(3) The Appellants object to the decision to adopt the Proposed Action from the Environmental Assessment prepared for the decision of the Deadwood Complex- Allotment Management Plan Updates, Rogue River National Forest, made by Scott Conroy, Forest Supervisor, dated February 3, 2003 (published Medford Mail Tribune February 6, 2003).

The deadline for appeal is March 24, 2003 and this appeal was sent via certified mail-return receipt to the Appeals Deciding Officer on the morning of March 21, 2003.

(4) The Appellants’ objections and issues:

Ø The Appellants object to the lack of project level surveys and population data for key MIS and PETS species.

Ø The Appellants object to the lack of determination by the Forest Service under the National Forest Management Act regarding how the proposed action would maintain viable populations of vertebrate species.

Ø The Appellants object to the Forest Service violation of the National Forest Management Act by continuing to allow cattle grazing on the allotment without first evaluating the allotment's suitability for grazing.

Ø The Appellants object to the Forest Service failure to adequately analyze and mitigate impacts to soils under the National Environmental Policy Act.

Ø The Appellants object to the Forest Service failure to adequately analyze impacts to recreation and economics under the National Environmental Policy Act.

Ø The Appellants object to the failure to prepare an EIS for the Deadwood Complex Allotment Management Plans under the National Environmental Policy Act.

Ø The Appellants object to the mitigation measures not being adequately set forth thereby threatening violations of the Clean Water Act, National Environmental Policy Act, and the Aquatic Conservation Strategy of the Northwest Forest Plan.

Appellants request a remand of the Decision Notice, and a stay of all livestock grazing until a valid final Environmental Impact Statement for all allotments is prepared that is in conformity with existing law.

(5) The Forest Service has clearly failed to comply with the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Administrative Procedures Act (APA).

Appellants Interest

Friends of Living Oregon Waters (FLOW), P.O. Box 2478, Grants Pass, Oregon, 97528, is an IRS-determined 501(c)3 organization comprised of hundreds of individuals dedicated to advocating for the protection and restoration of Oregon’s waters. FLOW uses legal oversight and public education to help protect Oregon’s rivers, watersheds, lakes, wetlands, and groundwater from the impacts of pollution and development. The Deadwood Complex Allotments adversely affect FLOW’s members use and enjoyment of the area in which FLOW members hike, swim, photograph, view wildlife and birds, study, and find solitude.

Rogue Group Sierra Club (RGSC), 84 4^th Street, Ashland, Oregon, 97520, is the local body of the national environmental organization, the Sierra Club. The purpose of the Sierra Club and its local body, the Rogue Group Sierra Club, is to restore the quality of the natural environment and to maintain the integrity of ecosystems, to education the public to the need to support and understand the objectives of the Sierra Club, and to study, explore and enjoy the wildlands. The RGSC has many members who actively use and enjoy the area impacted by the Deadwood Allotments.

FLOW and RGSC have an organizational interest in providing its members and the public with the information that NEPA requires the Forest Service to compile and to disclose in environmental documents. Members of FLOW and RGSC have a right to know the environmental costs and tradeoffs involved in resource management decisions. Appellants have a right under NEPA to review and comment upon proposals for major federal actions that may significantly effect the environment, such as the approval of this project.

FLOW and RGSC are “parties to the case” as comments were provided for the Environmental Assessment. The interests of the Appellants and their members have been adversely affected by the Rogue River National Forest’s failure to prepare an adequate NEPA document for this decision. FLOW and RGSC therefore appeals, pursuant to 36 C.F.R. 215, the decision to proceed with this project, the Environmental Assessment and the Finding of No Significant Impact (FONSI).

Request for Stay

A full stay is necessary to prevent irreversible environmental damage, damaging the interests of FLOW and RGSC members and to prevent unnecessary expenditure of taxpayer money on this project.

