Oregon Natural Desert Association et al v. United States Forest Service et alMotion for Summary Judgment .D. Or.November 14, 2016MOTION FOR SUMMARY JUDGMENT i Peter M. (“Mac”) Lacy (OSB # 013223) Oregon Natural Desert Association 917 SW Oak Street, Suite 419 Portland, OR 97205 (503) 525-0193 lacy@onda.org Attorney for Plaintiffs Oregon Natural Desert Association & Center for Biological Diversity Stephanie M. Parent (OSB # 925908) Center for Biological Diversity P.O. Box 11374 Portland OR 97211 (971) 717-6404 sparent@biologicaldiversity.org Attorney for Plaintiff Center for Biological Diversity IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION OREGON NATURAL DESERT ASS’N No. 3:03-cv-213-PK et al., Plaintiffs, MOTION FOR SUMMARY JUDGMENT v. UNITED STATES FOREST SERV. et al., Defendants, and JEFF HUSSEY, et al., Intervenor-Defendants. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 1 of 75 MOTION FOR SUMMARY JUDGMENT ii _______________________________________ TABLE OF CONTENTS GLOSSARY OF ACRONYMS .................................................................................................. ix KEY TO ADMINISTRATIVE RECORD CITATIONS .......................................................... x MOTION ..................................................................................................................................... xii STATEMENT OF THE CASE .................................................................................................... 1 STATEMENT OF THE LAW ..................................................................................................... 3 I. NATIONAL FOREST MANAGEMENT ACT OF 1976 ..............................................3 II. NATIONAL WILD AND SCENIC RIVERS ACT OF 1968 .......................................4 STATEMENT OF RELEVANT FACTS.................................................................................... 5 I. MALHEUR AND NORTH FORK MALHEUR WILD AND SCENIC RIVERS ......5 II. BULL TROUT (SALVELINUS CONFLUENTUS) ......................................................5 III. LIVESTOCK GRAZING DAMAGES FISH HABITAT ...........................................9 IV. AUTHORIZATION OF LIVESTOCK GRAZING ON NATIONAL FORESTS ......................................................................................................................10 V. INFISH AND GRAZING STANDARDS IN THE MALHEUR FOREST PLAN ........................................................................................................................................... 13 A. INFISH Riparian Management Objectives and Standard GM-1 .........................13 B. The Forest Plan’s Bank Stability Standard .............................................................16 C. Narrative Forest Plan Standards ..............................................................................17 D. Monitoring ..................................................................................................................18 VI. MANAGEMENT OF LIVESTOCK GRAZING ALONG THE WILD AND SCENIC RIVERS .................................................................................................................... 20 A. Degraded Environmental Baseline ...........................................................................20 B. Compliance Problems and Continuing Resource Damage from Grazing ............23 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 2 of 75 MOTION FOR SUMMARY JUDGMENT iii PROCEDURAL BACKGROUND ............................................................................................ 26 ARGUMENT ............................................................................................................................... 29 I. STANDARD OF REVIEW.............................................................................................29 II. NATIONAL FOREST MANAGEMENT ACT VIOLATIONS ................................30 A. The Forest Service Violated NFMA by Authorizing Grazing That is Inconsistent with INFISH, Forest Plan Amendment 29, and Forest Plan Priorities......................................................................................................................31 1. INFISH..................................................................................................................... 31 a. Baseline conditions on allotments along the Wild and Scenic Rivers are degraded and grazing is further retarding and preventing attainment of RMOs. ....................................................................................................................33 b. The Forest Service’s grazing decisions are not consistent with INFISH Standard GM-1 because the agency failed to evaluate RMOs. ...........................37 2. Amendment 29.......................................................................................................... 41 3. Forest Plan Narrative Standards ............................................................................. 47 B. The Forest Service Has Failed to Prepare and Update Allotment Management Plans .....................................................................................................50 III. WILD AND SCENIC RIVERS ACT VIOLATIONS ...............................................54 IV. RELIEF .........................................................................................................................59 CONCLUSION ........................................................................................................................... 60 EXHIBIT LIST ........................................................................................................................... 62 CERTIFICATE OF COMPLIANCE ....................................................................................... 63 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 3 of 75 MOTION FOR SUMMARY JUDGMENT iv TABLE OF AUTHORITIES CASES Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845 (9th Cir. 1997) ........................................... 30, 41 Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073 (9th Cir. 2010) .................... 3, 31, 50 Ctr. for Food Safety v. Hamburg, 954 F. Supp. 2d 965 (N.D. Cal. 2013) .................................... 51 Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) ........................................ 10 FPC v. Fla. Pwr. & Light Co., 404 U.S. 453 (1972) ...................................................................... 58 Friends of the Wild Swan v. Thorson, No. 3:16-cv-0681-AC (D. Or. filed Apr. 19, 2016) ........... 6 Friends of the Wild Swan, Inc. v. U.S. Forest Serv., 966 F. Supp. 1002 (D. Or. 1997) ............... 14 Friends of the Yosemite v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008) ................................ 55, 56 Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836 (9th Cir. 2013) .................................. 3 Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170 (9th Cir. 2000) ................................ 56 Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) ................................................... 60 In re Cal. Pwr. Exch. Corp., 245 F.3d 1110 (9th Cir. 2001) ........................................................ 52 Independence Mining Co. v. Babbitt, 105 F.3d 502 (9th Cir. 1997) ............................................ 52 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ............................................................... x Landwatch v. Connaughton, 905 F. Supp. 2d 1192 (D. Or. 2012) ............................. 32, 41, 47, 50 Marble Mtn. Audubon Soc’y v. Rice, 914 F.2d 179 (9th Cir.1990) .............................................. 32 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ............................................................ 30 MCI Telecomm. v. FCC, 627 F.2d 322 (D.C. Cir. 1980) .............................................................. 53 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ...................................................... 60 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..................... 30 N.W. Coalition for Alternatives to Pesticides v. EPA, 544 F.3d 1043 (9th Cir. 2008) ................. 30 Nader v. FCC, 520 F.2d 182 (D.C. Cir. 1975) ............................................................................. 53 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 4 of 75 MOTION FOR SUMMARY JUDGMENT v Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010) .................................... 31, 41 Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059 (9th Cir. 2002)....................................... 31 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ................................................... 50, 51 ONDA v. Lohn, 485 F. Supp. 2d 1190 (D. Or. 2007) ................................................................... 23 Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114 (9th Cir. 2008) ................... 41 Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir. 2010) ....... 41, 44, 58 Or. Natural Desert Ass’n v. Green, 953 F. Supp. 1133 (D. Or. 1997) ......................................... 58 Or. Natural Desert Ass’n v. Jewell, -- F.3d --, 2016 WL 6127053 (9th Cir. Oct. 20, 2016) ........ 59 Or. Natural Desert Ass’n v. Kimbell, No. 2:07-cv-1871-HA (D. Or. filed Dec. 21, 2007).... 28, 29 Or. Natural Desert Ass’n v. Sabo, 854 F. Supp. 2d 889 (D. Or. 2012) ............................ 10, 12, 40 Or. Natural Desert Ass’n v. Singleton, 47 F. Supp. 2d 1182 (D. Or. 1998) ........................... 55, 58 Or. Natural Desert Ass’n v. Singleton, No. 3:98-cv-97-RE, Opinion & Order (Dkt # 205) (D. Or. Nov. 18, 1999) .....................................................................................58, 59 Or. Natural Desert Ass’n v. Tidwell, No. 2:07-cv-1871-HA, 2010 WL 5464269 (D. Or. Dec. 30, 2010) ...............................................................................................................29 Or. Natural Desert Ass’n v. U.S. Forest Serv., 312 F. Supp. 2d 1337 (D. Or. 2004) ............. 12, 28 Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ........ 4, 10, 11, 12, 28 Or. Natural Desert Ass’n v. U.S. Forest Serv., No. 06-35689, 2006 WL 2711934 (9th Cir. Sept. 21, 2006).............................................................................................................28 Or. Natural Desert Ass’n v. U.S. Forest Serv., No. 3:03-cv-381-HA (D. Or. filed Mar. 25, 2003) .....................................................................................26, 28, 29, 35 Or. Wild v. U.S. Forest Serv., No. 1:15-cv-895-CL, 2016 WL 3411554 (D. Or. June 17, 2016) ...............................................................................................................57 Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069 (9th Cir. 2010) ............................................ 60 Pub. Citizen Health Research Grp. v. Comm’r, Food & Drug Admin., 740 F.2d 21 (D.C. Cir. 1984) .....................................................................................................52 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 5 of 75 MOTION FOR SUMMARY JUDGMENT vi S.w. Ctr. for Biol. Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996) .......................... x Seltzer v. Chesley, 512 F.2d 1030 (9th Cir.1975) ......................................................................... 51 Telecomm. Research & Action Ctr. v. F.C.C., 750 F.2d 70 (D.C. Cir 1984) ............................... 52 Towns of Wellesley, Concord, and Norwood, Mass. v. FERC, 829 F.2d 275 (1st Cir. 1987) ...... 52 Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870 (9th Cir. 2009) .......................................... 58 U.S. v. UPS Customhouse Brokerage, Inc., 575 F.3d 1376 (Fed. Cir. 2009) ............................... 51 W. Watersheds Proj. v. Bennett, 392 F. Supp. 2d 1217 (D. Idaho 2005) ..................................... 41 W. Watersheds Proj. v. U.S. Dep’t of Interior, No. 08-0506-E-BLW, 2009 WL 5218020 (D. Idaho Dec. 30, 2009) ............................................................................51 W. Watersheds Proj. v. Salazar, 843 F. Supp. 2d 1105 (D. Idaho 2012) ............................... 48, 50 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) .............................................................. 60 STATUTES 16 U.S.C. § 1274(a)(89) .................................................................................................................. 5 16 U.S.C. § 1274(a)(83) .................................................................................................................. 5 16 U.S.C. § 1274(d)(1) ................................................................................................................... 4 16 U.S.C. § 1281(a) ................................................................................................ 1, 54, 55, 56, 58 16 U.S.C. § 1283(a) ...................................................................................................... 1, 54, 55, 58 16 U.S.C. § 1283(c) ........................................................................................................................ 4 16 U.S.C. § 1536(c) ...................................................................................................................... 21 16 U.S.C. § 1604(a) ........................................................................................................................ 3 16 U.S.C. § 1604(e)(1) .................................................................................................................. 10 16 U.S.C. § 1604(i) ..................................................................... 1, 3, 10, 30, 31, 32, 37, 41, 47, 49 43 U.S.C. § 1702(k)(1) ................................................................................................................. 12 43 U.S.C. § 1702(p) ...................................................................................................................... 11 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 6 of 75 MOTION FOR SUMMARY JUDGMENT vii 43 U.S.C. § 1752 ....................................................................................................................... 4, 11 43 U.S.C. § 1752(a) ...................................................................................................................... 11 43 U.S.C. § 1752(d) ............................................................................................................ 4, 11, 12 5 U.S.C. § 706(1) .............................................................................................................. 50, 51, 53 Administrative Procedure Act, 5 U.S.C. §§ 701–706 ................................................................... 28 Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701–1787 ............................ 10 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321−4370h ..................................... 26 National Forest Management Act of 1976, 16 U.S.C. §§ 1600–14 ................................................ 1 National Wild and Scenic Rivers Act of 1968, 16 U.S.C. §§ 1271–1286 ...................................... 1 OTHER AUTHORITIES Ardren, W. R., et al. 2011. Genetic structure, evolutionary history, and conservation units of bull trout in the coterminous United States. Transactions of the Am. Fisheries Soc’y, 140(2), available at http://www.tandfonline.com/doi/abs/10.1080/ 00028487.2011.567875?journalCode=utaf2 (last visited Nov. 8, 2016) .....................................8 Determination of Threatened Status for the Klamath River and Columbia Basin River Distinct Population Segments of Bull Trout, 63 Fed. Reg. 31,647 (June 10, 1998) ................................ 7 Forest Service Manual 2230.5, available at http://www.fs.fed.us/cgi- bin/Directives/get_dirs/fsm?2200 (last visited Nov. 8, 2016) .................................................. 12 Glossary of Forest Service Grazing Terminology, available at https://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5260382.pdf (last visited Nov. 8, 2016) ..........................................................................................................13 Oregon Department of Fish and Wildlife, Oregon Native Fish Status Report, Volume I: Species Management Unit Summaries & Volume II: Assessment Methods and Population Results, Oregon Dep’t of Fish & Wildlife, Fish Division, Salem, Ore. (2005), available at http://www.dfw.state.or.us/fish/ONFSR/ (last visited Nov. 8, 2016) ..........................................7 Pub. L. 100-557............................................................................................................................... 5 Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States, 75 Fed. Reg. 63,898 (Oct. 18, 2010) ........................................................................................7, 9 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 7 of 75 MOTION FOR SUMMARY JUDGMENT viii U.S. Department of the Interior, Riparian area management: Multiple indicator monitoring (MIM) of stream channels and streamside vegetation. Technical Reference 1737-23, BLM/OC/ST-10/003+1737+REV, Bureau of Land Management, National Operations Center, Denver, CO. (2011) .......................................................................................................43 U.S. Fish & Wildlife Service, Bull Trout (Salvelinus confluentus) 5-Year Review: Summary and Evaluation, U.S. Fish & Wildlife Service, Portland, Ore. (2008), available at https://www.fws.gov/pacific/bulltrout/5yrreview.html (last visited Nov. 8, 2016) .....................8 U.S. Fish & Wildlife Service, Recovery Plan for the Coterminous United States Population of Bull Trout (Salvelinus confluentus), Pacific Region, USFWS, Portland, Ore. (2015), available at https://www.fws.gov/pacific/bulltrout/pdf/Final_Bull_Trout_Recovery_Plan_092915.pdf (last visited Nov. 8, 2016) ............................................................................................................6 U.S. Fish & Wildlife Service, Species Profile for Bull Trout (Salvelinus confluentus), available at http://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=E065 (last visited Nov. 8, 2016) ...............................................................................................................................6 REGULATIONS 36 C.F.R. § 219.15(b) ............................................................................................................... 3, 49 36 C.F.R. § 219.15(d) ........................................................................................... 31, 38, 41, 45, 47 36 C.F.R. § 222.1(b) ..................................................................................................... 4, 10, 11, 12 36 C.F.R. § 222.1(b)(1) ................................................................................................................. 10 36 C.F.R. § 222.1(b)(2) ................................................................................................................... 4 36 C.F.R. § 222.1(b)(5) ................................................................................................................. 11 36 C.F.R. § 222.2(b) ........................................................................................... 2, 3, 30, 49, 50, 51 36 C.F.R. § 222.2(c)........................................................................................................................ 2 36 C.F.R. § 222.3(c)(1) ................................................................................................................. 11 36 C.F.R. § 222.4 .......................................................................................................................... 11 50 C.F.R. § 402.14(a).................................................................................................................... 21 50 C.F.R. § 402.14(g)(4) ............................................................................................................... 21 OAR 635-007-0507 ........................................................................................................................ 7 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 8 of 75 MOTION FOR SUMMARY JUDGMENT ix GLOSSARY OF ACRONYMS AMP Allotment Management Plan AOI Annual Operating Instructions AOP Annual Operating Plan APA Administrative Procedure Act AUM Animal Unit Month BA Biological Assessment DMA Designated Monitoring Area INFISH Inland Native Fish Strategy MIM Multiple Indicator Monitoring NEPA National Environmental Policy Act of 1969 NFMA National Forest Management Act of 1976 ODFW Oregon Department of Fish and Wildlife ONDA plaintiffs Oregon Natural Desert Association and Center for Biological Diversity, collectively PACFISH Pacific Anadromous Fish Strategy PIBO PACFISH/INFISH Biological Opinion RMO Riparian Management Objective USFS United States Forest Service USFWS United States Fish and Wildlife Service WSRA National Wild and Scenic Rivers Act of 1968 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 9 of 75 MOTION FOR SUMMARY JUDGMENT x KEY TO ADMINISTRATIVE RECORD CITATIONS The Forest Service lodged the administrative record in multiple installments in this case. This table summarizes those installments and shows how documents from each are cited in plaintiffs’ briefing. Title File Date Dkt ## Citation Format in Brief Notes Administrative Record 8/20/04 118–128 “PAR ___” “BBAR ___” “DSAR ___” “SCAR ___” “NFAR ___” “FPAR ___” “OTTAR ___” Consists of a Policy Documents AR and six different allotment-specific ARs. Supplement to Administrative Record 9/27/04 131–136 “SPAR ___” Supplemental AR Index Policy Documents, Volumes 1 (Bates No. 0001) and 2 (Bates Nos. 0002–0296) Second Supplement to Administrative Record 2/4/05 169–189 “SSPAR ___” Second Supplemental AR Policy Documents, Volumes 1 (AR Nos. P0001–P0312), 2 (AR Nos. P0313–P0600), etc., up through 12 (AR Nos. P3181–P3417) Second Supplemental AR for 6 different allotment ARs Replacement Pages for Sections of Second Supplement to Administrative Record 3/8/05 205–211 “RPA ___” “RPD ___” “RPL ___” “RPM ___” “RPM ___” - Policy AR Vol. 2, Appx A, Replacement Pages Nos. PA 0001-0197 - Policy AR Vol. 3, Appx D, Replacement Pages Nos. PD 0001-0144 - Policy AR Vol. 9, Appx L1-M5, Replacement Pages Nos. PL 0001-PM 0242 - Policy AR Vol. 10, Appx Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 10 of 75 MOTION FOR SUMMARY JUDGMENT xi “RPN ___” M6-N1, Replacement Pages Nos. PM 0243-PN 0061 Third Supplemental Administrative Record 4/23/10 282–283 “P 3Supp __” “BB 3Supp __” “DBSG 3Supp __” “CM 3Supp __” “SC 3Supp __” “NF 3Supp __” “FP 3Supp __” “OTT 3Supp __” Policy Documents and allotment-specific documents. Fourth Supplement to Administrative Record 7/1/16 407–408 “P 4Supp __” “BB 4Supp __” “DBSG 4Supp __” “CM 4Supp __” “SC 4Supp __” “NF 4Supp __” “FP 4Supp __” “OTT 4Supp __” Policy Documents and allotment-specific documents. Fifth Supplement to Administrative Record 9/27/16 414 “P 5Supp __” This supplement includes both policy and allotment- specific documents, but all with “5Supp” Bates stamps. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 11 of 75 MOTION FOR SUMMARY JUDGMENT xii MOTION Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56-1, plaintiffs Oregon Natural Desert Association and the Center for Biological Diversity (collectively, “ONDA”) respectfully request that this Court grant summary judgment and relief in ONDA’s favor in the above-captioned action. Pursuant to Local Rule 7-1(a)(1), the undersigned hereby certifies that counsel for plaintiff made a good faith effort to resolve the dispute between the parties, but the parties were unable to resolve the dispute. In support of this motion, ONDA respectfully refers the court to the memorandum in support and exhibits that follow this motion, as well as the Fourth Declaration of Christopher Christie, the Third Declaration of Robert L. Beschta, Ph.D., the Second Declaration of J. Boone Kauffman, Ph.D., and the Declaration of Craig Miller, M.D., all filed herewith.1 1 The Christie declaration is properly before the Court because it supports ONDA’s standing. The Beschta, Kauffman, and Miller declarations are properly before the Court because they fit within one or more of the Ninth Circuit’s recognized exceptions to the general rule that judicial review of agency action should be limited to the administrative record. This Court may consider extra-record evidence: (1) if admission is necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) if “the agency has relied on documents not in the record,” (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (quoting S.w. Ctr. for Biol. Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 12 of 75 MOTION FOR SUMMARY JUDGMENT 1 STATEMENT OF THE CASE This case involves United States Forest Service decisions approving livestock grazing within and adjacent to protected corridors along the Malheur and North Fork Malheur Wild and Scenic Rivers in eastern Oregon. The rivers and a dozen or so of their tributaries provide critical spawning, rearing, and migratory areas for bull trout, a native fish protected as a “threatened” species under the Endangered Species Act. Bull trout require the cleanest, coldest water of any inland native fish in western North America. But after a century of livestock grazing and other human activities that have caused widespread damage to and loss of these habitats, bull trout today occur in less than half of their historic range. There are only a few hundred adult bull trout left in the Malheur and North Fork Malheur River watersheds. The legal issues in this case center on whether the Forest Service has violated substantive provisions of the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–14, and the National Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271–1286, in its management of livestock grazing within and adjacent to the Wild and Scenic River corridors and their tributaries. Under the NFMA, the Forest Service must ensure that any grazing it authorizes is consistent with the Forest Plan that guides the use of the Malheur National Forest. Id. § 1604(i). The Forest Plan includes a strategy (known as “INFISH”) “to arrest habitat degradation and initiate recovery” of inland fish habitat; but to do so, the Forest Service must modify or suspend grazing practices that “retard or prevent attainment of Riparian Management Objectives.” Under the WSRA, the Forest Service must “protect and enhance” the “outstandingly remarkable” values of the Malheur and North Fork Malheur Wild and Scenic River corridors. 16 U.S.C. §§ 1281(a), 1283(a). Each year for more than a decade now, grazing authorized by the Forest Service on the Malheur National Forest continues to degrade instream and riparian (streamside) habitat essential Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 13 of 75 MOTION FOR SUMMARY JUDGMENT 2 to the bull trout’s survival. The cattle trample stream banks and consume vegetation that would otherwise stabilize the banks. That in turn results in shallow, wide streams that are too warm for the fish to survive, and soil erosion that buries rocky substrates the fish need to build their nests, called “redds.” The Forest Service consistently has failed to meet quantifiable, habitat-based standards protective of these habitat attributes, or to modify or suspend grazing that is retarding or preventing attainment of those ecological standards, as required under INFISH and the Forest Plan. Also undermining meaningful management of the river corridors and their key bull trout tributary streams is the Forest Service’s failure to complete or update required allotment management plans (“AMPs”) for each grazing unit the agency has designated along the rivers. See 36 C.F.R. §§ 222.2(b), (c) (requirement to prepare and update AMPs). In turn, the Forest Service’s chronic failure to meet INFISH habitat standards has resulted in, at best, maintaining a degraded environmental baseline and, more commonly, a worsening downward trend—in violation of the agency’s duty to “protect and enhance” the bull trout and its habitat in the Malheur and North Fork Malheur Wild and Scenic River corridors. And because the standards the Forest Service does purport to apply require change only after resource damage has occurred, that too runs afoul of the WSRA. It is settled law that the statute’s non-degradation and enhancement requirement forbids this kind of reactive management and in fact requires cessation or removal of grazing before resource damage occurs. Early on in this case, the Court noted that “the way in which grazing has been managed on these lands is clearly at odds with the statutory mandates related to the protection of the river corridors and the species that depend on them.” June 10, 2004 Opinion (Dkt # 114) at 19. Now, if the Court agrees that the Forest Service violated the law in one or more of these ways, the proper remedy is to issue narrowly tailored injunctive relief removing grazing from the river Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 14 of 75 MOTION FOR SUMMARY JUDGMENT 3 corridors and critical bull trout tributaries until the agency demonstrates compliance with INFISH habitat standards and completes required grazing plans. STATEMENT OF THE LAW I. NATIONAL FOREST MANAGEMENT ACT OF 1976 The National Forest Management Act governs management of the national forests. The NFMA establishes a two-step process for forest planning. First, the Forest Service must develop, maintain, and revise “land and resource management plans” (“Forest Plans”) for each national forest. 16 U.S.C. § 1604(a). Forest Plans guide natural resource management activities forest- wide, setting standards, management area goals and objectives, and monitoring requirements. Once a Forest Plan is in place, the Forest Service assesses site-specific actions in the second step of the forest planning process. All site-specific decisions that authorize “the use and occupancy of National Forest System lands shall be consistent with the [Forest Plans].” Id. § 1604(i); see Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 850 (9th Cir. 2013) (“After a Forest Plan has been developed and implemented, the NFMA prohibits site-specific activities that are inconsistent with the governing Forest Plan.”); 36 C.F.R. § 219.15(b) (“activities authorized after approval of a [Forest Plan], plan amendment, or plan revision must be consistent with the plan”). Forest Service decisions to allow grazing through permits, allotment management plans, and annual grazing instructions “all . . . must be consistent with the applicable Forest Plan.