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2-18-11 USDA
USDA X7uited States Forest Pacific Regional Office, RS Department of Service Southwest ].323 Club Drive Agriculture Region Vallejo, CA 94592 (707) 562-8737 Voice {707) 562-9240 Text (TDD) BOARp 4F SUpERVISQRS FEB 16 20~t Bill Connelly OROVILLE, ~ul=ORNIA Chair Butte County Board of Supervisors 25 County Center Drive, Suite 210 Oroville, CA~94-59z ~ S ~l File Code: 1570 Appeal No.: 11-05-00-0015-A215 Date: FEB ~ p 2011 CERTIFIED-RETURN RECEIPT REQUESTED Dear Mr. Connelly: On December 20, 2010, you electronically filed a Notice of Appeal {NOA) pursuant to 36 CFR 21S an the PIumas Public Motorized Travel Management Project. Alice Carlton, Forest Supervisor of the Plumas National Forest signed the Record of Decision (ROD) for the Plumas Motorized Travel Management Project Environmental Impact Statement (FEIS) on August 30, 2010. The legal notice of the decision was published in the Feather River Bulletin on November 10, 2010. I have reviewed the entire appeal record, including your written Notice of Appeal (NOA), the ROD, FEIS, and supporting documentation. I have weighed the recommendation from the Appeal Reviewing Officer (ARO) and incorporated it into this decision. A copy of the Appeal Reviewing Officer's recommendation is enclosed. The Appeal Reviewing Officer responded to your issues in the NEPA Section, Issue 1; the Roads Section, Issues 3 and 4; and the Recreation Section, Issue 3. This letter constitutes my decision on the appeal and on the specific relief requested. FOREST ACTION BEING APPEALED Over the past few decades, the availability and capability of motor vehicles, particularly off highway vehicles (OHVs) and sport utility vehicles (SUVs) has increased tremendously. Nationally, the number of OHV users has climbed seven-fold in the past 30 years, from approximately 5 million in 1972 to 36 mullion in 2000. California is experiencing the highest level of OHV use of any state in the nation. There were 786,914 ATVs and off-road motorcycles registered in 2004, up 330% since 19$0. Annual sales of ATVs and offroad motorcycles in California were the highest in the U.S. for the last five years. Four-wheel-drive vehicle sales in California increased to 3,046,$66 (1500%) from 1989 to 2002. Across the nation, unmanaged motor vehicle use-particularly OHV use-has resulted in unplanned roads and trails, erosion, watershed and habitat degradation, and impacts to cultural resource sites. Compaction and erosion are the primary effects of motor vehicle use on soils. Riparian areas and aquatic-dependent species are particularly vulnerable to damage from motor vehicle use. 5 America's Working Forests -Caring Every Day in Every Way Prirtfed on Recycled Paper ~'~ ; P,~r fib, CoGu.ns-f i Pub Connelly, Butte County, Appeal #11-OS-00-0015-A215 2 The purpose of this action is to implement Subpart B of the 2005 Travel Management Rule while providing for a diversity of motor vehicle recreation opportunities and providing motorized access to dispersed recreation opportunities. Identified needs are to regulate cross-country motor vehicle travel by the public and to make limited changes and additions to the Plumas National Forest Transportation System (NETS}. The Forest Supervisor selected a modified Alternative 5. The decision will: • Prohibit Cross-country Motorized Travel. Motor vehicle travel off designated NETS roads, NETS trails and areas by the public, except as allowed by permit or other authorization would be prohibited. • Add 234 Miles oi< NETS Motorized Trails. This decision would add 234 miles of trails to the NFTS. Of these, 156 miles are suitable for all vehicles, 39 miles are suitable for vehicles up to 50 inches wide, and 39 miles for motorcycles only. The tables at the end of this Record of Decision {ROD) display the trails added to the NFI'S. The trails in Table 1 will be added to the MVUM and open to the public during the first season. The trails in Table 2 will need mitigation before they can be added to the MVUM and be used by the public. • Change Vehicle Class on Slate Creek Road (Rd. 24N28 - 4.1 Miles) to allow both highway and non-highway legal vehicles (mixed use) to use this Maintenance Level 3 {ML3}road. APPEAL REVIEWING OFFICER'S FINDINGS and RECOMMENDATION Documentation demonstrated compliance with applicable laws, regulations, and policies in light of the appeal issues raised by appellants. The ARO, Marty Dumpis, Acting Forest Supervisor of the Angeles National Forest found that the projecC is an appropriate and reasonable response to direction in the Plumas National Forest Land and Resource Management Plan and is in compliance with the travel management regulations. The purpose and need far the project were clear. The Forest Supervisor's decision Iogic and rationale were clear and well documented. The Forest Supervisor was responsive to public concerns. ARO Marty Dumpis recommended affirming the Forest Supervisor's decision and denial of all requested relief. DECISION I agree with the ARO's analysis as presented in the recommendation letter, The issues were similar to the comments made during the comment period. All appeal issues raised have been Connelly, Butte County, Appeal #11-OS-00-0015-A21S considered. I affirm the Forest Super~risor's decision to implement Modified Alternative 5 deny all requested relief. The project maybe implemented on, but not before, the 15th business day fallowing the date of this letter (36 CFR 215.9(b}). My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR 215.1$(c)]. Sincerely, ~io~- RONALD G. KETTER Deputy Regional Forester Appeal Deciding Officer Enclosure ~ ~a United States Forest Pacific Regional Office, R5 Department of Service Southwest 1323 Clnb-Drive Agriculture Region Vallejo; CA 94592 (707} 562-8737 Vgice (707) 562-9x34 Team (TDD) File Code: 1570-1 Date: February 9, 2011 Subject: Plumas National Forest Motorized Travel Management Project Appeal No. 11-05-00-0014-A215, 11-OS-00-0015-A215, 11-05-00-0016-A215, 11-OS-00-0017-A215, 11-05-00-0018-A215, 11-05-00-0019-A215, 11-05-00- 0020-A215, 11-OS-00-0021-A215, 11-05-00-OQ22-A21.5, and 11-OS-00-0023- A215. To: Appeal Deciding Officer I am the designated Appeal Reviewing Officer for the ten (10} appeals filed on the Plumas National Forest Public Motorized Travel Management Project. This is my recommendation on disposition of the appeals filed by Phyllis Taddei, Sierra Access Coalition member; Butte County Board of Supervisors; Plumas County Board of Supervisors; The Wilderness. Society and Public Employees for Environmental Responsibility; Wayne Johannson; California Off-Road Vehicle Association (CORVA) and partners; Sierra Access Coalition representing Phyllis Taddei; Sierra Access Coalition {SAC); Jeanne Burroughs; and Steve Burroughs, appealing the Plumas National.Forest Supervisor, Alice Carlton's Record of Decision {ROD) far the Plumas National Forest Public Motorized Travel Management Environmental Impact Statement (ElS). The decision was signed on August 30, 2010 and the legal notice of the decision was published an November 10, 2010. DECISION BEING APPEALED Over the past few decades, the availability and capability of motor vehicles, particularly off-highway vehicles (OHVs} and apart utility vehicles (SUVs) has increased tremendously. Nationally, the number of OHV users has climbed seven-fold in the past.30 years, from approximately 5 million in 1972 to 36 million in 2000. California is experiencing the highest level of OHV use of any state in the nation. There were 786,914 ATVs and off goad motorcycles registered in 2004, up 33.0% since 1980. Annual sales of ATVs and off-road motorcycles in California were the highest in the U.S. for the last five. years. Four-wheel-drive vehicle sales in California increased to 3,046,866 {1500%) from 1989 to 2002. Across the nation, unmanaged motor vehicle use has resulted in unplanned roads and trails, erosion, watershed and habitat degradation, and impacts to cultural resource sites. Compaction and erosion are the primary effects of motor vehicle use on soils. Riparian areas and aquatic-dependent species are particularly vulnerable to damage from motor vehicle use. The Plumas National Forest (PNF or Forest) is experiencing a similar growth in the use ofoff-highway motorized vehicles and lacks a clearly defined, designated system of roads and trails designed to best meet the recreational needs of the public. The 2005 Travel Management Rule {36 CFR 212) was developed in response to people's increased use of the National Forests by motorized ,vehicles and the effects of that use on ecological, physical, cultural, and social resources. . Us ~ Caring for the Land and Serving People Printed on Recycled Paper ~~ 2 ___- -_ Subpart B of the final Travel Management Rule requires designation of roads and trails for motor vehicle use. The Travel Management Rule does not require the Forest Supervisor to reconsider decisions authorizing motor vehicle use on the existing National Forest Transportation System (NETS}. Part 261-- Prohibitions, Subpart A (36 CFR 261.13} of the final rule prohibits the use of motor vehicles off of designated roads, trails and areas, as well as use of motor vehicles on roads and trails that is not consistent with the designations. The Forest Supervisor selected a modified Alternative 5. The decision will: Prohibit Cross-country'Motorized Travel: Motor vehicle travel off designated NETS roads, NETS trails and areas by the public, except as allowed by permit or other authorization would be prohibited. • Add 234 Miles of NETS Motorized Trails. This decision would add 234 miles of trails to the NETS. Of these, 156 miles are suitable for all vehicles, 39 miles are suitable for vehicles up to 50 inches wide, and 39 miles for motorcycles only. The tables at the end of the Record of Decision {ROD) clispiay the trails added to the NETS. -The trails in Table 1 will be added to the MVUM and open to the public during the first season. The trails in, Table 2 will need mitigation before they can be added to the MVUM and be used by the public. • Change Vehicle Class on Slate Creek Road (Rd. 24N28 - 4.1 Miles) to allow both highway and non-highway legal vehicles {mixed use) to use this Maintenance Leve13 (ML3) road. . PUBLIC INVOLVEMENT/PRO~ECT OVERVIEW Public involvement spanned over four years and involved aver 2D pubIic meetings and woiekshops. Public involvement occurred during four key periods, first during the public collaboration process that began in 2D04, second during the 60-day public scoping period for the Notice of Intent {NOI}, third during meetings with public groups to explore issues they raised during scoping, and fourth following the release of the DEIS. A complete discussion of public involvement activities is in section 1.7 of the FEIS. Tribal consultation occurred concurrently with the other public involvement activities. Lettexs were sent to the tribes throughout the planning process. The project was discussed at multiple meetings with Cancaw Maidu Tribe of Moaretown Rancheria, Estom Yumeka Tribe of Enterprise Rancheria, Greenville Rancheria, Mechoopda Indian Tribe of Chico Rancheria, Susanville Indian Rancheria, Tyme Maidu Tribe of Berry Creek Rancheria, and Washoe Tribe of California and Nevada. Over 3,000 comments were received during scoping, and almost 3,000 additional comments were received following the release of the DEIS. Comments from the public were considered at every step of the process. Starting from the design of the proposed action up until this decision. APPEALS SUMMARY Ten appeal letters were received during the appeal period, which ended on December 27, 2010. The current appeals were filed on or before December 27, 2010 and are timely. An analysis of the topics 3 acid concerns raised in the letters identified. forty (40) issues generally grouped into the following categories: compliance with the National Environmental Policy Act (NEPA), Roads, the Travel Management Rule (TMR), Forest Plan, Wildlife, and Recreation. The Forest Supervisor has had meetings with individual appellants to discuss issues raised in their appeals. No issues were resolved. The first Notice of Appeal (NOA} filed by Phyllis Taddei (11-05-00-0014-A215} was based on her membership with Sierra Access Coalition. Per regulations at 36 CFR 215. i.3(a), individual members of an organization do not meet appeal eligibility solely on the basis of membership in an organization; the member must submit substantive comments as an individual in order to meet appeal eligibility. Consequently, Ms. Taddei's first NOA was set aside without review per regulations at 36 CFR 215.16 (a)(6)-the individual did not submit substantive comments. A second NOA (11-05-00- 0020-A215) was filed by Sierra Access Coalition with Ms. Taddei as their representative. Since Sierra Access Coalition had submitted substantive comments, this NOA was accepted. ISSUES AND. RESPONSES NATIONAL ENVIRONMENTAL POLICY ACT (NEPAL Issue 1.: The ROD and FEIS violates the National Environmental Policy Act for failure to analyze a full range of reasonable alternatives (net reduction and minimum road system; minimum impact and climate change adaptation alternatives). No alternative analyzed the existing situation. (Appea115, Issue 3, pp. 2,`10) (Appeal 17, Issue 1, pp. 3-6} (Appea119, Issue 1, pp. 15-17; 37-42; 58-59; ~b1-62) Response: Page 5 of FEIS states that the project's purpose and need focuses on Subpart B of the 2005 Travel Management Rule,-which is intended to preveni resource damage caused by unmanaged motor vehicle use by the public and provide for a system of NFS roads, NFS trails, and areas on NFS lands-that are designated for motor vehicle use, and the prohibition of motor vehicle use outside designated areas. The-other aspect of the purpose. and need for this project is to provide motor vehicle access to dispersed recreation opportur-ities and a diversity of motorized recreation opportunities (PETS, pp. 5-6). The FEIS included a no action alternative and' four action alternatives