When environmental injury is “sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco Production Co. v. Village of Gambell, U.S. 545 (1987). There is evidence of the project’s immediate adverse impact on the recreational interests of FLOW members and the adverse impacts that the project will have on the plant, fish, and wildlife species and the physical and chemical integrity of project area riparian areas. On the other side of the balance there are not any countervailing equities that would suggest a stay is inappropriate, or even counterproductive. Furthermore, we are not aware of any irreparable injury to third parties that would be caused by the entry of a stay against development of this project. The only interest on the other side of the balance is the income derived from grazing activity by Deadwood Complex grazing permittees.

Statement of Reasons

1. FAILURE TO COMPLY WITH NFMA AND NEPA REQUIREMENTS FOR MIS AND PETS SPECIES

The EA shows that the Forest has no site-specific population data for the areas in this project for many key MIS and PETS species. There is no site-specific data for many MIS species that could occur in the Deadwood Complex Area.

The point of PETS and MIS surveys is NOT to provide information, definitive or otherwise, on a specie’s biology but to determine population numbers so that viability can be assured and so impacts from management can be known. This is not about adding to scientific knowledge in general but about having real data to verify that your management is not harmful.

Most disturbing is the apparent total lack of MIS surveys. There were not surveys completed for key MIS species such as the American Pine Marten (RRNF LRMP, p.4-20), a rare furbearer. The EA completely lacks actual survey data for all the listed MIS species. Pages III-24-26 and IV-36 of the EA provide RRNF’s cursory MIS analysis. Further, there is no specific mention of the American Pine Marten’s habitat requirements or how cattle grazing impact them.

Further, RRNF has no long-term or short-term trend data for MIS species available in the EA making the “most meaningful measurement of a species’ population.” Monitoring and survey of these species should not be allowed to commence after a decision is made but should be completed before NEPA analyses are presented to the public.

Since the RRNF discounted the little data they did have on MIS species, the EA does not analyze anywhere how these proposed management actions would affect population trends. Without such an analysis (which is a NEPA violation), there is no way to tell if the agency is complying with the agency’s NFMA duty to maintain viability of these species.

The Forest Service is required to obtain and maintain current inventory data and use accurate scientific information. This may require the preparation of special studies or inventories. Data shall be periodically evaluated for accuracy and effectiveness. The Forest Service is required to continually monitor and evaluate their management activities. 16 U.S.C. § 1604(g) and 36 C.F.R. § 219.11(d). If monitoring, evaluation, or public comments indicate a need to amend the Forest Plan, the Forest Plan can be amended. 36 C.F.R. § 219.10(f). Management plans must insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land. 16 U.S.C. § 1604(g)(3)(C).

The agency is also required to maintain biological diversity and viable populations of Forest fauna and flora. 36 C.F.R. Section 219.26 requires the Forest Service to gather and keep data, as it states in relevant part:

“Forest Planning shall provide for the diversity of plant and animal communities and tree species consistent with the overall multiple use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition.”

36 C.F.R. Section 219.19 mandates the Forest Service specifically monitor MIS:

“Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area . . . (1) in order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as MIS . . . (6) population trends of the MIS will be monitored and relationships to habitat changes determined.”

To comply with the plain language of 36 C.F.R. §219.19, “[h]abitat trend data may not be used as a proxy for population inventories.” Forest Guardians, et al. v. United States Forest Serv., 180 F. Supp. 2d 1273 (D.N.M. 2001)(Parker, J.)(hereafter cited as "Parker Decision"), Slip op. at 10. The Forest Service must compile quantitative population data for the management indicator species (e.g., the number of animals, including reproductive animals, found in the Rogue River National Forest and the planning area at issue here), not just manage habitat for a hypothetical population. See Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999), disagreeing with Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754 (9th Cir. 1996). In the Parker decision, the court engages in a thorough discussion of the split between Sierra Club and Inland Empire, in light of the Tenth Circuit’s decision in Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162 (10th Cir. 1999), concluding that “the Forest Service is obligated by the plain language of [NFMA]'s implementing regulations to acquire and analyze hard population data of its selected management indicator species for” its proposed management activities. Parker Decision at 10-11.

