United States

Department of

Agriculture

Forest

Service

Payette

National

Forest

800 W Lakeside Ave

McCall ID 83638-3602

208-634-0700

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570-1

#10-04-12-0166 A-215

Date: July 27, 2010

CERTIFIED MAIL – RETURN

Chris and Lois Schwarzhoff RECEIPT REQUESTED

4753 N. Fieldcrest Way 7008 2810 0001 0306 7584

Boise, ID 83704

Dear Mr. and Mrs. Schwarzhoff:

This is my decision on the appeal you filed regarding the Big Creek-Yellow-Pine Travel Plan

Decision Notice signed by Brant Petersen, the District Ranger of the Krassel Ranger District on

the Payette National Forest.

My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR 215.18.

My review focused on the project documentation and the issues raised in your appeal. I

specifically incorporate in this decision the appeal record, the references and citations in the

project record transmittal documentation, as well as the Appeal Reviewing Officer (ARO)

analysis and recommendation.

After considering your issues and the project documentation, the ARO recommends the District

Ranger decision be affirmed. A copy of the recommendation is enclosed.

Based upon the review of the project documentation provided, I find the issues were adequately

considered. I agree with the ARO analysis and conclusions in regard to the appeal issues. I find

the District Ranger made a reasoned decision and has complied with all laws, regulation, and

policy. After careful considerations of the above factors, I affirm the District Ranger’s decision

to implement the Big Creek-Yellow Pine Travel Plan (Snow-free Season) Project. Your

requested relief is denied.

I have affirmed the decision; however, I am directing the District Ranger to reanalyze the routes

in the project area with more collaborative public involvement. My rationale for this direction is

based on the fact that the purpose and need for the project was to conduct further site-specific

analysis to identify ways to possibly designate additional motorized routes in the project area.

Because of the tight timeframe to complete this analysis and decision in time for the 2010 travel

season, the District Ranger was not able to address this issue to the degree that he would have

liked. The District Ranger recognized this in his Decision.

I expect the District Ranger to engage the County, Tribes, Regulatory Agencies and interested

publics and develop a proposal that addresses the public concerns for additional motorized

routes. The District Ranger will complete further analysis and determine what offsetting

mitigations would be needed that would be consistent with the Forest Plan and provide for the

2

possible addition of motorized trails in the project area. I expect this evaluation be conducted to

address Forest Plan consistency, ESA consultation, and potential significant effects.

This decision constitutes the final administrative determination of the United States Department

of Agriculture under 36 CFR 215.18 ©.

Sincerely,

/s/ Suzanne C. Rainville

SUZANNE C. RAINVILLE

Appeal Deciding Officer

Enclosures

cc: Brant Petersen

1

Big Creek-Yellow Pine

Travel Plan (Snow-free Season)

Payette National Forest

#10-04-12-0142, 0145, 0146, 0147, 0151, 0155, 0156, 0157,

0165, 0166, 0168, 0170, 0174, 0175, 0176, 0181,

0182, 0183,0184,0185,0186, 0187, 0188 A-215

ISSUE 1: The Environmental Assessment (EA) and the Decision Notice/Finding of No

Significant Impact (DN/FONSI) analysis of socio-economics is inaccurate. Data obtained was

flawed and misrepresents the actual economic situation in Yellow Pine.

RESPONSE: The Big Creek – Yellow Pine Travel Plan (Snow-Free Season) and Big Creek

Ford Project EA adequately, addresses the socio-economics of the analysis area (EA, p. 8-9).

Non-Forest Service (FS) economic studies have been conducted which detail the economic

situation in Yellow Pine and the current recreation use in the Yellow-Pine area (Community

Profiles for Affected Economic Environment and 2006-2010 Idaho). These documents

adequately assess the economic situation of, and anticipated effects to, the Yellow-Pine

community. In addition no detailed information or analysis results that support the contention of

flawed data or misrepresentation have been provided.

This decision described in the FONSI maintains the current system of motorized designations on

the Forest Motor Vehicle Use Map (MVUM) (DN/FONSI, p. 5). This decision provides for a

variety of uses and as such is not expected to have a measureable effect on local businesses

reliant on recreational users and uses on the Krassel Ranger District.

ISSUE 2: The decision closes roads which potentially fall under R.S. 2477. The forest does not

have the authority to close such roads.

