BARK
P.O. Box 12065
Portland, OR 97212
(503) 331-3174
info@bark-out.org
www.bark-out.org
Erin Black
Hood River Ranger District
6780 Highway 35
Mt. Hood/Parkdale, OR 97041
March 12, 2007
Via E-mail: ekblack@fs.fed.us
Re: Badger Allotment Scoping comments
Dear Ms. Black:
Thank you for this opportunity to comment on the scoping letter for Badger allotment.
The following comments are submitted on behalf of BARK and our members, who use the
public lands, waters, and natural resources in Badger allotment for recreational, scientific,
spiritual, educational, aesthetic, and other purposes.
Overall, we believe that the use of a Categorical Exclusion (CE) for Badger Allotment is
inappropriate due to the lack of support in the scoping letter for Section 339 of the 2005
Consolidated Appropriations Act (P.L. 108-447). Specifically, prongs two and three of P.L. 108447 are not met in this instance because: 1) Forest Service monitoring fails to indicate that
current grazing is meeting all standards and objectives in the Forest Plan and 2) proposed grazing
is not consistent with agency policy concerning extraordinary circumstances. As such, the Forest
Service must prepare a full Environmental Impact Statement (EIS) or Environmental Assessment
(EA) for Badger allotment.
I.
THE CATEGORICAL EXCLUSION TEST UNDER PUBLIC LAW 108-447 IS
NOT MET HERE.
P.L. 108-447 sets forth a three-pronged test for when the Forest Service may
categorically exclude grazing management decisions from review under the National
Environmental Policy Act (NEPA), 42 U.S.C § 4321 et seq. A grazing management decision
may be categorically excluded if: (1) the decision continues current grazing management; (2)
monitoring indicates that current grazing management is meeting, or satisfactorily moving
toward, objectives in the applicable Forest Plan and, (3) the decision is consistent with agency
policy concerning extraordinary circumstances. Because prongs two and three of this test are not
met here, the decision to reauthorize grazing on the Badger Allotment must be the subject of
complete NEPA review.
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A. Monitoring Fails to Indicate that Current Grazing Management is Meeting
or Satisfactorily Moving Toward Objectives in the Forest Plan.
P.L. 108-447 allows the Forest Service to categorically exclude the authorization of
grazing on an allotment if, among other things, “monitoring indicates that current grazing
management is meeting, or satisfactorily moving toward, objectives in the land and resource
management plan, as determined by the Secretary.” The Forest Service must include its analysis
or description of any such monitoring in the body of the NEPA document. See Blue Mtns.
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (the environmental
document itself “is where the Forest Service’s defense of its position must be found.”)
Here, the Forest Service failed to provide any information on monitoring in the scoping
letter, sufficient to meet the requirements of P.L. 108-447. Moreover, Bark’s review of the
forage utilization monitoring documents indicates that sufficient monitoring has not been
completed; thus, there is not enough evidence in the monitoring records to conclude that current
grazing management is meeting or satisfactorily moving toward Forest Plan objectives. Further,
monitoring data that does exist fails to meet this requirement.
1. The scoping letter and available monitoring do not support the conclusion that Badger
allotment is meeting or satisfactorily moving toward the Aquatic Conservation Strategy
Objectives in the Northwest Forest Plan.
a. Background
The Northwest Forest Plan (NWFP), which amended the Mt. Hood Land and Resource
Management Plan (LRMP), was developed to provide management direction to achieve a
healthy forest ecosystem by protecting and enhancing habitat, including riparian areas and
waters, for late-successional and old growth forest related species, such as the Northern Spotted
owl. Record of Decision for Amendments to Forest Service and Bureau of Land Management
Planning Documents Within the Range of the Northern Spotted Owl (ROD) A-1 (April 13,
1994). Within the NWFP, the Aquatic Conservation Strategy (ACS) was created to “restore and
maintain the ecological health of watersheds and aquatic ecosystems contained within them on
public lands” in an effort to “protect habitat for fish and other riparian-dependent species and
resources and restore currently degraded habitats.” Id. at B-9.
b. ACS Objectives
The NWFP sets forth the following management objectives to comply with this intent:
1. Maintain and restore the distribution, diversity, and complexity of watershed and
landscape-scale features to ensure protection of the aquatic systems to which species,
populations and communities are uniquely adapted.
2. Maintain and restore spatial and temporal connectivity within and between watersheds.
Lateral, longitudinal, and drainage network connections include floodplains, wetlands,
upslope areas, headwater tributaries, and intact refugia. These network connections must
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provide chemically and physically unobstructed routes to areas critical for fulfilling life
history requirements of aquatic and riparian-dependent species.
3. Maintain and restore the physical integrity of the aquatic system, including shorelines,
banks, and bottom configurations.
4. Maintain and restore water quality necessary to support healthy riparian, aquatic, and
wetland ecosystems. Water quality must remain within the range that maintains the
biological, physical, and chemical integrity of the system and benefits survival, growth,
reproduction, and migration of individuals composing aquatic and riparian communities.
5. Maintain and restore the sediment regime under which aquatic ecosystems evolved.
Elements of the sediment regime include the timing, volume, rate, and character of
sediment input, storage, and transport.
6. Maintain and restore in-stream flows sufficient to create and sustain riparian, aquatic,
and wetland habitats and to retain patterns of sediment, nutrient, and wood routing. The
timing, magnitude, duration, and spatial distribution of peak, high, and low flows must be
protected.
7. Maintain and restore the timing, variability, and duration of floodplain inundation and
water table elevation in meadows and wetlands.
8. Maintain and restore the species composition and structural diversity of plant
communities in riparian areas and wetlands to provide adequate summer and winter
thermal regulation, nutrient filtering, appropriate rates of surface erosion, bank erosion,
and channel migration and to supply amounts and distributions of coarse woody debris
sufficient to sustain physical complexity and stability.
