November 7, 2012 IBLA 2012-155 ) OR-110-TS11-20 ) KLAMATH

Jtii tlllL-lIL kJl. Lilt lillCllUi OFFICE OF HEARINGS AND APPEALS Interior Board of Land Appeals 801 N. Qiiincy Street, Suite 300 Arlington, Virginia 22203 703-235-3750 703-235-8349 (fax)

November 7, 2012

IBLA 2012-155 ) OR-110-TS11-20 ) KLAMATH-SISK1YOU WILDLANDS ) Timber Sale CENTER, ETAL. ) ) Appeal Dismissed in Part; ) Decision Affirmed; ) Petition for Stay Denied as Moot ORDER

The Klamath-Siskiyou Wildlands Center (KS Wild) and others (collectively, appellants) have jointly appealed from and petitioned for a stay of the effect of three April 4, 2012, decisions of the Field Manager, Ashland (Oregon) Resource Area, Medford District, Bureau of Land Management (BLM), denying separate protests of the August 23, 2011, Decision Record (DR) and Finding of No Significant Impact (FONSI), which approved the Cottonwood Timber Sale (Timber Sale), OR-110-TS11-20. The DR and FONSI were based on an August 2011 Revised Environmental Assessment (EA) (DOI-BLM-OR-M060-2011-0003-EA), which was prepared pursuant to section 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(Q (2006).

For the following reasons, we dismiss the appeal in part, affirm BLM's decision, and deny the petition for stay as moot.

As a preliminary matter, we note that the appeal was brought by KS Wild, together with the Soda Mountain Wilderness Council (SMWC), Cascadia Wildlands Project (CWP), Oregon Wild (OW), and Center for Biological Diversity (CBD). While appellants' Notice of Appeal/Statement of Reasons/Request for Stay (NA/Request) bears the typewritten names, addresses, and affiliations of representatives of the other appellants, it is signed only by George Sexton, Conservation Director, KS Wild, who states that he is "authorized and qualified to represent appellants in this matter." NA/Request at 55. However, while he purports to represent the other appellants, nowhere does he identify a relationship with the other appellants, which would

1 We note that on Oct. 9, 2012, the United States District Court for the District of Oregon, issued an Order denying appellants' request for a preliminary injunction in this matter. Soda Mountain Wilderness Council et al v. BLM, No. 1:12-CV-1171-CL. IBLA 2012-155 entitle him, under 43 C.F.R. § 1.3, to represent them. Since KS Wild is well aware of this requirement, we dismiss the appeal, to the extent that it was brought on behalf of the four appellants, other than KS Wild. See Klamath Siskiyou Wildlands Center, 155 IBLA 347, 350-51 (2001).

Background

BLM proposed to authorize, under the Sale, the commercial cutting, yarding, and removal of a total of approximately 19,181 merchantable coniferous trees, totaling 3,234 thousand board feet (MBF) of timber, from a total of 725 acres of Federal land, in 30 sale units, ranging in size from 2 to 63 acres, and a single right-of-way (ROW) area, situated in sees. 32 and 33, T. 38 S., R. 3 E., and sees. 4, 5, 9, M, 19-21, 29, 30, and 32, T. 39 S., R. 3 E., Willamette Meridian, Jackson County, Oregon, west of the Hyatt Reservoir, within the Cascade Mountains. BLM states that, generally speaking, the trees individually targeted for removal "should include those with crown ratios less than 30%, LthatJ exhibit crown decline, [that have] narrow crown widths, and [that] contribute least to the canopy layer," so long as sufficient canopy cover remains following harvesting. EA at 2-10, 3-67, 3-68.2

In addition to providing a sustainable supply of timber, the timber harvesting would, in the short-term, by decreasing the competition for sun, nutrients, and water, promote the development of a vigorous multi-storied stand of healthy trees of diverse age, size, and species, resistant to insects, disease, and wildfires, while maintaining sufficient late-successional and old-growth forest habitat for Northern Spotted Owls (NSOs) (Strix occidentalis caurina) and other dependent wildlife species, and would, in the long-term, promote the development of late-successional and old-growth forest. SeeEAat 1-1, 1-3 to 1-4, 2-2, 2-10 to 2-12, 3-46 to 3-48, 3-59 to 3-61, 3-63 to 3-67, 3-69 to 3-75, A-8; DR at 8-9; Response to Request for Stay/Statement of Reasons (Response) at 2, 9, 49-50, 69.

Yarding would involve skyline cable (57 acres (Unit 17-3)) and tractor (668 acres (remainder of Sale area)) yarding. Slash disposal would take place following logging, in the form of hand piling, followed, after the slash has cured, by pile burning; In order to provide access to the Sale units, BLM would authorize the construction of close to 0.6 miles of temporary road, which would be decommissioned and obliterated following the completion of all Sale activities, and

Citations to the EA are to the August 2011 Revised EA. Appellants state that it "appears" that BLM has proposed "bulldozer firelines" in connection with prescribed fire activities associated with the Sale. NA/Request at 37. No tractor firelines are proposed. See EA at A-12 ("[Ojnly hand firelines would be used during prescribed fire activities"); Response at 37, 38. IBLA 2012-155 1.15 miles of permanent road.4 A total of close to 36 miles of existing road would be used in connection with the Sale, being renovated, by rocking, grading, cleaning drainage ditches and culverts, and other means, as needed. None of the roads would be opened togeneral public use. In addition, 1.9 miles of permanent road (including 0.84 miles in riparian areas) would be decommissioned, by being waterbarred, seeded/planted, mulched, and barricaded.