RESPONSE: The forest exercised appropriate restraint in applying the federal statutes and case

law as applicable to R.S. 2477 claims which remain unresolved. The purpose and need statement

addressed concerns about outstanding assertions of R.S. 2477 rights-of-way (EA, p. 1-12). In the

EA Appendix Response to Comments an explanation of the process needed to resolve the R.S.

2477 claims of rights-of-way was identified (EA, p. G-28).

The purpose of the decision is to identify which National Forest System (NFS) roads and trails

and which areas on NFS lands, if any, will be designated for specified motor vehicle use on the

MVUM 36 CFR 212.51(a); 212.56. The regulations define NFS roads and trails as those roads

and trails which the FS determines are within or adjacent to a National Forest and necessary for

protection, administration and utilization of the NFS, and which are not authorized by a legally

documented right-of-way held by a public road authority 36 CFR 212.1. The focus of the

analysis was on the motorized transportation system, rather than on real property title claims.

Through the travel management planning process, the Forest attempted to identify NFS roads

and trails that are important to the local motorized transportation system by coordinating with

state and local government. Where no legal documentation of a public highway right-of-way

was produced, high priority was placed on designating these NFS roads or trails on the MVUM

for continued motor vehicle use where appropriate, given other transportation and resource

concerns.

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As a result of making these designations on the MVUM, motor vehicle uses that are not

consistent with the designations will be prohibited on NFS lands, unless exempted by federal

regulation 36 CFR 261.13. Those exceptions include use of motor vehicles within legally

documented public highway rights-of-way, or where the operator holds a written authorization

recognized under federal law or regulations. The decision of the FS to designate, or not to

designate, a road or trail for motor vehicle use does not affect the ability to validate any claims

under R.S. 2477, or any other claims for public highway rights-of-way on NFS lands. The

decision in no way precludes or forecloses the ability of claimants to assert and carry their

burden of proof in an appropriate forum for any such claims that they may assert. Should that

documentation be produced, the exception under the travel management rule for legally

documented public rights-of-way would apply to the route.

The MVUM will also depict State and County roads and trails on NFS lands. By definition,

roads and trails within legally documented public highway rights of way are not NFS roads and

trails, and are not subject to the designation process and prohibitions on motor vehicle use under

FS rules.

While the appellant and others may claim there are roads or trails that are within rights-of-way

established under R.S. 2477, many of these claimed rights-of-way are not legally documented in

accordance with federal law. Without evidence of legal documentation of a public right-of-way

for these roads and trails that is recognized by federal law, the Forest was required by the travel

management rule to consider whether to designate them as NFS roads or trails. Although the FS

may “make a non-binding administrative determination as to the potential validity of an R.S.

2477 right-of-way claim for land use planning and management purposes,” 73 Fed. Reg. 74,689,

74,694 (Dec. 9, 2008), nothing requires the agency to do so Kane County v. Salazar, 562 F.3d

1077, 1086 (10th Cir. 2009). Therefore, under the rule, and consistent with applicable law, the

Forest was not required to determine whether or not R.S. 2477 claims were valid, but only

whether or not there was legal documentation for these claims.

It is important to distinguish between the situation where a claim that an R.S. 2477 right-of-way

exists on federal land has been made, and where it has been demonstrated that a valid right-of-

way exists in accordance with federal law. As discussed by the U.S. Court of Appeals for the

10th

Circuit in a recent decision, there is a presumption that on federal land, ownership and

management authority lies with the federal government Kane County v. Salazar, 562 F.3d 1077,

1086 (10th Cir. 2009). A county is not entitled to exercise unilateral management authority

based on the mere claim for a right-of-way, but must carry the burden of proof of title in a court

of law, or obtain some other recognition of such rights under federal law. Id. For this decision,

there is therefore a presumption that FS designations for motor vehicle use, and prohibitions of

motor vehicle use govern on NFS lands, unless or until it is demonstrated that a valid public

highway right-of-way exists in accordance with federal law.

FS directives provide, and the courts have held, that federal land managing agencies lack

authority to make legally binding adjudications of the validity of claims for rights-of-way under

R.S. 2477, 73 Fed. Reg. at 74,694 (“Adjudicated R.S. 2477 rights-of-way are not under the

jurisdiction of the FS. The FS does not have the authority to adjudicate R.S. 2477 rights-of-

way”; SUWA v. BLM, 425 F.3d 735 (10th

Cir. 2005), Friends of Hope Valley v. Forest Service,

cv-001900 (E.D. Cal. 2004). Accordingly, unless legal documentation of a public highway right-

3

of-way is produced in accordance with federal law, motor vehicle use on a road or trail that

meets the definition of an NFS road or trail is governed by the travel management rule.

