United States

Department of

Agriculture

Forest

Service

Washington Office

14th & Independence SW

P.O. Box 96090

Washington, DC   20090-6090

 

 

File Code:

1570-1 (L)

Date:

March 27, 2002

Route To:

 

 

 

Subject:

Appeal Reviewing Officer Recommendation

Appeal No. 02-13-00-0001

 

 

To:

Appeal Deciding Officer, Gloria Manning

 

This is my review of the substantive quality and correctness of the December 21, 2001, decision made by Gary A. Morrison, Region 1, Director of Recreation, Minerals, Lands, Heritage and Wilderness (hereinafter “Director”), in his Decision Notice and Finding of No Significant Impact (DN/FONSI) to exchange approximately 200 acres of federal land administered by the Beaverhead-Deerlodge National Forest for approximately 160 acres of non-federal land known as the Thayer Creek Homestead.  This project is located in the Beaverhead Mountains at the head of the Big Hole valley, about 12 miles south of the town of Jackson, in Beaverhead County, Montana.  This decision selects Alternative 1 of the Thayer Creek Land Exchange Environmental Assessment (EA) prepared under the National Environmental Policy Act (NEPA) provisions.

 

As part of my review, I have considered the arguments presented in the appeal filed by Chris Krupp on behalf of the Western Land Exchange Project and the Ecology Center.  Comments received from interested parties are summarized below.  I have reviewed the Forest Service’s decision documentation, its supporting EA, and other documents found in the project record.  In accordance with my authorities under 36 CFR 215.19, here is my recommendation.

 

Appeal Summary

 

(a) Appellant objections

 

Appellants raised concerns that the Forest Service violated NEPA by failing to consider in detail a deed restriction/protective covenant alternative on the Governor Creek tract.  Similarly, they claim the Agency violated 36 CFR 254.3(h) and thereby failed to protect the public interest in the proposed land exchange by not restricting the future uses, particularly logging, of the Governor Creek tract.  Appellants also claim the Forest Service violated NEPA by not considering an alternative that prohibited grazing on the non-federal land coming into public ownership.  They also contend that the Agency violated NEPA by not identifying the reasonably foreseeable future uses of the Governor Creek tract once in private ownership beyond those uses provided by the non-federal party to the exchange; by not analyzing the environmental impacts of grazing on both the acquired non-federal lands and on the conveyed federal lands; by not disclosing the cumulative impacts of planned management activities on lands surrounding the exchange tracts; and by not identifying or analyzing mitigation measures to reduce impacts to wildlife corridors from the proposed exchange.  Appellants assert that the Forest Service decision was arbitrary and capricious under the Federal Land Policy Management Act (FLPMA) for failing to analyze the impacts of reasonably foreseeable future uses of the Governor Creek tract.  They also assert that the Forest Service violated FLPMA because the land exchange does not well serve the public interest. 

 

(b) An informal disposition meeting was held on March 18, 2002, by telephone.  The meeting did not result in any substantial movement on the issues and the appellant did not withdraw his appeal of the decision.

 

(c) Interested Party comments – There were no interested parties.

 

Findings

 

(a) Consistency of the decision with Forest Service policy, regulation, and law.

 

I focused my review on the questions pertaining to whether the alternatives developed by the Forest Service were adequate under the NEPA, whether the Forest Service properly determined that the exchange protected the public interest under the FLMPA and the Administrative Policy Act (APA), and whether the Forest Service was obligated to impose a deed restriction or conservation easement on the Governor Creek tract under NEPA and pursuant to 36 CFR §254.3(h).  I find that the decision complied with the requirements of FLPMA and the APA, but did not comply in its entirety with NEPA.

