Bark
Portland, OR 97212
(503) 331-3174
www.bark-out.org
Erin Black
Hood River Ranger District
6780 Highway 35
Mt. Hood/Parkdale, OR 97041
Via E-mail: [email protected]
Re: Long Prairie Preliminary
Analysis
Dear Ms. Black:
Thank you for sending
a copy of the Environmental Assessment (EA) for the Long Prairie Allotment. These comments are on behalf of Bark, Oregon
Natural Resources Council (ONRC), and our members who use the public lands in
the Long Prairie allotment area for a variety of purposes. Overall, we believe the Proposed Action
(Alternative 3) describes unacceptable watershed and riparian conditions that
are directly attributable to past and present livestock grazing on the
allotment. We firmly believe that a
period of long-term rest is necessary to ensure that the long-term productivity
of the site is restored. As such, we
recommend that the Hood River Ranger District choose the no grazing alternative
(Alternative 1) for this allotment.
Further,
we believe that no term permits should be reissued until you conduct a thorough
analysis of the allotment’s suitability for grazing, as defined in your
regulations.
I.
INTRODUCTION
The EA must comply with numerous federal rules and regulations including the National Environmental Policy Act (“NEPA”), 42 U.S.C § 4321 et seq., the National Forest Management Act (“NMFA”), 16 U.S.C § 1600 et seq., the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., the Administrative Procedures Act (“APA”), 5 U.S.C. § 706 et seq., as well as the Standards and Guidelines in the Northwest Forest Plan and the Mt. Hood National Forest Land and Resource Management Plan (“LRMP”). As such, the Forest Service’s analysis must consider the impacts of this project on threatened and endangered species, sensitive species, botanical species, riparian areas, soils, water quality, and wildlife habitat. Our comments are below.
II. COMMENTS SPECIFIC TO THE ALLOTMENT
MANAGEMENT PLAN
A.
The Proposed
Action
- Stocking Levels
According to the EA, the Proposed
Action would authorize a maximum of 105 cow/calf pairs on the Long Prairie allotment,
but would limit permitted numbers to 52 pairs until there is “an upward trend
in key, resource indicators.” EA at 4.
This is problematic because the adaptive management approach is based on
a vague and subjective standard, at least as it appears in the EA. How exactly will this “upward trend” be
determined? What amount of resource recovery is necessary to increase livestock
numbers? For example, would an upward
trend mean merely meeting utilization standards and stubble height requirements
or would the long term effectiveness indicator monitoring have to show a
recovery trend? If the latter applies,
how would the MHNF define a recovery trend?
The Forest Service (FS) must disclose the answers to these questions in
its analysis so the publi
Further, the FS must consider the maximum number of cow/calf pairs when discussing the direct, indirect, and cumulative effects of the proposed alternative since the selection of the alternative would authorize “up to” 105 cow/calf pairs. Throughout the EA, the FS merely looks at the impacts of 52 cow/calf pairs, which does not adequately assess the impacts of the action on threatened and endangered species, sensitive species, MIS, botanical species, water quality, and wildlife habitat.
Additionally, this alternative is problematic because the FS proposes to incrementally increase stocking levels despite the decrease in acreage on the allotment due to the private land exclusion and the extensive overutilization in recent years. First, the size of the allotment was reduced in 2004 by 950 acres since the private land previously utilized by permittees is no longer functioning, as a result of harvest activity. EA at 15. Consequently, greater utilization of the remaining acreage on the allotment will occur. Second, overutilization has been prevalent on the allotment since monitoring sites were first established in 1991 and has continued to occur on the allotment since the active permit numbers were lowered to 52 pairs in 2003. See EA at 17. Overutilization will only increase now that the allotment is smaller in size. Further, increasing the numbers of permitted cows on the allotment will only exacerbate the detrimental effects on the degraded riparian areas, despite the measures proposed to reduce the impacts in the proposed action.
- Mitigation of Riparian Damage
While we commend the FS for attempting to curtail riparian damage on the allotment by proposing fencing and new turn-out/gathering locations, the FS should instead consider a preferred alternative that reduces the permitted livestock numbers or retires the allotment altogether (this will be discussed further in the NEPA section). Fencing is known to inhibit the migration and dispersal of mammals and can be lethal to birds, especially fencing in the proportions that are suggested in this proposed action. Further, the fencing proposed here will not keep the cows entirely out of riparian areas, so will not curb the water quality problems on this allotment. For instance, cows will still be able to access the headwaters of North Fork Mill Creek, which is on Oregon’s 2002 303(d) list of impaired water bodies for stream temperature. EA at 29. The EA extensively discusses damage that has been documented by its own scientists on the headwaters of this stream throughout the EA. See EA at 29-30; 60; 66; 87. In addition, though the new corral location would be moved to the north of the southern portion of Long Prairie along West Fork Neal Creek, it would merely transfer existing impacts, such as soil compaction and riparian vegetation loss, to another location within the riparian area. See EA at 85. Also, the fence along West Fork Neal Creek would only be 150 yards long. The damage documented by FS personnel in 2004 monitoring found 1 cattle stream crossing or bank trampling every 50 feet along a half mile section along West Fork Neal Creek in the Long Prairie pasture (27 areas of bank trampling and 23 stream crossings). EA at 29-30. How will a 150 yard fence keep cows out of 880 yards of the stream?
B.
Monitoring
The monitoring provisions in the proposed action provide a good start to improving conditions on the allotment, but they do not go far enough. The proposed action merely calls for monitoring of bank alteration, stubble height, and riparian photo points at the end of each grazing season and monitoring of greenline vegetation composition, woody species regeneration, and non-vegetated width every 3 to 5 years. EA at 10. Monitoring should be conducted for all of these indicators before, during and after every season to adequately assess the impacts to the allotment resources and make changes accordingly. If key areas are not frequently monitored, how can overutilization and riparian degradation be prevented? At the very least, all of the indicators should be monitored pre- and post-season once a year.