Recently, the District Court of Utah agreed with Sierra Club v. Martin and Forest Guardians. In Utah Environmental Congress v. Zieroth, 190 F. Supp. 2d 1265, 1271-72 (D. Utah 2002), Judge Kimball held:

“Although the Forest Service’s methodology is entitled to deference, its actions must be in accord with the governing regulations. Section 219.19 specifically states that ‘population trends of the management indicator species will be monitored and relationships to habitat changes determined.’ 36 C.F.R. § 219.19(a)(6). Section 219.26 similarly requires the Forest Service to use quantitative data to measure a project's impact on forest diversity. In reviewing these regulations, the court agrees with the analysis of the Martin court:

“‘MIS are proxies used to measure the effects of management strategies on Forest Diversity; Section 219.19 requires that the Forest Service monitor their relationship to habitat changes. Section 219.26 requires the Forest Service to use quantitative inventory data to assess the Forest Plan's effects on diversity. If Section 219.19 mandates that MIS serve as the means through which to measure the Forest Plan's impact on diversity and Section 219.26 dictates that quantitative data be used to measure the Forest Plan's impact on diversity, then, taken together, the two regulations require the Forest Service to gather quantitative data on MIS and use it to measure the impact of habitat changes on the Forest’s diversity. To read the regulations otherwise would be to render one or the other meaningless . . .’

“Martin, 168 F.3d at 7. Similarly, in analyzing the applicable regulations, a district court in the Tenth Circuit has also recently found that ‘under this clear language, [the Forest Service] may not rely solely on habitat trend data as a proxy for population data or to extrapolate population trends.’ See Forest Guardians v. United States Forest Service, 180 F. Supp.2d 1273, 2001 WL 1705942 (D.N.M. Oct. 2, 2001). In reaching this conclusion, the Forest Guardians court recognized that ‘management indicator species represent a management short‑cut . . . . Consequently, there is generally no reason to further short‑cut the management monitoring process by relying on habitat trends to project management indicator species population data.’ Id.

While the implementing regulations technically apply to the “formulation of Forest Plans rather than to specific projects proposed under already enacted Forest Plans,” the Forest Service’s obligations under the Forest Plan “continue throughout the Plan’s existence.” Sierra Club v. Martin, 168 F.3d 1, 6 (11th Cir. 1999) (citing 36 C.F.R. § 219); see Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 760 n.6 (9th Cir. 1996)(rejecting proposition that 36 C.F.R. § 219.19 applies only to promulgation and management of forest plans and not to site-specific projects and reasoning that areas contained within National Forest boundaries would be covered by a forest plan and thus also would be governed by § 219.19). The Forest Service must constantly monitor the Forest Plan’s impact, including the impact of specific management actions, on the forest environment so that compliance with the Forest Plan is achieved and any needed revisions to the Forest Plan are ascertained. See Martin, 168 F.3d at 6; 16 U.S.C. § 1604(i)(site-specific management actions implemented by the Forest Service “must be consistent with the Forest Plan”); Dombeck, 185 F.3d at 1168 (“[P]roposed projects must be consistent with the Forest Plan.”). Therefore, to avoid an adverse impact result, courts have concluded that the National Forest Management Act and the implementing regulations at issue apply to site-specific projects.

The statutes, implementing regulations, and case law mandates the Forest Service to monitor and maintain population data on MIS and PETS. The RRNF has not performed site‑specific surveys for or obtained current population or inventory data on all the MIS and PETS in these planning areas.

The Forest Service is proposing this project without determining the “minimum number of reproductive individuals” for each vertebrate species.

The failure to determine the minimum number of reproductive individuals means that decisions that purport to maintain viable populations of vertebrate species and maintain their habitat to support a minimum number, including but not limited to this project, will be arbitrary and capricious decisions, abuses of discretion and otherwise not in accordance with law, in violation of the APA, 5 U.S.C. § 706(2).

The Forest Service has also established, and is implementing, the LRMP and is proposing this project without knowing the location and number of individuals of the species that would enable determining whether the habitat for each vertebrate species is “well‑distributed” so as to allow interaction. Thus, any decision made without such information would be arbitrary and capricious decisions, in violation of the APA, 5 U.S.C. § 706(2). In addition, the Forest Service’s failure to determine the location and number of individuals constitutes agency action unlawfully withheld or unreasonably delayed in violation of the APA, 5 U.S.C. § 706(1).

