File Code:	1570(2002-02-04-0006) A215
	Date:	March 18, 2002
JEFF BERMAN EXECUTIVE DIRECTOR COLORADO WILD PO BOX 2434 DURANGO CO 81302

Dear Mr. Berman:

Pursuant to 36 CFR Part 215, I have reviewed the appeal record with regard to your appeal of the decision of Forest Supervisor Robert Storch concerning the Hightower Porter Mountain Timber Sale. I have also considered the written recommendation of the Appeal Reviewing Officer respecting the disposition of your appeal. The Reviewing Officer’s review focused on the decision documentation developed by the Forest Supervisor and the issues raised in your appeal.

Decision

The Reviewing Officer, based on review of the record, found no evidence of the decision violating law, regulation, or policy, and recommended the decision be affirmed in whole with respect to your appeal. After my review of the appeal record, I concur with the Appeal Reviewing Officer’s recommendation and I adopt and incorporate it into my decision. It is enclosed and your request for relief is denied.

My decision constitutes the final administrative determination of the Department of Agriculture.

Sincerely,

/s/M.M. UNDERWOOD, JR.

M. M. UNDERWOOD, JR.

Acting Deputy Regional Forester, Resources

Appeal Deciding Officer

Enclosure

Cc: Jeff Burch

Ken Anderson

File Code:	1570(02-02-04-0006)	Date:	March 12, 2002
Route To:
Subject:	Recommendation Memorandum for Hightower Porter Mountain Timber Sale
To:	Appeal Deciding Officer

Appellants: Colorado Wild

I have reviewed the appeal record with respect to the referenced appeal of the decision of Forest Supervisor Robert Storch concerning the Hightower Porter Mountain Timber Sale. My review focused on the decision documentation developed by the Forest Supervisor in reaching his decision, issues raised in the appeal, and comments submitted by interested parties. Pursuant to 36 CFR §215.13(f)(2), this will constitute my written recommendation concerning the disposition of the appeal, and I am forwarding the appeal record to you.

BACKGROUND

The Forest Service proposes to harvest timber and conduct other associated activities in the Buzzard Creek drainage, Grand Valley Ranger district, Mesa County, Colorado.

The objectives of both projects are to: (a) contribute toward providing commercial forest products to local dependent industries from National Forest lands identified as “suitable” for timber production in the Grand Mesa, Uncompahgre and Gunnison National Forest Land and Resource Management Plan (Forest Plan), as amended in 1991; and (b) to promote a diversity of age classes among the aspen stands in the area, which increases resistance to insect and disease infestation.

RELIEF REQUESTED

Appeal pages 12-13

1. Prohibit implementation of the Hightower Porter Mountain timber sale until such time

as the GMUG NF reinitiates the NEPA public participation process, granting Colorado

Wild 45 days, as with the original comment period in August-September 2001, to review

and legally comment on the EA, BE/BA, FONSI, and other documents in the project

files.

2. Adequately analyze impacts to and monitor for all MIS potentially present or with

suitable habitat in the DU, including the size (# of individuals), breeding success, and

connectivity of populations., Demonstrate compliance with viability directive, case law,

and Region 2 interim directives stemming from the Black Hills Forest plan appeal

decision.

3. Gather and consider actual population data for PETS, including the size (# of

individuals), breeding success, and connectivity of populations. Demonstrate compliance

with viability directive, case law, and Region 2 interim directives stemming from the

Black hills Forest plan appeal decision.

4. Disallow logging on any slopes>20% without site specific soil analysis that

demonstrating that no irretrievable commitment of resources would occur and

the required mitigation as per the Amended LRMP. Otherwise, prohibit any such logging.

5. Enjoin logging in any units identified as having “extreme,” “active,” “moderate,” or

“low” slope failure probability.

Any review of this appeal must include an issue-by-issue “statement of reasons” responding to each issue raised in the appeal. Friends of the Bow v. Thompson, Order dated Aug 29, 1994 (Weinshenk, J.).

ISSUES AND DISCUSSION

I. Administrative Procedures Act (APA) – Standard of Review p. 3

Discussion

No Response Necessary.

