. Appellant states that removing the cattle would be more economically efficient that trying to treat the spreading knapweed and other species. DJ at 15 and 37. Response: I find that the Responsible Official adequately addressed the spread and control of invasive species within the Libby, Little Bridge, Newby and Poorman Allotment Management Plan area. impacts of the proposed action and any alternatives. Discussion on invasive species can be found in Chapter 3 of the EA at to The analysis completed conforms to the requirements of Pacific Northwest Invasive Plant Program Final Environmental Impact Statement, Record of Decision (Forest Service 2005). The EA at 2-11 describes mitigation measures for Alternative 2, in which invasive plant species prevention standards are discussed. Appendix D in the EA at D-1 to D-4 describes the Invasive Plant Species Prevention and Management Strategy for grazing allotments. Appellant Statement #9 discusses the effects of the proposed action on fish and wildlife. The effects of discontinuing grazing are discussed under Alternative 1 in the EA. Direct, Indirect, and Cumulative Effects Water and Fisheries Resources Appellant Statement #17: Appellant states that the development/reconstruction of eleven water developments will adversely impact springs and downstream stream flows and that this impact has not been adequately considered and conflicts with the forest plan revision s objectives of managing these water resources within the range of natural variability. DJ at 7, 9 and 30. Page 9 of 20

15 Response: I find that the impacts to stream flows and springs are discussed in the EA and are consistent with the Forest Plan. impacts of the proposed action and any alternatives. The impacts of water development to springs and stream flows are addressed in the EA at 3-79, 3-59, 3-63, 3-65 to 3-74, and The soils report identified that new water development and reconstruction of existing ones would allow areas that had been previously impacted adjacent to springs to reestablish vegetation. Fencing that would exclude livestock from wet areas would allow re-establishment of vegetation and soil stabilization. Additional fencing and cattle guards would allow for better management of livestock, reducing late season grazing and allowing existing vegetation to remain intact to protect soils. The aquatics report indicated that small reductions in stream flow rates associated with water developments are unlikely to influence stream temperatures. Analysis of Objective 6 of the ACS found that re-authorizing grazing and operation of water developments are anticipated to have unsubstantial and immeasurable effects to the peak/base flow indicators. Until a decision is reached for Forest Plan revision, current standards and guidelines still apply, thus I find that the proposed action is consistent with all current Land and Resource Management Plans and I also find that the Responsible Official did discuss the impacts to stream flows and springs. Appellant Statement #18: Appellant states that the EA should include indirect effects of grazing to fisheries. DJ at 23. Appellant states that fisheries of concern will not be adequately protected from the direct and indirect effects of the proposed action. DJ at 28, 29, 30 and 31. Response: Please see the response to Appellant Statement #9, which documents the effects (indirect, direct, and cumulative) of grazing to fisheries. Appellant Statement #19: Appellant states that water quantity and quality of allotment water resources, springs and surface waters are not adequately protected and that retiring the Libby allotment, including the Smith/Elderberry and Alder units, would provide for resource protection for listed fish species, soils and other watershed values. DJ at 23, 26, 27, 29, 30, 31, 32, and 33. Response: I find that the Responsible Official discussed the effects to water resources, listed fish and soils. impacts of the proposed action and any alternatives. Alternative 1 is the no grazing alternative and the reasons for not selecting a no action alternative included the rationale grazing would not be allowed and would not result in an updated AMP as required by the Rescission Act. The DN/FONSI at 7 states the reasons for not selecting the no grazing alternative. Please see response to Appellant Statement #17 for additional information regarding impacts to water resources. Appellant Statement #20: Appellant states that the Forest is unable to provide specific water quality information, and that it is reasonable to expect that impacts to indicators associated with grazing will be Page 10 of 20

