Pacific Southwest Region

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1 United States Department of Agriculture Forest Service Pacific Southwest Region Regional Office, R Club Drive Vallejo, CA (707) Voice (707) Text (TDD) File Code: Appeal No.: A215 Date: November 8, 2010 Stan Van Velsor Policy Associate The Wilderness Society 655 Montgomery Street, Suite 1000 San Francisco, CA CERTIFIED-RETURN RECEIPT REQUESTED Dear Mr. Van Velsor: On September 27, 2010, you filed a Notice of Appeal (NOA) on behalf of The Wilderness Society (TWS) pursuant to 36 CFR 215. Klamath Forest Supervisor Patricia Grantham signed the Record of Decision (ROD) approving Modified Alternative 7 of the Motorized Travel Management Final Environmental Impact Statement (FEIS) on July 29, I have reviewed the entire appeal record, including your written Notice of Appeal (NOA), the ROD, FEIS, DEIS, 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 enclosed. This letter constitutes my decision on the appeal and on the specific relief requested. FOREST ACTION BEING APPEALED Over the past few decades, the availability and capability of motor vehicles, particularly offhighway vehicles (OHVs) and sport utility vehicles (SUVs) has increased tremendously. Nationally, the number of OHV users has climbed seven-fold in the past 30 years, from approximately 5 million in 1972 to 36 million in California is experiencing the highest level of OHV use of any state in the nation. There were 786,914 ATVs and off-road motorcycles registered in 2004, up 330% since Annual sales of ATVs and off-road motorcycles in California were the highest in the U.S. for the last five years. Four-wheel-drive vehicle sales in California increased to 3,046,866 (1500%) from 1989 to Across the nation, unmanaged motor vehicle use particularly OHV use has resulted in unplanned roads and trails, erosion, watershed and habitat degradation, and impacts to cultural resource sites. Compaction and erosion are the primary effects of motor vehicle use on soils. Riparian areas and aquatic-dependent species are particularly vulnerable to damage from motor vehicle use. The purpose of this action is to implement Subpart B of the 2005 Travel Management Rule while providing for a diversity of motor vehicle recreation opportunities and providing motorized access to dispersed recreation opportunities. Identified needs are to regulate cross-country motor America s Working Forests - Caring Every Day in Every Way Printed on Recycled Paper

2 Stan Van Velsor, The Wilderness Society 2 vehicle travel by the public public and to make limited changes and additions to the Klamath National Forest Transportation System (NFTS). The decision will: Prohibit cross-country travel by motor vehicles on 1.7 million acres of National Forest. The decision will allow motor vehicle travel by the public on NFTS roads, trails and in open OHV areas only. Add 53.3 miles of roads to the NFTS to access dispersed recreation sites and area. Add 20.4 miles of trails. Add 48 acres of open riding areas. Authorize motorized mixed use on miles of Maintenance Level 3 roads. Authorize non-highway legal vehicle use on miles of roads currently managed for highway legal vehicles. APPEAL REVIEWING OFFICER'S FINDINGS and RECOMMENDATION Documentation demonstrated compliance with applicable laws, regulations, and policies in light of the appeal issues raised by appellant: 1) failure to properly coordinate with the County, and 2) incorrectly deciding that the forest plan amendment is not significant. Appeal Reviewing Officer (ARO) Tom Contreras, Forest Supervisor Mendocino National Forest, found that the project is an appropriate and reasonable response to direction in the Klamath National Forest Land and Resource Management Plan and is in compliance with the plan. The purpose and need for the project were clear. The Forest Supervisor s decision logic and rationale were clear and well documented. The Forest Supervisor was responsive to public concerns. ARO Contreras recommended affirmation of the Forest Supervisor s decision on all issues and denial of all requested relief. DECISION I agree with the ARO s analysis as presented in the recommendation letter. The issues are similar to the comments made by the County of Siskiyou during the comment period. All appeal issues raised have been considered. I affirm the Forest Supervisor s decision to implement Modified Alternative 7. I deny all requested relief.