Logging would generally be permitted year-round, but tractor yarding, and construction, use, and maintenance of roads would generally be limited to the dry season (usually May 15/June 15 to October 15), in the absence of a waiver during dry conditions.5 Performance under the timber sale contract would be covered by a bond, amounting to 20 percent of the total purchase price (at least $31,284.84).

Timber sales in the area of Federal lands at issue are governed by the "Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl," generally known as the Northwest Forest Plan (NFP), which was adopted by the Secretaries of Interior and Agriculture, in an April 13, 1994, Record of Decision (ROD).' The NSO is a terrestrial avian species designated as a threatened and

4 The 0.6 miles of new temporary road would consist of six spur roads, ranging from 50 to 500 feet in length, providing access to Units 17-3, 17-4, and 17-5. Since they would not be constructed for general transportation purposes, each of the roads would have a narrower clearing and road width, with no turnouts or culverts, and, following construction, would be waterbarred, seeded, mulched, and barricaded prior to the start of the wet season (October 15). The 1.15 miles of new permanent road would access Units 20-1 and 20-2. Appellants have not demonstrated that, in order to properly assess the likely impacts of timber hauling, BLM was required to quantify the specific effects of use of the roads at issue on erosion rates and sediment delivery to local streams. See NA/Request at 15; EA at A-14, A-15. The NFP, which is set forth as Attachment A to the ROD, provides for the comprehensive management of timber and other natural resources on all Federal lands in California, Oregon, and Washington, within the geographic range of the NSO. It amended Oregon BLM's existing land-use plans, and was thereafter incorporated in the April 1995 Medford District (RMP), which was deemed to be applicable in the present case. See EA at 1-5; DR at 10; Decision (KS Wild) at 1-2; Response at 2. The April 1995 Medford District RMP and five other RMPs were collectively revised by the Western Oregon Plan Revisions (WOPR), adopted on Dec. 30, 2008. (continued...) IBLA2012-155 endangered (T&E) species, under the ESA, 16 U.S.C. §§ 1531-1543 (2006). Ii is undisputed thai all of the trees at issue will be felled in areas designated, pursuant to the NFP, as Matrix, where timber harvesting is generally permitted by the NFP. See NFP ROD, Attachment A, at C-39; ROD and RMP, dated Apr. 14, 1995, at 38; EA at 2-37, A-7; Decision (SMWC) at 9; Response at 2. Thus, BLM properly states that, after the weighing the relative costs and benefits of approving or not approving timber harvesting, it has long since generally decided to manage the lands at issue for timber production, subject to consideration of the site-specific environmental consequences of undertaking the particular timber sale at issue. See, e.g., Decision (KS Wild) at 2-3, 8.

Generally speaking, no timber harvesting will occur in areas designated as Late-Successional Reserve (LSR) or Riparian Reserve (RR).7 See EA at 2-14 to 2-15,

(...continued) See generally 76 Fed. Reg. 63720, 63745 (Oct. 13, 2011). The Acting Assistant Secretary of the Interior for Lands and Minerals administratively withdrew the WOPR on July 16, 2009. However, this withdrawal was vacated on Mar. 31, 2011, by the Federal district court in Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245 (D.D.C.). The effect of the court's action was to restore the WOPR, and thus the revised RMP, by the time of BLM's Aug. 22, 2011, EA, and Aug. 23, 2011, DR and FONSI. BLM thus determined whether the Sale conformed to the RMP and the revised RMP, concluding that it did. See EA at 1-5, A-3; FONSJ at 6; DR at 10; Decision (KS Wild) at 2; Response at 3. The WOPR was challenged in Pacific Rivers Council v. Shepard, No. 3:ll-cv-00442-HU (D. Or. Apr. 8, 2011), which, after the confession of legal error by the Department, resulted in a Mar. 20, 2012, Order, in which the Federal district court adopted, as modified, findings and recommendations of a Federal magistrate judge, thereby concluding that BLM had promulgated the WOPR in violation of the consultation requirement of section 7 of the Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1536 (2006), thus mandating vacation of the WOPR and reinstatement of the NFP. See Order, Pacific Rivers Council v, Shepard, No. 3:ll-cv-00442-HU (D. Or. Mar. 20, 2012), at 12; see also Memorandum Opinion, Douglas Timber Operators, Inc. v. Salazar, No. 09-1704 (JDB) (D.D.C. Dec. 23, 2011); Findings and Recommendations, Pacific Rivers Council v. Shepard, No. 3:ll-cv-00442-HU (D. Or. Sept. 29, 2011 (as modified Oct. 14, 2011)), at 20. In the case of the one exception, "several trees" would be removed from the RR of an intermittent stream, a tributary of Keene Creek, in the reserve area between Units 20-1 and 20-2, in sec. 20, T. 39 S., R. 3 E., Willamette Meridian, Jackson County, Oregon, in connection with construction of 330 feet of the 1.3-mile long new permanent road (39-3E-17.4), through the RR and across the stream channel to (continued...)

4 IBLA 2012-155 3-30, 3-36; Response at 2. BLM also reports that no timber sales have occurred in or are planned for LSRs or RRs near the Sale area. See EA at 1-10; Response at 48. The Sale area is designated as a Tier 1 (Aquatic Conservation Emphasis) Key Watershed, which principally requires the preparation of a watershed analysis (WA) before approving any timber harvesting, in order to directly promote the conservation of at-risk anadrornous salmonids and resident fish species, and precludes a net increase in roads. See EA at 1-6, 3-12, 3-24, 3-37; NFP ROD, Attachment A, at A-5, B-18 to B-20, C-7. Harvesting will also, so far as we can discern, not occur in any old-growth timber, any designated NSO Critical Habitat Unit (CHU), or any NSO core area, which encompasses the area within a one-half mile radius surrounding an occupied nest site.8 See EA at 2-11, 2-20, 3-42, 3-47, 3-48.

