Kings River Experimental Watershed Project Appeal No A215, John Muir Project Sierra National Forest

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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: Date: July 8, 2011 Subject: Kings River Experimental Watershed Project Appeal No A215, John Muir Project Sierra National Forest To: Appeal Deciding Officer I am the designated Appeal Reviewing Officer for this appeal. This is my recommendation on disposition of the appeal filed by the John Muir Project, appealing the Sierra National Forest Supervisor, Scott Armentrout s, Record of Decision (ROD) regarding the Kings River Experimental Watershed (KREW) Project Final Environmental Impact Statement (FEIS). The decision was signed on April 7, 2011 and the legal notice of the decision was published on April 15, DECISION BEING APPEALED The Sierra National Forest proposes to complete a land management project to achieve forest restoration goals. The project was developed to reduce the effects of uncharacteristic wildfire, drought, invasive species and insect attack, while maintaining, restoring, and learning more about watersheds and habitat for plants and wildlife species. This action is needed, to restore the project area to a more resilient and sustainable forest, to reduce fire severity, to increase the knowledge about management practices in watersheds, and to provide a research site to evaluate regional stresses such as air pollution and climate change. The action is expected to substantially reduce the potential for high fire severity. The project also includes a research component designed to characterize headwater ecosystems and assess the response of these ecosystems to forest management practices. The project area is located on the High Sierra Ranger District of the Sierra National Forest, in Fresno County, California. Most of the project area is within Management Area 4, General Forest; one unit is within Management Area 7, Teakettle Experimental Forest as described in the Sierra National Forest Land and Resource Management Plan (1991, as amended). Primary emphasis for General Forest Management Area in the LRMP is regulated timber management, coordinated with wildlife needs, and maintenance and protection of sensitive soils. Within the Teakettle Management Area, emphasis is to continue management as an experimental forest for watershed purposes under the guidance of the Pacific Southwest Forest and Range Experiment Station. The Sierra National Forest analyzed the desired conditions described in the Land and Resource Management Plan (LRMP) as amended, including the Sierra Nevada Forest Plan Amendment (SNFPA), and the Forest Service manual (FSM 2020) direction to reestablish and retain ecological resilience of National Forest System lands and associated resources to achieve sustainable management and provide a broad range of ecosystem services. The selected Caring for the Land and Serving People Printed on Recycled Paper

2 Appeal # A215, Kings River Exp. Watershed, John Muir Project 2 alternative responds to the goals and objectives outlined in the LRMP, SNFPA and FSM 2020, and helps move the project area toward desired conditions as described in the plan and policy direction. The Sierra Forest Supervisor selected Alternative 5, as analyzed in the Environmental Impact Statement, for implementation. Alternative 5 includes the following mix of activities on 3620 acres: Thin 1717 acres of conifer stands to reduce fuels and improve forest health. Treat fuels through mastication and/or burning on 2507 acres. Harvest timber for lumber and biomass on 1569 acres. Thin 397 acres of plantations using both hand and mechanical methods. Reconstruct 6.3 miles of road and build 2.6 miles of temporary roads. Treat minor infestations of noxious weeds by pulling or applying herbicide via backpack sprayer. Amend Forest Plan Standards and Guidelines 74, 75, 76, 85, 86, 92, 109, 111, via nonsignificant, site-specific plan amendments in order to accommodate research in Providence and Bull Units (see SNFPA ROD, Appendix A). APPEAL SUMMARY The Kings River Experimental Watershed Project was listed in the Schedule of Proposed Actions January 01, Two public meetings were held on October 14, The Notice of Intent (NOI) to prepare an EIS was published in the Federal Register on October 14, Scoping began on October 14, 2009 and ended on November 13, A letter inviting interested parties to a public meeting was sent on September 29; the two public meetings were held on October 14, Scoping letters were mailed to approximately 60 local tribal organizations, other agencies, individuals, and groups potentially interested in or affected by the Proposed Action, on September 29, The Draft Environmental Impact Statement (DEIS) was provided to interested parties on December 23, The Notice of Availability was published in the Federal Register in the Fresno Bee, the paper of record, on December 23, Copies of the DEIS were sent to 21 individuals, organizations, tribes, and government agencies. The DEIS was also placed on the Sierra National Forest web page. There were 27 comments received by the close of the comment period on February 7, The John Muir Project submitted timely comments and is eligible to appeal this decision. The legal notice of decision was published April 16, 2011 in the Fresno Bee. The deadline for filing appeals was June 1, The appeal was filed on May 31, 2011 and is timely. On June 2, 2011, Chad Hanson of the John Muir Project was invited via to meet with Forest Supervisor Scott Armentrout to discuss appeal resolution. Mr. Hanson called the forest on June 13 to set up a meeting, but no date could be agreed upon; no meeting was held.