C.
Other Issues
What is the stubble height standard for key areas on the allotment? The FS notes that it started to read utilization in terms of “residual stubble height,” but fails to state what that standard is. The FS must disclose that information in the NEPA document.
The range conservationist for the
Mount Hood National Forest (MHNF) determined that the current range condition
on the allotment is “early seral status with an upward trend.” See EA at
18. He came to this conclusion based on
the historic use over the last 13 years, rather than the monitoring
results. In doing so, he claims that the
permitted livestock numbers on the allotment have been 52 pairs since
1995. Id. However, according to
another section in the EA, there were 125 pairs permitted on the allotment from
1995 until 2002. In 2002, one permittee
relinquished his grazing permit to the FS.
Then, in 2003, the permit was reduced to 52 pairs. See EA
at 15. Which information is correct?
III. NATIONAL ENVIRONMENTAL POLICY ACT
A. The EA Contains an Inadequate Range of
Alternatives.
NEPA and regulations implementing it require
agencies to consider a range of reasonable alternatives to an agency action in
preparing environmental review documents.
NEPA requires agencies to “study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources.” 42
U.S.C. § 4332(2)(E).
Council on Environmental Quality
("CEQ") regulations implementing NEPA and the courts make clear that
the discussion of alternatives is "the heart" of the NEPA process. 40
C.F.R. § 1502.14. To "sharply
define the issues and provide a clear basis for choice among options by the
decision maker and the public," environmental documents must explore and
evaluate "all reasonable alternatives." Id.; see also
Forest Service Handbook 1909.15-92-1 § 14, 57 Fed. Reg. 43,180, 43,198 (1992).
Although an agency need not consider
every possible alternative, it must consider reasonable alternatives
"necessary to permit a reasoned choice." Headwaters, Inc. v. Bureau of Land
Management, 914 F.2d 1174, 1180-81 (9th Cir. 1990). Put differently, it must consider those
alternatives that "would alter the environmental impact and the
cost-benefit balance." Bob Marshall Alliance, 852 F.2d at 1228,
quoting Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy
Comm'n, 449 F. 2d 1109, 1114 (D.C. Cir. 1971).
In the Long Prairie EA, the FS
merely considered no grazing, current management, and the proposed action. This
is not a reasonable range of alternatives because the FS failed to allow for
any possibility between no grazing and current management, despite the
well-documented riparian degradation occurring on the allotment. Current
management allows for a total of 105 pairs between two permits, though one
permit for 53 pairs has been inactive since 2002 (totaling 52 pairs since 2002).
See EA at 15. Similarly, the proposed action allows for 105
pairs over time with 52 pairs to start. See
EA at 8. Thus, the proposed action does not reduce the permitted number of
cows on the allotment, as the FS tries to suggest in the EA, but rather delays
the increase until the FS deems that there is an “upward trend” in key areas.
Therefore, to meet the above NEPA requirements,
the Forest Service should at the very least consider an alternative that would
permit grazing but significantly limit the number of cows permitted to better
protect degraded riparian areas. This is
a viable alternative and thus must be considered to avoid NEPA violations. “The existence of a viable but unexamined
alternative renders an environmental impact statement inadequate.” Kootenai Tribe of Idaho v. Veneman,
313F.3d 1094, 1129 (9th Cir. 2002). The
same applies for an EA.
In addition, allotment retirements and voluntary
and/or mandatory permittee conservation agreements are viable alternatives that
should be considered in the analysis of alternatives. Among these are:
1.
Permanently retiring allotments or
portions of allotments when the current permittee transfers or otherwise
divests of their contract and interests;
2.
Voluntary agreements with permittees to
work towards conservation goals by resting allotments for a period of months or
years, conducting and/or financially compensating for needed restoration work,
terminating grazing allotments in sensitive areas, reducing livestock numbers
to levels which do not adversely impact the natural resources of allotments or
concentration areas within the allotments, etc;
3.
Mandatory measures and contract
provisions which work towards conservation goals by:
a.
resting allotments for a period of months
or years;
b.
conducting needed restoration work;
c.
requiring financial compensation for
natural resource damages incurred from livestock grazing;
d.
terminating grazing allotments in
sensitive areas;
e.
reducing livestock numbers to levels
which do not adversely impact the natural resources of allotments--including
concentration areas within the allotments,
f.
raising the allotment fees to cover the
full costs of the now federally subsidized “welfare ranching” programs, and to
cover the extensive necessary restoration across the region’s public lands due
to past and ongoing livestock grazing practices.
B.
The FS Must Disclose All
of the Impacts of the Proposed Action.
The FS is required to disclose
impacts of its proposed actions on the human environment. "NEPA procedures
must insure that environmental information is available to public officials and
citizens before decisions are made and before actions are taken." 40 C.F.R. § 1500.1(b). "NEPA requires consideration of the
potential impact of an action before the action takes place." Tenakee
Springs v. Clough, 915 F.2d 1308, 1313.
When reviewing an EA, the courts will "make pragmatic judgment as
to whether the environmental impact statement's form, content and preparation
foster both informed decision making and informed public participation."
While the FS proposes to build substantial new fences, it does not disclose the impacts that these fences could have on wildlife species. Fences are known to restrict the movements of many mammal species. Further, birds, like the Northern Spotted Owl, get caught in barbed wire fences, such as those suggested in the proposed action of the EA. Fencing would inhibit the ability of wildlife to disperse and could capture individuals in the barbed wire. The failure of the FS to even disclose these and other impacts violates NEPA.
Additionally, the FS has failed to disclose how this fencing would be erected. Presumably there will be impacts from placing fencing in more remote locations. The use of helicopters or off-road vehicles and the associate impacts were never disclosed or considered in preparation of this EA.