 

     (1) Deed Restriction/Protective Covenant.  In particular, I find the Forest Service failed to consider sufficiently a deed restriction/protective covenant alternative in the EA of the proposed action.  While the EA did consider this type of alternative, it indicates that no restrictive covenant or easement is warranted to comply with legal requirements or meet Forest Plan objectives.  EA, at II-5.  The U.S. Court of Appeals for the Ninth Circuit, however, in Muckleshoot Indian Tribe v. United States Forest Service, 177 F. 3rd 800 (9th Circuit, 1999), a case involving another land exchange, held that a deed restriction is more consistent with the Forest Service’s basic policy objectives and must be fully analyzed.  While I find that the facts in the Muckleshoot case differ substantially from those in this exchange and is not determinative of this appeal, the Forest Service does need to consider the deed restriction/protective covenant alternative more than it did with regard to the asserted needs behind the exchange.

 

     (2) Public Interest Determination.  With regard to the public interest determination under FLPMA and the APA, I find that Mr. Morrison’s decision that this exchange is in the public interest, considered all relevant factors and was rational. 

 

When considering public interest, the Forest Service is bound by law and policy to look at the exchange as a whole and not just whether the reasonably foreseeable uses of the Governor Creek tract were addressed.  Section 206 (a) of the Federal Land Management and Policy Act of 1976 requires that all land exchanges be in the public interest.  First, the resource values and public objectives served by the non-federal lands must equal or exceed those being conveyed, and, secondly, the intended use of the conveyed federal land must not substantially conflict with management of adjacent federal lands. 

 

In this exchange, the non-federal lands are well within the boundary of the National Forest, and their acquisition consolidates land ownership; thus, reducing administrative costs and improving forest management.  These parcels were identified through the planning process as desirable for acquisition because of their location and multiple resource values, such as wildlife and riparian habitat, elk winter range, grazing potential, public accessibility and recreational opportunities.  The risk of new, isolated developments and subdivisions on the Thayer Creek tract within the National Forest boundary will be avoided, which is particularly important for reduced impacts to wildlife.

 

The federal parcel to be conveyed to the Hairpin LC will be managed in substantially its current state.  This parcel will retain its current values for wildlife habitat and grazing.  Hairpin LC has indicated that it does not intend to log the old-growth timber or build recreation residences on the parcel.  Even if it did, the biological evaluation (BE) concluded that the loss of habitat would not cause significant adverse affects on threatened and endangered species or sensitive and management indicator species.  BE Appendix at 5, 13.  In addition, the DN/FONSI concluded that even if the private use of Governor Creek included recreational residences and timber harvest, such uses would not conflict with the established management objectives on adjacent federal lands.  DN/FONSI at 12.  Completion of the exchange will result in a reduction of about one mile of private/National Forest property boundary.  Landline location, posting and maintenance, as well as potential boundary disputes, will also be significantly reduced.  Further, the scenic and recreational qualities of the Thayer Creek tract exceed those of the Governor Creek tract as noted in the administrative record.  EA at III, 2, 3, and 9.  I conclude from this that

Mr. Morrison considered all relevant factors and made a rational decision that the exchange is in the public interest.

 

     (3) 36 CFR §254.3(h).  As appellants indicate, this regulation was promulgated under FLPMA to ensure that the public interest is protected in a land exchange of the sort represented by the Thayer Creek and Governor Creek tracts.  This regulation states that the Forest Service shall reserve rights or retain such interests as needed to protect the public interest as appropriate in land exchanges.  I find that since the Forest Service correctly determined this exchange as proposed protects the public interest, no further reservation of rights or retention of interests in Governor Creek is required.

 

     (4) Alternatives Under NEPA.  Appellants claim the Forest Service violated NEPA by not considering alternatives that analyzed the effects of grazing or that prohibited grazing on the non-federal land coming into public ownership.  Even though appellants did not directly raise the latter issue in their comments on the EA, the Forest Service considered the argument on appeal.  I find, however, that the record does not support appellants’ contentions.  The Forest Service listed the following needs for the proposed action:  the consolidation of land ownership on Thayer Creek, the acquisition of valuable fisheries and wildlife habitat, the continuation of current public uses and activities according to the applicable land management plan, including livestock grazing, hunting, fishing, and assurance that the future land uses of Thayer Creek are compatible with management and uses of the surrounding national forest.  An alternative prohibiting grazing does not meet two of these needs:  the continuation of current grazing and compatibility with the management and use of surrounding national forest.  Since NEPA requires that alternatives meet the needs of the proposed action, Mr. Morrison correctly excluded this alternative from consideration.  Further, I find that the EA and DN/FONSI did consider the impact of continued grazing on the Thayer Creek and Governor Creek tracts.  See EA, Chapter II at 6; Chapter IV at 4; DN/FONSI at 8; and Exhibit B at 8-9.