3 Appeal # A215, Kings River Exp. Watershed, John Muir Project 3 As relief, the appellant requests that the FEIS be withdrawn, and a supplemental or revised DEIS be prepared, after the asserted violations are corrected. ISSUES AND RESPONSES Appellant Issue 1: (Appeal #34, pp. 1-2) No alternative is considered that fully complies with the Forest Plan, as required by NEPA. This was requested, but dismissed by the Forest because it would reduce the area available for logging, which the FEIS claims would not meet the peer review standard and scientifically acceptable conclusions could not be reached from the data collected. The FEIS fails to provide any explanation to support this claim. 40 CFR requires the EIS to briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action. 40 CFR (a) requires rigorous, objective analysis of all reasonable alternatives, and a brief discussion of reasons that any alternatives were eliminated from detailed study. Reasonable alternatives are developed to meet the purpose and need and address significant issues related to the proposed action (36 CFR 220.5(e)). NEPA does not require the consideration of every conceivable alternative, and the appellant points to no law, regulation or policy that requires the Forest to consider an alternative that fully complies with the Forest Plan without amendment. The range of alternatives considered is determined by the purpose and need for action. The Forest describes the critical element that research plays in the KREW project area in FEIS pg. 1-9: The KREW Project research component is a replicated, paired-watershed research area for examining headwater streams in the southern Sierra Nevada, a region of significant water yield for the State of California. The KREW Project research addresses both basic and applied science questions pertaining to sustainable forest management under current and potential future conditions. The KREW Project research component is a formal research project and has a peer reviewed study plan that is periodically updated The Forest Service has collected data at eight instrumented watersheds since 2003 on the following topics to meet KREW Project research goals (FEIS, pg. 1-9). The background of the purpose and need for the KREW project was described in detail in FEIS Chapter 1. FEIS, Page 1-8 describes that the research area is guided by a 2002 inter-agency memorandum of understanding (signed by both the Station Director of the Pacific Southwest Research Station and the Regional Forester) and the Kings River study. Research in the KREW project was designed to fill important information gaps and answer monitoring questions about the response of ecosystems to active forest management. Supporting research by the PSW is a primary goal of the Sierra National Forest (FEIS, pg. 1-8). The FEIS section 3-8 details the research history, objectives, collaborators and methodology that has developed in the project area since work began in KREW in 2000 (FEIS, pp to ). The FEIS, Appendix A details the monitoring data research measurements that have been developed since monitoring began in 2002, and which would provide the baseline and comparison for future monitoring (FEIS, Appendix A).