The FS is also required to "disclose the history of success and failure of similar projects." Sierra Club v. Morton, 510 F.2d 813, 824 (5th Cir. 1975); National Wildlife Federation v. USFS, 592 F. Supp. 931, 943 (D. 1 Or 1984). The EA is devoid of any examples of similar projects that have succeeded or failed. The FS needs to disclose this information to comply with NEPA.
Additionally,
the EA fails to adequately disclose or even discuss the impacts of the proposed
action on botanical species. See EA at
87-88. At the
time of the Mill Creek Watershed Analysis, insufficient information was
available about the local flora and fungi, lichen and broyophytes on this
allotment. However, it was clear that
sensitive plant populations were being harmed by cattle, with evidence of
manure concentrations and trampling in sensitive plant habitat along Surveyor’s
Ridge. There was also the recommendation that the habitat areas of R6 sensitive
plants should be omitted from open range grazing allotments.” Mill Creek Watershed Analysis at 35.
Yet, the FS failed to provide any information on the impacts of any of the
alternatives on botanical species, other than a one line risk assessment
finding from the botanical biological evaluation, concluding that potential
impacts cannot be avoided and are not expected to be significant. See EA at 88. It is doubtful that the
watershed analysis would recommend ommission of R6 sensitive plant habitat
areas in grazing allotments if grazing does not have a significant detrimental
effect of their habitat. The FS must disclose these impacts to avoid violating
NEPA and thwarting the public participation process that NEPA requires.
C. The EA Must Disclose the Full Economic
Costs of the Proposed Action.
The
NEPA document for this proposal fails to disclose the full economi
1.
Managing
and monitoring this livestock grazing allotment;
2.
Cost
share agreements between the USFS and the permittees;
3.
Restoration
needed due to past livestock grazing on the allotment;
4.
Restoration
needed or in the likely foreseeable due to livestock grazing on the allotment;
5.
All
and any other financial or resource subsidies involved in the grazing allotment
and its management processes.
It
is imperative to making a reasonable decision as required by the NEPA that both
the public and the decision-maker have all the pertinent information concerning
the consequences and responsibilities inherent in the decision for this grazing
allotment proposal. As allotment management and resultant restoration efforts
require financial expenditures, these must be disclosed and assessed. The best
interests of the public, wildlife, and natural resource heritage of us all must
be weighed against the often considerable financial and ecological costs of
what has so aptly been termed “welfare ranching”—which too often benefits a few
individual ranchers at the expense of the land, public, and government. The
analysis must explore alternatives that ensure the costs of managing,
maintaining, and restoring this allotment are not borne by the public or
federal treasury, but by the individual permittees who run commercial livestock
operations. The continued use of public lands by permittees must honor
ecological conservation goals. The use of public lands must not become abuse.
Livestock grazing is a privilege, not a right. It is the duty of the USFS, entrusted
with “caring for the land and serving the people,” to uphold federal
conservation goals, the needs of the land, and the best interests of the
greater public. Wherever these interests, goals, and objectives conflict and
cannot be otherwise resolved, it is the responsibility of the agency to revoke
or terminate livestock grazing allotment permits. If the EA fails to address
this responsibility, it will undoubtedly violate NEPA.
D. An EIS is Warranted.
The NEPA - 42 U.S.C. §§ 4321 et seq., requires the Forest Service (FS) to produce an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(C). An EIS must be prepared “[i]f substantial questions are raised whether a project may have a significant effect upon the human environment.” Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1778 (9th Cir. 1982) (internal citations omitted). For the reasons listed below, we think that an EIS is warranted.
- Public
Safety
The CEQ frames NEPA's application under the broad term "human environment." 40 C.F.R. 1508.14. Included in the "human environment" are not only the effects on the physical environment, but also the "relationship of people with that environment" including "social" impacts "interrelated" to the physical impacts. Id. Thus, the CEQ regulations require that when making a determination of significance, the agency must consider "the degree to which the proposed action affects public health or safety." 40 C.F.R. 1508.27(b)(2).
Although the EA acknowledges impacts on recreation associated with the project due to fence lines and improvements, it lacks the analysis required to allow the decision maker to make an informed determination of significance based on the effects of the project on public safety and recreation. Id. For example, according to the EA, there are two heavily used hiking/biking/horse trails within allotment boundaries, as well as an OHV trail and a popular horse camp. In addition, the allotment area is extensively used by locals for mushroom hunting and berry picking. EA at 93. Yet, the Forest Service utterly fails to discuss the degree to which grazing up to 105 cow/calf pairs will affect the safety of the public while using the forest for recreation purposes. Livestock can pose a serious threat to the public when encountered on a trail or at a camp, as has been extensively documented on allotments across the West. As such, the approval of the proposed action could result in a serious public safety concern that should at the very least be analyzed in the EA.
Further, the EA states that the Forest Service plans to build more trails in the future due to the demands of recreation users and that recreation pressure will continue to increase. EA at 96. More recreation increases the threats to public safety due to livestock grazing, thus raising substantial questions as to whether the proposed action will have a significant effect on the human environment. Consequently, a full EIS is warranted for this project.
- Cumulative
Impacts
Environmental Assessments must reveal a thorough
analysis of the "environmental impacts" of proposed actions, but also
the cumulative impacts. 40 C.F.R. §
1508.9. CEQ regulations succinctly
define cumulative impact as “the impact on the environment which results from
the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can result from
individually minor, but collectively significant actions taking place over a
period of time.” 40 C.F.R. § 1508.7; see
also 40 C.F.R. § 1508.8 (effects include ecological, aesthetic, historical,
cultural, economic, social or health impacts, whether direct, indirect or
cumulative); 40 C.F.R. § 1508.25(c) (EIS shall consider three types of impacts,
including cumulative effects); 40 C.F.R. § 1508.25(a)(2) (EIS’s must analyze
the effects of actions "which when viewed with other proposed actions have
cumulatively significant impacts").