II. The FONSI and EA violate the NEPA p. 4

A. Public Notice Process Violates the NEPA p. 5

Discussion

Law and regulation state there must be an opportunity for the public to comment on EA (36 CFR 215.5 and .6). The Appeal Record shows the Forest responded to the request that Jeff Berman be put on the mailing, and the Appellant acknowledges that project file indicates the documents were sent to Jeff Berman and Colorado Wild. The Forest cannot be held responsible for mail delivery problems. Since the availability of the EA for comment was published in the paper of record, and the Appellant knew the EA was pending, an inquiry to the Forest about the Appellant’s copy of the EA would have been appropriate. NEPA has not been violated because the Forest made a good faith effort at providing copies of the EA for public comment.

B. The EA does not constitute a “High Quality” Analysis p. 5

Discussion

The appellants allege that the EA does not contain a “High Quality” analysis of potential water quality impacts because it fails to disclose that the watershed involved is a suspected water quality limited watershed, with water quality concerns which could potentially be exacerbated by slope failures resulting from the proposed activities.

Water quality/Erosion/Sedimentation was identified as a key issue during project planning (DN-3-13; EA p. 9). The affected environment in the EA notes that Buzzard Creek and Porter Creek are “streams of concern” based on water quality monitoring data and the reader is referred to the Water Quality Affected Environment Report in the project file for more information (EA p. 30).

The project file contains a detailed and complete description of the affected environment for water resources (WA-1), which is summarized in the EA (EA pgs. 27-32). The Water Quality Affected Environment report discloses that the IWWI project indicates Buzzard Creek (5^th level) watershed is impaired based on water quality (sediment and bank damage) and geomorphic concerns (range management, roads and slumping) and has a high vulnerability due to its landslide potential (WA-1-2). Several field investigations of streams in the project area were completed between 1992 and 2000 using techniques including T-WALK and Proper Functioning Condition (PFC) protocols. These surveys indicate that streams in the project area are “impaired” (T-WALK) and/or “functioning at risk” or “non-functioning” (PFC) (WA-1-9 – WA-1-12). However, none of the streams in the project area are listed on Colorado’s 303(d) list of impaired waters (EA p. 30; WA-1-12).

The Forest also monitored water quality parameters including stream temperature, sediment regimes and dissolved oxygen (WA-1-13 – WA-1-15). The data from these investigations is included in the project file (WA-1B; WA-1A) and summarized in the EA (EA pgs. 27-33). The EA and project file indicate that the primary sources of sedimentation causing the water quality concern are of geologic origin and streambank erosion from roads and livestock grazing (DN-2-B9; EA p. 31; WA-1-14).

The water quality and channel morphology data, along with site-specific information on slope stability (see response to issue III. B), was used to design the project and to prescribe site-specific mitigation measures (WA-1-16 – WA-1-19; WA-1-23) to ensure that the proposed activities would have minimal direct, indirect and cumulative effects on water resources (WA-1-16; WA-6; WA-7; EA pgs. 33-37).

Based on the review of the project record and above citations, it is found that the water quality analysis is of “High Quality” as required by NEPA. The Forest disclosed in the project file that the watersheds involved have some water quality concerns. The Forest completed several field investigations using a variety of tools, including water quality monitoring, T-WALK and Properly Functioning Condition, to assess the nature and cause of the water quality concerns. This information was used to prescribe site-specific practices and mitigation measures, and to adequately disclose the direct, indirect and cumulative effects to water quality.

III. The FONSI And EA violate the National Forest Management Act p. 5

A. The EA and FONSI violate requirements to monitor for Management Indicator

Species(MIS) p. 7

Discussion

Appellants contend that the Hightower Porter EA and FONSI violate NFMA and the amended LRMP by: (1) failing to gather actual relevant population data for MIS in some instances; (2) failing to include trend data; (3) failing to demonstrate an ongoing commitment to achieving Forest Plan monitoring and evaluation requirements; and (4) substituting forest wide HABCAP modeling and GMUG MIS Assessment as a proxy for actual population surveys. Furthermore, appellants contend that the EA and FONSI do not comply with the Chief’s decision on the appeal of the Black Hills Forest Plan with regard to MIS.