3 Stan Van Velsor, The Wilderness Society 3 The project may be implemented on, but not before, the 15 th business day following the date of this letter (36 CFR 215.9(b)). My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR (c)]. Sincerely, /s/ Ronald G. Ketter RONALD G. KETTER Deputy Regional Forester Appeal Deciding Officer Enclosure

4 United States Department of Agriculture Forest Service Pacific Southwest Region Regional Office, R Club Drive Vallejo, CA (707) Voice (707) Text (TDD) File Code: Date: November 1, 2010 Subject: To: Klamath National Forest Motorized Travel Management Project Appeal No A215. Appeal Deciding Officer I am the designated Appeal Reviewing Officer for the appeals filed on the Klamath National Forest Motorized Travel Management Plan. This is my recommendation on disposition of the appeal filed by Stan Van Velsor on behalf of The Wilderness Society (TWS), appealing the Klamath National Forest Supervisor, Patricia Grantham s Record of Decision (ROD) for the Klamath National Forest Motorized Travel Management Project Environmental Impact Statement (EIS). The decision was signed on July 29, 2010 and the legal notice of the decision was published on August 13, DECISION BEING APPEALED Over the past few decades, the availability and capability of motor vehicles, particularly off-highway vehicles (OHVs) and sport utility vehicles (SUVs) has increased tremendously. Nationally, the number of OHV users has climbed seven-fold in the past 30 years, from approximately 5 million in 1972 to 36 million in California is experiencing the highest level of OHV use of any state in the nation. There were 786,914 ATVs and off-road motorcycles registered in 2004, up 330% since Annual sales of ATVs and off-road motorcycles in California were the highest in the U.S. for the last five years. Four-wheel-drive vehicle sales in California increased to 3,046,866 (1500%) from 1989 to Across the nation, unmanaged motor vehicle use particularly OHV use has resulted in unplanned roads and trails, erosion, watershed and habitat degradation, and impacts to cultural resource sites. Compaction and erosion are the primary effects of motor vehicle use on soils. Riparian areas and aquatic-dependent species are particularly vulnerable to damage from motor vehicle use. The Klamath National Forest (KNF or Forest) lacks a clearly defined, designated system of roads and trails designed to best meet the recreational needs of the public and protect sensitive natural resources. The 2005 Travel Management Rule (36 CFR 212), was developed in response to people s increased use of the National Forests by motorized vehicles and the effects of that use on ecological, physical, cultural, and social resources. Subpart B of the final Travel Management Rule requires designation of roads, trails, and areas for motor vehicle use. The Travel Management Rule does not require the Forest Supervisor to reconsider decisions authorizing motor vehicle use on the existing National Forest Transportation System (NFTS). Part 261 Prohibitions, Subpart A (36 CFR ) of the final rule prohibits the use of motor vehicles off of designated roads, trails and areas, as well as use of motor vehicles on roads and trails that is not consistent with the designations. The Forest Supervisor selected a modified Alternative 7. The decision will: Caring for the Land and Serving People Printed on Recycled Paper

5 2 Prohibit cross-country travel by motor vehicles on 1.7 million acres of National Forest. The decision will allow motor vehicle travel by the public on NFTS roads, trails and in open OHV areas only. Add 53.3 miles of roads to the NFTS to access dispersed recreation sites and area. Add 20.4 miles of motorized trails. Add 48 acres of open riding areas. Authorize motorized mixed use on miles of Maintenance Level 3 roads. Authorize non-highway legal vehicle use on miles of roads currently managed for highway legal vehicles. PUBLIC INVOLVEMENT/PROJECT OVERVIEW Public involvement for Motorized Travel Management (formerly Motorized Route Designation) on the KNF began in Public involvement occurred during the public collaboration process that began with several meetings with recreational users of the KNF in California and Oregon, continued during the public scoping period for the Notice of Intent (NOI) to prepare an EIS, and included meetings with public groups to explore issues raised during the scoping period. The Responsible Official and Interdisciplinary Team (IDT) relied on public involvement to ensure that a full range of alternatives, representing a broad array of perspectives, would be analyzed. Public workshops held at Yreka, Greenview, Happy Camp and Macdoel in May 2005 were designed to introduce the route designation process and ask the public to identify motorized routes and areas they were currently using. At additional public meetings in February and March of 2007 in Yreka, Fort Jones, Happy Camp, and Macdoel, the KNF asked users to assess the recreational value of identified routes and areas. During this time, presentations were also made to numerous civic organizations, environmental groups, and recreational user clubs, as well as to the Siskiyou County Board of Supervisors to inform them of the travel management process. The KNF also provided travel management information and consulted with American Indian tribes, including the Hoopa Tribe, Karuk Tribe, Klamath Tribes, Yurok Tribe, Pit River Tribes, Confederated Tribes of Grand Ronde Community, and Confederated Tribes of Siletz Indians, Quartz Valley Reservation, Shasta Indian Nation, and Shasta Tribe, Inc. By autumn of 2007, the KNF had identified and evaluated resource issues and concerns with the identified routes and areas, and produced maps of preliminary resource screening of routes. In March 2008, public workshops were held again at Yreka, Fort Jones, Happy Camp, Orleans, and Mcdoel. The purpose of these workshops was to share the conceptual plan based on analysis and resource evaluations of unauthorized routes and areas; to present preliminary maps of routes that had passed the resource screening and would be analyzed further; and to provide an opportunity to comment on any routes that were missed. The public identified almost 500 miles of unauthorized routes and two areas they wanted to have considered for addition to the NFTS. The Motorized Travel Management project was posted on the Schedule of Proposed Actions for the Klamath National Forest in July 2008.