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073, 1077 (9th Cir. 2010). The NFMA, through the Forest Service’s implementing regulations, requires the agency to prepare an allotment management plan (“AMP”) for every national forest grazing allotment and that the “analysis and plan will be updated as needed.” 36 C.F.R. §§ 222.2(b), (c). An AMP Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 15 of 75 MOTION FOR SUMMARY JUDGMENT 4 specifies the extent and manner of grazing that may occur on an allotment in order to meet a specific set of objectives. 43 U.S.C. § 1752(d); 36 C.F.R. § 222.1(b)(2). It is intended to be a longer range plan than the annual decisions that make “fine tune” adjustments from one year to the next, yet still must be consistent with broader management parameters outlined in the Forest Plan. See Or. Natural Desert Ass’n v. U.S. Forest Serv. (“ONDA”), 465 F.3d 977, 479 (9th Cir. 2006) (outlining the different types of Forest Service grazing decisions). II. NATIONAL WILD AND SCENIC RIVERS ACT OF 1968 Congress enacted the Wild and Scenic Rivers Act to identify rivers that possess “outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values” and to preserve those rivers in free-flowing condition and protect their immediate environments “for the benefit and enjoyment of present and future generations.” 16 U.S.C. § 1271. Once a river corridor is designated, the federal agency charged with administration of that corridor must prepare a comprehensive river management plan “to provide for the protection of the river values”; to “address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes” of the Act; and to coordinate the river plan with land use planning. Id. § 1274(d)(1). Every river included in the system, regardless of its classification as wild, scenic, or recreational, “shall be administered in such manner as to protect and enhance the values which caused it to be included in said system.” Id. “[P]rimary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features.” Id. In addition to protection of a river’s free-flowing condition and outstandingly remarkable values, the WSRA specifies that managing agencies must protect the water quality of all rivers added to the system. Id. §§ 1271, 1283(c). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 16 of 75 MOTION FOR SUMMARY JUDGMENT 5 STATEMENT OF RELEVANT FACTS I. MALHEUR AND NORTH FORK MALHEUR WILD AND SCENIC RIVERS In 1988, Congress protected 39.2 miles of these two rivers under the WSRA, from their headwaters in the Strawberry and Monument Rock Wilderness areas of northeast Oregon’s Blue Mountains, to where they leave the Malheur National Forest near Juntura, Oregon and flow east to eventually join the Snake River near the Idaho border. Pub. L. 100-557, codified at 16 U.S.C. §§ 1274(a)(83), (89). The 13.7-mile-long Malheur Wild and Scenic River corridor and the 25.5- mile-long North Fork Malheur Scenic River corridor encompass 3,743 and 7,017 acres of public land, respectively. P 5Supp 081. Both rivers boast outstanding ecological, geological, and other characteristics. The corridors provide important habitat for wildlife species such as beaver, elk, bald eagles, osprey, Greater sage-grouse, and spotted frogs. The rivers and their tributaries provide critical spawning, rearing, and migratory habitat for bull trout, redband trout, and other important native fish species. See PAR 235–39, 288–393, 487–91, 526–607 (resource and environmental assessments, and river management plans). Bull trout populations and habitat are among the recognized “outstandingly remarkable values” of the rivers. PAR 0238, 0490. II. BULL TROUT (SALVELINUS CONFLUENTUS) The bull trout is a non-anadromous2 fish native to the Pacific Northwest and Northern Rockies. The fish has an olive green to bronze back with pale yellow, orange, or salmon-colored spots. Resident bull trout spend their entire lives in the same stream, while migratory bull trout 2 This means that the fish spends its entire life cycle in freshwater, as opposed to moving to the ocean for part of its life history. SPAR 118 (INFISH glossary). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 17 of 75 MOTION FOR SUMMARY JUDGMENT 6 move to larger bodies of water to overwinter and then migrate back to smaller waters to reproduce beginning in mid-August each year.3 Bull trout were historically widely distributed and abundant in major river systems as well as smaller mountain streams. During the last 100 years, human activities such as grazing, logging, road construction, dams, mining, and urban development have devastated bull trout habitat. This has caused widespread and significant population declines and local extirpations. Isolated local populations, like the two at issue in this case, are particularly vulnerable to stochastic events. See Bull Trout Recovery Plan4 at 1, 9–13; see also Friends of the Wild Swan v. Thorson, No. 3:16-cv-0681-AC (D. Or. filed Apr. 19, 2016) (challenging Recovery Plan based in part on concern over loss of isolated but critical populations like those in the Malheur and North Fork). Bull trout are extremely sensitive to changes in their habitat. Compared to other salmonids, bull trout have more specific habitat requirements that influence their distribution and abundance. They require very cold water with clean gravel in headwater creeks on which to spawn. They need frequent, deep pools in streams and stable, overhanging banks protected by tall, dense, woody vegetation (such as willow and alder) that provide places to stay cool and take cover from predators. Bull trout also require migration corridors where water temperature and habitat conditions are conducive to their survival and long-term presence. See Revised 3 See U.S. Fish & Wildlife Service (“USFWS”), Species Profile for Bull Trout (Salvelinus confluentus), available at http://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=E065 (last visited Nov. 8, 2016). 4 USFWS, Recovery Plan for the Coterminous United States Population of Bull Trout (Salvelinus confluentus), Pacific Region, USFWS, Portland, Ore. (2015), available at https://www.fws.gov/pacific/bulltrout/pdf/Final_Bull_Trout_Recovery_Plan_092915.pdf (last visited Nov. 8, 2016). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 18 of 75 MOTION FOR SUMMARY JUDGMENT 7 Designation of Critical Habitat for Bull Trout in the Coterminous United States, 75 Fed. Reg. 63,898, 63,898, 63,928–32 (Oct. 18, 2010) (describing habitat and life history requirements); PAR 2108–10 (1998 USFWS biological opinion summarizing same). Scientific research has demonstrated the precarious nature of the remaining bull trout populations and established the need to protect these populations from the human activities that have caused their decline. This research formed the basis for the decision to protect bull trout under the Endangered Species Act in 1998. See Determination of Threatened Status for the Klamath River and Columbia Basin River Distinct Population Segments of Bull Trout, 63 Fed. Reg. 31,647 (June 10, 1998). In 2005, Oregon’s Department of Fish and Wildlife (“ODFW”) reported that bull trout in both the Malheur and North Fork Malheur rivers were failing to meet the state’s distribution, abundance, and productivity criteria defined in Oregon’s Native Fish Conservation Policy, OAR 635-007-0507. Oregon Native Fish Status Report, Vol. I at 140–41.5 The Upper Malheur population (on the main stem Malheur River) also fails the hybridization criterion because of interactions with brook trout that were stocked in the system in the 1920s and 1930s. Id. According to the ODFW, populations with fewer than 100 spawning adults are at risk of inbreeding and therefore fail the abundance criterion. Id., Vol. II at 513. The agency estimates that there are only 202 adult bull trout left in the North Fork Malheur River system. Id. Because “neither population exceeds 1,000 adults[, ]both are considered at risk of the deleterious effects 5 ODFW, Oregon Native Fish Status Report, Volume I: Species Management Unit Summaries & Volume II: Assessment Methods and Population Results, Oregon Dep’t of Fish & Wildlife, Fish Division, Salem, Ore. (2005), available at http://www.dfw.state.or.us/fish/ONFSR/ (last visited Nov. 8, 2016) and relevant excerpts attached hereto as Exhibit 1. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 19 of 75 MOTION FOR SUMMARY JUDGMENT 8 of genetic drift.” Id. In fact, the total number of adults in both rivers combined is “estimated to be fewer than 1,000.” Id., Vol. I at 143. In a 2008 status review (following the Endangered Species Act listing a decade earlier), the U.S. Fish and Wildlife Service (“USFWS”) evaluated bull trout populations, abundance, and trend. The number of core area bull trout populations “at risk” or at “high risk” had continued to increase, and “the smallest core areas tend to be at a higher risk.” Bull Trout 5-Year Review, at 14; see also id. at 34 (table showing Malheur River core area with population abundance of just 50–250 adult fish, a “declining” short-term trend, a “substantial, imminent” threat rank, and a final rank of “high risk”).6 Recent research confirms the importance of preserving all remaining populations of bull trout. This is based on the need to preserve genetic variation in different populations, the fact that many existing populations are isolated and threatened with extirpation, and the wide-ranging nature of the species.7 In 2012, the USFWS described the North Fork Malheur River bull trout population as being of “special concern” for extinction. P 4Supp 03008–09. Meanwhile, the Upper Malheur River population remains at “high risk” of extinction. P 4Supp 03008–10. According to a 2013 USFWS memo (Exhibit 2), both of these small core populations—crucial “building blocks for conserving bull trout”—are “blinking” out. Both populations are isolated from each other and 6 USFWS, Bull Trout (Salvelinus confluentus) 5-Year Review: Summary and Evaluation, U.S. Fish & Wildlife Service, Portland, Ore. (2008), available at https://www.fws.gov/pacific/bulltrout/5yrreview.html (last visited Nov. 8, 2016). 7 See, e.g., Ardren, W. R., et al. 2011. Genetic structure, evolutionary history, and conservation units of bull trout in the coterminous United States. Transactions of the Am. Fisheries Soc’y, 140(2), 506–25 (genetic variation study concluding that focusing on watershed-specific “core areas” is the most appropriate ecological and demographic unit for assessing biological viability and status of the species), available at http://www.tandfonline.com/doi/abs/10.1080/00028487.2011.567875?journalCode=utaf2 0#.VHzl_4em1-Y (last visited Nov. 8, 2016). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 20 of 75 MOTION FOR SUMMARY JUDGMENT 9 from other Snake River populations by impassable dams on the lower Malheur and North Fork Malheur Rivers. See 75 Fed. Reg. at 64,035; Bull Trout Recovery Plan at 41 (Fig. 8). III. LIVESTOCK GRAZING DAMAGES FISH HABITAT Most of the negative effects on riparian vegetation in the Intermountain West are caused by excessive grazing, with degradation particularly acute in areas grazed during hot, dry, mid- summer months. See Third Beschta Decl. (filed herewith), Attach. A. Cattle exhibit a strong preference for grazing in riparian zones because of the availability of water, shade, vegetation, cover, and flat ground. See P 4Supp 03017–20 (USFWS describing direct and indirect effects of livestock grazing on bull trout); Second Kauffman Decl. (filed herewith) ¶ 6. Grazing in and around riparian areas diminishes the vigor, composition, and amount of vegetation. SPAR 82 (environmental assessment for the bull trout-focused INFISH Strategy); see also Second Kauffman Decl. ¶ 7; Rhodes Decl. (Dkt # 84) ¶¶ 16–18 & Attachments 1–6 (describing and illustrating the attributes of healthy riparian areas and aquatic habitat), ¶¶ 18–21 (describing generally the effects of grazing on these areas and habitat). This can increase soil erosion, decrease bank stability, and reduce the amount of shade and cover in a stream. SPAR 82. Bank damage in particular results in stream channels growing wider and causes excess sedimentation. Id. When streamside plant cover and shade are removed, and channels become wider and shallower, water temperatures increase. P 4Supp 3022–23. Grazing also compacts the soil in meadow and riparian areas next to streams, which reduces water infiltration and hydrologic connectivity. Third Beschta Decl. ¶ 15 & Attach. D (hereafter “Field Review”) at 4, 6, 9–10; Second Kauffman Decl. ¶ 27; Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 21 of 75 MOTION FOR SUMMARY JUDGMENT 10 Rhodes Decl. ¶ 46. Compacted soils cause the water table to drop; as a result, naturally occurring, moist-soil plants are replaced by mesic (dry soil) plants. P 4Supp 3022–23. Degraded water quality as a result of livestock grazing negatively impacts salmonid production. Third Beschta Decl. ¶ 19; Rhodes Decl. ¶¶ 32–37. Many studies have concluded that “the removal of cattle can result in dramatic changes in riparian vegetation, even in semi-arid landscapes and without replanting or other active restoration efforts.” Third Beschta Decl., Attach. E (recent study from Hart Mountain National Antelope Refuge in eastern Oregon documenting dramatic riparian recovery 23 years after removal of cattle); see also id., Attach. A (“Removing or reducing livestock across large areas of public land would alleviate a widely recognized and long-term stressor and make these lands less susceptible to the effects of climate change.”). IV. AUTHORIZATION OF LIVESTOCK GRAZING ON NATIONAL FORESTS Under the NFMA, the Forest Service must ensure that all activities on national forests are consistent with the relevant Forest Plan, as described more fully below. 16 U.S.C. § 1604(i). Under the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701–1787, the Forest Service may allow livestock grazing on specified allotments on national forests. See generally ONDA, 465 F.3d at 979; Or. Natural Desert Ass’n v. Sabo, 854 F. Supp. 2d 889, 901– 02 (D. Or. 2012); Or. Natural Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982, 991 (D. Or. 2010) (each describing authorization and management of grazing on national forests). An allotment is a “designated area of land available for livestock grazing.” 36 C.F.R. § 222.1(b)(1).8 The Forest 8 In the underlying forest plan, the agency allocates areas as available or not available for different uses including livestock grazing. See 16 U.S.C. § 1604(e)(1); Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1092–93 (9th Cir. 2003). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 22 of 75 MOTION FOR SUMMARY JUDGMENT 11 Service divides allotments into smaller units or “pastures.” There are seven allotments at issue in this case: the Spring Creek, North Fork, Flag Prairie, and Ott allotments along the North Fork Malheur River, and the Dollar Basin/Star Glade, Bluebucket, and Central Malheur allotments along the Malheur River. See P 4Supp 11780, 11919–25 (allotment maps); P 4Supp 2651, 2816 (overview maps of allotments along Malheur and North Fork Malheur rivers); Miller Decl. (filed herewith), Attach. A (maps highlighting the Wild and Scenic River corridor and bull trout habitat units of concern to ONDA). The agency authorizes and manages grazing on specified allotments by issuing (1) a grazing permit pursuant to 43 U.S.C. § 1752(a) and 36 C.F.R. § 222; (2) an allotment management plan (“AMP”) pursuant to 43 U.S.C. § 1752(d) and 36 C.F.R. § 222.1(b); and (3) variously-named annual grazing decisions. The decisions serve different purposes. A grazing permit is a site-specific, revocable license authorizing livestock to use national forest lands. 36 C.F.R. § 222.1(b)(5); 43 U.S.C. § 1702(p). A permit establishes: (1) the maximum number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use. See 36 C.F.R. §§ 222.1–222.4; 43 U.S.C. § 1752. The Forest Service generally issues permits for 10-year periods. See 36 C.F.R. § 222.3(c)(1). At present, there are eleven Forest Service-issued permits allowing private individuals to graze livestock on public lands on seven allotments that include portions of the Malheur and North Fork Malheur Wild and Scenic River corridors. See Exhibit 3 (tables compiling permits and annual grazing authorizations). The Forest Service is required to prepare an AMP for each allotment. ONDA, 465 F.3d at 980. An AMP “specifies the program of action ... to meet [, inter alia,] the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands involved” Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 23 of 75 MOTION FOR SUMMARY JUDGMENT 12 and includes provisions relating to grazing objectives “as may be prescribed by the [Forest Service], consistent with applicable law,” 36 C.F.R. § 222.1(b); 43 U.S.C. §§ 1702(k)(1), 1752(d), including the applicable forest plan. “While a forest plan is an overarching land management directive for an entire forest-wide unit within the National Forest System, the AMP is a land management directive for a specific allotment within a national forest that the Forest Service has designated for livestock grazing.” ONDA, 465 F.3d at 980. Finally, prior to each grazing season, the Forest Service issues annual operating instructions (“AOIs”) or other allotment-specific annual direction that “sets out instructions to the permittee for that season’s grazing operations.” Sabo, 854 F. Supp. 2d at 902.9 “Whereas the AMP relates the directives of the applicable forest plan to the individual grazing allotment, and the grazing permit sets grazing parameters through a ten-year period, the AOI annually conveys these more long-term directives into instructions to the permittee for annual operations.” ONDA, 465 F.3d at 980. Through these annual grazing decisions, the Forest Service informs permittees of dates for moving cattle onto and off of an allotment, and from one unit to another within the allotment, applicable standards, any outstanding management issues, and other concerns. Id. at 979–81, 984–85. The number of cattle authorized for release that year, combined with the specified time period, are together known as the “authorized use.” See Forest Service Manual 2230.5.10 The basic measure of authorized use is the “animal unit month” or “AUM.”11 9 In the record, these annual grazing decisions are variously labeled as annual operating instructions (“AOIs”), annual operating plans (“AOPs”), letters of instruction or direction, or grazing permit modifications. Regardless of the name, these annual decisions are functionally equivalent. See ONDA, 465 F.3d at 979 n.3; Or. Natural Desert Ass’n v. U.S. Forest Serv., 312 F. Supp. 2d 1337, 1340 n.1 (D. Or. 2004). 10 Available at http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsm?2200 (last visited Nov. 8, 2016). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 24 of 75 MOTION FOR SUMMARY JUDGMENT 13 V. INFISH AND GRAZING STANDARDS IN THE MALHEUR FOREST PLAN A. INFISH Riparian Management Objectives and Standard GM-1 In 1995, the Forest Service adopted the Inland Native Fish Strategy (“INFISH”) “to arrest habitat degradation” caused by grazing and other human activities “and initiate recovery” of inland fish habitat throughout the West. SPAR 86. The agency explained that monitoring from 28 national forests in Oregon and surrounding states, including the Malheur National Forest, showed “that many watersheds in the analysis area are below Forest Plan standards, or exceed thresholds of concern.” SPAR 57. In the INFISH environmental assessment, the Forest Service found that, “[g]enerally, the percent of pool habitat and quality, and large woody debris recruitment in riverine systems has declined, migratory corridors blocked, and riparian vegetation disturbed greater than what is acceptable.” SPAR 89. “As a result, the fish habitat carrying capacity of these streams has been diminished and a declining trend in the security of native fish populations observed.” Id. The decline was due to factors including habitat loss caused by livestock grazing. Id. The Forest Service adopted INFISH as an amendment to the Malheur Forest Plan. SPAR 7 (Decision Notice). The agency declared that under INFISH, “[w]here grazing has contributed to unstable stream banks, loss of vegetative cover and shade, and increased sedimentation, the trend toward such habitat degradation would be reversed.” SPAR 86 (description of selected alternative). Implementation of the INFISH standards and monitoring requirements on streams degraded by grazing “would provide improved soil stability, additional stream shading, and 11 The Forest Service measures the “forage” it authorizes to be consumed by cattle in terms of AUMs. An AUM is the amount of vegetation required to support one cow or one cow/calf pair for one month. It is approximately 800 pounds of vegetation. See also https://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5260382.pdf (last visited Nov. 8, 2016) (glossary of Forest Service grazing terminology). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 25 of 75 MOTION FOR SUMMARY JUDGMENT 14 continuing supplies of large woody debris.” Id. Meanwhile, “sediment loading, bank damage, loss of shade, and water temperature increases, or the loss of large woody debris from the riparian area would be substantially reduced.” Id. INFISH was intended to be an 18-month, interim strategy. See SPAR 6. However, it has since served as a long-term strategy that continues to apply to activities on the Malheur National Forest because it is incorporated into the Forest Plan. See PAR 2138 (USFWS 1998 biological opinion explaining that there would be “continued implementation of [Forest Plans] as amended by PACFISH[12] and INFISH” and that “[standards and guidelines] in the PACFISH and INFISH strategies will be strictly implemented as written”); see also Friends of the Wild Swan, Inc. v. U.S. Forest Serv., 966 F. Supp. 1002, 1010 (D. Or. 1997) (noting INFISH “was extended administratively” and thus “remain[s] in effect”). Riparian Management Objectives To recover degraded fish habitat, INFISH establishes “riparian management objectives, standards and guidelines, and monitoring requirements” that apply to activities that damage streams. SPAR 53. The Riparian Management Objectives, or RMOs, are habitat parameters that describe essential habitat for fish: bank stability, bank angle, stream width-to-depth ratio, pool frequency, presence of large woody debris, and water temperature. SPAR 24–26, Table A-1. Importantly, the Forest Service selected the RMOs because they are “measurable”—that is, quantitative—and therefore subject to objective, repeat measurement. See SPAR 25. RMOs “provide the criteria against which attainment or progress toward attainment of the riparian goals is measured.” SPAR 24. For example, the “lower bank angle” standard requires more than 75% of stream banks to be “undercut” and therefore overhanging. SPAR 26. That provides shaded 12 PACFISH is a similar aquatic conservation strategy for anadromous fish. PAR 2084–85. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 26 of 75 MOTION FOR SUMMARY JUDGMENT 15 areas of cold water where bull trout can forage, rest, and hide from predators. PAR 2108 (USFWS description of bull trout habitat requirements). Actions that reduce or degrade habitat quality are inconsistent with INFISH: “Without the benchmark provided by measurable RMOs, habitat suffers a continual erosion.” SPAR 25. Grazing Standard GM-1 To achieve the RMOs, INFISH established a series of standards and guidelines that apply to projects and activities on national forests. SPAR 28. These standards and guidelines “provide management direction believed necessary to meet Riparian Goals and RMO’s [sic] for stream channels, riparian areas, and watersheds.” SPAR 74. Under INFISH grazing standard GM-1 the Forest Service must [m]odify 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. SPAR 31. Modifications may include reducing numbers of livestock or “season of use, changes in handling practices or the complete removal of livestock from [Riparian Habitat Conservation Areas].” SPAR 98.13 “Retard” means “to slow the rate of recovery below the near natural rate of recovery if no additional human caused disturbance was placed on the system.” SPAR 28. The “do not retard” standard thus prohibits continuation of status quo grazing practices where those practices degrade riparian conditions or merely maintain degraded 13 Riparian Habitat Conservation Areas are parts of watersheds where riparian-dependent resources are to receive primary emphasis under INFISH. SPAR 26. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 27 of 75 MOTION FOR SUMMARY JUDGMENT 16 conditions. And again: if modifying grazing does not lead to habitat recovery, the Forest Service must “suspend grazing.” SPAR 31. INFISH includes guidance on how to comply with the GM-1 standard. Under the strategy’s “Recommended Livestock Grazing Guidelines,” any livestock grazing the Forest Service decides to authorize “must result in riparian restoration at a minimum of ‘near natural’ rates.” SPAR 208. Defining “near natural rate of recovery,” the agency explains, “Any effect that carrys [sic] over to the next years is likely to result in cumulative negative effects, and measurably slow recovery of degraded riparian features.” SPAR 212. INFISH also provides guidelines for modifying grazing management decisions including AOIs to ensure that fish habitat restoration objectives are met. SPAR 209. It emphasizes that the Forest Service should “adjust management practices” where the trend is static or downward. Id. It emphasizes that the agency must monitor stream and riparian conditions in all allotments and pastures, report the results of that monitoring on an annual basis, and make “appropriate adjustments . . . to the annual operating plans.” SPAR 210. B. The Forest Plan’s Bank Stability Standard In 1994, the Forest Service adopted Amendment 29 to the Malheur Forest Plan. PAR 870–84. The amendment includes a number of quantitative aquatic standards relating to sediment and substrate, water quality, channel morphology, and riparian vegetation. Most are identical to the INFISH RMOs that were adopted the following year, described above. See PAR 880–84; see also SSPAR 2374–76 (charts comparing INFISH RMOs to Amendment 29 standards). There is one significant difference relevant to this Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 28 of 75 MOTION FOR SUMMARY JUDGMENT 17 case: while INFISH imposed an 80% bank stability standard (SPAR 26), Amendment 29 requires banks to be at least 90% stable, and permits no decrease in bank stability if banks are currently above 90% stable. PAR 883. This more protective 90% standard applies to the rivers and tributaries at issue in this case. SPAR 9, 57–58 (INFISH providing that it amends the Forest Plan “except where existing Forest Plan direction provides more protection for inland native fish habitat”); see also P 4Supp 7673 (table summarizing standards). C. Narrative Forest Plan Standards The Malheur Forest Plan also includes narrative standards for “non-anadromous riparian areas”—that is, along streams used by bull trout and other non-anadromous fish. SPAR 1, IV-55 to -61. These include grazing-related standards regulating vegetation and stream channel morphology: to provide “the necessary habitat to maintain or increase populations” of bull trout; to manage riparian vegetation to “emphasize reestablishment of remnant hardwood shrub and tree communities”; to “[i]mprove the rate of recovery in poor condition riparian areas”; to eliminate or reduce the impacts of management activities that may slow riparian recovery; to enhance water quality and fish habitat; to manage grazing allotments “to protect or enhance riparian-dependent resources”; to manage grazing so that water quality meets Oregon state water quality standards and fish populations are maintained or in an upward trend; and to maintain sufficient “streamside vegetation to maintain streambank stability and fish habitat capability.” Id. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 29 of 75 MOTION FOR SUMMARY JUDGMENT 18 D. Monitoring Monitoring is essential to understanding whether plan implementation is meeting specified objectives and requirements. See SPAR 37 (monitoring “is an important component” of INFISH); SPAR 1, V-5 (“Monitoring and evaluation comprise the management control system for the Forest Plan.”); see also P 5Supp 061 (USFWS noting monitoring “is critical” to assessing the effect of grazing on bull trout, and that “[t]here should be no N/As [no monitoring data] in the table without a thorough discussion as to why.”). The Forest Service conducts several different types of monitoring pertinent to this case; however, as ONDA has described previously, much of it is qualitative rather than quantitative, and it is scattershot at best. See Plaintiffs’ Reply on Cross-Motions for Summ. J. (Dkt # 212) at 20–22 (describing Multiple Indicator Monitoring, Proper Functioning Condition assessments, greenline surveys, photo points, and spawning surveys); see also P 4Supp 2708–12 (Forest Service biological assessment for bull trout describing various types of monitoring). Over the past decade or so, the Forest Service also has established a regional PACFISH/INFISH Biological Opinion (“PIBO”) Monitoring program. The program is set up to collect data (some of which are the same as the INFISH RMOs) on fish habitat in the upper Columbia River basin including in the Malheur and North Fork Malheur river watersheds. See P 4Supp 11611–15 (describing program and methods). By taking measurements at sites on a rotating 5-year cycle, and comparing stream habitat conditions at sites in “managed” watersheds (watersheds exposed to disturbance from various management actions) to conditions at sites within “reference,” or relatively pristine, watersheds used as a benchmark of expected condition, PIBO teams can measure ecological trends over time. See P 4Supp 11611–12. Monitoring trend over time is the only way to calculate a rate of recovery (or absence of recovery)—in order to Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 30 of 75 MOTION FOR SUMMARY JUDGMENT 19 determine whether grazing is retarding or preventing attainment of RMOs. As the Forest Service correctly points out, “[w]ithout this [monitoring] information it is impossible to intelligently modify management in an attempt to affect the rate and direction of trend.” PAR 5546. Unfortunately, the record shows that the Forest Service has established only one or two PIBO sites within the North Fork Malheur River corridor and no sites within the Malheur River corridor.14 And—surprising given their importance as objective, quantifiable measures of essential fish habitat—the Malheur National Forest does not regularly monitor the biologically-based INFISH RMOs. See, e.g., PAR 4706 (stating, “We have not done specific measurements or monitoring of [RMOs].”). Instead, the agency mainly monitors what it calls “allowable use” “indicators” listed in each year’s annual grazing decisions. These are based upon a Grazing Implementation Monitoring Module the Forest Service developed in 1999 (PAR 2694–2727), revised in 2000 (PAR 3366–3442), and revised again slightly in 2002 (P 3Supp 2494–2560). The Module approximates vegetative components rather than measuring actual RMOs such as channel width-to-depth ratio. The proxies include mean residual “stubble height” (how tall leftover streamside grasses are at the end of the authorized grazing period), forage utilization (how much of the grass is eaten by livestock, calculated by weight and given as a percentage), and shrub utilization (the amount of new season’s growth on woody plant species, like willow and alder, eaten by livestock). 