9. Maintain and restore habitat to support well-distributed populations of native plant,
invertebrate, and vertebrate riparian-dependent species.
Id. at B-11.
In order to comply with these objectives, an agency “must manage the riparian-dependent
resources to maintain the existing condition or implement actions to restore conditions. The
baseline from which to assess maintaining or restoring the condition is developed through a
watershed analysis.” Id. at B-10. “Management actions that do not maintain the existing
condition or lead to improved conditions in the long term would not ‘meet’ the intent of the
Aquatic Conservation Strategy and thus, should not be implemented.” ROD at B-10.
c. Standards and Guidelines
The NWFP developed standards and Guidelines to determine compatibility of proposed
projects with ACS objectives. Id. In doing so, the plan allocated the MHNF into six designated
areas to apply the standards and guidelines, including Congressional Reserved Areas, Late
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Successional Reserves, and Riparian Reserves, all of which are present on this allotment. Id. at
A-4.
Federally designated wilderness areas are among the lands included in Congressional
Reserved Areas. Where Key Watersheds occur within these areas, both the Key Watershed and
Aquatic Conservation Strategy standards and guidelines apply. ROD at C-8.
Late Successional Reserves (LSRs) are “designed to maintain a functional, interacting,
late-successional and old-growth forest ecosystem.” ROD at C-11. Moreover, LSRs are to be
“retained in their natural condition with natural processes.” Id. at B-4. Meadows and riparian
areas are an important part of old-growth forest ecosystems and must be managed as an integral
component of the LSR. Grazing is permitted within LSRs. Id. at C-17. However, the FS must
manage grazing in a manner that protects and restores the ecological integrity of the ecosystems
within the LSRs. When grazing practices that “retard or prevent attainment of reserve
objectives,” the FS has a duty to eliminate or reduce the amount of grazing that is allowed. Id.
The NWFP 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.” Id. at C-33. If adjustment of
grazing practices isn’t sufficient, grazing is to be eliminated. Id. Grazing is impliedly allowed in
Riparian Reserves; however, when grazing interferes with the Aquatic Conservation Strategy the
MHNF has a duty to eliminate grazing from Riparian Reserves.
d. Monitoring Requirements
According to the NWFP, implementation, effectiveness, and validation monitoring need
to be conducted to determine whether ACS objectives are being met. ROD at B-32. “Monitoring
will be an essential component of these management actions and will be guided by the results of
the watershed analysis.” Id.
The NWFP defines implementation monitoring as monitoring that “determines if the
standards and guidelines were followed.” Id. at E-4. The standards and guidelines of LSRs,
Riparian Reserves, Key Watersheds, and Watershed analysis, among others, require specific
monitoring. Id. at E-5.
Effectiveness monitoring goes a step further and evaluates whether the application of the
management plan achieved the desired goals and if the objectives of the standards and guidelines
were met. ROD at E-6. For aquatic ecosystems, “[k]ey monitoring items include: Pool frequency
and quality (width, depth, and cover), Percent fine sediment, Course woody debris (size and
quantity), Water temperature, Width-to-depth ratio, [and] Bank stability and lower bank angle.”
Id. at E-7-8.
In addition, validation monitoring must be completed to determine if “a cause and effect
relationship exists between management activities and the indicators or resource being
managed.” Id. at E-10. Key items to monitor include: Northern spotted owls by physiographic
province, Marbled murrelets within their known nesting range, [p]opulations of fish species and
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stocks that are listed under the Endangered Species Act or are considered sensitive or at risk by
land management agencies, [r]are species, [and] [t]he relationship between levels of management
intervention and the health and maintenance of late-successional and old-growth ecosystems.”
Id.
The White River Watershed Analysis (WRWA) elaborates and adds to these monitoring
requirements. Specifically, the WRWA says that the LRMP standards and guidelines do not
provide adequate grazing restrictions to allow attainment of the ACS objectives on national
forest lands because they only address vegetation utilization. White River Watershed Analysis,
5-25 (August 1995). “Range allotment monitoring focuses on vegetation utilization, condition,
and trend” while “[s]tream surveys are not specific enough as to the cause of the conditions
observed.” Id. As such, the WRWA advises the MHNF to develop a monitoring program more
specific to livestock damage in riparian areas to better determine whether continued grazing will
prevent attainment of the ACS objectives and state water quality standards. The WRWA
recommends an annual survey program be developed by 2000 that focuses on physical cattle
damage and identifies “current cattle-created bare paths, damaged streambanks, and wallows,
older areas that do not appear to be used now, and areas needing restoration work.” Id. at 5-26.
The WRWA also specifies that the annual survey program focus on Tygh Creek, Jordan Creek,
and Owl and Hazel hollows. Id.
The WRWA also recommends developing sampling protocols or monitoring strategies
that yield better trends in native plant populations that are preferentially grazing by cattle in the
Badger allotment since the allotment contains the highest number of species of concern. WRWA
at 5-30. In addition, the WRWA recommends monitoring shrub utilization in shrub and
hardwood dominated areas. Id.
e. Lack of Monitoring
The Forest Service fails to state how it is meeting the above monitoring requirements in
the scoping letter. Further, based on the monitoring documents Bark has reviewed and the
information given in the WRWA regarding the inadequacy of monitoring in riparian areas, it is
appears unlikely that the Forest Service has conducted adequate monitoring sufficient to
determine that it is meeting or satisfactorily moving toward ACS objectives.
First, the forage utilization monitoring for Badger allotment is severely lacking in both
content and quantity. For example, no forage utilization monitoring was conducted on the
allotment from 2001 to 2004 despite full stocking on the allotment. Further, no forage utilization
monitoring was conducted in Owl Hollow from 1999 to present, despite the fact that all 80 pairs
of cattle utilize the Owl Hollow pasture from mid-July through September 30 and the WRWA
specifically called for more thorough riparian monitoring in Owl Hollow. In addition, stubble
height was not even recorded on the majority of the monitoring plots from 1996 through 2000.