that were considered for detailed analysis before the decision was made (PETS, pp. 12-30). There were eleven {11}additional alternatives considered iri response to public comments on the project, the alternatives either did not meet the purpose anal need required for the project and therefore fell outside the scope of the project or were eliminated from detailed analysis for another reason (PETS,, pp. 31-34}. Accordirig to CEQ requirements under the National Environmental Policy Act 40 CFR 1502.14, the agency is required to "rigoro~isly explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the :reasons for theiur having been eliminated..." The no action alternative analyzed the existing condition and provided a baseline for comparing the other alternatives. Under the no action alternative, current management plans would continue to guide management of the project area. No changes would be made to the current NFTS, acid no cross-country travel prohibition would be put in place (PETS; pg. 17). In addition to the analysis of the no action alternative, throughout Chapter 3 of the PETS past activities were considered part of the 4 existing condition and were discussed in the "Affected Environment" and "Environmental Consequences" sections under each resource (PETS, pp. 3$-437). The Forest Service responded to comments regarding alternative development far climate change. The purpose of this project, as described above, was not to regulate or incxease vehicles usage on the Forest. Additionally, the regulation of emissions is not within the jurisdiction of this agency (Response to~Comment, pg. 2$7}. The Forest acknowledged by letter that climate change has the potential to affect resources on the Forest (Response to Comment, pg. 2$7}. Page 109 of the FEIS was revised since the DEIS to include more information on the development of the season of use mitigation for soil and water resource effects. Due to unpredictable changes in climate, the season of use for NFTS roads could change under Forest Supervisor or District Ranger authority (Response to Comrrient, pg. 1$0). Minimum road system alternatives address Subpart A of the Travel Management Rule and are outside the scope of this project. Once addressed, this Subpart will allow for decisions needed for safe and efficient travel and identify roads that are no longer needed to meet resource Fanagement objectives while informing decisions related. to future decisions on travel management. I find the Responsible Official is in compliance with NEPA, and analyzed an adequate xange of alternatives. Issue 2: (a) The Purpose and Need statement was artificially too narrow, .and fails to comply with the requirements of NEPA. To use the TMR to add new routes, but ignore it for determining whether or not system routes should be designated for motor vehicle use, is arbitrary. (Appeal 17, Yssue 2, pp. 6-7} Response: 36 CFR 212 Subpart B does not require the responsible official to reconsider any previous decisions (36 CFR 212.50{b}). The purpose of Subpart B includes the twin aims of designation of roads, trails, and areas for motor vehicle use and prohibition o:E motor vehicle use elsewhere (36 CFR 212.50(a}). Decommissioning of NFTS roads xs not listed as a purpose. 36 CFR 212.55 sets forth criteria far designating roads, trails and areas. NEPA requires an EIS to briefly specify underlying purpose and need to which the agency is responding (40 CFR 1502.13}. The purpose and need is explained in the FEIS (pp. 5-~), including that the criteria at 36 CFR 212.55 be considered for designations. FEIS Section i.$.2, #3 discusses why decommissioning of existing roads and trails is not included in the alternatives that were analysed in detail (FEIS, pg. 11). Y find that the purpose and need as described in the FEIS complies with the requirements of NEPA and is consistent with the applicable sections of 36 CFR 212 Subpart B, and 40 CFR 1502.13. {b) The stated Purpose and Need for the action and the analysis is based on false facts (specifically, assertions that unauthorized routes resulted primarily from OHV use). (Appeal 18, Issue 1, pp.1-2) Response: 40 CFR 1500.1{b) requires that high quality information is available to public officials and citizens before decisions are made. 5 ;The. purpose and need is explained. in Section, l.3 of the. FEIS (pp. 5-7). It is based, in .part on information presented in Section 1.2 (pp. 1-3}, which includes some discussion of the origins of unauthorized motor vehicle routes. However, neither of these sections describe.route origin as a criterion fror either designating or not designating a zoute. The salient point of the discussion of unauthorized routes was that only those that get added to the NFTS road or trail systems can be designated for public motor vehicle use. The origin of an unauthorized route is immaterial to whether it might meet need #2 under Section 1.3 (pg. 6). Therefore, any inaccuracy in the characterization of the origin of unauthorized routes is also immaterial. The dispute. regarding. the origins of unauthorized motor vehicle routes is immaterial to the purpose and need, and to the decision. I find that it does not impair the quality of information upon which the Responsible Official based her analysis and decision. Issue 3: The FEIS did not adequately analyze direct, indirect and cumulative impacts o€ the existing road system, climate change, ,cultural resources, noxious weeds, terrestrial wildlife, soils, and hydrology. (Appea117, Issue 4, pp. 9-22) {Appeal I.9, Issue 7, pp. 42-49; 66-67; 69; 86-87) Response; NEPA regulations at 40 CFR 1500 require analysis to focus on issues that are truly significant, and a de-emphasize issues that are not (40 CFR 1500.1(b), 1500.4(g), 1501.7(a}{3)}. The regulations also requires that EISs be analytic rather than encyclopedic (40 CFR 1500.4(b)}. In addition to addressing the NEPA requirements for direct, indirect and cumulative effects, the Travel Management Rule (TMR) requiures that the agency "shall consider effects on the following, with the objective of minimizing: {T}damage to soil, watershed, vegetation,. and other forest. resources; {2) harassment of wildlife and significant disruption of wildlife habitats; (3) conflicts between motor vehicle use and existing or proposed recreational uses of NFS lands or neighboring Federal lands ...." 36 C.F.R. § 212.55. The mitigations that meet the TMR are described in the FEIS (pg. 15} and the specialists analyses of these mitigations are found in the following sections: cultural resource protection measures to' minimize damage for particular sites along routes (FEIS, Table 176, pp. 429-435); noxious weds vectors and measures that control spread ,(PETS, pg. 4.03); measures for minimizing harassment and disruption of wildlife habitats (PETS, pg. 16, pg. 217; Table 179, pg. 474; and Appendix A, pp. 444- 473). The measures to minimize damage to sail, water are incorporated through project design criteria such as BMPs (PETS; pp. 15-16, Soil and Water Resource Report Appendix B), also through alternative development where many routes are eliminated from consideration due to existing soil and water resource issues (spreadsheets of Initial Survey Data by Ranger District, Soil and Water Resource Report Appendices F-H}. Direct, indirect and cumulative effects of the existing road system follow regional direction for methodology of analyses and are presented for each resource area specified with the exception of climate change. All resource areas provided definitions and measures of effects to be utilized as well as the bounding of the analyses as follows: cultural resources {FEIS, pp.418-425); noxious weeds (PETS, pp.325-330}; terrestrial wildlife (PETS, pp. 254-257); and soils and hydrology (PETS, pp.90- 137). ReT'er also to NEPA Issue 14 for clarification on data quality used in analyses. 6 Cumulative impacts are defined as the impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively sigzuficant actions taking place over a period of time (40 CFR 220.3; FEIS, pg. 39}. Throughout Chapter 3 of the FEIS, the Forest described their bounding of cumulative effects under each resource, but in most cases it included both private and other public lands within the Forest boundary (PETS, pg. 39). Those actions considered far cumulative effects analysis for this FEIS are described in Appendix C which lists present and reasonably foreseeable future actions that may potentially contribute to cumulative effects {PETS, Appendix C, pp. 486-504). Any additional projects beyond those listed in Appendix C of the FEIS such as changes to the NFI'S yet to be determined would be speculative in nature. Five climate-change comments on the DEIS were submitted by four respondents {Comments by Resource: Climate ~ eIectronic version is Comments by Resource. Climate.pd~. The Response to Comments section of the FEIS details the reasons that the effects on climate change are not significant, and not pertinent to this decision. Refer also to NEPA Issue 1 for a further description of haw climate change and minimum road system analyses are considered. I find that the Responsible Official adequately analyzed direct, indirect and cumulative effects for a reasonable range of alternatives. Issue 4: The ROD and FEIS violates the Clean Water Act and fails to take a hard look at water impacts in violation of NEPA. (Appea117, Issue 5, pp. 22- 23) Response: The FEIS (pg.138) describes how well each of the alternatives meets the Clean Water Act. Alternative 1 is described as clearly not meeting laws and regulations, Alternatives 2 and 3 would require mitigation to bring the adopted NFTS into compliance and Alternatives 4 and 5 as designed would meet the requirements of the Clean Water Act. The FEIS (pp. 90-93} describes existing (State listed 303d) impairments and discusses methods to assure compliance with the CWA; which includes site specific route mitigations and the implementation of Best Management Practices (BMPs). The applicable BMPs are described in greater detail in the project record Soil and Water Resources Report, Appendix B, Streamside Management Plan {pp. B2-B7). Also in the project record Soil and Water Resources Report, Appendix A, Riparian Conservation Objectives Analysis describes existing conditions xelated to water quality and how pertinent characteristics that relate to the protection of water quality are addressed through the different alternatives associated with this project. The measures used to assess impacts to water quality are consistent with the BMPEP (Best Management Practices Evaluation Program} acid are described in FEIS (pp 93-109}. This describes the method to take "a hard Took" at water quality impacts and identifies specific locations to address water quality objectives and maintain and improve the quality of surface water on the Forest. Soil and Water Resources Reports for FEIS document existing conditions and improvements necessary to bring trails to standards based on field inventories (Appendices F, G and H). Many routes are dropped from further consideration in alternatives due to water quality concerns {project 7 xecord, Initial Survey Data,. spreadsheets by District). In. addition trails requiring mitigation prior to being added to the MWM are indicated by an asterisk (*) in Appendix A of the FEIS. Site-specific mitigations for 353 trails included in the action alternatives are described in Appendix A. They include activities such as grading trails to outslope them for drainage, adding rolling dips for drairage, installing culverts or putting in rocked fords or dips at trail stream crossings. These measures demonstrate "a hard look" at controlling and minimizing impacts to water quality. I find the ROD and FEIS adequately considers and addresses water quality concerns and meets the requiarements of NEPA and the Clean Water Act. Issue 5: The FEIS is in violation of NEPA because the Forest failed to take the required "hard look" at all environmental effects of the decision and provide clear, relevant information to members of the public. The Forest Service failed to provide a map of all existing routes that were inventoried but are now proposed to be abandoned. (Appeal 16, Issue 2, pg. 2-3) Response: Chapter 3 of the FEIS pages 38-~37 documents the environmental effects of the alternatives considered in detail, including effects of the Selected Alternative-and Alternative 1 {No Action). The electronic version is available on the Forest Website and available on CD upon request. The electronic version provides hotlinks for the 125 headings and sub-headings listed in the- Table of Contents for Chapter 3. This version is also searchable. The effects are distilled into Table 4 {PETS, pg. 37) to provide a succinct overview of comments received: Additional analyses of project-area resources can be found in the project planning record. The DEIS, maps, and specialist reports were pasted on the Forest website to facilitate public access and review in December, 2008. Currently available on the Forest website, in addition to the FEIS, are: ROD, FEIS Cover Letter; Open House Schedule, Briefing Paper, Facts & Figures, Commonly Asked Questions, and Comments Responses by Individual Letter, by Resources; and by Action Group. Inventoried routes were n6t displayed on the FEIS map for Alternative 1. For clarity; although all would be open for travel in the Alternative, none would be designated far addition to the NFTS. The DEIS map'far Alternative 1; however, did display all inventoried routes, including the 11 routes found missing from the FEIS map by the appellant. A separate map of all existing routes that were .inventoried but not proposed for inclusion on the NFTS is beyond the scope of this project (FEIS, pp. S-7). I find that the Responsible Official considered the environmental effects of the decision and that clear and relevant information was made available to the public. Issue 6: The FEIS lacks the site-specific analysis required by NEPA at the project level. {Appeal 19, Issue 2, pp. 1'7-21; 33-35; 50-52) Response: Regional direction was provided from the Regional Forester regarding much of the methodology that was used far data analysis that is described throughout Chapter 3 of this FEIS under each resource section. Effectiveness monitoring to Regional and National standards is required post-implementation of this~project (FEES, pg. 13}. Pursuant to 36 CFR 212.51-212.56 of the Travel Management Rule, designations of NFTS roads and trails, maybe revised as needed to meet changing S conditions. New routes maybe constructed and added to the system following public involvement and site-specific environmental analysis. Such revisions may also include closures or changes in designations. Pages 3 and 4 of the FEIS adequately describe data corrections that occurred during the NEPA process as follows: "In 2002, the Forest populated the INFRA database by examining previous records (maintenance plans, maintenance expenditures, existing road and trail atlases, forest maps, etc.