Oregon Natural Desert Association et al v. United States Forest Service et al

Cross Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment. Oral Argument requested.

D. Or.February 10, 2017

INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Elizabeth E. Howard, OSB No. 012951 Email: ehoward@schwabe.com Schwabe, Williamson & Wyatt LLC 1211 SW Fifth Avenue, Suite 1900 Portland, OR 97204 Telephone: 503.222-9981 Facsimile: 503.796-2900 Attorney for Intervenor-Defendants UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION OREGON NATURAL DESERT ASS’N, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants. JEFF HUSSEY, et al., Intervenor-Defendants. Case No. 3:03-cv-00213 PK INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 1 of 65 i - TABLE OF CONTENTS PDX\128656\203426\EEH\19843079.5 TABLE OF CONTENTS Page Standard of Review ......................................................................................................................... 2 Legal Background ........................................................................................................................... 5 Factual Background ........................................................................................................................ 7 A. The Forest Service’s Grazing Decisions Are Protecting Bull Trout and Riparian Habitat. .................................................................................. 7 B. The Forest Service Has Established Science-Based Grazing Intensity Indicators to Achieve INFISH RMOs and Amendment 29’s 90% Bank Stability. .......................................................................... 16 1. INFISH. ......................................................................................... 16 2. Amendment 29. ............................................................................. 20 C. The Forest Service Grazing Decisions Address and Require Compliance with INFISH and Forest Plan Standards............................... 22 D. The Forest Service Is Actively Modifying Grazing Activities in the River Corridors. ........................................................................................ 25 E. The Forest Service Faces Funding and Resource Constraints That Impact Monitoring. ................................................................................... 26 F. The Forest Service’s Schedule for Allotment Management Plans Changes Based on Funding and Other Priorities. ..................................... 28 Argument ...................................................................................................................................... 29 A. Because Plaintiffs’ Claims Are a Non-Justiciable Attack on the Forest Service Grazing Program, Their Complaint Should Be Dismissed. ................................................................................................. 30 B. Because the Forest Service Is Using Science-Based Indicators to Ensure Grazing Activities Comply with INFISH’s GM-1 and the Forest Plan, the Grazing Decisions Do Not Violate NFMA. .................... 32 1. The Forest Service Uses Grazing Indicators to Comply with GM-1. ............................................................................................ 33 2. The Forest Service Uses Bank Alteration to Achieve Amendment 29’s Bank Stability Standard. ................................... 36 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 2 of 65 ii - TABLE OF CONTENTS PDX\128656\203426\EEH\19843079.5 3. The Record Establishes That the Forest Service Is Acting Consistent with GM-1 and the Forest Plan. .................................. 38 4. Because Plaintiffs’ Experts’ Declarations Are Not Supported by Representative Monitoring Data and Are Founded on the Wrong Standard, They Do Not Aid Plaintiffs’ Case. ............................................................................. 43 C. The Grazing Decisions Comport with the Forest Plan’s Narrative Goals and Standards. ................................................................................. 48 D. Because the Forest Service Has Discretion to Set and Adjust Its Allotment Management Plan Schedule, Plaintiffs Cannot Prevail on Their “Failure to Act” Claim. .............................................................. 48 E. Because the Wild and Scenic Rivers Act Allows the Continued Use of Designated River Corridors, and the Forest Service Determined Grazing Will Not Impair ORVs, the Grazing Decisions Are Not Arbitrary, Capricious, or in Violation of the Law. .......................................................................................................... 51 Conclusion .................................................................................................................................... 57 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 3 of 65 i - TABLE OF AUTHORITIES PDX\128656\203426\EEH\19843079.5 TABLE OF AUTHORITIES Page(s) Cases Anthem Elecs., Inc. v. Pacific Employers Ins. Co., 302 F.3d 1049 (9th Cir. 2002( ....................................................................................................4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................4, 49 Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483 (9th Cir. 2010) ...................................................................................................32 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .......................................................................................................6, 38, 48 County of Del Norte v. United States, 732 F.2d 1462 (9th Cir. 1984) .............................................................................................6, 48 Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008) ...........................................................................................51, 55 Gallatin Wildlife Ass’n v. United States Forest Serv., 2015 U.S. Dist. LEXIS 96987 (D. Mont. 2015) ......................................................................49 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) .........................................................................3, 6, 33, 34, 36, 37 League of Wilderness Defenders v. United States Forest Serv., 549 F.3d 1211 (9th Cir. 2008) ...................................................................................................5 League of Wilderness Defenders/Blue Mts. Biodiversity Project v. United States Forest Serv., 883 F. Supp. 2d 979 (D. Or. 2012) ..............5, 6, 7, 9, 12, 16, 17, 18, 33, 34, 38, 39, 40, 41, 43 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) .............................................................................................................1, 31 Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ...................................................................................................................3 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .....................................................................................................................3 Norton v. Southern Utah Wilderness Ass’n, 542 U.S. 55 (2004) ...................................................................................3, 4, 30, 49, 50, 51, 56 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 4 of 65 ii - TABLE OF AUTHORITIES PDX\128656\203426\EEH\19843079.5 ONDA v. Tidwell, 716 F. Supp. 2d 982 (D. Or. 2010) ..................................................................18, 20, 21, 37, 38 ONDA v. Tidwell, Case No. 07-cv-1871-HA, Dkt. No. 455 (Order, March 15) ...................................................47 Or. Natural Desert Ass’n. v. Singleton, 47 F. Supp. 2d 1182 (D. Or. 1998) ..........................................................................................54 Or. Natural Desert Ass’n v. United States Forest Serv., 2004 U.S. Dist. LEXIS 11043 (D. Or. June 10, 2004) ............................................................16 Ore. Wild v. United States Forest Service, 2016 U.S. Dist. LEXIS 79006 .....................................................7, 8, 16, 17, 22, 34, 52, 56, 57 Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C. 2006) .............................................................................................4 Sierra Club v. United States, 23 F. Supp. 2d 1132 (N. D. Ca. 1998) .............................................................................2, 6, 38 Telecomm Research & Action Ctr. v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) ...................................................................................................50 U.S. v. Dunkel, 927 F2d 955 (7th Cir. 1991) ....................................................................................................32 W. Watershed Project v. BLM, 629 F. Supp. 2d 951 (D. Ariz. 2009) .......................................................................................49 Western Radio Serv. Co., v. Espy, 79 F.3d 896 (9th Cir. 1996) .......................................................................................................3 Statutes 5 U.S.C. § 704 ................................................................................................................................30 5 U.S.C. § 706(1) .............................................................................................................................3 16 U.S.C. § 528 ..........................................................................................................................5, 17 16 U.S.C. § 1281(a) ...................................................................................................................6, 52 16 U.S.C. § 1604(a) .........................................................................................................................5 16 U.S.C. § 1604(e)(1) ...............................................................................................................5, 17 16 U.S.C. § 1604(i) ..........................................................................................................................5 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 5 of 65 iii - TABLE OF AUTHORITIES PDX\128656\203426\EEH\19843079.5 42 U.S.C. § 4332(C) ......................................................................................................................28 43 U.S.C. § 1752(d) .......................................................................................................................28 43 U.S.C. § 1752(i) ............................................................................................................29, 49, 50 Pub. L. 108-7, Sec. 327, 117 Stat. 276 (February 20, 2003) .........................................................28 Pub. L. 108-108, Sec. 325 (Nov. 10, 2003) ...................................................................................28 Pub. L. 291, 128 Stat. 3292, 3762-3764 (December 19, 2014) .....................................................29 Pub. L. No. 104-19, 109 Stat. 194, 212 (July 27, 1995) ................................................................28 Other Authorities 36 C.F.R. § 219.15 .........................................................................................................................38 36 C.F.R. § 220.4(e)(1) ..................................................................................................................28 36 C.F.R. § 222.2(b) ................................................................................................................28, 49 47 Fed. Reg. 39,454 .......................................................................................................................53 Fed. R. Civ. P. 7(b)(1)(C) ................................................................................................................4 Fed. R. Civ. P. 56(a) ........................................................................................................................4 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 6 of 65 1- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 The Malheur River and North Fork Malheur River run through various Forest Service grazing allotments on which Intervenor-Defendants hold permits authorizing them to graze livestock. Currently, livestock grazing is completely excluded from the parts of the Malheur River corridor and most of the North Fork Malheur River corridor that are at issue in this case. Contrary to the judgment of the Forest Service that the current grazing program is compatible with long-term efforts to restore bull trout habitat-that is, within the immediate river corridors and their tributaries-Plaintiffs demand that this Court ban grazing on entire allotments covering tens of thousands of acres. Neither the facts nor the law support Plaintiffs’ demands. First, Plaintiffs set forth claims that, while framed as challenges to discrete agency actions, are instead an effort to re-write the very essence of the Forest Service’s grazing program. Plaintiffs impermissibly seek “wholesale improvement” of a program, (i.e., a programmatic challenge). Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990). Plaintiffs paint with such a broad brush that they fail in their Motion for Summary Judgment (MSJ) to provide particularized evidentiary support for judgment on the nearly 100 agency decisions ostensibly falling within the scope of their programmatic challenge. Plaintiffs’ National Forest Management Act (NFMA) claims also fail as a matter of law. Plaintiffs invoke various standards and plans-i.e., INFISH, the GM-1 standard, the Malheur National Forest Plan, and Amendment 29-but they disregard the very mechanisms by which the Forest Service has been attaining compliance with each of these for more than two decades, and extensive evidence in the record documenting that compliance. The Forest Service’s method has been upheld in other similar cases, and should be upheld here. Plaintiffs also disregard the Forest Service’s statutory discretion to adjust to changes in funding and priorities (and hence to Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 7 of 65 2- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 adjust its timing) for preparing allotment management plans (AMPs). The case law on this issue is both settled and contrary to Plaintiffs’ claim. Plaintiffs’ Wild and Scenic Rivers Act (WSRA) claim fails as a matter of law, as well. The plain language of the statute and related case law uphold the Forest Service’s right to continue activities within designated river corridors, even where there is some impact to the corridors’ outstanding resource values (ORVs). Plaintiffs misinterpret cases to support their claim, and in doing so, make a complicated argument out of a straightforward analysis. The Forest Service has assessed the impacts of grazing and determined that it may continue under certain standards without substantially interfering with the ORVs. The Forest Service is managing the river corridors in compliance with the WSRA. For each of these reasons, Plaintiffs’ motion for summary judgment should be denied, their claims should be dismissed, and judgment should be issued for Defendants and Intervenors in this case. STANDARD OF REVIEW Administrative Procedures Act Agency actions challenged under Section 706(2)(A) of the Administrative Procedures Act (APA) may be held unlawful and set aside only if such actions were undertaken in an “arbitrary and capricious” manner, are found to be an abuse of discretion or are otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A). “Administrative decisions are entitled to a presumption of validity, and ‘absent a showing of arbitrary action, [courts] must assume that the agencies have exercised this discretion appropriately.’” Sierra Club v. United States, 23 F. Supp. 2d 1132, 1135 (N. D. Ca. 1998), quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976). This standard of review is highly deferential. Sierra Club, 23 F. Supp. 2d at 1135. It is narrow, and Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 8 of 65 3- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 the court may not substitute its judgment for that of the agency. Western Radio Serv. Co., v. Espy, 79 F.3d 896, 900 (9th Cir. 1996); Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). Instead, the court’s review is limited to whether the agency’s decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment” that would render its decision arbitrary and capricious. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 426 (1971). And a court may reverse an agency decision only when the agency clearly has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also id., quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974) (even a decision of less than ideal clarity will be upheld “if the agency’s path may reasonably be discerned.”). Under the APA, a plaintiff may also seek to compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1); Norton v. Southern Utah Wilderness Ass’n, 542 U.S. 55, 61-62 (2004). Such claims may only proceed, however, where the agency failed to take a discrete agency action that is required by law. Id. at 64-65. These limitations rule out several kinds of actions, including broad attacks on an agency’s program. Id. at 65. Claims must be made against a discrete agency action. In addition, when the manner of action is left to the agency’s discretion, the courts may not specify how an agency must act or what the action must be. Id. at 65. Moreover, even where the law mandates action, “[t]he prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 9 of 65 4- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 congressional directives is not contemplated by the APA.”1 Id. at 67. These “failure to act” claims are therefore justiciable in very limited circumstances. Summary Judgment Summary judgment is the mechanism for deciding, as a matter of law, whether an agency’s decision is supported by the administrative record and is otherwise consistent with the APA standard of review. Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006). Courts reviewing administrative records do not resolve factual questions, through summary judgment or otherwise. Instead they determine “whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. at 90. In order to prevail on summary judgment, a movant must identify and establish the legal principles and facts from the administrative record that entitle them to judgment as a matter of law. Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). Plaintiffs also have the initial burden of production: They must make a prima facie showing that the evidence is sufficient to entitle them to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986); see also Anthem Elecs., Inc. v. Pacific Employers Ins. Co., 302 F.3d 1049, 1060 (9th Cir. 2002). Movants in administrative cases should look to the record for the fact supporting their motion and to demonstrate that they are entitled to judgment as a matter of law. Motion papers must state the grounds justifying summary judgment with particularity. See Fed. R. Civ. P. 7(b)(1)(C) (“A request for a court order must be made by motion. The motion 1 The Supreme Court found that courts lack the expertise and information to resolve policy disagreements. Norton, 542 U.S. 55, 66. Were they to enter general orders compelling compliance with board statutory mandates, courts would necessarily be empowered to determine whether compliance was achieved. Id. at 66. Agencies should not be subject to such undue judicial interference with their lawful discretion and with their day-to-day activities. Id. at 65- 66. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 10 of 65 5- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 must . . . state with particularity the grounds for seeking the order; and state the relief sought.”). Where plaintiffs fail to meet this standard, their motion will be denied. In Corry v. CFM Majestic Inc., the Federal Circuit reversed a district court’s grant of summary judgment on several of the movant’s defenses because the defendant had not specifically asked for an opinion regarding those issues in the summary judgment motion. The Federal Circuit explained that the motion’s treatment of those issues was “a far cry from the requirement that a motion ‘shall state with particularity the grounds therefore.’” 2000 U.S. App. LEXIS 29288, at *13-20 (Fed. Cir. Nov. 16, 2000) (unpublished). Plaintiffs here must satisfy the particularity requirements to obtain summary judgment against the Forest Service on each of the agency actions they challenge. LEGAL BACKGROUND National Forest Management Act The National Forest Management Act (NFMA) requires the Forest Service to develop land and resource management plans (Forest Plans) for each unit of the National Forest System. 16 U.S.C. § 1604(a). Such plans provide for multiple use and sustained yield of the products and services the National Forest System lands provide, and coordinate the production of outdoor recreation, timber, range, watershed, wildlife and fish, and wilderness. 