Numerous sensitive species are mentioned in the Deadwood Complex analysis but there is no specific data regarding the impacts of the proposed action on the species’ viability and there is no record of population data. This includes species very important to the Forest and to the interests of FLOW and RGSC such as the Northwestern Pond Turtle, Spotted Frog, Black Salamander, California Wolverine, and Pacific Fisher. These species habitat is at risk of harm from cattle grazing in riparian areas and in riparian travel corridors.

3. THE FOREST SERVICE VIOLATED THE NATIONAL FOREST MANAGEMENT ACT BY CONTINUING TO ALLOW CATTLE GRAZING ON THE DEADWOOD COMPLEX ALLOTMENTS WITHOUT FIRST EVALUATING THE ALLOTMENT’S SUITABILITY FOR GRAZING.

NEPA sets out requirements for all federal agencies. The National Forest Management Act (NFMA), 16 U.S.C. Sec. 1601 et seq., contains specific requirements that the Forest Service must follow in addressing actions on National Forests. One such requirement is that the Forest Service identify "the suitability of lands for resource management." 16 U.S.C. Sec 1604(g) (2) (A). Among other things, this means that the Forest Service must determine "in forest planning the suitability and potential capability of the National Forest system lands for producing forage for grazing animals and for providing habitat for management indicator species." 36 C.F.R. Sec 319.20. Even though a "no-grazing" alternative is included in the EA, the benefits of that alternative to wildlife, watersheds, non-game species are not fully analyzed. Without answering the absolutely crucial question of this land's particular suitability for continued grazing, the agency fails to determine the appropriateness of its actions as stipulated in 36 CFR 219.3.

Although the Forest Service will likely claim that it has adequately considered the "suitability" for this allotment, it has not. It never has performed the suitability analysis that NFMA requires. "Suitability" means "the appropriateness of applying certain resource management practices to a particular area of land, as determined by an analysis of the economic and environmental consequences and the alternative uses foregone." 36 C.F.R. Sec 219.3

Because the EA failed to address "the economic and environmental consequences and the alternative uses foregone" of each different alternative, as the regulations require, this analysis is inadequate. C.F.R. Sec. 219.3. It simply has not examined the cost of continued grazing on the allotment, nor has it examined the costs that might be incurred or the income that might be generated by devoting the allotment to alternative uses. The failure to conduct just this type of analysis not only undermines the scope of this EA, but also violates the NFMA mandate to identify the alternative that comes nearest to maximizing public benefit.

It is quite clear that the intent of the NFMA regulations is to combine environmental and economic analyses that then enable the agency to maximize net public benefit. By not conducting this type of analysis for all uses of the land (elk hunting, recreation and bird watching as examples), the Forest Service failed to consider whether permitting grazing on the Deadwood Complex Allotments makes economic sense, despite the clear requirement of 36 C.F.R. Sec 219.3 that it do so.

Similarly, nothing in the planning record for the Deadwood Complex Allotments contains a discussion of the "environmental consequences and the alternative uses foregone," as the regulations also require. There is no evidence that the Forest Service ever has considered the relative environmental gains that could be achieved by closing portions of the allotment, or the entire allotment to livestock use. Likewise, although this allotment has valuable recreation and fishery values, nothing in the plan shows that the Forest Service considered that the area might be better suited to recreation than to grazing. In addition, the analysis fails to consider what changes in the levels and types of recreation would result from a discontinuation of grazing in portions of the allotment, or the entire allotment.

On this allotment, as is the case on many other allotments in the region, the Forest Service and permittee intends to spend over $107,500 on "range improvements" on this allotment. It would be prudent to assess whether these costs - of which the public will bear at least half- actually serve the public interest. Yet, no such analysis of this type exists.