} to capture the entire NFTS and transfer the necessary information into INFRA and verify the Forest Transportation Atlas. Roads or trails that had no record of being mapped or maintained for a specific use were not included in the NETS and INFRA database. Since then, adjustments to the Transportation Atlas and INFRA database have been made to correct errors and account for NFS roads that vvexe either newly constructed or overlooked in the 2002 effort. The current Forest Transportation Atlas identifies the existing NFTS and the management objectives for each transportation facility. Decisions regarding changes to the NETS (new road construction, realignment, decornmissianing, etc.) are subject to the National Envirortmental Policy Act (NEPA) and require public involvement and disclosure. The NETS is always changing depending on resource needs and management concerns." The FEIS public involvement section in Chapter 1, alternative development in Chapter 2, affected environment and environmental consequences in Chapter 3, and FS response to comments clearly shows the Forest's sufficiency in bath data quality and site-specific analysis. Consistent with CEQ Sec. 1502.16, analysis of irretrievable commitments of resources was described in the FEIS on page 437. Several other appeal review responses already address the issue of data quality and sufficiency of analysis. Please refer to the responses under appeal issues for determinations under NEPA Issue 3 that direct, indirect, and cumulative effects analysis for this FEIS was adequate; NEPA Issue 5 that clear and relevant information was made available to the public; NEPA Issue 6 that site-specific analysis was sufficient; NEPA Issue 10 that the FEIS complies with 40 CFR 1502.14 and that the Forest Supervisor did not violate the CEQ regulations in her presentation of the alternatives data; Roads Issue 1 that baseline data in the FEIS complied with direction from the Travel Management Rule 36 CFR, 212 and 40 CFR 1500.1 in establishing the baseline transportation system; Roads Issue 6 that the origin of the data does not impair the quality of data from which the decision is,based; and Roads Issue 4 that the Forest Supervisor provided sufficient public outreach opportunities to a broad segment of the public. I find that the Responsible Official was provided an adequate amount of site-specific analysis in the FEIS to support an informed decision under NEPA. Issue 7: By making the Forest less accessible and increasing the roadless characteristics the Forest Service violates NEPA, 40 CFR .1500.3 & .b, Organic Act, Multiple-Use Sustain-Yield Act, National Forest Management Act, and the National Roads and Trails Act. {Appeal 19, Issue 3, pp, 21-27) Response: The various laws and regulations cited by the appellant allow -and in fact, require -- the Agency to balance a variety of resources, including recreation and extractable resources such as timber and minerals, with the need to protect watershed condition, and the long-term sustainability of such resources without impairment of the land's productivity. While each of the Iaws and regulations can appear to hold one xesaurce as dominant over another, the cited laws and regulations, and many 9 other policies and direction guiding the Forest Service, including roadless area rules, require the balance of resource provision with resource protection. The Multiple-Use Sustained Yield Act stated that no specific use could predominate, and that an appropriate level of resource production should be maintained without impairment of the productivity of the land. The Forest Service must administer the renewable surface resources of the national forests for multiple use and sustained yield of the various products and services obtained from these areas. The Agency must give appropriate consideration to the relative values. of the resources of particular areas. ~ The Act authorizes the Secretary to cooperate with interested state and local governmental agencies and others in developing and managing the national forests. The Organic Administration Act of 3.897, under which most national forests were established; states: "No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and.to furnish a continuous supply of timber for the use and necessities of citizens of the United States..." The Forest Roads and Trails Act (23 USC 205) ensures that consideration is given to providing an adequate system of roads and trails within and near the national forest, and states that this system of roads is essential; however, it does not.provide direction that would require public access to all existing routes or national forest lands ar to a specific threshold of these. The Forest Decision is consistent with direction in this Act. The Appellant cites violations of NEPA, alleging the Forest Service does not have authority to make this Decision. As outlined in 36 CPR, part 21.2, the Forest Service is required to administer the Forest NETS on NFS lands as directed by Executive Order {EO) 1.1644, amended by EO X 1989. These Executive Orders direct Federal agencies to ensure that the .use of off-road vehicles on .public ,lands will be controlled and directed so as to protect the resources pf those lands, to prorrzote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands. It is within the Forest Service's authority to manage the NFTS and associated resources on National Forest System Iands. As discussed on Page 64 of the FEIS, no roads or trails were added to the NFTS in Inventoried Roadless Areas with this project: The Forest disclosed analysis of roadless areas (PETS, pp. 64-65). Effects, methodology and indicators for other resources are. described in detail in each section in Chapter 3 {PETS, pp. 3$-437} and summarized in Chapter 2 (PETS, pp. 3b-37). The Responsible Official's decision designated a system of motorized trails and roads for public motor vehicle use. I find that the Forest Supervisor did not violate any of the laws and regulations cited by the appellant. Issue S: The Agency places itself above Congress by creating wilderness without authority in violation of the Wilderness Act, the California wilderness Act, the Multiple-Use Sustained-yield Act, Tahoe [sic] Plumas LRMP, and NEPA-Purpose and Need. {Appea119, Issue ~4, pp. 27-31; $S} Response: The appellant alleges that the Forest Supervisor violated her authority by establishing wilderness or creating "de facto" wilderness areas. The Forest Supervisor did not propose, analyze, to or make a decision on establishing or proposing wilderness as part of the Travel Management EIS/ROD. The authority to establish wilderness is reserved to Congress (enactment) and the President {signing). None of the cited authorities require the Forest Service to designate any minimum level of public motor vehicle access to NFS lands. The non-existence of designated roads, trails, or areas within certain areas of a national forest does not constrain future designations that may become needed to achieve multiple use purposes of a forest's LRMP. 40 CFR 1502.13 is silent regarding the Wilderness and Multiple Use Sustained Yield Acts. The FEIS does not identify apurpose/need to establish or recommend establishment of wilderness {FEIS, pp. 5-7). Neither the proposed action (Alternative 2), nor Alternative 5 {the selected alternative) includes any establishment or recommendation for congressional establishment of wilderness (FEIS, pp. 7, 30). Nor do either include any amendments to the LRMP that would restrict or preclude any of the multiple uses that are currently allowed {other than motor vehicle travel off of designated roads, trails, and areas). The ROD makes one mention of wilderness, in the determination that no motorized trails would be added to Wilderness Areas (pg. 11). It also notes that the decision does not preclude the consideration of additional trails and trail networks in the future (ROD, pg. 6). I find that the Responsible Official did not violate the Wilderness Act, the California Wilderness Act, the Multiple-Use Sustained-Yield Act, Plumas National Forest LRMP, or NEPA. I also find that she did not establish or recommend that Congress establish Wilderness. I find further that she did not amend the Plumas Forest Plan in a way that established defacto wilderness areas. Issue 9: The ROD, FEIS and the TMR not only violate the Wilderness Act, but they also cause the Forest to be in contempt of two courts by actively managing under the 2001 and 2005 RoadIess Rule. (Appeal 1.9, Issue 5, pp. 31-32) Response. There is currently a conflict among the federal courts regarding the validity of the 2001 and 2005 Roadless Rules. While it is true that a District Courtin Wyoming has found the 2001. Rule invalid, the Northern District Court of California has explicitly thrown out the 2005 rule and reinstated the 2001 rule. California ex rel. Lockyer v. USDA, 459 F. Supp. 2d 874 (N.D. Ca12006). The Ninth Circuit Court of Appeals affirmed the ruling of the Northern District Court. Meanwhile, the Wyoming District Court decision is cuiTently under appeal: On August 18, 200$ Deputy Chief of the Forest Service, Joel Holtrop wrote a letter in response to this situation. The letter stated that there was confusion about the status of the law, and that "additional information would be provided as it was made available." Given the status of the law in 9t~' Circuit, it was reasonable for the Forest to conclude that it must manage Inventoried Roadless Areas in a way that would comply with the 2001 Rule, and as a practical matter, the Forest's decision is not in conflict with either the 2.001 ar the 2005 Roadless Rule. It is nit a violation of either rule to analyze the impacts of the proposed action and alternatives on roadless area characteristics, which is what the FEIS displays. Additionally, there is nothing in the Forest Plan or Forest Service policy that prevents a Forest from designating trails as the Forest has done in this case (FEIS, pg. 7}. As discussed on Page 64 of the FEIS, no roads or trails were added to the NFTS in Wilderness or Inventoried Roadless Areas (IRAs} with this project. The FEIS disclosed analysis for IRAs (FEIS, pp. 44 and 64-65}. Additionally, as described in Chapter 2 of the FEIS, the Forest developed alternatives in Alternative 3 and 4 in response to public issues about adding roads or trails to Citizen 11 Inventoried Roadless Areas. Effects, methodology and indicators for other resources are described in detail in each section in Chapter 3 of the FEIS and summarized in Chapter 2 (FEIS, pp. 36-37). I find that the Responsible Official°s decision is consistent with applicable law. Issue 10: The Forest Service violated CEQ because impacts on motorized recreation that are presented in the Chapter 2 comparative tables are not based on the information from Chapter 3. (Appeal 19, Issue S, pg. 53) Response: The alternatives section of an EIS should present the environmental impacts of the alternatives in comparative form based on information and analysis presented in the sections covering affected environment and environmental consequences (40 CFR 1502.14). The FEIS covers alternatives in Chapter 2, and covers both affected environment and environmental consequences in Chapter 3. Chapter 2 has two summaxy tables: Table 3 summarizes differences in authorized vehicle use among the alternatives; Table 4 summarizes the differences in impacts arising from those differences in authorized vehicle use (pp. 3b, 37). Chapter 3 presents the information and analysis for impacts on motorized recreation in Section 3.2 (pp. 42-74}, and summarizes the effects by ranking the alternatives in Table 17 (pg. 70). The ranking for impacts on motorized recreation in Table 3 match those in Table 17. I find that the FEIS complies with 40 CFR 1502.14 and that the Responsible Official did not violate the CEQ regulations in her presentation of the alternatives data. Issue 1I: The Forest Service did not respond to our comments requesting analysis of the affected activities, such as the benefits of motorized access. {Appeal 19, Issue 9, pp. 54-57; 59- 61; 64-65} {Appeal 21, Issue 7, pp. 21-24) Response: The appellant(s) request that "an accounting of the [social] benefits of motorized access" be analyzed in the FEIS. In Chapter 3.2 in the Recreation Resources section of the FEIS, the Forest showed its methodology for analyzing recreational benefits and compared how effects differ between alternatives. Benefits of motorized access are accounted for in the FEIS, including economic and social effects (PETS, Appendix D, pp. 505-529). Among economic~benefits, Table 192 in the FEIS mentions that snowmobiling and driving for pleasure contributes to about 10% of the fobs and income. (PETS, pg. 523). However, it is also Hated, that based upon existing assumptions and conditions, the economic effects of this project across all of the alternatives will be insignificant fia the economy of the region (FEIS, pg. 527). Within the Social' Effects section of the FEIS there is a comparison of the costs and benefits of different user groups between