Using an interdisciplinary team of resource experts, BLM prepared its EA for the Project on August 22, 2011, for the purpose of considering the potential environmental impacts of the proposed timber harvesting and related activity, and alternatives thereto, in the Project area, including the Sale area.9 BLM considered the proposed action (Alternative 2), and a no action alternative (Alternative 1), under which none of the proposed timber harvesting would occur.10 See EA at 2-1.

7 (...continued) Unit 20-2. EA at A-22; see EA at 2-3, 2-5 (Table 2-4 (Alternative 2-Proposed New Road Construction in the Project Area)), 2-9 (Map 2-4 (Alternative 2-Proposed Action)), 3-30, 3-31, 3-36, 3-94; Decision (KS Wild) at 13; Prospectus, Timber Sale Contract Map, Page 6 of 10; DR at 2 n.2 ("[About 1.15 miles] represents actual miles as surveyed on the ground, mileage was reported as about 1.3 miles in the EA"); Response at 27-28. These trees are located "a considerable distance from [the] stream[.]" EA at A-22. 8 While the Sale area does not appear to be within a designated NSO CHU or NSO core area, part of the overall Project area, analyzed in the EA, is clearly so situated. However, BLM concluded that, although 90 and 45 acres, respectively, of nesting, roosting, and foraging (NRF) and dispersal habitat are situated within a CHU, and 108 and 114 acres, respectively of NRF and dispersal habitat are situated within a core area, impacts to the NSO would be insignificant, since the habitat in the Project area would be preserved. See EA at 3-42, 3-47; FONSI at 7, 8. 9 The EA was tiered to the October 1994 Final Environmental Impact Statement (EIS) prepared in connection with promulgation of the Medford District RMP, and, in turn, the February 1994 Final Supplemental EIS prepared in connection with the ROD for the NFP. See Decision (KS Wild) at 2, 12; FONSI at 5; EA at 1-4. Table 2-2 (Units by Silvicultural Prescription and Harvest Method), at pages 2-2 to 2-3 of the EA, sets out the specific treatment prescriptions for each of the Sale units (continued...) IBLA 2012-155 Under Alternative 2, BLM proposed timber harvesting on a total of 1,108 acres of FederaJ land, including the 725 acres in the Sale area, as well as a total of 36.21 miles of existing road maintenance/upgrading and 1.5 and 0.6 miles of new permanent and temporary road construction. See EA at 2-1 to 2-9. BLM provided for utilizing variable density, selective forest thinning as the means of timber harvesting, since it would provide a sustainable supply of timber while reducing forest densities, but still maintaining existing NSO habitat, in the form of complex stands, containing large live trees, different tree size classes, standing snags, and downed large woody debris. Both NRF and dispersal habitat would be preserved, with canopy closure remaining, respectively, at or above 60 and 40 percent. See EA at 2-10.

BLM also prepared a Biological Assessment (BA) for the Project in July 2010, pursuant to section 7(c)(l) of the ESA, 16 U.S.C. § 1536(c)(l) (2006), concluding that Cottonwood and 13 other vegetation management projects in the Medford District may affect, but are not likely to adversely affect (NLAA) the NSO, or its designated critical habitat. See BA at 10, 13 (Table 2b (Project Summary by Western Cascades Physiographic Province)), 16, 24, 31 (Table 3 (Effects to NRF and Dispersal by Section 7 Watershed and Treatment Type)), 37 (Table 4 (Effects to 2008 Critical Habitat Unit (CHU)), 39, 42-47. Based upon reviewing the BA, the Fish and Wildlife Service (FWS), U.S. Department of the Interior, issued an October 14, 2010, Letter of Concurrence (No. 13420-2010-1-0178), concurring in BLM's NLAA determination. See Letter of Concurrence at 14. FWS reached this conclusion based on the fact that the projects, individually and cumulatively, would not impede the survival or recovery of the NSO, since project activities would comply with the RMP and NFP, not downgrade or remove any NRF and dispersal habitats in the project areas, and incorporate appropriate measures to avoid or minimize adverse effects to the NSO and its habitat. See Letter of Concurrence at 4-5, 6-7, 8-9, 10, 11-12, 14.

On August 23, 2011, the Field Manager issued his DR, approving the proposed Cottonwood Timber Sale, as part of Alternative 2, subject to implementation of numerous PDFs, designed to avoid or minimize the adverse environmental consequences of the Sale. See DR at 2. He held that the Timber Sale achieves the best balance between satisfying resource use objectives and protecting resource values, by providing for the production of a sustainable supply of timber, while promoting a healthy forest ecosystem that maintains sufficient existing late-successional and old-growth forest habitat for NSOs and other dependent wildlife

(...continued) in the Sale area. Further, the proposed action incorporates project design features (PDF) that are set forth at pages 2-14 to 2-35 of the EA. Nowhere have appellants established that the PDFs are "not related to actual project activities or site-specific environmental conditions." NA/Request at 14. IBLA 2012-155 species. See DR at 8-9. He also held that the Sale conformed, as required by section 302(a) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1732(a) (2006), to the applicable land-use plan (April 1995 Medford District RMP), and thus to the NFP. See DR at 10. He separately concluded, in his August 23, 2011, FONSI, based on consideration of the context and intensity (or severity) factors of 40 C.F.R. § 1508.27, that the Timber Sale was not likely to result in any significant impacts to the human environment, and thus BLM was not required, by section 102(2)(C) of NEPA, to first prepare an EIS. See FONSI at 1, 8.