By failing to perform these required analyses, the Forest Service has attempted to defeat the purposes of the planning regulations that require adequate consideration of wildlife and other uses of the range resource. See 36 C.F.R. Sec 219.20 See also 44 Fed. Reg. 26 627-28 (1979) Final Report of the Committee of Scientists on the NFMA Regulations); Wilkinson and Anderson, Land and Resource Planning in the National Forests, 64 Or. Law Rev. 29,111 (1985) (citing Minutes of the Committee of Scientists, November 1-2, 1978). The Forest Service must not be permitted to conclude the planning process for this allotment without complying with these requirements.

Suitability is usually considered to be determined at the Forest LRMP scale. However, the suitability analysis arising out of the 1990 Rogue River NF LRMP is not in sufficient detail and is not a valid basis for assuming suitability of the Deadwood Complex Allotments for cattle grazing.

The recent site visits by FLOW personnel and volunteers recorded in Appendix One show significant levels of cattle grazing impacts, with soil and riparian areas directly impacted by trampling, bank erosion, undercutting, and cow waste directly into streams.

4. UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT IMPACTS TO SOILS NOT ADEQUATELY IDENTIFIED AND MITIGATED

The CEQ Regulations state:

“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.”

40 C.F.R. § 1500.1(b).

In addition to soil descriptions from the soil conservation service, the agency needs to provide profile descriptions, transects and lines of travel, and type line changes from one soil to the next. This information is available, and, under NEPA, the Forest Service has to provide ground cover conditions, plant cover and type, riparian zone conditions, and drainage conditions. According to the original 2000 Deadwood EA, page 34, the Forest Service admits there are areas with significant hazard ratings and areas with poor suitability for cattle grazing: “The Conde Allotment consists of soil types that have a moderate, high or severe erosion potential and can produce moderate to high amounts of sediment. Twenty-six percent of the Conde Allotment has a high, severe, or very severe rating for erosion potential.”

Soil and meadow conditions are significantly degraded according to page 35 of the original 2000 EA: “Meadow conditions within the allotments have changed substantially as a result of years of livestock grazing. Meadows have been grazed beyond established utilization standards and stream riparian vegetation has been eaten or trampled. Stream channels are often raw and exposed. Physically, this allows higher stream flows to erode banks and leads to deteriorated channels with higher width-to-depth ratios. In some cases, stream channels have active headcuts that are advancing upstream in the meadows. Removal of streamside vegetation allows the streams to absorb more solar radiation causing an increase in water temperature. Soil compaction within the meadows has decreased their ability to absorb water from rainfall and snowmelt and contributes to higher peak flows during storm events and lower summer flows.

Further, page 39 of the original 2000 Deadwood EA states that, “during 1999, heavy grazing occurred and most meadow areas were heavily used. Utilization standards were exceeded in many of the meadows in each of the allotments.”

5. UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT IMPACTS TO RECREATION AND ECONOMICS ARE NOT ADEQUATELY ANALZYED

The EA does not contain a definitive economic section that includes the impacts to recreation. The EA avoids any meaningful discussion of the economic impacts to recreation. This is a blatant failure to comply with the agency’s NEPA duties. The EA fails to consider the economics of recreation. There is no discussion of the economics of fishing, hunting, hiking, photography, wildflower viewing, bird watching, horse back riding or other recreational uses of these areas.

There is no identification or analysis of any types of recreation in the project area or its potential. As such, that is a violation of the requirements of multiple use.

There are legal requirements to consider the economic impacts of grazing to other uses. Some of these include:

“(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations ....”

NEPA Section 102, 42 U.S.C. § 4332.

“For each alternative, estimate the direct, indirect, and cumulative environmental effects . . .

“Express the effects in terms of changes that would occur in the physical (land, water, air), biological (plants and animals), economic (money passing through society), and social (the way people live) components of the human environment.”

1909.15 FSH § 15.

“Compare alternatives on the basis of their effects on the human (physical, biological, social, and economic) environment.”

1909.15 FSH § 16.

“Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.”