See Monitoring Documents in FOIA Response to Bark, dated Feb. 23, 2007. The Forest Service
cannot claim that current grazing management is meeting or satisfactorily moving toward ACS
objectives when there is no monitoring data to support such a claim.
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In addition, the WRWA also discusses the lack and inadequacy of monitoring throughout
its analysis. For instance, the WRWA states, “None of the allotments has been monitored for
streambank condition, water quality, native plant community composition, and factors that affect
the health and aquatic ecosystems.” WRWA at C-35. Hence, the WRWA’s recommendation that
the Forest Service implement an annual survey program focusing on physical cattle damage in
riparian areas. Bark is not aware of the annual survey program recommended by the WRWA
being implemented. Was that monitoring program implemented? Were annual Level 2 stream
surveys conducted on the streams throughout the allotment and did they incorporate the physical
damage monitoring? What were the results? Were effectiveness (long-term) and validation
monitoring conducted on the allotment? If the monitoring required by the NWFP and WRWA
was not implemented, the Forest Service cannot contend that monitoring indicates current
grazing management is meeting or moving toward ACS objectives and thus, cannot categorically
exclude Badger allotment from complete NEPA review.
Further, considering the numerous water quality violations on the allotment in past years
and the damage that has occurred on riparian areas as a result of livestock grazing, current
grazing management does not appear to be meeting or satisfactorily moving toward attainment of
ACS objectives. These water quality problems and riparian degradation on the allotment will be
described in further detail below.
2. The scoping letter and available monitoring do not support the conclusion that current
grazing management on Badger allotment is meeting or satisfactorily moving toward the
other objectives in the LRMP and RMP.
a. Mt. Hood Land and Resource Management Plan.
To categorically exclude Badger allotment from full NEPA review, the Forest Service
must also prove that monitoring indicates current grazing management is meeting or
satisfactorily moving toward objectives in the Mt. Hood National Forest (MHNF) LRMP. Many
of these objectives are set forth as Resource Summaries in the LRMP. To determine whether it is
meeting or moving towards these objectives, the Forest Service must adhere to the standards and
guidelines mandated in the forest plan. See LRMP at 4-2.
1. Riparian Areas and Water Quality
Riparian and stream ecosystems represent only 0.5 to 1% of the surface area of lands in
the eleven western United States, yet support an estimated 60-70% of western bird species and as
many as 80% of wildlife species in southeastern Oregon. A.J. Belsky, A. Matzke, S. Uselman
(1999); Ohmart (1996); Thomas et al. (1979). Because of this, riparian ecosystems are
considered to be important repositories for biodiversity throughout the West. Belsky et. al.
(1999).
Despite the ecological importance of riparian areas, livestock grazing has damaged 80%
of the streams and riparian ecosystems in the western U.S. Id. “Livestock seek out water,
succulent forage, and shade in riparian areas, leading to trampling and overgrazing of
streambanks, soil erosion, loss of streambank stability, declining water quality, and drier, hotter
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conditions.” Id. This has resulted in “reduced habitat for riparian plant species, cold-water fish,
and wildlife, thereby causing many native species to decline in number or go locally extinct.” Id.
The LRMP sets forth many objectives in an effort to protect riparian areas, and the
species that depend on them, from livestock grazing and other harmful activities. In particular,
the LRMP directs the Forest Service to protect the unique and valuable characteristics of the
floodplain and riparian zones; assure the long-term production of associated wildlife and plant
species within the full spectrum of forest riparian areas; maintain or increase aquatic habitat
complexity and diversity; and maintain or increase fish habitat capability. LRMP at 4-17. The
latter is “largely dependent upon maintenance or improvement of water quality, specifically
reductions in sediment and decreases in late summer stream temperatures.” Id.
To meet these objectives, the LRMP 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); LRMP, FW-060. Management practices must also comply with
state water quality standards. LRMP, FW-054. Further, 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.
LRMP, FW-080; FW-082; FW-105; FW-123; FW-124. Also, “[g]round disturbing activities
should not occur in saturated soil areas.” LRMP, FW-083. Bank stability of the riparian areas in
the allotment “shall be maintained in [their] natural condition” and if the existing condition is
degraded due to past livestock grazing, “the natural condition should be restored.” LRMP, FW103.
According to the WRWA, excessive stream temperatures, sedimentation, and bank
stability problems have been documented in streams on Badger allotment. For example, in 1994,
stream temperatures exceeded state water quality standards for 61 days in Badger Creek as
measured at Bonney Crossing Campground, 37 days in Jordan Creek as measured at FS Road 27,
and 12 days in Tygh Creek as measured at FS Road 27. WRWA at 5-20. Also note temperature
exceedances in Badger Creek at Bonney Crossing Campground in 1995 and 1997. See Oregon
DEQ Water Quality Assessment Database. Further, excessive sedimentation (25%) was
documented in redband trout spawning areas in Little Badger Creek, exceeding the 20%
sedimentation standard given in the LRMP at FW-097. WRWA at 5-7. In addition, according to
a 1997 Forest Service survey, cut banks were common on Tygh Creek directly below the
wilderness area on Forest Service land, which suggests further water quality issues there, as well.
White River Watershed Assessment, p. 92 (2004). What other excessive temperatures,
sedimentation, and bank stability problems have been recorded on the streams and riparian areas
in the allotment? Has the Forest Service regularly monitored streams and riparian areas on the
allotment to sufficiently determine whether the standards and guidelines above do not continue
to be violated?