Legal documentation may consist of a valid deed, federal court decree issued under the Quiet

Title Act, 28 U.S.C. 2409a, a Recordable Disclaimer of Interest issued under 43 U.S.C. 1745, or

similar documentation acceptable to the Forest Service that would be recognized under federal

law.

Numerous court decisions have confirmed that the FS has authority under the Property Clause of

the U.S. Constitution and the agency‟s Organic Act (16 U.S.C. 551) to reasonably regulate uses

of roads and trails on NFS lands, irrespective of whether the roads and trails are located within

an R.S. 2477 right-of-way. See, e.g., Adams v. U.S., 3 F. 3d 1254 (9th

Cir. 1993); United States

v. Garfield County, 122 F. Supp. 2d 1201 (D. Utah 2000); United States v. Jenks, 129 F. 3d 1348

(10th

Cir. 1997); United States v. Vogler, 859 F. 2d 638 (9th

Cir. 1988); Clouser v. Espy, 42 F.3d

1522 (9th

Cir. 1994); Elko County v. Glickman, 909 F. Supp. 759 (D. Nev. 1995); United States

v. Nye County, 920 F. Supp. 1108 (D. Nev. 1996); see also 36 CFR 251.50(e)(3) (providing for

regulation of uses within R.S. 2477 rights-of-way that are situated in a wilderness area or that are

non-routine operation or maintenance). Application of the travel management rule to these roads

and trails is reasonable, given the purpose of the rule to protect resources and manage conflicts

among uses, and the inability of the FS to definitively adjudicate title to any R.S. 2477 claims

that may be asserted (see, e.g., 70 Fed. Reg. 68,265, Nov. 9, 2005). Finally, the determination of

the potential validity of R.S. 2477 claims is an exceedingly complex matter that could easily

overtake and paralyze the travel management process by requiring the agency to obtain a

determination of the validity of all potential R.S. 2477 rights-of-way claims that may be asserted

in the area under consideration before taking action to protect NFS land, resources, and visitors

from unregulated motor vehicle use.

ISSUE 3: The roads in question have never been legally closed though the National

Environmental Policy Act (NEPA) and should remain open.

RESPONSE: The April, 2010, Big Creek-Yellow Pine Travel Plan (Snow-Free Season) and

Big Creek Ford Project EA and FONSI determined, in a legal NEPA framework, which roads

would remain open or closed. This EA and DN/FONSI, utilizing the 2009 Big Creek Travel

Analysis Process, adequately considered the majority of routes in the analysis area and described

how the FS followed the NEPA process to determine management direction for these routes.

ISSUE 4: The process the Payette National Forest (PNF) used to assess road designations was

not collaborative. The FS ignored public opinion and input.

RESPONSE: The PNF made diligent efforts to invite collaboration and participation in the

NEPA process and followed FS and NEPA policy and regulation (CEQ Regs. §1506.6, FSH

1909.15, Ch. 10 sec. 11.52). These efforts included legal notices, news releases, scoping letters,

mailings, emails, and public announcements. The public was given multiple opportunities to

participate in this process including the two pre-scoping workshops, an appropriate comment

period, and three public meetings (EA, p. 4-1). The FS received significant participation as a

result of their efforts to collaborate and invite participation (EA, p. 4-1). The FS gave proper

response to the issues raised in public comment (EA, Appendix E Public Comments and Agency

Response, pp. G-1 through G-44).

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ISSUE 5: Treating the proposed designated routes as “new” roads in the action alternatives

biases the analysis in favor of no action.

RESPONSE: The 2008 Travel Management Plan Record of Decision (ROD) for the McCall

and Krassel Ranger Districts addresses this issue in detail (2008 Travel Management Plan ROD,

p. 15). The ROD indicates that, “several comment letters were received that presumed the “new

closures” of some motorized roads and trails, that continue to show up as “open” to motorized

use on the 1995 travel map”. The 1995 travel map was annually updated (until 2006) and

displayed on a map referred to as the PNF Backroads Map. The Backroads Map was used as the

starting point for the development of the existing condition of the motorized road and trail

system at the beginning of the 2008 travel management planning travel process (2008 Travel

Management Plan ROD, p. 15). After the Final Environmental Impact Statement (FEIS) was

published, several comment letters were received that questioned the presumed “new closure” of

some motorized roads and trails, that continued to show up as “open” to motorized use on the

1995 travel map. The deciding official notes that he realizes that the roads and trails which do

not appear on the Backroads Maps, but do appear on the 1995 travel maps are important to the

recreating public but have caused some confusion. His recognition that this problem exists

supports an argument that he did not have a bias based on the concept of these “new” roads.

