Southwestern Region 3 Carson National Forest

Transcription

1 United States Department of Agriculture Forest Service Southwestern Region 3 Carson National Forest 208 Cruz Alta Road Taos, New Mexico (575) FAX (575) V/TTY (575) File Code: 1570/2210 Date: August 12, 2013 Mr. Bryan Bird WildEarth Guardians 516 Alto St. Santa Fe, NM CERTIFIED MAIL Return Receipt Requested Dear Mr. Bird: This is my decision on the appeal (# A215) you filed on behalf of WildEarth Guardians, regarding the Decision Notice (DN), Environmental Assessment (EA), and Finding of No Significant Impact (FONSI) signed by District Ranger Francisco Sanchez for the Canjilon Ranger District Range Improvements Project on the Canjilon Ranger District, Carson National Forest. My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR My review focused on the project documentation and the issues raised in your appeal. I specifically incorporate in this decision the project record, the references and citations in the project record transmittal documentation, as well as the Appeal Reviewing Officer (ARO) analysis and documentation. After considering your issues and the project documentation, the ARO recommends the District Ranger s decision be affirmed with instructions. A copy of the recommendation and the technical review of your appeal contentions are enclosed. Based upon a review of the project documentation provided, I find the issues were adequately considered. I agree with the ARO analysis and conclusions in regard to your appeal issues. I find the District Ranger made a reasoned decision and has complied with all laws, regulations, and policy. After careful consideration of the above factors, I affirm with instructions the District Ranger s decision to implement Alternative 2 for the Canjilon Ranger District Range Improvements Project. My instructions are: The Responsible Official will incorporate by reference all previous analyses and decisions that approved burning and/or mechanical treatments of sagebrush in the project area. Caring for the Land and Serving People Printed on Recycled Paper

2 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/ Juan E. (Buck) Sanchez JUAN E. (BUCK) SANCHEZ Forest Supervisor Enclosures (2) cc: Francisco B Sanchez

3 Forest Service Prescott National Forest Chino Valley Ranger District 735 North Highway 89 Chino Valley, AZ Phone: (928) Fax: (928) TTY: (928) File Code: 1570/2210 Date: August 12, 2013 Route To: Subject: To: Appeal Reviewing Officer Recommendation, # A215, Canjilon RD Range Improvements Project, Carson NF Buck Sanchez, Forest Supervisor, Carson National Forest This is my recommendation on the disposition of the appeal filed regarding the Decision Notice/Finding of No Significant Impact (DN/FONSI) and Environmental Assessment (EA) for the Canjilon Ranger District Range Improvements Project on the Canjilon Ranger District, Carson National Forest. BACKGROUND Implementation of the Selected Alternative (Alternative 2) authorizes the treatment of sagebrush via mechanical methods and Tebuthiuron, reseeding sagebrush areas where needed with native grasses and forbs, and broadcast burning of sagebrush treated areas. The decision also authorizes range improvements (fencing and water developments) to improve ecological and rangeland conditions across eleven allotments. District Ranger Francisco Sanchez published the legal notice of his decision on May 16, The District Ranger is identified as the Responsible Official, whose decision is subject to administrative review under the 36 CFR 215 appeal regulations. One appeal was filed as follows: Appeal # A215 filed by Brian Bird on behalf of WildEarth Guardians on June 21, Pursuant to 36 CFR , an attempt was made to seek informal resolution of the appeal. The record indicates that informal resolution was not reached. 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 and request for relief has been thoroughly reviewed. Although I may not have listed each specific issue, I have considered all the issues raised in the appeal and believe they are adequately addressed in the attached technical review and findings document. Having reviewed the EA, DN/FONSI, and the project record file, as required by 36 CFR (b), I conclude the following: It s Cool to Be Safe Printed on Recycled Paper