The WRWA acknowledges the correlation between livestock grazing and bank
instability, sedimentation, and increased stream temperatures, stating “Hoofshear damage to
some streambanks within the grazing allotments contribute to sediment and decrease the width to
depth ratio of the channel, increasing water temperatures.” WRWA at C-40. It also notes that
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livestock grazing is one of the greatest apparent threats to endemic redband trout in the Jordan
subwatershed and directs the Forest Service to manage for protection of the species in that area.
Id. at C-54. In addition, the WRWA acknowledges, “Badger allotment suffers somewhat from
poor cattle distribution. The animals tend to use the same areas over and over while generally
ignoring areas with abundant feed. They tend to drift into riparian areas for water and shade.” Id.
at F-3. This is very disconcerting since cattle can access Badger Creek, Little Badger Creek,
Jordan Creek, Pen Creek and Tygh Creek, which contain habitat for redband trout. Further, the
cattle in Badger allotment can access the top headwaters of Cedar Creek, a tributary to
Fifteenmile Creek, which is a 303(d) listed stream and important habitat for federally threatened
winter steelhead.
The Forest Service must monitor the riparian areas on the allotment to determine whether
the LRMP standards and guidelines, and hence objectives, are being met on the allotment.”
“Public concerns and Forest Service management needs require that activities in riparian areas
that might impact water uses be monitored and documented to ensure that water management
goals are realized…[and] if Forest Plan standards and guidelines have been met.” LRMP at 4-19.
“Both extensive and intensive monitoring procedures will be implemented.” Id. Note the addition
to these requirements in the NWFP, as previously discussed (implementation, effectiveness, and
validation monitoring), and that monitoring will be guided by the watershed analysis. See ROD
at C-33.
The WRWA points out the inadequacy of the monitoring program in assessing allotment
condition (specifically in riparian areas) and determining whether livestock grazing will prevent
attainment of LRMP objectives, ACS objectives, and state water quality standards. See WRWA
at 5-25. For example, the WRWA states, “The physical damage caused by cattle results in
increased sediment delivery to the streams…[but] we cannot presently separate out the causes of
the sediment in order to recommend adjustments to either grazing levels or grazing practices.”
Id. As such, the WRWA advises the Forest Service to implement a monitoring program that
specifically measures physical damage from cattle. Id. Has the Forest Service implemented this
monitoring program and the other monitoring requirements under the LRMP and NWFP? If so,
what were the results? If not, how can the Forest Service claim that current grazing management
is meeting or satisfactorily moving toward attainment of LRMP or ACS objectives? The Forest
Service cannot claim that current grazing management is meeting or satisfactorily moving
toward attainment of LRMP objectives, and thus categorically exclude this allotment from
complete NEPA review, if this monitoring does not exist or make attainment evident.
2. Sensitive Plants
Another objective set forth in the LRMP requires the Forest Service to “provide
management to maintain or enhance viable sensitive plant populations.” LRMP at 4-23.
Accordingly, habitat for sensitive plants “shall be protected and/or improved.” LRMP, FW-175.
The LRMP also mandates that the Forest Service prepare Biological Evaluations (BEs) for “all
Forest Service planned, funded, executed, or permitted programs and activities for possible
effects on endangered, threatened, or sensitive species.” LRMP, FW-176. The Forest Service
must also prepare Species Management Guides, in accordance with species recovery plans, to
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address the effects of livestock grazing and identify opportunities to maintain or enhance habitat
for sensitive species that conflict with standard management practices. LRMP, FW-179.
According to the WRWA, there are at least three Forest Service R6 Sensitive plant
species present on Badger allotment: Arabis Sparsiflora, Astragalus Howellii, and Botrychium
Minganense. See WRWA, Appendix E. Arabis Sparsiflora has been documented south of Little
Badger Campground within the boundaries of the allotment. Id. E-8. Possible threats to the
species include loss of individual plants due to grazing or erosion of loose soil at the site and
increased competition from introduced plant species. Id.
Further, “[m]uch of the metapopulation [of Astragalus Howellii] lies within Badger
Grazing Allotment but no studies have been conducted to determine effects of livestock grazing
on this species.” Id. at E-9. As such, the WRWA recommends that the species “be included in a
monitoring strategy designed to investigate the effects of grazing.” WRWA at E-9.
In addition, Botrychium Minganense has been documented on Little Badger Creek and
within Badger Wilderness. Id. at 10. Livestock may have an adverse impact on Botrychium
Minganense because: 1) native species in the Pacific Northwest have not coevolved to be well
adapted to large grazing herbivores, and generally do not respond well to this impact; 2) the
impacts from deer are not equivalent to domestic stock because the latter weigh significantly
more and crop plants to ground level, eliminating above-ground growth; and 3) increased
trampling, soil compaction, and introduction of exotic weeds may impact the species. Bureau of
Land Management, Management Recommendations for Mingan moonwart (Botrychium
minganense Victorin), December 1998.
The Forest Service must prove that it is protecting and/or improving habitat for the above
sensitive plant species on the Badger allotment in an effort to maintain or enhance their
populations. Has the Forest Service regularly monitored the allotment for these species and the
effects of grazing on these species? Has the Forest Service completed BEs for the species to
determine the effects of grazing on the species in the allotment? Has the Forest Service
completed the Species Management Guides for these species to determine how to maintain or
enhance the habitat for the species, pursuant to the schedule for such plans in the LRMP? See
LRMP at 4-24. The Forest Service cannot contend that it is meeting or significantly moving
toward the objectives in the LRMP if it has not completed the monitoring, BEs, and/or Species
Management Guides necessary to show that these objectives are being met.