The Watershed Specialist Report, the Fisheries Specialist Report, and the Big Creek Travel

Analysis (2009) all describe the existing road network in detail. These reports clearly indicate

that the existing road network was known and mapped with few exceptions.

ISSUE 6: The road closures jeopardize the safety of local landowners and forest visitors in

times of emergency such as forest fires. By law the fire and rescue department must have access

to properties.

RESPONSE: Fire and rescue are not limited by this action to access properties (36 CFR 212.51

(a), 7716.2 par. 5; EA, Appendix E p. G-18). Road designation does not limit access to fire and

rescue in emergency situations (36 CFR 212.51 (a), 7716.2 par. 5; EA, Appendix E, p. G-18).

Should decommission occur, alternative means of access have been identified (EA, p. 1-9). The

Fire and Fuels Management Specialist Report addresses this issue (Enna, January 2010).

ISSUE 7: The cost analysis for implementation of the action alternatives is inaccurate and

should have taken into account the environmental benefits from implementing the project design

features (PDFs), rather than just the costs.

RESPONSE: Several of the Specialist‟s reports have analyzed the environmental effects of

implementing the PDFs. The Hydrologist Report states, “The consequences of implanting PDFs

on routes prior to opening them to the public should be a reduction in potential erosion and

sedimentation caused by increased use” (Fitzgerald, 2010, p. 32). The EA analyzes the costs

associated with implementing the action alternatives and summarizes the effects analyses

conducted by functional specialists (EA, Chapter 3). The Fisheries Specialist Report gives a

good definition of PDFs and provides detailed effects analysis (James, January 2010, pp. 6, 28-

32).

5

ISSUE 8: Why is there no reference in the DN/FONSI to 40 CFR 1508.27 (b) (4) regarding

effects being highly controversial? The effects of the selected alternative are highly

controversial.

RESPONSE: The Council of Environmental Quality (CEQ) regulations list and explain the ten

factors that must be considered in determining the “significance” of an action and whether an

EIS must be prepared (40 CFR 1508.27). One factor is the degree to which the effects on the

quality of human environment are likely to be highly controversial. The courts have been clear

that the controversy factor is not meant to test whether there is public opposition to the

proposals. The term controversial refers to cases where a substantial dispute exits as to the size,

nature, or effect of the major federal action rather than to the existence of opposition to a use.

The documentation for this project responds to the information provided by the public and

supports that the effects of the project on the human environment are not highly controversial

(DN/FONSI, pp. 9-10). The projections of effects in the EA followed standard, scientific

procedures, and no science contradicting the methods used for projecting effects was brought

forward by the public.

ISSUE 9: Road / trail closures prevent elderly and disabled people from accessing the forest.

RESPONSE: Reasonable restrictions on motor vehicle use, applied consistently to everyone,

are not discriminatory. Under Section 504 of the Rehabilitation Act of 1973, no person with a

disability can be denied participation in a Federal program available to all other people solely

because of his or her disability. Wheelchairs are welcome on all NFS lands that are open to foot

travel, and they are specifically exempted from the definition of motor vehicle in the Travel

Management final rule, even if they are battery-powered. There is no legal requirement to allow

people with disabilities to use OHVs or other motor vehicles on roads, trails, and areas closed to

motor vehicle use because such an exemption could fundamentally alter the nature of the Forest

Service‟s travel management program (7 CFR 15e.103). Reasonable restrictions on motor

vehicle use, applied consistently to everyone, are not discriminatory.

ISSUE 10: The 3-Mile/Hamilton Bar road has been illegally gated by the FS.

RESPONSE: Although located on the Ranger District, this travel route is not within the project

area for this decision. The routes within the project area are described at great length in the

descriptions alternatives. The 3-Mile/Hamilton Bar road is not mentioned, nor is it located on

any of the maps provided for review (EA, pp. 2-7 through 2-20).