Forest Service policy on NEPA
closely follows the CEQ regulations in regard to the necessity of analyzing
cumulative effects. That policy states:
Individual actions when considered alone may not
have a significant impact on the human environment. Groups of actions, when
added together, may have collective or cumulative impacts which are
significant. Cumulative effects which occur must be considered and analyzed
without regard to land ownership\boundaries. Consideration must be given to the
incremental effects of the past, present, and reasonably foreseeable related
actions of the Forest Service as well as those of other agencies and
individuals.
Forest Service Handbook 1909.15-92-1
§ 15.1, 57 Fed. Reg. 43180, 43199 (1992).
The EA must include a thorough analysis of
cumulative effects and take the "hard look" required by NEPA. The
analysis must analyze or disclose the potential for cumulative significant
impacts on any other value or resource (e.g. water quality, vegetation, recreation,
etc.) on the allotment, excluding wildlife. One federal court has held
explicitly that a limited cumulative effects analysis is blatantly illegal:
The failure to consider whether there is a
potential for cumulative impacts on any aspect of the environment except
wildlife species as a result of these projects cannot be characterized as a
"truly informed exercise of discretion," nor can it be said to amount
to the requisite 'hard look' at the environmental consequences of granting the
permit in question.
Alpine Lakes Protection Society v.
The
failure to conduct a serious cumulative effects analysis would thwart the
underlying purpose of NEPA, which is to "insure that environmental
information is available to public officials and citizens before decisions are
made." 40 C.F.R. § 1500.1(b); see also
Sierra Club v. Watkins, 808
F.Supp. at 858.
Consequently, the Forest Service
cannot assess the impact of issuance of a term grazing permit on this allotment
in isolation. Rather, it must examine the effects of past and reasonably
foreseeable recreation, logging, roads, OHV use, fire suppression, development
and other activities throughout the watershed. In addition, it must analyze the
cumulative effects of 100 years of livestock grazing on this allotment and
other allotments for which NEPA analysis is concurrently being conducted. See Inland Empire, 992 F.2d at
981 (Forest Service may not analyze timber sales in isolation).
While the FS provides a discussion of the cumulative
impacts throughout the EA, its analysis is problematic and incomplete because
it 1) merely considers the effect of 52 cow/calf pairs; 2) relies on the false
premise that fencing and water improvements will offset cumulative impacts; and
3) looks at one activity at a time coupled with the proposed action, rather
than the collective actions and their combined impact. In addition, the FS
fails to even discuss cumulative effects at all in relation to botanical
species and recreation. This is a
blatant violation of NEPA.
First, when the FS analyzes cumulative impacts
throughout the EA, it only considers the effects of 52 cow/calf pairs coupled
with other individual actions rather than the 105 cow/calf pairs that could
eventually be authorized on this allotment under the proposed action. Despite the fact that 52 pairs would be
authorized to start, 105 pairs could be authorized if there is “an upward trend
in key, resource indicators.” See EA at 4. As such, the authorization of 105 pairs is a
“reasonably foreseeable future action” that must be considered when analyzing
cumulative impacts on the watersheds and other resources in the allotment area.
Second, the FS continually claims throughout the
EA that the fencing and water improvements will minimize cumulative
effects. While the proposed action
includes some fencing of riparian areas, it does not completely remove cows
from those areas. For instance, on North
Fork Mill Creek, the proposed fence will not protect the headwaters and there
is no guarantee that downed wood will prevent access to this 303(d) listed
stream. See EA at 9. Yet, when the FS looks at the risk of
cumulative effects relating to water temperature increases, for example, it
states that vegetation recovery in the allotment area due to fencing coupled
with recovery in harvest units on North Fork Mill Creek (20% riparian reserve
harvested) should result in a very small reduction in stream temperatures. See EA at
45. However, the FS ignores the fact that cows can still access that
stream.
Further, in discussing the cumulative impacts in
relation to West Fork Neal Creek, the FS repetitively claims that fencing and
relocating the turn-out and gathering areas will minimize cumulative effects. See EA
at 45-46, 92-93. However, the fence
that the FS proposed to build along West Fork Neal Creek only extends 150
yards. The FS summer and fall 2004 monitoring results for found bank trampling,
channel downcutting, sediment introduction, and riparian vegetation removal
along a half mile section of the stream in the Long Prairie area (27 areas of
bank trampling and 23 cattle crossings, which averaged to 1 crossing or
trampling every 50 feet). EA at
9. A half mile equals 880 yards, so how
is a 150 yard fence going to keep cattle completely out of the riparian area?
In addition, the FS is relocating the gathering corral to another location
along the riparian area in West Fork Neal Creek, which it admits will move the
existing impacts of soil compaction and riparian vegetation loss to another
location within the riparian reserve. See
EA at 85. How will this minimize
cumulative effects?
Third, the FS merely looks at one activity at a
time coupled with grazing on the allotment, rather than looking at the effect
of the collective actions of grazing, logging, roads, OHV use, and recreation
on each stream and the watershed as a whole.
For instance, in the above example of the cumulative impact analysis
relating to water temperature increases on North Fork Mill Creek, the FS merely
discusses riparian vegetation recovery due to measures planned in the proposed
action (e.g. fencing) coupled with recovery in previously harvested units. In
doing so, the FS fails to examine the impacts of future logging projects, such
as fuel reduction projects in the Mill Creek watershed, rampant OHV use
throughout the allotment, and future increases in OHV use and recreation, which
will further impact stream ban
Another example of the FS failure to adequately
analyze collective actions occurs in the cumulative impact analysis of sediment
in the watersheds. See EA at 32, 42. In its analysis of sedimentation, the FS
discusses road density and grazing, stating that road density in the North Fork
Mill Creek watershed is 3.2 mi/mi2 and 4 mi/mi2 in the West Fork Neal Creek
watershed, which suggests the potential for higher levels of sediment (above 3
mi/mi2). The FS then dismisses the cumulative impacts, stating that the risk of
cumulative impacts will lower under the proposed action due to fencing and new
turn-out locations.