3. Threatened, Endangered, and Sensitive Animal Species
An additional objective in the LRMP is obtaining full recovery of threatened,
endangered, and sensitive species on Mt. Hood National Forest lands, which requires monitoring
of populations and habitats on a continuing basis. LRMP at 4-22. Habitat for these species “shall
be protected and/or improved.” LRMP, FW-175. In addition, as with sensitive plants, the Forest
Service must prepare Biological Evaluations for “all Forest Service planned, funded, executed,
or permitted programs and activities for possible effects on endangered, threatened, or sensitive
species.” LRMP, FW-176. The Forest Service must also prepare Species Management Guides, in
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accordance with species recovery plans, to address the effects of livestock grazing and identify
opportunities to maintain or enhance habitat for these species that conflict with standard
management practices. LRMP, FW-179.
The Forest Service acknowledges that Northern Spotted owls (NSO) are present on the
allotment and there are at least a couple of protected activity centers within allotment boundaries.
The Forest Service must protect habitat characteristics favored by the NSO from adverse
modification and restrict activities that could cause nest abandonment or mortality of young. Id.
at 4-23. In the scoping letter, the Forest Service states that there are minimal conflicts with
livestock grazing because cows prefer open grassy areas, which are not characteristic of LSRs.
However, the Forest Service fails to consider that cows prefer riparian areas, an integral part of
LSRs, which the NSO also depends upon.
The upper portion of the allotment overlaps with the Surveyor’s Ridge LSR, which is
located in the Fifteenmile Subbasin and includes Fifteenmile Creek and a portion of Cedar
Creek, which cows can access. In a discussion on the NSO, the Fifteenmile Subbasin Assessment
states, “Within this sub basin, all known nest sites are within 0.25 miles of water, which shows a
strong preference for riparian habitat. This may be an indication that the majority of large trees
are in riparian areas or that more prey species are present there.” Wasco County Soil and Water
Conservation District, Draft Fifteenmile Subbasin Assessment, March 2004. The Forest Service
must take into account whether livestock grazing in riparian areas close to NSO activity centers
is adversely modifying spotted owl habitat in order to claim that the above LRMP objective is
being met.
Further, the Forest Service states in the scoping letter that NSO surveys have not been
done for three years. When is the next planned NSO survey? How can the Forest Service claim
that it is protecting habitat characteristics of the NSO sufficient to maintain the LRMP objective
if it has not been monitoring the species or its habitat? What other threatened, endangered, or
sensitive species are present on the allotment? Have monitoring, BEs, or Species Management
Guides been conducted or prepared for those species? The Forest Service cannot categorically
exclude Badger allotment from complete NEPA review unless it proves monitoring indicates
current grazing management is meeting or satisfactorily moving towards the LRMP objectives
for the all threatened, endangered, and sensitive species on the allotment.
4. Range Management
A. Requirements Necessary to Meet Objectives
The LRMP sets out three key elements necessary to meet range and other resource
objectives: 1) coordinated management of all resources in the Forest, 2) updating outdated
allotment management plans, and 3) annual monitoring. LRMP at 4-77. Since the second factor
has been discussed in the above sections (e.g. ensuring that grazing does not negatively impact
riparian areas via monitoring and that other resource objectives are being met), the second and
third factors will be discussed below.
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The LRMP states that allotment management plans (AMP) will require reanalysis or
updating to meet the LRMP objectives. LRMP at 4-26. The AMP for Badger allotment is 36
years old and has yet to go through a revision process. According to the White River Watershed
Analysis, the AMP was supposed be revised in 1998. White River Watershed Analysis,
Appendix C-35 (August 1995). Why has the plan not been revised? How can the Forest Service
claim that current grazing management is meeting or satisfactorily moving toward attainment of
LRMP objectives when the AMP directing current grazing management is so outdated?
In addition, the LRMP requires annual forage utilization monitoring on the allotment to
meet range objectives. LRMP at 4-26; Table 5-2. As previously discussed, no forage utilization
monitoring was completed on the allotment from 2001 through 2004. Further, no monitoring was
conducted in Owl Hollow pasture from 1999 to present. In addition, the majority of the
monitoring records from 1996 through 2000 failed to list stubble heights, so it is questionable as
to how utilization percentages were accurately determined. See Monitoring Documents in FOIA
Response to Bark, dated Feb. 23, 2007. The Forest Service cannot claim that current grazing
management is meeting or satisfactorily moving toward range objectives when there is little to
no monitoring data to support such a claim.
B. Public Safety
According to the LRMP, “Livestock should be controlled to minimize safety hazards.”
LRMP, FW-297. The allotment includes a portion of Badger Creek Wilderness, which contains
portions of five popular hiking trails (Trail No. 460, 468, 469, 470, and 479), contains portions of
two other trails (Trail No. 457 and 462), and includes two campgrounds (Bonney Crossing and
Little Badger). As such, the potential for cattle-related injury exists. Please explain how this
standard is being met on Badger allotment.
b. Allotment Management Plan
The AMP for the Badger Allotment sets forth the range resource management objective,
which is to “receive full and proper use of the range resource, subject to the criteria of having no
measurable affect on the other resources (water, timber, wildlife, recreation).” Badger Allotment
Range Management Plan at 1. To measure the impact of grazing on these other resources, the
AMP lays out various criteria, some of which are outdated due to superceding laws that have
come into effect (e.g. Clean Water Act). Those that appear to remain applicable are listed below.
SOILS – Cattle should not prevent soils from moving into or remaining at a good soil
rating with a stable upward trend based on the most recent range condition rating method.
RECREATION – Repeated complaints of cattle use made by recreationists who use
improved campgrounds will be considered a conflict between the recreation and cattle
use.
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WILDLIFE – The key area to be measured against will be the big game winter
range…Total summer forage use by cattle and big game will not exceed the proper use
factor for the key species in this area.
RANGE – Cattle use will not prevent the range resource from moving into or remaining
at a good rating with a stable or upward trend….
Id. at 2.