4 Appeal # A215, Kings River Exp. Watershed, John Muir Project 4 In light of the past, ongoing and needed future research in the area, the Forest determined that the purposes (objectives) and needs of the KREW project were to conduct the peer review standard and scientifically acceptable conclusions of the KREW study plan (FEIS, pg. 1-12), and to respond to the goals and objectives outlined in the LRMP to help move the project area toward desired conditions as described in the plan (SNFPA ROD; USDA-FS 2004b) (FEIS, pg. 1-12). The Forest considered alternatives that would have allowed them to remove or reduce the number of plan amendments, but these alternatives were eliminated from detailed study because of their failure to meet the project s Purpose and Need (FEIS, pp to 2-77; See also, FEIS, Appendix I, Response to Comment ARA-6, pp. 8-9). I find that the Forest adequately defined the Purpose and Need in light of the research objectives, and was consistent with 40 CFR I also find that, to satisfy the Purpose and Need, the Forest determined that Forest Plan amendments were necessary, and that it was appropriate to only address in detail the alternatives that contained those amendments, and met stated research objectives. Appellant Issue 2: (Appeal #34, pg. 1) The Forest refused to fully consider alternatives that did not meet the strict basal area and stand density reduction targets of the Kings River research plan, thus arbitrarily and illegally narrowing the purpose and need. To meet the Purpose and Need, the research design components needed in each of the action alternatives had to satisfy the requirements of peer review standard and scientifically acceptable conclusions that are presented in FEIS on page Eight non-significant forest plan amendments (amendments for 2004 SNFPA S&Gs 74, 75, 76, 85, 86, 92, 109, and 111) were included in each action alternative to meet the research purpose and needs (FEIS 2-23 to 2-27). Alternative 6, which removes all plan amendments, was considered but eliminated from detailed consideration (FEIS pg and 2-75). FEIS pg states that: In order to achieve these project purposes measurements must be taken within a statistically significant amount of treated land within paired watersheds and the treatments must be done in the same year. If a type of treatment in a unit was staggered over two or more years as would be necessary if the LOPS were not adjusted, or if the amount of land treated was diminished as would be the case if Yosemite toad buffers were not relaxed, or treatment not allowed in fisher den site buffers, and implementation of the plan amendments relating to treatment in the riparian areas, the research results would not meet the peer review standard and scientifically acceptable conclusions could not be reached from the data collected. No scientific conclusions could be drawn and therefore the research component of the purpose and need would not be met. Because it failed to meet the research purpose and need of the project, the Forest eliminated Alternative 6 from detailed consideration.

5 Appeal # A215, Kings River Exp. Watershed, John Muir Project 5 The Forest fully analyzed four action alternatives that were developed during project design and scoping, and reflected a range of treatment intensities and policies, consistent with 36 CFR 220.5(e). FEIS (pg. 2-45) describes how the alternatives were developed, and FEIS Chapter 2 presents details on each alternative. FEIS Chapter 3 analyzes the existing condition and environmental consequences of each action alternative in detail, as summarized in FEIS Appendix I response to comments ARA-7 and AD-10. Each alternative was designed to implement the purpose and needs related to the KREW study plan and research needs of the project, and each was determined to affect resources at varying intensities (See FEIS, Chapter 3). Two alternatives were based on canopy cover and/or basal area requirements of the 2004 and 2001 SNFPA RODs (Alternatives 2 and 3, respectively) to sharply define the differences between thinning strategies as they meet the purpose and needs for the project. The basal area differences between the alternatives are summarized on FEIS pages 2-84 though By fully analyzing these four alternatives throughout the FEIS, the Forest fully considered alternatives that would implement diverse basal area and stand density reduction targets. I find that the Forest considered a reasonable range of alternatives that would affect resources in the KREW project area at varying intensities, as required by 40 CFR (a) and 36 CFR 220.5(e). Appellant Issue 3: (Appeal #34, pp. 2-3) The Forest refused to