16 present, including soil compaction and erosion, and drying of intermittent streams and springs. DJ at 24 and 41. Appellant further states that data collected after the draft EA was published is inadequate to justify the proposed action, since the lower Libby Creek units have been in nonuse the past two years. DJ at 25. Response: I find that the effects to water quality and quantity are analyzed in the EA. Indicators associated with grazing will be used in the required annual monitoring to maintain or improve conditions to meet Forest Plan standards. impacts of the proposed action and any alternatives. The affected environment and potential environmental effects to water quality and quantity is found in the EA at 3-48 to 3-49, 3-53, 3-54, 3-58, 3-63, 3-81 to 3-92, 3-85, 3-89, 3-82, 3-84, 3-86, 3-88, Monitoring data collected by the forest will help maintain and improve water quality; these requirements are disclosed in the EA at 2-12 to 3-16, and in the DN/FONSI at 3, 4 and 5. Critical Habitat/Listed Fish Species Appellant Statement #21: Appellant states that critical habitat for Chinook salmon and steelhead was not adequately protected. DJ at 11. Appellant states that the expected impacts on listed species should be eliminated, not reduced. DJ at 17. Appellant states that the determination of likely to adversely affect indicates that fishes of concern were not adequately protected. DJ at 21. Response: I find that critical habitat for Chinook salmon and steelhead was adequately protected. The EA explained how expected impacts on listed species do not need to be eliminated and the determination of likely to adversely affect does not indicate that fishes of concern were not adequately protected. impacts of the proposed action and any alternatives. The Endangered Species Act does not require federal agencies to eliminate all impacts to federally listed species. Specifically, Section 7 of the Endangered Species Act (ESA) requires Federal agencies to insure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of listed species or modify their critical habitat. In the response to comments at Appendix F at F-20 and F-31(responses 2-12, 2-13, 2-53 and 2-54), and the DN/FONSI at 9-10 and 12-13, the Forest documents the rationale for being able to proceed with a likely to adversely affect call on steelhead and bull trout. The Forest Service prepared a biological assessment for bull trout and steelhead salmon, which was submitted to the regulatory agencies. As required by Section 7 of the ESA, consultation with the regulatory agencies occurred. The regulatory agencies, the US Fish and Wildlife Service and NOAA Fisheries, both issued biological opinions (BOs) to the Forest Service that allow the Forest to proceed with the project, under the terms and conditions they set forth. The DN/FONSI includes those terms and conditions to protect bull trout and steelhead. DN/FONSI at 9-10 and Other references to direct, indirect, and cumulative effects to salmonids are included in the following locations: EA at 2-5, 2-12, 2-16 to 2-17, 3-37, , F-15 (response 1-48), Project Record Folder 17, Biological Opinions, NMFS BO, pages 30/31, Project Record Folder 17, Biological Opinions, USFWS BO, pages 58 to 74, Folder 35, Laws/CEQ Guidance, Endangered Species Act. Page 11 of 20

17 Appellant Statement #22: Appellant states that millions of dollars are being spent in the allotment area to restore and protect spawning and rearing habitat for listed species, but that the decision would allow for 20% bank alteration in these same areas. Appellant states that continued grazing would negate the benefits of the restoration activities. DJ at 18 and 44. Response: I find that continued grazing would not negate the benefits of the restoration activities. impacts of the proposed action and any alternatives. The EA addresses cumulative effects to aquatic resources (EA at 3-61 to 3-63) and specifically mentions future aquatic habitat restoration (EA at 3-63). The effects of cattle on past aquatic habitat restoration is mentioned in the aquatic resources section of the EA at , 50. Responses 2-11 and 2-63 in Appendix F detail two restoration projects that will not be affected by cattle. More information about effects to ESA listed species is in the responses to Appellant Statements #5, #9 and #1. Northwest Forest Plan/Aquatic Conservation Strategy (ACS) 23-Appellant Statement: Appellant states that Northwest Forest Plan restrictions were either denied or ignored. Appellant s state that the grazing standard and guideline that allows the forest to adjust or eliminate grazing practices to eliminate impacts that reduce or prevent attainment of ACS objectives was not followed, because the Forest only reduced or minimized impacts versus eliminating impacts. DJ at 7, 8, 22, 23, 25, 29, 30, 31, 40, 42, 43 and 44. Appellant further states that the likely to adversely affect determination for bull trout and steelhead, coupled by the decreased water yield and quality that would occur by increasing the availability of spring water to cattle does not support the Forest s conclusion that ACS objectives would be met. DJ at 8, 40 and 41. Response: I find that the ACS objectives were addressed in the EA. The ACS Standard and Guideline referred to by the appellant is GM-1, which states adjust grazing practices to eliminate impacts that retard or prevent attainment of Aquatic Conservation Strategy objectives. The EA at 3-66 to 3-75 describes how grazing practices were adjusted to eliminate impacts that retard or prevent attainment of Aquatic Conservation Strategy objectives. This does not mean that there are not still impacts, it means that those impacts that retard of prevent attainment of ACS objectives were addressed by the proposed action and other project design features (EA at 3-74). More information about effects to ESA listed species is in the responses to Appellant Statements #9 and 321. Permit Non-use and Non-compliance Appellant Statement #24: Appellant states that the permittee has taken voluntary non-use for the 2010 and 2011 season, suggesting that managing his cattle as per the permit conditions was unacceptable. DJ at 9, 19, and 20. Appellant also states that even if non-use is taken, maintenance is still required and was not done, further adding to non-compliance with the terms of the permit. DJ at 20, 34 and 35. Response: I find that this appeal point was addressed in the EA. Page 12 of 20