6 On October 7, 2008, the Proposed Action and NOI to Prepare an Environmental Impact Statement was published in the Federal Register (Volume 73, Number 195). A legal notice of the proposed action in the newspaper of record, the Siskiyou Daily News, on the same date initiated the scoping period that began that day and was scheduled to end on November 6, An extension was requested by a number of individuals and organizations, and the scoping period was extended 30 days, ending on December 6, Scoping comments were received from 72 individuals, agencies, tribes and organizations (including letters, s, and hand-delivered documents). Siskiyou and Jackson County officials were informed of the KNF s plans and intent throughout this process. Another presentation was done to the Siskiyou County Board of Supervisors in 2008 to present the Proposed Action and answer questions about the process. The KNF shared the NOI with officials of Siskiyou County and worked with them to develop alternative ways to manage motorized travel that incorporated interests of the County. In 2008, the KNF also shared the motorized mixeduse analysis with Siskiyou County to coordinate the designation of NFTS roads. The notice of availability for DEIS was published by the Environmental Protection Agency in the Federal Register on June 5, 2009, and a legal notice was published in the Siskiyou Daily News on the same date which initiated the 45-day comment period. Public open houses were held in June 2009 in Fort Jones, Happy Camp, Macdoel and Yreka to provide the public with an opportunity to comment and to ask questions regarding the DEIS. The KNF received several comments requesting an extension to the comment period. The comment period was extended for an additional 15 days. On July 9, 2009, a legal notice explaining the extension was published in the Siskiyou Daily News. A letter was also sent to interested parties, reviewing agencies and tribes on noting the extended comment period. The Environmental Protection Agency published an amended notice in the Federal Register extending the comment period on July 24, The KNF received 418 total responses to the DEIS, including 22 original responses and 396 form letters or modifications of form letters. A summary of the comments, and KNF responses to comments, appears in Appendix E of the FEIS. A Notice of Availability for the Final Environmental Impact Statement was printed in the Federal Register on January 29, 2010, and a legal notice in the Siskiyou Daily News on the same date. The latter initiated a 30-day comment period on the FEIS, ending March 1, Hard copies and/or CDs of the FEIS were sent to tribes, reviewing agencies, and any individuals or organizations that requested such documents. All who had participated in scoping or made comments on the DEIS received a summary and website location for downloading documents and maps. Public open houses were held in February 2010 in Happy Camp, Macdoel, Etna, and Yreka to provide an opportunity to comment on and ask questions concerning the FEIS. Comments were received from 34 individuals, agencies and organizations. All comments received were considered in the decision. Comments specific to the FEIS, and KNF responses to these comments, are addressed in Appendix B of this Record of Decision. APPEAL SUMMARY The appeal period for this project ended on September 27, The current appeal was filed on September 27, 2010 and is timely. The Forest Supervisor offered to meet for an appeal resolution meeting, but the appellant declined. 3