4 1) The decision is consistent with policy, direction, and supporting evidence. However, the record lacks documentation of previous analyses and decisions that approved burning and/or mechanical treatments of sagebrush in the project area. These analyses should be incorporated by reference into the record. 2) 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. 3) The selected alternative should accomplish the purpose and need established. The purpose and need stated in the EA reflect consistency with direction in the Forest Plan for the Carson National Forest. 4) The record reflects that the Responsible Official provided ample opportunity for public participation during the analysis and decision making process. The Responsible Official s efforts enabled interested publics the opportunity to comment and be involved in the sitespecific proposal. After considering the claims made by the appellant 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 Carson National Forest Plan. I found no violations of law, regulations, or Forest Service policy. Recommendation I recommend that the Responsible Official s decisions relating to this appeal be affirmed with instructions with respect to all of the appellant s contentions. I recommend that the Responsible Official be instructed to incorporate by reference the previous analyses and decisions that approved burning and/or mechanical treatments of sagebrush in the project area. /s/ James Gilsdorf JAMES GILSDORF Chino Valley District Ranger Enclosure cc: Margaret Van Gilder

5 Review and Findings WildEarth Guardians, Brian Bird Appeal # A215 Canjilon Ranger District Range Improvements Project Canjilon Ranger District, Carson National Forest Service ISSUE 1: The Forest Service failed to consider an adequate range of alternatives in violation of the National Environmental Policy Act (NEPA). Contention 1a: The appellants contend that that agency violated statutory, regulatory, and selfimposed mandates and provided an unreasonably narrow definition of the project s objectives. They argue that by proposing treatment by a combination of methods mechanical, prescribed fire, and tebuthiuron within the Purpose and Need section, the agency impermissibly framed the proposed action as the only reasonable alternative because it is identical to the purpose and need. The appellants contend that the Purpose and Need can be read to allow for an alternative that does not include all of the proposed treatment methods [Appeal, p. 5]. Response: The potential actions to meet the District s needs and purposes (i.e., objectives) are provided and evaluated in the Environmental Assessment (EA) [PR 49]. Council on Environmental Quality (CEQ) regulations regarding purpose and need statements indicate only that they shall briefly specify the underlying purpose and need [40 CFR , see also 40 CFR (b)]. As discussed in Forest Service Handbook (FSH) _10, Section 11.21, a well-defined need or purpose and need statement narrows the range of alternatives that may need to be considered. However, neither the CEQ regulations nor the Forest Service policy specify what is too narrow for a purpose and need statement. In the Canjilon Range Improvements EA, the appellant claims that the Purpose and Need can be read to allow for an alternative that does not include all of the proposed treatment methods. The plain meaning of the term combination does not require use of all proposed methods on all 12,000 acres [WEG Appeal, p. 5]. In making this decision, the Responsible Official had the discretion to select a single alternative or to select pieces of an alternative or alternatives. The EA presented a range of alternatives through its no action, its proposed action, and its alternative dismissed. The purpose and need was not so narrow so as to make the proposed action the only option. The no action, the proposed action, or a modification of either no action or proposed action alternatives could have been selected. The Decision Framework section of the EA makes this clear by stating that the decision-maker would have to decide Whether the proposed action will proceed as proposed, as modified by an alternative, or not at all [PR 49, p. 4]. To meet their purpose and need the District provided and evaluated a range of alternatives which included the no action, proposed action, and an alternative considered but dismissed from further analysis. The no herbicide alternative was dismissed because most sagebrush treatment areas 1