16 U.S.C. § 1604(e)(1), 16 U.S.C. § 528. After a Forest Plan is developed, all subsequent actions must be consistent with it. 16 U.S.C. § 1604(i). The Forest Service is given substantial deference in interpreting its land management plans. League of Wilderness Defenders/Blue Mts. Biodiversity Project v. United States Forest Serv. (“LOWD”), 883 F. Supp. 2d 979, 990 (D. Or. 2012); see also League of Wilderness Defenders v. United States Forest Serv., 549 F.3d 1211, 1223 (9th Cir. 2008), citing Auer v. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 11 of 65 6- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Robbins, 519 U.S. 452, 461-62 (1997). Particularly where the agency’s interpretations of its plans involve scientific or technical analysis, the Ninth Circuit has cautioned that courts are to be “most deferential.” Lands Council, 537 F.3d 981, 993. As “non-scientists,” courts must not impose “bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements.” Id. at 993-94. Instead, a court may only conclude that the Forest Service has acted arbitrarily or capriciously when the record demonstrates that it made a “clear error in judgment” in concluding the project complies with the Forest Plan. Id. at 994. When evaluating a project for compliance with the Forest Plan, the Forest Service need not explicitly analyze the Forest Plan’s standards. LOWD, 883 F. Supp. 2d at 994. It is enough to show and state that it considered the standards. Id. at 994-95 (evaluating the Forest Service’s consideration of riparian management objectives). Moreover, without contradicting evidence, the Forest Service is presumed to have acted in accordance with its Plan. See Volpe, 401 U.S. 402, 415 (presumption of regularity); County of Del Norte v. United States, 732 F.2d 1462, 1468 (9th Cir. 1984) (“In absence of clear evidence to the contrary, courts presume that public officers properly discharge their duties ….”); Sierra Club, 23 F. Supp. 2d 1132, 1135 (presumption of validity). Wild and Scenic Rivers Act The Wild and Scenic Rivers Act (WSRA) requires the Forest Service to manage designated rivers in a manner that will “protect and enhance the values” that caused them to be designated without limiting other uses that do not “substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281(a). Therefore, under its plain terms, the WSRA contemplates the continuation of uses and some impact from them with a designated river Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 12 of 65 7- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 corridor. See Ore. Wild v. United States Forest Service, 2016 U.S. Dist. LEXIS 79006, at *36- 37. River Plans are adopted by the Forest Service to implement the WSRA. As with Forest Plans, the Forest Service is given substantial deference in its interpretation of River Plans. See LOWD, 883 F. Supp. 2d at 990, citing Auer, 519 U.S. at 461-62 (Forest Plan directives are treated as federal regulations adopted under the APA, and courts defer to an agency’s interpretation unless it is plainly erroneous or inconsistent with the directive). FACTUAL BACKGROUND Contrary to Plaintiffs’ implications, riparian conditions in the Malheur River and North Fork allotments are stable and improving. The Forest Service has made many adjustments over the past twenty years to secure these results. Perhaps most important, the Forest Service determined that managing to achieve annual grazing intensity indicators is an effective means to achieve standards and objectives, and the Forest Service is annually implementing these indicators through its grazing decisions. The Forest Service has also made significant changes on the Malheur River and North Fork, in addition to implementing protective grazing standards within the river corridors. And the Forest Service is achieving these results despite significant funding shortfalls and other priorities that draw upon its limited resources to address management of the 1.4 million acre Malheur National Forest. A. The Forest Service’s Grazing Decisions Are Protecting Bull Trout and Riparian Habitat. At root, Plaintiffs have misdiagnosed the source of the bull trout’s current challenges. Plaintiffs ask this Court to assume that the Forest Service’s management of livestock is the blame. They discuss (at length) the status of bull trout and baseline environmental conditions, see MSJ, pp. 5-9, 33-37, and speculate (briefly) about ways in which livestock may impact these Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 13 of 65 8- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 riparian areas, id., pp. 9-10. However, as was the case in Ore. Wild, a successful claim requires more than speculating about grazing’s impact on the environment. 2016 U.S. Dist. LEXIS 79006, at *39-40. Here, the record confirms that bull trout continue to face many challenges, but the Forest Service’s grazing decisions are not one of them. In the Forest Service’s most recent PACFISH/INFISH Biological Opinion (PIBO) Effectiveness Monitoring Program (dated 2015) monitoring report, it found most riparian management objectives (RMOs)- through which INFISH achieves landscape riparian health over the long term, see infra pp. 16-17-to be trending upwards across the Upper Malheur Subbasin. P4Supp11628 (overall change upward, only pool percentage had a negative trend, with all others meeting desired trend). In its most recent biological opinion (dated September 6, 2012), the U.S. Fish and Wildlife Service (FWS) confirmed that livestock grazing is not likely to adversely affect bull trout and bull trout critical habitat in the Spring Creek, North Fork, Ott, Bluebucket, Star Glade and Central Malheur allotments. P4Supp2944, P4Supp2950. On the Dollar Basin and Flag Prairie allotments, the FWS found - after reviewing the environmental baseline, effects of the proposed grazing activities, and anticipated cumulative effects - that grazing as proposed by the Forest Service would not jeopardize bull trout or adversely modify bull trout critical habitat. P4Supp3024-25. In 2012, the Forest Service issued a Biological Assessment for the Bluebucket, Central Malheur, Dollar Basin, and Star Glade allotments (and other allotments not relevant here). See P4Supp2648-2811. The assessment evaluated a broad set of objectives, referred to as the pathways and indicators of environmental baseline (Plaintiffs refer to these as habitat indicators, see MSJ, p. 22), nine Primary Constituent Elements (PCEs)- the physical or biological features of bull trout critical habitat essential to bull trout conservation - and the effect of grazing on Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 14 of 65 9- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 these PCEs using the FWS’s “matrix of pathways and indicators.” P4Supp2753-59, 2765-95; P4Supp2806 (definition of PCEs).2 Such an evaluation is the scientific and legal equivalent of evaluating impacts of the grazing decisions on RMOs because it analyzes the impact of the Forest Service’s decision on critical fish habitat, which is the substantive concern behind PACFISH/INFISH. See LOWD, 883 F. Supp. 2d at 996 (so holding). Contrary to Plaintiffs’ inferences, the 2012 Biological Assessment made a number of positive findings about the impacts of grazing on bull trout habitat and RMOs in the Malheur River allotments: *Bank stability “has significantly improved with overall stability greater than 90% and percent fines are under 12%, except for Crooked Creek, which may be related to past manipulation of the channel.” P4Supp2767. *Because of improving streambanks and dispersal of livestock away from critical habitat, any potential effects to the streambanks will be so minimal that it is not subject to meaningful measurement. P4Supp2778-9. *Large woody debris is “at or near Forest Service standards within forested reaches” (where it is to be measured according to INFISH). P4Supp2775-6, 2778. *Livestock grazing will “not measurably change pool frequency.” Id. *Width:depth ratios were negatively affected by historical grazing and have been slow to recover, but present grazing management is not likely to cause measurable changes to these ratios. Id. (Emphasis added.) Each of these conclusions is directly contrary to the ones Plaintiffs ask this Court to draw. See, e.g., MSJ, p. 33 (alleging the Biological Assessment reveals a “steady worsening trend from 1999 to 2012”). Bank stability is improving, not worsening. Grazing is having no negative impact on pool frequency and width:depth ratios, and where there are some impacts from grazing, they are so minimal that they do not appreciably diminish the value of the PCEs. See P4Supp2769, 2771, 2781, 2785, 2786, 2796-95 (summary). Two years later, a 2014 Malheur 2 Plaintiffs incorrectly rely on the environmental baseline to imply grazing is a cause for habitat decline. The baseline does not attribute baseline conditions to any particular cause. It is merely a recitation of the baseline conditions. Compare MSJ, p. 22 (portraying grazing as the cause for habitat indicator changes) with P4Supp2753-9; P4Supp2795 (“Grazing is one of multiple natural and human-caused watershed disturbances influencing environmental baseline ratings.”). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 15 of 65 10- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 River stream survey made similar findings: Bank stability was at 97.4%, well above standards. P4Supp7682. Also contrary to Plaintiffs’ presumption that the Forest Service is not monitoring or addressing areas of concern, the 2012 Biological Assessment confirmed that the Forest Service is actively working to address those few areas that need attention. For example, the Forest Service recommended addressing impacts on woody vegetation on Crooked Creek, a tributary to the Malheur River located primarily in the Dollar Basin Allotment.3 P4Supp2759. Shrub utilization in Merit pasture (where Crooked Creek is located) as well as stubble heights fell well within the indicator standards for a number of years, reflecting specific sensitivity to this concern. P4Supp2695 (2008-2011). The Forest Service recognized the importance of ongoing monitoring of these indicators, finding that “[b]y managing for healthy riparian hardwood communities through appropriate browse move triggers, these communities can in turn provide adequate shade for cool water aquatic habitat.” P4Supp2764. The FWS concurred, finding that ongoing monitoring would be appropriate to address concerns and noting the several monitoring sites on Crooked Creek designated for this purpose. See P4Supp3016-17, 3024-25 (making a no jeopardy conclusion based in part on its finding that meeting end-point indicators would continue improvement of riparian components and channel morphology). The 2012 Biological Assessment for the Flag Prairie, Spring Creek, North Fork and Ott allotments similarly found that livestock grazing was not likely to adversely affect bull trout or bull trout habitat. P4Supp2932. Plaintiffs correctly note that the Biological Assessment analysis 3 The Forest Service has closely monitored Crooked Creek over the years. See P3705-6, P3777, P3732; see also P4Supp2693 (map). In a 1999 analysis, the Forest Service found that bank stability ranged between 96.1% and 100% for each location surveyed on Crooked Creek. P3705-6. A 2014 stream survey found width:depth ratios, pool frequency, and large woody debris were below RMOs. However, these are the same RMOs the 2012 Biological Assessment determined were not being negatively impacted by current grazing activities. See DB4Supp1187; see supra, p. 9. On the other hand, the 2014 survey found bank stability-an RMO that is impacted by grazing-to be above the RMO standard, at 90% or above. DB4Supp1187. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 16 of 65 11- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 placed many baseline conditions (habitat indicators) as functioning at risk, but again ignore the fact that the risks do not arise from current grazing management. The Forest Service found that there was “no causal measurement/no effect” from grazing on the 9 PCEs for bull trout critical habitat-indeed, impact was not even “meaningfully measureable.” P4Supp2924-25. Additionally, streambank stability had “significantly improved” with overall bank stability greater than 90% and percent fines under 12%, except for Elk Creek, which was likely related to past timber activities.4 P4Supp2899. Equally important, the Assessment confirmed that continuing to implement grazing indicators would move key riparian and stream channel elements, including bank stability, width:depth ratio, and woody species regeneration, toward desired conditions and RMOs. P4Supp2931. As it was on the Malheur River, the Forest Service was responsive to the few areas of concern identified in the 2012 North Fork Biological Assessment. One was stream temperature on Crane Creek in the Flag Prairie Allotment, where unauthorized grazing was believed to be impeding hardwood development and reducing the ability of the stream to meet stream temperature objectives. P4Supp2916, 2924-25. In response, the Forest Service made a major repair to the riparian pasture fence so as to “significantly improve the effectiveness of the riparian pasture and management for the protection of Crane Creek,” and implemented specific monitoring criteria to evaluate the location of livestock and make adjustments to management based on hardwood recovery. P4Supp2924-25; see also P4Supp2858. These changes are 4 Plaintiffs’ discussion of other stream surveys is unhelpful. Plaintiffs cite to two 2010 stream surveys. MSJ, p. 33; P4Supp2833 (reporting Elk River survey results), P4Supp2830 (reporting North Fork Malheur River survey results). These surveys provide measurements of condition, but do not conduct an analysis of the relationship between conditions and grazing management. Plaintiffs also selectively cite from a 2010 report, but disregard the report’s limitations-namely, the authors’ caveat that they were providing an incomplete interpretation of the data and that other interpretations could be supported. P4Supp48. Relatedly, Plaintiffs ignore the 2012 Biological Assessment, which provides the analysis needed to understand the results of these surveys and data. Its more comprehensive look at the surveys and other information indicated that grazing is not impacting the ability of streams and riparian habitats to meet RMOs and Forest Plan standards. Defendant-Intervenors rely on the Biological Assessment. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 17 of 65 12- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 expected to improve the recovery of hardwoods and their shade component in the next five to ten years. P4Supp2924-25. Changes were also made to management along the Bear Creek Drainage within the Flag Prairie Allotment, though impacts from grazing in that area were anticipated to be short term and did not impact long-term recovery. P4Supp2858. The record includes evidence of other Forest Service efforts to accelerate and prioritize restoration work on the Malheur National Forest. In 2014, the agency initiated a priority watershed approach to aquatic restoration treatments across the Forest. P4Supp7434, 7455. These treatments include riparian fencing, native species replanting, road removal and decommissioning, and juniper control. The agency prioritized these efforts and designated the order in which the efforts would proceed, beginning in 2014 and continuing through 2023, and beyond. Id. at 7455, 7456 (Figure 10, a color coded map showing the prioritization of watersheds). As part of this effort, the agency implemented the Elk 16 Restoration project in 2014. Id. This project is designed to improve forest and, as a consequence, riparian conditions on the Elk Creek, Crane Creek and part of the North Fork Malheur River located within the Spring Creek and North Fork allotments. P4Supp10150, 10154. As part of the Elk 16 project, the Forest Service conducted multiple field visits between 2008 and 2011, one of which was to the North Fork Allotment. P4Supp9533. A representative walk within the North Fork Allotment identified 5 areas of approximately 20 linear feet having impacts from hoof action in approximately 1.3 miles of stream. This roughly equates to less than one percent of the linear area available for undercut banks being affected. Site visits to areas of the North Fork Malheur River indicated that the representative walk within the North Fork Allotment have “comparable conditions within the project area.” P4Supp9533-9534. This led to the conclusion that the “areas of impacts are isolated and make up a small percentage of the total length of stream bank.” P4Supp9533. These site visits also found that hardwood recovery was occurring-albeit not yet complete. P4Supp9534. This Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 18 of 65 13- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 recent evaluation of significant portions of the North Fork Allotment, and the interface of grazing with riparian habitat, stands in stark contrast to Plaintiffs’ suppositions about conditions and impacts from grazing on the North Fork Malheur River in the North Fork Allotment. See, e.g., MSJ, p. 35 (selectively quoting from a 2010 report). Overall, the record in this case is that RMOs are in an upward trend, that bull trout and bull trout critical habitat are being protected by the Forest Service’s grazing program, and that the Forest Service is making appropriate adjustments in places to attain RMOs and desired conditions. The following photographs of rivers and streams in pastures identified as areas of concern by Plaintiffs’ declarants further contradict Plaintiffs’ premise that the grazing program is degrading riparian areas within the Malheur River and North Fork River watersheds. Flag Prairie Allotment, Crane Crossing Unit - 8/6/2014 DMA site. P4Supp08920 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 19 of 65 14- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Spring Creek Allotment, South River Pasture - 7/8/2015 Bottom DMA upstream. SC4Supp977 North Fork Allotment, North Pasture, North Fork Malheur River-6/2015 5Supp123 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 20 of 65 15- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Dollar Basin Allotment, South Star Glade pasture, June 17, 2013 DB4Supp761. Dollar Basin, Merit pasture, DMA#2 July 30, 2015 DB4Supp1155 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 21 of 65 16- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 B. The Forest Service Has Established Science-Based Grazing Intensity Indicators to Achieve INFISH RMOs and Amendment 29’s 90% Bank Stability. 1. INFISH. With the onset of multiple fish listings under the Endangered Species Act (ESA) in the early 1990s, the Forest Service and Bureau of Land Management (BLM) initiated coordinated efforts to restore salmonids and non-anadromous, native fish species, including bull trout, across multiple states in the Northwest. These efforts-referred to as PACFISH and INFISH-were adopted in 1995 and set riparian management objectives (RMOs) to improve river systems supporting listed fish populations. P022-23; P2081; P2084-5; see also LOWD, 883 F. Supp. 2d 979, 985 (PACFISH and INFISH are similar management directions, differing only in that PACFISH protects habitat for anadromous fish and INFISH protects the habitat of inland native fish like bull trout). INFISH provides management direction to 22 Forests, covering approximately 24.9 million acres. P004-5, P023; see also Or. Natural Desert Ass’n v. United States Forest Serv., 2004 U.S. Dist. LEXIS 11043, *12 (D. Or. June 10, 2004). INFISH set goals for watersheds, riparian areas, and fish habitats and established landscape-scale RMOs for water temperature, pool frequency, large woody debris, bank stability, lower bank angle and width:depth ratios. P023-24, 26; see also LOWD, 883 F. Supp. 2d at 996-7 (discussing landscape and watershed scale); Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at *33-34 (same). RMOs provide criteria against which the attainment or progress toward attaining riparian goals can be measured. P024. Their “objectives” were not intended to be “met instantaneously, but rather would be achieved over time.” P024-25. See also Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at *32-34 (same). INFISH “instructs the Forest Service to take a holistic approach to RMOs. If one objective is met or exceeded, ‘there may be some latitude in Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 22 of 65 17- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 assessing the importance of the objectives for other features that contribute to good habitat conditions.’” Id. at *33. INFISH recognized that grazing activities might need to be modified to attain RMOs, but expected grazing to continue alongside fish recovery efforts. See, e.g., P024 (RMOs are the targets toward which managers aim as they conduct resource management activities); LOWD, 883 F. Supp. 2d at 991-92 (INFISH is the agencies’ best judgment of how to balance among competing interests; it provides protections to fish without unnecessarily restricting existing permits and the flow of goods and services). Judge Simon’s decision in LOWD is helpful to put INFISH into context within the Forest Service’s larger obligations to manage for multiple uses across federal lands. 