alternatives (FEIS, pg. 528). The appellant(s) submitted comments on the DEIS that requested an alternative with all existing routes be analyzed. The na action alternative analyzed the existing condition and provided a baseline far comparing the other alternatives. This alternative would maintain current management and provide maximum access and motorized recreation opportunity. Under the no action alternative, no changes would be made to the current NFTS, and no cross-country travel prohibition would be put in place {FEIS, pg. 17; Response to Comment, pg. 446). The Forest Supervisor did Hat choose this alternative because it did not meet the purpose and need or current regulations and policy. The proposed action (Alternative 2) was designed to provide a high level of access and motorized recreation opportunity based on the purpose and need (FEIS, pp. 5-7). The initial proposal consisted 12 of known routes used by the public, including destinations, loops, and spur routes to fishing access and favorite dispersed camping sites. The initial proposal avoided routes on private land with no right of way, routes where motorized use would conflict with existing uses, and routes with measurable resource impacts. Significant issues were handled through development and/or modification of alternatives {PETS, pp. 10-11}. The issue identification process followed regulations and Forest Service guidance {FSH 1909.15, 12.4). Three other action alternatives were developed for detailed study that were identified through a sufficient public involvement process {PETS, pp. S-9, 12- 17). Additionally, three other alternatives were developed in response to comments that considered either increased analysis or analysis of alI existing routes. These alternatives were considered, but eliminated from detailed study because they did not meet regulation, policy, or the Purpose and Need for this project (PETS, pp. 31 and 32). The appellant states that the Forest failed to provide sufficient number of miles of motorized routes for access. As described on page 5 of the ROD, this decision increases the Forest's motorized trail network from 130 miles to 364 miles; a substantial addition to the Forest NFTS, resulting in an NFTS network that totals 4,4$2 miles. This is in addition to 3,491 miles of maintenance level 2 roads open to all vehicles (PETS, Table 7, pg. 46}. The ROD also mentioned on pages 5 and 6 that motorized recreational opportunities, specifically for motorcycle single track trail system, was a key component of the decision. The Forest Supervisor stated that these trails provide exceptional riding experiences for all levels of motorcycle riders, adding diversity to motorized recreational opportunities on the Plumas. On pages 5-10 of the ROD, the Forest Supervisor provides a rationale for the selected alternative, including that it provides motorized access to key recreation opportunities grid to the vast majority of the Forest. The Forest Supervisor also rriakes it clear in this section that there can be some future modifications and improvements to the system over time (ROD, pg. 7}. It is evident that the Forest considered and responded appropriately to the comments from the appellant, but did not necessarily resolve every issue by materially changing the contents of the analysis, particularly in the manner desired by the appellant. I find that the Responsible Official provided an adequate response consistent with 40 CFR 1503.4 as well as an appropriate level of discretion and judgment in determining the resolution of the comzxzents in the analysis and decision. . Issue 12: The F©rest Service violated NEPA by presenting numerous bulky E~S's that are inaccessible & confusing; while succeeding in burying the effects of this action from the public; in contradiction to its purpose. (Appea119, Issue 11, pp. 67-68; 70-74} Response: The CEQ regulations far implementing NEPA specify that the text of the final environmental impact statement (i.e., the purpose of and need for action, the description of the alternatives, the affected environment, and the environmental consequences) shall normally be less than 100 pages or, far projects of unusual scope or complexity, 300 pages {40 CFR 1502.7 and 1502.10). The Forest Service NEPA regulations (36 CFR 220), prepared in conformance with NEPA and CEQ regulations (per 40 CFR 1507.3 and NEPA section 102(2){B)), do not set specific page Iimits for environmental impact statements. While the Forest's EISs do exceed the page Iimit guidelines provided by CEQ, the Responsible Official has the discretion to include the necessary analysis and supporting documentation to inform the decision and the public of the effects of the alternatives. The Forest's EISs provide full discussion of environmental iir~pacts, consideration of public comments, and other materials which substantiate the effects analyses. 13 The DEIS and FEIS number 459 and b01 pages, respectively. An Abstract and Summary (PETS, pp. i-iv), Table of Contents (PETS, pp. y-ix), and a description of document structure (PETS, pg. 1) introduce each EIS and provide a basis far navigation. In order to facilitate review of these documents, the electronic versions (available on the Forest website and on CD) provide hotlinks from the Table :of Contents to the EIS sections and the EISs are searchable. The Index (PETS, pp. 440-442) lists subjects alphabetically with their respective page number(s). The letter announcing the decision.and availability of the FEIS; mailed to interested parties, further facilitated public review. A brief description of the decision and briefing paper were enclosed. Seven informal Open Houses were offered for the public to learn more about the decision. The offer to schedule a personal appointment was also included. . See discussion at NEPA Issue S regarding effects analysis. The EIS is large because of the scale and complexity of the project and intense public interest. The Forest Supervisor provided opportunities for the public to get assistance in navigating the documents and understanding the content. In addition, the hotlink and search options for the electronic versions provide direct access to desired inforanation or topic area. I find that the Responsible Official provided sufficient opportunities to the public for accessing the EIS and that she did not bury the effects of the action from the public. Issue I3: The Forest Service creates a less productive forest in violation of NEPA and the National Forest Roads and Trails Act (how can an inaccessible forest, with few roads and trails possibly be -more productive}. (Appea119, Issue 12, pp. 74-75) ` Response: As stated in the CEQ, this discussion will include the environmental impacts of the alternatives including the proposed action, any adverse environmental effects that cannot be avoided should the proposal be implemented, the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any ii7eversible or irretrievable commitments of resources that would be involved in the proposal should it be implemented (40 CFR 1502.16). The National Forest Roads and Trails Act (NFRTA), as codified in 16 USC 531 allows for adjustments in use of resources to conform to changing needs and conditions. As stated in the FEIS in Chapter 3, all action alternatives have the potential to improve the long-term productivity of the landscape by reducing the number of existing routes on the.landscape. Routes not . designated for public motor vehicle use would have the potential to revert to vegetated conditions, gradually reducing adverse effects on forest resources related to motor vehicle use of these routes. Based on average route widths, this represents an improvement in productivity on up to 1,152 acres in Alternative 3; 990 acres in Alternative 4, 901 acres in Alternative 5, 784 acres in Alternative 2, and 0 acres in Alternative 1. Alternatives 2, 4, and 5 propose to add existing unauthorized .routes to the NFTS--and designate those routes for public motor vehicle use. Although these designations may be revised in the future in response to changing conditions, the designation of routes is considered to be along-term use of the environment, with long-term impacts on productivity (PETS, pg. 436}. 14 I find that the Responsible Official adequately analyzed and balanced concerns of the public to create a Motorized Travel Management plan that considered the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity. Issue 14: The Forest Service disregarded the Data Quality Act by making false claims and misrepresenting facts. (Appeal 19, Issue 13, pp. 75-83; 79) {Appeal 21, Issue 6, pp. 17-21} Response: Under the Data Quality Act and USDA supplementary guidelines for requesting corrections to data, "...Requests for correction of information shall be made during the comment period for that action and, the agency's response will normally be incorporated in.the next document it issues concerning the matter." (USDA Information Quality Activities at: http a/www. ocio .usda. gov/gi~uide/index.html) Under the Data Quality Act and USDA supplementary guidelines, "objectivity" focuses on whether the disseminated.information is presented in an accurate, clear, complete and unbiased manner. To ensure objectivity, "USDA agencies and offices will strive to ensure that the information they disseminate is substantively accurate, reliable, and unbiased and presented in an accurate, clear, complete, and unbiased manner." {USDA Information Quality Activities at: http://www.ocio.usda.gov/gi.~uide/corrections.html) Two Appellants included this issue in their appeal. One Appellant requests a reevaluation of data that led to disqualification of routes, particularly the stream layer, the archeology layer, and private property boundaries. They advise the Forest Service to correct inaccuracies in its corporate data layers, but do not provide information. of specific inaccuracies: The other appellant states that the Forest service perpetuates false statements and dishonestly misrepresents the facts. Sections 1.2 and 1.7 of the FEIS provide background information and a summary of the public involvement, respectively. As documented throughout the Response to Comments, new information or errata that was noted from the public during the DEIS comment period that resulted in modifications and corrections both to the data and analysis presented in the FEIS. See pages 448, 474, 475, 478, 480, 483, 491, 509, 513, and S14 for references to modifications or corrections to data or analysis for the FEIS as a result of public input. Multiple other appeal review responses address the issue of data quality. Please refer to the response under NEPA Issue 3 that direct, indirect, and cumulative effects analysis for this FEIS was adequate; NEPA Issue 5 that clear and relevant information was made available to the public; NEPA Issue 6 that site-specific analysis was sufficient; NEPA Issue 10 that the FEIS complies with 40 CFR 1502.14 and that the Forest Supervisar did not 'violate the CEQ regulations in her presentation of the alternatives data; Roads Issue 1 that baseline data in the FEIS complied with direction from the Travel Management Rule 3b CFR 212 and 40 CFR 1500.1 in establishing the baseline transportation system; Roads Issue 6 that the origin of the data does not impair the quality of data from which the decision is based; and Roads Issue 4 that the Forest Supervisor provided sufficient-public outreach opportunities to a broad segment of the public. 4 I find that responses to applicable comments an the DEIS were incorporated by the Forest Supervisor into the FEIS, either individually or grouped by similar comments, in compliance with Data Quality Act [Guidelines for Quality of Information]. I also find that the Forest Supervisor clarified assumptions, limitations of data, and explained rationale for analyses. 15 I find that the Responsible Official's decision did not disregard the Data Quality Act by making false claims and misrepresenting facts. Issue 15: The Record of Decision and FEIS are arbitrary and Capricious. (Appeal 19, Issue 14, pp. S3-SS} As documented in the ROD on Page 5, the Forest Supervisor considered the purpose and need for action, the issues and range of alternatives and environmental consequences, public comments on the DEIS and the original proposed action {Alternative 2), the Forest Plan and amendments, the FEIS, and the documents incorporated by reference, including resource specialist reports. The decision to implement Alternative 5 meets the purpose and need for action, results in a motorized trail system that provides motorized recreation access and complements the existing road system. Page 9 of the ROD discusses that conclusions were not arbitrary and capricious, but based on a review of the record that shows a thorough review of relevant scientific information using the best.available science and the analysis provided in Chapter 3 of the FEIS. Please see responses to NEPA issues 1 and 2 of this appeal review for a discussion of the purpose and need and range of alternatives considered. On page 7 of the ROD, the Forest Supervisor states that this decision does not prohibit future additions to the NFTS as .needed to provide recreation opportunities and meet agency needs. Rather than speculate on the specific transportation and recreation needs of the future, the Responsible Official emphasizes refinement of the NFTS over time to meet changing conditions or management strategies (ROD, pg. 12). Project level NEPA analysis would be required prior to any changes or additions to the NFTS (Response to Continent by Letter, pg. 45). Reference response to NEPA. Issue 3 for the effects analysis. Reference response to NEPA Issue 20 for the decision rationale. I find that the Responsible Official's selection ~f Alternative 5 as described in the Record of Decision was not arbitrary or capricious. Issue 16: The MTM FEIS fails,to provide reasonable access for disabled, Handicapped and elderly people in violation of the Rehabilitation Act of 1973 and the America~as with