6 have already been cleared for burning and/or mechanical treatment through other analyses. Therefore, the no herbicide alternative is already considered as part of the no action alternative (alternative 1) [PR 49, p. 7]. If a decision such as this has already been made the Responsible Official can document this finding and continue to implement the decision [FSH _10, Section 11.23]. The Responsible Official should be provided instructions to incorporate these other analyses by reference. The Responsible Official did consider the range of alternatives. In addition to the selected alternative, I considered one other alternative in detail. The no action alternative (alternative 1) was the no improvements or herbicide treatment alternative and used as a baseline to compare the effects of alternative 2, the proposed action alternative (alternative 2), which allows the treatment of sagebrush via mechanical methods, Tebuthiuron, and broadcast burning, and a number of rangeland improvements. A no herbicide alternative was considered and eliminated from detailed study [PR 50, page 3]. Finding: The Forest Service complied with law, regulation, and policy in framing its purpose and need for this project. Contention 1b: The appellants contend that the EA is fatally flawed because the agency failed to consider a no-herbicide alternative. The agency dismissed the alternative because it determined a no-herbicide alternative to be identical to the no action alternative. The appellants state that it is not clear how a no action alternative, where no range improvements would be constructed, equates to an alternative permitting most improvements except for application of a toxic herbicide. The appellants also contend that the agency states that most areas to be treated have been cleared by unidentified other analyses, without explaining or listing the previous environmental analyses and/or decisions that considered non-herbicide treatments. The appellants argue that if the agency did previously consider non-herbicide range improvements, then the agency must present this as an alternative in the EA and compare the environmental impacts of the herbicide and no-herbicide alternatives or at least provide a reference to an environmental document that considered a no-herbicide alternative. The appellants conclude that because the agency failed to take the requisite hard look at a no-herbicide alternative, it prematurely foreclosed a reasonable alternative to the proposed action in violation of NEPA [Appeal, pp. 5-6]. Response: Federal agencies are required by NEPA to explore and objectively evaluate all reasonable alternatives and to briefly discuss the reasons for eliminating any alternatives that were not developed in detail [40 CFR ]. The Responsible Official appropriately considered a range of alternatives (see Response to Contention 1a). The District considered a no herbicide alternative before dismissing it from further study. Currently, herbicides are not used on the allotments proposed for treatment. Therefore, a no herbicide alternative is the same as the no action alternative. The EA states this under the section Alternative Considered, but Eliminated from Detailed Study [PR 49, p. 7]. Considering an additional alternative that included no herbicide would have been redundant with the no action alternative and would result in the same effects analysis. The Responsible Official did consider not using herbicide. 2

7 To meet their purpose and need the District provided and evaluated a range of alternatives which included the no action, proposed action, and an alternative considered but dismissed from further analysis. The no herbicide alternative was dismissed because most sagebrush treatment areas have already been cleared for burning and/or mechanical treatment through other analyses. Therefore, this alternative is already considered as part of the no action alternative (alternative 1) [PR 49, p. 7]. If a decision such as this has already been made the Responsible Official can document this finding and continue to implement the decision [FSH _10, Section 11.23]. The Responsible Official should be provided instructions to incorporate these other analyses by reference. Further, according to the Carson National Forest Plan s Management Area Prescriptions for Revegetation Areas, most of the areas converted to grassland will require maintenance to keep them in a seral grass type. This management area prescription also states to maintain revegetated sites to grass by the following treatment methods: - Sagebrush sites - Maintain revegetation sites in grassland communities by initiating the following treatments: Herbicide: When P-J or sagebrush cover reaches 15 to 20% of the total plant cover Burn: Apply when production is at least 600 lbs/acre. Mechanical: When neither burning nor herbicides are feasible [PR 40, p. 4] Percent canopy cover of plants is determined using the line intercept transect method. There are three categories of percent canopy cover when measuring sagebrush cover, light, medium, and dense. Light is 5-19 percent canopy cover, medium is percent canopy cover, and dense is greater than 34 percent canopy cover. Currently the proposed treatment areas range from medium to dense stands of sagebrush. To maintain consistency with the Carson National Forest Plan and to meet other land management objectives, the District proposed to treat these areas with herbicide and through other methods. Finding: The Forest Service complied with law, regulation, and policy in developing and considering its range of alternatives. The Responsible Official properly considered a range of alternatives and ultimately found through a plan consistency evaluation and an effects analysis that the proposed action best met the goals and objectives for the project area. The Responsible Official should be instructed to incorporate by reference the previous analyses and decisions that approved burning and/or mechanical treatments of sagebrush. 3