16 U.S.C. § 1604(e)(1), 16 U.S.C. § 528. In LOWD, the League of Wilderness Defenders (League) challenged the Forest Service’s decision to increase the use of herbicides in controlling invasive plant species in the Wallowa- Whitman National Forest. 883 F. Supp. 2d at 982. The League disputed the Forest Service’s interpretation of the INFISH RA-3 standard, arguing that the interpretation improperly allowed actions that might result in harm to fish. Id. at 985-86, 990-91. RA-3 includes two distinct requirements: 1) that herbicide be applied in a manner that does not retard or prevent attainment of RMOs, and 2) that herbicides be applied in a manner that avoids adverse effects on fish. Id. at 990. Judge Simon found the Forest Service’s interpretation of RA-3 reasonable based in part on his recognition that, when put into context, NFMA requires the Forest Service to manage National Forest System lands not only for wildlife, but also for sustainable use of the forests’ resources. Id. at 991. “Other uses of the [forest], such as logging and grazing, will necessarily have some impact on fish habitat. If RA-3 were interpreted as prohibiting all possible adverse effects, it would effectively foreclose other uses of the forest, which is contrary to the purpose of Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 23 of 65 18- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 NFMA.” Id. at 991-92. Neither INFISH nor PACFISH “prioritize habitat conservation and restoration at the expense of all other interests.” Id. at 992. They are strategies that balance among competing interests, responding to the need to provide a high level of protection to fish habitat without unnecessarily restricting existing permits and other authorizations or the flow of goods and services. Id. Working within this context, INFISH set a number of standards, like RA-3, as a means to achieve RMOs over the long term. One of INFISH’s grazing management standards is GM-1. It directs the Forest Service to: Modify grazing practices (e.g., accessibility of riparian areas to livestock, length of grazing season, stocking levels, timing of grazing, etc.) that retard or prevent attainment of Riparian Management Objectives or are likely to adversely affect inland native fish. Suspend grazing if adjusting practices is not effective in meeting Riparian Management Objectives. P31. In its evaluation of how to comply with GM-1, the Forest Service determined that “the riparian vegetative community directly affects these RMOs and changes in riparian vegetation are generally detectable within short time periods, [therefore] the recovery of the vegetation component of the riparian system will be used to predict whether grazing will ultimately degrade, retard, or prevent the attainment of the RMOs.” P202. In other words, the Forest Service determined it would not rely on direct measurements of RMOs to comply with GM-1. See also ONDA v. Tidwell, 716 F. Supp. 2d 982, 1007-8 (D. Or. 2010) (finding the Forest Service is not required to monitor RMOs to comply with PACFISH). Instead, relying on scientific research and technical analyses, the Forest Service determined that residual stubble height and bank alteration were appropriate surrogate measures for achieving the level of grazing intensity that would move streams and riparian habitat toward RMOs at a near natural rate of recovery. P2692; P2696-97; P3414 (bank alteration is used to Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 24 of 65 19- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 shore up stubble height as an indicator of bank damage); P3363; P3377; P3Supp2507; P3374-5 (it is not easy to monitor the effects of livestock grazing strategies on riparian conditions; therefore indicators of livestock use, such as stubble height and bank alteration, will be used to determine the effectiveness of the grazing strategy in meeting RMOs); P4Supp2796 (meeting livestock grazing end-point indicators will move key riparian and stream channel elements toward their desired conditions and meet RMOs). GM-1 indicates that grazing should not “retard” achievement of the RMOs, which is another way of saying that grazing management should not “slow the rate of recovery below the near natural rate of recovery.” See P25. This standard allows for some environmental effects, but at a level that allows near natural rates of recovery. When livestock effects are limited to those that do not carry through to the next year, the Forest Service has determined it will achieve near natural rates of recovery. P208. Importantly, such carry-over effects only occur at utilization rates and bank alteration levels that are higher than those the Forest Service authorizes. In the 1995 Recommended Livestock Grazing Guidelines (Enclosure B), the Forest Service determined that holding livestock effects to 5% lineal bank distance (both sides of the stream), and 2 inches stubble height for Kentucky bluegrass or 3 inches height on sites dominated by carex species, would avoid carry-over effects. P210-211. The 4-6 inch stubble height and 10-20% bank alteration indicators used by the Forest Service on the Malheur National Forest are much more conservative than these levels. P3Supp5349-50; P209; P3Supp5349. Therefore, the Forest Service can be assured that when incorporated into grazing decisions, these indicators provide a high degree of assurance for conservation and restoration of fish habitat. And the Forest Service has evaluated its decision to use these indicators more than once. Relying on extensive research, it found that 4-6 inch stubble height and 10-30% annual Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 25 of 65 20- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 streambank alteration will provide for riparian protection and streambank recovery as recently as 2012.5 See P4Supp2728-30. The Forest Service also uses woody browse as an indicator for livestock grazing intensity and to move streams toward RMOs on the Malheur National Forest. Id. 2. Amendment 29. The Forest Service adopted the Malheur National Forest Plan in 1990. The Forest Plan sets goals, plans, and standards through which the Forest hopes to achieve desired future conditions and resource outputs. The Forest Plan also created management areas, each with its own goals and standards. Forest Plan (FP)6, IV-46. One of the management areas is Management Area 3A (MA3A), which includes all non-anadromous riparian areas within the Malheur National Forest and sets riparian goals for those areas. Id., IV-55 The Forest Plan was amended in 1994. P875. The amendment, commonly referred to as Amendment 29, incorporated a 90% bank stability standard into the Forest Plan. P875, 878. This standard, as well as others, are measures against which the Forest Service’s progress toward desired future riparian conditions is assessed. P870, P875-79; P4Supp2705. The Malheur Forest Plan intended that grazing would continue, at certain utilization levels, while the Forest worked to achieve these riparian goals. FP, IV-57 to 58. In the same way it uses indicators to attain RMOs, the Forest Service uses bank alteration as an indicator to manage for and evaluate the effect of livestock grazing on bank stability. 5 In 2003, the Forest Service was also able to begin its landscape level efforts to confirm its determination that the selected short-term indicators will achieve RMOs over time. See P3Supp4553-4656. This monitoring effort is referred to as the PACFISH/INFISH Biological Opinion Effectiveness Monitoring program. Fifty percent of the watersheds within the PACFISH/INFISH areas are evaluated over a 5-year sampling period. P3Supp4579. This effort is recognized as a long-term effort, in part because it requires long-term monitoring to determine the effectiveness of changes in management. P3Supp4569, 4579-80. 6 The Malheur National Forest Plan can be found at 1Supp001. As produced, its pages are not bates numbers, therefore, Intervenor-Defendants refer to it by its actual page numbers in this brief. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 26 of 65 21- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 P4Supp2863. The bank alteration indicator was developed by the Forest Service to reflect current research findings that 10-30% annual streambank alteration will provide adequate riparian protection, and 15-20% bank alteration causes an improving trend in width to depth ratios. Id. The National Marine Fisheries Service (NMFS) has similarly found that “[t]he best available science indicates that the 10% and 20% bank alteration levels are appropriate in preventing bank destabilization and protecting habitat critical to listed fish.” P4Supp2864. Relying on bank alteration as a measure to protect streams is a very conservative means by which the Forest Service can be assured to recover streams and streambanks over time. Bank alteration is not the equivalent of bank damage. It is a record of the presence/absence of the current year’s disturbance along the greenline. P4Supp2863 (“It is not a measure of the area of streambank altered, but rather an estimate of the percent of the length of bank altered along the greenline based on the presence or absence of a hoofprint….”). Id. Therefore, in using bank alteration as a surrogate for achieving bank stability, the Forest Service is restricting impacts to such a level as to avoid cumulative or carry-over effects that would otherwise retard streambank recovery, and is (as research has shown) recovering streams where they are susceptible to passive recovery. The Malheur Forest Plan provides direction for the entire Malheur National Forest over a long time frame, projecting desired future conditions and resource outputs over 10 and 50 year timespans. FP, IV-1. Therefore, the Forest Service does not anticipate that “all riparian areas in less than desirable condition will have been improved to provide for all riparian-dependent resources” until the year 2039. Id., IV-9. And the time frame for meeting this upward trend target could easily be extended. Projected outputs and activities intended to achieve desired future conditions, including range and stream improvements, are subject to funding received for Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 27 of 65 22- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 implementation. Id., IV-10 (“If funding is significantly different from that called for in this Plan, the output levels are likely to vary accordingly.”). The Forest Service’s efforts toward achieving Amendment 29’s riparian bank stability standard must be viewed within this larger context. The Forest Plan will achieve upward trends in riparian habitats over an extended time frame. See Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at *38-40 (coming to a similar conclusion regarding Wild and Scenic River Plans for the Fremont-Winema National Forest). In sum, as to both the RMOs and Amendment 29 90% bank stability standard, the Forest Service has relied on science, research and technical analysis to develop grazing intensity indicators that it can confidently rely on to achieve these riparian habitat conditions within the time frames set by INFISH and the Forest Plan. C. The Forest Service Grazing Decisions Address and Require Compliance with INFISH and Forest Plan Standards. Each of the permits at issue in this case incorporates the INFISH stubble height, bank alteration, and woody browse indicators, and they are enforceable terms of the grazing permits. The permits also incorporate the indicators required to achieve the Forest Plan’s MA3A riparian goals, and other standards required by Biological Assessments and Biological Opinions. See BB1637-49, BB1845-6, BB1965-6, BB4Supp797-80, BB1841-2, BB1961-63, BB4Supp370- 377, CM53-59, CM045, CM4Supp191-97, DBSG87-101, DBSG0233, FP4Supp1339-45, FP548, FP550, NF274-75, NF319-30, NF4Supp783-89, Ott4Supp464-70, Ott4Supp224-30, Ott379, SC503-509, SC4Supp51-56, SC4Supp57-68, SC4Supp71-78, SC4Supp1020-28, SC4Supp1039- 45. As an example, the Flag Prairie Allotment term grazing permit issued to Joe and Gay Cronin on May 24, 2013, incorporates Forest Plan indicators, PACFISH/INFISH indicators, and other standards that have been identified in Biological Assessments, Biological Opinions, and Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 28 of 65 23- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 letters of concurrence7 for the Flag Prairie Allotment. FP4Supp1345. The indicators are 45% utilization or 4-6 inch stubble height along the (riparian) greenline, light hedging (30-40%) of riparian woody shrubs, and 15-20% bank alteration along the greenline where a “most sensitive riparian area” is present. FP4Supp1344. The Cronins are required to adhere to these indicators as a term and condition of their grazing permit. See, e.g., FP4Supp1339, ¶ 3. Each year, the Forest Service manages grazing allotments for compliance with the indicators. It measures grazing against them, compiles its monitoring results, and outlines recommended changes in an End of Year (EOY) Report to ensure that grazing achieves the indicators. See P3Supp5950-6030 (2006 EOY Report); P3Supp6802-6867 (2007 Blue Mountain EOY Report); P3Supp6986-7029 (2007 Prairie City EOY Report); P3Supp7098-7131 (2008 strategies based on 2007 EOY Report and proper functioning condition (PFC) assessments); P3Supp7363-7401 (2008 Prairie City EOY Report); PSupp7466-7470 (Addendum); P3Supp8195-8229 (2009 EOY Report); P4Supp787-840 (revised 2010 EOY Report); P4Supp3450-3521 (revised 2011 EOY Report); P4Supp5900-6129 (2012 EOY Report); P4Supp7070-7309 (2013 EOY Report); P4Supp6577-6807 (2014 EOY Report); P4Supp11638- 11872 (2015 EOY Report). The recommended changes ensure that livestock grazing will be adjusted to meet indicators when they were not met the prior year. See, e.g., P3Supp7099 (“The 2007 observations, monitoring results, PFC assessments and meeting with permittees were useful to assess the 2007 grazing strategies. … A variety of management tools will be implemented singly or in combination to adjust timing, intensity, duration and season of use for the 2008 grazing season….”); see also P4Supp11803-805, 807-810, 829-833, 835-837, 844-846 (showing results of monitoring, recommendations for annual changes, and results of changes for years 7 Letters of concurrence are determinations issued by the FWS when it agrees with the Forest Service’s evaluation that grazing decisions, as proposed, are not likely to adversely affect bull trout or critical habitat. See, e.g., P4Supp2950-60. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 29 of 65 24- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 2011-2016). Sometimes changes are made to address conditions noted in PFC assessments as well. See P3Supp7099 (addressing 2007 PFC); P4Supp5217 (discussing 2012 PFC assessment that led to the Dollar Basin river corridor fence). In addition, the Forest Service evaluates grazing in consultation with the FWS every five years to comply with the ESA and ensure that it will not adversely affect bull trout habitat and bull trout. See, e.g., P4Supp2812-938; P4Supp2648-811; P4Supp2944-3101; P4Supp11781 (discussing biological opinions and letters of concurrence applicable to the 2012-2016 grazing seasons). The results of these evaluations are incorporated into the annual decisions, as well. See P202 (terms and conditions in biological opinion are to be followed as guidelines for livestock management in watersheds with critical habitat or listed species. In areas without biological opinions, the guidelines in Enclosure B (P208-213) apply); FP4Supp1345 (incorporating biological opinion terms and conditions). Before grazing occurs each year, the agency meets with the permittee to review the applicable standards, whether they were met the previous year, and what adjustments are needed to meet the indicators, and then issues annual instructions and directions consistent with those discussions. See, e.g., FP4Supp1692-1698 (Flag Prairie Allotment 2015 annual instruction letter and meeting minutes); FP4Supp1349-54 (Bluebucket Allotment 2014 annual instruction letter and permittee meeting minutes); DB4Supp739-40, 745-48 (Dollar Basin/Star Glade meeting minutes and annual instruction letter, including specific action items for the 2013 grazing season). The annual instructions are explicit about the need for compliance with the indicators established for the allotment. For example, the 2015 Flag Prairie annual instructions state: Use guidelines will be followed under normal circumstances to meet the allotment resource objectives. It is your responsibility to ensure that the end of season stubble heights and stream bank alteration by livestock are not exceeded. You must take appropriate livestock management actions to ensure end-of-season results. Allotment or pastures that are used in excess of 4-6 inch stubble on the greenline, or that have more than 15-20% raw banks from livestock activity may Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 30 of 65 25- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 be rested, have a reduced season, or have fewer livestock authorized the following grazing season for resource protection reasons. Adverse action (suspension or cancellation) may also be taken against the term grazing permit. FP4Supp1694 (Flag Prairie 2015 annual instructions); see also, e.g., DB4Supp746-747 (2013 annual instructions for Dollar Basin/Star Glade Allotments), BB4Supp395-96 (2012 annual instructions for Bluebucket Allotment). The annual letters also remind the permittees about necessary changes in grazing management, and make those changes a term of the permit that must be met. See, e.g., BB4Supp761 (annual letter outlining action items for 2015 grazing season, and stating, “Livestock grazing activities outside these terms and conditions or instructions may impact the health and viability of these resources. Therefore, I take non- compliance very seriously and will take the appropriate corrective action to assure these entrusted lands are managed appropriately.”). In this way, the Forest Service sets out the INFISH, Forest Plan, and other standards, measures them, evaluates changes needed when they are not met, adjusts grazing and takes enforcement actions so as to ensure that grazing will allow the Forest Service to attain its riparian objectives. D. The Forest Service Is Actively Modifying Grazing Activities in the River Corridors. Plaintiffs’ view is that the Forest Service is failing to manage grazing in the Malheur River and North Fork River corridors. The opposite is true. In addition to applying the INFISH and Forest Plan utilization, bank alteration and woody browse indicators, the Forest has made significant adjustments to grazing within the river corridors. For example: Dollar Basin/Star Glade: In 2013/2014, a river corridor fence was completed on the Malheur River. The river corridor is in 5 years of rest. P4Supp11808; P4Supp5219; see also DB4Supp908 and 912. Bluebucket Allotment: Livestock have no access to the Malheur River. The river corridor is very steep, and the permittees have constructed fences to preclude livestock access. P4Supp11803. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 31 of 65 26- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Central Malheur Allotment: The Malheur River corridor is fenced and is not used by livestock. P4Supp11779. Spring Creek Allotment: Pastures adjacent to the North Fork Malheur River corridor have been in non-use since 2013. SC4Supp1047; P4Supp11844-45; 11847-8. In 2015-2016, the Little Crane Creek fence was improved to protect bull trout habitat. P4Supp11845-6. Grazing was adjusted to respond to exceedances in the South River pasture in 2015. P4Supp11846. North Fork Allotment: The permittee and Forest Service have varied the rotation on the river units and cow numbers, making multiple adjustments to meet indicators. See NF4Supp01094 (discussing various rotations and numbers); P4Supp11836-7 (discussing changes, further adaptations, results, and commitment to make further adjustments). Ott Allotment: The pasture adjacent to the North Fork Malheur River was fenced to prevent livestock access in 2004. See Dkt. No. 94. The pasture continues to be in non-use. P4Supp11841, Ott4Supp952, Ott4Supp810. Flag Prairie Allotment: In 2014, the Forest Service documented bull trout in the River Pasture. P4Supp11832. This discovery followed closely on the implementation of early season grazing and reduced livestock numbers in 2014, and this management adjustment continues. P4Supp11832; P4Supp11832-33; FP4Supp1692; FP4Supp1693; FP4Supp1333; FP4Supp931 (showing herd cut nearly in half). As these examples confirm, the Forest Service is actively managing livestock grazing within the designated river corridors, having fenced the entire Malheur River corridor and large areas of the North Fork Malheur River corridor from livestock and reducing use considerably in other parts of the North Fork Malheur River corridor. The Forest Service is actively managing the river corridors. E. The Forest Service Faces Funding and Resource Constraints That Impact Monitoring. In the mid to late 1990s, the Forest Service was subjected to substantial budget reductions in range programs, resulting in very low intensity or no monitoring of many allotments. P2720. The Forest Service developed a plan to maximize the effectiveness of limited monitoring funds, but preserve flexibility as funding and activities changed. P2722. The Forest Service directed its Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 32 of 65 27- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 staff to spend time on the ground and to exercise discretion to determine monitoring levels. P3386. In many cases, visual observations were anticipated to be sufficient, with up to 50% of pastures monitored for compliance with the stubble height indicator in key areas. P3386, 3389. Over time, the Forest Service has transitioned to monitoring at Designated Monitoring Areas (DMAs), which are selected by interdisciplinary teams to ensure they are representative of livestock impacts across the allotment or pasture. See Exhibit 1, pp. 5-7 (excerpts from the Multiple Indicator Monitoring, Technical Ref. 1737-23 (Revised) 2011 (“MIM”), https://www.blm.gov/nstc/library/pdf/MIM.pdf, other parts of which are attached to Plaintiffs’ MSJ as Exhibit 5). However, the Forest Service continues to be subject to severe funding constraints. The Forest Plan calls for monitoring, but like other efforts specified in the Plan, monitoring must be balanced with many other competing priorities and is limited by available funding. FP, V-6 FP, V-1. And, from the outset, the Forest Plan recognized that its objectives were underfunded: It required a 68% increase in budgets over the 1988-1991 budget level, with the largest increases needed in soil, water, air, fish and wildlife, and range programs to accomplish its plans. Id., V-4. The River Plans were also clear that the monitoring was contingent on funding and that funding would determine monitoring priorities and resulting information flow. P504, P253. Working within this framework, the Forest Service established monitoring plans for the Malheur National Forest for 2012 to 2016. P4Supp3107-110; P4Supp11867-71. Most of the pastures at issue in this case were not a high priority for monitoring because they are not grazed or do not have critical habitat. Id. Plaintiffs are critical of the Forest Service’s monitoring, but the 2012-16 monitoring plans indicate that more monitoring is not necessary on the seven Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 33 of 65 28- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 allotments at issue in this case and reaffirm that the agency lacks resources to do non-critical monitoring activities. F. The Forest Service’s Schedule for Allotment Management Plans Changes Based on Funding and Other Priorities. Under the Federal Lands Policy and Management Act, the Forest Service is authorized to develop and incorporate allotment management plans (AMPs) into a grazing permit, typically during the permit renewal or issuance process. See 43 U.S.C. § 1752(d); see also 36 C.F.R. § 222.2(b). AMPs and permit renewals require an environmental analysis under the National Environmental Policy Act (NEPA) to determine whether they will have a significant impact on the environment. See 42 U.S.C. § 4332(C); 36 C.F.R. § 220.4(e)(1) (the Forest Service applies NEPA procedures to all proposed actions); see also Forest Service Handbook 1909.15, p. 20 (NEPA Documentation Overview), available at https://www.fs.fed.us/cgi- bin/Directives/get_dirs/fsh?1909.15 (wo_1909.15_10.doc). Those analyses, however, require funds. And when it was adopted, the Forest Plan set a contingent schedule for developing AMPs based on available funding. FP, IV-57 (using available funding, prepare AMPs “as soon as possible”) (emphasis in original); id., at V-1 (projects developed to implement the Forest Plan are subject to public demand and the annual budgeting process); id. at V-5 (if funding levels are below needed levels, the Plan objectives cannot be met and the Plan will need to be amended or revised). A few years after the Forest Plan was adopted, funds became extremely limited for grazing allotment renewals, AMPs and the environmental analysis required for those efforts. See P3Supp0310. This led to many revisions of the Forest Service’s AMP and NEPA schedule, each of which was authorized by Congress. See Pub. L. No. 104-19, Sec. 503, 109 Stat. 194 (July 27, 1995); Pub. L. 108-7, Sec. 327, 117 Stat. 276 (February 20, 2003) (P3Supp2885-6); Pub. L. 108-108, Sec. 325, 117 Stat. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 34 of 65 29- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 1241 (Nov. 10, 2003); Pub. L. 113-291, Sec. 3023, 128 Stat. 3292 (December 19, 2014); 43 U.S.C. § 1752(i); see also https://www.fs.fed.us/sites/default/files/media/2014/25/cr-2010- lettersreport-nepa-ecm6411428.pdf. Under the current schedule, an AMP and permit renewal NEPA was scheduled to be completed for the Central Malheur and Dollar Basin/Star Glade allotments in 2016, for the North Fork and Spring Creek Allotment in 2019, and for the Bluebucket, Flag Prairie, and Ott allotments in 2025. Exhibit 2, pp. 10-14 (Forest Service NEPA Schedule, no longer available from, but previously found at https://www.fs.fed.us/rangeland- management/documents/rescission/ NationalAllotmentNEPASchedule2014-2025.pdf). The Central Malheur AMP is complete, and the Dollar Basin/Star Glade is in progress. CM4Supp295; DB4Supp383, 1123 (discussing data collection); DB4Supp556 (management changes will be analyzed “during the NEPA process being conducted”). The Forest Service is also beginning to gather data for the Bluebucket AMP NEPA. See FP4Supp1351. In sum, contrary to Plaintiffs’ claims, the Forest Service is implementing INFISH and the Forest Plan, is seeing upward trends in riparian conditions, is addressing areas of concern, and is working to monitor and prepare AMPs as funding and other priorities allow. ARGUMENT Plaintiffs fail to make or support discrete agency action claims. Theirs is a programmatic attack, over which this Court has no jurisdiction. Further, the Forest Service is using science- based indicators to comply with INFISH and the Forest Plan, and evaluates whether grazing meets the indicators annually, makes adjustments, and documents its decisions. It also evaluates grazing impacts on RMOs through its Biological Assessments. Plaintiffs argue that the Forest Service must update or prepare AMPs, but the law does not require-which means this Court Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 35 of 65 30- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 cannot compel-the Forest Service to do more than it is. The Forest Service is not violating NFMA. Finally, the Forest Service has evaluated grazing impacts in the river corridors and determined that grazing may proceed without substantially interfering with ORVs under set standards. Its grazing decisions comport with these standards and are therefore in compliance with the WSRA. For each of these reasons, Plaintiffs’ MSJ should be denied and, instead, summary judgment should be entered against Plaintiffs’ claims. A. Because Plaintiffs’ Claims Are a Non-Justiciable Attack on the Forest Service Grazing Program, Their Complaint Should Be Dismissed. The right to judicial review under the APA is limited to “final agency actions.” 5 U.S.C. § 704. Parties may not, therefore, seek “wholescale improvement” of a program. Instead, they must direct their attack to a particular agency action(s) that causes them harm. Norton, 542 U.S. 55, 64, citing Lujan Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990). In this case, Plaintiffs’ complaint and motion claim to challenge discrete agency actions, but in fact, Plaintiffs’ case is a programmatic attack on the Forest Service’s grazing program. Plaintiffs raise claims against an unspecified number of grazing decisions, made between “2006 to present,” on seven allotments in the Malheur National Forest. Fifth Complaint (Dkt. No. 400), ¶¶ 83, 94. Plaintiffs define “grazing decisions” to include grazing permits and modification, and annual letters or annual operating instructions, but they fail to identify any decisions by date, name, or number. Id. Instead, Plaintiffs claim that every one of the non- specific agency decisions violates the Forest Service’s “continuing” mandatory duty to protect and enhance ORVs. Id., pp. 22-23. Plaintiffs similarly claim that each of the non-specified grazing decisions violates NFMA because the agency has failed to act consistent with the Forest Plan and INFISH. Id., p. 24. And, in their Prayer for Relief, Plaintiffs ask for broad relief that applies to all of the allotments, without any distinguishing remarks as to any one of the decisions Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 36 of 65 31- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 presumably at issue. Id., pp. 25-26. Plaintiffs’ complaint covers numerous grazing decisions issued over nearly a decade that cover thousands of acres of the Malheur National Forest. It is a programmatic challenge. Plaintiffs’ MSJ takes the same tact. With the exception of one (still fairly generalized) discussion of the Dollar Basin/Star Glade Allotment, see MSJ, pp. 44-46, Plaintiffs’ motion lacks a specific discussion of how an individual grazing decision violates the NFMA. See MSJ, pp. 30-50. Instead, Plaintiffs offer general statements about environmental baseline (MSJ, pp. 33- 34), a table referenced in a footnote that lists (with no discussion) numerous (too many to count) grazing decisions (MSJ, p. 31, n. 17), more lists from Exhibit 4 (which is plagued with errors) that similarly provide no discussion8 (see, e.g., MSJ, p. 38), and sweeping assertions about monitoring and evaluations (see, e.g., MSJ, pp. 38-41, citing to a few examples but failing to discuss with specificity any of the grazing decisions). The absence of evidentiary support for ways in which specific agency decisions may violate the law is proof that Plaintiffs’ substantive claims are against the grazing program, not discrete agency decisions made as part of that program. Plaintiffs’ briefing of their WSRA claim is worse. Plaintiffs do not cite to a single grazing decision. They simply argue that the grazing decisions violated the WSRA “by default.” MSJ, p. 54. It is the Forest Service’s interpretation of how to implement the WSRA across the board that is the real subject of Plaintiffs’ brief. Their case is a programmatic challenge, and though not as broad, it is substantially similar to the challenge rejected in Lujan. Plaintiffs cannot disguise their programmatic challenge by providing a few general parameters on their claims-namely, generally describing hundreds of actions undertaken over 8 Intervenors’ evaluation of Plaintiffs’ Exhibit 4 is in the attached Exhibit 3. Exhibit 4 fails to explain the records behind the numbers, as well, and without this context, Exhibit 4 incorrectly portrays the Forest Service as failing to managing grazing activities. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 37 of 65 32- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 more than a decade relating to more than a half-dozen allotments. Because Plaintiffs’ brief does not specify how individual grazing decisions made during this time frame on these allotments violate NFMA or the WSRA, it is still a programmatic challenge. Plaintiffs do not seek judgment on discrete agency actions; they are attempting to force unfunded, wholesale change across the grazing program. Their claims are a non-justiciable programmatic challenge. Alternatively, Plaintiffs’ requested relief should be denied because the MSJ does not provide evidence that each one of the discrete agency actions was arbitrary, capricious, or in violation of the law. See supra pp. 4-5 (plaintiffs bear the initial burden of proof and must identify facts from the record that entitle them to judgment, and state with particularity the grounds for judgment); see also U.S. v. Dunkel, 927 F2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”), Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483 (9th Cir. 2010) (quoting same in support of its finding that a party’s “hindsight attempt to string together an argument from quotes scattered throughout its opening brief” did not prevent waiver). Therefore, even if the Court were to find Plaintiffs’ claims justiciable, it would not have the grounds from which to decide the case in their favor. Either way, Plaintiffs’ claims should be dismissed. B. Because the Forest Service Is Using Science-Based Indicators to Ensure Grazing Activities Comply with INFISH’s GM-1 and the Forest Plan, the Grazing Decisions Do Not Violate NFMA. Plaintiffs’ primary NFMA argument is that the Forest Service must measure RMOs and bank stability in order to comply with GM-1 and the Forest Plan. MSJ, p. 31. Working from this premise, Plaintiffs contend that the Forest Service’s grazing decisions violate NFMA because they do not discuss how grazing impacts RMOs and Amendment 29’s bank stability standard. Plaintiffs’ argument ignores the Forest Service’s long-standing use of indicators- Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 38 of 65 33- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 stubble height, shrub browse, and bank alteration-as surrogates to ensure streams attain RMOs at a near natural rate of recovery. Plaintiffs also ignore more than a decade of research the Forest Service used to develop the bank alteration standard. As addressed below, it is settled law that the Forest Service may rely on indicators to measure progress toward RMOs and to comply with GM-1. Judge Haggerty has also held that bank alteration is a sufficient proxy for evaluating grazing impacts to streams. The Forest Service’s technical reasons for relying on indicators is documented in the record and supported by science. Plaintiffs’ declarants seek to uproot the Forest Service’s approach, but their opinions are based on a non-applicable standard and lack the scientific safeguards that would allow the Forest Service to replicate (let alone rely on) their advocacy. The grazing decisions, and supporting documentation, confirm that the Forest Service is managing grazing in compliance with INFISH and the Forest Plan. The Forest Service is not violating NFMA. 1. The Forest Service Uses Grazing Indicators to Comply with GM-1. Plaintiffs argue that the Forest Service is violating INFISH because it issues grazing decisions without evaluating “in any way whether streams on the allotments are attaining RMOs and whether authorized grazing would be consistent with Standard GM-1.” MSJ, pp. 31-32. Plaintiffs are incorrect. The Forest Service utilizes indicators as surrogates to ensure its grazing decisions achieve RMOs at a near natural rate of recovery. Supra Factual Background, Section B.1. The reasons for doing so are documented and are based on science and considerations of INFISH’s goals. Supra Id. The Forest Service’s determination to use indicators to comply with GM-1 and INFISH is subject to this Court’s highest deference because it is an interpretation of a land management plan in an area involving a “high level of technical expertise.” Lands Council, 537 F.3d 981, 993; see also LOWD, 883 F. Supp. 2d 979, 990. It is also a well-reasoned Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 39 of 65 34- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 decision, demonstrating that the Forest Service did not suffer from a “clear error in judgment.” Id. at 985; Lands Council, 537 F.3d at 994. The Forest Service’s use of indicators to comply with GM-1 and INFISH is not arbitrary and capricious. This case is nearly identical to the one before Judge Haggerty in Oregon Natural Desert Ass’n v. Tidwell. There, ONDA contended that the Forest Service violated NFMA by authorizing grazing on seven allotments (on the Malheur National Forest) without evaluating RMOs, claiming that “the Forest Service needs to measure RMOs in order to evaluate whether grazing practices are allowing habitat recovery at a near natural rate in order to comply with…GM-1.” 716 F. Supp. 982, 1007. Judge Haggerty disagreed: There “is no legal basis to conclude that the Forest Service must actually monitor RMOs…. PACFISH…expressly noted that changes in riparian conditions could be monitored in lieu of RMOs.” Id. at 1007-08. Plaintiffs misunderstand this holding. See MSJ, pp. 40-41 (suggesting that Judge Haggerty found monitoring to be inadequate where RMOs were not measured). Judge Haggerty found the Forest Service had inadequately monitored the grazing indicators, and therefore lacked sufficient data to be able to comply with PACFISH. 716 F. Supp. 982, 1007-8. He did not hold-contrary to Plaintiffs’ argument-that RMOs must be measured to comply with PACFISH. The Forest Service’s use of indicators as surrogates to achieve RMOs and comply with GM-1 was upheld by Judge Haggerty and is not in violation of NFMA. In any case, Plaintiffs’ argument that RMOs should be measured at the individual pasture level is impracticable. First, RMOs are to be assessed at a landscape or moderate-to-large watershed scale, not at an individual pasture scale. P24-25; see also LOWD, 883 F. Supp. 2d 979, 996-6 (discussing landscape and watershed scale); Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at *33-34 (same). RMO monitoring sites are therefore set at the most downstream Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 40 of 65 35- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 reaches within a watershed where streams are a minimum of 20 times bankfull width with a gradient less of than 3%. P3Supp4569. Such sites are not present in each allotment, let alone in each pasture, and serve no purpose in assessing pasture-level grazing strategies.9 Second, the interim RMOs (which are still being used) are an imprecise measure of stream health because they are not site-specific. P24 (“The components of good habitat can vary across specific geographic areas….” “RMOs should be refined to better reflect conditions that are attainable in a specific watershed or stream reach based on local geology, topography, climate, and potential vegetation.”). A stream may be more or less healthy than compliance with RMOs may predict. As a result, using RMO data to make grazing decisions could lead to adverse results or grazing restrictions that would not move streams toward RMOs. Either outcome is a poor use of resources. Third, RMOs reflect changes gradually, and for this reason, progress toward RMOs may not be evident in a single year or even over a number of years. P24-25. Therefore, frequent measurements of RMOs at a particular site will not necessarily yield useful information. In consideration of this fact, the Forest Service put management changes-compliance with indicators-into place that, when regularly achieved over the long term, will lead to meaningful changes. P202. The Forest Service’s approach recognizes the limits of RMOs monitoring sites. In using indicators to achieve RMOs over time, the Forest Service ensures that grazing will allow for the attainment of RMOs and accomplish INFISH’s landscape level restoration goals regardless of particular RMO measurements in any given year. 9 INFISH monitoring also evaluates the effectiveness of grazing indicators at the landscape or watershed level. This effectiveness monitoring “uses ‘trend’ of long-term indicators of habitat conditions to assess the need for revising management.” P4Supp2708. Effectiveness monitoring is conducted by the PIBO Effectiveness Monitoring Program, which was initiated in 1998 to determine whether INFISH management practices are effective in maintaining or improving riparian habitat. Id. Results from these efforts, through 2015, indicate that conditions have continued to improve. P4Supp2709. This confirms, contrary to Plaintiffs’ perspective, see, e.g., MSJ, p. 36, that grazing indicators being employed by the Forest Service are effective in moving streams and riparian habitat toward the RMOs. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 41 of 65 36- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 In sum, the Forest Service complies with GM-1 by managing for stubble height, woody browse, and bank alteration indicators. These indicators are based on science and were developed to ensure the Forest Service attains RMOs over the long term and at a near natural rate of recovery. The reasoning for the Forest Service’s interpretation of INFISH and for this technical determination is well documented in the record. Therefore, the Forest Service’s determination to use indicators, and the grazing decisions that rely upon this determination, are not arbitrary and capricious. Lands Council, 537 F.3d 981, 993-4. The Forest Service is not required to directly measure RMOs in order to comply with INFISH. 2. The Forest Service Uses Bank Alteration to Achieve Amendment 29’s Bank Stability Standard. Plaintiffs acknowledge that the Forest Service annually monitors for compliance with bank alteration, but contend that the Forest Service must measure bank stability instead to comply with the Forest Plan. Plaintiffs’ Amendment 29 argument fails. As explained above, courts give agencies their highest deference on issues of science and technical evaluations, and may only conclude a decision is arbitrary and capricious when the record demonstrates a “clear error in judgment.” Lands Council, 537 F.3d 981, 993. The Forest Service’s determination to use bank alteration as a surrogate for achieving bank stability is grounded in research and technical evaluations, and is well explained in the record before this Court. Bank alteration is an indicator used to evaluate the effect of livestock grazing on bank stability and channel shape. P4Supp2863. The Forest Service has documented its determination to use the 10-20% bank alteration standard as a surrogate for ensuring progress toward bank stability, and that determination is based on published research. Supra pp. 20-22 (discussing the same). The Forest Service does not stand alone in its use of bank alteration: NMFS has also Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 42 of 65 37- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 concluded that 10 to 20% bank alteration levels prevent bank destabilization and protect critical fish habitat. P4Supp2864. Plaintiffs suggest that the bank alteration standard will allow cumulative damage each year. See MSJ, p. 43 (relying on an extra-record declaration). This assessment misunderstands the bank alteration indicator and negligible impacts from grazing when the 20% threshold is met. A scratch is not a scar and bank alteration is not the equivalent of bank damage. Bank alteration is a record of the presence/absence of the current year’s disturbance along the greenline. P4Supp2863. Its consideration implicates a very conservative standard, limiting impacts to those that will not carry over to the next year. Supra p. 21 (explaining the same). Judge Haggerty evaluated the use of bank alteration as a habitat proxy for “take” of steelhead in Tidwell, 716 F. Supp. 2d 982, 998. Agreeing with NMFS, he found “. . . bank alteration plays a role in streambank stability (an important feature of healthy habitat) and the bank alteration standard is ‘proportional to all of the habitat impacts and … is a standardized and repeatable measurement methodology.’” Id. Despite the potential for inaccuracies in how bank alteration was measured and NMFS’s inability to determine exactly how many fish would be harmed at a specific level of bank alteration, Judge Haggerty upheld NMFS’s determination to use bank alteration “as a useful measure to gauge the intensity of grazing activities and likely impacts on habitat,” noting in particular that the “court must be particularly deferential in situations like this ‘when the agency is making predictions within its area of special expertise, at the frontiers of science.’” Id. at 999, citing Lands Council, 537 F.3d 981, 993. As in Lands Council and Tidwell, this Court should reject Plaintiffs’ challenge to agency scientific determinations-here, the use of bank alteration to attain bank stability. The Forest Service’s technical determination is based on research, is consistent with the determinations of Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 43 of 65 38- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Judge Haggerty and NMFS, and is explained in the record. Id. at 993-4. The Forest Service’s use of bank alteration as a means to achieve Amendment 29’s bank stability standard is not arbitrary or capricious. The Forest Service has not violated NFMA. 3. The Record Establishes That the Forest Service Is Acting Consistent with GM-1 and the Forest Plan. As noted above, Plaintiffs’ secondary NFMA argument is that the Forest Service has not evaluated or documented that its grazing decisions are consistent with GM-1 and the Forest Plan because it does not measure RMOs and bank stability. This argument fails in the first instance because it is founded on Plaintiffs’ incorrect view that the Forest Service may not use indicators to measure compliance. Moreover, the Forest Service does evaluate compliance with the indicators and documents these efforts each year. It also evaluates how grazing impacts the RMOs in its Biological Assessments. The Forest Service’s evaluations are documented and show compliance with GM-1 and the Forest Plan. A project or activity approval document must describe how the project or activity is consistent with applicable plan components. 36 C.F.R. § 219.15. When evaluating a project for compliance with NFMA and the Forest Plan, the Forest Service is not required to explicitly analyze each and every standard of the Forest Plan. LOWD, 883 F. Supp. 2d 979, 994. It is enough that the Forest Service has shown that it has considered the plan’s standards by listing the standards and stating that the project is consistent with them. Id. at 994-5. This approach reflects the presumption of regularity. Without contradicting evidence, the Forest Service is presumed to have acted in accordance with its standards, goals, and guidelines. See Volpe, 401 U.S. 402, 415 (presumption of regularity); Sierra Club, 23 F. Supp. 2d 1132, 1135 (presumption of validity). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 44 of 65 39- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Here, as explained supra in Factual Background, Section C, there is substantial evidence that the Forest Service is acting in accordance with its Forest Plan with regard to the grazing decisions at issue. First, the Forest Service has identified and incorporated the indicators required to achieve RMOs and the Amendment 29 bank stability standard into its grazing decisions. Second, the Forest Service acts annually to achieve those indicators, conducting annual monitoring and making adjustments to grazing strategies where grazing exceeds them. Third, the Forest Service’s evaluations and decisions are reflected in annual meeting minutes, annual authorization letters, End of Year Reports, and biological assessments. The Forest Service is addressing how it will comply and documenting its compliance in its grazing decisions and supporting documentation (i.e., EOY Reports). The Forest Service’s actions go well beyond the minimum standards required of the Forest Service in LOWD. See 883 F. Supp. 2d at 994 (upholding the Forest Service when it merely provided a list of standards and summarily confirmed the project met them). In addition to the work it is doing through its grazing decisions, the Forest Service is evaluating grazing impacts on RMOs in its Biological Assessments. In LOWD, Judge Simon found that where the Forest Service evaluates PCEs and the matrix of pathways and indicators, it has effectively considered the impact of a project on the RMOs. 883 F. Supp. 2d 979, at 996. Here, through its Biological Assessments, the Forest Service evaluates the impacts of its grazing decisions on PCEs for bull trout critical habitat and does so through the FWS’s matrix of pathways and indicators. P4Supp2768-95, P4Supp2900-26; see also P4Supp2657, P4Supp2821 (referring to the same analysis for the 2007-2011 grazing decisions). Therefore, like LOWD, the Forest Service has evaluated the impact of its decisions on RMOs through its Biological Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 45 of 65 40- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Assessments, and this is in addition to its annual evaluation of indicators, which it uses to ensure grazing is consistently allowing the attainment of the RMOs and Forest Plan standards. Despite its documented compliance with GM-1 and the Forest Plan, Plaintiffs suggest the Forest Service’s management of the Dollar Basin/Star Glade Allotment demonstrates a failure to comply. The record confirms just the opposite: The Forest Service’s management of Dollar Basin/Star Glade is a strong example of compliance with GM-1 and the Forest Plan. As a starting point, the most recent grazing permit for Dollar Basin/Star Glade was issued in 2006. DBSG87-101. That permit incorporated the Forest Plan utilization standards. DBSG91. In 2008, the Forest Service issued annual instructions and a grazing permit modification applying INFISH indicators to the Dollar Basin/Star Glade Allotments. See DBSG208-211; DBSG232-33. The indicators were 6 inch stubble height and 20% bank alteration. DBS233. These indicators have been reiterated each year in annual instruction letters. See DBSG925-28; DB4Supp5-8; DB4Supp279-82 (2011); DB4Supp554-57; DB4Supp745-48; DB4Supp906-09; DB4Supp1121-24. Plaintiffs claim that grazing exceeded indicators in 2010, warranting grazing modifications. This is incorrect. Indicators were met in 2010. See P4Supp801 (endpoint indicators met). In fact, grazing was significantly less than the indicators. Use ranged between 0 and 25%. P4Supp807-808. Bank alteration fell well below the 20% indicator. Id. (between 4 and 13%). The end-of-season data assessment found grazing to be less intensive than indicators, demonstrating that grazing was well within the parameters required to move streams toward RMOs. Given the results of the 2010 season, it was not arbitrary for the Forest Service to re- authorize grazing at the same level in 2011. See MSJ, p. 45 (arguing to the contrary). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 46 of 65 41- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Plaintiffs claim that there were no reductions of grazing intensity and no monitoring in 2011. Id., p. 45 (arguing the agency violated GM-1 by authorizing the same level of use and no monitoring). This is incorrect as well: The Forest Service reduced grazing intensity along the Malheur River corridor, working with the permittee to construct drift fences by September 2011 in order to reduce livestock access to the river. P4Supp808; P4Supp3474 (confirming construction of 1.2 miles). The Forest Service also conducted end-of-season monitoring, conducted weekly checks for unauthorized use, and monitored the South Star Glade unit during the season. P4Supp808; P4Supp3473-74. As in 2010, grazing complied with all indicators. Id. In 2012, grazing exceeded indicators on the Malheur River in the Dollar pasture. P4Supp6056-7. Despite no exceedances for the six prior grazing seasons, the agency implemented significant changes. Id. It required the permittee to fence the river corridor so that it could be rested “for a minimum of five years.” P4Supp6057. The fence was in response to a 2012 PFC assessment, conducted in addition to annual monitoring, which indicating a need for more riparian vegetative cover, specifically willows and alder, to improve streambanks and river function. P4Supp5217. As a result of the permittee and agency’s efforts, the Malheur River corridor has been in rest since 2014.10 P4Supp11808 (Malheur River fence completed in 2014, corridor rest); DB4Supp1123. Plaintiffs take issue with the agency not measuring bank stability at this juncture. MSJ, p. 45. This position is unjustified. The agency undertook a significant modification to grazing practices, resulting in exclusion of grazing. Moreover, in a 2014 survey, average bank stability 10 Within this corridor the Forest Service has begun to monitor for wildlife use, which was high enough in 2015 to violate the bank alteration standard without livestock contributions. See P4Supp11809 (high wildlife use), P4Supp11808 (noting bank alteration of 17% (2% above the 15% standard) in the Star Glade Unit within the closed river pasture). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 47 of 65 42- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 across the Malheur River was 97.4%, easily meeting Amendment 29’s 90% bank stability standard. P4Supp7682. Plaintiffs also take issue with a slight increase in AUMs (animal unit months) in 2014 and 2015 in the South Star Glade pasture. Grazing within this unit has been well under the intensity level proscribed to achieve RMOs for many years,11 including 2010 (P4Supp818), 2011 (P4Supp3473, 2% bank alteration), 2012 (P4Supp6054, 6% bank alteration), and 2013 (P4Supp7216, 3% bank alteration). Even with the increase in AUMs, grazing was below indicators in 2014 and 2015. P4Supp6731 (7% bank alteration), P4Supp11808-809 (7% bank alteration, wildlife use caused an additional 10% as measured in November). This continued in 2014 and 2015 with the increased AUMs. P4Supp11808 (grazing met the bank alteration, stubble height, and woody browse indicators in both years). Plaintiffs’ arguments are founded on imprecise and, at times, inaccurate representations of the record. Grazing intensity on the Dollar Basin/Star Glade Allotments was and has been well within the proscribed indicator levels since 2007. Further, the Forest Service took significant measures-fencing off the entire river corridor and resting it for five years-in the one instance where indicators were not met. The Forest Service’s decisions on the Dollar Basin/Star Glade Allotments exemplify the agency’s strong record of compliance with GM-1 and the Forest Plan through regular monitoring, evaluation, and adjustment to ensure grazing is moving toward the attainment of RMOs and Forest Plan standards. The program does not violate NFMA. 11 Plaintiffs’ Exhibit 4, on which Plaintiffs rely extensively, is plagued with errors. Whereas bank alteration was not exceeded in the South Star Glade Unit except in 2007, Plaintiffs’ Exhibit 4 indicates it was exceeded in 2010, 2013, and 2014. Compare Ex. 4, pp. 14-15 with P4Supp807, P4Supp7216, P4Supp11808-09 (explaining wildlife impacts). Similarly, except for the outlier in the Dollar unit in 2012 (which was addressed with five years of rest as noted above), the permittee has met all riparian monitoring indicators-bank alteration, stubble height, and woody browse-since 2007. See, e.g., P4Supp11809 (compliance in 2014, 2015), P4Supp7219 (noting incorrect stubble height measurement for Merit, compliance with all requirements in 2013), P4Supp3474 (discussing compliance from 2008 to 2011), P4Supp807 (2010 compliance). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 48 of 65 43- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 4. Because Plaintiffs’ Experts’ Declarations Are Not Supported by Representative Monitoring Data and Are Founded on the Wrong Standard, They Do Not Aid Plaintiffs’ Case. In a tacit admission that the agency record does not support their position, Plaintiffs proffered declarations to suggest that the Forest Service is maintaining a degraded baseline and preventing upward trends in INFISH RMOs. However, Plaintiffs’ declarants invoke a standard that does not apply to the Forest Service. Their view is that decades of rest are required to recover riparian areas and that the Forest Service should aim for “dramatic changes in riparian vegetation.” See MSJ, p. 37 and p. 10 (citing Third Beschta Declaration). These views are different than the INFISH and Forest Plan’s approach and goals. INFISH, for example, calls for near natural rates of recovery (not actual natural rates), and allows short-term grazing impacts (absent carry-over effects). INFISH also anticipates recovery over a long time frame and accommodates grazing. See LOWD, 883 F. Supp. 2d 979, 992 (INFISH does not “prioritize habitat conservation and restoration at the expense of all other interests.” It balances among competing interests, responding to need to provide a high level of protection of fish habitat without unnecessarily restricting existing permits and other authorizations or the flow of goods and services.). The Forest Plan also contemplates recovery over a long time frame and anticipates grazing will continue during the process. See supra pp. 20-22 (discussing the same, citing FP, IV-1, 9 to 10, 57 to 58). At root, Plaintiffs’ experts disagree with the Forest Service’s judgment about the pace of stream habitat recovery and the means by which it should achieve that pace. As such, their declarations provide no basis for this Court to evaluate the Forest Service’s compliance with its applicable legal standards. Plaintiffs’ declarants rely on site visits in 2013 and 2016, which they recorded in a “Field Review.” See Dkt. No. 418-1 (Attachment D to Dr. Beschta’s Third Declaration). However, this “Field Review” lacks the hallmarks of good science. It provides insufficient information to Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 49 of 65 44- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 identify the exact sites they reviewed, making it impracticable for a third party to undertake an objective review of factors that may be contributing to conditions there-e.g., impacts from wildlife, recreation activities, or historical degradation. Wildlife can be a huge contributing factor. For example, in 2015, the Forest Service determined a wildlife biologist needed to evaluate the South Pasture, North Fork Allotment because of high woody browse where vegetation and bank alteration standards were otherwise met by livestock. P4Supp11837. Similarly, wildlife caused 17% bank alteration in the Star Glade unit when it was closed to livestock in 2015. P4Supp11808-9. Not only does the “Field Review” fail to acknowledge these confounding factors; it omits information necessary for other parties to assess these advocates’ select findings.12 Similarly, these advocates’ “Field Review” suffers from apparent sampling errors. It does not demonstrate that the reviewed sites were representative of pasture conditions - a basic requirement for the Forest Service’s designated monitoring areas. See MIM, pp. 7-8. It also lacks data as to the length of the sites, and supplies no information about whether its photographer was even attempting to fairly represent the sites or was simply recording the worst conditions. Without this information, the sites cannot be said to be indicative of grazing impacts or grazing management across the numerous pastures and multiple allotments at issue in this case. Contrast, for example, the “Field Review” photographs of the North Fork Allotment with photographs taken in July 2015 at the North Fork Allotment DMA by the Forest Service range technician. NF4Supp1119-24. These photos show a well-vegetated, healthy river system, which 12 Plaintiffs disparage the Forest Service for failing to measure RMOs, but Plaintiffs’ experts provide no RMO data for any of their selected sites. Nor have they provided data of livestock use at the sites depicted. Therefore, by Plaintiffs’ own logic, their experts may not draw any conclusions as to how grazing management is impacting the selected sites. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 50 of 65 45- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 support the technician’s determination that the pasture “looked real good with light grazing.” NF4Supp1119. NF4Supp1123 (North Fork Allotment, North River Pasture, from lower DMA site). Photographs of another location on Elk Creek, which the “Field Review” claims is degraded, also show a healthy riparian system. P5Supp124, 125 (June 2015 Elk Creek, North Fork Allotment, North River Pasture). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 51 of 65 46- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 52 of 65 47- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 These photographs are a stark contrast to those submitted by Plaintiffs’ experts, and- unless this Court is to question the Forest Service’s competence of assessing grazing over an entire allotment-highlight that Plaintiffs’ experts are engaged in advocacy rather than science. Grazing impacts can and do vary across an allotment. It is for this reason that the Forest Service conducts its monitoring at representative monitoring sites, which when properly located, capture representative effects of grazing and give the agency the information it needs to adjust grazing so as to achieve RMOs and Forest Plan standards. See MIM, p. 8. Because Plaintiffs’ experts did not use the Forest Service’s representative sites and the “Field Review” lacks any indicia that the sites they did choose were generally representative of conditions in the river corridor, the sites cannot be viewed as representative of the grazing program at issue in this case. Evidence of Plaintiffs’ declarants’ bias also is apparent in their failure to acknowledge that pastures denoted in their Field Review have undergone significant grazing management changes. Take, for example, the Dollar Unit. The entire Malheur River corridor in the Dollar Basin Allotment, including in the Dollar Unit, was fenced in 2014 and 2015, and has been excluded from grazing for now three years. P4Supp11808; DB4Supp1123. Unlike objective experts, Plaintiffs’ declarants-like Plaintiffs themselves-ignore this significant management change, portraying the area as being under the continued influence of livestock grazing when in fact, it was not.13 In sum, Plaintiffs’ experts’ declarations and their Field Review do not apply the pertinent legal standards and lack the hallmarks of real science. They are not objective and so should receive no weight in these proceedings, whether to explain the agency’s record or establish omissions therefrom. 13 It is also troubling that Plaintiffs and their declarants have relied in part on the observations of Christopher Christie, who has been found to be “less than fully trustworthy.” ONDA v. Tidwell, Case No. 07-cv-1871-HA, Dkt. No. 455 (Order, March 15, 2010). Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 53 of 65 48- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 C. The Grazing Decisions Comport with the Forest Plan’s Narrative Goals and Standards. Plaintiffs also assert that the Forest Service’s grazing decisions violate various Forest Plan narrative standards.14 This argument is flawed for two reasons. First, the grazing decisions do in fact apply the methods the Forest Service has determined appropriate to achieve the Forest Plan’s goals and standards. See supra,Argument, Section B. Plaintiffs’ conclusions to the contrary simply reflect their own (unfounded) view of the cause for current conditions and their disagreement with the Forest Service’s use of indicators to attain RMOs and the bank stability standard. Second, Plaintiffs offer no evidence to overcome the presumption of regularity-that is, that the Forest Service properly respected its goals and standards when it issued its grazing decisions. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (presumption of regularity); County of Del Norte v. United States, 732 F.2d 1462, 1468 (9th Cir. 1984) (“In the absence of clear evidence to the contrary, courts presume that public officers properly discharge their duties ….”). As explained above, the Forest Service has acted consistent with the Forest Plan, and its goals and standards. For these reasons, the Forest Service’s decisions comply with the Forest Plan. D. Because the Forest Service Has Discretion to Set and Adjust Its Allotment Management Plan Schedule, Plaintiffs Cannot Prevail on Their “Failure to Act” Claim. Plaintiffs argue that the Forest Service’s failure to prepare and update allotment management plans (AMPs) violates NFMA.15 MSJ, p. 50. However, the Forest Service has sole discretion regarding the priority and timing for each AMP and the accompanying environmental analysis, based on the environmental significance of the grazing allotment and available funding. 14 Plaintiffs characterize one of the narratives as a standard when it is in fact a goal. Compare MSJ, p. 48 with FP, IV-55. 15 Plaintiffs do not break this failure to act claim out from their NFMA arbitrary and capricious claim, though it falls under a completely distinct standard of review. Fifth Complaint, ¶¶ 90-94. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 54 of 65 49- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 43 U.S.C. § 1752 (i); see also W. Watershed Project v. BLM, 629 F. Supp. 2d 951, 969-973 (D. Ariz. 2009) (discussing the predecessor to 43 U.S.C. § 1752(i)). Congress has for many years recognized that budgets and changing priorities constrain the Forest Service’s ability to complete grazing permit renewals and the environmental assessments that accompany them. See supra, Factual Background, Section F. Further, the Forest Plan is clear that its AMP schedule is contingent on funding and other priorities. Therefore, as was the case in Norton, this Court is not empowered to compel the agency to develop AMPs by a set time or on a set schedule, nor is it empowered to compel the Forest Service to comply with its highly contingent Forest Plan schedule. 542 U.S. 55, 64, 70-72; see also Gallatin Wildlife Ass’n v. United States Forest Serv., 2015 U.S. Dist. LEXIS 96987, at * 21-24 (D. Mont. 2015) (the Forest Service does not have to update an AMP or conduct the related NEPA assessment at a date that precedes the Secretary of Agriculture’s NEPA schedule). In Norton v. S. Utah Wilderness Alliance, the Supreme Court held that “failure to act” claims are only cognizable “where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” 542 U.S. at 64 (emphasis in original). Here, the issues are whether and when action is required. While the regulations may require AMPs, see 36 C.F.R. § 222.2(b), they do not provide a time frame, instead leaving the Forest Service discretion on when, among its many competing priorities, it utilizes its limited resources to act. Therefore, as in Norton, this Court is not empowered, by the terms of any statute or regulation, to compel the agency to develop AMPs by a set time or on a set schedule.16 16 Plaintiffs’ Fifth Complaint ¶94 includes a claim that the Forest Service’s issuance of grazing decisions with AMPs is arbitrary and capricious, but Plaintiffs do not support that claim with law, facts, or analysis in their MSJ. Plaintiffs are not, therefore, entitled to judgment in their favor on this part of their claim because they have not met their burden of proof. See Celotex, 477 U.S. 317, 331. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 55 of 65 50- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Nevertheless, Plaintiffs cite to the TRAC factors, adopted by the Ninth Circuit, as grounds from which to argue that the Forest Service has unduly delayed the AMPs. See MSJ, p. 52, citing Telecomm Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984). Plaintiffs’ only factual argument in support of the TRAC factors is their reference to the Forest Plan’s AMP funding-contingent schedule and Plaintiffs’ view that the existing AMPs play no role in guiding Forest Service management (an assertion that is likely to be contested by the Forest Service). MSJ, pp. 52-53. However, the delays are a result of limited funding and changes in environmental priorities, and Congress has explicitly authorized the Forest Service to reprioritize grazing allotment planning and related environmental analyses for this reason. See 43 U.S.C. § 1752(i). The Forest Plan’s AMP schedule is also subject to available funding and other constraints. FP, IV-57 (using available funding, prepare AMPs “as soon as possible”) (emphasis in original); id. at V-1 (projects developed to implement the Forest Plan are subject to public demand and the annual budgeting process). Schedule revisions based on limited funds are explicitly contemplated by the Forest Plan. Id. at V-5 (the Forest Supervisor can change the implementation schedules to reflect budget shortfalls). In addition, the Forest Service has already incorporated each of the requirements necessary to meet Forest Plan standards and RMOs into the grazing decisions and is managing for compliance with these requirements. An order to develop AMPs is not necessary to provide the protections Plaintiffs seek. Under these circumstances, even if their AMP claim was justiciable, Plaintiffs cannot support their claim that the Forest Service unreasonably delayed the AMPs. The Court cannot compel the Forest Service to prepare AMPs or require that it do so at a certain pace. Norton, 542 U.S. 55, 64. Furthermore, where, as here, the Forest Plan makes a statement about what it plans to do, but that plan is based on available funds and overall Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 56 of 65 51- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 priorities, the plan cannot be made the basis for suit under the APA. Id. at 70-72. Plaintiffs’ NFMA/AMP claim should be denied. E. Because the Wild and Scenic Rivers Act Allows the Continued Use of Designated River Corridors, and the Forest Service Determined Grazing Will Not Impair ORVs, the Grazing Decisions Are Not Arbitrary, Capricious, or in Violation of the Law. Plaintiffs’ final claim is that the Forest Service has violated the Wild and Scenic Rivers Act (WSRA) in two ways: First, Plaintiffs argue that the Forest Service violated the WSRA because it is failing to meet the INFISH and Forest Plan grazing standards, which are grazing management standards for the River Plans. Second, Plaintiffs argue that the WSRA grazing standards are insufficient to meet the “protect and enhance” requirement in the WSRA. Plaintiffs’ WSRA claim fails for the following reasons. Plaintiffs’ claim that the Forest Service is not meeting INFISH and Forest Plan standards, and that this equates to a WSRA violation, fails for the same principal reasons that their NFMA claim fails. The Forest Service’s grazing decisions are being made in compliance with the INFISH and the Forest Plan standards.17 See supra Argument, Section B. Second, the WSRA does not require the Forest Service to prohibit grazing, even when it impacts ORVs (outstanding resource values), in the river corridors. It may allow uses that do not substantially interfere with ORVs. The Forest Service evaluated this issue and determined grazing would not substantially interfere with the ORVs when done in compliance with the Forest Plan’s standards. Third, Plaintiffs misunderstand the grazing standards the Forest Service applies and the holding in Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008). The grazing standards are not improperly reactive. Finally, the Forest Service has nearly eliminated grazing from the river 17 Because these issues were previously addressed, Intervenors do not address them further here. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 57 of 65 52- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 corridors. By any measure, these actions show it is actively engaged in protecting ORVs. Plaintiffs’ WSRA claim should be denied. Plaintiffs’ claim is first premised on the idea that the Forest Service may not allow any grazing because doing so would cause degradation of the ORVs in contravention of the “protect and enhance” requirement of the WSRA. MSJ, p. 56. The plain language of the statute and subsequent case law make clear, however, that the protect and enhance requirement is not to be viewed in isolation. The WSRA requires agencies to manage a designated river in a manner that will “protect and enhance the values which caused it to be [designated] without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. §1281(a). The WSRA therefore contemplates uses and continuation of uses that do not substantially interfere with a designated river’s outstanding resource values, even when they have some impact on the ORVs. Ore. Wild, 2016 U.S. Dist. LEXIS 79006 at *36-37. “[A]n agency can protect and enhance river values while simultaneously permitting uses that do not serve those goals.” Id. The Forest Service’s interpretation of the WSRA to allow continued grazing is supported by Hells Canyon Alliance v. U.S. Forest Service. There, the plaintiffs challenged the use of motor boats within a scenic river. 227 F.3d 1170, 1178 (9th Cir. 2000) as amended (Nov. 29, 2000). Though the boats indisputably reduced the river’s ORVs, the Ninth Circuit concluded that they did not substantially interfere with the ORVs. Id. Even a decline in scenic value did not establish that the motorized uses substantially interfered with the river’s values. Id. Similarly, in Ore. Wild, evidence that grazing disturbed fisheries and scenic values did not “lead inexorably to the conclusion” that the Forest Service had violated the WSRA by permitting livestock grazing within a scenic river corridor. Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 58 of 65 53- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 *37, citing Hells Canyon, 227 F.3d at 1177. The Forest Service can comply with the requirement to protect and enhance ORVs even when there is some impact from grazing on ORVs. The 1982 Secretarial Guidelines, to which Plaintiffs cite, are not to the contrary. See MSJ, p. 56. Under the Guidelines, the Forest Service may provide for resource uses that do not adversely impact or degrade river values. 47 Fed. Reg. 39,454, at 39,458-459. The Guidelines therefore confirm that the Forest Service may allow grazing within the river corridors so long as it does not substantially interfere with the ORVs established for each of the river corridors at issue. For all of these reasons, the Forest Service may lawfully interpret the WSRA’s protect and enhance requirement to allow grazing to continue within a river corridor despite some impacts from grazing on the ORVs. Plaintiffs seem to acknowledge the validity of this interpretation but still argue that grazing is impermissibly degrading the ORVs because the grazing standards are “improperly reactive.” MSJ, p. 55. But the Forest Service’s NEPA decisions accompanying the River Plans specifically evaluated grazing impacts within the river corridors and determined that grazing could continue without substantially interfering with - i.e., without degrading - the rivers’ ORVs. See P0506-521. Plaintiffs are incorrect in asserting otherwise. See MSJ, pp. 55, 58 (arguing that the Forest Service standards are reactive and that it has never completed NEPA review of the impacts of authorized grazing). In the Malheur River NEPA decision, the Forest Service acknowledged that there were unsatisfactory riparian conditions, but also found that Alternative 5-which became the River Plan-allowing grazing under certain management standards was the best option to meet the requirement to preserve, protect, and enhance the ORVs. See, e.g., P507 (describing reason for selecting Alt. 5), P509 (noting some unsatisfactory Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 59 of 65 54- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 conditions), P521 (explaining Alt. 5 provided for better grazing management). For the North Fork Malheur River, the Forest Service similarly determined that the selected Alternative 5 would allow for better grazing management and control of cattle, and was the most balanced alternative to provide the means to achieve the long-term protection and enhancement of outstandingly remarkable values. P260-61. Plaintiffs are simply incorrect to assert that the Forest Service has never evaluated grazing impacts within the river corridors. To the contrary, Plaintiffs’ position was considered and rejected because grazing, conducted under the management regime of the River Plan, could continue without substantial interference with the rivers’ ORVs, and in compliance with the WSRA’s “protect and enhance” requirement. In light of this NEPA review, Or. Natural Desert Ass’n. v. Singleton, 47 F. Supp. 2d 1182 (D. Or. 1998), upon which Plaintiffs rely, is inapposite to this proceeding. In that case, the BLM assumed that grazing would continue without undertaking any analysis as to whether doing so would comply with the “protect and enhance” requirement. Id. at 1191-92. Here, in contrast, the Forest Service has undertaken the necessary analysis and concluded that grazing may continue, in compliance with the Forest Plan standards, without substantial interference with the ORVs and in compliance with the “protect and enhance” requirement. Plaintiffs go to some length to try to paint the GM-1 standard as improperly reactive because it requires the Forest Service to modify grazing when it retards attainment of RMOs. MSJ, p. 55. Plaintiffs fail to comprehend that the grazing standards the River Plans relied upon to determine that grazing would not substantially interfere with ORVs were the utilization standards adopted by the Forest Plan for MA3A in 1990. This is because INFISH and GM-1 were not adopted until 1995, more than two years after the River Plans were. Plaintiffs’ arguments concerning the GM-1 standard are therefore irrelevant. The Forest Plan utilization Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 60 of 65 55- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 standards apply and, according to the Forest Service’s analysis, protect the river corridors regardless of the pace towards which RMOs are being attained under the GM-1 standard. Moreover, even if GM-1 is the applicable “default” standard, as Plaintiffs claim, it would not be “improperly reactive” under the holding in Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008). Plaintiffs misinterpreted this case. See MSJ, pp. 55 -56. In Kempthorne, the National Park Service failed to describe an actual level of visitor use that would not adversely impact the Merced River’s ORVs. Id. at 1034. The court found the Service’s approach to be reactionary because the agency had no standard against which to measure impacts to the ORVs. Id. (Emphasis added.) Here, in contrast, the Forest Service has established standards against which to measure grazing impacts to the riparian habitats that support the ORVs designated in the River Plans. See P495-6, P502, P509, P514; P245-6, P251, P257, P263 (the Forest Plan grazing standards are to be used to monitor range resources in the river corridor). Therefore, neither the River Plan, nor the grazing decisions that implement the River Plan standards, are improperly reactive under Kempthorne- both have standards against which the Forest Service can measure impacts to ORVs. Nor can Plaintiffs leverage any supposed current failure to achieve RMOs and Forest Plan standards into an argument that the Forest Service is failing to protect and enhance the rivers’ ORVs. Both River Plans contemplate a long-term progression toward desired future conditions over the course of many years, and are further subject to budgetary constraints. See P491-94, P239-45 (desired future conditions are not anticipated to be met until 2043); P504, P253 (noting budget and funding constraints). Under the terms of the River Plans, desired future conditions are an anticipation of what the river will look like if the management direction contained in the River Plans is implemented over the course of fifty years. See P239, P494. Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 61 of 65 56- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 Indeed, it is not until 2043 that the Plans expect riparian vegetation to be in satisfactory condition and close to site potential, for grazing utilization to meet Forest Plan standards, and for reduced or few conflicts between cattle and recreationists. P243, P494. The Malheur River Plan does not call for improved watershed conditions and bull trout to be found in portions of the river until 2043. P492. And similar statements are found in the North Fork Malheur River Plan. P240-41. With these time frames in mind, the Forest Service’s efforts here are well ahead of schedule, and cannot be said to be inconsistent with the River Plans or WSRA. See Ore. Wild, 2016 U.S. Dist. LEXIS 79006, at *35-38 (finding against plaintiffs where River Plan guidelines were timed to meet desired future conditions in the long term and plaintiffs failed to present evidence that grazing was to blame for habitat conditions that deviated from the RMO); see also Norton, 542 U.S. 55, 71-72 (mandating that the agency acting faster “would lead to pervasive interference with [the agency’s] own ordering of priorities” and “ultimately operate to the detriment of sound environmental management.”). Plaintiffs’ final argument is that the Forest Service must, from time to time, reexamine its initial determination that grazing under the River Plan standards will protect and enhance ORVs in the context of a NEPA review. See MSJ, p. 57. This argument is also misplaced. Plaintiffs’ argument is based on their inference that Judge Clarke’s holding in Ore. Wild was conditioned on a re-evaluation of grazing impact in a 2004 environmental assessment. Id., pp. 57-58. Plaintiffs’ inference is incorrect. Judge Clarke’s decision simply acknowledged that in both the River Plan and the subsequent environmental analysis, the Forest Service came to the same conclusion and, in both instances, the conclusions were not arbitrary or capricious or in violation of the WSRA. Ore. Wild, 2016 U.S. Dist. LEXIS 79006 at *37-38. Here, as in Ore. Wild, the Forest Service has acknowledged the potential for grazing to impact river habitat and the ORVs, Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 62 of 65 57- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 but it has also concluded that, when conducted under certain standards, grazing is compatible with WSRA’s protect and enhance requirement, and it is implementing those standards in order to afford those protections. The Forest Service has made a “reasoned judgment on the proper balance of competing uses for the river corridor.” Ore. Wild, 2016 U.S. Dist. LEXIS at 38, citing Norton, 542 U.S. at 58. Finally, to the extent there remains any concern that the Forest Service is not actively managing the river corridors to protect and enhance the ORVs, we need only consider the many actions the agency has taken in the river corridors to restrict, reduce, and remove grazing. See supra Factual Background, Section D. As a result, the entire Malheur River corridor and most of the North Fork river corridor at issue in this case are excluded from livestock, with much of the remainder is subject to non-use for resource protection and significantly shortened grazing periods. Id. Plaintiffs are wrong in claiming that the agency is not actively protecting and enhancing ORVs in the river corridor. In sum, the WSRA allows the Forest Service to lawfully determine that grazing may continue within the river corridors. Here, the Forest Service evaluated this issue, and determined that grazing could continue in compliance with certain standards. The Forest Service has and is implementing these standards through grazing decisions. Moreover, the Forest Service has eliminated or significantly reduced grazing in the corridors since the River Plans were adopted. For all of these reasons, Plaintiffs’ claims that the Forest Service’s grazing decisions violate the WSRA should fail, and Plaintiffs’ WSRA claim should be dismissed. CONCLUSION In summary, Plaintiffs claims should be dismissed and judgment should be issued in favor of Defendants and Intervenors. Plaintiffs’ claims are non-justiciable as a programmatic Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 63 of 65 58- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 attack and lack sufficient evidence for a favorable judgment, or fail to comprehend the method by which the Forest Service is acting to comply with INFISH and the Forest Plan’s standards and ignore the Forest Service’s considered determination that grazing may continue in the river corridors. Plaintiffs’ arguments are premised on a particular view of grazing, but their view of the Forest Service’s grazing program is contrary to the record. Further, if allowed to carry out their agenda to the fullest extent, Plaintiffs would have this Court subvert the agency’s careful balance amongst multiple priorities and demands on its limited resources, and ban grazing not only in the river corridors (where it is already largely excluded) but also across entire allotments. This Court should follow the Supreme Court, Ninth Circuit and fellow Oregon District Court judges’ analyses and opinions in similar cases instead, and deny Plaintiffs’ claims. DATED this 10th day of February, 2017. SCHWABE, WILLIAMSON & WYATT, P.C. By /s/ Elizabeth E. Howard Elizabeth E. Howard, OSB 012951 Of Attorneys for Intervenor-Defendants Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 64 of 65 59- INTERVENOR-DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PDX\128656\203426\EEH\19843079.5 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7-2(b)(2), the undersigned hereby certifies that this preceding memorandum contains 16,072 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits and any certificates of counsel. January 30, 2017, Intervenors and Defendants filed a motion (Dkt. No. 433) seeking leave for them to file over-length opening briefs of not more than 19,000 words. On January 31, 2017, the Court granted this request (Dkt. No. 434). DATED this 10th day of November, 2017. SCHWABE, WILLIAMSON & WYATT, P.C. By /s/ Elizabeth E. Howard Elizabeth E. Howard, OSB 012951 Of Attorneys for Intervenor-Defendants Case 3:03-cv-00213-PK Document 435 Filed 02/10/17 Page 65 of 65 RIPARIAiI AREA MA¡IAGEMENT MULTIPLE ATOR Exhibit 1 to Intervenor Defendants Cross MSJ Page 1 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 1 of 7 Production services provided by: lnformation and Publishing Services Bureau of Land Management National 0perations Center P.0. Box 25047 Denver, C0 80225-0047 Copies available from: Printed Materials Distribution Service Fax: 303-236-0845 Email : BLM_N0C_PMDS@blm.gov or online at: hn p / / w w w. b I m. g ov /te ch ref e re n ce s BLM/0C/sT-1 0/003+1 737+REV Exhibit 1 to Intervenor Defendants Cross MSJ Page 2 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 2 of 7 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND 5TREAMSIDE VEGETATION CONTENTS I.INTRODUCTION .. Il. SELECTTHE DESTGNATED MoNtToRlNG AREA (DMA) A. Determ ine Monitoring Objectives. B. Stratiflt the Stream Reach C. Establish the DMA D. Set Up the DMA. . 1. Select a Random Starting Point . 2. Markthe DMA.. E. Follow Monitoring Guidelines and General Procedures O -lr-t z. --ll,/ì 1 5 5 5 7 9 9 9 1. Determine Which lndicators to Monitor 2. DetermineWhen to Monitor..... 3. Determine How Often to Monitor. III. LOCATE ÏHE GREENLINE A. The Significance of Monitoring at the Greenline. B. Using Rules to Establish the Greenline Location 1. Defining the Greenline. . . . . 2. Placing the Monitoring Frame on the Greenline 3. Greenline Rules. . IV. MEASURE INDICATORS UsING SYSÏEMAÏIC PROCEDURES AND METRICS A. Systematic Procedures B.lndicators 1. Stubble Height 2. Streambank Alteration 3. Woody Species Use. . . 4. Greenline Composition 5. Woody Species Height Clas . 6. Streambank Stability and Cover 7. Woody Species Age Class 8. Greenline-to-Greenline Width (GGW) 9.Substrate 10 10 11 12 13 13 14 14 15 16 21 21 .23 .23 .27 .34 .39 .44 .47 .51 .54 .58 .6410. Residual Pool Depth and Pool Frequency Yil Exhibit 1 to Intervenor Defendants Cross MSJ Page 3 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 3 of 7 MUtTtpLE tNDtCAT0R M0NtT0RtNG (MtM) 0F STREAM THANNELS AND STREAMSIDE VEGETATI0N V. USETHE DATA ENTRY AND ANALYSIS MODULES ANDTHE MIM DATABAsEF- UJt-z. O A. lntroduction. . . . . . . . B. Data Entry Module C. Data Analysis Module D. PFCValidation .... E. MIM Database VI. ANALYZE, INTERPREI AND EVALUATE MONITORING DATA. A.lntroduction. ... 1. Precision 2. Ability to Detect Change at a DMA B.Training...... C. lnterpretation and Evaluation 1. Elk Creek .69 .69 .69 71 72 73 2. Hardtrigger Creek. 75 75 75 76 76 77 77 78 79 79 81 97 D. Trend Assessment E. Adaptive Management. . . . . APPENDIX A: GREENLINE EXAMPLES APPENDIX B:RE(ORDING FIELD DATA APPENDIX C: EQUIPMENT APPENDIX D: STREAMBANK ALTERATION EXAMPLES 107 APPENDIX E:STREAMBANK STABILITY AND COVER EXAMPLES 111 APPENDIX F: TESTING PREC|S|0N AND ACCURACY AND DETECTING CHANGE . . . . 119 APPEN DIX G: GREEN LINE-TO-GREEN LIN E WIDTH (GCW) EXAMPLES 133 APPENDIX H:PLANT L|ST INFORMAï|0N .. 137 GLOSSARY 145 103 Yill LITERATURE CITED 149 Exhibit 1 to Intervenor Defendants Cross MSJ Page 4 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 4 of 7 MULTIPTE INDICATOR MONITORING (MIM) OF STREAM (l.lANNELS AND SIREAMSIDE VEGETATION C. Establish the DMA A DMA is a permanently marked segment of a stream at least 110 m long that has been selected for monitoring. Longer segments may be needed for monitoring larger streams (having a greenline-to-greenline width or GGW of more than 5.5 m). For such streams, the DMA should be at least two meander lengths or approximately 20 times the GGW. For example, a DMA on a stream segment with an average GGW of 8.3 m would be 8.3 m x 20, or 166 m in length. The DMA concept was initially established for grazing management applications, but DMAs may also be used to monitor recreation impacts, the effects of roads, and other activities. It is important that DMAs are established by an interdisciplinary team of highly erperienced personnel with knowledge of the management area. There are three types of DMAs: . Representative DMA: A representat¡ve DMA is a monitoríng site in a riparian complex that is representative of a larger area. This is the most common type of DMA used by land managers. Representative DMAs should be located within a single riparian complex. When more than one riparian complex occurs in a management unit, the DMA should be placed in the riparian complex that is the most sensitive to management influences. The premise is that ¡f the DMA is placed in the most sensitive complex and that complex is being monitored and managed to achieve desired conditions, then the other less sensitive complexes will also be managed appropriately. The criteria for selecting representative DMAs are that: - The riparian complex for the DMA is selected by an experienced interdisciplinary team. - The DMA is located in a complex that represents and is accessible to the management activities of interest. - The DMA is randomly located in the riparian complex that is the most sens¡tive t0 the management activities of interest. When the most sensitive riparian complex is spatially discontinuous within a management unit (i.e., multiple subsections or reaches of the same complex are interrupted by other complexes), the subreach selected for the DMA location is randomly chosen. 7 Exhibit 1 to Intervenor Defendants Cross MSJ Page 5 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 5 of 7 =â U É, L' =.æ O F z O =ô ¡¿¡ l- z\, t¿¡ô U 4 F t¿¡ -¡t¿¡ MULTTPLE tNDrCAr0R M0NtT0RTNG (MrM) 0F STREAM tHANNEtS AND STREAMStDE VEGETATT0N - Within the most sensitive complex, the DMA is located on a site that is sensitive to disturbance and is not located on reaches impervious to disturbance (for monitoring streambank stability and streambank alteration). Such reaches may be appropriate for monitoring woody species age class and woody species use. - The DMA will respond to the management influence of interest and resource objectives can be achieved at the DMA; i.e., the site has the potential to respond to and demonstrate measureable trends in condition resulting from changes in grazing management 0r other management activities influencing stream channels and riparian vegetation (also applicable to a reference DMA). - The gradient of the stream reach at the DMA is generally less than 4 percent. The gradient may exceed 4 percent if the reach has a distinctly developed floodplain and the riparian vegetation heavily influences channel stability (also applicable to a reference DMA). - The DMA is located outside of a livestock concentration area. DMAs should not be located at water gaps 0r locations intended for livestock concentration or in areas where riparian vegetati0n and streambank impacts are the result of site-specific conditions (such as along fences where livestock grazing use is not representative of the riparian area). These local areas of concentration may be monitored to address highly localized issues if necessary (in which case, they would be described as critical DMAs as defined in the next section). - The DMA is free from the influence of compounding activities. DMAs should not be located in areas compounded by activities that make it difficult to establish cause- and-effect relationships. For example, an area used heavily by both recreationists and livestock would not make a good DMA to determine the effects of livestock grazing on stream conditions. . Critical DMA: A reach that is nof representative of a larger area but is important enough that specific information is needed at that particular site is a critical DMA. Critical DMAs are monitored for highly localized purposes and to address site-specific quest¡ons. For example, small critical spawning reaches may be monitored when there is concentrated livestock use. Extrapolating data from a critical DMA to a larger area may not be appropriate within the complex containing the critical area. A critical DMA does not have to meet the criteria for a representative DMA. I Exhibit 1 to Intervenor Defendants Cross MSJ Page 6 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 6 of 7 MULTIPLI INDITATOR MONITORING (MIM) OF STREAM (l.lANNELS AND STREAMSIDE VEGETATION . Refelence DMA: A reach chosen to obtaÍn reference data usefulfor identifling potential condition and for establishing initial desired conditÍon objectives for a similar riparian complex is a reference DMA. A common example is a grazing exclosure where livestock access to the stream is restricted. Ungrazed references used for reference DMAs need to be carefully analyzed to ensure their usefulness as a comparison. Reference DMAs meet many of the same criteria as representative DMAs. When the monitoring objective is to assess management effects over time, both a representative DMA and reference DMA might be used. For example, referring back to figure 1, complex A could be chosen as the reference DMA since it is outside of the grazed unit and complex B as the representative DMA since it is common within the pasture and comparable in channel and vegetation characteristics to the reference complex. lf the monitoring objective is to assess management effects on cutthroat trout habitat, a critical DMA might be established in complex C where spawning 0r some other critical life history requirement is concentrated. The number of DMAs per grazing unit depends on the resource values in the area. Usually, one measured DMA per pasture is adequate.Supplemental DMAs, with photographs only, may be included in addition to the measured DMA to validate that the representative DMA actually is characteristic of the conditions throughout the complex. D. Set Up the DMA l,Select o Rondom Starting Point: Randomly locate the starting point (lower end) of the DMA within the selected complex. A good way to randomly select the starting point is to measure the total length of the stream in the selected complex, subtract 110 m from the total length of the stream, then select a random number between 1 and the difference. For example, if the stream within the complex is 465 m, a random numberbetween 1 m and 355 m (465 m - 110 m = 355 m) would resultin a random starting point. When the location has been determined, check the site against the DMA criteria. lf the DMA does not meet the criteria, another random point is selected and the process is repeated. 2,Morkthe DMA: 0nce the DMA is selected, a permanently marked DMA sample reach is established. The following procedure should be followed when establishing the reach: a. Permanently Malk the lower and Uppu Ends of the Sample Reach with Markers: Place the lower marker (starting point) on the left-hand side (looking rñ rn -l-{¿ m ff rn2 6r = -{ U =Oz =aÐ =dl rrt I = I Exhibit 1 to Intervenor Defendants Cross MSJ Page 7 of 7 Case 3:03-cv-00213-PK Document 435-1 Filed 02/10/17 Page 7 of 7 USDA- FOREST SERVICE NATIONAL ALLOTMENT NEPA SCHEDULE 2014-2025 RESCISSIONS ACT_P.1. tO4-L9, SECTION 50a(a) 2OO4 INTERIOR APPROPRIATIONS ACT_P.1. ].08-108, SECTION 325 Exhibit 2 to Intervenor Defendants Cross MSJ Page 1 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 1 of 14 Disclaimer: This document is a compilation of all the National Forest System (NFS) Units Rescission Allotment N EPA Schedule. Exhibit 2 to Intervenor Defendants Cross MSJ Page 2 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 2 of 14 @ Forest Service Fifc Code: 2200 Route To: Washington Office 1400 lndependence Avonue, SW Washington, DC 20250 Date: DEC 3 I 2013 (¡/lt subJect: Rescissions Act Allotment NEPA Schedule Update To: Regional Forester, R-1, Regional Foreste& R-2, Regional Forester, R-3, Regional Forester, R-4, Rcgional Forester, R-5, Regional Forester, R-6, Regional Forester, R-8, Regional Forester, R-9 Thank you for your prompt rcsponse updating the Rescissions Act grazing allotnent National Environmental Policy Act (NEPA) schedules on National Forest System (NFS) units in your respective Regions. Those unit allotment NEPA schedules have bcen consolidated to create a National summary that displays four 3-year cycles or a l2-year span. Our records indicate NEPA sufïicient decisions have becn completed for over 84o/o of all allotments, including approximately 80% of the original 6,886 allotments on the 1996 version of the schedule. At the present time, a total of 3,782 allotnrents were identifted as needing NEPA analysis. Therefore, much more work lies ahead. The National Schcdule inoludes four scgmcntsr l) an introduction document with discussion of the 1995 Rescissions Act requirements, activities associated with our work, and subsequent congtessional authorizations affecting the accomplishment of the NEPA work for livestock grazíng allotments; 2) updated National Summary; 3) u$ated Regional Summary with display of NFS units; and 4) appendix Grazing allotment management is a dynamic process due to emerging issues and changing conditions; therefore, our NEPA also needs to be dynamic so that on a periodic basis we assess our progress on the scheduled NEPA analysis as we continue to move forward. Congress, affected livestock grazing permittees, and the American public expect us to catry out our managernent responsibilities. I urge each of you to continue to refocus your efforts on completing the livestock grazing allotment NEPA tasks. A. N y Chief, National Forest System USDA-= America's Working Forests - Crring Every Dey in Every tVay pr¡ntrd m R!rychd p¡rr 6 Exhibit 2 to Intervenor Defendants Cross MSJ Page 3 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 3 of 14 RESCTSSTONS ACT OF 1995 P.L. 104-19, Section 504 NATIONAL ALLOTMENT NEPA SCHEDULE OVERVIEW lntroductlon The Rescissions Act (P.1. 104-19) became law on July 27,1995. Section 504 addresses allotment analysis, grazing permit issuance, and compliance with National Environmental Policy Act (NEPA) and other environmental laws, The Rescissions Act does not expire nor does the Rescissions Act set a timeframe for completion of the allotment NEPA analysis. Section 504 has the following requirements: Subsectlon (a) of sect¡on 504 states that ",,.eøch NFS unit sholl establish ond odhere to s schedule for the completlon of NEPA anølysis and decíslons on all allotments lor whích NEPA ønalysls ls needed," Section 504(a) requires the Forest Service to 1) determine which grazing allotments need NEPA analysis and documentation in order to support the continuation of permitted grazing activity; 2) develop a schedule for each National Forest System (NFS) unit for the completion of the NEPA analysis and documentation on those allotments where NEPA analysis is needed; and 3) adhere to the schedule. Subsection (b) of section 504 provides guldance for issuing term grazing permits pending NEPA compliance ".,,term grøzíng permits whlch explre or ore waived before the NEPA onolysls and decislon purcuant to the schedule,,, shall be issued on the same terms ond conditions and lor the full term of the waived or expired permlts. lJpon completion af the scheduled NEPA analysÍs ond declslon þr the ollotment, the terms and conditlons of exístlng grazing permlts moy be modltled or re-lssued, ff necessary to conform to such NEPA ønalysis." Backsround ln 1996, the Forest Service published an Allotment NEPA Schedule with information provided from the NFS Units, to comply with the Rescissions Aa of 1995. That schedule displayed information for allotments ln need of NEPA Analysis during a lS-year span, from 1996 to 2010. The 1996 National Allotment NEPA Schedule ldentified a tremendous NEPA workload with 6,886 allotments (out of a total of approximately 9,400 allotments). At that time, Forest Service Chief Thomas cautioned that the schedule was based on a fundlng level similar to the President's fiscal year 1996 budget, and further advised that the schedule would be updated as needed. |n 2002, litigants successfully argued in two court cases that the agency had no authority to deviate from the original Allotment NEPA Schedule produced under section 50a(a) of the Rescissions Act, and no authority to renew a grazing permit under section 504(b) of the Act, if the agency had failed to adhere to the original schedule for NEPA analysis of that allotment (Greoter Yellowstone Coolition, et al. v, Bosworth; dnd Western Wotersheds Project ond tdoho Conservation Leogue v. Sowtooth Nationøl Forest, et ol,), Exhibit 2 to Intervenor Defendants Cross MSJ Page 4 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 4 of 14 ln response to that litigation, Congress provided ädditional direction concerning grazing permits in several appropriations bills, including the 2004 lnterior Appropriations Act (P.1. 