Disabilities Act of 1990. (Appeal 21, Issue 3, pp. 5-10) (Appea122/23, Issue 4, pg. 2) Response: FEIS Appendix D includes documentation of concerns raised through public involvement efforts and.interdisciplinary discussion related to potential civil rights impacts. Impacts to people with disabilities and the elderly is included in Appendix D (FEIS, pp.513-514).. Discussion in this section includes the following text: ... Implementation of the Travel Management Rule, Subpart B, including the prohibition of cross country travel, is forest-wide and applies to all forest users equally... Restrictions on motor vehicle use that are applied consistently to everyone are not discriminatory. Gdnerally, granting an exemption from designations for people with disabilities would not be consistent with the resource protection and other management objectives of travel management and would fundamentally alter the nature of the Forest Service's travel management program (29 U.S.C. 794; 7 CFR 15e.103). Under section 504 of the Rehabilitation Act of 1973, no person with a disability can be denied participation in a Federal program that is available to all other people solely because of his or her 16 disability. Consistent with 36 CFR 212.1, FSM 23S3.OS, and Title V, Section S07{c), of the Americans With Disabilities Act, wheelchairs and mobility devices, including those that are battery-powered, that are designed solely for use by amobility-impaired person for locomotion and that are suitable for use in an indoor pedestrian area are allowed on all NFS lands that are open to foot travel. (FEIS, pg. 7). The xesponse to Letter 1, Comment 11 (Response to Comment, pg. 6), the Travel Management Rule (Federal Register, Volume 74, No. 216, pg. 6$2$5), and direction from the Washington Office of the Forest Service in letters dated Feb. 21, 2002 and Dec. 10, 2008 are all consistent with the discussion above from the FEIS. I find that the Responsible Official is in compliance with the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Issue 17: The FEIS fails to adequately consider issues relating to fire suppression. (Appea121 Issue 9, pp. 29-3p} Response: The purpose and need of this project was to manage public use of unplanned, unauthorized, non-sustainable roads, trails and areas that adversely impacts the environment (FEIS, pg. 5}. The NEPA analysis, as documented throughout Chapter 3 of the FEIS, is adequate for the scope of this project. The transportation facilities section of Chapter 3 of the FEIS states that the NFTS consists of roads, trails, and airfields. The NFTS provides for the protection of resources on National Forests. Appendix G (Road Development) of the FEIS, under the safety and user related maintenance category, discusses maintaining access far fire suppression initial attack equipment. It also states that the Forest road management program is focused on safety and resource protection. Access for administrative use will be analyzed under Subpart A of the TMR. 36 CFR 212.51 states that fire, emergency, or lavci enforcement vehicles are exempt from these designations. I find that the Responsible Official's decision. adequately considered issues related to file suppression. Issue 18: The FEIS violates NEPA: analysis of routes inadequate, substantial changes to proposed action, BE based on assumptions not science, RS 2477 roads, present and reasonably foreseeable actions, economics, range of alternatives, Environmental Justice, Soil and water monitoring, and wildlife. {Appeal 21, Issue 14, pp. 3038) Response: The Purpose and Need of the project, as described on pages 5=7 of the FEIS meets the intent of Subpart B of the TMR (36 CFR 212.56}. A response to this concern can be found under Travel Management. Rule Issue 1. Changes to the proposed action between the DEIS and FEIS were within the scope of the project, met the Purpose and Need, and followed NEPA process according to CEQ Section 1501.7. Rationale for modifications to Alternative 5, the Selected Alternative, was described on Pages 2-4 of the ROD. The appellant asserted that the analysis of routes was inadequate. Project analysis was found to be consistent with TMR that requires agencies to "consider effects on the following, with the objective 17 minimizing: (].)Damage to soil watershed, vegetation, and other forest resources; (2}.Harassment of wildlife and significant disruption of wildlife habitats; (3) Conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands or neighboring Federal lands..." (36 C.F.R. § 212.55). The FEIS documents extensive analysis of Forest routes that were considered for addition to the NFTS (PETS, pg. 32$) and field evaluations of route conditions {FEIS, Appendix A, also in project record Initial Survey Data and Soil and Water Resource Protection Plan Appendices F-H). Further analyses of the routes selected for further consideration included assessment of the proximity to known populations of rare plants and botanical resources (PETS, pp. 354-394), noxious weeds (PETS, pp. 399-414) and locations and condition of cultural sites (PETS pp. 429-435), public safety concerns relative to route proximity and naturally occurring asbestos (NOS} (FEIS, pp. 77-79), occupied and potential habitats of numerous species (FEIS, pp. 140-324}, etc. for all routes under consideration for adoption into the transportation system by alternatives. The appellant{s) raised the issue that there were changes to the' action alternatives between the DEIS and FEIS, yet there was no FEIS comment period. Changes between DEIS and FEIS included removal of trails within red-legged frog critical aquatic refuge area, including French Creek and Granite Basin and the Sly Creep open area for compliance with the programmatic agreement between the Forest Service, Region 5 Pacific Southwest and the U.S. Fish and Wildlife Service for threatened and endangered species (ROD, pp. 2-3, S and FEIS Chapter 2 and Appendix A). Other changes between the DEIS and FEIS included adjustments to seasonal closures dates'for about 120 trails. These seasonal closure dates were modified to mitigate far wildlife species including deer, NSO, goshawl~, eagle, and red-legged frog and rationale for these changes were disclosed within the FEIS {FEIS, pg. 16). All of the changes between the DEIS and FEIS were displayed within Chapter 2 and Appendix A of the FEIS. Analysis of environmental consequences was also modified throughout Chapter 3 FEIS to address these changes. One change was made between the FEIS and ROD that dropped one 600' route segment. Rationale for changes between the DEIS, FEIS, and ROD was discussed in the ROD on pages 2-4 for alternative 5 (Selected Alternative}: The changes to alternatives proposals between the DEIS and FEIS were discussed within Chapter 2 of the FEIS. Changes between the DEIS, FEIS, and ROD were all found to be within the scope of the purpose and need (pp. 5-7) and within the range of alternatives, as described and. analyzed within Chapter 2 of the DEIS. According to 40 CFR 1506.10, agencies, like the Forest Service, that provide an appeal review process, and with this, an opportunity to make their views known, are not held to the requirement of an FEIS comment period. Soil and water monitoring is described in FEIS (pg.14). Proposed monitoring for water and soil quality relzed upon site-specific observations of existing conditions and followed Regional protocol from the.Best Management Practice Evaluation Program (BMPEP}. Furthermore, additional aquatic species and habitat monitoring would include instream monitoring using regional Stream Condition Inventory. The appellant expressed concerns regarding amphibian monitoring to confirm presence of formerly unsurveyed potential habitat. The Forest wi11 monitor amphibians according to the the Fish. and Wildlife Seryzce's August 2045, Revised Guidance on Site Assessments and Field Surveys far the 18 California Red-Iegged Frog and additional monitoring on the same trails adopting a second protocol Fellers and Freel (1995} survey protocol for the foothill and mountain yellow-legged frogs (FEIS pp.14-15). The proposed routes that would have additional amphibian monitoring are identified in FEIS Appendix A (pp. 131). The wildlife mitigations to protect nesting habitats {FEIS, pg. 16 and ROD, pg. 10} describe season of use restrictions pertinent for specific species. See Wildlife Issue 1 and 2 for father response to the adequacy of wildlife-related effects analysis and ESA compliance. The appellant's assertion that the concerns regarding the botanical biological evaluation assumptions are invalid, appear to be based on an opinion of something that would be better, but isn't available. Exhibit 5 provided by the appellants is the tracking of response to comments with the Botany unit. From review of the FEIS and project record, it is evident that the Forest considered and responded appropriately to this assertion from the appellant. However, the Forest did not necessarily resolve every comment brought forward by materially changing .the contents of the analysis, particularly in the manner desired by the appellant. The appellant also asserted that Revised Statue 2477 (R.S. 2447) routes axe outside of Forest jurisdiction and no changes to them are considered within the scope of this document. Section 8 of the Mining Act of 1865, later revised as RS2447, granted rights-of-way for the construction of highways across public land not reserved for public uses. Because R.S. 2477 does not require recordation of rights-of--way, it is often difficult for federal land managers, state, local and tribal governments and public land users to know which rights-of-way claims are valid, where they are located, and how they maybe used. The United States Court of Appeals for the Tenth Ciarcuit has ruled that the valid determination of the existence of an R.S. 2477 right-of-way is a judicial function and nat an administrative function, SUWA v. BLM, 425 F.3d 735 (2005). The court explained that under federal law, land management agencies cannot "recogni[ze], manage, or valid[ate] ....rights= of way pursuant to [R.S. 2477] ...unless expressly authorized by an Act of Congress ...." See Pub. L. No. 104-208, 110 Stat. 3009 {1995). Given the absence of any judicial determination that undocumented public R.S. 2477 rights exist in the project area, I find that it was appropriate for the Forest Supervisor to not consider these routes in the FEIS. The appellant asserted that the South Park Project should have been considered as a future foreseeable action and considered for cuzr~ulative effects analysis as part of the FEIS. Present and foreseeable future actions considered for cumulative effects analysis far this project are listed in Appendix C of the FEIS; the South Park Project is not listed. As mentioned by the appellant in this appeal, this project was not listed on the Forest's Schedule of Proposed Actions {SOPA). Although there maybe future opportunities for this project, nowhere within the project record or the Forest's SOPA does it indicate that the Forest has any intention to move forward with this proposal in the reasonably foreseeable future or that sufficient detail of this project was available at the time of analysis for consideration in cumulative .impacts analysis for this FEIS. Due to the speculative nature of this project at the time of FEIS analysis, the Forest did not consider this project to be a future foreseeable action for the puzposes of analysis in the FEIS and was not considered in the decision. Because the appellant brought up multiple other appeal points within this issue that were already addressed in other responses, these responses were addressed through reference to other appeal review responses. Please zefer to the responses under NEPA Issue 1 that the Forest considered a reasonable range of alternatives; NEPA Issue 2 that the purpose and need as described in the FEIS 19 complies with the requirements of NEPA and. is consistent with the applicable sections of 36 CFR 212 Subpart B, and 40 CFR 1502.13; NEPA Issue 3 that direct, indirect, and cumulative effects analysis. for this FEIS was adequate; NEPA Issue 6 that site-specific analysis was sufficient; NEPA Issue 10 that the FEIS complies with 40 CFR 1502.14 and that the Responsible Official did not violate the. CEQ regulations in her presentation of the alternatives data; Roads Issue 1 that baselzne data in the FEIS complied with direction from the Travel Management Rule 36 CFR 212 and 40 CFR 1..500.1 in establishing the baseline transportation system; NEPA Issue 19 that the Responsible Official died consider the economic impacts of her decision on residents' and businesses' livelihood when making. her decision; Roads Issue 5 that the Responsible Official did not violate any laws, policies or regulations by choosing not to designate some roads that connect to private property; Roads Issue 6 that the origin of the data does not impair the quality of data from which the decision is based; and Roads Issue 4 that the Responsible Official provided sufficient public outreach. opportunities. to a broad segment of fine public; Wildlife Issues 1 and 2 that the Responsible Official's decision complies with-the endangered. Species Act and that the appropriate level of consultation occurred with the FWS. I find that the Responsible Official provided. an adequate response as well as an appropriate level of discretion and judgment in determining the resolution of the comments in the analysis and decision, Issue 19: The decision will have a huge economic impact our residents and businesses livelihood. {Appeal 22123, Issue 3, pg. 2) Response: An economic, and social analysis was conducted for this project and is found in Appendix D of the FEIS {pp. 505-530). The F'EIS analysis discusses that recreation use generates very little to the overall economy of the local region. The FEIS acknowledged that the prohibition of cross- cauntry travel may discourage OHV use on the Forest, which may result in some loss of OHV expenditures across .the ,region. However, the FEIS also stated that even if 100% of OHV use ceased on the Forest, this would result in the loss of about 0.1 job, $4,000. total labor income loss, or $6,000 total annual total: revenue to the region and would not be significant. Best available science indicates that even though cross-country travel is prohibited in all of the action alternatives, the same levels of use would simply become more. concentrated on the system road. s and motorized trails and would not result in a significant economic impact (PETS, pg. 527). Within the Social Effects section of the FEIS there is a comparison of the costs and benefits of different user groups between alternatives (FEIS, pg. 528). Executive Order (EO) 12898 requires that federal agencies consider the impacts from federal actions on the potential for disproportionate effects on minority. and low-income populations in the local region. In compliance with this EO, the FEIS analysis did consider the impacts of this project and concluded that these effects were not likely to be significantly disproportional to minority or low- incorrie populations {PETS, pp. 529-530). I find that the Responsible Official did consider the economic impacts of her decision on residents and businesses livelihood when making her decision. Issue 20: The decision does not provide for a proper baiance between public access and resource protection.. (Appea122/23, Issue 5, pg. 3) 20 Response: According to 40 CFR 1502:14 of the CEQ requirements under the National Environmental Policy Act, the agency is required to "rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated..." As a result of substantial public scoping and input (PETS, pp. $--T 1), the FEIS included a no action alternative and four action alternatives that were considered for detailed analysis before the decision was made {PETS, pp. 12-30). There were 11 additional alternatives considered in response to public comments on the project, the alternatives either did not meet the purpose and need required for the project-arid therefore fell outside the scope of the project ar were eliminated from detailed analysis for reasons listed in the FEIS (PETS, pp. 31- 34}. In accardance with the CEQ requirements under the National Environmental Policy Act; each agency shall prepare a concise public record of decision that includes information about what the decision was, the alternatives considered and how those considerations entered into the decision, and whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted (40 CFR 1506.10). Of these fore-mentioned requirements, the appellant questioned the rationale of this decision: As documented in the ROD an Page 5, the Forest Supervisor considered the purpose and need for action, the issues, a range of alternatives, environmental consequences, public comments on the DEIS, the original proposed action, the Forest Plan and amendments, the FEIS, and the documents incorporated by reference. The decision to implement Alternative 5 meets the purpose and need for action as described in Section 1.3 of the FEIS. The ROD also details the alternatives considered, but not selected and rationale for this decision (ROD, pp. 13-15}. The Forest Supervisor acknowledged that it was a challenge to balance the desires of motorized recreation enthusiasts and maintain natural resource values. The Forest Supervisor noted that this decision adds the best of the most popular, well-located routes, so that the Forest continues to provide a diversity of motorized recreation experiences, while maintaining other resource values (ROD, pg. 5). There is no requirement in NEPA for the Responsible Official to select a "properly balanced alternative" as the description of what-this alternative rriay Iaok like would varq from person to person. However, based upon-the rationale for the decision described throughout the ROD and. FEIS, it is clear that the Forest Supervisor deliberated on many factors and considerations before deciding upon the selected alternative. For additional discussion on this issue, see the response to NEPA Issue l5. I find that the Responsible Official provided adequate rationale for the selection of Alternative 5, as described in the ROD, in compliance with NEPA. ROADS Issue X: The Forest Service's identified "baseline" transportation system is inaccurate, a violation of NEPA. (Appeal i7, Issue 3, pp. 7-9) Response: 40 CFR 1500.1(b) requires the use of high quality information in an environmental analysis. FSM 7711.2 describes.the required, contents of the Forest Transportation Atlas. Agency direction allows temporary storage of decommissioned, unauthorized, and user-created routes in 21 agency databases, far travel planning purposes. Storage of such information does not make these routes part of the forest transportation system. The baseline transportation system in the FEIS is not restricted to only those NFS roads, trails, and areas open for long-term public motor vehicle use. Chapter 1 of the FEIS (pp. 2-4) documents the chronology of developing and correcting the Forest Transportation System, and population of the INFRA database. In identifying the baseline transportation system, the responsible official may incorporate previous administrative decisions regarding travel management in designating roads, trails, and areas on National Forest System lands for motor vehicle use (36 CFR 212.50}. Appendix G of the FEIS summarizes the mileage fox each Maintenance Level {ML) 1-5, Designations of NFS roads and trails, and areas an Forest lands, including ML-1 roads, maybe revised as needed to meet changing conditions, in accordance with other subsections of 36 CFR 212 (36 CFR 2.12.54). L7nauthorized routes, added to the Forest Transportation System as motorized trails meet the Purpose and Need (PETS, pp 5-7). They were site-specifically analyzed in Chapter 3 under "Direct/Indixect Effects of adding facilities to the NFTS" for each affected resource, and as explained in general in the Analysis Process {PETS, pg. 38). See the response to NEPA Issue 6 regarding site-specific analysis. I find the Responsible Official followed the direction from the Travel Management Rule 36 CFR 212, and complied with 40 CFR 1500.1_ in establishing the baseline transportation system. Issue 2: The. Forest has failed to properly consider maintenance and administration of roads, motorized trails and motor vehicle areas. {Appeal 17, Issue 9, pp. 30-31} Response: 36 CFR 212.55 .requires consideration of the need for maintenance. and administration of the designated NFTS. The Forest discussed the historical maintenance on the Plumas and current maintenance. issues in the FEIS, pages 72-$1. On pages 75, 76 and 7$ of the FEIS the Forest breaks .down the casts of maintaining the fofest system roads and motorized trams and discusses where the funds and labor will come from. The Forest further discusses economic issues related to travel management on page 514.-527. of the FEIS. I find that the Responsible .Official ,adequately considered the need. for maintenance and administration of the designated NETS. Issue 3: -The FEIS relied on an unsupported, inaccurate assessment of the California, code in declining to evaluate, as reasonable alternative, the authorization of motorized mixed use on all maintenance Leve13 roads. {Appeal 15, Issue 2, pp. 2, 7-14) (Appeal 21, Issue 4, pp. 10-15) Response: The Forest addressed the proposal of authorizing all Maintenance Leve13 roads for mixed use on page 32 of the FEIS: "Consideration of extensive changes to the existing NFTS, such as the mixed use designation proposed in this Alternative, is not part of the purpose and need for action." The Forest chose not to incorporate extensive mixed use designation as a component of this project's purpose and need. Additionally, it is entirely within the Forest's scope to designate road usage on Forest Service land to address safety concerns: "The agency has discretion in determining appropriate regulations for OHV 22 use in consideration of public safety." {Response to Comment Letter 1, Comment 111}. Nonetheless, the Forest Service modeled its road policy to resemble the California Vehicle Code since this was "determined to provide the most consistency with State raw and the most prudent means to avoid high risk and high severity OHV accidents" (Response to Comment Letter 209, Comment 1). Correspondence between the California Highway Patrol and the Forest Service is documented in several letters within the Forest's project record, along with a letter from-the Regional Forester approving the mixed use analysis on the Plumas. It is apparent that the Forest reviewed these letters and applied the policies and interpretations to their unique set of roads and concerns. I find that the Responsible Official adequately addressed the proposal to authorize motorized mixed use on Maintenance Level 3 roads. Issue 4: The FEIS, in violation of NEPA and NFMA failed to analyze the affordability of all alternative plans; failed to analyze the en"vironmental effects of deferred maintenance. {Appeal 15, Issue 4, pg. 2) Response: Chapter 3.3 of the FEIS describes affordability of the alternatives to include estimated annual maintenance costs as well as implementation costs for motorized trails, which includes mitigation costs. 36 CFR 212.55 requires the responsible official to consider the availability of resources for the maintenance and administration of the designated system roads, trails, and areas. In addition to the economics of affordability of the designated National Forest Transportation System (NETS) by the Forest Service; the economic impacts of the alternatives were analyzed and displayed in Appendix D of the FEIS. "Based on the current numbers and these assumptions, the economic effects of this project across all bf the alternatives will be insignificant to the economy of the region ~IS~ Pg. 527)." The Purpose aril Need describes the management of motorized use through designation of roads, trails, and areas far public motorized use (FEIS; pp 5-7). In Chapter 2 of the FEIS, three (3) of the action alternatives {2, 4, and 5) propose additions of unauthorized routes as motorized trails to the NETS. Unless added to the NETS, those unauthorized routes are not recognized as facilities needing maintenance, are ineligible for expenditure of maintenance funding, and as such, could not incur deferred maintenance. As a result, there are no deferred maintenance environmental impacts associated with additions to the NETS. In Chapter 3 of the analysis of alternatives that do propose additions to the NETS identified and included mitigation measures that address effects determinations by resource and mitigation measures, if any, on a route specific basis. I find that the Responsible Official is not in violation of NEPA or NFMA because the FEIS has addressed economic and environmental impacts. Issue 5: On page seven, the Record of Decision notes that routes were not designated if they crossed private land'and the Forest Service did not have formal agreements for rights-of--way. This approach disregards the fact that there may be-public rights of access across private property. The Forest Service does not need to formally designate routes on private land as being part of the road system, but the forest roads up to the edge of private property should still be designated as part of the system. (Appeal 16, Issue 3, pg. 3) Response: When designating roads the Farest has many considerations to take into account: The Forest must consider cultural resources, safety, maintenance and administration of the roads, costs, 23 minimizing damage to forest resources, minimizing harassment of wildlife, minimizing conflicts between vehicles and other recreation, compatibility of motor vehicle use with existing populated areas, legal compliance, among others (ROD, pp. 6-10). Ensuring access to private lands via Forest Service roads is a subordinate concern that can only be considered after all other issues, and it is not a requirement by any of the regulations or policies the Forest must follow. If there is value to maintaining Forest Service roads that lead to private lands, these sections can be added at a later time through the NEPA process. The Forest has announced a commitment to continually refine the Forest's transportation system to meet recreation and agency needs (ROD, pg. 7). I find that the Responsible Official did not violate any laws, policies or regulations by choosing not to designate same roads that connect to private property. Issue 6: The Forest Service has knowingly labeled routes as OHV created when the Forest Service knows this not to be true.....most are old Forest Service roads. (Appeal 18, Issue 2, pp. 3-4) Response: Issue 6 references data collection taken from road segments that is displayed on the spreadsheet within Appendix C: Field Data Collection Forms (FDCF} of the Sail, and Water report for the FEIS used in the soils analysis. Segments identified as "OHV" do not denote origin of creation as suggested. The data does require identification of "road type" not "user-created type road" (as inferred} and is limited to the selection of one of the following "Road Types"; Road; OHV Trail; Fireline; Skid Trail; and Other. Furthermore, the Purpose and Need Section 1.3 of the FEIS on page b lists design criteria that correspond with 36 CFR 212.55, none of which axe based on haw routes were originally created or constructed. Section 1.2 {pp. 1 -3) includes some discussion of the origins of unauthorized motor vehicle routes. However, neither of these sections describe route origin as a criteria for either designating or not designating a route. The dispute regarding the origin of an unauthorized route does not violate 36 CFR 212 and does not impair the quality of information upon which the Responsible Official based her analysis and decision. Issue 7: The Forest Service failed to shave that unautharized user (OHV) created route segments are impacting soil and water resources. (Appeal ~S, Issue 3, pp. 5-11) Response: This issue alleges improper screening-out of a portion of the candidate routes from consideration for addition to the NFTS at this juncture, due to overestimation of soil and water impacts. Criteria for designation of roads, trails and areas are set forth at 36 CFR 212.55. The purpose and need for action has two components: 1) a need to prohibit cross-country motor vehicle travel, pursuant to 36 CFR 212 Subpart B; and 2) a need to mare limited additions to the NETS on the PNF, subject to consideration of the criteria at 36 CFR 212.55 (PETS, pp. 5-7). In section 2.x.1 of the FEIS, the reasons for not considering the addition of all inventoried non-system routes are explained (pg. 31}. The reasons for the elimination of this alternative from detailed study center on inconsistency of many of the routes with one or more of the criteria at 3b CFR 212.55. Other reasons are also. given, but the existence of sail or water quality problems was not singled out as a either a primary or major factor. 