ISSUE 11: The analysis and decision did not meet the purpose and need for the project which

was to designate additional motorized routes in the project area.

RESPONSE: The EA lists four elements of the “purpose” of the action. One of the four

elements is: “Consider additional designations for motorized use” [emphasis added] (EA, p. 1-4).

The EA also lists 4 elements of the “need” for the action. One of these four elements is: “To

fulfill the commitment of the Appeal Deciding Officer (Larson, 2009)” (EA, p. 1-4). This refers

to the appeal decision affirming the 2008 Payette National Forest McCall and Krassel Ranger

Districts Snow Free Travel Management Plan. That 2009 Appeal Deciding Officer letter states

that “…part of my rationale for affirming the decision is the Forest Supervisor‟s commitment to

further evaluate the concerns raised by appellants regarding the decision to not include certain

6

roads and trails in the Big Creek/Yellow Pine area in the designation for motor vehicle use”

[emphasis added]. The Forest Supervisor‟s commitment referred to in the Larson letter is

contained in the 2008 ROD and states: “I…will identify ways to possibly designate some of the

routes in the near future” [emphasis added] (2008 ROD, p. 15). No elements of the purpose and

need require a decision to designate additional motorized use. There are other elements to the

purpose and need which must be balanced (EA, p. 1-4). Consistent with the motorized use

elements of the purpose and need, the EA did analyze Alternatives B and C which would have

increased designations for motorized use. The EA and DN do indicate that additional motorized

designation was considered and evaluated.

ISSUE 12: A full and complete inventory of the existing road network has not been completed

which is a violation of NEPA.

RESPONSE: Two travel plan analyses have been completed for the project area; both of these

documents describe and analyze all known routes designated and undesignated (the Big Creek

Travel Analysis Plan and the Yellow Pine Travel Analysis Plan).

ISSUE 13: The analysis of the No Action alternative is inaccurate. It does not adequately

analyze:

A) The impact of the decision not to designate or maintain miles of roads on the environment

and streams.

RESPONSE: The No Action alternative is to make no change to the current situation. Thus,

the impacts of the decision not to designate or maintain miles of roads are evaluated in the

“Affected Environment and Current Condition” sections of the EA (EA, pp. 3-10 through 3-28;

3-35; and 3-40 through 3-48). A complete inventory of both authorized and unauthorized roads

was completed in order to fully address the current condition (Big Creek Travel Analysis, May

2009, pp. 26-27). Specifically, section 3.2.4.1 of the EA, analyzes the direct and indirect effects

of the no action alternative on fisheries (EA, pp. 3-28 through 3-29). Section 3.4.4.1 analyzes

the direct and indirect effects of the no action alternative on recreation (EA, p. 3-36). Section

3.5.4.1 analyzes the direct and indirect effects of the no action alternative for soil and water (EA,

p. 3-49). Wildlife specialist report analyzes the implications to wildlife for the No Action

alternative (Hescock, 2010, pp. 1, 9). Appellant does not state why these analyses are inaccurate.

B) How much of the existing environmental condition is the result of background or natural

sediment loads.

RESPONSE: NEPA requires a comparison between proposed alternatives and a baseline (the

No Action alternative). The Soil and Water specialist report does provide this, using the two

indicators it chose, Number of Authorized Stream Crossings and Miles of Authorized Motorized

Routes in RCAs (Fitzgerald 2010, pp. 31-42).

With regard to natural sediment, the Soil and Water Specialist Report states that “conditions such

as: rain on snow events, rapid snow melt, and high intensity rain storms have resulted in

landslides” (Fitzgerald, 2010, p.4). It also states that “[t]his area is prone to severe climatic

conditions that can alter the landscape.

7

Conditions such as rain on snow events, rapid snowmelt, and high intensity rainstorms have

resulted in landslides and stream flooding across the forest, on this district and within this

analysis area” (Fitzgerald, 2010, p. 27).

The Soil and Water Specialist Report determined that roads were the greatest source of fine

sediment to streams, citing findings by IDEQ: “The Idaho Division of Environmental Quality

(IDEQ) identified water quality of the EFSFSR as impaired under section 303(d) of the Clean

Water Act, due to violations of water quality standards for sediment and unknown metals...

IDEQ completed a sub-basin assessment for the 4th level South Fork Salmon River Hydrologic

Unit, which includes the project and analysis area.

