Re: Scoping Comments of the National Wildlife Federation on the Snow Mesa/Table/Miners Allotments Analysis

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1 February 10, 2014 Rio Grande National Forest Divide Ranger District Attn: Debra Mollet, Acting District Ranger Divide Ranger District West Highway 160 Del Norte, CO Re: Scoping Comments of the National Wildlife Federation on the Snow Mesa/Table/Miners Allotments Analysis Transmitted via to Dear Ms. Mollet: Please accept these comments from the National Wildlife Federation regarding the proposed decision to authorize grazing on the Snow Mesa/Table/Miners Allotments. The National Wildlife Federation (NWF) and its members have a long-standing concern with wildlife conservation in the Rio Grande and San Juan National Forests, and in particular with the conservation, restoration, and recovery of Rocky Mountain bighorn sheep populations (Ovis Canadensis). We agree with the Forest Service s identified preliminary concern that Domestic sheep grazing can affect viable populations of bighorn sheep but feel strongly that the Forest Service s required National Environmental Policy Act (NEPA) analysis should focus specifically on: (1) the thoroughly documented disease risk to bighorn sheep from contact with domestic sheep; (2) the need to prevent disease outbreaks among bighorn herds by maintaining separation between bighorn and domestic sheep; and (3) the potential for restoring bighorn sheep to areas of their historic range. Your scoping letter acknowledges the presence of bighorn sheep in and around the Snow Mesa/Table/Miners Allotments. In the Rio Grande National Forest s cooperative reports with Colorado Parks and Wildlife (CPW), and the Rocky Mountain Bighorn Sheep Society, Big Horn Sheep Surveys, Rio Grande National Forest - Divide RD 2010 and Big Horn Sheep Surveys, Rio Grande National Forest - Divide RD 2012, details on bighorn populations, distribution, habitat, range, trends, and disease transmission threats are well documented. CPW has identified a high potential risk for contact between wild and domestic sheep in the area between Bristol Head and Baldy Cinco along Gooseberry Creek, Boulder Creek, Willow Creek, and Mesa Creek to the west and Rat Creek, Oso Creek and Miner s Creek to the east. Bighorn sheep have been known to occupy range to the north and east around Baldy Cinco (S-22) and to the south on Bristol Head (S-53) and Miners Creek may have a significant

2 impact in this area where habitat is available and natural barriers for migration don t exist. We are very concerned with their proximity to domestic sheep allotments and encourage the Forest Service to avoid conflicts with wild sheep by adopting alternatives that eliminate the risk of disease transmission. Disease is clearly a critical threat that currently places the Central San Juan bighorn population (RBS- 22) in jeopardy. According to CPW it is a Tier 2 herd with high management priority for an estimated 255 animals across all occupied Game Management Units. There are also two Tier 1 populations, RBS-20 and RBS-21 adjacent to RBS-22, that are likely to be impacted by any associated wildlife or land management decisions in the region (See CPW population information here and here). We encourage the Forest Service to not only adopt the No Action/No-Grazing Alternative but also consider an additional alternative: restricting hypothetical future grazing on those allotments to cattle only, to provide for the possibility of bighorn sheep recovery. We do not see any valid scientific or policy justification for designating any vacant allotment in historic bighorn sheep habitat as partial forage reserve. We are also concerned that any reliance on adaptive management will prove unworkable absent demonstrated resources for monitoring, objective criteria for resource triggers and thresholds, and defined actions to result from those triggers and thresholds. NWF has worked for many years to promote bighorn sheep health and viability throughout the West. Together with our affiliate, Colorado Wildlife Federation, and Tribal partners, we have supported science-based approaches for the conservation of Rocky Mountain bighorn sheep on National Forest and Grassland lands in Idaho, Montana, North Dakota, Colorado, and elsewhere. In particular, NWF has strongly supported the work of the Payette National Forest in Idaho to develop a comprehensive science-based approach to management of domestic sheep grazing within bighorn sheep habitat. We appreciate the fact that the Rio Grande National Forest and Divide Ranger District are undertaking their NEPA responsibility to analyze the environmental effects of grazing permits, including associated impacts to soils and plant communities. However, we believe the NEPA analysis should give specific consideration to the goal of bighorn sheep recovery, the demonstrated risks to bighorn sheep from domestic sheep disease, and the role of Forest Service land management policies in addressing these issues. Based on preliminary review of the scoping statement, it would appear that