BLM published a notice of the DR in a newspaper of general circulation in the area of the Timber Sale on August 25, 2011, thus rendering a notice of decision, which was subject to protest, pursuant to 43 C.F.R. § 5003.3(a). See 43 C.F.R. § 5003.2(a).

Appellants filed three separate protests challenging the August 2011 DR on September 8, 9, and 12, 2011, advancing all of the same concerns now raised on appeal.11

In his April 2012 decisions, the Field Manager separately denied the three protests, and upheld the DR, finding it to be still valid, being generally consistent with the timber harvesting and other objectives of the NFP and RMP, and based on the appropriate level of NEPA analysis. See, e.g., Decision (KS Wild) at 18. After addressing all of appellants' concerns, he effectively concluded that, as determined by BLM's resource specialists, appellants had not provided any new or specific evidence that the likely effects of the Timber Sale were not adequately analyzed in the EA, tiered to the RMP Final EIS and NFP Final Supplemental EIS, that the Timber Sale would cause significant harm to any particular resource, or that would otherwise cause him to change his decision to approve the Sale. Rather, the Field Manager stated that appellants' protests reflected their "preference" for resource allocations and outcomes that are different than those previously decided upon in the NFP and RMP. Id. at 2.

In the case of BLM's denial of a protest of a forest management decision, BLM is authorized, under 43 C.F.R. § 5003.3(f), "[u]pon denial of [the] protest. . . [to] proceed with implementation of the decision." In his protest denial decisions, the

11 Three separate protests were filed by KS Wild, CWP, and OW; SMWC; and CBD. KS Wild, CWP, and OW were joined in their protest by the Siskiyou Project, and SMWC was joined in its protest by The Wilderness Society. Neither the Siskiyou Project nor The Wilderness Society has pursued the present appeal. BLM notes that the Siskiyou Project has merged with KS Wild. See Decision (KS Wild) at 2.

7 IBLA 2012-155 Field Manager stated that BLM would, in accordance with 43 C.F.R. § 5003.3(0, proceed with implementation of the DR. See Decision (KS Wild) at "18.

Appellants timely appealed the Field Manager's April 2012 decisions, requesting a stay of the effect of the decision to approve timber harvesting and related activity, including any preparation, layout, contract award, or any other site preparations by BLM, during the pendency of their appeal. They are principally concerned that the Timber Sale will result in the cutting, yarding, and removal of "large-diameter" "mature and late successional" trees in the Sale area, noting that, "once trees are cut, those trees cannot be put back," and, "[olnce soils are compacted due to road construction and ground-based yarding activities they will never regain their former productivity."12 NA/Request at 3, 6, 53, 54.

BLM opposes any stay.13

12 BLM reports that, although the timber sale occurred on Sept. 15, 2011, resulting in the Murphy Company (Murphy) being declared the high bidder, the 3-year timber sale contract had not been awarded. See BLM Response to Motion to Intervene at 1; Decision (KS Wild) at 1. Murphy moves to intervene in the pending appeal, pursuant to 43 C.F.R. § 4.406(a). Since Murphy will clearly be adversely affected were the Board to overturn BLM's decision to approve the Sale, the motion is granted. See 43 C.F.R. §4.406(b). Jackson County, Oregon, through its Board of Commissioners, has also sought to participate in the appeal, in support of Murphy. We are not persuaded that the County will be adversely affected were the Board to overturn BLM's decision to approve the Sale, and thus it will not be permitted to intervene in the appeal. See, e.g., Letter to Board from County, dated May 16, 2012, at 1 ("[T]he County is entitled to receive 50% of the BLM receipts from O&C timber sales [T]he County has not received any share of the receipts from O&C timber sales since 1991."). However, the County will be granted status as an amicus curiae. Under 43 C.F.R. § 5003.1, the filing of a notice of appeal does not automatically suspend the effect of a timber sale or other forest management decision, and thus BLM may, in accordance with 43 C.F.R. § 5003.3(0, proceed with implementation of the decision. See In Re Eastside Salvage Timber Sale, 128 IBLA 114, 115 (1993). However, BLM states that it will now delay implementing its decision to approve the Timber Sale until 45 days following the end of the 30-day appeal period. See Response at 74. IBLA 2012-155

Discussion

Appellants contend that BLM's decision to approve timber harvesting and related activity violates the land-use plan conformance requirement of section 302(a) of FLPMA, and the environmental review requirements of section 102(2)(C) of NEPA. They state that they "do not generically object to timber harvesting," supporting "small-diameter thinning projects" that comply with applicable law. NA/Request at 54.

BLM did not Violate the Land-Use Plan Conformance Requirement ofFLPMA

Appellants argue that BLM's decision to approve the Timber Sale violated section 302(a) of FLPMA by failing to abide by (1) the requirement to address the findings and recommendations of the Jenny Creek WA; and (2) the requirement to achieve Aquatic Conservation System (ACS) objectives, as required by the NFP, incorporated in the Medford District RMP. See NA/Request at 20-21, 22, 29, 33-36.

BLM is required, as a matter of law, by section 302(a) of FLPMA, 43 U.S.C. § 1732(a) (2006), to "manage the public lands ... in accordance with the [applicable] land use plan[]," and thus to ensure that the exercise of its discretionary authority to approve actions conforms to the existing land-use plan. See 43 C.F.R. § 1610.5-3(a) ("All future resource management authorizations and actions . . . shall conform to the approved plan"); Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 69 (2004) ("[These statutory and regulatory provisions] prevent BLM from taking actions inconsistent with the provisions of a land use plan"); Tom Van Sanu 174 IBLA 78, 91-92 (2008); Dona Jeanette Ong, 165 IBLA 274, 278 (2005); Jenott Mining Corp., 134 IBLA 191, 193-94 (1995). A proposed management action will be deemed to be in conformance with a land-use plan where it is "specifically provided for in the plan, or if not specifically mentioned, [is] . . . clearly consistent with the terms, conditions, and decisions of the approved plan[.J" 43 C.F.R. § 1601.0-5(b) ("Conformity or conformance").