Its recommendation for the EFSFSR is to delist this segment from the 303(d) list. However, the

report cautions that there continues to be evidence that the current road system contributes large

quantities of sediment during storm events” (Fitzgerald, 2010, p. 7). Further evidence that roads

are the main source of sediment (vs. natural sources) is found in the Soil and Water Specialist

Report (Fitzgerald, 2010, pp. 37-38).

The Big Creek Fuels Reduction Project Technical Summary provides information on the natural

erodibility of soils in the project area: “the Big Creek area is inherently quite different than other

granitic Forest areas (e.g., the SFSR) with respect to natural background embeddedness levels,

that is, it is naturally much lower” (EM.11.0038 R.L. Nelson, January 2009 p. 20).

The Big Creek Travel Analysis provides information on soil erodibility in the project area

(March, 2009):

The Soil-Hydrologic Reconnaissance Survey for the Big Creek Ranger District provided

background information on climate, landtypes and soils, and erosion hazards (Knight et.

al. 1974, p. 39).

Inherent Erosion Hazards (Knight et al., 1974, p. 40).

The roads in the analysis area that are most sensitive to surface erosion are located on landtypes

that have moderately high to high inherent erosion hazard ratings. A total of 5.2 miles of road

are located on landtypes with moderate-high to high surface erosion hazard ratings.

Roads in the analysis area that are located on landtypes that have moderate-high to high mass

erosion hazard are the most at risk for failure. No roads within the analysis area are located on

these landtypes (Travel Analysis Plan, Appendix C).

The Yellow Pine Travel Analysis (June, 2009) provides similar information for the Upper East

Fork South Fork Salmon River Watershed:

The Soil-Hydrologic Reconnaissance Survey for the Big Creek Ranger District provided

background information on climate, landtypes and soils, and erosion hazards (Knight et

al., 1974, p. 37).

Inherent Erosion Hazards: The roads in the analysis area that are most sensitive to

surface erosion are located on landtypes that have moderately high to high inherent

erosion hazard ratings.

About 10.5 miles of roads are located on landtypes with high surface erosion hazard

ratings (Knight et al. 1974 p. 37). The juxtaposition of roads to high probability landslide

prone areas within the analysis area was evaluated utilizing existing landslide prone

8

coverage. Only the Quartz Creek area showed a high probability to be landslide prone.

This area will need to be field verified to determine if the landscape meets the criteria for

landslide prone.

C) It fails to address some Forest Plan standards cannot be achieved in the project area because

of natural conditions.

RESPONSE: Appendix B of the Forest Plan states that it is expected that Watershed Condition

Indicator (WCI) values will be updated/refined, added, or deleted in the future, or that a different

process may replace the current one (LRMP, Appendix B, p. B-2, p. B-11).

The Appendix goes on to state that “WCI values in Table B-1 are considered default values that

should be used, unless better subwatershed or project-specific information is available to update

these values” (LRMP Appendix B, p. B-5). “The quantitative and qualitative default WCI values

provided are not intended to be absolute values that precisely define desired conditions or to

define data standards… [they are] criteria to assist in evaluating progress towards an attainment

of soil, water, riparian, and aquatic goals” (LRMP Appendix B, p. B-6).

Supporting documentation does, indeed, acknowledge that the Forest Plan embeddedness

standard for Functioning Appropriately may not be realistic. It provides alternative measures per

LRMP direction in Appendix B, and therefore the decision complies with Forest Plan direction

(Nelson et al. 2004d, p. 23; EM.11.0038, January 26, 2009).

ISSUE 14: The EA avoided the duty to use “best available science” because the analysis

ignored the heterogeneity of the road system.

RESPONSE: The EA provides site-specific information on roads and crossings that deals with

the heterogeneous nature of sediment inputs from different road segments and different types of

routes. Assessments were based upon on-the-ground inventories conducted in the analysis area

(EA, pp. 3-47 through 3-49; Soil and Water Specialist Report, Fitzgerald 2010).

ISSUE 15: The analysis in the EA violated the Forest Plan by relying on improper WCI metrics

for calculating sedimentation impacts on stream conditions and streambank stability.

RESPONSE: Appendix B of the Forest Plan states that it is expected that WCI values will be

updated/refined, added, or deleted in the future, or that a different process may replace the

current one (LRMP, Appendix B. p B-2; p. B-11). The Appendix goes on to state that “WCI

values in Table B-1 are considered default values that should be used, unless better subwatershed

or project-specific information is available to update these values” (p. B-5, Appendix B).