14 There do appear to be a few PIBO sites outside of the river corridors on some the allotments at issue. See, e.g., P 4Supp 11806, 11834, 11838, 11842, 11848 (maps showing one site each, outside of the river corridor, on Bluebucket, Flag Prairie, North Fork, Ott, and Spring Creek allotments); but see P 4Supp 11780, 11811 (maps showing no sites at all on Central Malheur and Dollar Basin/Star Glade allotments). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 31 of 75 MOTION FOR SUMMARY JUDGMENT 20 The Module also includes one physical component, “bank alteration.” See P 3Supp 2549– 53. As explained in more detail below, bank alteration is not the same as bank stability. This is because annual trampling from livestock damages stream banks and contributes to bank instability. Because recovery of damaged stream banks takes years to decades following removal of livestock, allowing certain levels of bank damage year after year will cumulatively result in stream banks below the 90% stability requirement imposed by Amendment 29. See infra Argument II.A.2. VI. MANAGEMENT OF LIVESTOCK GRAZING ALONG THE WILD AND SCENIC RIVERS A. Degraded Environmental Baseline The Malheur and North Fork Malheur Wild and Scenic Rivers and their tributaries are in bad shape. They are wide and shallow and lack the stable, overhanging banks and lush, biologically diverse streamside vegetation that make for healthy native trout habitat. They are mostly missing the deep, cold pools and woody debris that provide cover for bull trout. And because they lack shade and complex stream channel characteristics, the rivers and their tributaries are too warm for bull trout. See, e.g., Field Review at 1–2 (photographs illustrating the difference between grazed and ungrazed areas in Malheur and North Fork Malheur watersheds). These problems are not new to the Malheur National Forest. In 1993, when the Forest Service adopted management plans for the two Wild and Scenic Rivers, the agency identified livestock grazing as a problem throughout both river corridors. The plans describe that “[u]nsatisfactory riparian conditions currently exist within the river corridor[s]” and that “[c]urrent grazing levels routinely exceed Forest Plan standards” impairing plant composition, soil stability, and bank stability, and causing soil compaction, sedimentation, high water temperatures, a lack of instream pools, and “a reduction in potential for growing riparian Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 32 of 75 MOTION FOR SUMMARY JUDGMENT 21 vegetation.” PAR 369 (North Fork Malheur Scenic River plan); PAR 509, 592 (Malheur Wild and Scenic River plan). In 1999, shortly after the USFWS listed the bull trout as a threatened species, the Forest Service acknowledged in its Malheur Headwaters Watershed Analysis that “[g]razing by livestock continues as a predominant impact to stream habitat” and that “[g]enerally, more than 70 percent of parameters on a surveyed stream reach do not meet standards.” PAR 3854. Although conditions had improved since the days of unregulated grazing in the 1920s, current Forest Service standards for grazing may not fully provide for the re- establishment of hardwoods or lush grass and sedges along streambanks. The stubble height standard maintains grass on streambanks, but does not appear to allow for a thick growth of overhanging sedges and grasses and may not allow re- establishment of young shrubby vegetation. PAR 3855–56. “In summary,” wrote the agency, “the current grazing standards may be maintaining riparian zones in an at-risk condition for water quality and fish habitat.” PAR 3856. At that time, the Forest Service’s proxy standards for stubble height and shrub use had only been in place for two years and “careful monitoring should be conducted to get a better idea of the long-term results.” PAR 3856. Also in 1999, the Forest Service prepared the first of several sets of biological assessments (“BA”) of the effects of agency-authorized grazing on bull trout.15 The BAs include checklists in which the Forest Service summarizes (1) the baseline conditions of 24 bull trout “habitat indicators” (rated as functioning appropriately, functioning at risk, or functioning at 15 Under the Endangered Species Act, the Forest Service consults periodically with the USFWS regarding the impacts of authorized grazing on bull trout. See Tidwell, 716 F. Supp. 2d at 989–90 (overview of ESA § 7 consultation). When the Forest Service determines that a proposed action “may affect listed species or critical habitat,” it must prepare and submit to the USFWS a biological assessment (“BA”) on the effects of the action. 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(c). The USFWS responds with a “biological opinion.” 50 C.F.R. § 402.14(g)(4). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 33 of 75 MOTION FOR SUMMARY JUDGMENT 22 unacceptable risk) and (2) the effects of the proposed grazing on each indicator (rated as either restore, maintain, or degrade). Many of these habitat indicators correspond to INFISH RMOs, including stream temperature, large woody debris, streambank stability, pool frequency, and width-to-depth ratio. In its 1999 BAs of grazing on allotments within the Wild and Scenic River corridors, the Forest Service determined that on the Malheur River, 5 of 24 habitat indicators were “functioning appropriately,” 11 were “functioning at risk,” and 7 were “functioning at unacceptable risk.” PAR 2929. On the North Fork Malheur River, 7 were “functioning appropriately,” 11 were “functioning at risk,” and 5 were “functioning at unacceptable risk.” PAR 2768. In its next assessment, in 2003, the Forest Service determined, for both rivers, that only 2 indicators were “functioning appropriately,” while 10 were “functioning at risk” and 12 were “functioning at unacceptable risk.” PAR 6169–70. In its most recent assessment, in 2012, the Forest Service determined that on the Malheur River zero indicators are functioning properly, 10 are “functioning at risk,” and 14 are “functioning at unacceptable risk.” P 4Supp 02754–59. On the North Fork Malheur River, zero indicators are functioning properly, 9 are “functioning at risk,” and 15 are “functioning at unacceptable risk.” P 4Supp 02886–90. In other words, these crucial habitat indicators continue to get worse, rather than better. ONDA also drew the Forest Service’s attention to these problems starting many years ago. Starting in 1999, member Chris Christie began “reporting to the Forest Service about incidents of cattle trespassing, violation of grazing standards, and areas of chronic damage caused by cattle grazing.” Christie Decl. (Dkt # 85) ¶ 7. As he grasped the scope and severity of the damage being caused by the Forest Service’s grazing, Christie began what turned out to be Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 34 of 75 MOTION FOR SUMMARY JUDGMENT 23 several years of intensive monitoring. See id. ¶¶ 8–26 & Attach. 1 (Dkt # 85-1) (describing his monitoring and observations, and including his data and photographs); Third Christie Decl. (Dkt # 143) ¶¶ 3–19 & Attach. 1 (Dkt # 143-1) (describing further monitoring and observations, and again including further data and photographs); see also Driskill Decl. (Dkt # 86) ¶¶ 4–15 & Attach. 1 (Dkt # 86-1) (another plaintiff member describing her work for and with the Malheur National Forest since the late 1970s, and observations concerning grazing damage).16 Christie’s work was thorough and reliable; it should have put the Forest Service well on notice that its grazing problems were grave. See Kauffman Decl. (Dkt # 83) ¶ 15 (stating he “found Christie’s work to be more thorough and definitive that the qualitative/observational data present in the Agency Compliance Monitoring cards of the Malheur National Forest”); June 10, 2004 Opinion (Dkt # 114) at 12 (this Court stating, “Both the federal defendants and the intervenors criticize the usefulness of the Christie data, but it appears to have been collected using the Forest Service’s own protocol and is considered sound by plaintiffs’ experts.”). B. Compliance Problems and Continuing Resource Damage from Grazing The Malheur National Forest has a history of widespread and chronic non-compliance with grazing standards—not surprising given the degraded baseline. This Court “has repeatedly found the [Malheur National Forest] grazing program to be insufficiently protective of listed fish species.” Tidwell, 716 F. Supp. 2d at 992 (citing ONDA v. Lohn, 485 F. Supp. 2d 1190 (D. Or. 2007) and other cases); see also June 10, 2004 Opinion (Dkt # 114) at 19 (finding Forest Service 16 This data provided to the Forest Service by ONDA also is in the administrative record, and should have informed the Forest Service’s grazing decisions now at issue in the case, from 2006 to today. See Dkt # 207 at 5 (Forest Service index adding those materials to the administrative record in 2005). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 35 of 75 MOTION FOR SUMMARY JUDGMENT 24 grazing management was “clearly at odds with the statutory mandates related to the protection of the river corridors and the species that depend on them”). Although the Forest Service mostly has declined to measure actual RMOs, the information it does gather paints a picture of chronic and continuing grazing damage. More than a decade ago, ONDA outlined how Forest Service, USFWS, and ONDA’s own data evidenced that grazing was retarding and preventing attainment of INFISH RMOs, causing violations of stubble height, bank damage, and shrub use standards, and resulting in failures to meet Forest Plan and Wild and Scenic River plan requirements. See ONDA MSJ Br. (Dkt # 140) at 16–34. For example, by the end of 2004, Forest Service-authorized grazing on the River Unit of the Flag Prairie Allotment had failed to meet one or more standards each year since the bull trout was listed under the Endangered Species Act in 1998. See PAR 6619, 6642–43 (2004 BA); First Rhodes Decl. at ¶¶ 22, 26, Table 1 (stubble heights well below standards after 2003 grazing season), ¶¶ 41, 51, 55 (severe bank damage); PAR 5731 (2002 Forest Service report), PAR 5734–40, 5742–55, 5787–98 (report photos showing grazing damage); PAR 5299–5300 (2002 BA); PAR 4106 (2000 USFWS field memo). The story was similar over on the Malheur River. On the Dollar Basin/Star Glade Allotment, the Dollar and South Star Glade units failed to meet one or more standards every year from 2000 through 2004. See PAR 6619, 6636 (2004 biological opinion); PAR 6005–07 (2003 BA); PAR 6203 (2003 biological opinion); PAR 5443 (2002 BA). Despite these chronic problems, the Forest Service continues to authorize roughly the same grazing today as it has in years past. See Exhibit 3 (tables summarizing annual grazing authorizations, 2006–2015, for each allotment). And the violations of applicable grazing standards continue relatively unabated year after year. See Exhibit 4 (tables summarizing Forest Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 36 of 75 MOTION FOR SUMMARY JUDGMENT 25 Service-documented violations of AOI “indicators”); see also Third Beschta Decl. ¶¶ 8, 22 (stating that “my 2013 and 2016 field visits once again support the findings and conclusions I outlined more than a decade ago” and that “there have been no signs of recovery from livestock impacts in recent years and contemporary grazing practices continue to cause additional degradation along most reaches of the [rivers]”). On top of that, the Forest Service also has a serious problem with unauthorized use and trespass across allotment and unit boundaries. The record reveals an unending slew of incidents of cattle being released or escaping into the wrong areas at the wrong times, causing new damage or exacerbating existing damage. See Exhibit 4 (tables summarizing same). On the North Fork Malheur Scenic River, there have been exceedances of ecological standards, trespass or unauthorized grazing use, or both, every single year between 2006 and 2015 on both Spring Creek Allotment and Flag Prairie Allotment. Id. at 1–4, 7–10. On the North Fork Allotment, there have been violations or unauthorized use nine years out of ten. Id. at 5–6. Even on the Ott Allotment—where by Court-approved stipulation (Dkt # 94, 113) there is supposed to be no grazing at all within the Scenic River corridor—the number still stands at six out of ten. Id. at 11. During this time period, the Forest Service’s “batting average” for the percentage of non-rested units with no violations or unauthorized use stands at merely 63% for Spring Creek Allotment, 48% for Flag Prairie Allotment, 50% for Ott Allotment, and a paltry 33% for North Fork Allotment. Id. at 4, 6, 10, 11. In other words, only one-third of the time can the Forest Service manage to graze the North Fork Allotment without exceeding any ecological standards or violating permit and AOI terms regarding when and where cattle may graze. The story is similar on the Malheur Wild and Scenic River. On the Central Malheur and Bluebucket allotments, where canyon rimrock or fencing supposedly excludes livestock from the Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 37 of 75 MOTION FOR SUMMARY JUDGMENT 26 river corridor, there still has been unauthorized use or standards violations two and three years out of ten, respectively. Id. at 12–13. The agency’s compliance batting average for non-rested units stands at 90% and 87%, respectively, for these two allotments. Id. On the Dollar Basin/Star Glade Allotment, however, there have been standards violations or unauthorized use in eight out of the past ten years, and the Forest Service has only managed to get through a grazing season with no violations or unauthorized use on non-rested units a mere 62% of the time. Id. at 14–15. In 2013, the Forest Service approved a plan to build a fence to keep cattle out of the Malheur River on this allotment. DB 4Supp 0851. Despite that, there were still bank alteration violations and unauthorized use in 2014, and both bank alteration and upland utilization violations in 2015. See Exhibit 4 at 14. PROCEDURAL BACKGROUND ONDA filed this lawsuit in February 2003. The original complaint brought claims under the NFMA, the WSRA, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321−4370h. A month later, ONDA filed a companion case challenging decisions to allow grazing in Middle Columbia River steelhead (Oncorynchus mykiss) habitat on two other Malheur National Forest allotments in the adjacent John Day River basin. Or. Natural Desert Ass’n v. U.S. Forest Serv., No. 3:03-cv-381-HA (D. Or. filed Mar. 25, 2003). Concerned about the perilous status of the bull trout in the two Wild and Scenic River systems, ONDA sought preliminary injunctive relief in early 2004. Dkt # 79. The parties resolved ONDA’s motion as to the Ott Allotment when the permittee and Forest Service agreed to build and maintain a fence at the canyon rim to prevent livestock from getting down into the North Fork Malheur River from that allotment. See Dkt ## 94, 113 (stipulation and court order approving it). That stipulation and order remain in force today. Although Judge King initially Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 38 of 75 MOTION FOR SUMMARY JUDGMENT 27 granted a 10-day temporary restraining order (Dkt # 112) prohibiting grazing in allotment units “adjacent to and not separately fenced from” the rivers, he declined to grant a season-long injunction. The Court explained that its decision “turn[ed] primarily on a balancing of the hardships” based on concern about entering an injunction “on the eve of the grazing season.” June 10, 2004 Opinion (Dkt # 114) at 7. But having said that, Judge King then made crystal clear how strong ONDA’s case was. The Court explained that ONDA had submitted “fairly convincing evidence that the Forest Service’s management of livestock grazing has caused ecological damage to the riparian habitats of the Malheur and North Fork Malheur river corridors and their watersheds.” Id. at 12. The Court accepted ONDA’s experts’ conclusion “that grazing occurring in these corridors is not only retarding attainment of these RMOs, but is often times causing continued damage” and that ONDA’s “evidence also suggests that the Forest Service is failing to meet the Forest Plan and river plans’ standards that are more narrative in nature.” Id. And although he acknowledged the Forest Service’s last-minute promises to reduce grazing in a couple places, Judge King noted that “because of the substantial evidence suggesting that full resting may be needed in many of the areas, I am doubtful that these changes will fully remedy the harms at issue” Id. at 13. In sum, wrote the Court, “Plaintiffs have made a strong showing that standards are not being met and that they are likely to prevail in proving violations of the WSRA and NFMA provisions at issue.” Id. at 15; see also id. at 18 (“Overall, I conclude based on the evidence before me that plaintiffs have made a strong showing on the merits and I conclude that grazing is likely causing ecological damage in the areas at issue.”). Business as usual was no longer an option. Observing that “the way in which grazing has been managed on these lands is clearly at odds with the statutory mandates related to the Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 39 of 75 MOTION FOR SUMMARY JUDGMENT 28 protection of the river corridors and the species that depend on them,” the Court suggested that the Forest Service consider “drastic changes” to how it manages grazing in these areas. Id. at 19. The Court warned the agency and permittees that “an injunction before the start of the next grazing season may ultimately be the way in which this case is resolved.” Id. In closing, Judge King admonished, “I hope it goes without saying that the court is expecting full compliance with the terms of the 2004 AOIs.” Id. at 20. While the parties were briefing summary judgment, the Court transferred the case to Judge Jones. Dkt # 160. Judge Jones then dismissed ONDA’s case (Dkt # 229), reversing Judge King’s earlier decision (Dkt # 67) denying the Forest Service’s motion to dismiss on the basis that the agency’s annual grazing decisions were not “final agency action” reviewable under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. See ONDA v. USFS, 312 F. Supp. 2d at 1343 (Judge King denying motion to dismiss). Judge Haggerty followed his colleague’s lead and dismissed the 03-381 companion case. ONDA appealed. Dkt # 230. In 2006, the Ninth Circuit reversed, ruling that Forest Service annual grazing decisions are final agency actions reviewable pursuant to the APA. ONDA, 465 F.3d at 990; Or. Natural Desert Ass’n v. U.S. Forest Serv., No. 06-35689, 2006 WL 2711934 at *1 (9th Cir. Sept. 21, 2006) (same for the 03-381 case). The Ninth Circuit remanded to this Court to consider the merits of ONDA’s claims in both cases. On remand, the 03-381 case moved ahead of this case and was consolidated with a third case targeting grazing damage to steelhead and bull trout habitat on more than a dozen other Malheur National Forest allotments. Or. Natural Desert Ass’n v. Kimbell, No. 2:07-cv-1871-HA (D. Or. filed Dec. 21, 2007). In May 2008, this Court enjoined the Forest Service from authorizing grazing that year on two allotments based on damage to steelhead habitat from Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 40 of 75 MOTION FOR SUMMARY JUDGMENT 29 livestock grazing in 2007. Kimbell, No. 07-1871-SU, 2008 WL 4186913 at *8 (D. Or. Sept. 5, 2008). In June 2009, the Court granted further preliminary relief, this time ordering the agency to carry out a series of monitoring and mitigation measures to protect streamside areas. Or. Natural Desert Ass’n v. Kimbell, No. 07-1871-HA, 2009 WL 1663037 (D. Or. June 15, 2009). In June 2010, the Court granted summary judgment on most aspects of ONDA’s NFMA and Endangered Species Act claims in the 03-381/07-1871 case. Tidwell, 716 F. Supp. 2d at 1004, 1005–06, 1006–07, 1007–08. And in December 2010, the Court issued a permanent injunction continuing the earlier injunctions’ protective measures and prohibiting grazing on four allotments pending completion of a new biological opinion by the National Marine Fisheries Service. Or. Natural Desert Ass’n v. Tidwell, No. 2:07-cv-1871-HA, 2010 WL 5464269 (D. Or. Dec. 30, 2010). At that point, the parties began to explore settlement of this case. They held off-and-on discussions for several years as the 03-381/07-1871 case wound down. In 2014, they began to work with Judge Coffin on settlement. See Dkt # 364 (Joint Status Report). After more than a year, the parties concluded that they were unable to settle the case. Earlier this year, ONDA filed a Fifth Supplemental and Amended Complaint (Dkt # 400) to challenge Forest Service decisions authorizing livestock grazing from 2010 to present, while maintaining its existing challenges to such decisions reaching back to 2006—representing a decade of grazing authorizations in which the Forest Service has continued to demonstrate a pattern and practice of failing to comply with its duties under the NFMA and WSRA. ARGUMENT I. STANDARD OF REVIEW This action is governed by the Administrative Procedure Act, which directs that the Court “shall” set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 41 of 75 MOTION FOR SUMMARY JUDGMENT 30 not in accordance with law.” 5 U.S.C. § 706(2)(A); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989). While review under the “arbitrary and capricious” standard is narrow, a court’s inquiry must be “searching and careful,” and an agency must articulate a rational connection between the facts found and the conclusions made. Marsh, 490 U.S. at 378. This Court “must disapprove the agency’s action” “where the agency’s reasoning is irrational, unclear, or not supported by the data it purports to interpret.” N.W. Coalition for Alternatives to Pesticides v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir. 2008) (internal quotes omitted). A decision is arbitrary and capricious if the agency 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 is 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). An agency’s decision can be upheld only on the basis of the reasoning found in that decision. Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). II. NATIONAL FOREST MANAGEMENT ACT VIOLATIONS The Forest Service violated the NFMA in two ways: first, by authorizing livestock grazing that is inconsistent with requirements imposed by the Forest Plan, and therefore in violation of the legal requirement that site-specific actions must be consistent with the forest plan, 16 U.S.C. § 1604(i); and second, by failing to prepare or update allotment management plans for six of the seven grazing allotments at issue in the case, as required by Forest Service NFMA-implementing regulations. 36 C.F.R. §§ 222.2(b), (c). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 42 of 75 MOTION FOR SUMMARY JUDGMENT 31 A. The Forest Service Violated NFMA by Authorizing Grazing That is Inconsistent with INFISH, Forest Plan Amendment 29, and Forest Plan Priorities. The Forest Service violated NFMA when it issued grazing permits and annual grazing authorizations17 without evaluating and describing how the authorized grazing is consistent with the Forest Plan’s INFISH Standard GM-1 and Amendment 29 bank stability standard in light of years of evidence the grazing is failing to meet standards. The agency also failed to ensure the permits and annual authorizations are consistent with narrative Forest Plan standards that prioritize stream and riparian fish habitat over livestock grazing. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(d) (each “project or activity approval document must describe how the project or activity is consistent with applicable plan components developed or revised in conformance with this part”); see also Buckingham, 603 F.3d at 1077 (describing the three different types of site- specific grazing actions, “all of which must be consistent with the applicable Forest Plan”); Native Ecosystems Council v. Tidwell, 599 F.3d 926, 934 (9th Cir. 2010) (Forest Service required to assess proposed actions on a “site-specific” basis for compliance with Forest Plan); Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1062 (9th Cir. 2002) (Forest Service must show that each project it approves is consistent with Forest Plan). 1. INFISH Standard GM-1 requires the Forest Service to “modify grazing practices . . . that retard or prevent attainment of [RMOs]” and to “[s]uspend grazing if adjusting practices is not effective in meeting [RMOs].” SPAR 31. The requirement to modify grazing practices that retard attainment of RMOs means that the Forest Service must modify grazing if it “slows[s] the rate of recovery below the near natural rate of recovery.” SPAR 28. In other words, to comply with this standard, 17 Exhibit 3 identifies the permits and annual grazing authorizations challenged in ONDA’s complaint. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 43 of 75 MOTION FOR SUMMARY JUDGMENT 32 the Forest Service must quantitatively ascertain a stream’s progress toward attaining RMOs before authorizing grazing, and then make the changes needed in order to achieve a near natural rate of fish habitat recovery. Just as this Court held in Tidwell, the Forest Service’s AOIs here violate NFMA because there is “little in the record to suggest that the Forest Service has gathered enough data to effectively determine whether it is in compliance with PACFISH or the [Forest Plan], and there is even less evidence to suggest that it has actually evaluated that data in an effort to ascertain their compliance.” 716 F. Supp. 2d at 1008. Here, data show that both the Malheur and North Fork Malheur Wild and Scenic Rivers and many of their tributary streams are not meeting RMOs and are in a static or downward trend—rather than in demonstrated near-natural recovery. Despite that, each and every permit and annual authorization issued by the Forest Service between 2006 and 2015 fails to discuss or evaluate in any way whether streams on the allotments are attaining RMOs and whether the authorized grazing would be consistent with Standard GM-1. This failure to draw rational connections between facts found and choices made is the quintessence of “arbitrary and capricious” agency action. See Marsh, 490 U.S. at 378; Landwatch v. Connaughton, 905 F. Supp. 2d 1192, 1196 (D. Or. 2012) (“It is not enough for the Forest Service to simply conclude that there is no or little impact to the [INFISH] water temperature [standard] due to the Project without supporting reasoning, analysis, and data.”) (citing Marble Mtn. Audubon Soc’y v. Rice, 914 F.2d 179, 182 (9th Cir.1990)). The Forest Service’s decisions to allow grazing that has and continues to degrade bull trout habitat—and to do so without evaluating and describing how these grazing authorizations are consistent with INFISH standards—thus violates the NFMA. 16 U.S.C. § 1604(i). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 44 of 75 MOTION FOR SUMMARY JUDGMENT 33 a. Baseline conditions on allotments along the Wild and Scenic Rivers are degraded and grazing is further retarding and preventing attainment of RMOs. As described above, the Forest Service has long known that the allotments straddling both Wild and Scenic Rivers are in poor ecological condition. See supra Statement of Relevant Facts VI.A. A 1999 watershed analysis for the Malheur River basin found that for most surveyed streams, more than 70% of parameters “do not meet standards.” PAR 3854; see also PAR 3705 (parameters measured included the RMOs, large woody debris, pool frequency, width:depth ratio, and bank stability). Forest Service biological assessments of habitat indicators—again including RMOs—reveal a steady worsening trend from 1999 to 2012 when the agency last performed these assessments. In fact, now zero of twenty-four habitat indicators are functioning properly on the Malheur River and North Fork Malheur River allotments, and most are “functioning at unacceptable risk.” P 4Supp 02754–59; P 4Supp 02886–90. In a 2010 stream survey, the Forest Service determined that the North Fork Malheur River was failing to meet three of the four INFISH and Amendment 29 RMOs the agency measured. NF 4Supp 0154–78 (showing failures to meet RMOs for large woody debris, width/depth ratio, and pool frequency). Another 2010 survey shows that Elk Creek, a bull trout critical habitat tributary to the North Fork Malheur River (Spring Creek Allotment), was failing to meet two of four measured RMOs. SC 4Supp 0212–17 (failure to meet pool frequency and width/depth ratio RMOs). In the same type of stream survey undertaken for the Malheur River in 2014, the Forest Service determined that river too was failing to meet three of the four RMOs measured. P 4Supp 07671 (showing failures to meet RMOs for large woody debris, pool frequency, and width/depth ratio). And in a 2015 survey of Crooked Creek, a bull trout critical habitat tributary to the Malheur River (Dollar Basin/Star Glade Allotment), the agency found that RMOs for width-to- Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 45 of 75 MOTION FOR SUMMARY JUDGMENT 34 depth ratio, bank stability, pool frequency, and large woody debris, as well as stream attributes for shade and substrate (which are Amendment 29 RMOs, P 4Supp 4030, 4033), all were failing to meet Forest Plan standards in most surveyed reaches. DB 4Supp 01187. There is nothing in the record to suggest that either river has ever met the temperature standard. Compare SPAR 26 (INFISH bull trout spawning and rearing temperature standard of < 48°F) with, e.g., First Rhodes Decl. (Dkt # 84) ¶¶ 96–97 (citing Forest Service reports from 1995–2002 documenting that all monitored streams in Malheur and North Fork Malheur watersheds consistently have summer maximum water temperatures in excess of the INFISH standard); P 4Supp 8403 (showing Crane Creek, a bull trout spawning stream on the Flag Prairie Allotment, at 14.7°C and 14.2°C in 2006 and 2011, far above the 8.9°C [48°F] standard); P 4Supp 3144 (2013 Forest Service report showing both rivers in excess of all temperature standards, reaching as far back as 2000). The USFWS concluded in 2012 that “[s]tream temperatures and the quality of habitat are the major limiting factors within” both the Malheur and North Fork Malheur watersheds for bull trout. P 4Supp 3006. As Dr. Beschta summarizes, the grazing the Forest Service has allowed along the Malheur and North Fork Malheur rivers has resulted in un-shaded, over-widened stream channels and “these mechanisms are contributing to significantly increased summertime water temperatures.” Third Beschta Decl. ¶ 19. On the Ott Allotment, the North Fork Malheur River no longer supports bull trout spawning and rearing “primarily due to high summer and fall stream temperatures.” P 4Supp 2957. Even in the river’s headwaters up in the Spring Creek Allotment, “spawning habitat is minimal in areas below the Elk Creek confluence due to high fall stream temperatures.” P 4Supp 3009. And on the mainstem Malheur River, spawning habitat is similarly “minimal in areas below the Forest Service 16 road due to excessive [sediment] and high fall stream temperatures.” Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 46 of 75 MOTION FOR SUMMARY JUDGMENT 35 P 4Supp 3010. The 16 road is upstream of the Wild and Scenic corridor boundary—which means spawning can no longer occur anywhere within the ostensibly protected Malheur Wild and Scenic River. See P 4Supp 11920 (map). In 2010, the Forest Service revisited several Designated Monitoring Areas (“DMA”) that it had first established in 2004 and 2005 (in direct response to this and the 03-381 lawsuit). Similar to its biological assessment and stream survey findings, the agency again found numerous sites experiencing downward trends. This included: DMA measurements being “down significantly in streambank stability and cover” including a “low bank stability (49%)” on Cottonwood Creek (North Fork Malheur River tributary, Ott Allotment); an increase in channel width between 2004 and 2010 on Cougar Creek (North Fork Malheur River tributary, Ott Allotment) that “may reflect the decrease in bank stability and cover, decrease in . . . vegetation stability, and decrease in the Ecological Status rating”; a “significant decline in bank stability and cover” on the Little Malheur River (North Fork Malheur River tributary and designated bull trout critical habitat, North Fork Allotment); and streambank stability and cover “down significantly” despite “little change” in vegetation indicators and an increase in woody plants on the North Fork Malheur River itself. See P 4Supp 48–50. Not surprisingly, the one site where the Forest Service decreased livestock use experienced “lower bank alteration in 2010,” along Bear Creek (North Fork Malheur River tributary, Flag Prairie Allotment), “bank stabilities improved significantly and [stream] widths narrowed” and hydric plant (i.e., plants that prefer moist soils) composition “increased dramatically.” P 4Supp 49. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 47 of 75 MOTION FOR SUMMARY JUDGMENT 36 The Forest Service assembled a smattering of PIBO18 monitoring data from 2001 to 2014 for sites in the Malheur River basin. P 4Supp 11611; see also P 4Supp 2745–47, P 4Supp 02875– 80 (maps showing PIBO monitoring locations on Malheur River and North Fork Malheur River allotments, respectively). For every single metric measured—including key RMOs such as bank angle, large wood, and pool depths and frequency—“managed sites” (places that are grazed) are in worse condition than “reference” (un-grazed reference sites). P 4Supp 11619–26 (histograms showing higher blue distributions on left side of horizontal scales, towards “worse condition”). The report’s Table 1 summarizes just how much worse for each indicator. P 4Supp 11627. The overall score shows that managed sites in the upper Malheur River basin are more than two standard deviations worse than reference sites. Id. (showing an Overall Managed score of 20.68, a Reference Eco Region score of 53.96, and a standard deviation of 16.73). Finally, ONDA’s experts also confirm that, despite more than a decade of legal scrutiny, Forest Service grazing along both Wild and Scenic Rivers has, at best, maintained this seriously degraded baseline—and in many instances caused continued or further damage to critical INFISH RMOs. Dr. Beschta and Dr. Kauffman observe that current plant communities along both rivers do “not represent a natural composition and structural diversity” and that “none of the grazed reaches have a ‘near natural rate of recovery’.” Field Review at 3–4. Continued grazing and stream bank trampling “is keeping streamside vegetation in an altered state—a major departure from natural conditions.” Id. at 4. Importantly, “[e]ven where some recovery of vegetation has occurred – for example, minimum grass heights are left behind after each grazing period – those conditions have been insufficient to allow anything close to a ‘near natural rate’ of 18 See supra Statement of Relevant Facts V.D. (explaining that PIBO collects quantitative data, including some RMOs, with the objective of measuring trend over time). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 48 of 75 MOTION FOR SUMMARY JUDGMENT 37 recovery of structural riparian parameters such as overhanging banks, streambank stability, channel width-to-depth ratios, and frequency of deep, cold pools in the channels.” Id. at 6. That is because those features require literally decades of no grazing to even begin to recover. Id. at 6–7; see also Third Beschta Decl. ¶¶ 11–14 & Attachs. B, E; Second Kauffman Decl. ¶¶ 18–24; Third Rhodes Decl. (Dkt # 142) ¶¶ 1–14, 19, 27; PAR 3855–56 (Forest Service observing as far back as 1999 that its “stubble height standard maintains grass on streambanks, but does not appear to allow for a thick growth of overhanging sedges and grasses and may not allow re- establishment of young shrubby vegetation”). In sum, baseline conditions on both Wild and Scenic Rivers and their critical tributary streams are highly degraded, and nearly all of the Forest Service’s data, corroborated by ONDA’s experts, show that grazing is at a minimum merely maintaining—but, more typically, further retarding—degraded fish habitat. As a result, the Forest Service is in violation of its NFMA duty to ensure that authorized grazing is consistent with the INFISH Standard GM-1 requirement to modify or suspend grazing that is retarding or preventing attainment of RMOs. 16 U.S.C. § 1604(i). b. The Forest Service’s grazing decisions are not consistent with INFISH Standard GM-1 because the agency failed to evaluate RMOs. The Forest Service’s AOIs and grazing permits also are not consistent with the Forest Plan’s Standard GM-1 because the decisions ignore INFISH and RMOs. In every permit at issue in this case, the Forest Service, despite the degraded baseline and downward trend, authorized the same—or, in the case of the Bluebucket Allotment, more—grazing as had been previously authorized. See Exhibit 3 at 7–8, 12, 17, 21, 25, 29, 33 (summaries showing current and prior permit AUM authorizations for each allotment). And, with few exceptions, the AOIs similarly authorize more or less the same levels of and areas for grazing each year. See id. (summaries Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 49 of 75 MOTION FOR SUMMARY JUDGMENT 38 showing annual grazing authorizations by allotment for the years 2006 to 2015). In fact, the Forest Service rested an entire allotment (Flag Prairie) only a single time in the decade of grazing authorizations across the seven allotments at issue in this case. See id. at 15; FP 4Supp 0757, 0791. The agency then negated that isolated positive step by turning around and authorizing a 168% increase in grazing on the Flag Prairie Allotment in 2013 compared to the last grazed year of 2011. See Exhibit 3 at 15–16. Not surprisingly, the violations of grazing standards and unauthorized use then picked up right where they left off for the allotment. See Exhibit 4 at 7–8; see also Field Review at 11 (describing one Flag Prairie site “that has undergone a major decline in ecological condition since 2013”). None of the AOIs or permits evaluate or describe bull trout, INFISH, RMOs, rates of recovery or trend over time, or provide any description of how the authorized grazing complied with Standard GM-1. That is inconsistent with 36 C.F.R. § 219.15(d)(2), which requires that every “project or activity approval document must describe how the project or activity is consistent with applicable plan components developed or revised in conformance with this part by [describing how it] complies with applicable standards.” (emphasis added). The AOIs merely state how many livestock will use which units and for how long. See, e.g., NF 4Supp 1090. Aside from also setting out a table of mostly boilerplate “Allowable Use/Move Indicators” for the proxy “indicators” of stubble height, shrub use, upland utilization, and bank alteration, the only other, non-boilerplate item contained in the AOIs is an occasional list of potential “range projects” (e.g., fences or artificial spring developments). See, e.g., NF 4Supp 01091–92. There is no description at all of the degraded baseline, the RMO requirements, or how the grazing will satisfy standard GM-1, in the challenged AOI decisions. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 50 of 75 MOTION FOR SUMMARY JUDGMENT 39 The permits include little more. They state the permitted number and kind of livestock and dates for grazing in Part 1; include boilerplate terms and conditions in Part 2; and describe permittee responsibilities for maintaining fences and cattle watering holes in Part 3. See, e.g., NF 4Supp 0783–89. Unlike the AOIs, the permits do sometimes at least reference the “Forest Plan as amended by PACFISH/INFISH”—but only in noting that permittees bear the responsibility to “[t]rack consistency with management standards (such as stubble height, shrub utilization, and/or bank trampling) to properly time livestock moves.” Id. Otherwise, the permits reference the Forest Plan’s general forage use standards and the stubble height and other, non-RMO “move triggers.” They do not mention INFISH RMOs or Standard GM-1 even once—let alone evaluate and describe whether and how the grazing will be consistent with Standard GM-1. See P 4Supp 2428–33, P 4Supp 2465–68, P 4Supp 2484–89 (Spring Creek Allotment permits); NF 4Supp 0783–89 (North Fork Allotment); FP 4Supp 01339–45 (Flag Prairie Allotment); OTT 4Supp 0464–71 (Ott Allotment); BB 4Supp 0370–77, BB 4Supp 0797–806 (Bluebucket Allotment); P 4Supp 07051–58, P 4Supp 07059–65 (Central Malheur Allotment); DBSG 3Supp 087–101 (Dollar Basin/Star Glade Allotment). There is no discussion in the AOIs or permits of the degraded baseline and the static or downward trend. There is no evaluation and discussion of the extensive data and expert reports provided to the Forest Service by ONDA more than a decade ago. See, e.g., Dkt # 207 at 5 (Forest Service index adding those materials to the administrative record in 2005, although the materials are never then evaluated or referenced in any annual or permit grazing decision from 2006 through 2015). And while the Forest Service’s end-of-year reports summarize the previous grazing period and describe “management recommendations” for the next period, the reports do not discuss INFISH or RMOs. See, e.g., P 4Supp 11638–11872 (2015 Year End Grazing Report), Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 51 of 75 MOTION FOR SUMMARY JUDGMENT 40 P 4Supp 11829–48 (section covering the four North Fork Malheur River allotments), P 4Supp 11803–11 (section covering the Bluebucket and Dollar Basin/Star Glade allotments), P 4Supp 11777–80 (section covering the Central Malheur Allotment).19 This inaction in the face of degradation is contrary to the language of GM-1, which requires the Forest Service not only to measure trend and evaluate progress toward attaining RMOs, but also to take action to achieve a near natural rate of recovery by modifying or suspending grazing. This Court has concluded that this duty applies each time the Forest Service makes a decision to authorize grazing; it cannot be ignored or punted into the indefinite future. Tidwell, 716 F. Supp. 2d at 1007–08. Indeed, the Court has found Forest Service AOIs to violate NFMA in two similar cases. In Sabo, the Court held that AOIs violated Forest Plan provisions for the protection of wildlife, wetlands, soils, and riparian habitats where the grazing decisions failed to review the consistency of the grazing activities with these provisions. 854 F. Supp. 2d at 920. In Tidwell, the AOIs similarly contained no analysis of how grazing was complying with PACFISH. 716 F. Supp. 2d at 1007–08. Even though the Court deferred to the Forest Service as to how to evaluate whether it had complied with GM-1, it found the AOIs in violation of NFMA because: there is little in the record to suggest that the Forest Service has gathered enough data to effectively determine whether it is in compliance with PACFISH or the [Forest Plan], and there is even less evidence to suggest that it has actually evaluated that data in an effort to ascertain their compliance. This court “cannot defer to a void.” 19 Each prior report is the same. See P 4Supp 6577–6807 (2014 report); P 4Supp 7070– 7309 (2013 report); P 4Supp 5900–6129 (2012 report); P 4Supp 4307–4381 (2011 report); P 4Supp 787–840 (2010 report); P 3Supp 8712–8746 (2009 report); P 3Supp 7363–7401 (2008 report); P 3Supp 6986–7029 (2007 report); P 3Supp 5950–6030 (2006 report). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 52 of 75 MOTION FOR SUMMARY JUDGMENT 41 Id. at 1008 (quoting Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1142 (9th Cir. 2008), on reh’g, 625 F.3d 1092, 1121 (9th Cir. 2010)); see also Native Ecosystems Council, 599 F.3d at 932–36 (AMP unlawful because Forest Service did not comply with requirement to maintain viability of species); W. Watersheds Proj. v. Bennett, 392 F. Supp. 2d 1217, 1227–28 (D. Idaho 2005) (issuance of BLM grazing permits inconsistent with direction in land use plan to protect wildlife resources and habitat for sensitive species). The same is true here. While the Forest Service haphazardly gathers scattershot monitoring information in some places, some years, its AOI and permit decisions fail to evaluate that data or in any way effectively determine whether the allotments are in compliance with INFISH. See Landwatch 905 F. Supp. 2d at 1196 (requiring Forest Service to provide “supporting reasoning, analysis, and data” to demonstrate that an action complies with forest plan INFISH standards); see also Anaheim Mem’l Hosp., 130 F.3d at 849 (agency decision can only be upheld on basis of reasoning found in that decision). Because the Forest Service in its permit and AOI decisions failed to evaluate whether the authorized grazing was consistent with INFISH Standard GM-1 based on river management plan findings, watershed analyses, biological assessments and opinions, stream surveys, and evidence provided by ONDA and its experts, before authorizing grazing, those decisions violated NFMA. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(d). 2. Amendment 29 As with INFISH, the Forest Service was required to ensure, and describe how, its permits and AOIs are consistent with the Malheur Forest Plan’s Amendment 29. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(d). Amendment 29 requires that stream banks must be at least 90% stable, and allows no decrease for any bank currently above 90% stability. PAR 883. Like the INFISH Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 53 of 75 MOTION FOR SUMMARY JUDGMENT 42 habitat parameters, this standard is among the quantifiable RMOs that represent good aquatic quality to protect bull trout—and therefore also subject to the Standard GM-1 requirement that the Forest Service must modify grazing if it retards or prevents attainment of RMOs and suspend grazing if adjusting practices is not effective at meeting RMOs. See P 4Supp 4025 (Decision Notice adopting Amendment 29); P 4Supp 4048 (“INFISH RMOs are equivalent to Amendment 29 [desired future conditions]” or “DFCs,” of which the 90% bank stability requirement is one). Evidence in the record shows that permitted grazing along the two rivers and their tributaries has caused and continues to cause damage in excess of the 90% bank stability standard. This is because cattle have unfettered access to much of the rivers and their tributaries and they trample stream banks as they consume riparian vegetation and wallow in the water. See Third Beschta Decl. ¶ 20; Second Kauffman Decl. ¶ 31; Field Review at 5–6, 9, 10–11, 14–15, 17 and Figs. 2–10, 15–17, 26, 28–30, 8–39; see also Second Rhodes Decl. (Dkt # 105) ¶ 28 (a 1,000-lb. cow exerts more than 83 lbs/in2 of pressure on soils and streambanks). This claim benefits from the Court’s analysis in Tidwell. There, the Court held that although it would not tell the Forest Service how to measure compliance with the Forest Plan, the agency had to do something. 716 F. Supp. 2d at 1007–08. In Tidwell, there was no evidence of any relevant monitoring that the agency could have relied upon to measure compliance with specific RMO standards at issue there. The same is true here with respect to the Amendment 29 standard. Rather than measuring bank stability, the Forest Service measures bank alteration—the amount of stream bank trampled by livestock—and applies a standard allowing as much as 15–20% bank alteration from grazing every year. For example, in its AOI decision for 2015 grazing on the Spring Creek Allotment, the Forest Service allowed 15% bank alteration on the South River Unit along the North Fork Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 54 of 75 MOTION FOR SUMMARY JUDGMENT 43 Malheur Wild and Scenic River. SC 4Supp 955. And the AOI allows up to 20% bank alteration on all other streams on the allotment. Id. This includes four tributary streams that are designated as critical habitat for bull trout: Horseshoe Creek, Swamp Creek, Sheep Creek, and Little Crane Creek. See P 4Supp 11924–25 (maps showing Spring Creek Allotment units and bull trout streams). Sloughing of stream banks from livestock trampling contributes to bank instability. See Tech. Ref. 1737-23 at 27.20 Allowing 15–20% bank alteration categorically prevents attainment of the 90% bank stability RMO. As Dr. Beschta explains, because of how slowly damaged stream banks recover, “even if a stream/river initially had no bank damage, as little as 5% bank damage each year can result in bank stability levels well below 90% after only a few years.” Third Beschta Decl. ¶ 20; see also P 3Supp 7218 (Forest Service memo explaining that “[t]he literature does not support bank alteration as a ‘standard’” because the amount of bank alteration that a stream can tolerate and repair each year is unknown). Thus, by allowing significant, cumulative damage each year, the bank alteration standard the Forest Service applies in its annual grazing decisions is inconsistent with the stricter, 90% bank stability requirement imposed by the Malheur Forest Plan. PAR 883. There is no evidence that the Forest Service has insured in its grazing authorizations that it is in compliance with Amendment 29. The agency fails to follow its own monitoring protocol of measuring both bank alteration and bank stability, and to do so both before and after each year’s grazing period. See Tech. Ref. 1737-23 at 31, 51. Without these measurements, there is none of the evidence that is required to support the agency’s claim that up to 20% bank alteration 20 Relevant excerpts attached hereto as Exhibit 5. The Forest Service includes an earlier version of this reference in the record at P 3Supp 6929. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 55 of 75 MOTION FOR SUMMARY JUDGMENT 44 is a reliable proxy for 90% bank stability. See also Field Review at 5 (without collecting quantitative monitoring information on actual RMOs, “the agency has no way of measuring the effects” of grazing). Again, only measuring both alteration and stability, both before and after grazing, and doing so on an annual basis over time, could allow the agency to make “an estimate of the change in streambank stability during the ‘off’ season, reflecting natural processes of streambank recovery.” Tech. Ref. 1737-23 at 31. The Forest Service admitted as much when it stated, in a 2007 memo, “Until such rates [of recovery from annual bank alteration] are known for any particular site, such [bank alteration] ‘standards’ would be arbitrary.” P 3Supp 7218. Absent that information, this Court “cannot defer to a void.” ONDA v. BLM, 625 F.3d at 1121; see also Tidwell, 716 F. Supp. 2d at 1008 (same). In the handful of instances in which the Forest Service has measured bank stability, those measurements almost always demonstrate a failure to meet the Amendment 29 standard. Consider the Dollar Basin/Star Glade Allotment, which has by far the most (a relative term) information on bank stability of the allotments at issue: In 2010, the Forest Service authorized 116 cow/calf pairs to graze the allotment’s Dollar Unit from June 21 to July 31, and 50 yearlings to graze the South Star Glade Unit from June 10 to July 10. DB 4Supp 005. The Service authorized these cattle to cause up to 20% streambank alteration on the banks of the Malheur Wild and Scenic River. DB 4Supp 006. That year, the agency measured bank stability along the River at 78% (P 4Supp 672) and 85% (DB 4 Supp 115) on the Dollar Unit, and at 51% (P 4Supp 741), 68% (P 4Supp749), and 70% (P 4Supp 634) on the South Star Glade Unit—all below the 90% stability standard of Forest Plan Amendment 29. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 56 of 75 MOTION FOR SUMMARY JUDGMENT 45 Despite failing to meet the Amendment 29 bank stability standard in every location and at every point in time measured, the Forest Service decided the next year, in 2011, to authorize the exact same numbers and dates of use and the exact same 20% bank alteration standard. DB 4Supp 279–80. This is a plain violation of the Standard GM-1 “modify or suspend” requirement. SPAR 31. The agency then failed to monitor the allotment at all that year, P 4Supp 11808, so it had no way of knowing what effect the exact same grazing had on the already-degraded and below-standard stream banks. In 2012, the Forest Service again authorized the exact same numbers and dates of use, and again the same 20% bank alteration standard. DB 4Supp 554–55. When the agency finally monitored the Malheur River on the Dollar Unit that year, it discovered violations of the stubble height, shrub browse, and bank alteration standards. P 4Supp 11808, 06054. The agency did not, however, measure bank stability. See id. In 2013, the Forest Service once again authorized the exact same numbers and dates of use. DB 4Supp 745. This time, the agency authorized 15% bank alteration on the Dollar and North Starvation units, but again allowed 20% alteration everywhere else. DB 4Supp 746.21 Yet, in the only place the agency measured bank stability that year (for the first time since the widespread instability documented in 2010), it found the Malheur River to now be only 65% stable, a decrease from 70%, on the South Star Glade Unit. DB 4Supp 832. In 2014 and 2015, the only thing the Forest Service changed on these two units was to increase by 30% the amount of grazing allowed on the South Star Glade Unit. See DB 21 Of course, the AOI failed to evaluate and discuss the 15% alteration allowance now applied to two units—a violation of 36 C.F.R. § 219.15(d). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 57 of 75 MOTION FOR SUMMARY JUDGMENT 46 4Supp 0906–07, 1121–22 & Exhibit 3 at 31–33 (showing increase from 67 AUMs authorized from 2010–2013, to 87 AUMs authorized in 2014 and 2015). The story is similar in the very few other units where the Forest Service has bothered to measure bank stability over the past decade. P 4Supp 648 (80% bank stability measured in 2010 in bull trout critical habitat on Crooked Creek, Merit Unit, Dollar Basin/Star Glade Allotment); FP 4Supp 338– 39 (76% bank stability measured in 2010 on North Fork Malheur River, Crane Crossing Unit, Flag Prairie Allotment); P 4Supp 1655 (83% bank stability measured in 2010 on Malheur River, South River Unit, North Fork Allotment). In one of the only other places in the record where the Forest Service took multiple bank stability measurements over time, the agency documented that the North Fork Malheur River, on the North Fork Allotment’s North River Unit, was 98% stable in 2005, but had plummeted to only 51% stable by 2010. P 4Supp 1167. And that was despite the agency determining that the unit had apparently met the bank alteration proxy standard every year but one, between 2006 and 2010. See Exhibit 4 at 6. Nevertheless, without taking any more bank stability measurements since 2010, and without evaluating and discussing whether and how it would comply with Amendment 29, the Forest Service in 2015 authorized 100 cattle to graze the unit for two months, at an AUM level exceeded only in 2006 and 2013 during the prior decade. And the agency persisted with the same “15 - 20%” bank alteration standard in its annual grazing decisions. See, e.g., NF 4Supp 1091 (2015 AOI). Without any explanation of these contradictory bank stability and alteration findings, and no evaluation of how allowing a hundred cattle to camp out along the North Fork Malheur Scenic River for two months could possibly be consistent with Amendment 29, the Forest Service’s 2015 AOI decision was arbitrary and capricious. Put differently, the decision, Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 58 of 75 MOTION FOR SUMMARY JUDGMENT 47 like every other permit and AOI decision at issue here, evidences no rational connection between facts found and choices made. See Marsh, 490 U.S. at 378; Landwatch, 905 F. Supp. 2d at 1196. In fact, the Central Malheur Allotment is the only allotment in which the record shows that the Forest Service has measured bank stability in compliance with the Amendment 29 standard. See CM 4Supp 259, 394 (2014 and 2015 data showing 99% and 100% bank stability along Malheur River). That makes sense because this is the only allotment where the agency allows no grazing along the Wild and Scenic River and in which there has not been chronic trespass and unauthorized use. See Exhibits 3 & 4. In short, the Forest Service’s grazing permit and AOI decisions fall short because they allow incremental damage, year after year, on top of an already degraded baseline, with an arbitrary bank alteration standard that, by definition, will prevent attainment of the 90% bank stability RMO. Moreover, there is no evidence in the annual or permit decisions that the Forest Service collected adequate or relevant data, let alone evaluated that data, to make an informed decision and, as required by NFMA, to “describe how [each grazing decision] is consistent with” the Amendment 29 bank stability standard. 36 C.F.R. § 219.15(d)(2). The Forest Service’s permit and annual grazing decisions thus are inconsistent with Forest Plan Amendment 29’s bank stability requirement, rendering those decisions arbitrary, capricious, and abuse of discretion, and otherwise not in accordance with NFMA, 16 U.S.C. § 1604(i). 3. Forest Plan Narrative Standards Finally, the Forest Service was also required to ensure, and describe how, its permits and AOIs are consistent with the priorities set by the Malheur Forest Plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(d). Where conditions are degraded and a land use plan requires action to recover a resource, authorization grazing in the same places and at the same levels that have led to the Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 59 of 75 MOTION FOR SUMMARY JUDGMENT 48 degradation violates that requirement. In Western Watersheds Project v. Salazar, for example, a BLM land use plan provision required that agency to manage “special status species and habitats to increase or maintain populations at levels where their existence is no longer threatened.” 