Alternatives 2 and 3 are inadequate in light of available scientific information and the Forest Service s statutory and regulatory obligations to conserve and recover bighorn sheep populations. Based on available data, Alternative 1 or additional alternatives closing the allotments to either grazing generally or sheep grazing in particular, have the potential to meet conservation obligations to bighorn sheep recovery by minimizing risk of contact between domestic and bighorn sheep. I. Contact Between Bighorn Sheep and Domestic Sheep Poses Severe Disease Transmission Risks The best available and most recent peer-reviewed scientific literature overwhelmingly supports the conclusion that domestic sheep transmit deadly diseases to bighorn sheep upon contact. Wild Sheep Working Group Initial Subcommittee, Recommendations for Domestic Sheep and Goat Management in Wild Sheep Habitat, Western Association of Fish and Wildlife Agencies 1, 3 (June 21, 2007). Interaction between the two species likely occurs due to a natural attraction resulting from similar behavior and physiology. Michael W. Miller et al., Pasteurellosis Transmission Risks Between Domestic and Wild

3 Sheep, Cast Commentary (2008) 1, 3. When interspecies contact occurs, healthy domestic sheep may transmit severe respiratory disease to the bighorns. Deana L. Clifford et al., Assessing Disease Risk at the Wildlife-Livestock Interface: A Study of Sierra Nevada Bighorn Sheep, Biological Conservation Vol. 142 (2009) 2559, Bighorns experience catastrophic all-age mortality outbreaks from contact and transmission because the bighorns did not evolve with domestic sheep or their diseases. Id. Because populations experience such severe reduction in all-age classes when outbreaks occur, id., and one domestic sheep can cause a catastrophic outbreak in bighorns, Janet L. George et al., Epidemic Pasteurellosis in a Bighorn Sheep Population Coinciding With the Appearance of A Domestic Sheep, Journal of Wildlife Diseases, Vol 44. Issue 2 (2008) 388, 388, it is imperative for the species survival that the Forest Service focus management strategies on eliminating the source of the disease - interaction between the two species. Because proposed Alternative 1 in is the only alternative that will provides for the possibility of the return of bighorn sheep to their historic habitat, the Forest Service should choose this alternative, or else consider closure or cattle-only status for vacant allotments. II. The Forest Service Should Plan Now to Provide for Population Recovery Biologists, land managers, and conservation organizations generally agree that managing wildlife species in a way that precludes future risks of extinction and the concomitant necessity for listing under the Endangered Species Act ( ESA ) is prudent wildlife management. Bighorn were once a prolific species across the western United States. Tim Schommer & Melanie Woolever, A Process for Finding Management Solutions To the Incompatibility Between Domestic and Bighorn Sheep, USDA Forest Service (2001) 1, 1. Multiple bighorn populations started to decline in Id. These declines likely resulted from disease, competition with livestock, over-hunting, and habitat loss. Clifford et al., supra. at The current population is estimated to be only about 10% of the historical population. Schommer and Woolever, supra, at 2. This drastic decline led land managers to implement recovery efforts in the 1960 s and 1970 s. Id. Some populations are recovering, however, in locations where domestic sheep are present recovery efforts are largely unsuccessful. Id. Because the bighorn to be in an already precarious condition as a species, Region 2 has designated the Rocky Mountain Bighorn Sheep a sensitive species, see the Forest Service must take all possible measures to prevent negative impacts to the species, including planning for its recovery. Researchers suggest that when a species declines to the threshold of needing to be listed under the ESA, it is because the species faces chronic threats that are intense in occurrence and have threatened species for a long time. Joshua L. Lawler et al., The Scope and Treatment of Threats in Endangered Species Recovery Plans, Ecological Applications, Vol.12, No. 3 (2002) 663, 666. The respiratory diseases transmitted by domestic sheep present such a threat to the bighorns and should be managed for accordingly. See 16 U.S.C. 1533(a)(1)(C) & (D) (factors in evaluating risks to species include disease or predation and the inadequacy of existing regulatory mechanisms ). When species are declining primarily due to a single serious threat that managers can feasibly address, the potential for recovery greatly increases. Id. For example, bald eagle populations largely rebounded due to the banning of pesticides. Id. According to a recent study, respiratory disease is the most frequent source of adult mortality, and caused 43% of adult deaths of studied individuals in the Hells Canyon region from 1997 to E. Frances Cassirer & A.R. E. Sinclair, Dynamics of Pneumonia in a Bighorn Sheep Population, Journal of Wildlife Management, Vol. 71, Issue 4 (2007) 1080, Predation (27%), injuries from falls (22%), and direct human-caused death (8%) accounted for the rest. Id. This study shows that bighorn