108-108), Section 325. Specifically, Section 325 clarified that strict adherence to the original Allotment NEPA Schedule is not required. Section 325 provided the following direction: "thot notwlthstanding Section 504 of the Rescissions Act (709 Støt, 272), the Secretaries ín theír sole dlscretlon determlne the priority ond tlmlng for completing requÍred environmentøl onølysís oÍ grazlng ollotments based on the envîronmentol significonce of the ollotments ond funding ovøilable to the Secretaries lor thls purpose". (Subsequent appropriation laws have reiterated this Congressional intent). The provlslons wlthin Section 325 of Publlc Law 108-108 clarlfled Congressional intent and ratified that the Secretary has the authorlty to update the 1996 Allotment NEPA Schedule. Consequently, under this provlslon, the Forest Servlce has the discretion to periodically update the Allotment NEPA Schedule and reprioritize timing of when and which allotments will be done based on emerging environmental issues and available funding for allotment NEPA analyses. Similar to the Rescissions Act, section 325, directed that grazing permlts that expired, transferred or were waived prior to the end of fiscal year 2008 be renewed and that the terms and conditions contained in the expired, transferred or waived permit continue in effect untll the agency completes the NEPA analysis for the allotment(s) and complles with all applicable laws. Updatine and Maintenance of Allotment NEPA Schedule The 1996 Allotment NEPA Schedule addressed a l5-year span, from 1996 to 2010, that included 6,886 allotments out of a total of 9,400 allotments. By the end of 2007, NFS unlts were able to complete NEPA analysis on over 5,500 allotments. However, the ambltious 1996 Allotment NEPA Schedule was not completed due to fluctuatlng budgets, limited staffing and changes in the agency's program priorities. On July 1, 2008, Deputy Chief Holtrop dlrected the Regional Foresters to provide updates for their asslgned NFS un¡t's in order to publish a current Allotment NEPA Schedule that would include a 9-year span, from 2008 to 2016. This September 23, 2008, Allotment NEPA Schedule updated the 1996 schedule to account for local adjustments relative to prlorlty of allotments, and tlming, due to funding issues, emerging issues and changing environmental slgnificance, Just as Chlef Thomas had advised. The new Allotment NEPA Schedule would also include some allotments wlth prlor NEPA that needed re-analysis and documentation due to emerging environmental lssues andlor changed condltions. The 2008 Allotment NEPA Schedule displayed a total of 3,897 allotments needlng analysis. On June 10, 2010, Deputy Chief Holtrop again directed the Regional Foresters to provide updates for their assigned NFS unit's in order to publish a current Allotment NEPA Schedule that would include a new 9-year span, from 2011 to 2019. The 2011 Allotment NEPA Schedule displayed a total of 3,605 allotments needing analysis. On September 23, 2AL3, Deputy Chief Weldon directed the Regional Foresters to provide updates for their assigned NFS unit's in order to again publish a current Allotment NEPA Exhibit 2 to Intervenor Defendants Cross MSJ Page 5 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 5 of 14 Schedule. The decision was made at that time to have a l2-year span schedule, from 2014 to 2A25. This provided for an additional 3-year cycle to be displayed in the current Allotment NEPA Schedule. The 2014 Allotment NEPA Schedule displays a total of 3,782 allotments needing analysis. This document displays the current Allotment NEPA Schedule for a 12-year span, with four 3- year cycles with end dates of 20L6,2OL9,2022, and 2025. The updates provided by each NFS Unit has been compiled to create a Natlonal Summary, Regional Summary and listing of allotments for each of the four 3-year cycles for each Region (1-6 and 8-9). An Appendix is also included to display the Total Agency NEPA Decisions accomplishments completed since 1996 to present. Some NFS units as well as allotments h.ave been consolidated and/or reorganized, creating some discrepancies between this and previous versions of the Allotment NEPA Schedule. An updated Allotment NEPA Schedule will continue to be publlshed at the end of the thlrd year, for each 3-year cycle. 5ummary NFS units have made significant progress towards completing allotment NEPA analysis and documentation on allotments where NEPA analysis is needed. NEPA analysis has been completed on over 84o/o of all allotments, including approximately 80% of the orlginal 6,886 allotments on the 1996 version of the schedule. Allotment NEPA planninf and management is a dynamic on-going process due to fluctuations in budget, emerglng issues, and changing environmental conditions; thus, there will continue to be a NEPA workload to accomplish in the future. This updated Allotment NEPA Schedule will focus agency efforts on the NEPA workload, and reduce the backlog of allotments st¡ll requiring NEPA analysis and documentation. Exhibit 2 to Intervenor Defendants Cross MSJ Page 6 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 6 of 14 NATIONAL ALLOTMENT NEPA SCHEDULE SUMMARY Exhibit 2 to Intervenor Defendants Cross MSJ Page 7 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 7 of 14 NATIONAL ALLOTMENT NEPA SCHEDULE SUMMARY 804 347 752 1,005 333 337 141 64 110 52 '146 41 43 71 0 0 178 27 239 232 65 84 3 0 304 76 121 286 109 105 58 47 212 192 246 246 lt6 77 80 17 Northern {01} Roclry Mountain (02) Southwestern (03) lntermountain (04) Pacific Southwest f05) Pacific Northwest (06) Southern f08) Eastern (09) Exhibit 2 to Intervenor Defendants Cross MSJ Page 8 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 8 of 14 REGIONS ALLOTMENT NEPA SCHEDULE SUMMARY Exhibit 2 to Intervenor Defendants Cross MSJ Page 9 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 9 of 14 NEPA PTANN¡NG PERIOD 20t9 20t9 20t9 2022 2422 2422 2422 2422 ALLOTMEIUT NAME (RMU NAMEI GLTYER DICE.CRANE C&H APPLEGATE S&G HOLE IN TIIE GROUND JACK CREEK S&G SKELLOCK C&H BUCK C&H INDIAN C&H AIT-OTMENT (RMU tDl 00R94 0R120 0R500 00R9s 0R300 0R290 0R220 0R250 (#l DISTRICT 04 t2 t2 04 11 2I 3I 3I $l FOREST 02 02 02 02 a2 a2 02 02 (#) REGION 06 06 06 06 06 06 06 06 NEPA PTANNING PERIOD 2422 NAMEI(RMU ATTOTMENT NAME MT. ADAMS AttOTMENT (RMU tDl 03400 DISTRICT l#l 03 (sl FOREST 03 (*l REGION 06 NEPA PlAilNING PERIOD 20t6 2016 20t6 20t6 AIT.OTMENT NAME (RMU NAMEI DONALDSON HAMILTON HIGI{WAY KING A1IOTMENT (RMU tDl 00051 00053 00054 000s7 (#l DISTRICT I0 I0 10 01 {#l FOREST u a4 04 04 {#} REGION 06 06 06 06 Exhibit 2 to Intervenor Defendants Cross MSJ Page 10 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 10 of 14 2019 2016 2016 2Aß 2016 2016 zOrc 20t6 2016 2016 2016 2016 2019 2019 2019 2019 2At9 20t9 2019 2019 NEPA PI.ANNING PERIOD 24rc 2016 2016 20t6 2016 2016 IIERBERGER BEECH CREEK ROSEBUD SLIDE CREEK ALDRICH WAR CA}IYON DEER CREEK MT. VERNON/JOHNDAY MURDERERS CREEK BIG SAGEHEN BRIDGE CREEK CENTRAL MALHETJR IZEE SILVIES DEARDORFF DOLLARBASIN STAR GLADE DD(IE ROIJNDTOP FRENCHY FAWN SPRING JOAQI.JIN PEAR*SON ATLOTMETìTT NAME (RMU NAMEI MCCIJLLOUGH KEENEY MEADOWS INDIAN RIDGE 01800 00029 00031 00033 00037 00044 00750 00760 00950 00050 00064 00104 00108 00700 00900 01300 01700 02000 ATLOTMENT (RMU rDl 00060 00061 00063 00065 00100 00101 00103 00105 01 10 10 I0 I0 01 I0 DISTRICT {#l 0l 01 01 0l 0l 01 01 0l 0l 02 02 02 02 02 04 M 04 10 I0 a4 04 04 04 M 04 04 04 a4 a4 04 (f) FOREST a4 04 04 04 04 04 04 a4 04 04 04 04 04 04 04 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 (#l REGION 06 06 Exhibit 2 to Intervenor Defendants Cross MSJ Page 11 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 11 of 14 NEPA PLANNING PERIOD 2019 2019 20t9 2019 2019 20t9 20t9 20t9 2019 2019 2019 2019 2022 2022 2422 2022 2022 2022 2022 2022 2A22 2022 2022 2022 2022 2022 ALTOTMENT NAME (RMU I{AMEI WILLIAMS PASTURE WINDY POINT BIGGS ON/OFF POISON AIKALI PINE CREEK BUCK MOT'NTAIN GREEN BUTTE LOWERMCOLL SAWMILL NORTTI FORK SPRING CREEK FERG FOX ruSTICE LONG CREEK LOWERMIDDLE FORK BEAR CREEK UPPER MIDDLE FORK YORK CAMP CREEK AUSTIN BALANCE CREEK SILAI.ITELOPE SILCAMP CREEK KOEHLER ALI¡()TMENT (RMu rDl 02600 02740 02800 06200 00028 0004r 04066 04068 ua70 44472 00880 00940 00001 00052 00056 00058 00059 00066 00067 00102 00106 00107 00109 00200 00400 01400 $l DISTRICT I0 I0 I0 I0 02 02 02 a2 02 02 04 M 0t I0 01 I0 I0 I0 01 01 01 I0 I0 I0 0l 01 {*l FOREST 04 M a4 a4 04 04 04 M M a4 04 04 04 04 04 M 04 a4 04 M 04 04 a4 04 04 04 (#l REGION 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 Exhibit 2 to Intervenor Defendants Cross MSJ Page 12 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 12 of 14 2425 2422 2A22 2022 2022 2022 2022 2022 2022 2022 2022 2022 2022 2425 2A25 2025 2025 2025 202s 2025 2025 NEPA PI-ANNING PERIOD 2022 2022 2022 2022 2022 HANSCOMB JACK CREEK LEWIS CREEK MCCLELLA}{ NINETY SD( LONESOME IyIYRTLE RAINBOW SAWTOOTH STORY.FRY WEST IvIYRTLE DONNELLY SILVER CREEK SNOWMOT]NTAIN ALLISON HOT SPRINGS REYNOLDS CREEK SIJLLENS RAIL CREEK FIELDS PEAK COI.]NTY ROAD DEADHORSE FLAGTAIL AI.LOTMENT NAME ÍRMU NAMEI SCOTTY CREEK BLUE MOIJNTAIN BLIJE CREEK 04073 04074 M075 00790 00910 00970 09000 00300 00600 00800 01000 0l 100 01200 01500 01600 01900 AI.LOTMENT (RMu rDl 02100 10000 00030 00038 00040 0nl)42 00043 00045 00048 M067 04 04 04 10 I0 I0 10 I0 10 I0 0l 10 (#l DISTRICT I0 I0 02 02 02 02 02 02 02 02 02 02 a2 a4 04 04 04 04 04 04 04 04 04 04 a4 04 {#} FORESÍ 04 04 a4 04 04 04 04 04 04 04 04 04 04 a4 06 06 06 06 0ó 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 06 (fl REGION 06 06 06 06 06 Exhibit 2 to Intervenor Defendants Cross MSJ Page 13 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 13 of 14 NEPA PIANNING PERIOD 202s 2025 2025 202s 2025 2025 2A25 2025 202s 2025 2025 2025 2025 2025 202s 2025 2025 2425 2025 202s AI"IOTMENT NAME (RMu NAME) SENECA SMOKY SNOWSHOE CALAMITY DEVINE HOUSE CREEK HUGHET VALLEY MTJDDY VANi WEST MALTIEUR WOLF MOIJNTAIN SCATFIELD CROOKED CREEK LITTLE MOWICH EMGRANT CREEK ANTELOPE BLTIEBUCKET FLAG PRAIRIE INDIAN CREEK OTT A1IOTMENT (RMU rDl 02200 02300 02400 00032 00034 0003s 00036 00039 00046 aaa47 00049 00126 00500 M069 0ß71 00690 04720 00780 00830 00890 l#) DISTR¡CT I0 10 10 02 02 02 a2 02 02 02 02 02 02 02 02 u a4 04 04 M l#l FOREST M 04 04 04 04 M 04 04 04 04 04 04 04 M a4 04 04 04 04 04 (#l REGION 06 0ó 06 06 06 06 06 06 06 06 06 06 06 06 06 06 a6 06 06 06 Exhibit 2 to Intervenor Defendants Cross MSJ Page 14 of 14 Case 3:03-cv-00213-PK Document 435-2 Filed 02/10/17 Page 14 of 14 ONDA v. USFS, et al. Discrepancies and Conflicts in ONDA’s Exhibit 4 to Motion for Summary Judgment Spring Creek Year Pasture Claimed Violation AR Citation Comment 2013 South River Bank Alteration P 4Supp 11844 FP 4Supp 01264 SC 4Supp 00690-97 8/13/2013 Hydro Tech estimated (not measured) that site two had 20-25% and the upper site had >30% streambank alteration. (SC 4Supp 00690-97) Site one was measured and found to be within standard (15%). 8/22/2013 Roving Range Team measured two mid sites to be within standard but measured upper site at 29% streambank alteration, exceeding standard. (FP 4Supp 01264). Final 9/30 monitoring for the EOY report measured 10% streambank alteration though, within 15% standard. (P 4Supp 07251 and 11844). 2012 Little Crane Trespass P 4Supp 06088 Single calf found in exclosure and promptly removed. Spawning survey was conducted to confirm livestock hadn’t entered the exclosure and there was no livestock-red interaction. 2011 Bucktrough/ Mahogony Trespass P 4Supp 02129 10/3/2011 inspection found recent signs of cow use and one cow in the holding pen. (P 4Supp 02129) However, the EOY report shows Bucktrough’s season as ending on 10/15/2011. (P 4Supp 03513) South River Stubble Height P 4Supp 02188 P 4Supp 02190 07/27/2011 allotment inspection reported 5.2” stubble height. Final monitoring included in the 2011 EOY report found 7” stubble height though, within the 6” standard. (P 4Supp 03513) Exhibit 3 to Intervenor-Defendants Cross MSJ Page 1 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 1 of 8 Bank Alteration P 4Supp 02188 P 4Supp 02190 07/27/2011 allotment inspection measured 18% streambank alteration, within 20% standard. Final monitoring included in the 2011 EOY report found 12% streambank alteration, also within 20% standard. (P 4Supp 03513) 2008 Bucktrough Trespass P 3Supp 560 Found signs of cattle activity but no actual cattle sighted. 2007 South River Bank Alteration P 3Supp 7024 8/14/2007 monitoring measured 24% streambank alteration, within the 6% margin of error from the 20% standard.1 Final 9/11/2007 monitoring measured .06% streambank alteration, well within 20% standard. North Fork Allotment Year Pasture Claimed Violation AR Citation Comment 2015 South River Shrub Browse P 4Supp 11836 USFS recommended that a wildlife biologist investigate wildlife browse use on pasture as an explanation for there being high browse use while other standards were met by livestock. (P 4Supp 11837) 2014 South River Shrub Browse P 4Supp 11836 43% browse use. Only 3% over 40% standard. (P 4Supp 11837) Bank Alteration P 4Supp 11836 5% streambank alteration. Less than 20% standard. 2013 Mountain Stubble Height P 4Supp 07243 NF 4Supp 00874-78 4” stubble height. Matches 4” standard. Stubble Height Shrub Browse Bank Alteration P 4Supp 07243 NF 4Supp 00874 This monitoring site was moved to a better location in 2014 since it “wasn’t a decent site” on account of being a “spring area and very marshy.” (NF 4Supp 01012 and NF 4Supp 01100-1) 1 Monitoring of bank alteration is subject to a 6% margin of error. See P4Supp2737 (discussing the same). Exhibit 3 to Intervenor-Defendants Cross MSJ Page 2 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 2 of 8 North River Bank Alteration FP 4Supp 01264 26% streambank alteration. Within 6% margin of error from 20% standard. EOY Report lists it as 16%, within standard (P 4Supp 07243). South River Stubble Height FP 4Supp 01264 NF 4Supp 00848 4” stubble height. Matches 4” standard. EOY Report lists it as 7”, within standard (P 4Supp 07243). Shrub Browse FP 4Supp 01264 NF 4Supp 00848 62% browse use. EOY lists it as 15%, within 40% standard (P 4Supp 07243). Bank Alteration FP 4Supp 01264 NF 4Supp 00848 46% browse use. EOY report lists it as 16%, within 20% standard (P 4Supp 07243). 2011 Mountain Bank Alteration P 4Supp 04357 >20% ocular estimate (no measurements taken). Trespass P 4Supp 04358 Notes that “move dates were not followed” and administrative action. Does not specify details of unauthorized use. South River Bank Alteration P 4Supp 04357 22% streambank alteration. Within 6% margin of error from 20% standard. Trespass P 4Supp 02114 Did not find cows on unit. Just signs that cows “had most likely” been there. 2010 South River Bank Alteration P 4Supp 01655 15% streambank alteration. Within 20% standard. 2009 Mountain Trespass P 4Supp 00002 Administrative action taken for this and other unauthorized use issues (25% suspension for three years). 2007 North River Stubble Height P 3Supp 7016 4.3” stubble height. Above 4” standard. Bank Alteration P 3Supp 7016 24% streambank alteration. Within 6% margin of error from 20% standard. Exhibit 3 to Intervenor-Defendants Cross MSJ Page 3 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 3 of 8 Flag Prairie Allotment Year Pasture Claimed Violation AR Citation Comment 2015 South Upland Utilization P 4Supp 11831 9/29/2015 measurement was 62%. Final 10/20/2015 measurement was 3%, within 45% standard. 2014 Flag Trespass P 4Supp08847 4 pair and bull sighted. Report did not mention identification. Inspector did not tell permittee to move them off since grazing season was about to start in a few days. Crane Crossing Trespass P 4Supp 09172 P 4Supp 09009 Notice of noncompliance sent (P 4Supp 09172). On 10/16/2014, signs of cattle were seen but no actual cattle sighted or identified (P 4Supp 09009). 2013 Mountain Trespass P 4Supp 11831 P 4Supp 07284 Sagehen Fire prevented fence repair and permittee from dispersing/removing cattle. Crane Crossing Bank Alteration P 4Supp 07238 24% streambank alteration. Within 6% margin of error from 20% standard. River Bank Alteration P 4Supp 07238 FP 4Supp 01168-77 FP 4Supp 01216-21 FP 4Supp 01264 9/6/2013 and 9/17/2013 monitoring (FP 4Supp 01168-77 and 01264) found 29% (lower DMA) and 25% (middle DMA) streambank alteration. Final 9/30/2013 monitoring on EOY Report found 19%, within 20% standard (P 4Supp 07238 and FP 4Supp 01216- 21). 2011 South Trespass FP 4Supp 00438 Notice of violation sent. Acknowledges extenuating circumstances. Horse Trespass FP 4Supp 00438 Notice of violation sent. Acknowledges extenuating circumstances. 2010 Crane Crossing Bank Alteration FP 4Supp 00339 2% streambank alteration. Within 20% standard. Exhibit 3 to Intervenor-Defendants Cross MSJ Page 4 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 4 of 8 2009 River Trespass P 3Supp 1131-33 Report lists “no apparent use in […] River Unit of the Flag Prairie Allotment.” 2008 Mountain Stubble Height Shrub Browse Bank Alteration P 3Supp 7467-68 FP 3Supp 510 6” stubble height, moderate shrub utilization, and 6% streambank alteration. All within standards (P 3Supp 7385). FP 3Supp 510 is 1/28/2007 Memo re 2007 End of Season meeting. Does not relate to 2008 season. Trespass P 3Supp 7467-68 Violation notice sent for lack of fence maintenance. Crane Crossing Stubble Height Shrub Browse Bank Alteration FP 3Supp 510 EOY Report lists >6” stubble height, moderate shrub utilization, and 15-20% streambank alteration. All within standard (P 3Supp 7385). FP 3Supp 510 is 1/28/2007 Memo re 2007 End of Season meeting. Does not relate to 2008 season. 2006 Flag Trespass FP 3Supp 51 2/17/2005 meeting notes regarding AOI. Predates and not related to 2006 season. Ott Allotment Year Pasture Claimed Violation AR Citation Comment 2012 River Corridor Trespass P 4Supp 04851 P 4Supp 04886 No cattle sighted. Just signs of cattle. (P 4Supp 04851) 10/3/2012 Report (P 4Supp 04886) does not appear to involve River Corridor Pasture. Rattlesnake Trespass P 4Supp 04887-97 No reference to trespass on Rattlesnake Pasture. 2011 Rattlesnake Trespass P 4Supp 01810 Only signs of cattle in Rattlesnake Pasture. No sighting. BlueBucket Allotment Year Pasture Claimed Violation AR Citation Comment Exhibit 3 to Intervenor-Defendants Cross MSJ Page 5 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 5 of 8 2007 Cougar Shrub Browse P 3Supp 7001-02 Shrub use in EOY report is either light or not listed. Central Malheur Allotment Year Pasture Claimed Violation AR Citation Comment 2012 South Stubble Height P 4Supp 00146 Monitoring report lists riparian leaf length as 5 inches but EOY report lists riparian stubble height as >6”, within 6” standard (P 4Supp 6026). Dollar Basin/Star Glade Allotment Year Pasture Claimed Violation AR Citation Comment 2015 Dollar Upland Utilization P 4Supp 11808 46% upland utilization. Only 1% over 45% standard. South Star Glade Bank Alteration P 4Supp 11808 17% streambank alteration. Within 6% margin of error from 15% standard. 2014 Dollar Trespass P 4Supp 08703 10 cattle sighted on 7/28/2014 but, per the EOY report, Dollar Pasture season of use extended to 7/31/2014 (P 4Supp 6730). Merit Bank Alteration P 4Supp 06731 P 4Supp 11808 16% streambank alteration. Within 6% margin of error from 15% standard. North Starvation Bank Alteration DB 4Supp 01101-03 P 4Supp 11808 13% streambank alteration. Within 15% standard. DB 4Supp 01101-03 shows photos of streambanks but Exhibit 3 to Intervenor-Defendants Cross MSJ Page 6 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 6 of 8 includes no measurements. 2013 Merit Stubble Height P 4Supp 11808 2013 EOY lists all stubble height measurements within standard except for 10/16/2013 monitoring which found 4” stubble height (exceeding 6” standard). The report notes that this was measured “at willow site; not normal site to monitor stubble height.” (P 4Supp 7217) South Star Glade Bank Alteration DB 4Supp 00832 P 4Supp 11808 9/3/2013 monitoring measured 4% streambank alteration (DB 4Supp 00832) and 9/10/2013 monitoring measured 0% streambank alteration. Both within 15% standard. 2012 Dollar Bank Alteration P 4Supp 11808 P 4Supp 06054 22% streambank alteration. Within 6% margin of error from 20% standard. Merit Stubble Height P 4Supp 11808 P 4Supp 06054 9/19/2012 monitoring measured 5” stubble height but 10/3/2012 final monitoring measured 6” stubble height, matching 6” standard. Bank Alteration P 4Supp 11808 P 4Supp 06054 9/19/2012 monitoring measured 11%, within 15% standard. 10/3/2012 final monitoring measured 19% stubble height, within 6% margin of error from 15% standard. Additionally, regarding the 10/3/2012 19% measurement, it is noted that the “team agreed that this was not an appropriate site to monitor alteration.” (P 4Supp 06055) 2010 Dollar Bank Alteration P 4Supp 00672 DB 4Supp 00115 Cited reports measured streambank alteration at 17% and 6%. Both within 20% standard. Merit Bank Alteration P 4Supp 00648 4% streambank alteration. Within 20% standard. South Star Glade Bank Alteration P 4Supp 00634 P 4Supp 00741 P 4Supp 00749 Cited reports measured streambank alteration at 9%, 6%, and 7%. All within 20% standard. Exhibit 3 to Intervenor-Defendants Cross MSJ Page 7 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 7 of 8 2007 Dollar Bank Alteration P 3Supp 7004 24% streambank alteration. Within 6% margin of error from 20% standard. Exhibit 3 to Intervenor-Defendants Cross MSJ Page 8 of 8 Case 3:03-cv-00213-PK Document 435-3 Filed 02/10/17 Page 8 of 8