Additionally, in its discussion of the
cumulative effects on Northern Spotted Owls, the FS states that “there will be
no measurable change in cumulative effects with or without grazing.” EA at
75. However, in its cursory analysis,
the FS merely looks at the effects of “disturbance related activities such as
horseback riding, mountain biking, atvs, hiking hunting, and driving.” Id. The FS must consider habitat modification
associated activities in addition to disturbance/harassment associated
activities in its analysis of cumulative impacts to fully comply with NEPA.
Consequently, the FS must consider the effects of past, present, and future
logging on private and public lands adjacent to the allotment and surrounding
watersheds.
IV.
NATIONAL FOREST
MANAGEMENT ACT
A.
The Forest Service Must
Evaluate the Allotment’s Suitability for Grazing.
To
comply with NFMA, the FS must conduct a thorough analysis of the Long Prairie
allotment’s suitability for grazing prior to issuing term permits for the allotment.
Grazing suitability is something completely different than grazing capability,
which merely determines whether forage is accessible to cows. The full text of 36 C.F.R. § 219.20 reads:
In
forest planning, the suitability and potential capability of National Forest
System lands for producing forage for grazing animals and for providing habitat
for management indicator species shall be determined as provided in paragraphs
(a) and (b) of this section. Lands so identified
shall be managed in accordance with direction established in forest plans.
(a) Lands suitable for grazing shall be identified and their
condition and trend shall be determined.
The present and potential supply of forage for livestock, wild and
free-roaming horses and burros, and the capability of these lands to produce
suitable food and cover for selected wildlife species shall be estimated. The use of forage by grazing and browsing
animals will be estimated. Lands in less
than satisfactory condition shall be identified and appropriate action planned
for their restoration.
(b) Alternative range management prescriptions shall
consider grazing systems and the facilities necessary to implement them; land
treatment and vegetation manipulation practices; and evaluation of pest
problems; possible conflict or beneficial interactions among livestock, wild
free-roaming horses and burros and wild animal populations, and methods of
regulation these; direction for rehabilitation of ranges in unsatisfactory condition; and comparative cost efficiency
of the prescriptions.
36
C.F.R. § 219.20.
36 C.F.R. § 219.3 further defines
“suitability” as “the appropriateness of applying certain resource management
practices to a particular area of land, as determined by an analysis of the
economic and environmental consequences and the alternative uses forgone. A
unit of land may be suitable for a variety of individual or combined management
practices.” 36 C.F.R. § 219.3.
An analysis of ‘the economic and
environmental consequences of the alternative uses foregone’ must be conducted
to determine if commercial livestock production is even appropriate in the Long
Prairie Allotment. This analysis must collectively take into account the
impacts on federally listed and Forest Service Region 6 sensitive species, water
quality, recreation and other public values that will undoubtedly be impacted
if you decide to re-issue a term grazing permit for this area. This analysis must also include an assessment
of the costs and benefits of range improvements, fencing, and administration.
The cost of improvements is ludicrous considering the actual amount of money
the permittee obtains per AUM per year.
The NFMA requires management of
national forest system lands in a manner that "maximizes long term net
public benefits.” 36 C.F.R. § 219.1(a). This requirement is found in the Forest
and Rangeland Renewable Resources Planning Act, as well. The FS's planning
regulations have defined the term "net public benefits" as the
"overall value of positive effects (benefits) less all associated inputs
and negative effects (costs)." The NFMA requires a sophisticated
consideration of benefits and costs, including use of both market and
non-market methods of determining existing and future resource values, methods
to determine opportunity costs, and use of best available quantitative and
qualitative techniques. 36 C.F.R. § 219.12(e), 219.12(f)(2), 219.1(b)(12).
Costs and benefits must be assessed not only from the perspective of the FS,
but also from the perspective of "all other private and public"
interests. 36 C.F.R. § 219.12(g)(3)(i).
In preparing this EA, the FS must
meet the substantive requirements regarding economic analysis set forth in the
NFMA. Specifically, the FS must incorporate a wide range of external economi
The NMFA contains specific
requirements that the FS must follow in addressing actions on national forests.
One such requirement is that the FS identifies “the suitability of lands for
resource management.” 16 U.S.C. §
1604(g)(2)(A). Among other things, this
means that the FS must determine “in forest planning the suitability and
potential capability of the national forest system lands for producing forage
for grazing animals and for providing habitat for management indicator
species.” 36 C.F.R. § 319.20. Though a
‘no-grazing’ alternative is included in the EA, the benefits of that
alternative to wildlife, watersheds, and non-game species are not fully
analyzed. Without answering the
absolutely crucial question of this land’s particular suitability for continued
grazing, the agency fails to determine the appropriateness of its actions as
stipulated in 36 C.F.R. § 219.3.
In this particular allotment,
livestock grazing—from strictly an economic efficiency standpoint—does not
serve the broader public interest. This
is particularly true when livestock grazing occurs in deer and elk habitat,
valuable fisheries habitat, important recreational areas, Botanical Areas, key
watersheds, and riparian areas– which is the case for this allotment. For example, research shows that the
net-income to local communities produced by allocating public forage
exclusively to native game is much more valuable than forage allocated to beef
cattle.
It is quite clear that the intent of
the NFMA regulations is to combine environmental and economic analyses that
then enable the agency to maximize net public benefit. By not conducting this type of analysis for
all uses of the land, the FS will have failed to consider whether permitting
grazing on allotment makes economic sense, despite the clear requirement of 36
C.F.R. § 219.3 that it do so.
There
is no evidence that the Forest Service has ever considered the relative environmental
gains that could be achieved by closing the entire allotment to livestock use.