4 populations are failing to recover primarily because of respiratory disease caused by interaction with domestic sheep. If the bighorn is protected against the disease through elimination of interspecies contact, then it is likely that the population will start to rebound. Because those species that are adequately protected by background law or other means do not decline to the point of endangerment, Holly Doremus & Joel E. Pagel, Why Listing May Be Forever: Perspectives on Delisting Under the Endangered Species Act, Conservation Biology, Vol. 15, No. 5 (2001) 1258, 1260, and the Forest Service has the authority to feasibly provide for recovery and address the disease issue through elimination of interspecies contact, the Forest Service should give full consideration to the permanent elimination of sheep grazing from vacant allotments within historic bighorn sheep range. III. The Forest Service Has Ample Legal Authority to Reduce, Restrict, or Discontinue Domestic Sheep Grazing in Order to Protect Bighorn Sheep Populations: The Forest Service is not obligated to continue permitting sheep-grazing because the Forest Service (1) has the discretion to prioritize protecting or recovery bighorn sheep and thereby decline to issue permits domestic-sheep-grazing, and (2) has the authority to discontinue grazing in accordance with land management plans or for other public purposes. Further, the Forest Service is obligated to take actions that prevent harm to bighorn sheep populations. The Forest Service must manage the national forests for multiple uses as defined in the Multiple-Use and Sustained-Yield Act of 1960 ( MUSYA ). Multiple-Use Sustained-Yield Act (MUSYA) of 1960, 16 U.S.C.A The Forest Service creates and sets-forth its multiple-use management policies through land management plans which provide for multiple uses, and in particular, include coordination of... range...(and)... wildlife. National Forest Management Act (NMFA) of 1976, 16 U.S.C.A. at 1604 (a), (e)(1). A. The Forest Service can weigh relative resource values and choose to discontinue sheep-grazing in order to ensure bighorn sheep viability. Included in its multiple-use management authority, the Forest Service has the discretion to disallow certain of the multiple uses in a given area. Multiple use purposes include both livestock grazing (range) and wildlife. 16 U.S.C.A. 528, 580(l). The Forest Service has the discretion to determine which combination of uses in a given area will best meet the needs of the American people. 16 U.S.C.A It can adjust land uses to conform to changing needs and conditions. Id. Not all of the multiple-uses must be allowed in all national forest areas; in certain areas only some resources will be used and some land will be used for less than all of the resources. Id. The Forest Service can change permitted land uses by weighing the relative values of various resources in a particular area. Id. While MUSYA provides a menu of the possible multiple-uses for forest management, the Forest Service has discretion to weigh the relative values of the various uses and thereby to determine the proper combination of uses within a given area. Citizens Comm. to Save Our Canyon v. Kreuger, 513 F.3d 1169, 1177 (10th Cir. 2008) (holding the Forest Service acted within its discretionary authority in elevating particular recreational interests in a way it believed reflected changing conditions and promoted multiple uses); Sierra Club v. Hardin, 325 F.Supp. 9 9, 123 (D. Alaska 1971) (interpreting MUSYA : Congress has given no indication as to the weight to be assigned to each value and it must be assumed that the decision as to the proper mix of uses within any particular area is left to the sound

5 discretion and expertise of the Forest Service. ) Because the Forest Service can weigh the relative value of resources and thereby adjust land uses and because some land can be used for less than all of its resources, the Forest Service can disallow certain uses to protect more valuable uses. Here, the Forest Service has the discretion to disallow domestic sheep grazing in order to protect, recover, and restore bighorn sheep populations. B. The Forest Service is not obligated to issue grazing permits and can decline to issue permits to ensure the recovery and viability of bighorn sheep populations. The Forest Service issues grazing permits pursuant to its authority to regulate the occupancy, use and preservation of the forests. 16 U.S.C.A. 580(l); Fred Light v. U.S., 220 U.S. 523 (1911). A grazing permit does not create a vested property right in the permittee and the Forest Service retains right, title and interest in the land. Id. Since a grazing permit is a privilege granted to the permittee by the Forest Service, the Forest Service can rescind the permit at any time for another public purpose or for other forest management needs which may include wildlife protection. 