40 C.F.R. § 1508.8.

The analysis does mention the recreation/grazing (EA, pages III-26, IV-15) conflict but does not examine the issue in any substantive detail. The Forest Service has an obligation to disclose these effects. Although it may be difficult to analyze this conflict it is significant- especially within the heavier use recreation areas and the Sky Lakes Wilderness.

The Forest Service Handbook states:

“The disciplines and skills of this group must be appropriate to the scope of the action and the issues identified. The team will consist of whatever combination of Forest Service staff and other Federal Government personnel is necessary to provide the necessary analytical skills . . . Also, the team must have the expertise to identify and to evaluate the potential direct, indirect, and cumulative social, economic, physical, and biological effects of the proposed action and its alternatives.”

1909.15 FSH § 12.1 (emphasis added).

Field monitoring done by FLOW and RGSC members and volunteers have documented recreation conflicts in several areas of the Deadwood Complex- most notably within the Sky Lakes Wilderness and near heavily used areas such as Daley Creek Campground (See Appendix One)

6. IMPACTS TO THE ENVIRONMENT ARE SIGNIFICANT FROM THE DEADWOOD COMPLEX ALLOTMENTS AND THE ROGUE RIVER NATIONAL FOREST FAILED TO PREPARE AN EIS AS REQUIRED BY THE NATIONAL ENVIRONMENTAL POLICY ACT

NEPA requires the preparation of an environmental impact statement or EIS ifsubstantial questions are raised whether the proposed action, may have a significant effect upon the human environment (Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir.1988); Foundation for North American Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir 1982)). In deciding whether an agency's decision not to prepare an EIS, pursuant to NEPA, is appropriate, the "responsible agency must have 'reasonably concluded' that the project will have no significant adverse environmental consequences." (San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980).

All available evidence indicates that livestock are generally negative in their impacts on native [plant] community composition and production and on water quality (Allen-Diaz & Jackson, 2000; Belsky, 1987; Bock & Bock, 1995; Brooks, 1995; Cannon & Knopf, 1984; Fleischner, 1994; Huber et al., 1995; Johansen, 1986; Jones & Longland, 1999; Kauffman & Krueger, 1984; Kelt & Valone, 1995; Kelt & Valone, 1996; Kirsch, 1978; Page, 1978; Rambo & Faeth, 1999; Rickard, 1982; Rummell, 1951; Strand & Merritt, 1999; Wagner, 1978

We are also concerned that the EA issued by the Rogue River NF are exceptionally thick and heavy with information. A large EA is a strong indication that a project will have significant impacts such that an EIS must be performed. Agencies should avoid preparing lengthy EAs except in unusual cases, where a proposal is so complex that a concise document cannot meet the goals of 40 C.F.R. § 1508.9 and where it is extremely difficult to determine whether the proposal could have significant environmental effects. In most cases, however, a lengthy EA indicates that an EIS is needed. The Council on Environmental Quality (CEQ), which administers and interprets NEPA, has noted that “in most cases, ... a lengthy EA indicates that an EIS is needed.” 46 Fed. Reg. 18026, 18037 (1981). During your analysis, we suggest that you give strong consideration to the direct, indirect and cumulative impacts from this proposal and consider doing a full EIS.

NEPA requires that agencies “insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions relied upon in the statement . . .” (40 C.F.R. 1502.24)

7. MITIGATION MEASURES ARE NOT ADEQUATELY SET FORTH THEREBY THREATENING VIOLATIONS OF THE CLEAN WATER ACT, NATIONAL ENVIRONMENTAL POLICY ACT AND THE AQUATIC CONSERVATION STRATEGY OF THE NORTHWEST FOREST PLAN

Regulations require that an EA or EIS discuss “[m]eans to mitigate adverse environmental impacts” of the proposed action (40 CFR Sec. 1502.16(h)). The EAs list mitigation measures, but none analyze the mitigation measures in detail or explains how effective the measures would be for the purposes intended. A mere listing of mitigation measures is insufficient to qualify as the “reasoned discussion” required by NEPA (Adler v. Lewis, 675 F.2d at 1096).