First, appellants argue that BLM failed to address the findings and recommendations of the Jenny Creek WA. See NA/Request at 20-21, 22. They assert that both the NFP and the RMP require BLM to "incorporate[]" the findings and recommendations of the WA in proposed site-specific actions. Id. at 20.

Watershed analysis is intended to "develop[J and document[] a scientifically-based understanding of the ecological structure [s], functions, processes, and interactions occurring within a watershed^]" NFP ROD, Attachment A, at E-4. Nowhere do we find any requirement in the NFP or the RMP that BLM address, in an EA or elsewhere in its NEPA decision making, all of the findings and

9 IBLA 2012-155 recommendations of the WA, in the context of deciding whether to approve a particular proposed action. See NFP ROD, Attachment A, at E-4, E-20 to E-21; ROD and RMP at 94-96.

Rather, both the NFP and RMP emphasize the principal role of watershed analysis: "Watershed analysis will focus on collecting and compiling information within the watershed that is essential for making sound management decisions. It will be an analytical process, not a decision-making process[..]" NFP ROD, Attachment A, at E-20; ROD and RMP at 94, (emphasis added); see EA at 1-6. Thus, both the NFP and RMP further state that "ftjhe information from the watershed analyses will contribute to [agency] decision making at all levels," "Project-specific NEPA planning will use information developed from watershed analysis," and, finally, "subsequent [agency] decisions will need to address . . . [relevant] information" developed in a watershed analysis. NFP ROD, Attachment: A, at E-20; ROD and RMP at 94 (emphasis omitted). Indeed, "[t]he results of watershed analysis will influence final decisions both on timing of land-disturbing activities such as timber sales and on application of [project] design features and mitigating measures[.J" ROD and RMP at 96.

Not every BLM decision implicates all of the information in a WA. BLM may, thus, consider the findings and recommendations of the WA when they arise in the course of its decision making. BLM did so here, considering the findings and recommendations in the 1995 WA for the Jenny Creek Watershed during the course of its NEPA review, thereby addressing most, if not all, of the concerns raised by appellants, to the extent they were potentially relevant to its decision whether to approve the Timber Sale at issue. See EA at 1-6 ("Management Objectives . . . provided by the Watershed Analysis were considered and addressed as they applied to the Cottonwood [Timber Sale] proposal" (emphasis added)), 3-12 to 3-18, 3-22 to 3-30, 3-36 to 3-39, A-9 to A-10; Response at 33-34. Appellants fail to establish any error or deficiency in BLM's analysis.

Second, appellants argue that BLM failed to abide by the requirement to achieve ACS objectives. See NA/Request at: 29, 33-36. Appellants also assert that BLM erred by declining to utilize "benchmarks" adopted by the National Marine Fisheries Service (NMFS), U.S. Department of Commerce, in assessing the likely effects of the Sale on the Proper Functioning Condition (PFC) of the water courses in the Sale area, and thus on associated anadromous fish species. NA/Request at 14. BLM did not analyze the likely impacts of the Sale in terms of the NMFS benchmarks for PFC because the benchmarks are used in connection with ESA consultation, and there are no anadromous fish species or critical habitat for anadromous fish species listed under the ESA in the Jenny Creek Watershed, which would warrant ESA consultation. See EA at 3-24, 3-27 ("A large barrier falls located a couple of miles

10 IBLA 2012-155 upstream of the mouth of Jenny Creek precludes migratory fish from most of the watershed"), A-12; FONSI at 8; Response at 25.

They further assert that, since BLM had already determined that ACS objectives would not be met in the future, owing to timber harvesting, livestock grazing, and other activity on private and Federal lands, the timber harvesting and related activity now at issue would clearly add to the failure to achieve ACS objectives. BLM notes that, while grazing will likely continue at near present levels on private land, only 67 acres of Federal land in the Project Area are within a grazing allotment, noting that "livestock numbers have been greatly reduced in the project area since the Keene Creek grazing allotment was retired in 2008." EA at 3-21; see id. at 3-96, 3-118. Other allotments are situated in the larger Cumulative Effects Analysis Area. See id. at 3-25.

BLM fully assessed whether the Timber Sale comports with the ACS objectives, which are designed to restore and maintain the ecological health of watersheds and associated aquatic ecosystems on Federal lands. See NFP ROD, Attachment A, at B-9 to B-ll. It concluded that the Sale does, in fact, satisfy such objectives, since, while it will not improve existing conditions, the Sale will, even given other activities on private and Federal lands, maintain existing conditions, and thus not retard or prevent the attainment of such objectives. See EA at 3-36 to 3-39, A-18 to A-21. Nowhere do we find any statement by BLM to the effect that ACS objectives will not be met were the Sale to go forward.