7 4 ISSUES AND RESPONSES Issue 1: The Purpose and Need statement was artificially too narrow, travel planning must evaluate impacts associated with more than just the additions to the system. (Appeal, pp. 3-4) Response: Alternative G which would add fewer routes and decommission or close existing NFTS roads, was an alternative submitted for consideration, but was eliminated from detailed analysis. The alternative would decommission or close numerous NFTS roads and remove numerous unauthorized routes from the proposed action based in part on resource concerns. This alternative is outside the scope of the project (FEIS, Chapter 2, pg. 46). The project s purpose and need focuses on Subpart B of the Travel Management Rule, addressing unmanaged cross-country travel, while maintaining important motorized access and recreation opportunities for the public. The purpose and need for action is not to examine the NFTS for potential road closures or decommissioning of NFTS roads (FEIS, Appendix E, pg. E-6). Based on public comment, 6 action alternatives were developed, in addition to the no action alternative. Alternative 3 adds no unauthorized routes, and Alternative 4, which was developed in response to public concerns regarding effects to fisheries, wildlife and roadless areas, adds fewer unauthorized routes than the proposed action (FEIS, Chapter 2, pp ). The purpose and need meets the regulations for implementing the National Environmental Policy Act which says the purpose and need for an EIS shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action (40 CFR ). I find that the purpose and need does comply with the requirements of NEPA (CFR Parts ). Issue 2: The ROD/FEIS violates NEPA for failure to analyze a full range of reasonable alternatives, including a net reduction alternative, a minimum road system, and a minimum impact alternative. (Appeal, pp. 4-10) Response: The FEIS (pg. 8) clearly states that the project s Purpose and Need focuses on the Travel Management Rule 36 CFR 212, Subpart B, addressing unmanaged cross-country travel, while maintaining important motorized access and recreation opportunities for the public. An alternative submitted for consideration, but eliminated from detailed analysis emphasized adding fewer routes and decommissioning or closing existing NFTS roads. This alternative was determined to be outside the scope of the project (FEIS, Appendix E, pg. E-6). Based on public comment, 6 action alternatives were developed, in addition to the no action alternative. Alternative 3 adds no unauthorized routes, and Alternative 4, which was developed in response to public concerns regarding effects to fisheries, wildlife and roadless areas, adds fewer unauthorized routes than the proposed action (FEIS, Chapter 2, pp ). An alternative focusing on a minimum road system was considered to be outside the scope of this analysis. Analysis for determining minimum road system addresses Subpart A of the Travel Management Rule, 36 CFR 212.5(b)(1).

8 5 The Deciding Official carefully considered the 4 distinct parts of the Purpose and Need in selecting Alternative 7, in addition to comments submitted by the public (ROD, pp ). In addition, Alternative 7 did not propose to add routes in Inventoried Roadless Areas to the National Forest Transportation System (FEIS, Chapter 3, pg. 172). The purpose and need meets the regulations for implementing the National Environmental Policy Act. 40 CFR (a) requires agencies to Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated I find that the FEIS does comply with the requirements of NEPA 40 CFR Parts Issue 3: The Forest Service s identified baseline transportation system is inaccurate, a violation of NEPA. (Appeal, pp ) Response: 40 CFR (b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail. Six action alternatives (Alternatives 2, 3, 4, 5, 6, and 7) and a no action alternative (Alternative 1) are analyzed in detail in this FEIS, with respect to changes to the National Forest Transportation System. The no action alternative represents the continuation of cross-country travel. This alternative serves as a baseline for comparison among the alternatives, and is required by the implementing regulations of NEPA (FEIS, Chapter 1, pg. 18). Road data stored in the Forest Infrastructure database (INFRA) includes information about the entire length of each system road. Some roads have been totally or partially decommissioned or stored for future use and others have been added to the system as needs or conditions changed (FEIS, Chapter 1, pp. 5-7). Roads or road segments that have been decommissioned or listed as Operational Maintenance Level 1 are not shown on the Travel Management FEIS Alternative 7 maps. The INFRA data capture, found in Appellant s Attachment D, does not display complete information about each road (i.e. segmentation, uses, updates), and could be misinterpreted. The Forest Service acknowledges that errors do exist in the INFRA database due to the difficulty of managing approximately 4,536 miles of constantly changing roads on a relatively new database, but the Forest Service is continually correcting these errors as they are discovered (FEIS, Chapter 1, pp. 5-6). These database errors do not amount to a violation of 40 CFR (b). Additionally, this project does not analyze the impacts of the current transportation system. That analysis is outside the purpose and need for this project, and outside its scope. The Pacific Southwest Regional Forester has committed to begin addressing Subpart A of the Travel Management Rule within the next 18 months; that process will provide information needed to identify the baseline transportation system for management of the KNF (FEIS, Appendix E, pg. E-9). I find that the FEIS does comply with the requirements of NEPA 40 CFR (b).