Rogue River National Forest has selected Alternative 3, and affirmed in their Decision Notice that they plan to avoid current riparian damage through a system of monitoring of key areas and fencing certain riparian areas. Yet they did not specify how their monitoring program would work to keep cows out of riparian areas and avoid violations of the Aquatic Conservation Strategy and the Clean Water Act.

Mitigation measures and how they will actually be used on the ground with site-specific details are needed in this NEPA analysis. Courts have found that merely listing mitigation measures without site-specific discussion of how they will be really used is not legally sufficient. As stated in Neighbors of Cuddy Mountain v. United States Forest Serv.,137 F.3d 1372, 1338 (9^th Cir. 1998):

“The Forest Service’s perfunctory description of mitigating measures is inconsistent with the ‘hard look’ it is required to render under NEPA. ‘Mitigation must “be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.”’ Carmel‑By‑the‑Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1154 (9th Cir.1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). ‘A mere listing of mitigation measures is insufficient to qualify as the reasoned discussion required by NEPA.’ Northwest Indian Cemetery Protective Ass’n. v. Peterson, 795 F.2d 688, 697 (9th Cir.1986), rev'd on other grounds, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).”

As that Court held in a companion case, Idaho Sporting Congress v. Thomas,137 F.3d 1146, 1151 (9^th Cir. 1998):

“The Forest Service also argues that water quality will not be affected by the proposed logging because of the mitigation measures described in the EA that will be undertaken. However, since the effects of the sale will not be known until the EIS is prepared we cannot know whether the mitigation measures are sufficient. In the context of an EIS, an agency is required to ‘discuss the extent to which adverse effects can be avoided’ by mitigation measures. Robertson, 490 U.S. at 352. ‘A mere listing of mitigation measures is insufficient to qualify as the reasoned discussion required by the NEPA.’ Northwest Indian Cemetery Protective Assoc. v. Peterson, 795 F.2d 688, 697 (9th Cir.1986), rev’d on other grounds, Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Without analytical data to support the proposed mitigation measures, we are not persuaded that they amount to anything more than a ‘mere listing’ of good management practices.”

The mitigation measures must be supported by data and site-specific information that shows they will be effective on preventing significant impacts.

An EA or EIS must "disclose the history of success and failure of similar projects." Sierra Club v. Morton, 510 F.2d 813, 824 (5th Cir. 1975); National Wildlife Federation v. USFS, 592 F. Supp. 931, 943 (D. Or 1984). The EA never referenced any examples where monitoring of key areas and fencing actually did prevent cows from entering riparian areas

Including physically altering the structure of stream channels and banks cattle grazing threatens to introduce more sediment into project area streams. The fifth Aquatic Conservation Strategy Objective is to: “Maintain and restore the sediment regime under which aquatic ecosystems evolved. Elements of the sediment regime include the timing, volume, rate, and character of sediment input, storage, and transport.”

The Clean Water Act requires the Forest Service to ensure that the proposed livestock grazing on this allotment will not cause or contribute to violations of water quality standards in riparian and aquatic habitats in the allotment. See 33 U.S.C. Sec. 1323; Northwest Indian Cemetery Protective Ass'n V. Peterson, 795 F. 2d 688, 697 9th Cir. 1986)

Livestock grazing can degrade water quality by increasing the levels of pollutants including fecal coliform, bacteria, suspended solids, dissolved solids, and biological oxygen demand. Scientific research shows that even light levels of grazing result in significant erosion, soil compaction and increased overland flow (Belsky et al., 1999; Liacos, 1962; Ohmart, 1996).

Friends of Living Oregon Waters (FLOW) and the Rogue Group Sierra Club ask that the Regional Forester reverse the decision to implement this project and remand the project back to the District Ranger with orders that he prepare a full EIS and comply fully with NFMA, NEPA, and the APA.

REQUEST FOR RELIEF

Due to aforementioned violations of applicable laws and regulations FLOW and RGSC

prepared that compares alternatives using a transparent, objective and rational decisionmaking

procedure using the best available scientific evidence and practice, and that fully

completed, in adherence with schedule established by Rogue River NF pursuant to the