Despite appellants' repeated assertions to the contrary, the fact that ACS objectives are likely to be somewhat affected by Sale activities at the site level, by the short-term introduction of small quantities of localized sediment or other means, does not signify that BLM has generally failed to achieve ACS objectives within the meaning of the NFP. See NA/Request at 16, 34 ("BLM contends that adding yet more sediment to sediment-impaired waterbodies that are trending away from ACS compliance somehow complies with the ACS"), 35 ("The agency is not permitted to continue increasing sediment loading to an already degraded system .... In fact, the agency is required to reduce sediment loading in the Jenny Creek Key Watershed."); EA at 3-36 to 3-39, A-18 to A-21; Decision (KS Wild) at 13; Response at 43-46. Nor do appellants offer any convincing argument or supporting evidence that the Sale will not achieve ACS objectives. We find no evidence that BLM seeks to deviate from the requirement to achieve ACS objectives, pursuant to an inaccurate reading of the opinion in Bark v. U.S. BLM, 643 F. Supp. 2d 1214, 1234-35 (D. Or. 2009). See NA/Request at 16. We are not persuaded that the short-term introduction of a small amount of localized sediment is impermissible under the holding in Bark, which specifically held, in such circumstances, that "'some degradation does not, standing

11 IBLA 2012-155 alone, constitute ACS noncompliance."' EA at A-19 (quoting Bark v. BLM, 643 F. Supp. 2d at 1234-35).

Additionally, nowhere do appellants establish that BLM's approval of the Sale will fail to comply with the Jenny Creek Water Quality Restoration Plan, which was adopted by BLM in order to satisfy the statutory requirements for water quality impaired streams, listed under section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d) (2006), in the Jenny Creek Watershed, and thus "run afoul of the BLM's Clean Water Act obligations!".]" NA/Request at 37; see id. at 36-37; EA at 1-6, 3-18, 3-20, 3-31, 3-34, A-22; DR at 11; Response at 55.

We are, therefore, not persuaded that appellants have established that BLM's decision to approve the Timber Sale failed to conform to the NFP and RMP, and thus violated the land-use plan conformance requirement of section 302 (a) of FLPMA.

BLM Complied with the Environmental Review Requirements of NEPA

Appellants argue that BLM, in preparing its EA, violated section 102(2)(C) of NEPA by (1) failing to disclose the likely effects of new temporary and permanent road construction in the Sale area; (2) failing to disclose the likely effects of timber harvesting and related activity on soils in the Sale area; (3) failing to disclose the likely effects of timber harvesting and related activity on special status and other unique and world-class botanical species in the Sale area; (4) failing to adequately consider the likely effects of timber harvesting and related activity on the NSO, owing to a decrease in the presence of mistletoe, important for nesting and other activity, in the Sale area; (5) failing to disclose recent demographic analysis disclosing a general downward trend in NSO occupancy and nesting success in the Southern Cascades Study Area (Study Area), which includes the Sale area now at issue; (6) failing to disclose the likely effects of timber harvesting and related activity on the CHU designated by FWS in 1992; (7) failing to adequately assess the likely impacts of timber harvesting and related activity on the Pacific fisher (Martes pennanti), especially where BLM made no effort to assess whether and to what extent fishers use and occupy the Sale area, and/or whether and to what extent the Sale area constitutes fisher habitat; (8) failing to adequately consider the likely effects of timber harvesting and related activity on migratory and resident birds; and (9) failing to prepare an EIS in order to address the potential cumulative significant impacts on terrestrial and aquatic resource values of engaging in past, present, and reasonably foreseeable future logging, yarding, and road construction/use/maintenance in the Sale and surrounding areas. See NA/Request at 9-13, 15, 16, 17, 18-19, 21-25, 28-33, 37-42, 44-52.

12 IBLA 2012-155 Appellants conclude that "the EA consists of propaganda [designed to justify a pre-ordained conclusion to log/yard/remove timber and build roads regardless of the environmental consequences] rather than impartial analysis." NA/Request at 25; see id. at 24-25. They add that "[t]he BLM's position that anything goes in the matrix land-use allocation is untenable." Id, at 54.

Section 102(2) (C) of NEPA requires consideration of the potential environmental impacts of a proposed action in an EIS if that action is a "major Federal actionf] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (2006). A BLM decision to proceed with a proposed action, based on an EA tiered to a programmatic EIS, will be upheld, as being in accord with section 102(2)(C) of NEPA, where the record demonstrates that BLM has, considering all relevant matters of environmental concern, taken a "hard look" at potential environmental impacts, and made a convincing case that no significant impact will result that was not already addressed in the EIS or that any such impact will be reduced to insignificance by the adoption of appropriate mitigation measures. Wyoming Outdoor Council, 173 IBLA 226, 235 (2007).

Importantly, in assessing the adequacy of an EA, we are guided by a "rule of reason," such that the EA need only briefly discuss the likely impacts of a proposed action: '"By nature, it is intended to be an overview of environmental concerns, not an exhaustive study of all environmental issues which the project raises."' Bales Ranch, Inc., 151 IBLA 353, 358 (2000) (quoting Don't Ruin Our Park v. Stone, 802 F. Supp. 1239, 1247 (M.D. Pa. 1992)).

An appellant seeking to overcome such a decision carries the ultimate burden to demonstrate, with objective proof, that BLM failed to consider a substantial environmental question of material significance to the proposed action, or otherwise failed to abide by section 102(2) (C) of NEPA.14 Bales Ranch, Inc., 151 IBLA at 357.

BLM's decision, after environmental review, to issue a FONSI, and not prepare an EIS, "implicates agency expertise." Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004). Thus, where, in assessing environmental impacts, BLM properly relies on the professional opinion of its technical experts,

Appellants appear to generally attribute their own failure to provide objective proof of the errors and deficiencies in BLM's analysis to BLM's purported failure to provide sufficient detailed information in the EA, even though nothing constrains appellants from undertaking their own scientific investigation of the Sale area and the likely effects of the Sale. See NA/Request at 19 ("Perhaps if the BLM would disclose specifics [concerning aspects of the environment in the Sale area] . . ., the public would be able to provide more detailed comments to the agency").