fully consider a non-commercial (less than 10 inches DBH) alternative. This alternative was requested, but the Forest dismissed it by claiming that only removal of trees 20 inches in diameter would allow the Forest to effectively reduce potential tree mortality from fire. There was no data to back this, minimal response in the FEIS, and the Forest did not respond to studies provided by the Appellant. The appellant asserts that the FEIS did not appropriately analyze the non-commercial alternative. The FEIS stated that, one component of the KREW project purpose is to: Include a detailed non-commercial funding alternative as ordered by the Eastern District Court of California in [Sierra Forest Legacy, et al., v Mark Rey, in his official capacity as Under Secretary of Agriculture, et al., Case No. 2:05-cv MCE-GGH] for all new fuel reduction projects not already evaluated and approved as of the date of this Memorandum and Order. Subsequent Regional Forester guidance concerning Judge England s decision indicates that the non commercial funding alternative should be designed solely to meet the fuels reduction purpose and need (FEIS, page 1-12). The FEIS followed this instruction by considering Alternative 3, the non-commercial funding alternative. As detailed in FEIS 2-12, and 2-54 through 2-60, Alternative 3 thins the forest only to the degree needed for fuels reduction. This alternative was analyzed and compared to the other action alternatives in detail throughout FEIS Chapter 3 Environmental Consequences. The appellant asserts that a 10 inch DBH alternative should be fully considered as the noncommercial funding alternative. The FEIS Table , and FEIS section showed that several stands within the project area are overly dense in the inch diameter class. To meet direction to restrict treatments to hazardous fuels only, Alternative 3 (non commercial funding

6 Appeal # A215, Kings River Exp. Watershed, John Muir Project 6 alternative) proposed to thin trees up to 20 inches DBH in the general forest, and 12 inches DBH in the Old Forest Emphasis Area (OFEA) (chapter pg 2-54). In its response to comments, the Forest stated that, currently 65 percent of the project area is at risk for sustaining high to moderate fire severity tree damage; over the next 30 years this risk increases to 90 percent of the project area (FEIS, Appendix I, pg. 10). The Forest found that the KREW project s existing conditions necessitate the DBH limit examined by alternative 3 (Id.). The Forest also addressed the many reasons that trees in the intermediate to large size class can affect fuel treatment (See FEIS, Appendix I, pp ). The FEIS Appendix I response to comment FF-4 states: There is ample evidence that fuel and forest restoration treatments will be effective at reducing fuel loads, fire severity, and crown fire risk when surface fuels are treated in concert with ladder fuels, which includes the removal of select trees between 12 and 30 dbh (e.g., Hurteau and North 2008, Stephens et al. 2009, North et al However, it should be noted that there is very little scientific support for removing trees >30 inches in diameter for the purposes of reducing fire risk or achieving ecological restoration objectives (FEIS, Appendix I, pp ). Response to Hanson Comments February 28, 2011 also demonstrates the literature reviewed for fuel reduction regarding diameter limits (Project Record document MM Response to Hanson Comments). I find the Forest adequately considered diameter limits that would effectively reduce hazardous fuels to create the non-commercial funding alternative as directed by the Court Order. Appellant Issue 4: (Appeal #34, pg. 3) The FEIS claims that it is managing units outside of the Kings River experimental watershed under the North et al. (2009) General Technical Report (GTR), but the management is inconsistent with the GTR. Calculations suggest that a majority of very large trees (over 35 DBH) are proposed for removal in the North et al. GTR portion of Bull, but nothing in the GTR recommends or endorses this. In response to comments, the Forest stated that Table has been edited to be consistent with the rest of the DEIS to show only trees up to 30 inches dbh maximum would potentially be thinned (FEIS, Appendix I, page 68; FEIS, Correction and Edits, pg. 1-18). The Forest s intent to not remove any trees over 30 dbh can also be seen in Chapter 3-11 Vegetation and Silviculture analysis for the proposed alternative (FEIS, pg ). I find that the Forest clarified their intent to not thin any trees over 30 dbh and; therefore, are consistent with NEPA s requirement to ensure scientific accuracy and integrity (40 CFR ).