Likewise, although national forests include valuable botanical, recreation, and
fishery values, nothing in the plan shows that the FS considered that the area
might be better suited to recreation than to grazing. In addition, the analysis
must consider what changes in the levels and types of recreation would result
from a discontinuation of grazing in portions of the allotment, or the entire
allotment.
Under the new NFMA regulations, areas identified as suitable for grazing must be "compatible with desired conditions and objectives" for the area. 70 Fed. Reg. 1057 (36 CFR 219.7(2)(iv)); 70 Fed. Reg. 1059 (36 CFR 219.12(a)). The grazing proposed here is not compatible with sensitive, MIS, and other wildlife, aquatic species, and sensitive native plants. Nor is it compatible with water quality objectives. Finally, any determination that the Long Prairie allotment is "suitable" for grazing is, under the new regulations, a determination that is not final until the specific decision approves the use. Such use for grazing should not be approved here.
B.
The Forest Service Must
Maintain Viable Populations of MIS and Sensitive Species.
The Forest Service is required by the NFMA regulations to collect population trend data for Management Indicator Species (MIS) and sensitive species to fulfill its duty to maintain population viability. 36 C.F.R. §§ 219.19, 219.26. The courts have determined that this duty cannot be carried out by simply monitoring habitat, but requires population surveys. Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999).
The NFMA regulations create a general obligation that the Forest Service
gather and keep quantitative data to ensure species diversity in the planning
area, stating that “[i]nventories [of plant and animal communities and tree species]
shall include quantitative data making possible the evaluation of diversity in
terms of its prior and present condition.” 36 C.F.R. § 219.26. Additionally, “[p]opulation trends of the
management indicator species will be monitored and relationships to habitat
changes determined.” 36 CFR 219.19(a)(6). While the FS will argue that these
are old regulations, the new regulations do not meet the statutory burden of
NFMA.
Further, the
new NFMA planning regulations make clear that "[d]uring the transition
period, pending or proposed projects remain subject to the applicable forest
plan." 70 Fed. Reg. 1052. Even under the new regulations, the MHNF is
still required to consider "data and analysis relating to habitat unless
the plan specifically requires population monitoring or population surveys for
the species." 36 C.F.R. §
219.14(f). In any case, the MHNF does
not have adequate habitat analysis to make a reasoned decision on the Long
Prairie EA. The FS should conduct
detailed population trends of MIS and sensitive species on the allotment,
including deer and elk, since both deer and elk are MIS of high concern in the
Mt. Hood National Forest (the FS barely mentions deer and elk in its effects
analysis—see EA at 77). This is especially true considering the very
high road density on the allotment (5.03 mi/mi2), which exceeds LRMP
requirements (see discussion in next section). See EA at 73. Moreover, though site-specific monitoring may not be
required under the new MIS regulation, the MHNF must have some basis to make
its decision that demonstrates it is in compliance with the NFMA requirement to
provide for diversity when it issues its decision.
3.
The Forest Service Must
Comply with Standards in the LRMP.
The Forest and Rangeland Renewable Resources Planning Act, 16 U.S.C. § 1600 et seq. as amended by NFMA, requires grazing permits to be consistent with the MHNF’s Land and Resource Management Plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 210. The MHNF LRMP has special protective measures for riparian areas. These riparian protection zones are at risk for this project due to livestock’s preference for grazing in riparian areas.
The LRMP requires that within a hundred feet of a riparian area, no more than 10% of a project activity area should have exposed or compacted soils and at least 95% of the effective ground cover shall be maintained, including in non-forested riparian areas. MHNF LRMP, FW-080; FW-082; FW-105; FW-123; FW-124. Also, “[g]round disturbing activities should not occur in saturated soil areas.” MHNF LRMP, FW-083. The FS fails to discuss how these LRMP requirements will be met. Through the FS’s cursory discussion of the general impacts on soils in riparian areas on the allotment, it seems that the grazing impacts, such as soil compaction and riparian vegetation loss will merely be shifted to another location on West Fork Neal Creek as a result of the holding pasture being relocated. See EA at 85. In addition, as previously mentioned, cows will still have access to the headwaters of North Fork Mill Creek and portions of West Fork Neal Creek, so the FS claims in the EA that “full soil recovery” will occur along those creeks are exaggerated at best. See EA at 85-86. The FS must discuss how these LRMP requirements will be met to avoid violating NFMA.
The LRMP also mandates that there
be no management practices causing detrimental changes in water
temperature or chemical composition, blockages of water courses, or deposits of
sediment which seriously and adversely affect water conditions or fish
habitat. 36 C.F.R. §219.27(e); MHNF
LRMP, FW-060. Additionally, ban
The MHNF LRMP provides standards
for the management of threatened, endangered, and sensitive plants and
animals. Among the standards listed in
the LRMP are the following: (1) threatened, endangered, and sensitive plants
and animals shall be identified and managed in accordance with the Endangered
Species Act (1973), the Oregon Endangered Species Act (1987), and FSM 2670; (2)
habitat for threatened, endangered and sensitive plants and animals shall be
protected and/or improved; (3) Biological Evaluations shall be prepared for all
Forest Service planned, funded, executed, or permitted programs and activities
for possible effects on endangered, threatened or sensitive species; and (4)
Species Management Guides shall be prepared, in accordance with Northwest
Region species recovery plans, to address the effects of land management
activities and identify opportunities to maintain or enhance habitat for plant
and animal species which may frequently conflict with standard management
practices. MHNF LRMP FW-174; FW-175;
FW-176; FW-179. The EA states that three
R6 sensitive plants are on the allotment, but it fails to provide a discussion
based on the LRMP standards. Although a
couple of the species occur in Surveyor’s Ridge, which will be minimally used
in the proposed action, the EA lacks information about the effects of land
management activities on the plant species.
Also, though it references the Biological Evaluations that have been
prepared, the EA does not provide any information about the results of those
evaluations, nor does it say how the sensitive plants will be managed or
protected.