16 U.S.C.A. 580(l); Swim v. Bergland, 696 F.2d 712, 719 (9th Cir. 1983); Gardner v. Stager, 892 F.Supp 1301, (D. Nev. 1995) ( grazing (on national forests) is a privilege revocable at any time ); 36 C.F.R (a)(1), (6), (7). Grazing permits shall be consistent with land use management plans, 16 U.S.C.A. 1604(i) and shall only be issued on land that is available for grazing as per forest plans. 36 C.F.R The Forest Service can rescind or modify grazing permits that are inconsistent with Forest Service management plans and regulations. 16 U.S.C.A. 1604(i); 36 C.F.R (2010). Individual permits can require compliance with land-use plans or can impose other conditions deemed appropriate by the Secretary of Agriculture or his designee. Federal Land Policy and Management Act of 1976, 43 U.S.C. 1752(a). The Forest Service can suspend, cancel or modify grazing permits or leases in whole or in part pursuant to those conditions. 43 U.S.C.A. 1752(a). Here, where the Forest Service land management plans and its Manual include protection of bighorn sheep populations, grazing permits that threaten bighorn sheep populations or prevent recovery goals are inconsistent with Forest Service management goals and regulations. Therefore, the Forest Service has the authority to decline to issue, or to rescind, domestic-sheep grazing permits to advance its management of bighorn sheep populations. C. The Forest Service has an obligation to manage national forests to ensure the viability of sensitive species The National Forests shall be administered for, among other things, wildlife. 16 U.S.C. 528 ( It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. ). Forest plans and regulations shall provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives. 16 U.S.C.A. 1604(g)(3)(B). The Forest Service has heightened management responsibilities for sensitive wildlife species. It has obligated itself (1) to manage national forests to maintain viable populations of desired nonnative wildlife, (2) to ensure that species do not become threatened or endangered because of Forest Service actions, and (3) to implement special management objectives for sensitive species. Forest Service Manual , The Forest Service must avoid or minimize impacts to species whose viability has been identified as a concern. Id. at Bighorn Sheep are listed on the Region 2 Regional Forester s Sensitive Species list, thus triggering heightened Forest Service management responsibilities toward the bighorn under

6 the Forest Service Manual. Id. at ( sensitive species must receive special management to ensure their viability and to preclude endangerment ). Issuing a grazing permit is a Forest Service action. Therefore, pursuant to its Manual, the Forest Service should not issue sheep-grazing permits where current or potential interaction between domestic sheep and bighorn sheep threatens the viability of the bighorn sheep population. IV. The Forest Service Must Consider a Reasonable Range of Alternatives, Including Alternatives Closing Vacant Allotments to New Domestic Sheep Grazing In its most comprehensive and rigorous evaluation to date of bighorn/domestic sheep issues, the Forest Service has recognized that disease transmission from domestic sheep to bighorn sheep is a threat to the wild sheep species. United States Department of Agriculture, Forest Service, Southwest Idaho Ecogroup Land and Resource Management Plans Update to the Draft Supplemental Environmental Impact Statement, Intermountain Region (January 2010) i, 2-3 The Forest Service acknowledged that bacterial pneumonia often causes death and specifically noted that some research suggests that it is the number one cause for bighorn sheep population declines throughout North America. Id. at 3-8. The Forest Service also accepted the premise that even minimal contact could cause extirpation of some populations. Id. at Because the Forest Service recognizes the substantial negative impacts that the diseases have on bighorns, and has the legal authority to restrict grazing in bighorn habitat, the Forest Service should manage the Rio Grande National Forest so that no interaction or contact occurs between the two species. We further note that 2012 Appropriations Act does not limit the Forest Service s existing authority to decline to issue grazing permits on vacant allotments. Veterinarians and biologists agree that the only way to minimize outbreaks is to make sure that domestic sheep and bighorns are not occupying the same ranges. Schommer & Woolever, supra. at 4. In alternatives where grazing is still allowed, the risk of interspecies contact and disease transmission is always present. We simply fail to understand why the Forest Service s preferred alternative creates unnecessary potential for future disease transmission by creating forage reserves that could include domestic sheep on vacant allotments, and why the range of alternatives arbitrarily excludes reasonable alternatives that could provide benefits for bighorn sheep recovery without any negative impact to existing livestock operations. If adaptive