7 Appeal # A215, Kings River Exp. Watershed, John Muir Project 7 Appellant Issue 5: (Appeal #34, pp. 3-4) The FEIS misrepresents Guarin and Taylor (2005) (a study finding 296 dead trees per acre) by suggesting that it is representative of tree mortality in other Sierra Nevada Forests. The study subjectively chose specific pockets of high tree mortality in Yosemite National Park, and using the study to suggest this level of tree mortality in Sierra Nevada Forests goes against the Forest Service s own data, which found that there are less than a dozen smaller snags per acre on average in these forests. The appellant asserts that the Guarin and Taylor (2005) study is misinterpreted to suggest that there are 296 dead trees per acre in all Sierra Nevada Forests. The Forest did not have a chance to address this specific concern since it is a reference to a comment made during the Response to Comment period; however, the Gaurin and Taylor study is one of many studies referenced in the project record. Other studies were also referenced analyzing stocking and mortality in the Response to Comments (Appendix I, pages 58-59) and include Oliver (2005), Grulke et al. (2009), and Mantgem and Stephens (2007). Stocking and mortality are also discussed extensively in Chapter 3.11 (pgs 21-25) of the FEIS. These multiple studies present how the range of mortality is affected by stocking levels and environmental pressures. In Chapter 3.11 of the FEIS, where the Gaurin and Taylor study is addressed as it relates to insect mortality, the Forest states that: In contrast there are approximately 6 snags per acre in the KREW Project (FEIS, pg ). Therefore, it is apparent that the Forest was not intending to use the Gaurin and Taylor study to suggest that the KREW project area has 296 dead trees per acre. I find that the Forest did not misrepresent the Guarin and Taylor study regarding mortality, and appropriately addressed the much lower number of dead trees per acre for the KREW project. Appellant Issue 6: (Appeal #34, pg. 4) The FEIS misrepresents Grulke et al. (2009) (a study finding 42% tree mortality in the San Bernardino National Forest) by suggesting that the tree mortality found in the study was solely from Bark Beetles due to overly-dense forest stands, and that similar mortality would occur in the KREW project area if no action is taken. Although the FEIS does describe Grulke s work, it also mentions a study by Mantgem and Stephens which indicates increased mortality of approximately 3% per year over the past 20 years within the Sierra Nevada Mountains (FEIS, pg ; FEIS, Appendix I, pp ). The record also quotes studies by Guarin and Taylor (2005), which found that in unthinned mixed conifer stands similar to those found in the project area, mortality rates of 39 to 59% are due to drought and insects (Id.). Recent studies (Cisneros and others 2010) also indicate a potential for phytotoxic ozone (03) effects to sensitive pines and other species are expected within the project area since various ozone exposures are among the highest in studied mountain

8 Appeal # A215, Kings River Exp. Watershed, John Muir Project 8 locations in North America and are similar to the San Bernardino Mountains (Id.). The episodic nature and intensity of tree mortality described by studies for other California forests are indicative of the types of mortality that can or have occurred in the project area (Id.). Grulke in his 2009 study indicated that tree density, insects, pollution, and drought create a synergy that leads to the decline of tree vigor and a predisposition to fire severity (Grulke and other 2009, chapter 3-11 pg. 23). I find that the Forest did not misrepresent Grulke et al. (2009) since it is using the study merely as an example of what can happen in areas above the threshold for imminent mortality, and addresses it in relation to other studies that are directly related to the project area. Appellant Issue 7: (Appeal #34, pp. 4-5) The Forest Plan amendment for den site/buffer protections for the Pacific Fisher is a significant Forest Plan Amendment. This is the second time the Forest has proposed to amend the Forest Plan to eliminate den site/buffer protections for the Pacific fisher in order to allow logging of mature trees. Since the Forest does not intend to follow the Standards and Guidelines of the 2001 and 2004 Sierra Nevada Forest Plan Amendments (SNFPA), the proposed project is not non-significant. The Forest Plan amendments are highly significant and require, under NEPA, a complete re-analysis of the entire fisher analysis in the SNFPA. If an amendment to a forest plan results in a "significant change in the plan," NFMA (36 CFR 219.8) requires that the amendment process follow the procedures used in the initial development of the plan. If the proposed change in the plan is not significant, public notification and completion of NEPA procedures are still required (16 USC 1604(f)(4) and 36 CFR 219.8). Determining whether a plan amendment is a significant change for a NFMA requirement, the Forest Service Manual (FSM and 52) provides specific direction (ROD, pg. 33).* FSM Changes to the Forest Plan that are Significant. 1. Changes that would significantly alter the long-term relationship between level of multiple-use goals and services originally projected (36 CFR (e)). 2. Changes that may have an important effect on the entire forest plan or affect land and resources throughout a large portion of the planning area during the planning period. FSM Changes to the Forest Plan that are Not Significant. Changes to the forest plan that are not significant can result from: 1. Actions that do not significantly alter the multiple-use goals and objectives for the long term land and resource management. 2. Adjustment of management area boundaries or management prescriptions resulting from further on-site analysis when the adjustments do not cause significant changes in the multiple-use goals and objectives for long-term land and resource management. Environmental analysis in the BE (Effects Section, pp ) and FEIS (pp to ; to ) for the proposed project have determined that the proposed action will not

9 Appeal # A215, Kings River Exp. Watershed, John Muir Project 9 affect the viability of the local fisher population, or the Southern Sierra Nevada fisher population as a whole. Proposed Actions will reduce 12 acres of fisher habitat after treatment (0.8 percent of the fisher habitat in the project area; 0.05 percent fisher habitat within a 3.1 mile buffer of the project area; 0.03 percent of the Kings River Project Area; and percent of the Southern Sierra Nevada fisher population area) (FEIS - Section and and the December 2010 Wildlife BABE Sec and 3.3.4). Further, the changed Pacific fisher den site buffers and LOPs would be implemented in a limited area only during project implementation (FEIS, pg to 2-26). Cumulative issues with the Sugar Pine project LRMP amendments were addressed in the Response to Comments TW-12 and TW-15 (See FEIS, Appendix I, pp ). The Sugar Pine project was addressed in the Cumulative Effects section of the BE (pg. 117) and FEIS (pg ). The preferred alternative for the Sugar Pine project is predicted to result in the conversion of 53 acres of fisher habitat to lower quality habitat, roughly 1% of the potential habitat in the project area. Cumulatively the Sugar Pine and KREW project amendments result in minor impacts on the fisher (FEIS, pg ). I find that the amendments are applicable to a limited area and time and therefore do not affect the long-term management or the entire land management plan for the fisher. The cumulative effects analysis in the FEIS and BE show that the long-term effects of the amendments are not significant and do not require a new analysis in the Sierra Nevada Land Management Plan. * This guidance is pre The FSM, post 2006 states: Changes to the Land Management Plan that are not significant 1. Actions that do not significantly alter the multiple-use goals and objectives for long-term land and resource management. 2. Adjustments of management area boundaries or management prescriptions resulting from further on-site analysis when the adjustments do not cause significant changes in the multiple-use goals and objectives for long-term land and resource management. 3. Minor changes in standards and guidelines. 4. Opportunities for additional projects or activities that will contribute to achievement of the management prescription Changes to the Land Management Plan that are significant 1. Changes that would significantly alter the long-term relationship between levels of multiple-use goods and services originally projected (see section (e) of the planning regulations in effect before November 9, 2000 (see 36 CFR parts 200 to 299, revised as of July 1, 2000)). 2. Changes that may have an important effect on the entire land management plan or affect land and resources throughout a large portion of the planning area during the planning period. The 2006 change strengthens the Forest s position since #3 of the Changes that are not significant explicitly includes minor changes in standards and guidelines.

10 Appeal # A215, Kings River Exp. Watershed, John Muir Project 10 Appellant Issue 8: (Appeal #34, pg. 5) The FEIS fails to explain why, for fire and fuels purposes, it proposes to remove many mature fire-resistant trees up to 30 inches in diameter, and over 30 inches in diameter. The KREW ROD states: My decision addresses large tree removal by retaining all trees 30 inches dbh and above while only removing four percent of the inch trees in the project area (4,000 of the 53,000 trees in this size class across 3,653 acres of the project approximately one tree on average per acre). These low levels of removal in the inch tree size class allow the level of treatment to have scientifically credible results while allowing the forest to continue to grow large trees for habitat structure and to develop mature forest conditions (FEIS Section ). (ROD, pg. 23). The FEIS further explains the reason to remove fuels up to 30 inches in diameter in Response to Comment FF-4: These trees may be removed for other reasons, including: (1) reducing canopy bulk density to reduce crown fire spread (Stephens and Moghaddas 2005, Safford et al. 2009) in stands treated for public and firefighter safety, (2) decreasing intermediate-sized ladder fuels that have continuous fuels to the ground (North et al. 2009), (3) increasing the growth and reducing drought-stress to large-diameter pines and oaks by removing shadetolerant competitors, (4) decreasing tree densities on the middle to upper slope topographic positions to facilitate heterogeneity across the forested landscape (North et al. 2010), (5) reducing operational hazard, (6) increasing stand heterogeneity and enhancing regeneration of shade-intolerant pines and oaks through the creation of tree gaps or increase in size of existing small-sized gaps (Bonnicksen and Stone 1982), (7) increasing long-term carbon sequestration by increasing growth rates of large-diameter fire-resilient trees (North et al. 2009, Hurteau and North 2010), and (8) reducing stand densities to promote tree growth and forest stands that are resilient to fire, insect outbreaks, and future climate change. (FEIS, Appendix I, pp ). The Forest also notes that there is little scientific support for removal of >30 dbh trees for the purposes of reducing fire risk or achieving ecological restoration objectives (FEIS, Appendix I, pg. 17). I find that the Forest explains in the FEIS and the ROD that they are not removing trees over 30 dbh, and adequately addresses the need to remove four percent of the trees between 20 and 30 dbh. Appellant Issue 9: (Appeal #34, pp. 5-6) The FEIS inaccurately claims that limiting SDI and maximum SDI are the same thing, but limiting SDI has a much lower value than maximum SDI for ponderosa pine-dominated forests. This creates the false impression that the existing stands are far denser than they really are.

11 Appeal # A215, Kings River Exp. Watershed, John Muir Project 11 In Response to Comments, the Forest stated that The DEIS does not equate maximum SDI and limiting SDI. Rather the DEIS discusses the distinction between endemic insect mortality, limiting density and the transition between these tree densities and there relation to maximum SDI (FEIS, Appendix I, pg. 58). In the FEIS, the Forest describes that with presence of bark beetles, the limiting SDI and maximum SDI approach the same values because bark beetles constrain the density of pines (FEIS, chapter 3.11, pg. 22; FEIS, Appendix I, pg. 58), and as SDI increases beyond 35% of maximum (limiting density) insect mortality is possible (Oliver 1995). When stand density increases past 60% of maximum (lower limit of self thinning or zone imminent bark beetle mortality) insect or density mortality is imminent. These zones do not predict the onset of tree stress or when the trees will be attacked. This is due to the uncertainty of drought, site conditions, and the random dispersal of insects. Maximum SDI for Ponderosa pine is 571 without bark beetles, 365 with bark beetles (FEIS, chapter 3.11, pg ). I find that the Forest adequately addressed what appears to be on the surface, conflicting scientific conclusions, and used the best available science to analyze their project. Appellant Issue 10: (Appeal #34, pg. 6) Avoidance of inconvenient scientific conclusions in order to promote the Proposed Action and/or minimization of adverse impacts, fails to comply with NEPA. In their comments, the Appellants submitted citations to numerous scientific studies showing that significant patches of high-intensity fire are both part of the natural fire regime and create highly biodiverse and ecologically-important habitat. The FEIS dismisses these findings by implying they are from a different state. The Forest acknowledged different studies related to patches of high-intensity fire and distinguished them from their project conditions where appropriate (See FEIS, Appendix I, Response to Comments TW17, 18, 19, and 20, pp ). The Forest also discussed the fire history of the specific project area, how it has changed, and what is most appropriate for the area (FEIS, pp to 3.2-7). There is a difference of opinion by different authors as to what impact the project actions would cause; however, the Forest used the prevailing scientific thought for their project area to reach their conclusions (Id.). There is no evidence that the Forest avoided inconvenient scientific conclusions to promote the Proposed Action. I find that the Forest adequately addressed scientific conclusions that disagree with their proposed action, and used the best science to form their decision. 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

12 Appeal # A215, Kings River Exp. Watershed, John Muir Project 12 reviewed the appeal record, including the comments received during the comment period and how the Forest Supervisor used this information, the appellant's objections, and the recommended changes. Based on my review of the record, I recommend that the Forest Supervisor's decision be affirmed on all issues. I recommend that the Appellants' requested relief be denied on all issues. /s/ Kimberly H. Anderson KIMBERLY H. ANDERSON Appeal Reviewing Officer Forest Supervisor, Modoc National Forest