9 Issue 4: The FEIS did not adequately analyze direct, indirect and cumulative impacts of the existing road system, climate change, soils, watersheds, aquatic resources, fisheries, and hydrology. (Appeal, pp ) Response: The Council on Environmental Quality (CEQ) NEPA regulations outline how to address direct and indirect effects in Section Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such actions (40 CFR ). Existing Road System: Minimizing the adverse impacts of the current NFTS is outside the scope of the MTM FEIS and decision. The effects of the current NFTS are included as part of the effects of the existing situation in the resource sections of Chapter 3 of the FEIS, and the cumulative impacts of MTM alternatives plus the current NFTS and reasonably foreseeable future actions are addressed for each appropriate resource (ROD, pg. B-2). The Forest outlined the cumulative effects analysis and assumptions regarding past actions on pages of the FEIS. They state: In order to understand the contribution of past actions to the cumulative effects of the proposed action and alternatives, this analysis relies on current environmental conditions as a proxy for the impacts of past actions. The effects of the current NFTS are included as part of the effects of the existing situation in the resource sections of Chapter 3 of the FEIS, and the cumulative impacts of MTM alternatives plus the current NFTS and reasonably foreseeable future actions are addressed for each appropriate resource. A separate analysis of the impacts of the current NFTS is outside the purpose and need for this project (FEIS, pp.6-7). Climate Change: The effect of motorized use on climate change, including the production of greenhouse gases, is discussed in the Air Resources section of Chapter 3 of the FEIS. The Effects Analysis Methodology (pp ) provides background on GHG emissions. Alternatives 2-7 are discussed on pages which include a discussion of the effects of this project on GHG emissions. The number of vehicle miles traveled annually by Forest users is low, as discussed in the Transportation, Recreation, and Society, Culture and Economy sections of Chapter 3 of the FEIS, and is not expected to change in any action alternative that prohibits cross-country travel and redirects motorized use onto designated routes. The Forest concluded that no change is anticipated from the decision that will adversely affect air quality or greenhouse gas emissions. There is a brief discussion of climate change effects to botanical resources on page 385 of the FEIS. Soils, Fisheries, Hydrology: The Forest addressed direct, indirect and cumulative effects of all alternatives in Chapter 3 of the FEIS under the respective resources. For example, environmental consequences to the soil resource are found on pages ; for hydrology they are found on pages of the FEIS. I find that the Forest did address the impacts of the existing road system as part of the current condition of the resource. The Forest did address climate change and the effects of the project on GHG emission primarily in the Air Quality Section. Direct, indirect and cumulative effects of this project on soil, water and fisheries resources are adequately addressed in the FEIS and supporting documents. 6

10 7 Issue 5: The ROD and FEIS violates the Clean Water Act and fails to take a hard look at water impacts in violation of NEPA. (Appeal, pp ) Response: The Hydrology section of the FEIS analyzes and discloses the impacts on water quality and watersheds of prohibiting cross-country travel and adding miles of unauthorized routes to the NFTS for Alternative 7 (pp ). The Compliance with the LRMP and other Direction Section (pp ) also discloses how the alternatives would meet the requirements of the Clean Water Act (CWA) and objectives of the Aquatic Conservation Strategy (ACS) from the KNF LRMP. As stated in Chapter 3 Hydrology section of the FEIS, designating some routes and leaving the others to revegetate over time will reduce open route density in all watersheds considered (pp ). The number and density of routes in riparian reserves will also decrease (pg. 257 Table H-4), helping meet CWA requirements to mitigate non-point source pollution to meet requirements of the Basin Plan. Prohibiting cross-country travel will eliminate the potential for creation of new routes in these areas. Page 30 of the ROD discusses and summarizes how the project is compliant with the CWA. Cumulative effects on water quality from Alternative 7 is identified and described in the Hydrology section of the FEIS (pp ). I find that the Forest Supervisor complied with the CWA by adequately considering the effects on water resources. Issue 6: The Purpose and Need statement is in violation of the Travel Management Rule. (Appeal, pp ) Response: FEIS clearly states a need for regulation of unmanaged motor vehicle travel by the public, with respect to unplanned, unauthorized, non-sustainable roads, trails, and areas that adversely impact the environment, in compliance with Subpart B of the 2005 Travel Management Rule 36 CFR 212[.55] (FEIS, Chapter 1, pg. 8). Specifically, 36 CFR outlines criteria for designation of National Forest System roads, trails, and areas; it does not require justification for continued existence of currently designated National Forest Transportation System facilities. The Forest responded to a comment regarding the project limitation to only Subpart B of the Travel Management rule: The project s purpose and need focuses on Subpart B of the Travel Management Rule, addressing unmanaged cross-country travel, while maintaining important motorized access and recreation opportunities for the public. The purpose and need for action is not to examine the NFTS for potential road closures or decommissioning of NFTS roads (FEIS, Appendix E, pg. E-6). The Pacific Southwest Regional Forester has committed to begin addressing Subpart A [36 CFR 212.5] of the Travel Management Rule within the next 18 months (FEIS, Appendix E, pg. E-9). The purpose and need meets the regulations for implementing the National Environmental Policy Act which says the purpose and need for an EIS shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action (40 CFR ).