management is to be considered as a means of addressing bighorn sheep disease risks, those management approaches must be based on the best available science, rather than unsubstantiated claims that herds can somehow by separated by undefined and/or unproven approaches. allowing domestic grazing close to bighorn habitat is essentially allowing contact and possible diseasetransmission to occur. According to recent research, effective buffers around bighorn sheep habitats should be at least 9 miles, Wild Sheep Working Group,. at 13, and possibly even as far as 12 miles or 25 miles. Cassirer & inclair, supra at To be clear, we support the use of monitoring and adaptive management. The Forest Service should employ monitoring and adaptive management techniques regardless of the alternative chosen. However, merely stating that monitoring and adaptive management is recommended does not go nearly far enough. The Forest Service should identify and define specific methods it will use to monitor the potential for contact between the two species. Furthermore, the Forest Service should regularly

7 complete risk assessments to determine whether the possible contact interface between the two species has changed. Wild Sheep Working Group, supra at 8. Furthermore, at least one study suggests that the presence of a domestic sheep or goat may be extremely hard to detect. George et al., supra at 398. If the likelihood of detection is small across the analysis region and forest as a whole, then the Forest Service must employ even more rigorous monitoring techniques. Bighorn populations are also faced with other threats than just disease. For example, bighorns are particularly sensitive to habitat degradation. Habitat degradation may occur as a result of invasive vegetation, changes in the historic fire regime, livestock grazing, and human activities such as road construction, vehicle collision, and direct human disturbance. Private, state, and other federal landowners may still allow sheep grazing to occur on the lands they own and manage as well. If the bighorns are able to move into these areas then disease outbreaks may still occur. Because these other stressors may independently and cumulatively impact bighorn in a negative manner, the Forest Service should protect the species from unnecessary disease outbreaks. Given that the Forest Service may not be able to control the other stressors listed above, the Forest Service should use the authority and management power it does have to reduce the risk of disease outbreaks on Forest Service land, thereby increasing the probability that bighorn populations in the Rio Grande National Forest may recover. As populations increase they may be reasonably expected to move into historic range where sheep grazing is now hypothetically allowed. The increasing population and movement of the bighorns will likely have the positive effect of increasing genetic exchange and resilience, but may also make the populations more vulnerable to outbreaks in lands that overlap with sheep grazing. Clifford et al., supra at However, this does not mean that the Forest Service should not or cannot manage in a way that increases the population. To the contrary, as noted above, sensitive species regulations require that the Forest Service manage in a way that maintains viable populations. Forest Service Manual Because the bighorn populations declined in the Rocky Mountain Region to the point that the Regional Forester felt it was necessary to list the bighorn as a sensitive species, the Forest Service is demonstrably not yet maintaining viable populations. In order to comply with its own regulations, the Forest Service must therefore manage in a way that does enhance the current populations of bighorn in the Rio Grande National Forest. The Forest Service has recognized, based on exhaustive and rigorous study, that the need to minimize contact with domestic sheep within the large areas needed by bighorn sheep is crucial for strong, healthy populations of bighorn sheep. Final Supplemental Environmental Impact Statement and Forest Plan Amendment Identifying Suitable Rangeland for Domestic Sheep and Goat Grazing to Maintain Habitat for Viable Bighorn Sheep Populations, Payette National Forest Conclusions: The Divide Ranger District must consider a full reasonable range of alternatives, including those that give emphasis to bighorn sheep recovery and prevention of disease transmission. All adaptive management measures must be fully explained and analyzed, including analysis of whether proposed management strategies have proven effectiveness, and whether necessary resources will be available for their implementation.

8 Thank you for your consideration. In addition, the National Wildlife Federation requests that we be added to your electronic list of interested persons for all actions, decisions, or notices involving bighorn or domestic sheep management in the Rio Grande National Forest. Sincerely, John W. Gale National Sportsmen Campaigns Manager National Wildlife Federation 2995 Baseline Road Suite 300 Boulder CO Office: Fax: