Ms. Paula Shapiro
Lassen Forest Preservation Group
California Wilderness Coalition
1226 Vilas Road
Cohasset, California 95927

Dear Ms. Shapiro:

On April 22, 1999, you filed a notice of appeal on behalf of Lassen Forest Preservation Group and the California Wilderness Coalition (Appellant) pursuant to 36 CFR 215 of the Lassen National Forest, Acting Forest Supervisor Jeff Withroe's Decision Notice (DN) approving Alternative 2 of the Castle Rocks Forest Health Environmental Assessment (EA), signed February 23, 1999.

I have reviewed the entire administrative record, including the Appellant's written notice of appeal, the Decision Notice, Finding of No Significant Impact (FONSI), EA and supporting documentation. I have weighed the recommendation from the Appeal Reviewing Officer and incorporated it into this decision. A copy of the Appeal Reviewing Officer's recommendation is attached. This letter constitutes my decision on the appeal and on the specific relief requested.

DECISION SUMMARY

I reverse the Acting Forest Supervisor's decision to implement Alternative 2, based on findings discussed in Issue 1 below.

APPEAL SUMMARY

For relief, the Appellant requested that the decision be vacated and an Environmental Impact Statement be prepared which would include clear, spatial depiction of road treatments, an improved cumulative watershed effects analysis, and would not include the proposed construction of two forest roads and the proposed reconstruction of two forest roads. See the attached appeal Reviewing Officer's letter for a discussion of the involvement of the Appellant in the environmental analysis process and a summary of interested party comments.

FOREST ACTION

See the attached appeal Reviewing Officer's letter for a complete description of the forest action. In summary, the selected alternative will result in the harvest of timber on 1,099 acres. Connected to this harvest, .5 miles of road will be constructed and 1.5 miles of road will be reconstructed. Other approved actions are: remove small conifers from meadows; install a water guzzler; barricade, decommission, or obliterate approximately 8.5 miles of road.

SCOPE OF DECISION

Decisions made in LRMPs are subject to administrative review under 36 CFR 217 and are not subject to review in project or activity decisions [36 CFR 215.8(a)(1)]. These decisions are considered to be beyond the scope of the project-level decision, and the opportunity to challenge these decisions has been exhausted.

Similarly, Appellants may not: (a) request review of activities that are not "connected" to the project decision being challenged, (b) ask that additional decisions be made that are not "ripe" for decision, nor (c) request consideration of actions which are not reasonably foreseeable.

I have determined that the following objection is not within the scope of the project decision, because it is not an action connected to the proposed action. Your objection states:

The Lassen National Forest has failed to properly implement their Forest Plan as amended by CASPO Interim Guidelines (January 1993) by misinterpreting and failing to follow CASPO EA direction for analyzing new owl sightings in a Biological Evaluation to determine the need for PAC protection (EA Pg. III-2). (NOA pg. 14 VII)

Protected Activity Centers (PAC) are designated in the Lassen National Forest Land and Resource Management Plan (LRMP). Adding a new PAC would require an amendment to the LRMP; however, adding a PAC by amending the LRMP is outside the scope of the project level analysis for Castle Rocks Forest Health Project. You are correct when you say that preparing a biological evaluation is required in order to establish a new PAC. Preparing a biological evaluation of the need to establish a new PAC would be the first step in determining whether to propose the establishment of a new PAC. This proposal would trigger NEPA analysis for amending the LRMP. However, this process is not required whenever a new owl site is discovered. The Biological Evaluation explains that, although there have been owl sightings in this area since 1990, the Peacock Point owls were not in the state database so a PAC was not established for this area. (1997 BE pg. 6)

ISSUES AND RESPONSES

The following discussion will focus on two issues only from the appeal. The first issue discussion provides the basis for reversing the Castle Rocks Forest Health Project Decision Notice. The second issue discussion addresses the appeal objection concerning the interim road suspension rule. This rule was published February 12, 1999, and made effective March 1, 1999. Because the Castle Rocks Forest Health Project Decision Notice was signed February 23, 1999, there was no direction on how to address this new information at the time the decision was made. I believe the discussion of Issue 2 will be useful.

Issue 1: Whether new information in the Summary Report on the Demographic Parameters of the California Spotted Owl on the Lassen National Forest; Preliminary Results (1990-1998), (Blakesley, Jennifer A. and Dr. Barry R. Noon, 2/1999) was considered properly in determining direct, indirect, and cumulative effects of the project; whether responses to comments concerning this new information were adequate.

Response: Direct and indirect effects: The Appellant asserts that the Forest Service inadequately responded to their request for an explanation of how the harvest of old-growth forest complies with recommendations in the 1999 Summary Report by Blakesley and Noon. My review of the response indicates that (1) the Forest clarified it is not harvesting old-growth forest, as defined in its LRMP, Appendix U-1; and (2) the Castle Rocks Forest Health Project will comply with the California Spotted Owl interim guidelines and would therefore meet the minimum management standard for the owl as set forth in the 1999 Summary Report (see below discussion for definition of the "minimum management standard").

Cumulative effects: The appellants assert that the new information contained in the 1999 Summary Report contradicts the viability findings disclosed in the Biological Evaluation for this project.

During my review of the project record, I sought to compare the viability findings disclosed in the BE with the declining population trend estimate that had been stated in the 1999 Summary Report. I was, however, unable to locate a complete analysis of effects in the BE. Instead, I found that the BE, as amended, had not been prepared in accordance with FSM 2672.4. Although a BE had been prepared for the project, it was later amended by an incomplete cumulative effects analysis of impacts on the California spotted owl. The Decision Notice for this project cites yet a third analysis report which was prepared after the BE amendment; however, this report also does not conform to the standards set forth in FSM 2672.4. First of all, it does not state what project activities are being analyzed, it is undated, and it is not clear who wrote it. Moreover, this third report repeats one omission of the first amendment, in that it does not contain any statement which explains how or why the report's findings corroborate or differ from the determinations made in the original Biological Evaluation for this project.

For this reason, I find that the Biological Evaluation did not provide a complete assessment of effects, in compliance with the standards set forth in FSM 2672.4. That is, there is no complete analysis of cumulative effects to the California spotted owl. Without this information, the Acting Forest Supervisor cannot make an informed decision. Once a complete biological evaluation is done, the Responsible Official will be able to determine if the viability findings in the BE contradict those in the 1999 Summary Report.

Discussion of cited new information report and its implications for management: In the Blakesley and Noon report, the researchers calculated that the annual rate of population change for the period from 1990-1998 was 0.923. This estimate suggests the population experienced a significant annual rate of decline, calculated at 7.7% annually. (A rate of 1.0 would indicate no change.) The researchers stated that "interim measures to retain Spotted Owl habitat should be no less than those proposed by Verner et al. (1992a)." (These measures, which appear in the CASPO Technical Report, are the same ones that were incorporated into the Forest Service's 1993 Interim Guidelines EA, which DN amended the Lassen NF's LRMP.) This statement establishes the minimum management standards which the researchers believe are necessary to retain Spotted Owl habitat until a longer-term management strategy is put into place.

The researchers then go on to provide some management implications that were derived from their study. These management implications include: (1) encouraging the retention of large-tree components in harvest units; (2) maintaining habitat quality and minimizing fragmentation so as to ensure no increase in the mean nearest-neighbor distance among suitable owl pair sites; and (3) increasing the retention and recruitment of large trees in the Sierran landscape to increase adult survival rates. It should be noted that, while these management implications are biologically sound and supported by current research information, they must be viewed as management options to consider above and beyond the minimum management standard which, as the researchers themselves stated, "should be no less than those proposed" in the CASPO Technical Report.

Issue 2: Whether the selected alternative is in compliance with the Chief's interim road suspension rule. (NOA pp. 15-16 (X.), pg. 18)

Response: The selected alternative approves reconstruction of a portion of Road 26N31E and a portion of Road 26N78 and the construction of Road 26N78B2 and Road 26N02B. The reconstruction of 26N31E and 26N78 is reconstruction of classified roads and thus by definition is not subject to the moratorium. The interim road suspension regulation defines classified roads as roads "constructed or maintained for long term highway vehicle use". (36 CFR 212.13a(a)(1)(i)) Although these roads may not currently be maintained to a standard to permit passenger car travel, they were constructed to allow long term highway vehicle use.

Roads identified for construction would be classified roads. Record maps of the areas where new construction roads are proposed (Road 26N02B and Road 26N78B2) show that Road 26N78B2 would be located within a heavily roaded area which would not qualify for the suspension. The rule suspends road construction only in unroaded areas, as defined by the rule.

You state that the area "bounded by Road 26N02 on the north, Road 26N31 on the east, and Road 26N23 on the west meet" the criteria for unroaded areas as defined by the interim road suspension rule (36 CFR 212.13(b)(2)). This area encompasses the new construction of Road 26N02B. Part of your argument is that this area "provides 'important corridors for wildlife movement, or extend(s) a unique ecological value of the established inventoried area' as is revealed by the 1996 Castle TS carnivore survey that found three forest carnivores in the area in question... ." (NOA pg. 16) An examination of Forest wildlife corridor maps for this project area shows that there is no wildlife corridor within the area you define by the three roads. You have not provided any additional evidence showing the presence of a wildlife corridor within this area. In addition, you have not identified the "extend[ed] unique ecological value of the established inventoried area" that would qualify this area under the interim road suspension rule. Therefore, you have not established that the Forest Supervisor has violated the interim road suspension rule.

Because the Castle Rocks Forest Health Project Decision Notice is reversed in this appeal decision, the Forest Supervisor will have the opportunity to document whether this project is being planned inside or outside of a roadless area as determined by the criteria in the interim road suspension rule, in accordance with direction in my letter 7700 Chief's Interim Road Suspension Policy of May 3, 1999.

REVIEWING OFFICER'S FINDING

The Reviewing Officer recommended that the Acting Forest Supervisor's decision be reversed.

DECISION

I have considered all the appeal issues raised in making my decision. I have determined that the issue of effects to California spotted owl has not been adequately addressed by the Acting Forest Supervisor in the EA and DN/FONSI, and in the record. I reverse the Acting Forest Supervisor's decision.

My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR 215.18(c)].

Sincerely,

/s/ Roberta A. Moltzen (for)

BRADLEY E. POWELL
Deciding Officer
Acting Regional Forester

Enclosure

cc: (seven interested parties)

Butte Environmental Council
Ms. Barbara Vlamis, Executive Director
116 W. Second Street, Suite 3
Chico, CA 95928

EarthSave Chico
Mr. Alan Mendoza, Chair
1798 El Toro Ct.
Paradise, CA 95969

Plumas Forest Project
Mr. John Preschutti, Director
P.O. Box 903
Blairsden, CA 96103

Forest Issues Group
Mr. Don Jacobson, Coordinator
P.O. Box 2167
Grass Valley, CA 95945

The Sierra Nevada Forest Protection Campaign
Mr. Craig Thomas, Conservation Director
6221 Shoo Fly Rd.
Kelsey, CA 95667-9998

The Wilderness Society
Mr. Louis Blumberg, Assistant Regional Director
Presidio Building 1016
P.O. Box 29241
San Francisco, CA 94129-0241

Altacal Audubon Society, Inc.
Mr. David Fisher, President
P.O. Box 3671
Chico, CA 95926

cc:
RO-NRM (general file; original to case file)
RO-EP Attn: Sue Danner (electronic)
RO-FAM Attn: Ken Blonski, Reviewing Officer (electronic)
R5-OGC Attn: Jack Gipsman, ATTORNEY (electronic and paper)
Lassen National Forest, FS Attn: Rhonda Barnhart (electronic & paper)
LNF, Almanor RD, DR Attn: Phil Tuma (electronic)
gchase/r5,shastatrinity

Author: nrm, ztyler, 06/03/1999 10:58am
Concur: admin, klewis, 06/03/1999 12:33pm
Concur: ep, sdanner, 06/03/1999 01:26pm
Concur: ec, lfenwood, 06/03/1999 03:53pm
Concur: admin, mpaulson, 06/04/1999 12:22pm
Concur: admin, mpaulson, Acting for jshillin, 06/04/1999 12:22pm
Concur: rf, cthompso, 06/04/1999 01:05pm

I am the designated appeal Reviewing Officer for this appeal. This is my recommendation on disposition of the appeal filed by Lassen Forest Preservation Group and California Wilderness Coalition (Appellant) protesting the Lassen National Forest (Forest) Acting Supervisor Jeff Withroe's Decision Notice (DN) for the Castle Rocks Forest Health Environmental Assessment (EA). Seven environmental groups have Interested Party status to the appeal.

BACKGROUND

Decision - Implement Alternative 2, the action alternative, to reduce live fuels, improve the health and diversity within the conifer communities, address the concerns over declining meadow and riparian habitats, and reduce road densities. The selected alternative will harvest 1,099 acres with thinning, sanitation, and shelterwood prescriptions (commercial - 1,046 acres and non-commercial - 173 acres [there is some overlap with commercial harvest]); remove small conifers from meadows through hand treatments; construct .5 miles of road and reconstruct 1.5 miles of road. Harvest slash will be piled and burned. Other activities include: install a water guzzler for wildlife use in the Sunflower Flat area; barricade, decommission, or obliterate approximately 8.5 miles of road.

Scoping - Six letters and two phone calls came as a result of a scoping letter sent out in April, 1997. The scoping letter briefly identified certain timber stand treatments and other actions, and identified the approximate number of acres within the planning area that would be affected. No more detailed information was provided to the public until the EA was released for comment. General issues and concerns raised by the public were evaluated and used to create an alternative which became the only EA action alternative. These issues focused on effects to large trees, streams and watersheds; effects to recreational opportunities and values; and the need to retain visual quality. Several members of Lassen Forest Preservation Group expressed their desire to work with the Forest on the project and requested more specific information about the proposal. Upon being told that the Forest would send them the EA to comment on, they provided general comments based on the April proposal. California Wilderness Coalition requested documents for the Castle project, but did not provide any input into the environmental analysis process.

Comments to the EA - Four groups and individuals responded to the EA with comments, including members of the Lassen Forest Preservation Group. Most of the issues raised in the appeal were raised in the comments to the EA. Compliance with the Chief's interim road policy could not be raised as a comment to the EA since the policy was issued about thirteen months after the comment period closed; however, no commentator raised the issue of a roadless area.

The interdisciplinary team reviewed the comments to the EA and used them to clarify passages and other information in the EA. The team identified the need to complete an addendum to the biological evaluation addressing the effect of the project on the viability of a local pair of California spotted owls, and the overall effect to the species and its habitat. This review was patterned after the Bart (1995) article cited in the Sierra Nevada Science Review. The team also identified the need to provide a cumulative watershed effects report. Both reports were attached to the "final EA". This information did not lead to a change in the proposed action or the effects of the proposed action as displayed in the EA.

APPEAL SUMMARY

The appeal, postmarked April 22, 1999, was timely. Lassen Forest Preservation Group, represented by Paula Shapiro, Trish Puterbaugh, and Stephen Sayre, and California Wilderness Coalition, represented by Ryan Henson filed the appeal jointly. There are seven interested parties to the appeal, all of whom support the appeal. They are: EarthSave Chico of Paradise, California, represented by Alan Mendoza; Sierra Nevada Forest Protection Campaign of Kelsey, California, represented by Craig Thomas; Butte Environmental Council of Chico, California, represented by Barbara Vlamis; Forest Issues Group of Grass Valley, California, represented by Don Jacobson; Plumas Forest Project of Blairsden, California, represented by John Preschutti; The Wilderness Society of San Francisco, California, represented by Louis Blomberg; and Altacal Audubon Society, Inc. of Chico, California represented by David Fisher.

In the appeal, the Appellant raised several issues related to the California spotted owl, consideration of other alternatives which would include watershed recommendations among other things, and compliance with the Chief's interim road suspension policy. For relief, the Appellant requested that the decision be vacated; that clear road information and an improved cumulative watershed effects analysis of the project be prepared; and that four roads not be constructed or reconstructed.

The Almanor District Ranger, representing the Acting Forest Supervisor, met with Appellant Trish Puterbaugh, and Interested Party Craig Thomas (Sierra Nevada Forest Protection Campaign) on May 10, 1999; however, no issues were resolved.

RECOMMENDATION

My review was conducted pursuant to and in accordance with 36 CFR 215.19 to ensure the analysis and decision is in compliance with applicable laws, regulations, policy, and orders. I reviewed the appeal record, including the comments received during the comment period and how the Acting Forest Supervisor used this information, the Appellant's objections and recommended changes, and Interested Party comments.

Based on my review of the record, I recommend the Forest Supervisor's decision be reversed on the basis that there is inadequate information to support the decision. I recommend that the Forest consider the Appellant's issues and requested relief as input to the environmental analysis process for the Castle Rocks project.

FINDINGS

The purpose for the proposed actions in the Castle Rocks environmental analysis is closely linked back to the Castle Rocks Landscape Analysis, May 1997. Each action proposed appears to be one that would move the area toward its desired condition. Although the decision to implement Alternative 2 itself is stated clearly enough, the rationale for making the decision falls apart upon examination because the effects of the proposal cannot be determined. Information in the record is incomplete and inconsistent in crucial places, and does not support the decision. There are information gaps in both the Biological Evaluation and in the Cumulative Watershed Analysis. In the Biological Evaluation addendum the bridge between the data and the conclusion is not made so that we can understand why, with seemingly large impacts there is no trend toward listing the California spotted owl. The CWA is ambiguous, giving what appear to be Watershed Improvement Needs Inventory (WINI) projects along with narrative which implies these projects are necessary to implement Alternative 2. This narrative appears to be inconsistent with the determination in the same report that watershed effects would be low, if minimal mitigations are implemented. Also, information about road locations and treatments is inconsistent throughout the EA and between specialist reports.

The Castle Rocks record shows uneven compliance with policy and direction. I believe there was a good faith effort to comply with policy and direction. The following discussion explains some of the unevenness.

In the appeal, the Appellant claims the selected alternative violates the Chief's Roadless Area Interim Rule. This rule was published in February, 1999, and made effective in March 1999, which is prior to the signing of the Castle Rocks Decision Notice. In examining the Castle Rocks road information, I found although the road location and treatment information is inconsistent, there is enough information to determine there is no violation of the Chief's Roadless Area Interim Rule. All construction and reconstruction activities are planned for classified roads, which are exempt from the rule. In addition, the construction and reconstruction is a roaded area which does not qualify for a roadless area as defined by the policy.

The issue of planning project activities within a roadless area was raised in scoping letters by LFPG. The project record shows the interdisciplinary team examined the roadless area boundary early in the process and determined the project area did not overlap any roadless area. My review confirms this finding and the lack of comments to the EA on this issue leads me to believe the public did not consider this project to be within a roadless area, as it was defined at that time.

It is our policy to involve the public in the NEPA process by giving a clear, detailed proposed action for eliciting scoping responses. In this case, the public was never given the opportunity to see a detailed, consistent proposed action until the "final EA" was sent out with the Decision Notice. Even then, road location and treatment information is full of inconsistencies which I cannot explain. On the other hand, the general comments provided during the scoping period and the comments to the EA were considered in depth, and responses in EA Appendix B attempt to address each concern professionally.

I was quite disappointed in the lack of effort to involve the public in the scoping process. Letters in the record reflect that the public repeatedly requested more specific information to allow effective public comment. People stated clearly and often their willingness to work with the Forest on this project. I believe the involvement of the public earlier in the NEPA process would have resulted in better documentation within the EA and possibly in the support analyses, as well. I believe several of the appeal issues could have been resolved early if the Forest had provided a clear explanation of what was being proposed and had made more of an effort to provide complete and consistent information in the EA and in the record.

The appeal itself reflects issues raised directly related to the Castle Rocks project and its effects as displayed in the EA and the appeal relief request reflects the issues. The Forest needs to address inconsistencies and apparent contradictions as well as provide additional information to substantiate the effects determinations so that the decision does not appear to be arbitrary.

CONCLUSION

I recommend that we reverse the Acting Forest Supervisor's decision. If the Acting Forest Supervisor wishes to proceed with the Castle Rocks project, I recommend he consider the appeal issues and relief requested as scoping input and that he involve the public during the environmental analysis prior to issuing any EA.

/s/ Ken Blonski

KEN BLONSKI
Appeal Reviewing Officer
Deputy Director for Fire and Aviation Management