11 8 I find that the purpose and need does comply with the requirements of the Travel Management Rule, 36 CFR (Subpart B). Issue 7: The Travel Management Plan failed to minimize the effects of off-highway vehicles as required by 36 CFR , and Executive Order 11644, as amended by Executive Order (Appeal, pp ) Response: The Responsible Official carefully designed her decision to respond to the purpose and need identified in the Motorized Travel Management FEIS implementing the provisions of Subpart B of the Travel Management regulations (36 CFR 212) (ROD, pg. 10). The Travel Management regulations implement the executive orders by requiring designation of roads, trails, and areas for motor vehicle use and prohibiting motor vehicle use off the designated system. The selected alternative, Alternative 7, fully implements this direction (ROD, pg.12). The decision also complies with applicable laws, policies, and executive orders as described in Chapter 2 and 3 of the FEIS (ROD, pg. 23). The effects of current NFTS road density plus the proposed additions are disclosed for each resource in Chapter 3 of the FEIS (pp ), identifying the alternatives that minimize damage and supporting the decision. I find the Responsible Official did follow the criteria in 36 CFR and Executive Order 11644, as amended by Executive Order 11989, in making her decision. Issue 8: The Forest Service failed to comply with subpart Part A and B because the Agency s Travel Plan should have been informed by a minimum road system analysis. (Appeal, pp ) Response: The KNF Motorized Travel Management EIS is designed specifically to implement the requirements of the November 5, 2005, Rule for Travel Management, Subpart B (FEIS, Chapter 1, pg. 11). Subpart B is concerned with designating roads, trails, and areas for vehicle use to better manage motorized recreation. The travel management regulations for Subpart B (36 CFR 212) do not require the completion of Subpart A prior to implementation of Subpart B s prohibition and designations. Subpart A will inform decisions related to identification of the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands, and identify roads that are no longer needed to meet resource management objectives, and will inform decisions related to future travel management decisions (36 CFR 212.5(b)(1)). The Pacific Southwest Regional Forester has committed to begin addressing Subpart A of the Travel Management Rule within the next 18 months; that process will provide information needed to identify the baseline transportation system for management of the KNF (FEIS, Appendix E, pg. E-9). I find the Forest Supervisor followed the direction from the Travel Management Rule in relation to Subpart B.

12 Issue 9: The Forest has failed to adequately consult with FWS and NMFS about the impacts from the ROD, a violation of the Endangered Species Act. (Appeal, pp ) Response: The Biological Assessment and Biological Evaluation for Federally Threatened, Endangered, Candidate Species determined species may be affected by Motorized Travel Management Route Designation on the Klamath National Fores (December 22, 2009). The FWS Yreka Office sent a letter of concurrence (January 28, 2010). Attachment 2 to the BA/BE discusses the Project Design Criteria (PDCs) in relation to what is proposed in this project. The PDCs were consulted on and concurred with by the FWS (letter of concurrence from FWS dated Dec 27, 2006). The BA/BE, dated December 22, 2009, discusses the effects of motorized route use on page 4 as follows: 1. The effects of habitat removal from creation of the routes proposed for designation has already occurred (the routes exist), and 2. Noise from the existing routes is within ambient noise levels (existing condition) and the use is not expected to increase significantly (KNF is relatively remote with relatively low use by OHVs) for further detail, see BA/BE, pg. 8,and pg Action alternatives would benefit NSOs and MAMUs due to the elimination of cross country travel, which if continued, could result in future habitat modification or disturbance. Further discussion of effects is on pages 20-23, of the BA/BE. Noise and physical disturbance will continue to occur along unauthorized routes that are designated as part of the NFTS. All routes proposed for addition to the NFTS are associated with existing NFTS roads that generate vehicle noise and the area of overlapping noise influence is substantial. Because unauthorized routes have been in place and used for many years, some level of vehicle noise is included in the ambient situation. Effects from vehicle noise are not expected to have a measurable impact on long-term population parameters (FEIS, Chapter 3, pp ). The EIS disclosed that noise from vehicles is not expected to exceed ambient conditions and that use of the roads is not expected to increase. Current traffic levels on these routes (and on most roads within the KNF) are low and that vehicle use on designated routes will not measurably increase in the near future based on demographic and National Visitor Use Monitoring (NVUM) data (FEIS, pp. 57, 61-62, , 144). Most motorized use is by local residents, and the population of Siskiyou County has not grown appreciably in the last decade. The assumption in the wildlife analysis was that use of unauthorized routes by vehicles has established an ambient noise level for local wildlife that is low and sporadic in nature (FEIS, pg. E-39). All routes proposed for addition to the NFTS are associated with existing NFTS roads that generate vehicle noise, and the area of overlapping nose influence is substantial (FEIS, Chapter 3, pp ). In Appendix E, Response to Comments (pg. E-15), the Forest estimated that some routes proposed for addition to the NFTS may experience slightly higher use after the MVUM is published, but that use across the Forest should not increase (FEIS, Chapter 3, pg.57). Monitoring will include continued participation in the National Visitor Use Monitoring surveys at the Forest level as well as 9

13 accident report, and user comments for identifying area of concentrated use (FEIS, chapter 2, pg. 20). It is unlikely that this information will be able to assess use on specific roads, however. In regards to the KNF not consulting on the motorized travel system as a whole, page E-4 of the FEIS states, Forest Service Manual 7712 (1) states.travel analysis is not required to inform decisions related to the designation of roads and trails for those administrative units and ranger districts that have issued a Proposed Action as of January 8, Nothing in the travel management regulations at 36 CFR 212 requires that travel analysis must be completed before roads and trails on National Forest System lands are designated for motor vehicle use in accordance with Subpart B of the travel Management Rule (36CFR ). The requirement for identification of the minimum NFTS for the KNF is discussed further in this response to comments under the Alternatives section. Concerning SONNCC coho salmon, the potential effects of implementing the Selected Alternative were analyzed for Federally-listed anadromous fish which are under the jurisdiction of the NMFS. The determination from the Fish BA was May Affect,Not Likely to Adversely Affect (see agreed upon Biological Assessment of January 19, 2010, and letter of concurrence dated April 5, 2010) as stated in the ROD pages The ROD (pg. 28) provides rationale on how soil, water, and aquatic (fisheries) resources will be protected and complies with law, regulation and policy. The effects of motorized use of routes are discussed in detail in the Fisheries section of Chapter 3 of the FEIS, and in the Fisheries Biological Assessment and Biological Evaluation (Fish BA/BE), dated January 21, Clarification of where motorized use will be allowed and discussion of the potential effects on fish of routes that are designated near or crossing streams is also found in the Fisheries section of Chapter 3 of the FEIS. A commitment to monitoring the effects on Middle Fork Humbug Creek of the crossings proposed in action alternatives is identified in Chapter 2 of the FEIS. Site-specific mitigations to reduce or eliminate negative effects on fish are documented in the Soils section of Chapter 3 of the FEIS. All action alternatives propose closing most of the unauthorized routes (from 66% to 100%) in riparian reserves as discussed in the Hydrology and Fisheries sections of Chapter 3 of the FEIS. Most of the added routes in anadromous fish habitat are short spurs to dispersed recreation sites, as discussed in the Fisheries section of Chapter 3 of the FEIS. Aquatic Conservation Strategy objectives are met and the action alternatives all are in compliance with the CWA and KNF LRMP in this regard as discussed in the expanded Hydrology section of Chapter 3 of the FEIS. The contribution to sediment loading from these routes is considered minimal, and is immeasurable at the watershed scale, as noted in the Fisheries section of Chapter 3 of the FEIS. In the DEIS, a number of perennial stream crossings were identified in action alternatives (0 to 18 depending on the alternative) by overlaying the proposed routes with the special status fish species distribution layer in GIS. Field verification of these crossings between DEIS and FEIS found the actual numbers were 0 to 3 for action alternatives. The Fisheries section of Chapter 3 of the FEIS has been modified to include the results of the field verification and site-specific mitigations added to reduce or eliminate effects have been added to the Soils section of Chapter 3 of the FEIS. Action alternatives are in compliance with the KNF LRMP including the standards cited in the comment. See also the response to the first comment in this section of responses. I find the Forest adequately consulted with the FWS and NMFS and did not violate the Endangered Species Act. 10

14 Issue 10: The Forest Service is violating section 2(c) and 7(a)(1) of the ESA because the agency s actions have allowed impacts to NSO, marbled murrelet, SONCC coho salmon, and Pacific fisher. The Klamath has failed to disclose and analyze these impacts. (Appeal, pp ) 11 Response: The Appellant contends that the Forest Service is violating section 2(c) and 7(a) (1) of the ESA because agency s actions have not furthered the purpose of ESA and conservation of the above listed species but have allowed and authorized impacts to individuals of the species as well as impacts to habitat that increases risks to the conservation and recovery of the species. The Biological Assessment and Biological Evaluation for Federally Threatened, Endangered, and Candidate Species determined species may be affected by Motorized Travel Management Route Designation on the Klamath National Forest (December 22, 2009). The FWS Yreka Office sent a letter of concurrence (January 28, 2010) agreeing with the conclusions of the BA/BE. In the letter of concurrence, the FWS stated that unless new information reveals effects of route designation that may affect listed species or designated Critical Habitat in a manner or to an extent not considered, or a new species or Critical Habitat is designated that may be affected by the proposed action; no further action pursuant to the Endangered Species Act of 1973, as amended, is necessary. In addition, the KNF s Land and Resource Management Plan provides direction for federally listed species, which includes conserving Endangered and Threatened species and utilizing Forest authority to further the goals of ESA. The LRMP incorporates the Northwest Forest Plan, which provides a comprehensive conservation strategy for NSO and late-successional associated species. The Forest produced a Biological Assessment and Biological Evaluation for the KNF Travel Management Project for federally threatened Southern Oregon/Northern California Coast coho salmon and their designated critical habitat, dated January 19, NMFS concurred with the Forest s determination that the project may affect, but is not likely to adversely affect SONCC coho salmon or their critical habitat, dated April 5, The ROD (pg. 28) provides rationale on how soil, water, and aquatic (fisheries) resources will be protected and complies with law, regulation and policy. The Forest s analysis of impacts to NSO and other sensitive species and the assumptions that motorized use will not increase on the roads to be designated and that ambient noise level are low and sporadic and are unlikely to change in the foresseable future has been addressed in response to Issue 9 above. Wildlife analysis considered fisher habitat to be the same as NSO late-successional habitat (LS), and effects to LS have been discussed. Habitat capability models indicate that habitat characteristics meeting moderate to high capability for NSO also meet requirements for high capability habitat for fisher. Therefore, for this project, suitable denning/resting/foraging habitat for fisher was considered to be equivalent to NSO habitat (FEIS, pg. 312). The discussion of impacts of increased noise and human disturbance to fisher habitat can be found on pages of the BA/BE and pages of the FEIS. More specifically, refer to the discussion in Issue 9 above, as impacts of increased noise and human disturbance to fisher habitat is similar to impacts of the forseeable increased use of motorized routes in LSRs and CHUs.

15 The effects of habitat removal from the creation of the routes proposed for designation has already occurred (the routes exist), and there will be no further fragmentation of fisher habitat from the proposed project. I find the Forest did not violate section 2(c) and 7(a) (1) of the ESA by allowing impacts to listed Threatened, Endangered and Candidate species. FINDINGS Clarity of the Decision and Rationale The Forest Supervisor s decision for Motorized Travel Management and supporting rationale are clearly presented in the Record of Decision (ROD) signed on July 29, Her reasons for selecting Modified Alternative 7 are logical, responsive, and consistent with the direction contained in the Klamath National Forest Land and Resource Management Plan. Public participation was adequate and well documented Public participation was adequate and well documented. A Notice of Intent and Notice of Availability of the DEIS were published in the Federal Register. The project was added to the quarterly Schedule of Proposed Actions. The Forest mailed scoping letters, hosted public meetings, and distributed draft and final EISs to interested groups and individuals. The Klamath National Forest has maintained current information on planning and activities on its web page. Responses to the comments received are detailed and included as part of the FEIS. The decision of the Forest Supervisor indicates she considered and responded to public input. Responses to the comments received were detailed and included as part of the FEIS. The ROD indicated the Forest Supervisor considered and responded to public input. RECOMMENDATION My review was conducted pursuant to and in accordance with 36 CFR 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 Klamath Forest Supervisor used this information, the appellant s objections and recommended changes. Based on my review, I recommend the Forest Supervisor s decision be affirmed. I recommend the Appellants requested relief be denied on all issues. 12 Thomas A. Contreras THOMAS A. CONTRERAS Appeal Reviewing Officer Forest Supervisor, Mendocino National Forest