Scoping comments included requests to identify MIS as a significant issue, and to include an aquatic species (AR DN-1 p. A.5-6). Comments on the EA raised the issue of MIS population data and monitoring data. The forest responded to this comment, in part, by explaining that: information included in the GMUG MIS Assessment was incorporated into the project and supplemented with specific analysis for the Hightower-Porter Mountain area; the BE, BA, and EA addressed the species mentioned in the public comments; and survey and monitoring have been carried out in the area, and will continue as provided by guidelines established by the forest (AR DN-2, pgs. B-5 and 6, comment #7).

Under the Forest Plan, Management Indicator Species (MIS) are selected because their population changes are believed to indicate the effects of management activities (36 CFR 219.19(a)(1)). Requirements to monitor population trends of MIS in relationship to habitat changes are established in the Forest Plan in accordance with the NFMA regulations at 36 CFR 219.19(a)(6) and 219.11(d). Monitoring of population trends is to be done in cooperation with state fish and wildlife agencies, to the extent practicable (36 CFR 291.19(a)(6)). Management indicators that best represent the issues, concerns, and opportunities to support recovery of Federally-listed species, provide continued viability of sensitive species, and enhance management of wildlife and fish are to be selected for the project (FSM 2621.1). The rationale, assumptions, and procedures used in selecting MIS must be documented (FSM 2621.1(4)). The conclusion and interim direction in the Chief’s decision on the appeal of the Black Hills Forest Plan are not applicable to this project.

One of the significant issues identified for analysis in the EA was Management Indicator Species (AR DN-1 p. 9, IDT-7-6). For this project, three MIS (northern goshawk, Rocky Mountain elk, and Colorado River cutthroat trout) were selected for evaluation as MIS. The reasons for their selection, as well as the rationale for not selecting other Forest Plan MIS that occur in the analysis areas, were presented in the EA (AR DN-1 p. 47), as required by FSM 2621.1(4).

Documentation of field surveys, population estimates, and incidental obervations in the project analysis area are included in the administrative record (AR WI-1, WI-2, WI-26-9, WI-22, WI-14). The analysis of effects included estimates of habitat capability under each alternative, and the likely effects on individuals and suitable habitat in the analysis areas (AR DN-1 pgs. 24-25 and 46-59 and WI-26-14 through 30). As part of this project decision, appropriate mitigation measures such as seasonal activity restrictions, retention of snags and down wood, and road management/maintenace/rehabilitation, will be applied (AR DN-3 pgs. 2 through 9).

Implementation monitoring requirements were established to ensure that the project is carried out as planned, that planning assumptions were correct, and that mitigation measures are effective (AR DN-3 pgs. 9 through 11). There is no requirement that “site-specific” monitoring of population trends be conducted. Monitoring of population trend must be designed and conducted at a scale that is appropriate to the distribution and life history characteristics of the individual species. For this reason, MIS population and habitat trend monitoring is properly conducted at the forest plan (or broader) level, and provides a useful context for planning at the project level. The 2001 MIS Assessment compiled the best available information on habitat requirements, species occurrence and distribution, and population and habitat trends forest-wide for 12 of the 17 Forest Plan MIS.

B. Potential for slope failures as a result of logging violates Water Conservation

Practices Handbook, Amended LRMP, and other guidelines. p. 11

Discussion

The appellants allege that the decision violates the Watershed Conservation Practices Handbook, Amended LRMP, and other guidelines regarding slope stability, as it appears several harvest units are located on active unstable slopes. The appellants point to a map entitled “Landslide Susceptibility Map of the Porter Mountain Timber sale” in the project file which shows areas of “extreme” and “active” landslide risk and harvest units in the Porter Mountain area.

The map referred to by the appellants was from a slope stability report completed for a proposed Porter Mountain Timber Sale in 1992. A handwritten note on the abstract page of the report says that the location of the harvest units described in this report do not match with the harvest units analyzed in the 2000 Hightower Porter Mountain EA (SO-1A-2). This could be a source of confusion if the appellants relied solely on the map cited.

Slope stability in the project area was identified as a key issue in project planning (DN-3-13; EA p. 9). The Watershed Conservation Practices Handbook (WCPs) is incorporated by reference (DN-3-2; DN-3-7) and included in the project file (WA-1D). The DN and EA identify WCPs and LRMP guidelines that apply and include them in the project as mitigation measures (DN-3-2; DN-3-6; EA p. 20).

The mitigation measure at issue is “Identify and avoid obvious unstable slopes” (DN-3-6; DN-3-10; EA pgs. 20, 22; IDT-5-6). The Forest Soil Scientist used a number of reports on slope stability in the project area in the analysis to identify potentially unstable and active movement areas (DN-2-B7; EA pgs. 38-40, 81-84; SO-5; SO-2; SO-1; SO-1A). This information was supplemented with field observations of the proposed units (SO-4; SO-3) and past experience including observations of similar types of activities in similar areas as the proposed actions which were completed in past timber sales in these and neighboring watersheds (DN-2-B7 – DN-2-B8; EA pgs. 38-40; SO-5). The Forest Soil Scientist also addressed the question of the 116 acres in the Hightower area that were originally designated as “unsuitable” due to slope stability concerns. After field investigation and consultation with a geotech engineer, it was concluded that this area was incorrectly designated as “unsuitable” (SI-21-1).

While the EA acknowledges that there will be a risk of accelerated slope movement with implementation of this project (EA pgs. 24, 38-40; SO-5), the information gained from the geology and slope stability reports, field observations and past experience were used to design the project to avoid areas identified with the most potential for soil movement so as to minimize the potential risk as much as possible (DN-3-12; DN-2-B7 – DN-2-B8; EA pgs. 38-40; SO-5). The silviculture prescriptions for the proposed harvest units indicate that the Forest Soil Scientist has determined that each unit is not unusually unstable for the area and that irreversible damage would not occur with harvest (SI-24A).

Based on the review of the project record and above citations, it is found that the potential for slope failures as a result of logging does not violate WCP, LRMP and other guidelines. The Forest used existing geologic and slope stability mapping and reports, supplemented with site-specific field observations and past experience to design the project so as to avoid areas with the most potential for slope instability consistent with WCP, LRMP and other guidelines.

C. Regeneration p. 12

Discussion

The appellant states that recommendations contained in Multiple Factors Affect Aspen Regeneration on the Uncompahgre Plateau, West-Central Colorado, by Barry C. Johnston should be adhered to in order to demonstrate that regeneration requirements contained in the LRMP, as amended, will actually occur. However, the appellant then goes on to allege that should these recommendations be adhered to, there would be additional slope instability from logging on ”higher angled slopes.”

The study by Mr. Johnston cited by the appellant was done to assess localized problems with aspen regeneration on the Grand Mesa, Uncompahgre and Gunnison National Forests discovered during routine monitoring of regenerating stands. The study sample was intentionally biased toward stands with regeneration problems (p. 398). Johnston found that the low slope angle (< 10%) on several of the units with regeneration problems contributed to the high water tables which were one of the factors inhibiting regeneration in these units (p. 402). Slope instability was not mentioned as a problem in the harvest units sampled in the study. Mr. Johnston did not, in fact, make recommendations regarding aspen regeneration, rather, he identified several factors which, in combination, made inadequate sprouting more likely (p. 404).

Experience on similar sites on the Grand Valley Ranger District, where this proposal is situated, has shown similar treatments have been certified as fully stocked and exceed LRMP minimum stocking standards (EA, p. 75).

The specialist report on soils speaks to slope stability in regard to timber harvest: “(o)ur resource specialists have observed no increase or indications of accelerated slope movements in the areas that have had timber activities in the past” (Soils report at SO-6-1; EA, p. 40). The planning of and design of the Hightower and Porter Mountain timber sales avoids the areas with the highest potential for slope movement, and any slope movement occurring as a result of implementation of Alternative 1 would be within the range of naturally occurring movement (ibid).

RECOMMENDATION

I recommend the Forest Supervisor’s decision be affirmed in whole with respect to the issues raised by these appellants and appellant’s request for relief be denied.

/s/JOHNNY HODGES

JOHNNY HODGES

Appeal Reviewing Officer