The Forest Service failed to adequately explain how these criteria will be met by
continuing current management in the scoping letter. The agency briefly mentioned that the
objectives with regard to recreation and wildlife are being met, but gave no explanation as to
how. For instance, with regard to recreation, the Forest Service merely stated, “There have been
minimal conflicts with livestock and recreation in previous years.” What conflicts have
occurred? Considering the number of hiking trails and campgrounds in the allotment, the Forest
Service discuss what complaints and conflicts have occurred between recreationists and cattle to
prove that current grazing management is meeting or satisfactorily moving toward the recreation
objective above (as well as the public safety objective previously mentioned).
Overall, the Forest Service must give a detailed explanation of how monitoring indicates
current grazing management is meeting or satisfactorily moving toward these objectives. Since
forage utilization monitoring records were inadequate or incomplete for numerous years on the
allotment (See previous discussions in Sections 1(e) and 2(a) above) and the LRMP requires
annual forage utilization monitoring on the allotment to meet range objectives, the Forest Service
cannot successfully make such an argument. Consequently, this allotment must undergo a
complete NEPA review.
B. Extraordinary Circumstances Exist on the Allotment, Which May Have
Significant Effects
Another criterion that the Forest Service must meet to categorically exclude grazing
management decisions from NEPA review is that “the decision is consistent with agency policy
concerning extraordinary circumstances.” The Forest Service Handbook states that “[i]t is the
degree of the potential effect of a proposed action on these resource conditions that determines
whether extraordinary circumstances exist.” FSH 1909.15.30.3(2). The Ninth Circuit has
recently stated the rule more broadly: that “[a] categorical exclusion cannot be used if
extraordinary circumstances exist.” High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641
(9th Cir. 2004). The scoping letter inappropriately fails to discuss which extraordinary
circumstances are present on Badger allotment, much less explain why there will be no
significant effect on them. The decision should do so.
The Forest Service Handbook (FSH) lists the resource conditions that should be
considered in determining whether extraordinary circumstances related to the proposed action
warrant further analysis and documentation in an EA or EIS. These circumstances include: a)
Federally listed threatened or endangered species or critical habitat, or Forest Service sensitive
species; b) Floodplains, wetlands, or municipal watersheds; c) Congressionally designated areas,
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such as wilderness, wilderness study areas, or national recreation areas; d) Inventoried roadless
areas; e) Research natural areas; f) American Indians and Alaska Native religious or cultural
sites; and g) Archeological sites or historic properties or areas. FSH 1909.15 Chapter 30.3.2.
Four of the seven extraordinary circumstances exist on Badger allotment. The allotment
contains federally listed threatened species and Forest Service sensitive species; floodplains and
wetlands; wilderness, proposed wilderness, and a proposed National Recreation Areas; and
inventoried roadless areas. The presence of the extraordinary circumstances, as well as the
impacts that the grazing is likely to have on them, should preclude the use of a categorical
exclusion.
1. Federally Listed Threatened Species and Sensitive Species
There are at least two federally listed threatened species, one Forest Service sensitive fish
species, and three Forest Service sensitive plant species that could be significantly affected by
livestock grazing on Badger allotment. All will be discussed below.
Federally threatened winter steelhead are present in Fifteenmile Creek, which is a 303(d)
listed stream under the Clean Water Act. The top headwaters of Cedar Creek, a tributary to
Fifteenmile Creek, are within the allotment boundary and cows currently have access to the
creek when they are in the Friend pasture from July 15 to September 30. Cedar Creek is
considered a priority reach to increase low flows and a slight priority to restore key habitat
quality and diversity for steelhead. Draft Fifteenmile Subbasin Assessment at 52. Livestock
grazing could have significant effects on steelhead if cows are continually permitted to access
Cedar Creek since cattle seek out water, forage, and shade in riparian areas, which can lead to
trampling, overgrazing, bank instability, soil erosion, and impaired water quality. See Belsky et.
al. As such, the Forest Service must do a full NEPA analysis to determine how best to address
this issue and change current grazing management accordingly.
Northern spotted owls (NSOs), which are listed as federally threatened, are assumed to be
present on the allotment in Douglas Cabin and Surveyor’s Ridge LSRs. In mentioning the
presence of NSOs on the allotment, the scoping letter states that “[t]here are minimal conflicts
with livestock grazing, as cattle prefer open, grassy areas which are not characteristic of the
LSRs.” However, as previously discussed on p.10 herein, the Forest Service merely dismisses
the potential effect of livestock grazing on NSOs and fails to consider the impact cows have on
riparian areas within LSRs, which are preferred habitat for NSO nesting and foraging, especially
in Surveyor’s Ridge LSR. See Draft Fifteenmile Subbasin Assessment at 79. As such, the Forest
Service must do a complete NEPA analysis to determine how best to avoid the potential effects
of grazing on Northern Spotted owls and their habitat in the allotment.
Redband trout, which are listed as sensitive in Forest Service Region 6, are present within
the majority of streams on the allotment. As discussed on p.7-8 herein, excessive stream
temperatures, sedimentation, and bank stability problems have been documented on these
streams at monitoring locations within the allotment in previous years (e.g. excessive
sedimentation (25%) documented in redband trout spawning areas in Little Badger Creek). See
WRWA at 5-7, 5-20; Oregon DEQ Water Quality Assessment Database; White River Watershed
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Assessment at 92. The White River Watershed Analysis acknowledges the correlation between
livestock grazing and water quality problems, as cattle trample stream banks due to their
preference for riparian areas for shade, forage, and water, which results in sedimentation,
elimination of vegetative cover, reduction of stream shade, increased width to depth ratio of
channels, and, ultimately, increased stream temperatures. WRWA at C-40. The WRWA also
notes that cattle in Badger allotment are poorly distributed and tend to drift into riparian areas.