In addition, the LRMP requires that the open road density between December 1st and April 1st not exceed 1.5 mi/mi2 to protect the deer and elk winter range on this allotment. MHNF LRMP, B2-028. The FS not only includes the wrong standard in the EA, but acknowledges that this standard is far exceeded on the allotment on which the road density is 5.03 mi/mi2. EA at 73. Yet the FS says nothing about this violation of NFMA in its analysis. Since deer and elk are MIS species of high concern in MHNF, why does the FS fail to discuss this issue? How can the FS accurately determine the impacts of the proposed action on these species if know surveys have been conducted to determine the population viability of these species? The FS must discuss this issue in its analysis and must lower the road density on the allotment to 1.5 mi/mi2 to avoid further violating NFMA.
Additionally,
according to the LRMP, implementation of control measures of invasive plant species
in areas affected by grazing, including prevention and early treatment. MHNF
LRMP, FW-301. The relationship between
grazing and introduction of noxious weeds is well understood. As a result of
the high level of infestations on Mt. Hood National Forest and nearby forests,
a planning process is underway to address the spread of noxious weeds on the landscape
and to better understand the cost—both economic and environmental—of their
spread (as mentioned in the EA at 89). It is premature, therefore, to authorize
an activity which could, upon the completion of said analysis, be determined to
be detrimental to the landscape. In the meantime, it would be prudent to take
preventative measures against further infestations by halting activities that
cause the problem in the first place. Currently we do not have a complete
understanding of the current level of infestation across the planning area.
However, a preliminary map provided by the Site Specific EIS Team on Invasive
Plants shows that the Long Prairie area is targeted for treatment due to
problematic populations of noxious weeds. Such treatment could involve the
application of toxic herbicides, which have their own adverse effects on the
landscape, affecting wildlife, drinking water and human health, to state just a
few. Thus, the Long Prairie NEPA document should analyze and include the
effects of pesticide application, which will be likely as a result of grazing.
V. CLEAN WATER ACT
The Clean Water Act (CWA) requires the Forest
Service to ensure that the proposed livestock grazing on this allotment will
not cause or contribute to violations of water quality standards in the streams
on the allotments. See 33 U.S.C.
§ 1323; Northwest Indian Cemetery Protective Ass’n V. Peterson, 795 F.
2d 688, 697 (9th Cir. 1986). Livestock
grazing can and does degrade water quality by increasing the levels of
pollutants including fecal coliform, bacteria, suspended solids, dissolved
solids, and biological oxygen demand. The Forest Service recognizes that the
streams have an ‘impaired’ water quality rating due to sediment in the stream
caused by reduced stream side vegetation and destabilized stream banks.
Further, many of the designated uses, such as high quality coldwater fisheries,
are not fully supported due to siltation, turbidity, stream bank
destabilization, and reduction of riparian vegetation from grazing.
Under the CWA, states must place those waters
that are not meeting the water quality standards designated by the state on the
303(d) list. 33 U.S.C § 1313(d)(1)(A)-(B). All federal agencies must comply with state
water quality standards, including the anti-degradation policy. 33 U.S.C. §
1323(a); See also Idaho Sporting Congress
v. Thomas, 137 F.3d 1146, 1153 (9th Cir. 1989).
North Fork Mill Creek, which runs through the
Long Prairie allotment, is on Oregon’s 2002 303(d) list of impaired water
bodies for stream temperature. EA at
29. The listed segment begins three
miles downstream from the national forest boundary. Id. The state of Oregon
seven-day average maximum standard for North Fork Mill Creek is 16.0°C and
18.0°C for West Fork Neal Creek. Id. The proper functioning threshold is 13.9°C in
both of these streams.
In both the North Fork Mill Creek and the West
Fork Neal Creek, seven-day average maximum temperatures have exceeded the
properly functioning threshold of 13.9°C for 3 to18 days per year, depending on
the creek and year. EA at 60. In addition, a 1999 FS stream survey recorded
temperatures in West Fork Neal Creek at over 20°C, which the FS itself states
“could be cause for concern.” Id. Further, FS during and post-season monitoring
in 2004 documented serious degradation of both creeks, including bank
trampling, fine sediment introduction, channel downcutting, and riparian
vegetation removal. See EA at 61.
While the proposed action may lessen the
potential for water quality violations due to fencing of portions of West Fork
Neal Creek and North Fork Mill Creek and relocating the turn-out and corral
locations, livestock will still be able to access the headwaters of North Fork
Mill creek and the upper reach of West Fork Neal Creek. Moreover, the FS fails
to take into account the effects of an additional 53 cows on the allotment when
discussing the impacts of the proposed action on water quality. Wouldn’t the
doubling of cow/calf pairs on the allotment increase the likelihood of water
quality violations? The FS should take
these considerations into account when analyzing water quality impacts. In
addition, the FS must take affirmative steps to protect water quality on the
allotment and prevent degradation of the Water Quality Limited North Fork Mill
Creek. To avoid CWA violations in the
future, the FS should keep cows completely out of the riparian areas.
VI.
ENDANGERED SPECIES ACT
According to the Endangered Species Act (ESA),
if threatened or endangered species, or proposed threatened or endangered
species “may be present” within the proposed project area, or if a proposed
action “may affect” a listed or proposed species, the Forest Service is
required to conduct a Biological Assessment to determine the effects of permit
re-issuance on such species. Endangered Species Act §§ 7(a)(2), 7(a)(3). It is
a violation of the ESA to issue permits for grazing allotments without
conducting a Biological Assessment to determine the impacts of permit issuance
on federally listed species that may be present or affected by the proposed
action. The allotment included in this proposed action supports listed or
proposed species, supports habitat where such species may be present, and
supports habitat important to the recovery of such species (Northern Spotted Owl
meets all of these criteria). It is a violation of the Endangered Species Act
to issue grazing permits for grazing allotments prior to consulting with the
Fish and Wildlife Service regarding impacts of permit issuance on listed or
proposed species.
Consequently, the Forest Service is
required to determine whether the proposed action will conserve listed or
proposed species and critical habitats, on or offsite of the project area.
Endangered Species Act §§§§ 2 (c)(1), 7(a)1), 2(b), 3(3). The FS must also determine whether lands
within the proposed action area are important to the recovery of proposed or
listed species. Recovery actions must be emphasized over extractive activities,
such as continued grazing.
VII.
NORTHWEST FOREST
PLAN—AQUATIC CONSERVATION STRATEGY
The
MHNF’s LRMP — as amended by the Northwest Forest Plan — has allocated the MHNF
into six designated areas. Record of Decision for Amendments to
The
MHNF’s LRMP has designated areas at the “margins of standing and flowing water”
as Riparian Reserves—including streams and wetlands within the allotment. See ROD
at B-13. Riparian Reserves are
intended to “assure protection of riparian and aquatic functions.” Id. Within Riparian Reserves, grazing practices
must be adjusted to “eliminate impacts that retard or prevent attainment of
Aquatic Conservation Strategy objectives.”
The EA indicates that cows are seriously degrading the
aquatic ecosystems on the Long Prairie allotment. According to the EA,
livestock have “created undesirable high-use areas” in riparian areas on the
allotment and “several stream segments and portions of some of the headwater tributaries
are used by cattle throughout the summer,” which “may affect the resident fish
populations and habitat.” EA at
3. In addition, “[n]umerous areas of
bank trampling, fine sediment introduction, channel downcutting, and riparian
vegetation removal were noted and mapped along a 0.5 mile section of West Fork
Neal Creek . . . an average of one
[stream cattle] crossing or trampled bank every 50 feet of stream . . . .” Id. at
3-4. The FS documented similar damage at
the headwaters of North Fork Mill Creek.
Other than stating the harvest levels of the reserves and listing the applicable standards and guidelines in the NWFP, the FS fails to discuss how the proposed action will meet the Aquatic Conservation Strategy (ACS) requirements. The FS must discuss these legal requirements. The proposed action for the Long Prairie allotment fails to meet the ACS for the reasons listed below.
A. Physical Integrity of the Aquatic Ecosystem
Grazing activity within the Long Prairie allotment has resulted in altered stream channels that have led to bank erosion, deteriorated channels, and increased width-to-depth ratios. Grazing management has clearly failed to meet this ACS Objective, as has been made evident in numerous sections throughout the comments herein. Therefore, restoring—or even maintaining—the physical integrity of the aquatic ecosystems within the allotment requires livestock to be excluded from all riparian areas, including the headwaters of North Fork Mill Creek and the new corral area on West Fork Neal Creek. Although management practices may be used to reduce grazing-induced damage, the riparian areas within the allotment have suffered substantial damage and require a respite from grazing.
B. Sediment Regime of the Aquatic Ecosystem
Grazing within riparian areas has caused damage to the physical structure of the water bodies of the allotment. Stream banks are damaged within the allotment due to grazing, as discussed above. Damaged banks result in increased erosion and increased sediment inputs to the streams within the allotment. Stream habitat on both West Fork Neal Creek and North Fork Mill Creek has been degraded by sedimentation from livestock trampling of stream banks and the resulting erosion. An increase in sediment input will continue as damaged banks continue to erode, even in the absence of future grazing in portions of the streams, due to cumulative effects from OHV use, timber sales adjacent to the property, and recreation. Appropriate management practices may diminish the rate of sediment input, but maintenance and restoration of the sediment regime requires that the aquatic ecosystems within the allotment be rested from grazing.
C. Riparian Plant Communities
Cattle in riparian areas trample and consume aquatic and terrestrial plant species. Consumption and trampling result in the reduction of plant species that are intolerant of cattle-induced disturbance and an increase in the populations of plant species that are tolerant of the disturbance. Adjusting grazing management practices on the allotment may reduce adverse impacts, but maintenance or restoration of species composition and structural diversity of riparian plant communities requires that riparian vegetation be given a reprieve from grazing.
D. Flow Characteristics
Meadows within the allotment have been changed substantially as a result of 100 years of livestock grazing. The ability of meadows within the allotment to absorb water has decreased as a result of soil compaction by livestock. For instance, on the Gibson pasture, “[t]he ephemeral streams within the meadow complex are actively downcutting which has resulted in a lower water table, effectively draining the meadow.” Mill Creek Watershed Analysis, Ch-III-Q3-1; verified by 2004 FS monitoring, EA at 31. The inability of meadows to absorb rainfall and snowmelt has led to higher peak flows to streams and wetlands. Adjusting management practices on the allotment may reduce the rate at which livestock detrimentally impact flow characteristics within the allotment, but protection of natural stream flow characteristics requires that meadows be rested from grazing.
Livestock grazing has substantially and detrimentally impacted the health of aquatic resources within the allotment. The adjustments to grazing management practices in the proposed action are not an adequate remedy to prevent further degradation. Continuing to allow grazing within this allotment will neither maintain the current conditions, nor restore conditions of the aquatic resources within the allotment. Therefore, compliance with the ACS requires that livestock be excluded from all meadows and riparian areas within the allotment to eliminate future injury and to heal from past injuries.
VIII. CONCLUSION
Thank
you for the opportunity to comment on the Long Prairie Preliminary
Analysis. We hope that the Forest
Service will seriously consider choosing the no grazing alternative to prevent
any future damage to threatened species, sensitive species, MIS, botanical
species, soils, water quality, and wildlife habitat. We would also like to respectfully request
that the staff at the Hood River Ranger District do the right thing and work
toward permanent retirement of this allotment.
Sincerely,
Sandi Scheinberg
Bark
Doug Heiken