24 Even though many existing unauthorized routes were not included in this decision, the responsible official notes in the ROD (pg. 7) that this decision does not preclude the addition trails and trail networks to the NFTS as needed in the future. I find that the Responsible Official properly considered the criteria at 36 CFR 212.55 in formulating alternatives and selecting one for implementation. Issue 8: The Forest Service changed its management practices on Leve13 roads without proper rulemaking in violation of the FSH. (Appeal 19, Issue 6, pp. 35-37) Response: Forest Service Handbooks (FSHs) contain detailed procedures, standards, practices and techniques to be used primarily by technicians and specialists in the field. They compliment the Forest Service Manual, but are not intended to impose mandatory requirements. Nonetheless, past FSHs confirm that reserving ML 3 roads solely for highway legal vehicles is an existing policy (FSH 7709.58 and 59, Effective July 28, 1995). This existing policy is also noted on past Plumas National Forest visitor maps. Additionally, the Travel Management Rule (36 CFR 212, 251, 261, and 295) supersedes past practices and enforcement of OHV use on the National Forests (Response to Comments, Letter 19 Comanent 1). In an attempt to fulfill these regulations and return Forest Service roads to proper standards, the forests in Region 5 reinforced their policy that reflects California Vehicle Code's (CVC) definition for "highways" on Maintenance Leve13 roads (T_etter from Regional Forester, January 13, 2009). This policy places certain restrictions on OHV use on Maintenance Leve13 roads. The Regional Forester recently addressed and clarified this policy {Response to Comments, Letter 209 Comment 1). I find that the Forest Service did not change its management practices and that the Responsible Official did not violate the FSH. TRAVEL MANAGEMENT RiTLE Issue X: (a). The "Purpose and Need" statement is in violation of the Travel Management Rule. (Appeal I.7, Issue 6, pp. 24-25} Response: The Purpose and Need focuses on designation of roads, trails, and areas for public motor vehicle use, in response to final travel management regulations (36 CFR 212.51- Subpart B) as published in the Federal Register on November 9, 2005. The intent is to address unmanaged, cross country motor vehicle use through the designation of roads, trails and areas by vehicle class, and if appropriate, time of year. At the same time, there is a need for limited motorized access to dispersed recreational opportunities (PETS, pp. S-6). Tn addition to the No Action Alternative, four other alternatives were developed and analyzed. Eleven more alternatives were considered but not analyzed in detail, including NETS closures and decommissioning (FEIS, pp. 34-35}, The Responsible Official determined that this alternative spoke to identification of the minimum road system (36 CFR 212.5 -Subpart A} of the Travel Management Rule, and was therefore outside the scope of this analysis. 25 I find the Purpose and Need was not in violation of the Travel Management Rule, and that the Responsible Official followed the direction from the Travel Management Rule 36 CFR 212. (b). The "Purpose and Need" statement is in violation of the Travel Management Rule. The unauthorized routes were not created by OHV users, but are indicators of negligence by the FS in revegetation, closing, monitoring, and maintaining old roads. {Appeal 21, Issue 1, pg. 4) Response: 36 CFR 212.55 requires designation of National Forest System roads, trails, and areas for motorized use. The Plumas NF Public Motorized Travel Management FEIS complies with the Travel Management Rule by analyzing alternatives far addzng unauthorized routes to the transportation system. The Purpose and Need statement addresses unmanaged motor vehicle travel, and additions and changes to the transportation system. Many of the routes proposed for addition to the National Forest Transportation System (NETS} ,as motorized trails are poorly located and would cause adverse impacts to plants, wildlife, water quality, soils and other natural resources (FEIS, Significant Issue #1, pg. ii}. The discovery and use of old timber sale roads for OHV use is an indicator of a demand far recreational access that is not met with the current transportation system, and vvas instrumental in the formation of alternatives for analysis. This FEIS analyzed 410 miles of unauthorized routes, regardless of origin, for possible additions to the NETS as motorized. trails. 36 CFR 212.52 requires Che participation of the public in designation of National Forest System roads, trails, and areas open for public motorized use. This FEIS includes three action alternatives which propose additions to the NF trail system, acknowledging the need for additional motorized access to dispersed recreational areas. Monitoring for past effectiveness of z-evegetation, decommissioning, frequency of maintenance, and implementation of Best Management Practices of NETS roads and trails, and unauthorized routes is outside the scope of the analysis. Also see NEPA Issue 2{b) response. I find the Purpose and Need was not in violation of the Travel Management Rule, and that the Responsible Official followed the direction from the Travel Management Rule 36 CFR 212. Issue 2: The Travel Management Plan failed to minimize the effects of ol'f-highway vehicles as required by 36 CFR 212.55,. and Executive Order 11644, as amended by Executive Order,. 119$9. {Appeal 17, Issue '1, pp. 26-43) Response: The focus of both 36 CFR 212.55 and Executive Order 11644 is to designate proper public usage of motor vehicles on public lands. Both the CFR and the Executive Order give the Forest many factors that they must consider when designating routes. While 36 CFR 212.55 states that an "objective" of the considerations should be to minimize a defined list of environmental consequences, the regulation does not require reducing access to Off-Highway Vehicles (OHV}. In addition to considering environmental consequences, the regulations also requires that the Forest consider recreational opportunities and access to public lands. 26 The Forest properly considered the effects caused by motorized vehicles on the items listed in 36 CFR 212.55 and found that by designating roads, maintenance and mitigation tactics, negative environmental effects would be minimized (ROD, pp. 6-9, 11). I find that the Responsible Official followed the requirements established in 36 CFR 212.55 and that her decision minimizes the effects of off-highway vehicles. Issue 3: The Forest Service failed to comply with subpart Part A and B because the Agency's Travel Plan should have been informed by a minimum road system analysis. (Appea1.17, Issue 8, PP• 27-30) Response; In response to a comment to the DEIS, the Forest responded "The Travel Management Rule is comprised of three parts: Subpart A - A.drninistration of the Forest Transportation System; Subpart B -Designation of roads trails and areas for motor vehicle use; and Subpart C -Use by over- snow vehicles. The scope of this action is focused on the prohibition of cross country motor vehicle travel to allow implementation of subpart B and the production of a MVUM in accordance with the Chief's timeline." An alternative to reduce road~density based an comprehensive travel analysis and seasonal wet weather closures of roads was considered but riot analyzed, as it was outside the scope of this project (PETS, pg. 36). I find the Responsible Official complied with Subpart B of the Travel Management Rule, Rule 36 CFR 212. Issue 4: The Forest Service failed to manage travel as required by the TMR and E411644. (Appeal 19, Issue 10, pp. 62- 63) (Appea121, Issue 11, pp. 38-43) Response: The Travel Management Rule (36 CFR Parts 212, 251, 261., and 295} requires the Forest to assess their entire transportation system "including the class of vehicle and time of year" to. designate official roads, trails and areas (36 CFR 212}. To complete this process, the Forest must consider the effects of motorized vehicle use on many different factors with the "objective of minimizing" negative consequences of motorized vehicles (36 CFR 212.55}. It is apparent from the ROD popes 6-12 and throughout the FEIS that the Forest attempted to balance the many considerations found in the Travel Management Rule and Executive Order 11644. The Forest was tasked with designating an affordable transportation system that provides access to Plumas National Forest while rr~inimizing negative environmental consequences and providing safe travel. Balancing all of the regulatory considerations requires difficult decisions and compromises. The public was kept aware of these decisions and compromises through the Alternative Maps found in the DEIS (including Alt. 1 Map, which showed existing unauthorized roads), the November 2006 press release announcing public meetings, and Closure Orders. I find that the Responsible Official's decision manages travel by following the intent and requirements of the Travel Management Rule and Executive Order 11644. 27 FOREST PLAN Issue 1: The Forest Service violated the National Forest Management Act by failing to comply with the Sierra Nevada Forest Plan Amendment and the Plumas land Management Forest Plan for noxious weed S&Gs. (Appeal 17, Issue 10, pp. 31-34) Response: Appellant alleges violation of the Forest Plan standards and guidelines (S&G) 37, 3$, and 40. Noxious weed S&G #37 requires working cooperatively with State agencies and counties to prevent and control noxious weed infestations: S&G #3$ requires a noxious weed risk assessment during project planning, to determine risks for weed spread,-and to develop mitigation. measures for high and moderate risk activities. S&G #40 requires float weed spread be minimized by incorporating weed prevention and control measures into ongoing management or maintenance activities that involve ground disturbance or the possibility of spreading weeds (PETS, Appendix B, pg 475). Of the five counties that intersect the PNF boundary, three counties provided comments on the DEIS. Lassen, in a letter dated 111412009; Butte, in a letter dated 213/2009; and Plumas, in a letter dated 311012009. However, none of the counties raised any issues regarding noxious weed impacts or conflicts with their noxious weed control programs. The ROD includes a finding of compliance with EO 13112 (pg. 11} and the Forest Plan (pg. 10), based on information in the FEIS. The FEIS discussions of noxious weed effects are based on a noxious weed risk assessment that is incorporated by reference {pg. 395), and is available from the project record upon request (Plumas National Forest Travel Management: Noxious Weed Risk Assessment). AlI action alternatives would have far Tower risk of noxious weed spread and consequent impacts than the current situation, that is, the no action alternative. This reduction would be due primarily to prohibition of cross country travel, which is common to all action alternatives. There are differences in the degree of reduced impact among the action alternatives, based primarily on the differences in additions to the NFTS. This is documented in the FEIS effects disclosures for botanical resources and noxious weeds, Sections 3.8 and 3.9 respectively. Mitigations were included in a1I action alternatives to reduce the risk of weed spread along the additions to the NFTS {FEIS, pp. 404, 405, 414; Appendix A). I find that the Responsible Official complied with noxious weed S&G #37 by providing the affected counties opportunity to comment on the DEIS; there was no need fo;r further coordination at this juncture, based on the absence of noxious weed comments from the counties. I find that the Responsible Official complied with noxious weed S&G #38 bypreparing aproject-specific noxious weed risk assessment that identified mitigations for moderate and high risk elements of the action alternatives. I find that the Responsible Official complied with nokous weed-S&G #40 by prohibiting cross country travel, limiting the addition of high and moderate risk routes to the NFTS, and by including mitigations for those moderate and high risk routes that were included in the selected alternative. Issue 2: The decision violates the Multiple-use Sustained Yield Act and the National Forest Management Act by restricting not only usage of trails that we have enjoyed for many years, but also restricts camping, hunting, firewood cutting and access to hiking trails. (Appeal 22/23, Issue 1, Pg• 1) . 