Id. at F-3. Further, according to the WRWA, livestock grazing is one of the greatest apparent
threats to endemic Redband trout in the Jordan subwatershed. Id. at C-54. Since livestock
grazing causes and/or contributes to water quality problems in streams important to redband trout
on the allotment, there are potential significant effects on the species under the proposed action.
Thus, the Forest Service must do a complete NEPA analysis here.
There are also at least three Forest Service R6 Sensitive plant species present on Badger
allotment: Arabis Sparsiflora, Botrychium Minganense, and Astragalus Howellii. WRWA at
Appendix E. Please see the discussion of the specific location and threats to these species on p.89 herein. Livestock grazing is a potential threat to Arabis Sparsiflora due to overgrazing of
individual plants, soil erosion, and the introduction of invasive plants. Id. at E-8. In addition,
livestock may have an adverse impact on Botrychium Minganense due to the effects on native
plants from overgrazing (cropping plants to ground level, eliminating above-ground growth) and
increased trampling, soil compaction, and introduction of exotic weeds. See Management
Recommendations for Mingan moonwart at 7. No studies have been conducted to determine the
effects of livestock grazing on Astragalus Howellii, so the WRWA recommended that the Forest
Service conduct such studies. WRWA at E-9. Since livestock grazing in Badger allotment may
significantly affect Arabis Sparsiflora and Botrychium Minganense, the Forest Service must do a
full EA or EIS. Further, the Forest Service should do a full NEPA analysis to determine the
effects of grazing on Astragalus Howellii.
2. Floodplains and Wetlands
Floodplains and wetlands are present throughout Badger allotment, containing habitat for
numerous amphibians, mollusks, and birds. There are at least two rare and at-risk amphibians in
Jordan Creek within allotment boundaries: Tailed frog and Cascades frog. Both are federal
candidates for listing under the ESA and state vulnerable species in Oregon. WRWA at 5-43.
Since livestock have a preference for riparian areas and can access many of the wetlands and
floodplains on the allotment, including those around Jordan Creek, there are potential significant
effects on these areas and the species that depend upon them. Have surveys been conducted to
determine what amphibians, mollusks, and birds are present in wetlands and floodplains on the
allotment? What is the current condition of the floodplains and wetlands on the allotment? Has
the Forest Service monitored the effects of livestock grazing on floodplains and wetlands in the
allotment? The Forest Service cannot successfully argue that livestock grazing will have no
significant effects on floodplains and wetlands if it has not monitored the areas to determine
impacts and/or has not conducted adequate surveys to determine what species depend upon those
areas.
3. Wilderness, Proposed Wilderness, and National Recreation Areas
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Badger allotment overlaps the western portion of Badger Creek Wilderness, which was
designated in 1984 to “promote, perpetuate, and preserve the wilderness character of the lands,
protect watersheds and wildlife habitat, preserve scenic and historic resources, and promote
scientific research, primitive recreation, and inspiration to the benefit of all American people….”
Oregon Wilderness Act, P.L. 98-328 (1984). The allotment also contains proposed wilderness
additions, a proposed National Recreation Area, and a proposed Wild and Scenic River corridor,
all of which are pending consideration in the U.S. Senate. See Sen. 647, 110th Cong. (2007).
The Forest Service dismisses the effects of grazing on Badger Creek Wilderness in the
scoping letter, claiming that “[c]attle use tends to be light to none within the wilderness area,
primarily due to low levels of forage and very steep terrain.” However, that is a very broad
generalization and not entirely accurate. For instance, livestock can access a portion of Tygh
Creek within the wilderness boundary in T.3S, R.11E, Section 13. In fact, numerous cut banks
were documented just south of the wilderness boundary in a 1997 Forest Service survey,
suggesting that utilize that area and potentially access the wilderness just above it. See White
River Watershed Assessment at 92. Further, cattle can access a good portion of the wilderness
area on the west side of FS Road 27, including a portion of Ball Point Trail (Trail No. 468).
Cattle could have significant effects on the recreation in this area (altering the scenic values and
posing potential threats to human safety), soil stability (compaction of fragile biological crusts in
this drier climate), FS R6 sensitive plants and animals, and water quality in Tygh Creek.
Therefore, the Forest Service must do a full NEPA analysis because livestock grazing has
potential significant impacts on important resource values within Badger Creek Wilderness.
Additionally, the proposal of wilderness additions, a Wild and Scenic River corridor, and
a National Recreation Area within the allotment require the Forest Service to complete a NEPA
analysis on this allotment. The U.S. Senate is currently considering the Lewis and Clark Mt.
Hood Wilderness Act of 2007, which includes wilderness additions along the southeastern
portion of Badger Creek Wilderness, a Wild and Scenic River corridor along Fifteenmile Creek
(including the upper headwaters of Cedar Creek within the allotment), and a National Recreation
Area designation that extends across the entire northern portion of the allotment. See Sen. 647,
110th Cong. (2007); see also attached Badger Creek proposed wilderness additions map and
Fifteenmile Creek proposed WSA and NRA map. Livestock grazing could detrimentally affect
all of these areas and the species and habitat within, as will be discussed below.
The proposed additions to Badger Creek Wilderness include areas that are accessible to
cattle, most notably above Douglas Cabin Road and FS Road 2710 (T.3S, R.11E, Section 23)
and above Badger Creek near Bonney Crossing Campground (T.3S, R.11E, Section 35; T.4S,
R.11E, Section 2). The proposed addition in Section 23 contains an intermittent tributary to Little
Badger Creek, which contains habitat for sensitive Redband trout and may contain habitat for
sensitive plant species, like Botrychium Minganense. As previously documented within,
livestock grazing can significantly affect these species (e.g. sedimentation in Redband trout
spawning habitat in Little Badger Creek and potential adverse affects to plant species due to
overgrazing and trampling). As such, livestock grazing could significantly impair the wilderness
values of this area. In addition, the proposed addition in Sections 35 and 2 contain a small
portion of Badger Creek and adjacent uplands. The wilderness values of that area could also be
significantly affected by livestock grazing.