13 IBLA 2012-155 concerning matters within the realm of their expertise and which is reasonable and supported by record evidence, an appellant challenging such reliance must demonstrate, by a preponderance of the evidence, error in the data, methodology, analysis, or conclusion of the expert. Wyoming Outdoor Council, 173 IBLA at 235 (citing Fred E. Payne, 159 IBLA 69, 77-78 (2003)). A mere difference of opinion, even of expert opinion, will not suffice to show that BLM failed to fully comprehend the true nature, magnitude, or scope of the likely impacts. Id.

First, appellants argue that BLM failed to disclose the likely effects of new temporary and permanent road construction in the Sale area.15 See NA/Request at 21-25. They note that BLM particularly failed to consider the impacts of increasing the current road density above the current 5.8 miles per square mile of forest, which is already well above the targeted density of 2 miles per square mile of forest identified by the NMFS as the point above which the forest is "not 'properly functioning' for aquatic and fisheries values."16 Id. at 24. Appellants particularly object to the 1.3 miles of new permanent road running "through an old-growth forest, across a wet meadow, and through a riparian reserve," especially since it will only serve "to access a minor portion of the project area[.]"17 Id. at 21; see id. at 22 ("The proposal... to construct 1.3 miles of permanent logging road through a wet meadow, a riparian reserve and late-successional forests"). They also assert that the effects of temporary road construction are not temporary, since the effects of deforestation and disturbance of the soil along the road route will persist long after the road is constructed, used, maintained, and decommissioned.

15 Appellants have not demonstrated that the Sale, particularly the 1.75 miles of new temporary and permanent road, is likely to cause the further proliferation of off-highway vehicle (OHV) trails or increased OHV use in the Sale and surrounding areas, such that BLM was required to consider impacts associated with OHV use as indirect effects of the proposed Sale. See 40 C.F.R. § 1508.8 ("Indirect effects"); NA/Request at 15, 17, 18, 25, 46; EA at A-23. BLM did acknowledge the existence of an expanding network of OHV trails, which negatively affects the environment, and adopted measures to restrict any OHV use attributable to the Sale. See EA at 2-16 2-17, 3-15, 3-18, 3-20, 3-21, 3-94, 3-105, 3-107, A-14; Decision (KS Wild) at 10-11, 15-16; Response at 40. BLM states that the NMFS benchmark for road density is 3, not 2, miles per square mile of forest. See Response at 38. This is not disputed by appellants. 17 Appellants state that the likely effects of constructing the 1.3 miles of permanent road are significant, and thus, by themselves, require the preparation of an EIS. See NA/Request at 22. However, they fail to justify this conclusion, based on any analysis of the context or intensity (severity) factors of 40 C.F.R. § 1508.27.

14 JBLA 2012-155 BLM considered the likely effects to soils, vegetation, water, and fish and aquatic resources of 2.1 miles of temporary and permanent road construction, use, and maintenance throughout the EA. See, e.g., EA at 2-3, 3-10, 3-15, 3-20 to 3-22, 3-31 to 3-34, 3-94 to 3-95, A-10, A-ll ("[The roads at issue] would be closed to the general public, receive only limited traffic during the dry season, and only be utilized sporadically"), A-12, A-14. It was aware that the existing road density was 5.8 miles per square mile of forest in the Sale and surrounding areas, and thus "higher than desirable[.]" Response at 38; see EA at 3-6, 3-11, 3-22, 3-23, A-12. In the case of the Project area, road density was greater than 4.0 miles per square mile. See EA at 3-15, 3-16 (Table 3-3 (7th Field Road Densities for all Roads within the Analysis Area)). By proposing 1.9 miles of decommissioning, BLM proposed a net reduction of permanent roads, on the order of 0.4 miles, and, by approving 1.9 miles of decommissioning, BLM has approved a net reduction of permanent roads, on the order of 0.75 miles, thus alleviating the high road density in the Sale area. See EA at 3-20, A-10; Response at 39. Such reduction is "consistent" with the management direction in the NFP for Key Watersheds. EA at 3-20.

BLM properly states that a road density of 3 miles per square mile of forest is one of the NMFS benchmarks for PFC, but is not applicable in the case of the proposed Sale, since none of the streams in the Jenny Creek Watershed contain anadromous fish species or critical habitat for anadromous fish species listed under the ESA. See Response at 38. Further, recognizing that density is only a "coarse indicator" of effects, since not all roads have the "same [e]ffects," BLM focused on the actual anticipated effects. EA at A-12, A-13; Response at 26; see EA at 3-15. It concluded that 2.1 miles of temporary and permanent roads would not increase the environmental risk posed by the existing road network, especially because almost all of the new roads, as well as other features of the proposed Sale, are not situated near or hydrologically connected to any streams. See, e.g., EA at 3-20, 3-22, 3-30, 3-31, A-ll;FONSIat2.

BLM was also aware of the likely impacts of construction of the 1.3 miles of permanent road through the RR, which, owing to construction during the dry season, stabilization of the disturbed soils, and other measures, would be limited to a minor disturbance to the stream channel and introduction of a small amount of sediment directly to the channel, resulting in no change to the downstream aquatic environment. See EA at 3-24, 3-31 to 3-32, 3-34, 3-36, 3-38, 3-39, 3-94, A-10 to A-ll, A-20, A-21, A-22; FONSI at 2; Response at 36. It takes exception to appellants' characterization of the area through which the road would pass as a wet meadow, noting that the area "is a grassland adjacent to an intermittent stream, lacks vegetation characteristic of wet meadows, and is dry much of the year," that is "not naturally inundated by water, save when it is covered by snow." Response at 35, 46. None of this is disputed by appellants. BLM also concluded that, by reducing conifer

15 IBLA 2012-155 encroachment in the riparian area, road construction would assist in expansion of the meadow, to the benefit of plant species associated with the area. See EA at 3-94. Appellants find BLM's conclusion "surprising" and "divorced from reality," but offer no convincing argument or supporting evidence disputing the benefits to the riparian area of reducing the present amount of conifer encroachment. NA/Request at 46.