28 Response: The Multiple-Use Sustained Yield- {MUSY) Act allows that some land will not be usEd for all of the resources covered by the Act; it also calls for the harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land (16 USC 529 Sec. 4(a)). The PNF Forest Plan provides direction that ensures coordinated management of resources and uses of the Forest, consistent with the requirements of the MUSY Act. The FEIS discloses the effects of the selected alternative (#5) on various resources in Chapter 3 (FEIS, pp. 38-437}. Based. upon that information, the responsible official found that Alternative 5 was consistent with the PNF Forest Plan (ROD, pg. 10). I find that the Responsible Official's decision complies with the MUSY Act by being consistent with the PNF Forest Plan. WILDLIFE Issue 1: The Forest has failed to adequately consult with FWS about the impacts fr©m the existing road system and climate change on listed species such as California red-legged frog and Lahontan trout, a violation of the Endangered Species Act. (Appeal I'1, Issue 1I, pp. 34-37} Response: The Endangered Species Act of 1.973 {16 USC 1531 et seq.) requires that any action authorized by a federal agency shall not be likely to jeopardize the continued existence of a threatened or endangered species {TE), or result in the destruction ar adverse modification of habitat of such species that is determined to be critical. Section 7 of the ESA, as amended, requires the responsible federal agency to cons~rlt the USFWS and the National Marine Fisheries Service (NMFS} concerning TE under their jurisdiction. For this issue, the appellant references two species, a frog and a fish. The Lahontan cutthroat trout listed by NMFS as Threatened, does not warrant consultation because this species is found within the eastside drainages only, on the Tahoe National Forest and in the Lake Tahoe Basin Mangement Unit, it does not occur on PNF or is in the project area (Aquatic Biota BE/BA, pg. 4 and 6). Therefore this species does not warrant further discussion. The California red-legged frog (CRLF) listed by USFWS as threatened does occur in the project area and is sufficiently discussed within both the Aquatic Biota Biological Effects and Biological Analysis (BEBA and'the FEIS Aquatic Biota Section 3.4). The CRLF analysis meets the requirements of ESA because USFWS concurred with the Route Designation Project Design Criteria (PDC) developed by Region 5 of the Forest Service (Aquatic Biota BE/BA, pp. 7-$). Specifically, if the PDC are met far species, a "No effect" or "May Affect Not Likely to Adversely Affect" determination can be made. The CRLF is included in the list of species of the PDC. The PNF initiated informal consultation with USFWS and were able to mitigate effects to the preferred alternative that met the PDC and resulted in "May Affect Not Likely to Adversely Affect" determination for alternatives 4 and 5 (Aquatic Biota BE/BA, pg. 5 and 18). All alternatives are analyzed using the PDC in Table 4 of the Aquatic BEIBA pages 14-15 and in the FEIS all determinations for the CRLF are clearly outlined in Section 3.6.6.5 (pp. 175-177) and Table 35 (pg• 98). Reference response to NEPA Issues 1 and 3 far a further description of how climate change, minimum road system, and effects analyses are considered. 29 I find that the. Responsible Official's. decision.complies with the Endangered Species Act and that the appropriate level of consultation occurred, with the FWS. Issue 2: The Forest Service is violating sections 2(c), 7(a){1) and 9 of the ESA because the agency's actions have allowed a "taking" of California red-legged frog. {Appeal 17, Issue 12, PP• 37-38) Response: Issue 2 is addressed in Issue 1 above. Between the DEIS and FEIS some 11 nines of tanauthorized routes where dropped (Alt. 5} some of which were directly related to the California red- legged frog meeting the PDC within the preferred alternative thereby resulting in a "May Affect Not Likely to Adversely Affect" determination and eliminating the need for formal consultation. I find that the Responsible Official's decision does not violate ESA. RECREATION Issue 1: The "one car length rule" for dispersed camping, fuel-wood gathering and game retrieval is overly restrictive.. (Appea114, Issued, pp.1-2) (Appeal 20, Issue 1, pp.1-2) (Appeal 21; Issue 5, pp. 15-16) {Appea! 2I, Issue 8, pp. 2429) Response: Forest Service Manual 7716.1{1) states that "[r]oad designations must specify either that they include parking within one vehicle length, or within a specified distance of up to 30 feet, from the. edge of the road surface." The Forest considered allowing limited crass-country travel to firewood trees and rnaranaged dispersed camping sites {PETS, pp. 32-33). However, these alternative were eliminated from consideration for numerous reasons, as explained in the Section "Alternatives Considered, but Eliminated from Detailed Analysis" (PETS, pp. 32-33). Access to :public and private lands (including dispersed .campsites} was considered in the ROD at page 6 (item 3). The FEIS analyzed the effects that the alternatives would have on dispersed camping (pp. 47-48). Comr3nents about camping, fuel-wood gathering, and game retrieval were considered (PETS, pg. 571; Response to Comments, pp: 83-84, 43$, 444, 44$, 483). So~cio-economic impacts and environmental justice considerations were thoroughly analyzed (PETS, Appendix D). Finally, the ROD clearly states that the Forest Supervisor is "committed to continuing to refine the Forest''s transportation system in the future to provide recreation opportunities and meet agency needs" (ROD, pg. 7). I find that the "one car length rule" for dispersed camping, fuel-wood gathering, and game retrieval is not overly restrictive and that it was appropriate for the Responsible Official to select the one vehicle length option. Issue 2: The "one car length rule" does not follow Forest Service policy to "apply the minimum restrictions required to protect resources and provide for user safety while continuing to provide recreation opportunities" (R5 Route Designation Handbook, pg. 4). The decision does not allow reasonable access to historic family dispersed campsites; inhibits fuel wood gathering and game retrieval. {Appeal 14, Issue 2, pg. 2)' {Appeal 16, issue 4, pg. 3) (APPea120, Issue~2, Pg• 2) 3a Response: As stated above in Recreation Issue 1, the effects to public access for dispersed camping, fuel wood gathering, and game retrieval were thoroughly analyzed and discussed in the ROD, FE1S, and Response to Comments. Forest Service Manual 7716.1 (1) states that "[r]oad designations must specify either that they include parking within one vehicle length; or within a specified distance of up to 30 feet, from the edge of the road surface." Page 3 of the R5 Route Designation Handbook provided the Forest with more specific guidance, stating that road designation includes "parking a vehicle so that all parts of the vehicle are within one vehicle length from the edge of the road surface when it is safe to do sa and without causing damage to NFS resources or facilities." This statement does not contradict the statement appellant has quoted from page 4. To the contrary, it lends support to the notion that the PNF applied the minimum restrictions to public access that were necessary to protect resources and user safety. An agency is afforded significant deference when interpreting its own policies and regulations. I find that the Responsible Official's selection of the "one car length xule" comports with applicable law, regulation, and policy, and does not restrict reasonable public access. Issue 3: The Forest Supervisor failed to coordinate with the county in developing the PNF Travel Management Project as required by 16 U.S.C.1G04, 36 CFR 212.53 and 36 CFR 219.7(a} and ML 3 road application to the. CVC. Discretion is afforded by 36 CFR 212.51{b) to allow limited use of motor vehicles within a specified distance of designated routes for purposes of dispersed camping and hunting activities. {Appea115, Issue 1, pp. 2-7} (Appeal 16, Issue 1, pp. 1-2) (Appea121, Issue 2, pP• 4-$) (APPea122/23, Issue 2, Pg• 2) Response: The Forest Supervisor's decision does not involve land and resource management plan development or revision. Accordingly, the provisions governing the coordination of land and resource management planning with the land and resource management planning processes of State and local governments contained in the National Forest Management Act (16 USC 1404{a)} and planning regulations (3b CFR 219.7) do not apply. The record indicates that the PNF complied with 36 CFR 212.51(b}, which requires the responsible official to "coordinate with appropriate ...county, and other local governmental entitites ...when designating National Forest System roads, National Forest System trails, and areas on National Forest System Iands ...." PNF staff held discussions with and/or sought input from Plumas and Butte County officials on numerous occasions between 2003 and 2009. At least four fozmal meetings were held with Plumas County to discuss travel management. Similarly, at least six informal meetings and discussions occurred with Plumas County officials. At least two Butte County representatives were included on the PNF's travel ranagement mailing list. In addition to the regularly scheduled public workshops, PNF staff offered to set up private, individual meetings with two Butte County Supervisors. Although the record does not specify. whether those meetings occurred, the offer to meet privately demonstrated the PNF's intent to coordinate. Finally, the record indicates that the PNF asked for (and was granted) a discretionary time extension by the Regional Forester's office for the stated purpose of " ...fulfilling the participatory intent of the NEPA process" because "Plumas, Lassen, and Butte counties ...are daunted by the task of comprehending and responding substantively to the 44~ 1 page DEIS and related maps and specialist reports." An agency is afforded significant deference when interpreting its own policies and regulations. The Travel Management Rule (specifically 36 CFR 212.51(b}} does not define the term "coordinate." The discussions, meetings, workshops, offers to meet both privately and individually, , correspondence, inclusion on mailing lists, anal discretionary extension of a comment period provide ample evidence Chat the PNF coordinated with counties and other local government agencies. 31 I find that the Responsible Official coordinated adequately with appropriate county entities throughout the environmental analysis process for the PNF Travel Management Project. Issue 4: During the public outreach opportunities, Forest Service staff called for individuals to identify their personal recreation locations. Unfortunately, such an approach relies upon the interest and knowledge of a relatively limited segment of the public that has the ability to participate in the Forest Service process. Recreationists who may visit Plurr~as Cpunty only on vacation can look forward to discovering that access to their favorite campsites has been eliminated. (Appeal 16, Issue 5, pg. 3) Response: Sufficient notice was provided to the public through extensive outreach efforts that spanned four years and involved over 20 public meetings (ROD, pg. 12). Public involvement is thoroughly documented in the FEIS pages S-9. In addition, effects to recreationists and popular destination points were thoroughly considered (ROD, pp. 6-7). • Ifind that the Responsible Official provided sufficient public outreach opportunities to a broad segment of the public. - FINDINGS Clarity of the Decision and Rationale The Forest Supervisor° s decision for Public Motorized Travel Management and supporting rationale are clearly presented in the Record of Decision~(ROD} signed on August 30, 2010. Her reasons far selecting Modified Alternative 5 are logical and responsive and consistent with the direction contained in the Plumas National Forest Land and Resource Management Plan as amended by the Sierra Nevada Forest Plan Amendment ROD (February, 2004}. Comprehension of the Benefits and Purpose of the Proposal The purpose of the proposal as stated above is clear and the benefits are displayed. The decision is consistent with direction contained in the Plumas National Forest Land and Resource Management Plan as amended by the Sierra Nevada Forest Plan Amendment ROD (February, 2004). Public participation was adequate and well documented Public participation was adequate and well documented. A Notice of Intent and Notice of Availability of the DEIS were published in the Federal Register. The project was added to the quarterly Schedule of Proposed Actions. The Forest mailed scoping letters, hosted public meetings, and distributed draft and final EISs to interested groups and individuals. The Plumas National Forest has maintained current information on planning and activities on its web page. Responses to the comments received are detailed and included as part of the FEIS. The decision of the Forest Supervisor indicates she considered and responded to public input. Responses to the comments received were detailed and included as part of the FE1S. The ROD and FEIS showed that the Forest Supervisor considered and responded to public input. RECOMMENDATION 32 My review was conducted pursuant to and in accordance with 36 CFR 215.19 to ensure the analysis and decision is in compliance with applicable law, regulation, and policy. T reviewed the appeal record, including the comments received during the comment period and how the Plumas Forrest Supervisor used this information, the appellant's objections and recommended changes. Based on my review; Y recommend ~e Forest Supervisor's decision be affirmed. I recommend the Appellants' requested relief be denied on all issues.- /s/1~farty ~umpls MARTY DUMPTS Appeal Reviewing Officer Acting Forest Supervisor, Angeles National Forest 32 REC4MMENDATiON My review was conducted pursuant to and in accordance with 36 CFR 215.19 tv ensure the analysis and decision is in compliance with applicable law, regulation, and policy. I reviewed the appeal record, including the comments received during the comment period and how the Plumas Forest Supervisor used this information, the appellant's objections and recommended changes. Based on niy review, i recommend the Forest Supervisor's decision be affirmed. I recvminend the Appellants' requested relief be denied on all issues. MARTY DUMPiS Appeal Reviewing Officer Acting Forest Supervisor, Angeles National Forest