 

     (5) Appellants contend that the Agency violated NEPA by not identifying the reasonably foreseeable future uses of the Governor Creek tract once in private ownership beyond those uses provided by the non-federal party to the exchange.

 

I find that the EA analyzed all reasonably foreseeable future uses of the Governor Creek tract, including those uses which the Hairpin Ranch provided, and the likely uses which might otherwise occur.  The biologist who performed the BE explicitly assumed that the 18 acres of timber on the Governor Creek tract would likely be logged.  EA, Appendix at A-9.  The DN/FONSI itself states that even if the timber were logged or recreational residences built, such uses would not conflict with the management objectives on adjacent federal lands.  DN/FONSI at 12. 

 

     (6) Appellants contend that the Forest Service violated NEPA by not disclosing the cumulative impacts of planned management activities on lands surrounding the exchange tracts.  I find that the Forest Service did disclose the cumulative impacts of planned management activities on lands surrounding the exchange tracts.  The Thayer Creek tract is surrounded by National Forest land.  Both the EA and the DN/FONSI spelled out the management of that federal land under the current Forest Land Management Plan.  See EA at 1-9; DN/FONSI at 8-11.  Similarly, the Governor Creek Tract is surrounded by the Hairpin Ranch and National Forest System land.  The EA and DN/FONSI both disclosed and analyzed the cumulative impacts of planned management activities on those lands.  See EA at 1-9; DN/FONSI at 8-11.  Again, even though the EA speaks directly to the Hairpin Ranch’s professed future activities, the EA and DN/FONSI analyzed all reasonably foreseeable future uses, including timber harvest and recreational residences.

 

     (7) Appellants claim that the Forest Service violated NEPA by not identifying or analyzing mitigation measures to reduce impacts to wildlife corridors from the proposed exchange.  I find that the Forest Service did identify and analyze the need for mitigation measures in compliance with NEPA.  The analysis properly concluded that the exchange would not have a negative impact on the existing abundant opportunities for movement and dispersal of wildlife.  See EA at 5-7, Appendix at 12; DN/FONSI at 8-9.

 

(b) How well the decision responds to the issues and public needs, and fits with overall management objectives and national policy.

 

After a review of the record, I find the decision establishes a purpose and need which comport with management objectives for the Beaverhead-Deerlodge National Forest, in general, and for the particular management areas involved.  The exchange would return the Thayer Creek tract to the National Forest System and reduce administrative costs, acquire valuable fisheries and wildlife habitat and continue existing public uses, such as grazing, hunting, and fishing. 

 

(c) Effectiveness of public participation activities and use of comments.

 

After a review of the record, I conclude that the Forest Service effectively provided for public participation and adequately used the comments received.  The information contained in Volume 2, Tab D of the administrative record in this appeal, demonstrates the varied and thorough efforts of the Forest Service to make the public aware of the proposed action, including news releases, newspaper notices, and a field tour of the proposed exchange.

 

 

 

 

(d) Appellant’s requested changes and objections.

 

I find that the appellant is knowledgeable about the project and its environmental consequences, and asserted the requested relief before the decision was made.  I also find that in all aspects, but one, Mr. Morrison was aware of and addressed the appellant’s concerns in his decision. 

 

Recommendation

 

Based upon my review, I find that the decision does not meet substantive requirements of NEPA in one aspect.  Therefore, I recommend that Mr. Morrison’s decision be reversed with regard to the consideration of a deed restriction/protective covenant alternative, and sustained with regard to all other claims of the appellant.

 

/s/ James M. Williams

for

 

JACK L. CRAVEN

Director of Lands

Appeal Reviewing Officer