“The quantitative and qualitative default WCI values provided are not intended to be absolute

values that precisely define desired conditions or to define data standards… [they are] criteria to

assist in evaluating progress towards an attainment of soil, water, riparian, and aquatic goals”

(LRMP Appendix B, p. B-6).

Supporting documentation does, indeed, acknowledge that the Forest Plan embeddedness

standard for Functioning Appropriately may not be realistic. It provides alternative measures per

LRMP direction in Appendix B, and therefore the decision complies with Forest Plan direction.

Appendix B from the Forest Plan describes the proper use of the WCI indicators and supports the

9

use of other values if deemed more appropriate (Nelson et al., July 2005, p. 23; EM.11.0038,

January 26, 2009; Nelson, et al, August 2006).

Regarding streambank condition, “Where quantified, if summarized by habitat type, this

indicator can be evaluated as in the USFWS matrix; that is, what portion of the habitat units has

at least 90% stable banks. However, if summarized only by reach, simply consider the portion of

the total length that is „stable‟” (LRMP, Appendix B, p. B-30). The Forest complied with the

Forest Plan.

ISSUE 16: The range of alternatives is inadequate. Alternatives could have been developed

which would have had minimal environmental impacts and implementation costs.

RESPONSE: NEPA requires that the analysis include a reasonable range of alternatives that

respond to the purpose and need and to the issues. The EA analyzed in detail two action

alternatives and the no action alternative (EA, p. 2-4 to 2-7); it also described four other

alternatives that were considered but eliminated from detailed analysis (EA, p. 2-3 to 2-4).

These alternatives were designed to meet the elements of the purpose and need and to address the

issues.

ISSUE 17: The analysis should have considered the impacts to mining claimants as a major

issue because it burdens the claimant with a Notice of Intent requirement if the route to access a

mining claim is undesignated or not designated to the necessary level for access by the claimant.

This increases the cost for the mining claimant.

RESPONSE: Where roads and trails are maintained solely for the purpose of the benefit of

accessing mining claim, it is the responsibility of that claimant to maintain those roads and trails.

The Big Creek Yellow Pine Travel Plan Project EA explains why maintaining this type of access

will be done on a case-by-case basis, and not handled as a major issue during analysis. The

additional steps required for acquiring authorizations for private land use purposes were also

addressed in the discussion that the forest used to define which issues were considered Major

Issues for further analysis and for what reasons these concerns may have fallen into the category

of “other issues” (EA, pp. 1-6 through 1-10).

ISSUE 18: The EA failed to adequately consider other AIMMCO submissions and comments as

evidenced in the comment response appendix in the EA.

RESPONSE: There is no requirement to formally respond to comments for an EA-level project.

Nevertheless, the FS did provide a 41-page “Public Comments and Agency Response” document

as Appendix E to the EA. The AIMMCO appeal refers to three specific comments in this

context. The appeal summarizes their three comments and also the FS responses. The appeal

indicates AIMMCO‟s dissatisfaction with the FS consideration of their comments rather than a

lack of consideration. (The three comments referred to in the appeal were restated as appeal

issues and are addressed in some detail in the responses here to appeal issues 5, 13 and 14.)

ISSUE 19: The Sugar Creek road must not be closed or decommissioned because it accesses

(Private) property.

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RESPONSE: The EA describes a 5-mile route in the Sugar Creek drainage which will remain

undesignated as a motorized travel route and only Alternative B would actually decommission it

(EA p. 2-19). The Forest explains the means by which authorization may be granted for access

to private lands when roads are not designated as open to motorized travel (EA, pp. 1-8 through

1-10).

ISSUE 20: The analysis is flawed because it fails to realize that the FS would not have to

provide all of the money required to implement and maintain the proposals.

RESPONSE: Only motorized routes under FS jurisdiction and that require FS management

were considered in cost estimates (EA, p. 3-4). The analysis did consider outside funding

possibilities for these proposals (EA, p. 3-5; Appendix E, p. G-14; p. G-21, p. G-23). The FS

will not rely on outside funding sources to maintain basic standards, in the event that they are

unavailable in the future (EA, p. 3-5; EA, Appendix E, p. G-21). Effective basic maintenance

must be preformed to prevent excess resource damage (Big Creek Fuels Reduction Project

Technical Summary, p. 21).