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The Wild and Scenic Rivers Act protects free-flowing rivers with "outstandingly
remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar
values." 16 U.S.C. § 1271 (1978). Such rivers must be administered to protect the outstanding
remarkable values for which they are designated with the primary emphasis on preserving
aesthetic, historic, scenic or scientific values. Id. The proposed Wild and Scenic River corridor in
the Mt. Hood Wilderness Act includes the upper headwaters of Cedar Creek, a tributary to
Fifteenmile Creek. As previously discussed on p. 13 herein, Fifteenmile Creek contains
important habitat for federally threatened winter steelhead. Cattle can currently access Cedar
Creek and other portions of the corridor, which would very likely significantly affect the
outstanding remarkable values of the river. As such, considering the high likelihood that this
designation will be enacted, the Forest Service must complete a full NEPA review of the
proposed action.
The Mt. Hood Wilderness Act also includes a National Recreation Area (NRA), which
the entire portion across the northern boundary of the allotment and overlaps the Wild and
Scenic River corridor. NRAs are designated primarily to protect important recreation, scenic,
scientific, and natural values for the enjoyment of current and future generations. The
designation of an NRA will likely bring many more people to this portion of the allotment,
which could increase the frequency of human/cow conflicts. Further, cows could negatively
impact the scenery and natural values in the NRA due to their tendencies to drift into riparian
areas, resulting in degradation of stream banks and water quality, as well as their other negative
impacts on the ecosystem (e.g. introduction of invasive plant species, impacts on T, E, and S
species’ habitat, impacts on natural predators, etc.). Due to the potential significant effects that
livestock grazing could have on the recreation, scenic, scientific, and natural values within the
NRA, the Forest Service must do a full NEPA analysis for the proposed action.
II.
AN EIS OR EA SHOULD BE PREPARED PURSUANT TO NEPA.
NEPA requires the Forest Service to prepare an EIS for all major federal actions that
“may significantly affect the quality of the human environment.” 42 U.S.C. § 4332(2)(C). If an
agency decides not to prepare an EIS, it must supply a “convincing statement of reasons” to
explain why a project’s impacts are insignificant. Blue Mtns. Biodiversity Project v. Blackwood,
161 F.3d 1208, 1212 (9th Cir. 1998) (also holding that a “plaintiff need not show that significant
effects will in fact occur” that it is enough for the plaintiff to raise “substantial questions whether
a project may have a significant effect” on the environment). Because this decision involves
grazing management decisions for areas determined to be in violation of applicable Forest Plan
standards and affects populations of declining threatened species, this project may require an EIS.
At the very least, an EA should be prepared to determine whether there are significant impacts.
When completing the EIS or EA, please be sure to analyze the following issues, which
were given inadequate treatment in scoping letter.

Ensure that the analysis adequately assesses and discusses the cumulative effects of
continued grazing. The analysis should include quantifying previous and cumulative
impacts when possible.
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
Explain how the preferred alternative meets the mandatory standards in the NWFP and
LRMP, in compliance with the National Forest Management Act, 16 U.S.C. § 1604(i).

Conduct viability assessments for regional fish, wildlife, and plant species populations
most affected by livestock grazing.

Evaluate the population trends of all management indicator species, based on field
monitoring and relationships of populations to habitat changes caused by grazing.

Disclose the numbers of livestock and AUMs allocated in the planning area.

Evaluate not only the effects of livestock grazing on riparian areas, but also on the health
of upland areas.

Discuss all aspects of riparian conditions, including the presence of water quality-limited
streams and whether livestock grazing contributes to non-complying water parameters
such as temperature, turbidity, bank stability, and any changes in density or type of
riparian vegetation that have occurred either due to previous grazing or that are likely to
occur as a result of the proposed project.

Discuss how far current soil conditions deviate from their potential natural conditions and
how long the Forest Service anticipates it will take to restore soils to normal function.
Also, please include a detailed discussion of the impacts of livestock grazing on soils,
and the Forest Service’s solutions to address these impacts.

Discuss the effectiveness of any Best Management Practices.

If biological crusts are present in the project area, discuss their importance and include an
inventory and evaluation of their current status over the entire planning area, the causes
of their degradation, concomitant losses of ecosystem function, and how they will be
recovered throughout the planning area.

Discuss the spread of noxious weeds by livestock, including the effects on native plants
and ecosystems, the role of soil disturbance by livestock in the spread of weeds, and the
role of biological soil crusts in preventing establishment of weeds.

Discuss the project area’s suitability and capability for grazing.
III.
CONCLUSION
The use of a categorical exclusion on this allotment is entirely inappropriate and illegal
because: 1) monitoring fails to indicate that current management on the allotment is meeting or
moving toward the goals and objectives in the LRMP and NWFP, and 2) the presence of
federally listed threatened species and Forest Service sensitive species; floodplains and wetlands;
and wilderness, proposed wilderness, and a proposed National Recreation Area on the allotment
17
constitute extraordinary circumstances that may be significantly affected by the proposed action.
Since the categorical exclusion test under P.L. 108-447 is not met here, the Forest Service must
complete a full NEPA analysis.
Thank you for your consideration of our comments. Please keep Bark on the project
mailing list and continue to update us with any developments, such as the release of a decision.
If you have any questions regarding these comments, please do mot hesitate to contact me.
Sincerely,
Laurele Fulkerson
Bark
P.O. Box 12065
Portland, OR 97212
(503) 331-3174
lfulkerson1@yahoo.com
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