843 F. Supp. 2d 1105, 1131 (D. Idaho 2012). There, despite violations of relevant habitat standards, the agency “(1) authorized grazing levels that allow for the same actual use levels that led to the [habitat] violations,” and “(2) allowed grazing during the same times of year that the BLM found had contributed to the violations.” Id. The court held that status quo authorizations “failed to follow the priorities” set by the land use plan. Id. at 1131–32. The same is true here. As described above, the Malheur Forest Plan requires the agency to “[m]anage . . . grazing . . . to give preferential consideration to riparian-dependent species.” SPAR 1 at IV-55 (emphasis added). The agency must “[m]anage allotments to protect or enhance riparian-dependent resources.” Id. at IV-58 (emphasis added). The agency must “[p]rovide the necessary habitat to maintain or increase populations of management indicator species: bull trout.” Id. at IV-56 (emphasis added). It must manage riparian vegetation “to protect or enhance riparian-dependent resources” and “[e]mphasis will be on the reestablishment of remnant hardwood shrub and tree communities.” Id (emphasis added). And the agency must “[i]mprove the rate of recovery in riparian areas that are not in a condition to meet management objectives by eliminating or reducing the impacts of management activities that may slow riparian recovery.” Id (emphasis added). As noted, “grazed riparian areas continued to fail to meet all” of these standards. See Field Review at 6. Likewise, the Wild and Scenic River management plans also prioritize river values over livestock grazing. See PAR 0508 (Decision Notice for Malheur Wild and Scenic River stating that scenery protection, wildlife habitat, fish habitat, and recreation are the “highest priority Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 60 of 75 MOTION FOR SUMMARY JUDGMENT 49 resources and uses” and that timber and “forage production are considered to be lower priority within the corridor”); PAR 257 (“When conflicts between recreation and livestock need resolution, recreation will take priority.”). And again, as Drs. Beschta and Kauffman explain, “[g]razed allotments have been unable to attain the ‘desired future condition’ specified in the [forest and river plans] of increased streamside vegetation (grasses, grass-likes, woody), improved bank stability, and improved shading.” Field Review at 6. Because the river plans are incorporated into the Forest Plan, the Forest Service’s failure to follow river plan priorities also violates the NFMA consistency requirement. 16 U.S.C. § 1604(i). In sum, the Forest Service has failed to correct or eliminate grazing that has resulted in overuse and prohibited habitat damage and has consistently failed to actually evaluate and discuss how each permit’s and annual authorization’s approved grazing will comply with INFISH Standard GM-1. Instead, the agency has continued to authorize grazing that prevents and retards attainment of RMOs along the Malheur and North Fork Malheur rivers for more than two decades since they were added to our National Wild and Scenic Rivers System and for almost as long since the bull trout was protected as a threatened species. The Forest Service has collected some scattershot, but largely inapposite, monitoring information over the past thirteen years since ONDA filed this lawsuit. However, because the permits and AOIs fail to take required action in response to data that establish the corridors’ degraded condition and static or downward trend in stream and riparian habitat conditions, and failure to meet RMOs, and fail to discuss the critical issue of trend in any way whatsoever, the Forest Service has violated NFMA’s requirement that any grazing authorization the agency decides to issue must be consistent with the Forest Plan. 16 U.S.C. § 1604(i); 36 C.F.R. §219.15(b); Buckingham, 603 Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 61 of 75 MOTION FOR SUMMARY JUDGMENT 50 F.3d at 1077; Landwatch, 905 F. Supp. 2d at 1196; W. Watersheds, 843 F. Supp. 2d at 1131–32; Tidwell, 716 F. Supp. 2d at 1007–08. B. The Forest Service Has Failed to Prepare and Update Allotment Management Plans The Forest Service also violated the NFMA by failing to prepare and update required AMPs. 36 C.F.R. §§ 222.2(b), (c) (AMP required for every national forest allotment and the “analysis and plan will be updated as needed”). The AMPs are supposed to be used to assess whether and how grazing should continue. For example, Amendment 29 states that “[w]hen the current riparian condition is less than desired,” AMPs will establish a “schedule for improvement”; will “identify management actions needed to meet riparian objectives within specific time frames”; and will set “[m]easurable objectives . . . for key parameters, such as amount of stream surface shaded, streambank stability, sedimentation, cover provided by trees, shrubs, forbs, grasses and grasslike vegetation.” P 4Supp 4055. Of the seven grazing allotments within the Malheur and North Fork Malheur Wild and Scenic River corridors, three have outdated AMPs prepared many decades ago: Spring Creek (1970), North Fork (1979), and Bluebucket (1985). See PAR 6109, 2789, 6074. For three other allotments, Flag Prairie, Ott, and Dollar Basin/Star Glade, the Forest Service has never prepared an AMP. See PAR 6029, 6092, 6008. Only for the Central Malheur Allotment has the agency completed an AMP this century. CM 4Supp 295 (2016). Under the APA, ONDA is entitled to an order from the Court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). The Supreme Court has explained that a plaintiff may bring a claim under § 706(1) where “an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). Here, regulations require that the Forest Service “will” develop an AMP for Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 62 of 75 MOTION FOR SUMMARY JUDGMENT 51 every allotment designated on National Forest System lands. 36 C.F.R. § 222.2(b). “The word ‘will’ is a mandatory term.” W. Watersheds Proj. v. U.S. Dep’t of Interior, No. 08-0506-E-BLW, 2009 WL 5218020, *9 (D. Idaho Dec. 30, 2009) (citing U.S. v. UPS Customhouse Brokerage, Inc., 575 F.3d 1376, 1382 (Fed. Cir. 2009), noting the difference between mandatory terms like “will” and discretionary terms like “should”); see also Seltzer v. Chesley, 512 F.2d 1030, 1035– 36 (9th Cir.1975) (term “should” in jury instructions was permissive while term “will” was mandatory). Because the Forest Service has a mandatory, non-discretionary duty to prepare an AMP for every grazing allotment, ONDA is entitled to an order compelling preparation of the “unlawfully withheld” AMPs for the Flag Prairie, Ott, and Dollar Basin/Star Glade allotments. 5 U.S.C. § 706(1); see, e.g., Ctr. for Food Safety v. Hamburg, 954 F. Supp. 2d 965, 971–72 (N.D. Cal. 2013) (granting declaratory relief to plaintiff based on FDA’s failure to promulgate final rule by mandatory statutory deadline). As to the three allotments with decades-old AMPs, ONDA acknowledges that the Forest Service is entitled to some discretion as to the timing of updating AMPs once developed— because the regulation provides that “[t]he analysis and plan will be updated as needed.” 36 C.F.R. § 222.2(b). In other words, while the Forest Service has a mandatory duty to update AMPs, the agency retains discretion as to when updates are “needed.” See, e.g., Norton, 542 U.S. at 65–66 (statutory provision requiring that agency “shall” manage Wilderness Study Areas “in a manner so as not to impair the suitability of such areas for preservation as wilderness” is “mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it”). But that discretion is not unbounded. Here, the Forest Service’s delays of 46, 37, and 31 years in preparing updates to the AMPs for the Spring Creek, North Fork, and Bluebucket allotments, respectively, is “unreasonable” under APA § 706(1). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 63 of 75 MOTION FOR SUMMARY JUDGMENT 52 In determining whether agency delay is unreasonable, the Ninth Circuit has adopted the factors outlined by the D.C. Circuit in Telecomm. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir 1984). See In re Cal. Pwr. Exch. Corp., 245 F.3d 1110, 1124–25 (9th Cir. 2001); Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997). The TRAC factors provide that: 1) a “rule of reason” governs the time agencies take to make decisions; 2) delays where human health and welfare are at stake are less tolerable than delays in the economic sphere; 3) consideration should be given to the effect of ordering agency action on agency activities of a competing or higher priority; 4) the court should consider the nature of the interests prejudiced by delay; and 5) the agency need not act improperly to hold that agency action has been unreasonably delayed. Towns of Wellesley, Concord, and Norwood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir. 1987) (citing TRAC, 750 F.2d at 80). The rule of reason seeks to avoid “excessive delay [that] saps the public confidence in an agency’s ability to discharge its responsibilities and creates uncertainty for the parties.” Pub. Citizen Health Research Grp. v. Comm’r, Food & Drug Admin., 740 F.2d 21, 32 (D.C. Cir. 1984) (internal quotes and citations omitted). The Forest Service recognized when it adopted the Malheur Forest Plan in 1990 that its AMPs were out of date or nonexistent. The agency adopted a schedule in the Forest Plan for completing or updating the plans: Ott and Bluebucket by 1990; North Fork and Flag Prairie by 1991; Spring Creek by 1992; and Dollar Basin/Star Glade by 1994, and Central Malheur by 1997. SPAR 1 at A-18 to -19 (Table A-10); see also id. at IV-57 (stating that “[g]razing allotments in less than desirable condition will be identified and updated according to the schedules shown in Appendix A (Activity Schedule A-10)” and that agency would prepare AMPs “for every grazing allotment on the Malheur National Forest as soon as possible”). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 64 of 75 MOTION FOR SUMMARY JUDGMENT 53 The Forest Service included the Ott and Bluebucket allotments in the very highest priority batch of seven allotments (out of more than 100 on the entire forest) needing immediate attention. The agency noted that these two allotments had last had “range analyses” in 1985 and 1982, respectively. It classified Ott as an allotment that “does not have an AMP, and basic resource damage is occurring” and Bluebucket as an allotment that “has an AMP, but basic resource damage is occurring.” SPAR 1 at A-18. The same was true of the North Fork, Flag Prairie, Spring Creek, and Dollar Basin/Star Glade allotments, whose last range analyses occurred in 1972, 1978, 1980, and 1961/1962, respectively. Id. (It is unclear what these “range analyses” were; the Forest Service does not include them in the administrative record, suggesting that, whatever they were, they are probably outdated and irrelevant.) Under the “rule of reason,” occasional administrative delays may be justifiable, but extensive or repeated delays are unacceptable. MCI Telecomm. v. FCC, 627 F.2d 322 (D.C. Cir. 1980). “There comes a point when relegating issues to proceedings that go on without conclusion in any kind of reasonable time frame is tantamount to refusing to address the issues at all and the result is a denial of justice.” Id. at 344 (quoting Nader v. FCC, 520 F.2d 182, 206 (D.C. Cir. 1975)). It is clear that updated AMPs for the Spring Creek, North Fork, and Bluebucket allotments are “needed” because apparently the outdated plans play no role at all in guiding the Forest Service’s management of grazing in these areas today—evident from the agency’s decision to not include them in the administrative record and the fact that none of the challenged permits or AOI decisions even reference the outdated AMPs. Given that an AMP is a required, not discretionary, management document, that these allotments include Wild and Scenic River corridors subject to heightened protections over surrounding national forest lands, and that grazing in these places has caused and continues to Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 65 of 75 MOTION FOR SUMMARY JUDGMENT 54 cause significant damage to stream and riparian habitat critical to the survival of the imperiled bull trout, the Forest Service’s delay here is unreasonable. Accordingly, ONDA is entitled to summary judgment on its Second Claim for Relief and an order compelling the Forest Service to complete AMPs. 5 U.S.C. § 706(1). III. WILD AND SCENIC RIVERS ACT VIOLATIONS The Forest Service violated the WSRA because the river plans—and, by default, the permit and AOI decisions for these Wild and Scenic River corridor allotments—adopt the same GM-1 grazing standard already in the Forest Plan, which the Forest Service has failed to meet, as described above. The Forest also is violating the WSRA because GM-1 is an improperly reactive grazing standard that requires management action only after resource damage has already occurred. The WSRA requires the Forest Service to “protect and enhance” the “outstandingly remarkable values” of the Malheur and North Fork Malheur Wild and Scenic Rivers. 16 U.S.C. §§ 1281(a), 1283(a). The Secretary of Agriculture has interpreted this to be a “nondegradation standard and enhancement policy.” Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454, 39,458 (Sept. 7, 1982). A standard that allows degradation before any action is taken violates the WSRA. Bull trout and their habitat are designated values under the river management plans. The plans stated that grazing would be allowed in the river corridors, but only to the extent it does not conflict with other values. See PAR 257 (“When conflicts between recreation and livestock need resolution, recreation will take priority.”); PAR 369–70, 592 (noting that “grazing could be excluded from the corridor”); PAR 509 (“mitigation measures will be implemented” to reduce “[c]onflicts between grazing and the protection of the outstandingly remarkable scenic and wildlife habitat values”). Despite the WSRA’s heightened management standard and Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 66 of 75 MOTION FOR SUMMARY JUDGMENT 55 acknowledging a degraded environmental baseline, the river plans default to the INFISH GM-1 standard, requiring the Service to modify grazing practices only if grazing is found to “retard” or “prevent attainment of” specified riparian standards. See PAR 0245, 0495 (river plans stating that Forest Plan standards control unless otherwise stated). This violates the WSRA because it is improperly “reactive”—i.e., the plans require management action only after degradation has already occurred. Friends of the Yosemite v. Kempthorne, 520 F.3d 1024, 1033–34 (9th Cir. 2008) (“by not requiring a response to environmental degradation until after it already occurs, it is reactive and thereby violates 16 U.S.C. § 1281(a) and the Secretarial Guidelines”). “A standard must be chosen that does in fact trigger management action before degradation occurs.” Id. at 1034 (emphasis added). Even prior to Kempthorne, this Court interpreted the “protect and enhance” standard similarly in a case also involving agency-authorized livestock grazing in the Owyhee Wild and Scenic Rivers: The language of the WSRA itself is unambiguous . . . . Regardless of whether cattle grazing was a permitted use when the rivers were first designated, if grazing proves to be detrimental to soil, vegetation, wildlife, or other values, or is inconsistent with the ‘wild’ designation, then clearly BLM has the right—indeed, the duty—not only to restrict it, but to eliminate it entirely. Or. Natural Desert Ass’n v. Singleton, 47 F. Supp. 2d 1182, 1192 (D. Or. 1998). Here, the Forest Service’s grazing decisions for the Malheur and North Fork Malheur Wild and Scenic Rivers are improperly reactive because they require management action only after grazing damage has already occurred. Combined with the degraded environmental baseline well documented in the river plans and elsewhere in the administrative record (see supra Statement of Relevant Facts VI.B.), the Forest Service’s “retard or prevent attainment” standard at best maintains a degraded condition. See also Field Review at 3–7; Third Beschta Decl. ¶¶ 8– 10, 21–22; Second Kauffman Decl. ¶¶ 14–17, 20–21, 32; Fourth Christie Decl. ¶¶ 7–12, 15–17. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 67 of 75 MOTION FOR SUMMARY JUDGMENT 56 As a result, the Forest Service’s decisions to authorize grazing in the river corridors are arbitrary, capricious, and not in accordance with the “protect and enhance” requirement, 16 U.S.C. §§ 1281(a), 1283(a); see also Kempthorne, 520 F.3d at 1033–34. The Forest Service may argue that so long as authorized grazing does not “substantially interfere” with river values, that grazing is permissible. That is incorrect because it ignores the plain language of section 10(a) and the Secretarial Guidelines. Section 10 states that each component of the Wild and Scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system 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). Thus, the Forest Service first must “protect and enhance” river values. Only after meeting that primary obligation may the agency then determine what uses may “interfere” with the public’s use and enjoyment of those values, and consider appropriate actions related to any such uses that do not “substantially” interfere. See 47 Fed. Reg. at 39,458–59 (“protect and enhance” requirement is “a nondegradation standard and enhancement policy” under which rivers are managed to protect and enhance values “while providing for public recreation and resource uses which do not adversely impact or degrade those values”); see also Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1177–78 (9th Cir. 2000) (as predicate for considering resource uses affecting river corridors, agency must first ensure actions are “consistent with the protection and enhancement” of river values). Both of the 1993 river management plans left the Forest Service discretion to decide in its permits, AMPs, and annual grazing decisions whether allow livestock grazing within the river corridors. P 0257, 0509 (“Livestock grazing will be allowed as specified in the annual operating plans, which are part of the allotment management plans, and in the term grazing permits.”). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 68 of 75 MOTION FOR SUMMARY JUDGMENT 57 However, that is only if any authorized grazing does not adversely impact or degrade those values. Each plan explicitly noted that, in 1992, current grazing levels were “routinely” exceeding riparian standards. PAR 0164, 0369. In the plan for the Malheur River, the Forest Service stated that scenery protection, wildlife habitat, fish habitat, and recreation are the “highest priority resources and uses” and that timber and “forage production are considered to be lower priority [uses] within the corridor.” PAR 0508 (emphasis added). In the North Fork Malheur Scenic River plan, the Forest Service states that where there are conflicts between grazing and recreation, “recreation will take priority.” PAR 0257. The plan also states that “[f]uture grazing capacity” would be determined through AMPs. Id. (Of course, 23 years later the agency still has not prepared or updated AMPs for any of the four allotments in the North Fork river corridor. See supra Argument II.B.) ONDA acknowledges that earlier this year the Court relied on the “substantially interfere” clause when it ruled in favor of the Forest Service in a similar case. Or. Wild v. U.S. Forest Serv., No. 1:15-cv-895-CL, 2016 WL 3411554 (D. Or. June 17, 2016). In Oregon Wild, the plaintiffs argued that Forest Service-authorized grazing along the Sycan Wild and Scenic River violated the “protect and enhance” requirement because the grazing had reduced their “scenic enjoyment of the corridor” and had resulted in “disturbed fisheries and scenic values.” Id. at *11. The Forest Service responded that although grazing had “adversely affected” river values, the agency had considered those effects in a 1992 river management planning process and, importantly, in a “detailed environmental assessment focused on grazing” in 2004. Id. At the end of that 2004 NEPA process, the agency “concluded that grazing within certain parameters was compatible with its WSRA obligations.” Id. On that record, the Court “defer[ed] Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 69 of 75 MOTION FOR SUMMARY JUDGMENT 58 to the Forest Services’ [sic] reasoned judgment on the proper balance of competing uses for the river corridor.” Id. This case is different. Here, the Forest Service has never completed any NEPA review of the impacts of authorizing grazing—now for 23 years in a row since the agency prepared its 1993 river management plans—on the Malheur and North Fork Malheur Wild and Scenic Rivers. This Court “cannot defer to a void.” ONDA v. BLM, 625 F.3d at1121; see also Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 878–79 (9th Cir. 2009) (“While our deference to the agency is significant, we may not defer to an agency decision that ‘is without substantial basis in fact.’”) (quoting FPC v. Fla. Pwr. & Light Co., 404 U.S. 453, 463 (1972)). Thus, this case is more like Singleton, in which this Court held that even where grazing is initially allowed under a Wild and Scenic River management plan, if that grazing later “proves to be detrimental to soil, vegetation, wildlife, or other values,” it must be eliminated entirely. 47 F. Supp. 2d at 1192. Singleton also is consistent with Oregon Wild because in the former, this Court permanently enjoined grazing within the Owyhee Wild and Scenic Rivers unless and until the agency completed an environmental impact statement pursuant to NEPA. Or. Natural Desert Ass’n v. Singleton, No. 3:98-cv-97-RE, Opinion & Order (Dkt # 205) at 31–32 (D. Or. Nov. 18, 1999); see also Or. Natural Desert Ass’n v. Green, 953 F. Supp. 1133, 1145–46 (D. Or. 1997) (similarly rejecting agency assertion that grazing would not “substantially interfere” with river values where grazing was degrading upland and riparian river values on Donner und Blitzen Wild and Scenic River on Steens Mountain). In sum, because the Forest Service’s improperly reactive management standard requires action only after degradation from grazing has already occurred, because the “substantially interfere” clause does not nullify the “protect and enhance” requirement, and because the Forest Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 70 of 75 MOTION FOR SUMMARY JUDGMENT 59 Service in any event has not completed a NEPA review that would allow the agency to properly assess whether grazing “substantially interferes” with protected river values, ONDA is entitled to summary judgment on its claim that the Forest Service’s grazing decisions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the WSRA. 16 U.S.C. §§ 1281(a), 1283(a). IV. RELIEF If the Court finds that the Forest Service violated the law in one or more of the ways described above, it should issue a summary judgment in ONDA’s favor and issue an order that provides for: (1) declaratory relief as to all challenged grazing decisions including the 2006– 2015 annual decisions, and (2) injunctive relief barring livestock grazing on allotment “units of concern” (Miller Decl., Attach A) containing Wild and Scenic River corridor acres and/or designated bull trout critical habitat. The order should specify that the Forest Service may not authorize grazing in any of the units of concern unless and until the Forest Service has demonstrated compliance with INFISH RMOs and completed AMPs for the Spring Creek, North Fork, Flag Prairie, Ott, Bluebucket, and Dollar Basin/Star Glade allotments. See, e.g., Singleton, No. 3:98-cv-97-RE, Opinion & Order at 31–32 (D. Or. Nov. 18, 1999). While vacatur of unlawful agency action is the presumptive disposition for agency action found to be unlawful under the APA, 5 U.S.C. § 706(2)(A), courts retain equitable authority to tailor relief accordingly when necessary. See, e.g., Or. Natural Desert Ass’n v. Jewell, -- F.3d --, 2016 WL 6127053, at *10 (9th Cir. Oct. 20, 2016) (remanding to district court “with instructions to vacate the Secretary of the Interior’s Record of Decision unless the district court determines that this is one of the ‘rare circumstances, when [it is] advisable that the agency action remain in force until the action can be reconsidered or replaced[’]”) (quoting Humane Soc’y of U.S. v. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 71 of 75 MOTION FOR SUMMARY JUDGMENT 60 Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010)); Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080–81 (9th Cir. 2010) (leaving original leases in place but setting aside lease extensions and requiring agency to reconsider its decision to extend leases). Where, as here, vacatur is insufficient to redress a party’s injury, “narrowly tailored” injunctive relief is appropriate. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (reiterating preference for vacatur over equitable or injunctive relief in the face of unlawful agency action, but only if vacatur is “sufficient to redress [a party’s] injury”); Winter v. Natural Res. Def. Council, 555 U.S. 7, 32 (2008) (setting out the test for injunctive relief and explaining that the scope of a requested injunction must be “narrowly tailored” to the harm at stake). The record demonstrates that irreparable harm to bull trout and their critical habitat in the Malheur and North Fork Malheur Wild and Scenic Rivers and key tributary streams, and in turn to ONDA’s members’ interests, is more likely than not in the absence of an injunction. See also Third Beschta Decl. ¶¶ 8, 21–22; Second Kauffman Decl. ¶¶ 14, 31–32; Field Review at 3–7; Fourth Christie Decl. ¶¶ 7–18. Finally, ONDA notes that if such relief cannot be secured, either through court order or court-approved stipulation or settlement, prior to May 1, 2017 (one month prior to the earliest permitted livestock release date, June 1, for these allotments), ONDA reserves the right to seek preliminary injunctive relief. See, e.g., June 10, 2004 Opinion at 19–20 (warning Forest Service and permit holders that “an injunction before the start of the next grazing season may ultimately be the way in which this case is resolved”). CONCLUSION For these reasons, the Court should grant summary judgment and relief in ONDA’s favor as described above. Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 72 of 75 MOTION FOR SUMMARY JUDGMENT 61 DATED this 14th day of November, 2016. Respectfully Submitted, s/ Peter M. Lacy ___________________________________ Peter M. (“Mac”) Lacy Oregon Natural Desert Association Of Attorneys for Plaintiffs Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 73 of 75 MOTION FOR SUMMARY JUDGMENT 62 EXHIBIT LIST Exhibit 1 Excerpts of— Oregon Department of Fish and Wildlife, Oregon Native Fish Status Report, Volume I: Species Management Unit Summaries & Volume II: Assessment Methods and Population Results, Oregon Dep’t of Fish & Wildlife, Fish Division, Salem, Ore. (2005). Exhibit 2 United States Fish and Wildlife Service memorandum (undated). Exhibit 3 Tables of Forest Service Grazing Permits and Annual Authorizations, 2006–2015. Exhibit 4 Tables of Forest Service-documented violations of stubble height, shrub use, bank alteration, and upland utilization “indicator” standards, and instances of trespass or unauthorized use, 2006–2015. Exhibit 5 Excerpts of— U.S. Department of the Interior, Riparian area management: Multiple indicator monitoring (MIM) of stream channels and streamside vegetation. Technical Reference 1737-23, BLM/OC/ST-10/003+1737+REV, Bureau of Land Management, National Operations Center, Denver, CO. (2011). Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 74 of 75 MOTION FOR SUMMARY JUDGMENT 63 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7-2(b)(2), the undersigned hereby certifies that the preceding memorandum contains 18,979 words including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and certificates of counsel. On November 10, 2016, the plaintiffs filed a partially unopposed motion (Dkt # 415) seeking leave for all parties to file over-length opening briefs of not more than 19,000 words. DATED this 14th day of November, 2016. s/ Peter M. Lacy ___________________________________ Peter M. (“Mac”) Lacy Oregon Natural Desert Association Case 3:03-cv-00213-PK Document 416 Filed 11/14/16 Page 75 of 75 2005 Oregon Native Fish Status Report Volume I Species Management Unit Summaries Oregon Department of Fish & Wildlife Fish Division 3406 Cherry Avenue N.E. Salem, OR 97303-4924 EXHIBIT 1 Page 1 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 1 of 8 140 Malheur River Bull Trout SMU North Fork Malheur Upper Malheur Oregon < 4 criteria met 4-5 criteria met All criteria met Extinct ESA Designation: Threatened 1998 State Status: Critical Interim Assessment: At Risk The Malheur River Bull Trout SMU consists of two populations, North Fork Malheur and Upper Malheur. Current spawning distribution is widespread, though fragmented, in headwater streams, and both populations are isolated from each other and other Snake River populations by impassable dams on the Malheur and North Fork Malheur Rivers. Brook trout are present and abundant in the Upper Malheur population and likely diminish the productivity of bull trout. The SMU met two of the six interim criteria and is classified as ‘at risk’. Limited data sets and inferences from other information for populations in this SMU provide a qualified level of confidence in the assessment of the interim criteria. Percent of Populations Meeting Criteria 0 20 40 60 80 100 Hybridization Independence Productivity Abundance Distribution Exist Population Exist Dist. Abund. Prod. Ind. Hybrid North Fork Malheur Pass Fail Fail* Fail* Pass Pass Upper Malheur Pass Fail Fail* Fail* Pass Fail *Inferred EXHIBIT 1 Page 2 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 2 of 8 2 Oregon Native Fish Status Report 141 Distribution - Fail Abundance - Fail • Abundance of bull trout in the North Fork Malheur population exceeds that necessary to avoid the negative effects of inbreeding. • Methods used to evaluate abundance of bull trout in the Upper Malheur population are confounded by the presence of brook trout. Field observations suggest densities are relatively low in this population, except in Meadow Fork of Big Creek, where densities appear highest. • The total number of adults in the SMU is estimated to be fewer than 1,000. Given the lack of connectivity and the low estimate of abundance, the SMU is at risk of the deleterious effects of genetic drift. Both populations and the SMU fail the abundance criterion. Bull Trout Spawning /Rearing Major Rivers Productivity - Fail • Historically, bull trout were present throughout the entire Malheur River, downstream to the Snake River. • Current spawning, juvenile rearing, and adult resident habitat is widely distributed in the upper basins. The North Fork Malheur distribution remains similar to when bull trout were first documented in 1955. Upper Malheur distribution is thought to be 54% of what it was historically. • Current bull trout distribution is disjunct. Populations are isolated above Agency and Warm Springs dams and gene flow between populations is not possible. Given the lack of connectivity to other populations, both populations fail the distribution criterion. • Migratory bull trout in the North Fork population rear and over winter in Beulah Reservoir and large river reaches upstream of the reservoir. North Fork Malheur Redd Counts 1996 - 2004 0 40 80 120 160 1996 1997 1998 1999 2000 2001 2002 2003 2004 Year N o. o f R ed ds • Annual redd counts in the North Fork Malheur population reflect a recent decreasing trend in abundance over the past five years. • Data adequate to assess productivity of the Upper Malheur are not available. The population is considered to fail the criterion due to low abundance, an isolated and fragmented spawning distribution, and the presence of a large population of brook trout. Hybridization - Fail • Stocking of brook trout in the Malheur River basin was first recorded in the late 1920s and 1930s (ODFW stocking records). Some of the brook trout releases resulted in self-sustaining populations. • Brook trout are present and abundant in the Upper Malheur population. Bull trout x brook trout hybrids are common. This population fails the hybridization criterion. • Brook trout are not present in the North Fork Malheur population and the population passes the hybridization criterion. Additional Information • Both populations in the Malheur River SMU are native fish sustained by natural production and pass the reproductive independence criterion. EXHIBIT 1 Page 3 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 3 of 8 2005 Oregon Native Fish Status Report Volume II Assessment Methods & Population Results Oregon Department of Fish & Wildlife Fish Division 3406 Cherry Avenue N.E. Salem, OR 97303-4924 EXHIBIT 1 Page 4 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 4 of 8 Oregon Native Fish Status Report – Volume II Malheur River Bull Trout 512 Malheur River Bull Trout Existing Populations The Malheur River Bull Trout SMU is comprised of two populations, North Fork Malheur and Upper Malheur (Table 1). Populations are identified according to those defined in the Malheur River Chapter of the Bull Trout Draft Recovery Plan (USFWS 2004), Buchanan et al. (1997), and Ratliff and Howell (1992). Bull trout in both populations express resident and migratory life history strategies (Buchanan et al. 1997). Table 1. Populations, existence status, and life history of the Malheur River Bull Trout SMU. Exist Population Description Life History Yes North Fork Malheur NF Malheur River and tributaries, incl. Crane, Sheep and Swamp creeks. Resident / Migratory Yes Upper Malheur Upper Malheur River and tributaries, incl. Big and Lake creeks. Resident / Migratory Distribution Analysis of the distribution criterion is based on 1:100,000 GIS hydrography of bull trout distribution (Hanson 2001, Buchanan et al. 1997). These data are primarily based on summer distribution sampling that often represent the most restricted distribution. A population fails the criterion if spawning and juvenile rearing distribution is 1) less than ten km, 2) not connected to other populations, or 3) occupies less than 50% of the historical distribution when historical distribution data are denoted on GIS (Table 2). Historically, bull trout were thought to utilize the entire Malheur River downstream to the Snake River. Summer and spawning habitat is assumed to have included most of the upper basin tributaries in the upper mainstem and North Fork basins (Buchanan et al. 1997, USFWS 2004). In 1919 Warm Springs Dam was built on the mainstem Malheur River creating Warm Springs Reservoir. Agency Dam was constructed in 1934 on the North Fork Malheur River creating Beulah Reservoir. Both dams were constructed for irrigation and flood control purposes and neither provided fish passage (USFWS 2004). Distribution in the North Fork Malheur River has remained unchanged since bull trout were first documented in the basin in 1955 (Buchanan et al. 1997). Currently in the North Fork Malheur bull trout are present in and upstream of Beulah Reservoir including most upper basin tributaries. Spawning, juvenile rearing, and adult resident bull trout exist in Horseshoe, Swamp, Sheep, Elk, Little Crane, and Flat creeks. Migratory bull trout overwinter in Beulah Reservoir and river reaches upstream of the reservoir, and move to the upper basin to spawn. Bull trout in the Upper Malheur population are distributed upstream of the confluence with Wolf Creek, including many of the upper basin tributaries. Spawning, juvenile rearing, and resident adult distribution includes Snowshoe, Meadow Fork, Big, and Lake creeks. Bull trout are not documented in Warm Springs Reservoir, however it may provide suitable overwinter habitat. Given that Agency and Warm Springs dams do not provide passage, bull trout populations in the Malheur River SMU are reproductively isolated. Gene flow between populations is not possible. Even though spawning distribution is relatively extensive compared to other populations in Oregon, both populations fail the distribution criterion due to the lack of connectivity (Table 2). EXHIBIT 1 Page 5 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 5 of 8 Oregon Native Fish Status Report – Volume II Malheur River Bull Trout 513 Table 2. Distribution data used to evaluate Malheur River bull trout populations. Population Spawning Distribution (km) % of Historical Connected to Other Pops. Pass/Fail North Fork Malheur 101.6 100 No Fail Upper Malheur 54 54 No Fail Abundance Populations of bull trout with fewer than 100 spawning adults are considered at risk of inbreeding and fail the interim risk criteria. The sum of interconnected populations also must exceed 1,000 adults to avoid risk of genetic drift (Rieman and Allendorf 2001). Thus an SMU or an isolated population must total greater than 1,000 reproductive adults in order to pass this criterion. Few data are available to provide a rigorous estimate of abundance. Instead abundance is inferred from census redd counts. Standardized annual spawning surveys have been conducted in the North Fork Malheur since 1996 (USFWS 2004). Abundance of bull trout in this population is estimated at 202 adults using the average of 1996-2004 redd counts (USFWS 2004, ODFW, Vale District Office, unpublished data) and an expansion factor of 2.3 fish per redd (Ratliff et al. 1996, Dunham et al. 2001) (Table 3). This population is not likely at risk of inbreeding. Annual redd surveys have occurred in the Upper Malheur population since 1998, however, the presence of brook trout complicates redd counts. Identification of the species associated with an unoccupied redd is not possible. A redd cannot be positively identified as that of a bull trout unless bull trout are observed building the nest. Thus, use of these data to estimate bull trout abundance is unfeasible. Other data necessary to estimate abundance of bull trout in the Upper Malheur population are not available or do not represent current status (i.e. > 10 year old population estimates). Field observations reflect that bull trout densities are relatively low, except in Meadow Fork of Big Creek, which is an apparent stronghold in the population (T. Walters, ODFW Malheur Watershed District Office, personal communication). Table 3. Estimated adult abundance of Malheur River bull trout populations. Population Estimated Adult Abundance Pass/Fail North Fork Malheur 202 Fail Upper Malheur -- Fail -- Data unavailable. Given the Malheur River SMU populations are reproductively isolated, each population must exceed 1,000 adults to avoid the deleterious effects of genetic drift. The USFWS Malheur River Bull Trout Recovery Team estimated fewer than 1,000 adult bull trout occupied the SMU (USFWS 2004). Thus neither population exceeds 1,000 adults and both are considered at risk of the deleterious effects of genetic drift. Both populations fail the abundance criterion. Productivity The assessment of the productivity criterion is based on trends of abundance over the past five years. A population passes the productivity criterion if the trend in abundance appears stable or increasing. A decreasing trend in abundance is cause for a population to fail the productivity criterion. Trends in abundance for the Malheur River SMU populations are evaluated using standardized census redd counts. This review recognizes the difficulties associated with EXHIBIT 1 Page 6 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 6 of 8 Oregon Native Fish Status Report – Volume II Malheur River Bull Trout 514 characterizing population trend using redd counts given the inherent variability in redd detection and sources of statistical error (Dunham et al. 2001, Maxell 1999, Rieman and Meyers 1997). The evaluation of the productivity criterion based on apparent population trend is subject to uncertainty and made with caution. Standardized redd counts in the North Fork Malheur population began in 1996. Redd counts have declined since 2000, though recent redd counts are greater than those in 1996 (Figure 1). Given the recent trends in redd counts the populations fails the productivity criterion until productivity can be thoroughly evaluated. Data appropriate to assess the Upper Malheur population are not available since redd counts are confounded by fall spawning brook trout. In the absence of these data the population is considered to fail the criterion due to low abundance, an isolated and fragmented spawning distribution, and the presence of a large population of brook trout. Migratory bull trout are present in the population but are not likely numerous enough to compensate for the negative impacts of the other factors. North Fork Malheur 0 40 80 120 160 1996 1997 1998 1999 2000 2001 2002 2003 2004 N o. o f R ed ds Figure 1. Trends in redd counts for North Fork Malheur population Reproductive Independence All populations in the Malheur River Bull Trout SMU are native fish sustained by natural production and pass the reproductive independence criterion. Hybridization A population is considered to pass the hybridization criterion if brook trout x bull trout hybrids are rare or non-existent. For populations in the Malheur River SMU, the degree of hybridization is not quantified, but professional judgment and the frequency of hybrids encountered during sampling provides a general indication. In cases where little or no information is available, and bull trout and brook trout are sympatric, this review assumes hybrids are common. Stocking of brook trout in the Malheur River basin was first recorded in the late 1920s and 1930s (ODFW stocking records). Some brook trout releases resulted in self-sustaining populations. Currently brook trout are present and abundant in streams in the Upper Malheur population where bull trout x brook trout hybrids are common (ODFW, unpublished data). This population fails the hybridization criterion (Table 4). Brook trout are not present in the North Fork Malheur River. Table 4. Occurrence of brook trout and hybridization for Malheur River bull trout populations. Population Brook Trout Pass/Fail North Fork Malheur No Pass Upper Malheur Yes Fail EXHIBIT 1 Page 7 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 7 of 8 Oregon Native Fish Status Report – Volume II Malheur River Bull Trout 515 Assessment Conclusions The Malheur River Bull Trout SMU consists of two populations, North Fork Malheur and Upper Malheur. Current spawning distribution is widespread, though fragmented, in headwater streams, and both populations are isolated from each other and other Snake River populations by impassable dams on the Malheur and North Fork Malheur Rivers. Brook trout are present and abundant in the Upper Malheur population and likely diminish the productivity of bull trout. The SMU met two of the six interim criteria and is classified as “at risk” (Figure 2). Limited data sets and inferences from other information for populations in this SMU provide a qualified level of confidence in the assessment of the interim criteria. Percent of Populations Meeting Criteria 0 20 40 60 80 100 Hybridization Independence Productivity Abundance Distribution Exist Figure 2. Assessment outcome for each of the six interim criteria with respect to the 80% threshold identified by the NFCP. EXHIBIT 1 Page 8 of 8 Case 3:03-cv-00213-PK Document 416-1 Filed 11/14/16 Page 8 of 8 EXHIBIT 2 Document received from U.S. Fish & Wildlife Service (“USFWS”) in response to Sept. 27, 2013 request (FWS-2013-00304), submitted to USFWS pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, asking for information regarding effects of Malheur National Forest livestock grazing on bull trout. The Forest Service did not include this document in the administrative record. EXHIBIT 2 Page 1 of 2 Case 3:03-cv-00213-PK Document 416-2 Filed 11/14/16 Page 1 of 2 Conversation with Steve about Deardorff , Rail, and Hot Springs o changing proposed action to maximum allowable use across the table o 20% bank and 4 inch stubble o Nothing different for MSRA – remember that even though in most locations MSRA does not contain bull trout spawning, it will provide recovery for the species. READ MSRA – pastures with MSRA have a lower allowable use standard for bank alteration due to high potential for interaction with spawning adults – so should be different standards o No difference between early season or late season endpoint indicators!!! o What about being consistent with what NMFS is doing because also beneficial to bull trout o We separated because of litigation but now it is time to get back on track. Consistent between agencies, pastures, allotments, districts because a cow is a cow and a stream is a stream. o READ EXCEDENCe strategy from Scott – in Blue Mtn. BAs o Look at history of these allotments o Randy said he can’t change the bank alteration because of what is stated in the permit. But it states in the BA that we are consulting on whats in the FS plan?? And not the permit. o Check to see if they are monitoring early and mid-season. This is key to the success of meeting endpoint indicators. o The Malheur Population is blinking. Very isolated. Only two core areas and a large distance between the two. The John Day is not. Core areas are the building blocks for conserving bull trout and this is the basis on which we determine the targets (eliminate threat targets, achieve demographic targets = more bull trout). Critical habitat is the minimum needed for survival. o Its all about recovery. Is the action interferring. Grazing has improved and may even be improving but is it slowing the process. Probably. Where as restoration provides huge improvements within a year. o Need to do something different in these allotments. Shrub dominated but no shrubs or trees are allowed to establish due to grazing. Should be a distribution of age classes. o Randy said he has already made the following changes: o Sidoway has lost 25% o Flag Prairie won’t be grazed o Logan Valley allotment/Bosenberg pasture won’t be grazed. Lake Creek is useable. o 14 miles of critical habitat. Just because it meets standards does not mean it is in an upward trend. o The action itself is meaningfully measureable. It may not be adverse modification but insignificant? Don’t think so. o West Lake Creek – want to exclude grazing on 3 miles. Big Creek water gap will be 20’ wide and Tribe will fence. o As part of the litigation, Dollar Basin, N.F., and Spring Creek are in negotiation to not graze. EXHIBIT 2 Page 1 of 1 Case 3:03-cv-00213-PK Document 416-2 Filed 11/14/16 Page 2 of 2 SPRING CREEK ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Bucktrough/Mahogany 1000 22 723 217 M.Joyce SC 3 Supp 0322 The ewe/lamb ("e/l") sheep AUM conversion factior is 0.3 (see SC0263). Buttermilk Flat 1000 4 132 39 Crane 1000 11 362 108 Little Crane 1000 7 230 69 Horseshoe Basin 1000 46 1512 454 Elk Flat 1000 65 2137 641 River Holding 1000 15 493 148 South River 1000 4 132 39 Cow Camp Holding 0 0 South Unit 18 0 0 Bucktrough/Mahogany 40 4 5 7 G.Joyce SC 3Supp 0330 The cow/calf ("c/c") AUM conversion factor is 1.32. Buttermilk Flat 40 4 5 7 Lower Crane 40 77 101 134 Crane 40 35 46 61 Bucktrough/Mahogany 300 22 217 65 A.Joyce SC 3 Supp 0337 e/l Buttermilk Flat 300 4 39 12 Crane 300 9 89 27 Little Crane 300 5 49 15 Horseshoe Basin 300 70 690 207 Elk Flat 300 58 572 172 South River 300 4 39 12 Total 2006: 2,433 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 1 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 1 of 33 For 2007: USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16 (on file with recipient). 2007 [Spring Creek Allotment] 1080 138 4900 1470 M.Joyce SC 3Supp 0409 Annual Authorized Use Request form (e/l) [Spring Creek Allotment] 20 138 91 27 A.Joyce SC 3Supp 0410 Annual Authorized Use Request form (e/l) 340 138 1543 2036 SC 3Supp 0410 Annual Authorized Use Request form (cattle) 5 horses 138 SC 3Supp 0410 Annual Authorized Use Request form (horses) [Spring Creek Allotment] G.Joyce SC 3Supp 412 There is not even an Annual Authorized Use Request form for G.Joyce in the administrative record, though it appears she did graze in 2007. See SC 3Supp 412, 416‐17. Total 2007: 3,533 2008 Bucktrough/Mahogany 1080 20 710 213 M.Joyce SC 3Supp 0472 e/l Buttermilk Flat 1080 4 142 43 Crane 1080 11 391 117 Little Crane 1080 7 249 75 Horseshoe Basin 1080 78 2770 831 River Holding 1080 4 142 43 South River 1080 4 142 43 Cow Camp Holding 1080 4 142 43 South Unit 1080 4 142 43 Elk Flat 1080 52 1846 554 Trailing Off Forest 1080 15 533 160 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 2 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 2 of 33 Bucktrough 125 11 45 60 A.Joyce SC 3Supp 0483 c/c Buttermilk/Cougar 125 11 45 60 Lower Crane 125 62 255 336 Little Crane 125 43 177 233 Crane 125 25 103 136 Little Crane Riparian 40 21 28 36 Little Crane 40 84 110 146 Crane 40 25 33 43 Bucktrough 75 10 25 33 South River 75 50 123 163 Little Crane 75 48 118 156 Crane 75 25 62 81 Bucktrough 120 26 103 135 Buttermilk/Cougar 120 21 83 109 Horseshoe 120 42 166 219 Little Crane 120 48 189 250 Crane 120 5 20 26 Bucktrough 40 11 14 19 G.Joyce SC 3Supp 0476 c/c Buttermilk Flat 40 11 14 19 Lower Crane 40 62 82 108 Crane 40 25 33 43 Total 2008: 4,574 2009 Bucktrough 1080 15 533 160 M.Joyce SC 3Supp 0643 e/l Buttermilk Flat 1080 3 107 32 Crane 1080 9 320 96 Little Crane 1080 7 249 75 Horseshoe Basin 1080 32 1136 341 River Holding 1080 4 142 43 South River 1080 4 142 43 Cow Camp Holding 1080 4 142 43 South Unit 1080 4 142 43 Elk Flat 1080 71 2521 756 Trailing Off Forest 1080 6 213 64 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 3 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 3 of 33 Bucktrough 250 19 156 206 A.Joyce/G.Joyce SC 3Supp 0635, SC 3Supp 0639 c/c Buttermilk/Cougar 250 1 8 11 Lower Crane 250 45 370 488 Little Crane 250 66 542 716 Bucktrough 100 10 33 43 Buttermilk/Cougar 100 1 3 4 South River 100 48 158 208 Crane 100 72 237 312 Little Crane Riparian 0 0 0 0 non‐use Buttermilk/Cougar 34 34 38 50 Crane 34 72 80 106 Total 2009: 3,840 2010 Bucktrough 1080 15 533 160 M.Joyce SC 4Supp 00083 e/l Buttermilk Flat 1080 3 107 32 Crane 1080 9 320 96 Little Crane 1080 7 249 75 Horseshoe Basin 1080 32 1136 341 River Holding 1080 4 142 43 South River 1080 4 142 43 Cow Camp Holding 1080 4 142 43 South Unit 1080 4 142 43 Elk Flat 1080 71 2521 756 Trailing Off Forest 1080 6 213 64 Buttermilk Flat 172 12 68 90 A.Joyce SC 4Supp 00090 c/c Lower Crane 100 61 201 265 South River 72 52 123 162 Bucktrough/Mahogany 100 31 102 135 Little Crane 72 29 69 91 Buttermilk 0 0 0 0 "on way out" Buttermilk Flat 172 2 11 15 Little Crane 172 102 577 761 Crane 102 0 0 No numbers given. Buttermilk/Cougar 0 0 0 0 "on way out" EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 4 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 4 of 33 Buttermilk Flat 40 16 21 28 G.Joyce SC 4Supp 00087 c/c Little Crane 40 124 163 215 Crane 124 0 0 "with Little Crane" Buttermilk/Cougar 0 0 0 0 "on way out" Total 2010: 3,455 2011 0 0 M.Joyce P 4Supp 04371 Took non‐use. 0 0 G.Joyce P 4Supp 04371 Took non‐use. Buttermilk Flat 172 12 68 90 A.Joyce SC 4Supp 00298 c/c Lower Crane 100 61 201 265 South River Unit 72 52 123 162 Bucktrough/Mahogany 44 57 82 109 Little Crane 128 77 324 428 Crane 100 102 335 443 Buttermilk/Cougar 0 0 0 0 "on way out" Total 2011: 1,496 2012 0 0 M.Joyce P 4Supp 06087 Took non‐use. 0 0 G.Joyce P 4Supp 06087 Took non‐use. Buttermilk Flat 172 20 113 149 A.Joyce P 5Supp 056 Lower Crane 100 31 102 135 South River 72 47 111 147 Bucktrough/Mahogany 44 88 127 168 Little Crane 128 77 324 428 Crane 100 112 368 486 Buttermilk/Cougar 0 0 "various when needed" and "on way out" Total 2012: 1,513 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 5 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 5 of 33 2013 Bucktrough/Mahogany 128 22 93 122 M.Joyce SC 4Supp 00602, P 5Supp 066 c/c Buttermilk Flat 128 4 17 22 Horseshoe Basin 128 43 181 239 Little Crane/Crane 128 62 261 344 Buttermilk/Cougar 0 0 "various when needed" and "on way out" Bucktrough/Mahogany 175 22 127 167 A.Joyce SC 4Supp 00611 c/c Buttermilk Flat 175 4 23 30 Lower Crane 75 107 264 348 South River Unit 100 46 151 200 Little Crane 125 93 382 505 Bucktrough/Mahogany 44 57 82 109 Little Crane/Crane 128 62 261 344 Buttermilk/Cougar 0 0 "various when needed" and "on way out" [Spring Creek Allotment] 20 138 181 239 Joyce Family Trust SC 4Supp 00585 c/c Total 2013: 2,670 2014 M.Joyce P 4Supp 06758 Took non‐use. Joyce Family Trust P 4Supp 06758 Took non‐use. Buttermilk Flat 100 11 36 48 A.Joyce SC 4Supp 00838 c/c South River/River Holding 100 46 151 200 Little Crane 100 22 72 95 Bucktrough/Mahogany 100 41 135 178 Bucktrough/Mahogany 244 21 168 222 Little Crane 244 63 505 667 Lower Crane/Crane 128 55 231 306 Total 2014: 1,716 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 6 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 6 of 33 2015 0 0 M.Joyce P 4Supp 11843 Took non‐use. 0 0 Joyce Family Trust P 4Supp 11843 Took non‐use. Bucktrough/Mahogany 244 21 168 222 A.Joyce SC 4Supp 00954 c/c Little Crane 244 63 505 667 Lower Crane/Crane 128 54 227 300 Buttermilk Flat 100 11 36 48 South River/River Holding 100 46 151 200 Little Crane 100 21 69 91 Buttermilk Flat 100 10 33 43 Bucktrough/Mahogany 100 40 132 174 Total 2015: 1,745 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 5/13/2010 Grazing Permit (Permit # 01872) 700 sheep 6/10 to 10/25 953 A. Joyce P 4Supp 2428‐33 Permit expires 12/31/2020. 204 cattle 6/10 to 10/25 1,222 344 cattle 6/10 to 10/25 2,060 Note that 2015 EOY Report incorrectly calculates that these 344 c/c only equate to 1,561 AUMs (P 4Supp 11843). 1,720 sheep 6/10 to 10/25 2,341 Total (highest possible option): 1,720 sheep 2,341 Although permit does not state this, 2015 EOY Report suggests that the permit authorizes either: (1) 700 e/l + 204 c/c, or (2) 344 c/c, or (3) 1,720 e/l. P 4Supp 11843. This is consistent with the prior permit. See SCAR 0924. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 7 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 7 of 33 5/20/2010 Grazing Permit (Permit # 01871) 40 cattle 6/10 to 10/25 240 G. Joyce P 4Supp 2465‐68 Permit expires 12/31/2020. 5/13/2010 Grazing Permit (Permit # 01873) 380 sheep 6/10 to 10/25 517 M. Joyce P 4Supp 2484‐89 Permit expires 12/31/2020. 140 cattle 6/10 to 10/25 838 216 cattle 6/10 to 10/25 1,294 1080 sheep 6/10 to 10/25 1,470 Total (highest possible option): 1080 sheep 1,470 Although permit does not state this, 2015 EOY Report suggests that the permit authorizes either: (1) 380 e/l + 140 c/c, or (2) 216 c/c, or (3) 1,080 e/l. P 4Supp 11843. This is consistent with the prior permit. See SCAR 0981. Allotment Total (high): 4,051 Allotment Total (low): 3,593 Notes on Prior Permits: The 2010 permits superseded prior permits issued in 2000, which authorized the exact same AUM. See SCAR 0924, 0943, 0962, 0981. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 8 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 8 of 33 NORTH FORK ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Anderson Creek Riparian 200 26 171 226 Butler NF 3Supp 191 c/c Anderson Unit 200 36 237 312 Squaw Creek 200 17 112 148 Squaw Creek Holding 200 5 33 43 "As needed for gathering up to 5 days" Camp Creek 0 0 0 0 non‐use Mountain 250 43 353 467 Bear Creek Meadows Holding 3 0 0 "Various" North River 250 27 222 293 South River 250 27 222 293 various 8 horses 88 Total 2006: 1,781 2007 Anderson Riparian Unit 223 32 235 310 Butler P 3Supp 7017, NF 3 Supp 253 Information comes from the 2007 EOY Report because AOI is missing from administrative record. USFS states it "could not locate the attachments [i.e., the annual instructions] referenced at [NF 3Supp 253]." Email from S.Odell to P.Lacy dated 10/27/16. Anderson Pasture 223 44 323 426 Squaw Pasture 223 22 161 213 Squaw Holding Pasture 223 2 15 19 Mountain 225 38 281 371 See also NF 3Supp 283 Actual use form clarifies incomplete statement of days in EOY Report. North River 150 30 148 195 South River 150 17 84 111 Bear Meadows Holding Pasture 150 0 0 "removed from the Forest via" this unit. Total 2007: 1,645 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 9 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 9 of 33 2008 [North Fork Allotment] 450 105 1553 2051 Siddoway P 3Supp 7393 Information comes from 2008 EOY Report. See also NF 332 (approved annual use form). USFS states that "the annual operating instructions or any other annual grazing authorization for Permittee Siddoway to graze the North Fork Allotment in 2008 . . . have been misplaced or are lost." Email from S.Odell to P.Lacy dated 10/27/16. Total 2008: 2,051 2009 Squaw Creek 450 29 429 566 Siddoway NF 3Supp 489 Anderson Riparian 450 39 577 762 Anderson 225 27 200 264 North River 225 17 126 166 South River 100 47 155 204 Mountain 350 62 713 942 Bear Meadows Holding 450 6 89 117 Total 2009: 3,021 2010 Squaw Creek 325 22 235 310 Siddoway NF 4Supp 00023 North River 125 31 127 168 Anderson Riparian 80 71 187 247 Anderson 80 71 187 247 South River 100 62 204 269 Mountain 190 71 444 585 Bear Meadows Holding 200 15 99 130 Total 2010: 1,956 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 10 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 10 of 33 2011 Dude Pasture 450 8 118 156 Siddoway NF 4Supp 00285 This AOI includes units in both the North Fork and Flag Prairie Allotments. Bear Creek Riparian 450 8 118 156 Sheep Gulch 450 17 252 332 North River 100 32 105 139 South River 100 93 306 404 Mountain 250 77 633 835 Anderson Riparian 350 31 357 471 Anderson 100 63 207 273 Bear Meadows Holding 63 "various" numbers for this period. Squaw Creek 0 0 0 0 non‐use Total 2011: 2,767 2012 South River 200 69 454 599 Siddoway P 4Supp 06078, NF 4Supp 0690 Numbers come from 2012 EOY Report. No AOI or other annual decision document in the administrative record. Email from S.Odell to P.Lacy dated 10/27/16. Squaw Creek 0 0 0 0 non‐use North River 0 0 0 0 non‐use Anderson Riparian 0 0 0 0 non‐use Anderson 0 0 0 0 non‐use Mountain 0 0 0 0 non‐use Bear Meadows 0 0 0 0 non‐use Total 2012: 599 2013 North River 407 15 201 265 Elder NF 4Supp 00776 South River 407 18 241 318 Mountain 407 32 428 565 Bear Meadows 0 0 "various" "while moving" Anderson 407 25 335 442 Anderson Riparian 407 16 214 283 Squaw Creek 407 21 281 371 Total 2013: 2,243 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 11 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 11 of 33 2014 North River 400 0 0 0 Elder NF 4Supp 00941 non‐use South River 400 13 171 226 "gathering" Mountain 400 37 487 642 Bear Meadows 400 13 171 226 "gathering" Anderson 400 23 302 399 Anderson Riparian 400 32 421 555 Squaw Creek 400 21 276 365 Total 2014: 2,413 2015 North River 100 59 194 256 Elder NF 4Supp 01090 80 yrlg / 20 cows South River 100 64 210 278 80 yrlg / 20 cows Anderson 350 23 265 349 Mountain 350 39 449 592 Anderson Riparian 350 43 495 653 Squaw Creek 350 18 207 273 Squaw Holding 4 0 0 "gather" South River 4 0 0 "gather" Total 2015: 2,402 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 5/29/2013 Grazing Permit (Permit # 01891) 450 cattle 6/18 to 10/17 2,383 Elder NF 4Supp 0783‐ 89 Grazing permit expires 12/31/2022. Grazing Permit Modification #1 8 horses 6/18 to 10/17 38 NF 4Supp 01097 Horses added to permit via Grazing Permit Modification. Allotment Total: 2,421 Notes on Prior Permits: The 2013 permit superseded a prior permit issued in 2008, which authorized the exact same number of AUM (for cattle). See NF 3Supp 319. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 12 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 12 of 33 FLAG PRAIRIE ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 South Bear 100 17 56 74 Three Valley Ranch FP 3 Supp 0311 c/c River 100 32 105 139 Sheep Gulch 100 36 118 156 Sheep Gulch 200 23 151 200 South Bear 32 "various" numbers Bear Creek Riparian Holding 17 "various" numbers South 150 22 108 143 PW Cow Company FP 3Supp 0318 Mountain 150 31 153 202 Mountain 50 15 25 33 Flag 300 112 1105 1458 Crane Riparian 5 "various as needed for gathering up to 5 days" Crane Prairie Holding 5 "various as needed for gathering up to 5 days" Flag Prairie Horse Unit 5 "various as needed for gathering up to 5 days" Special Use Unit 5 "various as needed for gathering up to 5 days" East Holding 5 "various as needed for gathering up to 5 days" Total 2006: 2,404 2007 [Flag Prarie Allotment] Three Valley Ranch P 3Supp 7007 non‐use for 2007 [Flag Prarie Allotment] 380 148 1849 2441 PW Cow Company FP 3Supp 0453 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16. Total 2007: 2,441 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 13 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 13 of 33 2008 Sheep Gulch 200 30 197 260 Three Valley Ranch FP 3Supp 0587 East Hole 200 30 197 260 Bear Creek Riparian 200 12 79 104 River 200 37 243 321 South Bear 200 31 204 269 Dude Riparian 0 0 non‐use Crane Prairie Holding (horses) 52 PW Cow Company FP 3Supp 0527‐28 East Holding and Special 5 128 21 28 Crane Prairie Holding 180 4 24 31 Crane Riparian 180 4 24 31 Mountain 180 35 207 273 Crane Crossing 180 6 36 47 South 100 40 132 174 Flag 280 62 571 753 East Holding and Special Use 280 16 147 194 Total 2008: 2,747 2009 [Flag Prarie Allotment] Three Valley Ranch FP 3Supp 1003 non‐use for 2009 Crane Prairie Holding PW Cow Company FP 3Supp 0999 "variable" Flag Holdings "variable" Crane Prairie Riparian 0 0 0 0 non‐use Mountain 0 0 0 0 non‐use Crane Crossing 0 0 0 0 non‐use South 220 23 166 220 Flag 220 73 528 697 South Bear 220 44 318 420 Total 2009: 1,337 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 14 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 14 of 33 2010 [Flag Prarie Allotment] Three Valley Ranch FP 4Supp 00033 non‐use for 2010 Crane Prairie Holding PW Cow Company FP 4Supp 00034 "variable" Flag Holdings 5 horses 148 South 100 26 85 113 Flag 100 112 368 486 Crane Prairie Riparian 60 31 61 81 used "With Mountain" Mountain 60 31 61 81 River 60 31 61 81 used "With Mountain" Crane Crossing 0 0 "For crossing" Flag 60 102 201 266 Flag 65 128 274 361 South Bear 50 "If needed" ‐ no number specified. Total 2010: 1,468 2011 [Flag Prarie Allotment] Three Valley Ranch FP 4Supp 00395 non‐use for 2011. East Holding 200 22 145 191 PW Cow Company FP 4Supp 00392 South 200 26 171 226 South Bear 200 32 210 278 Flag 200 81 533 703 Flag Prairie Pastures 200 11 72 95 Flag Prairie Pastures 10 horses 138 Total 2011: 1,493 2012 [Flag Prarie Allotment] Three Valley Ranch FP 4Supp 00757 non‐use for 2012. [Flag Prarie Allotment] PW Cow Company FP 4Supp 00791 non‐use for 2012. Total 2012: 0 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 15 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 15 of 33 2013 [Flag Prarie Allotment] Three Valley Ranch FP 4Supp 00930 non‐use for 2013. South 380 32 400 528 Cronin FP 4Supp 00931 Flag 380 48 600 792 River 380 15 187 247 Mountain 380 42 525 693 Crane Riparian/Holding 380 15 187 247 Flag Holdings 0 0 "variable" numbers and dates Crane Crossing/Station 0 0 "While moving to River" Total 2013: 2,507 2014 Dude 192 11 69 92 Cronin FP 4Supp 01333 Bear Creek Riparian 192 6 38 50 Sheep Gulch 192 36 227 300 Bear Creek Riparian 192 11 69 92 South Bear 192 63 398 525 Flag 192 0 0 "Gather" South 125 45 185 244 Flag 125 88 362 477 River 200 20 132 174 Mountain 50 113 186 245 Station Creek/Crane Holding 517 10 170 224 Crane Riparian 0 0 0 0 "Rested" Flag Holdings "Variable" Crane Crossing/Station "While moving to & from River" Total 2014: 2,423 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 16 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 16 of 33 2015 Dude 237 11 86 113 Cronin FP 4Supp 01692‐93 Bear Creek Riparian 237 6 47 62 Sheep Gulch 237 35 273 360 Bear Creek Riparian 237 10 78 103 South Bear 237 62 483 638 Flag 237 0 0 "Gather" South 190 45 281 371 Flag 190 45 281 371 Flag 330 4 43 57 River 200 21 138 182 Mountain 50 50 82 108 Flag 80 24 63 83 Flag 380 63 787 1039 Station Creek/Crane Holding 517 10 170 224 Crane Riparian 0 0 0 0 "Rested" Flag Holdings 0 0 "Variable" Crane Crossing/Station 0 0 "While moving to & from River" Total 2015: 3,712 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 5/24/2013 Grazing Permit (Permit # 01893) 380 cattle 6/5 to 10/30 2,441 Cronin FP 4Supp 01339‐45 5/12/2014 Grazing Permit Modification #1 237 cattle 6/1 to 10/15 1,522 FP 4Supp 01338 Three Valley Ranch sold its base property to the Cronins. Allotment Total: 3,963 Notes on Prior Permits: The 2013 permit states that it superseded a prior permit, issued on Dec. 29, 2003 to PW Cow Co., which does not appear to be in the record. See FP 4Supp 01339. Another prior, but later waived, permit was issued in 2011 (Three Valley Ranch). P 4Supp 00841. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 17 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 17 of 33 OTT ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Ott Meadows 1 0 0 Robertson OTT 3Supp 186 "Various" numbers Anderson Holding 2 0 0 "Various" numbers Rattlesnake 430 36 509 672 Cottonwood Holding 5 0 0 "Various" "As needed not to exceed 5 days" Buttermilk 430 15 212 280 Knox Meadow 0 0 "Various" "As needed not to exceed 5 days" Ott 430 47 664 877 Cottonwood Riparian 0 0 "Rest" North Fork Malheur Riparian 0 0 "Rest" Total 2006: 1,829 2007 [Ott Allotment] 430 108 1527 2015 Joyce OTT 3Supp 248 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16. Total 2007: 2,015 2008 East Buttermilk 200 17 112 148 Joyce OTT 3Supp 295 Anderson Holding 200 7 46 61 Ott 230 46 348 459 Rattlesnake 200 46 302 399 Rattlesnake 230 17 129 170 West Buttermilk 430 37 523 690 Knox Meadows 430 6 85 112 North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Total 2008: 2,039 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 18 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 18 of 33 2009 Ott 300 38 375 495 Joyce OTT 3Supp 611 Ott Meadow 3 0 0 "Gather" West Buttermilk 300 56 552 729 Knox Meadows 3 0 0 "Gather" East Buttermilk 0 0 0 0 non‐use Rattlesnake 0 0 0 0 non‐use Anderson Holding 0 0 0 0 non‐use North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Total 2009: 1,224 2010 Ott 300 61 602 794 Joyce Ott 4Supp 00009 Ott Meadow 4 horses 63 "Horses and Gather" West Buttermilk 0 0 non‐use Knox Meadows 0 0 non‐use East Buttermilk 0 0 non‐use Rattlesnake 0 0 non‐use Anderson Holding 0 0 non‐use North Fork Malheur River 0 0 non‐use Cottonwood Riparian 0 0 non‐use Total 2010: 794 2011 Ott Meadow 4 horses 92 Jackson Creek Land LLC P 5Supp 023 Ott Meadow 430 5 71 93 Rattlesnake 430 32 452 597 Cottonwood Meadows 430 5 71 93 West Buttermilk 430 37 523 690 Knox Meadows 430 6 85 112 Ott 430 21 297 392 North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use East Buttermilk 0 0 0 0 non‐use Anderson Holding 0 0 0 0 non‐use Total 2011: 1,978 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 19 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 19 of 33 2012 Ott Meadow 4 horses Engeberg P 4Supp 06082, P 5Supp 055 Information comes from 2012 EOY Report. No AOI in administrative record. Ott Meadow 430 5 71 93 Ott Meadow 430 4 57 75 "Gather" Ott 430 58 820 1082 Rattlesnake 430 24 339 448 Cottonwood Holding 430 5 71 93 "Gather" West Buttermilk 430 36 509 672 Knox Meadows 430 6 85 112 "Gather" East Buttermilk 0 0 0 0 non‐use North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Anderson Holding 0 0 0 0 non‐use Total 2012: 2,575 2013 Ott Meadow 430 1 14 19 Engeberg OTT 4Supp 00699 "Overnight" Rattlesnake 430 32 452 597 Cottonwood Meadows 430 0 0 0 "Gather" West Buttermilk 430 30 424 560 Knox Meadows 430 0 0 0 "Gather" East Buttermilk 430 15 212 280 Ott 430 16 226 299 Anderson Holding 0 0 0 0 non‐use North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Total 2013: 1,754 2014 Ott Meadow 430 1 14 19 Engeberg OTT 4Supp 00806 "Overnight" Rattlesnake 430 32 452 597 Cottonwood Meadows 430 0 0 0 "Gather" West Buttermilk 430 32 452 597 Knox Meadows 430 0 0 0 "Gather" East Buttermilk 430 15 212 280 Ott 430 35 495 653 Anderson Holding 0 0 0 0 non‐use EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 20 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 20 of 33 North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Total 2014: 2,146 2015 Ott Meadow 430 1 14 19 Engeberg OTT 4Supp 00952 "Overnight" Ott 430 6 85 112 Cottonwood Meadows 430 0 0 0 "Gather" West Buttermilk 430 32 452 597 Rattlesnake 430 0 0 "may be used in between East and West Buttermilk depending on forage and water available" East Buttermilk 430 32 452 597 Knox Meadows 430 0 0 0 "Gather" Anderson Holding 0 0 0 0 non‐use North Fork Malheur River 0 0 0 0 non‐use Cottonwood Riparian 0 0 0 0 non‐use Total 2015: 1,325 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 6/14/2012 Grazing Permit (Permit # 01888) 430 cattle 6/1 to 8/31 1,717 Engeberg OTT 4Supp 00464‐ 71 Permit expires 12/31/2021. 4 horse 6/1 to 8/31 UNK Allotment Total: 1,717 Note that 2015 EOY Report incorrectly calculates that allotment is only authorized for up to a total of 1,313 AUMs (P 4Supp 11839). Notes on Prior Permits: The 2012 permit superseded a prior permit issued in 2011, which authorized the exact same number of AUM. OTT 4Supp 00224; see also OTT 4Supp 00436 (waiver of permit from Jackson Creek Land LLC to Engeberg). EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 21 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 21 of 33 BLUEBUCKET ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Teepee 210 45 311 410 Hussey BB 3Supp 1792 Rock Springs 210 77 532 702 Jones Springs "various as needed" Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten BB 3Supp 1785 Lake Camp 50 91 150 197 Total 2006: 1,377 2007 [all pastures] 210 122 842 1112 Hussey BB 3Supp 1837 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16. [all pastures] 120 122 481 635 [all pastures] 50 122 201 265 Dunten BB 3Supp 1838 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16. Total 2007: 2,012 2008 Teepee 210 45 311 410 Hussey BB 3Supp 1917‐18 Rock Springs 210 77 532 702 Cougar Unit Uplands 120 37 146 193 Dry Meadows 120 86 339 448 Jones Springs "various as neeed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten BB 3Supp 1913 Lake Camp 50 91 150 197 Total 2008: 2,017 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 22 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 22 of 33 2009 Teepee 180 39 231 305 Hussey BB 3Supp 2196 Rock Springs 180 48 284 375 Cougar Unit Uplands 100 30 99 130 Dry Meadows 100 57 187 247 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten BB 3Supp 2192 Lake Camp 50 91 150 197 Total 2009: 1,322 2010 Cougar 150 21 104 137 Hussey BB 4Supp 00015 Dry Meadows 100 63 207 273 Teepee 150 21 104 137 Rock Springs 150 42 207 273 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten BB 4Supp 00013; BB 3Supp 2372 No AOI or other annual decision document in the administrative record. Information comes from annual authorization meeting record. Lake Camp 50 91 150 197 Total 2010: 1,085 2011 Cougar 120 22 87 115 Hussey BB 4Supp 00240 Dry Meadows 120 63 249 328 Teepee 210 21 145 191 Rock Springs 210 47 325 428 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 25 31 25 34 Dunten P 4Supp 295 Cow Camp, South Horse Patchen Park 25 10 8 11 Lake Camp 50 91 150 197 Total 2011: 1,304 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 23 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 23 of 33 2012 Cougar 120 22 87 115 Hussey BB 4Supp 00382; BB 4Supp 00394 Dry Meadows 120 73 288 380 Teepee 210 21 145 191 Rock Springs 210 57 394 519 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 25 31 25 34 Dunten BB 4Supp 00378 Cow Camp, South Horse Patchen Park 25 10 8 11 Lake Camp 50 91 150 197 Total 2012: 1,448 2013 Cougar 120 21 83 109 Hussey BB 4Supp 00514 Dry Meadows 120 81 320 422 Teepee 210 22 152 200 Rock Springs 210 71 490 647 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 25 31 25 34 Dunten P 5Supp 019 Cow Camp, South Horse Patchen Park 25 10 8 11 Lake Camp 50 91 150 197 Total 2013: 1,621 2014 Cougar 120 21 83 109 Hussey BB 4Supp 00659 Dry Meadows 120 86 339 448 Teepee 210 22 152 200 Rock Springs 210 76 525 693 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten BB 4Supp 00655 Lake Camp 50 91 150 197 Total 2014: 1,715 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 24 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 24 of 33 2015 Cougar 120 21 83 109 Hussey BB 4Supp 00759 Dry Meadows 120 86 339 448 Teepee 210 22 152 200 Rock Springs 210 45 311 410 Jones Springs "various as needed" Cougar Creek Riparian 0 0 0 0 non‐use Cow Camp, South Horse Patchen Park 50 31 51 67 Dunten P 5Supp 110 Lake Camp 50 91 150 197 Total 2015: 1,433 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 3/19/2012 Grazing Permit (Permit # 01879) 330 cattle 6/1 to 9/30 1,747 Hussey BB 4Supp 00370‐77 Permit expires 12/31/2021. 3/24/2016 Grazing Permit (Permit # 01895) 50 cattle 6/1 to 9/30 265 Dunten BB 4Supp 00797‐806 Permit expires 12/31/2025. Allotment Total: 2,012 Notes on Prior Permits: The 2012 permit (Hussey) superseded a prior permit issued in 2002 (also Hussey), which had authorized 210 c/c from 6/15 to 9/15, for a total of 848 AUM. BAR 436. The 2016 permit (Dunten) superseded a prior permit issued in 2006, which had authorized the exact same 265 AUM for 50 c/c. BB 3Supp 1637. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 25 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 25 of 33 CENTRAL MALHEUR ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Johnson's Corner 34 20 22 30 Ahmann & Borelli CM 3Supp 024 South Pasture 163 45 241 318 South Pasture 34 25 28 37 Lower Hog Flat 0 0 "gather" Upper Hog Flat 0 0 "gather" North Pasture 197 77 499 658 Miller Flat 6 0 0 "gather" (no numbers given) Upper/Upper Hog Flat 0 0 "Use only if absolutely necessary" Total 2006: 1,043 2007 Johnson's Corner 34 20 22 30 Borelli CM 3Supp 050 South Pasture 34 25 28 37 Lower Hog Flat 0 0 "gather" Upper Hog Flat 0 0 "gather" North Pasture 34 77 86 114 Miller Flat 6 0 0 "gather" (no numbers given) Upper/Upper Hog Flat 0 0 South Pasture 163 45 241 318 Ahmann P 5Supp 01 Lower Hog Flat 0 0 "gather" Upper Hog Flat 0 0 "gather" North Pasture 163 77 413 545 Miller Flat 0 0 "gather" Upper/Upper Hog Flat 0 0 Total 2007: 1,043 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 26 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 26 of 33 2008 Johnson's Corner 34 20 22 30 Borelli CM 3Supp 073 South Pasture 34 25 28 37 North Pasture 34 77 86 113 Miller Flat 34 6 7 9 "Use for gathering" South 163 45 241 318 Ahmann CM 3Supp 069‐70 North 163 77 413 545 Total 2008: 1,052 2009 Johnson's Corner 34 20 22 30 Borelli CM 3Supp 123 South Pasture 34 25 28 37 North Pasture 34 77 86 113 Miller Flat 34 6 7 9 South 163 45 241 318 Ahmann CM 3Supp 126 North 163 77 413 545 Total 2009: 1,052 2010 Johnson's Corner 34 20 22 30 Borelli CM 3Supp 168 South Pasture 34 25 28 37 North Pasture 34 77 86 113 Miller Flat 34 6 7 9 South 151 45 223 295 Ahmann CM 4Supp 00033 10 45 15 22 bulls North 151 77 382 505 10 77 25 38 bulls Total 2010: 1,049 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 27 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 27 of 33 2011 Johnson's Corner 34 20 22 30 Borelli CM 4Supp 00083 South Pasture 34 25 28 37 North Pasture 34 77 86 113 Miller Flat 34 6 7 9 South 151 45 223 295 Ahmann CM 4Supp 00076 10 45 15 22 North 151 77 382 505 10 77 25 38 Total 2011: 1,049 2012 Johnson's Corner 34 20 22 29 Borelli CM 4Supp 00165 South Pasture 34 25 27 36 North Pasture 34 77 84 111 South 151 45 223 295 Ahmann CM 4Supp 00168 10 45 15 22 North 151 77 383 505 10 77 25 38 Total 2012: 1,036 2013 Johnson's Corner 34 20 22 29 Borelli CM 4Supp 00208 (plus 1 bull) South Pasture 34 25 27 36 (plus 1 bull) North Pasture 34 77 84 110 (plus 1 bull) South 151 45 238 317 Ahmann CM 4Supp 00211 (plus 10 bulls) North 151 77 408 543 (plus 10 bulls) Total 2013: 1,035 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 28 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 28 of 33 2014 Johnson's Corner 34 20 22 29 Borelli CM 4Supp 00242 (plus 1 bull) South Pasture 34 25 27 36 (plus 1 bull) North Pasture 34 77 84 110 (plus 1 bull) South 150 45 238 312 Ahmann CM 4Supp 00236 (plus 11 bulls) North 150 77 408 535 (plus 11 bulls) Total 2014: 1,022 2015 [Central Malheur Allotment] 0 0 0 Borelli CM 4Supp 00364 non‐use for 2015. South 150 45 238 312 Ahmann CM 4Supp 00287 (plus 11 bulls) North 150 77 408 535 (plus 10 bulls) Total 2015: 847 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 4/16/2013 Grazing Permit (Permit # 01765A) 163 cattle 6/1 to 9/30 863 Ahmann P 4Supp 07051‐58 Permit expires 12/31/2022. 5/17/2007 Grazing Permit (Permit # 01851) 34 cattle 6/1 to 9/30 180 Borelli P 4Supp 07059‐65 Permit expires 12/31/2016. Allotment Total: 1,043 Notes on Prior Permits: The 2013 permit (Ahmann) superseded a prior permit issued in 2003 (also Ahmann), which had authorized the exact same AUM. CM 3Supp 005. The 2007 permit (Borelli) superseded a prior permit issued in 1997, which does not appear in the administrative record. See P 4Supp 07059. EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 29 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 29 of 33 DOLLAR BASIN/STAR GLADE ALLOTMENT Year Unit Number Days HMs AUMs Permittee AR page(s) Notes 2006 Rocking Chair 50 64 105 139 Coombs DBSG 3Supp 0121 Merit 50 20 33 43 Dollar Basin 116 27 103 136 Dollar 116 59 225 297 Merit 116 20 76 101 South Star Glade 50 43 71 93 Merit 50 39 64 85 Total 2006: 894 2007 [Dollar Basin Allotment] 180 123 728 961 Coombs DBSG 3Supp 0180 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Email from S.Odell to P.Lacy dated 10/27/16. [Star Glade Allotment] 29 152 145 191 Total 2007: 1,152 2008 Rocking Chair 50 85 140 184 Coombs DBSG 3Supp 0208‐09 Merit 50 20 33 43 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Merit 116 53 202 267 South Star Glade 0 0 0 0 non‐use N/S Starvation 18 0 0 various numbers (gathering) Total 2008: 756 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 30 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 30 of 33 2009 Rocking Chair 50 85 140 184 Coombs DBSG 3Supp 0925 Merit 50 20 33 43 Merit 50 75 123 163 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Merit 116 53 202 267 South Star Glade 50 31 51 67 N/S Starvation 18 0 0 various numbers (gathering) Total 2009: 986 2010 Rocking Chair 50 55 90 119 Coombs DBSG 4Supp 00005 Merit 50 20 33 43 Merit 50 74 122 161 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Merit 116 53 202 267 South Star Glade 50 31 51 67 N/S Starvation 18 0 0 various numbers (gathering) Total 2010: 919 2011 Rocking Chair 50 55 90 119 Coombs DBSG 4Supp 00279 Merit 50 20 33 43 Merit 50 74 122 161 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Merit 116 53 202 267 South Star Glade 50 31 51 67 N/S Starvation 18 0 0 various numbers (gathering) Total 2011: 919 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 31 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 31 of 33 2012 South Star Glade 50 31 51 67 Coombs DBSG 4Supp 00554 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 South Starvation 50 32 53 69 Rocking Chair 50 55 90 119 Merit 50 74 122 161 Merit 116 53 202 267 Merit 50 20 33 43 N/S Starvation 18 0 0 various numbers (gathering) Total 2012: 989 2013 South Star Glade 50 31 51 67 Coombs DBSG 4Supp 00745 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Rocking Chair 50 55 90 119 South Starvation 50 32 53 69 Merit 116 53 202 267 Merit 50 42 69 91 Merit 50 20 33 43 N/S Starvation 18 0 0 various numbers (gathering) Total 2013: 919 2014 South Star Glade 50 40 66 87 Coombs DBSG 4Supp 00906 Dollar Basin 116 11 42 55 Dollar 116 41 156 206 Rocking Chair 50 55 90 119 South Starvation 50 32 53 69 Merit 116 53 202 267 Merit 50 43 71 93 Merit 50 20 33 43 N/S Starvation 18 0 0 various numbers (gathering) Total 2014: 941 EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 32 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 32 of 33 2015 South Star Glade 50 40 66 87 Coombs DBSG 4Supp 01121 South Starvation 50 32 53 69 Merit 50 42 69 91 Dollar Basin 116 20 76 101 Dollar 116 41 156 206 Merit 116 53 202 267 Rocking Chair 50 55 90 119 Merit 50 20 33 43 N/S Starvation 18 0 0 various numbers (gathering) Total 2015: 984 Grazing Permits and Permit Modification Decisions Date Issued Type of Decision Number Kind Period of Use AUMs Permittee AR page(s) Notes 2/1/2006 Grazing Permit (Permit # 01824) 180 cattle 6/10 to 10/10 961 Coombs DBSG 3Supp 087‐ 101 Permit expired 12/31/2015. New permit applied for on 1/14/2016 (DB 4Supp 01197), seeking 180+36 cattle. 29 cattle 6/1 to 10/30 191 6/8/2007 Grazing Permit Modification # 1 DBSG 3Supp 0181 No change to numbers. Annual rotation to be determined via annual instructions. 8/9/2007 Grazing Permit Modification # 2 DBSG 3Supp 0188 Eliminates Modification # 1 requirement to use "[g]entle movement and low moisture supplements . . . To ensure objectives are being met for the Malheur River." 7/10/2008 Grazing Permit Modification # 3 DBSG 3Supp 0233 Adding stubble height, shrub browse, upland utilization, and bank alteration standards. Allotment Total: 1,152 Notes on Prior Permits: The 2006 permit superseded a prior permit issued in 1996, which authorized the exact same AUM. DBAR 001. For the new permit issued in 2016, the permittee sought to increase AUM from 1,152 to 1,198. See DBSG 4Supp 01197 (permit application). EXHIBIT 3 - PERMIT AND ANNUAL AUTHORIZATION TABLES Page 33 of 33 Case 3:03-cv-00213-PK Document 416-3 Filed 11/14/16 Page 33 of 33 SPRING CREEK ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the eight allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes Buck Trough 2015 Elk Flat Horseshoe Basin North River River Holding South River X X P 4Supp 11844 North Cow Big Burn Little Crane Buck Trough 2014 Elk Flat Horseshoe Basin North River X P 4Supp 11845 River Holding X P 4Supp 09130 South River X X P 4Supp 11844, P 4Supp 09105 Cattle out along river a month before authorized. North Cow Big Burn Little Crane X P 4Supp 09329 Buck Trough 2013 Elk Flat Horseshoe Basin North River River Holding South River X X P 4Supp 11844, FP 4Supp 01264, SC 4Supp 00690‐97 North Cow Big Burn EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 1 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 1 of 15 Little Crane X P 4Supp 11845, P 4Supp 05837‐39, P 4Supp 07284 9 bull trout redds trampled. Buck Trough 2012 Elk Flat P 4Supp 06087 Note non‐use units. Horseshoe Basin X P 4Supp 05037 North River River Holding South River North Cow Big Burn Little Crane X P 4Supp 06088 Buck Trough 2011 X P 4Supp 02129, P 4Supp 11844 USFS did not monitor standards. Elk Flat Horseshoe Basin P 4Supp 11844 USFS did not monitor. North River X SC 4Supp 00408, SC 4Supp 00412, P 4Supp 11844 USFS did not monitor. River Holding South River X X P 4Supp 11844, P 4Supp 02188, P 4Supp 02190 North Cow Big Burn Little Crane X P 4Supp 06089, FP 4Supp 00550‐54, FP 4Supp 00555, P 4Supp 2099, P 4Supp 02119 Bull trout redd trampling. Buck Trough 2010 Elk Flat Horseshoe Basin North River River Holding X P 4Supp 01700, P 4Supp 02592 South River EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 2 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 2 of 15 North Cow Big Burn Little Crane X SC 4Supp 00278 Buck Trough 2009 X FP 3Supp 1131‐33, SC 3Supp 727 Elk Flat Horseshoe Basin North River River Holding South River North Cow Big Burn Little Crane X SC 3Supp 825, 858 Buck Trough 2008 X SC 3Supp 560 Elk Flat Horseshoe Basin North River River Holding South River North Cow Big Burn Little Crane X X X X X P 4Supp 02263, P 3Supp 7470, P 3Supp 7398, SC 3Supp 580 Buck Trough 2007 Elk Flat Horseshoe Basin North River River Holding South River X X P 3Supp 7024 North Cow Big Burn Little Crane X SC 3Supp 445 Buck Trough 2006 Elk Flat Horseshoe Basin North River River Holding EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 3 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 3 of 15 South River X SC 3Supp 357, 368, 373 North Cow Big Burn Little Crane SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 10 Violations, unauthorized use, or trespass in units that were to be rested: 3 (2011, 2012, 2014) Percentage of non‐rested units with no violations or unauthorized use: 63% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 4 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 4 of 15 NORTH FORK ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the three allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes Mountain 2015 North River South River X P 4Supp 11836 Mountain 2014 X P 4Supp 09068 North River X P 4Supp 09090 South River X X X P 4Supp 11836, P 4Supp 11837, P 4Supp 09138, P 4Supp 09141 Mountain 2013 X X X P 4Supp 11836, P 4Supp 07243, NF 4Supp 00874‐78, P 4Supp 07301 North River X FP 4Supp 01264 South River X X X FP 4Supp 01264, NF 4Supp 00825, NF 4Supp 00828, NF 4Supp 00829‐31, NF 4Supp 00848 Mountain 2012 North River South River X X P 4Supp 11836, NF 4Supp 00747, P 4Supp 05037 Browse not monitored. Mountain 2011 X X X P 4Supp 04357, P 4Supp 04358, P 4Supp 01310 North River X SC 4Supp 00408, P 4Supp 11836 USFS did not monitor. EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 5 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 5 of 15 South River X X P 4Supp 11836, P 4Supp 04357, P 4Supp 02114 Mountain 2010 North River X P 4Supp 01167, P 4Supp 02317 Bank stability 51% (down from 98% in 2005). South River X P 4Supp 01655 Bank stability 83%. Mountain 2009 X P 4Supp 00002, FP 3Supp 1163 North River South River Mountain 2008 X NF 3Supp 393, 402 North River X P 3Supp 7468, NF 3Supp 383‐85, 394 AOI missing from AR, so no way to know whether any units scheduled for non‐use this year. USFS states that "the annual operating instructions or any other annual grazing authorization for Permittee Siddoway to graze the North Fork Allotment in 2008 . . . have been misplaced or are lost." Email from S.Odell to P.Lacy dated 10/27/16 (on file with recipient). South River Mountain 2007 X X P 3Supp 7016 North River X X P 3Supp 7016 South River X P 3Supp 7016 Mountain 2006 North River South River SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 9 Violations, unauthorized use, or trespass in units that were to be rested: 1 (2014) Percentage of non‐rested units with no violations or unauthorized use: 33% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 6 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 6 of 15 FLAG PRAIRIE ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the seven allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes Flag 2015 X P 4Supp 11831 South X X P 4Supp 11830, P 4Supp 11831 Mountain Horse Crane Crossing Special Use Holding River X P 4Supp 11833, P 4Supp 11830 Shrubs "NP" (not present). Flag 2014 X P 4Supp 08847 South P 4Supp 11830 USFS did not monitor. Mountain Horse Crane Crossing X P 4Supp 09172, P 4Supp 09009 Special Use Holding River X P 4Supp 11832, P 4Supp 08861‐62, P 4Supp 08895, P 4Supp 08999, P 4Supp 11830 Shrubs "NP" (not present). Flag 2013 South P 4Supp 11830 USFS did not monitor. Mountain X X X X P 4Supp 11831, P 4Supp 07238, P 4Supp 06378‐79, P 4Supp 07284 Horse EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 7 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 7 of 15 Crane Crossing X X X X P 4Supp 11831, P 4Supp 07238, FP 4Supp 01125‐28, Ott 4Supp 00765 Special Use Holding River X X X P 4Supp 11831, P 4Supp 07238, FP 4Supp 01168‐77, FP 4Supp 01216‐21, FP 4Supp 01264 Flag 2012 South P 4Supp 11830 USFS did not monitor. Mountain X P 4Supp 04547 Horse Crane Crossing P 4Supp 11830 Shrubs "NP" (not present). Special Use Holding X P 4Supp 04467, P 4Supp 04634 River X P 4Supp 06074, P 4Supp 4524, P 4Supp 04547, P 4Supp 04558, P 4Supp 04576, P 4Supp 05046, P 4Supp 11830 Shrubs "NP" (not present). Flag 2011 X P 4Supp 02595 South X FP 4Supp 00438 Mountain X P 4Supp 11830, P 4Supp 01767‐69 USFS did not monitor standards. Horse X FP 4Supp 00438 Crane Crossing X P 4Supp 11830, P 4Supp 02595 USFS did not monitor standards. Special Use Holding River X P 4Supp 11830, P 4Supp 02595 USFS did not monitor standards. EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 8 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 8 of 15 Flag 2010 X FP 4Supp 00367 South Mountain Horse Crane Crossing X X FP 4Supp 00338, FP 4Supp 00339 76% bank stability. Special Use Holding X FP 4Supp 00229 River X FP 4Supp 00242, FP 4Supp 00314, P 4Supp 02592 Flag 2009 X FP 3Supp 1200, P 4Supp 04337 Numerous instances of excess use and other problems in 2009 on allotment. South X FP 3Supp 1131‐33 Mountain X SC 3Supp 701 Horse Crane Crossing Special Use Holding River X FP 3Supp 1131‐33 Was supposed to be non‐use. Flag 2008 X FP 3Supp 762 South X P 3Supp 7467, FP 3Supp 682 Mountain X X X X P 3Supp 7467‐68, FP 3Supp 510 Horse X FP 3Supp 680 Crane Crossing X X X X P 3Supp 7467‐68, FP 3Supp 510, FP 3Supp 685, SC 3Supp 582 Special Use Holding X FP 3Supp 684‐85 River X X P 4Supp 04341, P 3Supp 7384 EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 9 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 9 of 15 Flag 2007 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation (including whether any units rested). Email from S.Odell to P.Lacy dated 10/27/16. South X X X P 3Supp 7008 Mountain X X X P 3Supp 7009 Horse Crane Crossing X P 3Supp 7008 Special Use Holding River Flag 2006 X FP 3Supp 51 South Mountain Horse Crane Crossing Special Use Holding River Note: For the small units ‐‐ Horse Pasture, Crane Crossing, and Special Use Holding ‐‐ it is rarely clear from the AOIs whether they were authorized for use or not. SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 10 Violations, unauthorized use, or trespass in units that were to be rested: 7 (2009, 2011, 2012) Percentage of non‐rested units with no violations or unauthorized use: 48% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 10 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 10 of 15 OTT ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the two allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes River Corridor 2015 Rattlesnake River Corridor 2014 Rattlesnake River Corridor 2013 Rattlesnake X Ott 4Supp 00762 River Corridor 2012 X P 4Supp 04851, P 4Supp 04886 Rattlesnake X Ott 4Supp 00582, P 4Supp 04852, P 4Supp 04887‐97 River Corridor 2011 P 4Supp 11840 USFS did not collect data. Rattlesnake X P 4Supp 01810 River Corridor 2010 Rattlesnake River Corridor 2009 Rattlesnake X OTT 3Supp 630, 685 In unit both before and after authorized grazing period. River Corridor 2008 X P 3Supp 7470, FP 3Supp 685, OTT 3Supp 467‐68 Rattlesnake X OTT 3Supp 330, 458, 466, 472‐73 In unit both before and after authorized grazing period. River Corridor 2007 X X P 3Supp 7020, P 3Supp 7022 USFS did not issue an AOI or similar decision document in 2007 to provide any unit breakdown or authorized rotation. Unit presumed rested. Email from S.Odell to P.Lacy dated 10/27/16. Rattlesnake River Corridor 2006 Rattlesnake SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 6 Violations, unauthorized use, or trespass in units that were to be rested: 4 (2007, 2009, 2012) Percentage of non‐rested units with no violations or unauthorized use: 50% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 11 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 11 of 15 BLUEBUCKET ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the three allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes Cougar 2015 P 4Supp 11804 USFS did not monitor. Rock Springs P 4Supp 11804 USFS did not monitor. Lake Camp P 4Supp 11804 USFS did not monitor. Cougar 2014 P 4Supp 06727 USFS did not monitor. Rock Springs P 4Supp 06727 USFS did not monitor. Lake Camp X P 4Supp 06727, P 4Supp 8569 USFS did not monitor. Cougar 2013 Rock Springs Lake Camp Cougar 2012 Rock Springs Lake Camp Cougar 2011 Rock Springs Lake Camp Cougar 2010 Rock Springs Lake Camp Cougar 2009 Rock Springs Lake Camp Cougar 2008 Rock Springs Lake Camp Cougar 2007 X X X P 3Supp 7001‐02 Rock Springs X P 3Supp 7001‐02 Lake Camp Cougar 2006 X P 3Supp 5985 Rock Springs Lake Camp SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 3 Violations, unauthorized use, or trespass in units that were to be rested: N/A Percentage of non‐rested units with no violations or unauthorized use: 87% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 12 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 12 of 15 CENTRAL MALHUER ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the two allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes North 2015 P 4Supp 11778 USFS has not monitored since at least 2011 b/c cattle excluded from WSR corridor and no other Bull Trout critical habitat on the allotment. South North 2014 South North 2013 South North 2012 South X P 4Supp 00146 North 2011 P 4Supp 11778 USFS did not monitor. South P 4Supp 11778 USFS did not monitor. North 2010 South North 2009 South North 2008 South North 2007 X CM 3Supp 063 South North 2006 South SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 2 Violations, unauthorized use, or trespass in units that were to be rested: N/A Percentage of non‐rested units with no violations or unauthorized use: 90% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 13 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 13 of 15 DOLLAR BASIN/STAR GLADE ALLOTMENT Note: This table summarizes the violations and unauthorized use/trespass for the four allotment units of concern ‐‐ i.e., units that contain Wild and Scenic River acres, bull trout critical habitat, or both. Gray cells indicate that unit was supposed to be in non‐use. Standards Violations Unit Date Stubble Height Shrub Browse Bank Alteration Upland Utilization Tresspass or Unauthorized Use AR page(s) Notes Dollar 2015 X P 4Supp 11808 Shrubs "NP" (not present). Merit P 4Supp 11809 USFS has not measured bank alteration on Crooked Creek since 2011. North Starvation P 4Supp 11809 USFS has not measured bank alteration on Crooked Creek since 2011. South Star Glade X P 4Supp 11808, P 4Supp 11808 Shrubs "NP" (not present) and last able to be measured in 2012. Dollar 2014 X P 4Supp 08703, P 4Supp 11808 Shrubs "NP" (not present). Merit X P 4Supp 06731, P 4Supp 11808 Shrubs "NP" (not present). North Starvation X DB 4Supp 01101‐03, P 4Supp 11808 Shrubs "NP" (not present). South Star Glade P 4Supp 11808 Shrubs "NP" (not present) and last able to be measured in 2012. Dollar 2013 P 4Supp 11808 Shrubs "NP" (not present). Merit X P 4Supp 11808 North Starvation P 4Supp 11808 Shrubs "NP" (not present). South Star Glade X DB 4Supp 00832, P 4Supp 11808 Bank stability 65%. Shrubs "NP" (not present) and last able to be measured in 2012. Dollar 2012 X X X P 4Supp 11808, P 4Supp 06054, P 4Supp 11808 Shrubs "NP" (not present). Merit X X P 4Supp 11808, P 4Supp 06054, P 4Supp 11808 Shrubs "NP" (not present). North Starvation P 4Supp 11808 Shrubs "NP" (not present). EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 14 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 14 of 15 South Star Glade Dollar 2011 P 4Supp 11808 USFS did not monitor. Merit P 4Supp 11808 USFS did not monitor. North Starvation P 4Supp 11808 USFS did not monitor. South Star Glade P 4Supp 11808 USFS did not monitor. Dollar 2010 X P 4Supp 00672, DB 4Supp 00115 Bank stability 78%, 85%. Merit X P 4Supp 00648 Bank stability 80%. North Starvation South Star Glade X P 4Supp 00634, P 4Supp 00741, P 4Supp 00749 Bank stability 70%, 51%, 68%. Dollar 2009 X DBSG 3Supp 978, DBSG 3Supp 988, DBSG 3Supp 995 Merit North Starvation South Star Glade Dollar 2008 Merit North Starvation South Star Glade X P 3Supp 7466 Dollar 2007 X X X P 3Supp 7004, DBSG 3Supp 183 Merit North Starvation South Star Glade X X X P 3Supp 7004‐05 Dollar 2006 Merit North Starvation South Star Glade SUMMARY OF VIOLATIONS: Years (out of 10) with at least one type of violation or unauthorized use: 8 Violations, unauthorized use, or trespass in units that were to be rested: 1 (2008) Percentage of non‐rested units with no violations or unauthorized use: 62% EXHIBIT 4 - VIOLATIONS AND UNAUTHORIZED/TRESPASS USE TABLES Page 15 of 15 Case 3:03-cv-00213-PK Document 416-4 Filed 11/14/16 Page 15 of 15 EXHIBIT 5 Page 1 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 1 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 27 species most frequently encountered at the DMA (see Data Analysis Module – “Graphs” worksheet). • Average Stubble Height for Each Key Species Measured: This metric represents the average for each key species. It is provided because the most palatable species may not be the most frequently encountered at the DMA (see Data Analysis Module – “Graphs” worksheet). Stubble heights are scaled measurements and sometimes fit a normal probability distribution. When data are skewed, as is often the case for combined stubble height for all species, a log transformation may be used to normalize the distribution. Stubble heights for individual species, particularly those that are palatable, commonly fit normal probability distributions. 2. Streambank Alteration: a. Purpose: The physical alteration of streambanks by animals can degrade the integrity of stream systems. Platts (1991) observed that alteration may negatively affect water quality and aquatic habitat. Trampling of streambanks by livestock may result in an increase in stream width, making the stream channel wider and shallower (Clary et al. 1996). As a result, water temperatures may increase from increased exposure to solar radiation; sediment is deposited within the channel rather than on the streambanks; streambank erosion increases; and the water storage capacity of the streambanks decreases, forcing streamside plants to shift from willows and sedges to drier site species with low root density (Bengeyfield 2006). All of these changes combine to result in the loss of habitat for aquatic species (Platts 1991). Similar to stubble height, streambank alteration is an annual or short-term indicator of the effect of grazing impacts on long-term streambank stability. As such, it can be used as a tool to assess grazing intensity and to determine when such intensity may be excessive. It can also be used to help determine cause-and-effect relationships between livestock grazing and stream-riparian conditions and whether livestock grazing management changes may be needed the following year. The importance of streambank alteration as a short-term indicator has only recently emerged in the literature (Heitke et al. 2008). In measurements of forage utilization, stubble height, and streambank alteration at 14 stream reaches in southwestern Montana, Bengeyfield (2006) found: “. . . the only streams that showed significant improvement were those where the streambank alteration levels were met. Neither a EXHIBIT 5 Page 2 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 2 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION 28 M EA SU RE IN DI CA TO RS U SI NG S YS TE M AT IC P RO CE DU RE S AN D M ET RI CS forage utilization of 45 percent nor a stubble height at 4 inches initiated the upward trend in stream channel shape that is necessary to achieve riparian function.” b. Background: Stream channels are naturally dynamic with varying rates of annual disturbance, but streams are constantly striving to achieve stability and to maintain channel capacity and competence (Leopold et al. 1992). As a result, streams have the ability to repair a certain degree of streambank disturbance each year. Several factors, including stream gradient or slope, streambed material composition, streambank soil composition, vegetation cover and type, channel geometry, flow rate and timing, and frost action determine the amount of alteration that streambanks can repair each year. As stated by Clary and Kruse (2004): “. . . concentrated impacts under rotation systems can cause sufficient woody plant or streambank damage in a single season or year that recovery might take several years. Therefore, the best approach is to limit grazing stress to the site’s capability for annual recovery.” This capability for annual recovery would be evaluated by measuring both streambank alteration and streambank stability at the DMA as described under “Relationship to Other Indicators.” Heitke et al. (2008) evaluated several methods of monitoring streambank alteration along the greenline using data collected in Montana in 2003 and 2004. The greenline (GL) method used a line intercept procedure that records presence or absence of disturbance. A sample line was 92 cm long, centered on the greenline. The line was placed perpendicular to the stream channel at the point of the toe of the observer. Each line was recorded as altered or not altered. A line was considered altered if current year’s disturbance occurred along any part of the line. A sample was recorded at each step along the greenline. The amount of alteration was calculated by dividing the number of lines with alteration by the total number of samples. Results were expressed as a percent. The greenline precise (GLP) method was exactly the same as the GL method, except the length of each disturbance along the line was measured. For example, at the first sample location, 20 cm of disturbance was measured and recorded along the 92-cm line. This procedure was repeated on both sides of the stream making an observation and measurement at each step. The total length of disturbance measured was divided by 92 times the number of samples taken. The product was expressed as a percent. Heitke et al. (2008) also discussed the bankfull (BF) method. This method was a precursor to the MIM protocol and was later modified to use the greenline rather than the bankfull line because observers more often agree on the location of the greenline EXHIBIT 5 Page 3 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 3 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 29 than the bankfull line (Henderson 2003). The monitoring frame was further modified to its present configuration to facilitate measuring other indicators. The frame was shortened to 50 cm, and to prevent double counting of average sized hoofprints, the number of lines was reduced to 5, spaced at approximately the average diameter of the hoofprint. The width of the frame was increased to allow using 20- by 50-cm Daubenmire plots on each side of the center bar. However, the BF method was not evaluated in Heitke et al. (2008). The BF method also uses line intercept. It differs from the previous two methods by using a 30.5- by 61-cm monitoring frame. The frame was similar to the one described in figure 2. The width evaluated was about 15 cm either side of the center bar. The center bar was placed at the bankfull line. Ten lines were projected perpendicular to the center bar and alteration was recorded when any of the lines intersected current year’s disturbance. Heitke et al. (2008) assessed variability among observers for the different protocols described above. They used the standard deviation between observations made by the same or different observers. The GLP had the lowest overall observer variability as measured by the standard deviation (4.7, with coefficient of variation or CV = 56), followed by GL (6.3, CV = 20), and BF (8.1, CV = 35). The authors conducted 35 tests for observer variability on the MIM streambank alteration procedure, which is refined from the BF procedure analyzed by Heitke et al. (2008). The standard deviation between observers for the MIM tests was 4.3 and the CV was 22.7. The CV is a dimensionless index of variability between and among observers’ repeated observations and is represented by the standard deviation divided by the mean. The procedure described here estimates the amount of streambank alteration along the greenline as a result of large herbivores (e.g., cattle, horses, sheep, bison, elk, and moose) walking along or crossing the greenline during the current grazing season. The part of the streambank that is measured using this procedure is a plot 50 cm long and 42 cm wide (two Daubenmire plot widths plus the 2-cm-wide center bar), centered on the greenline. This part of the streambank focuses the observation where stability is most affected by the erosive effects of water (see appendix D). c. Assumptions and Limitations: There are five cross-plot lines on the sampling frame used to detect and record occurrences of alteration. These lines are perpendicular to the center rib of the frame and extend away from it on each side. EXHIBIT 5 Page 4 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 4 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION 30 M EA SU RE IN DI CA TO RS U SI NG S YS TE M AT IC P RO CE DU RE S AN D M ET RI CS As the center rib is placed on the greenline, intercept lines extend 20 cm into both the vegetated and nonvegetated side of the greenline. If more than one alteration intercepts this line on either or both sides of the center rib, a value of 1 is recorded in the Data Entry Module or on the MIM Field Data Sheet. The number of alteration intercepts or “hits” is limited to five per sample because: 1) alteration occurs primarily on the nonvegetated side of the greenline, and double- counting the vegetated side would underestimate the frequency of disturbances along the greenline; and 2) the spacing between intercept lines approximates the diameter of a hoofprint, which minimizes double-counting of single hoof impressions. Trampling impacts must be the obvious (i.e., easily seen, clear to the eye, not to be doubted, or plain) result of current season use. “Obvious” streambank alterations are defined as those that are readily observed from no closer than approximately 2 feet from the streambank. In general, these are impacts that are evident without kneeling close to or lying on the ground. The streambank alteration procedure described here is an intercept procedure recording presence/absence of current year’s disturbance along the greenline. It is not a measure of the percent 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(s) intercepting one (or more) of the five lines within a plot. This procedure samples only that part of the streambank associated with the greenline, often at the top of the streambank, and only within a 42- by 50-cm plot. The streambank may be wider or narrower than the width of the plot. The monitoring frame is 42 by 50 cm (or 2100 cm2) and the average cattle hoofprint is 12 cm by 17 cm or 208 cm2. Therefore, one hoofprint in the frame represents approximately 10 percent of the area within the frame that is altered. The width of an average hoofprint oriented along the greenline is 12 cm, so its length along the greenline is 12/50 cm or about 24 percent. Because the MIM protocol uses a line intercept approach with the intercept lines spaced slightly wider than the average hoofprint, that same hoofprint would intercept one of the five lines and be recorded as 20 percent alteration for that plot. Thus alteration using the MIM protocol more closely approximates length of greenline altered, not the area of the plot altered. The advantages of this method over others is that it is more efficient and precise and has been widely tested. EXHIBIT 5 Page 5 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 5 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 31 The authors measured the dimensions of actual cattle hoofprints and shears where they were clearly identifiable. Using simulations that randomly selected these measured prints and randomly placed them on the plot at varying numbers and locations, a relationship was established between true streambank alteration and MIM estimates. The MIM protocol closely estimates the percent of greenline length altered (percent greenline length altered = .914 times MIM alteration + 5 percent, R2 = .85). There was a weaker relationship to the area of plot altered (percent plot area altered = .32 times MIM alteration + 3 percent, R2 = .55). Thus, if the MIM alteration is observed at 20 percent, the simulations predict the percent of greenline length altered to be 23 percent, and the area of plot altered to be 9 percent. The plot area in these simulations included both the vegetated and nonvegetated sides of the greenline. The majority of streambank alterations are typically observed on the nonvegetated side of the plot. If only the nonvegetated side of the plot is used to estimate plot area from these simulations, the relationship between MIM alteration and plot area altered is closer (20 percent MIM alteration with 18 percent plot area altered). Note, however, that as percent alteration increases, the ratio of MIM alteration to plot area altered also increases (e.g., 60 percent MIM alteration equates to 44 percent plot area altered using the nonvegetated plot). Note also that the ratio of MIM alteration to length of greenline altered does not change dramatically (e.g., 60 percent MIM alteration equates to 60 percent length of greenline altered). Thus, the MIM protocol tends to overestimate plot area altered but more closely estimates length of greenline altered. d. Relationship to Other Indicators: Because streams have the ability to repair a certain amount of streambank alteration after disturbance, it is important that the intensity of disturbance, or streambank alteration, be less than the amount of streambank stability repair. The amount of repair can be estimated by measuring the recovery after disturbance. To estimate the amount of repair after disturbance, both streambank alteration and streambank stability would be measured immediately after grazing and then again just before the next grazing period. This would allow an estimate of the change in streambank stability during the “off” season, reflecting natural processes of streambank recovery, along with natural sources of streambank alteration (e.g., wild ungulates and stream flooding). The most effective method of determining the potential streambank stability repair rate is to compare measurements of streambank stability along the stream reach of interest with a comparable stream reach within a reference area. Changes in stability caused by flooding, ice scour, and other natural effects can then be factored into the relationship between streambank alteration and streambank stability. EXHIBIT 5 Page 6 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 6 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 47 GGW (Bartholow 2002) (table 9) (see Data Analysis Module – “Data Summary” worksheet). • Average Woody Plant Height: The average woody plant height class is applied to a regression equation to compute predicted woody plant height. In the “Data Summary” worksheet in the Data Analysis Module, the average for all woody species heights is presented. In the “Graphs” worksheet, the average height is displayed for each woody species. The regression equation was developed using the log of species height versus age class and has an R squared of 0.99. The equation is: H =10^(-0.7083129+0.297*Average Height Class) (See Data Analysis Module – “Data Summary” worksheet.) 6. Streambank Stability and Cover: a. Purpose: Streambanks are the steep-sloped sides of the stream channel and are most susceptible to erosion during high flow events. Stability along the edge of the first bench or bankfull elevation down to the stream’s scour line is the area within the channel that is most vulnerable to erosion by water because streamflow up to the bankfull level occurs almost every year (Leopold 1994). Bankfull discharge performs most of the geomorphic work in most river systems (Wolman and Miller 1960). Streambank stability is strongly influenced by streamside vegetation (Bauer and Burton 1993). The loss or modification of deep-rooted bank vegetation is problematic for stability. Streambanks can become unstable or unable to resist the erosive effects of high streamflows as a result of improper livestock grazing. Bare streambanks, either in erosional or depositional positions of the stream, are considered unstable due to their vulnerability to erosion. The effect of excessive grazing is to alter the streamside vegetation composition resulting in a dominance of plants that are more vulnerable to erosion (Platts 1991; Bauer and Burton 1993). Mass wasting may also result from breakoffs, hoof slide, and hoof shear related to the physical disturbances of trampling (Bauer and Burton 1993; Powell et al. 2000). Unstable streambanks can lead to accelerated bank erosion and subsequent channel widening, increased sediment supply, decreased sediment transport capability, and damaged fisheries habitat. Table 9. Shade Index Value Shading <0.5 Very Low 0.5 – <1.0 Low 1.0 – <2.0 Moderate 2.0 – <4.0 High ≥4.0 Very High EXHIBIT 5 Page 7 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 7 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION 48 M EA SU RE IN DI CA TO RS U SI NG S YS TE M AT IC P RO CE DU RE S AN D M ET RI CS At each plot location, features that describe streambank stability are recorded. Those features are used in the Data Analysis Module to compute percent streambank stability and cover. Plots are a subsample of the length of the streambank; therefore, streambank stability using this procedure estimates the proportion of streambank that is stable and that is covered. b. Background: This procedure is based upon an earlier version described by Bauer and Burton (1993) and later by Overton et al. (1997). Modifications were later made by the PACFISH/INFISH Biological Opinion Effectiveness Monitoring (PIBO-EM) Team to minimize subjectivity (Kershner et al. 2004). The current version further reduces subjectivity by allowing observers to record features that define the condition rather than to record the stability class. Rules are used to increase measurement precision. c. Assumptions and Limitations: Streambank stability can be used to monitor livestock grazing and, potentially, other disturbance effects only if the procedures are adhered to strictly and the definitions are understood and followed. Streambank stability must be assessed by well-trained observers. Because of how the observations are made, streambank stability can only be assessed when the stream is flowing below the scour line, usually well after the seasonal peak flow event. Streambank stability monitoring is voided by assessments made when the banks are flooded. Archer et al. (2004) found that only 18 samples were needed to detect a change of 5 percent (Type I error of 0.1), and from tests on 12 different streams, the authors determined an average of 54 samples were needed to detect a change of 10 percent. However, site variability may have significant influence on the sample size needed. Tests conducted by the authors indicated sample size estimates as low as 5 and as high as 102 to estimate streambank stability within 10 percent of the mean. Use of an electronic sample size estimator built into the Data Entry Module will help ensure an adequate number of samples was collected before leaving the field site. In tests of repeatability for streambank stability, using an earlier version of the method, Archer et al. (2004) found the maximum deviation between crews was only 18 percent corresponding to a coefficient of variation of 4.6 percent. On average, crews agreed 82.7 percent of the time. This compares with the author’s testing from 43 replicates, which resulted in an average difference between observers of 8.2 percent (stability) and 8.5 percent (cover), with coefficients of variation of 9 percent (stability) and 8 percent (cover). More details can be found in appendix F. EXHIBIT 5 Page 8 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 8 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 49 d. Relationship to Other Indicators: Streambank alteration and GGW are affected by streambank stability. In addition, the Winward greenline stability rating, an estimator of the vegetative contribution to bank stability, is related. e. Procedure: Step 1. Determine Streambank Location: Streambanks are defined as that part of the channel between the scour line and the edge of the first relatively flat bench above the scour line. The figures in appendix E provide examples of streambank locations. Step 2. Observe Factors Influencing Stability on the Streambanks Associated with the Frame: The plot (area observed for streambank stability) extends parallel to the stream a distance of one frame length (50 cm) and perpendicular to the stream between the scour line and the lip of the first bench. Typical scour line indicators are the elevation of the ceiling of undercut banks at or slightly above the summer low-flow elevation or, on depositional banks, the lower limit of sod-forming or perennial vegetation. The lip of the first bench is at the point on the bench where the slope changes from the relatively flat top to the slope toward the stream. Step 3. Answer the Following Questions: Each of the following questions is answered with a letter abbreviation (such as “D” for depositional). One set of questions is answered for the streambank associated with each plot location and the answers are entered into columns F, G, and H of the “DMA” worksheet in the Data Entry Module or on the MIM Field Data Sheet (appendix B, part 2). 1) What kind of streambank is it? The choices are “Depositional” or “Erosional”: • Depositional (D): This applies to all streambanks associated with sand, silt, clay, or gravel deposited by the stream. These are recognizable as “bars” in the channel margins adjacent to the greenline and at or above the scour line. Stream bars are typically lenticular-shaped mounds of deposition on the bed of the stream channel adjacent to or on the streambank. Depositional streambanks are usually at a low angle from the water surface and are not associated with a bench. • Erosional (E): This applies to all banks that are not “Depositional.” Erosional streambanks are normally at a steep angle to the water surface and are usually associated with a bench and/or terrace. Such banks typically occur on the outside of meander bends and on both sides of the stream in straight EXHIBIT 5 Page 9 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 9 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION 50 M EA SU RE IN DI CA TO RS U SI NG S YS TE M AT IC P RO CE DU RE S AN D M ET RI CS reaches. When there is sufficient stream energy, they may also occur on the inside bank of a meander bend. 2) Is the streambank covered? The choices are “Covered” or “Uncovered”: • Covered (C): This applies to banks with at least 50 percent foliar cover of perennial vegetation (including roots); at least 50 percent cover of rocks 15 cm or larger; at least 50 percent cover of anchored large woody debris (LWD) with a diameter of 10 cm or greater; or a combination of the vegetation, rock, and/ or LWD covering at least 50 percent of the bank area (50 cm wide from the scour line to the first bench). • Uncovered (U): This applies to all banks that are not “Covered.” 3) Is the streambank stable? This applies to erosional banks only. For depositional banks, leave this cell blank. The Data Entry and Analysis Modules allow only one code in each cell, so the observer records “Fracture,” “Slump,” “Slough,” “Eroding,” or “Absent” for the single most prominent feature: • Fracture (F): This applies to the top of the bank where a visible crack is observed. The fracture has not separated into two separate components or blocks of a bank. Cracks indicate a high risk of breakdown. The fracture feature must be at least one-fourth of a frame length. • Slump (S): This applies to a streambank that has obviously slipped down resulting in a separate block of soil/sod separated from the bank. The slump feature must be obvious and at least one-fourth of a frame length. • Slough or “Sluff” (SL): This applies to banks where soil or sod material has been shed or cast off and has fallen from and accumulated near the base of the bank. “Slough” typically occurs on banks that are steep and bare. The slough must be obvious and at least one-fourth of a frame length. Slumps and sloughs may be created by excessive animal trampling (see appendix E, figures E8 and E9). • Eroding (E): This applies to banks that are bare and steep (within 10 degrees of vertical), usually located on the outside curves of meander bends in the stream. Undercut banks are scoured or eroded below the elevation of the base of sod or the roots of vegetation, and because such erosion occurs mostly EXHIBIT 5 Page 10 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 10 of 11 MULTIPLE INDICATOR MONITORING (MIM) OF STREAM CHANNELS AND STREAMSIDE VEGETATION M EASURE INDICATORS USING SYSTEM ATIC PROCEDURES AND M ETRICS 51 below the scour line, it is not considered “eroding” bank. Such undercut banks are stable as long as there is no slough, slump, fracture, and/or erosion above the scour line or ceiling of the undercut bank. The erosion feature must be obvious and at least one-fourth of a frame length. • Absent (A): This applies when none of the above listed characteristics are present. f. Timing: Streambank stability is measured in conjunction with streambank alteration to quantify the levels of streambank alteration that do not constrain streambank stability condition or recovery. In establishing allowable levels of streambank alteration, streambank stability should be measured in conjunction with streambank alteration annually, both before and after grazing. If a reference is available, measurements both before and after grazing would be made in the ungrazed reference area to isolate natural effects. In the absence of the need to quantify streambank alteration criteria, streambank stability should be measured approximately once every 3 years to evaluate changes over time. An ungrazed reference should be used to assess trends related to livestock grazing. g. Metrics: The following metrics are used to summarize streambank stability and cover data: • Streambank Stability: The number of plots classified as “stable” are divided by the total number of plots and expressed as a percent (see Data Analysis Module – “Data Summary” worksheet). • Streambank Cover: The number of plots recorded as “covered” are divided by the total number of plots and expressed as a percent (see Data Analysis Module – “Data Summary” worksheet). 7. Woody Species Age Class: a. Purpose: Woody species age class data help determine if woody plants are establishing along the streambank. Winward (2000) found that use of the greenline edge as the center of the measurement helps to ensure that sampling is done in a setting where regeneration of woody riparian species is most likely to occur. b. Background: Winward (2000) concluded that understanding the age class, structure, and density of woody species along the stream margins provides information necessary to evaluate the results of management. Woody species regeneration, as described by Winward (2000), consists of a 6-foot wide belt adjacent to and on each EXHIBIT 5 Page 11 of 11 Case 3:03-cv-00213-PK Document 416-5 Filed 11/14/16 Page 11 of 11