Second, appellants argue that BLM failed to disclose the likely effects of timber harvesting and related activity on soils in the Sale area. See NA/Request at 37-38. They focus on the impacts of tractor yarding, which will, by promoting soil compaction and displacement, decrease soil productivity and, in turn, the health and vigor of trees and other biological resources, and increase surface runoff and soil erosion.

BLM considered the likely effects of timber harvesting and related activity on soils, including soil compaction and displacement and their consequences, in the Sale and surrounding areas. See EA at 3-2 to 3-12, A-13. Appellants fail to establish any error or deficiency in BLM's analysis.

Third, appellants argue that BLM failed to disclose the likely effects of timber harvesting and related activity on special status and other "unique and world-class" botanical species in the Sale area, which, being located at the intersection of the Klamath and Cascade Mountains, sits in one of the most botanically diverse areas in Oregon. NA/Request at 45; see id. at 45-46, BLM considered the likely effects of timber harvesting and related activity on botanical resources, including special status species, in the Sale and surrounding areas. See EA at 3-86 to 3-97. Appellants offer no argument or supporting evidence disputing BLM's analysis or conclusions, or establishing that any impact is likely to be significant.

Fourth, appellants argue that BLM failed to adequately consider the likely effects of timber harvesting and related activity on the NSO, owing to a decrease in the presence of mistletoe, important for nesting and other activity, in the Sale area. See NVRequest at 13, 16, 18-19, 38, 47-52. They assert that BLM erred in proposing to reduce the incidence of mistletoe in the Sale area as part of the proposed harvesting, arguing that mistletoe is a desirable component of the forest ecosystem, providing and promoting the development of wildlife habitat, in the form of nest platforms, snags, and downed wood, and that efforts to remove mistletoe will only encourage its proliferation. They conclude: u[N]o attempt is made to quantify or qualify the impacts of the proposed mistletoe logging on NSO or their prey." Id at 38.

BLM did not adopt eliminating or even severely limiting the detrimental effects of mistletoe in the Sale area as part of the identified aims of the proposed Sale,

16 IBLA 2012-155 recognizing its benefits for wildlife. See EA at 2-12 ("Where mistletoe is encountered, target heavily infected trees for removal first, then, focus on leaving resistant species (sugar pine, ponderosa pine, incense cedar, and white fir), followed by uninfected or the least infected Douglas-fir trees"), 3-47 ("Suitable nesting structure is retained within units through retention of large dominant trees and most trees infected with mistletoe"), 3-68 ("The silviculture objectives for stands that are currently infected with mistletoe disease are to minimize the spread of the parasite into uninfected susceptible host trees and protect adjacent stands from infection"), 3-76, A-8, A-9 to A-10, A-22 ("[Mjistletoe removal will occur only occasionally throughout this project"), A-26 ("[SJilvicultural treatments are designed to slow the spread of the infection, rather than eradicate the parasite. . . . Silviculture objectives desired from treatment include the retention [of] trees that create diversified stand structure (height, age, and diameter classes) and species composition, so the eradication of the parasite is not desired."); Decision (KS Wild) at 6-7; Response at 9-10, 20, 68 ("[BLM's silvicultural] prescription does not specifically target mistletoe infected trees so there will be an abundance of mistletoe infected trees remaining in the forest stands post-harvest [thereby providing wildlife habitat, snag recruitment, and a source of future down wood]"). It did, however, acknowledge that individual severely infected trees might be selectively removed, thereby minimizing the incidence of mistletoe infections in the Sale area, so long as overall canopy cover was not compromised. See EA at 3-68, A-26; Response at 20 ("Pathogens will still remain within stands treated (but to a lesser degree) as well as within stands not treated, and will continue to contribute to the structural diversity of forest stands in the planning area").

Appellants have failed to identify anything wrong with, and even seem to support, BLM's silvicultural prescription concerning mistletoe-infected trees. See NA/Request at 50 ("The damaging effects of mistletoe can best be minimized, and their ecological benefits maximized, by recreating forest stands with age, size and density distributions similar to the original, presettlement forests," (emphasis added)), 51 ("Infection should generally be reduced as much as possible without sacrificing the best trees in the stand," (emphasis added)), 52 ("In view of the uncertainties and potential adverse effects from selection and partial cutting in infected stands, use of the appropriate criteria for selecting and retaining trees is especially important," (emphasis added)).

BLM considered the impacts of timber harvesting on the NSO likely to result from a decrease in the presence of mistletoe in the Sale area and other parts of the Project area. See EA at 3-47, 3-62, 3-65, 3-68, 3-76, A-8. Admittedly, BLM did not determine the number, age, size, class, or location of mistletoe-infected trees that would be logged, since it was not considered practical, and, in any event, would not "lead to a better decision concerning the management of mistletoe within stands,"

17 IBLA 2012-155 adding: "[Tjhe information that is important for analysis is that a site is infected to the degree that tree vigor and stand resiliency would be negatively affected without treatment and key habitat characteristics, post-harvest, would not be significantly affected by the treatment." EA at A-26; Response at 20. It noted that the specific trees that will be logged is not determined until after approval of the Sale, when BLM cruises the forest stands and marks the trees for harvest and retention. See EA at A-26.

However, BLM was reasonably certain that "[t]he limited removal of select trees with mistletoe will not significantly change the availability of mistletoe structures for use by wildlife species" in the Sale area and other parts of the Project area. EA at A-8. It also noted that removing Douglas-fir infected trees would not only limit the spread of the infection, but also promote a diversified stand structure, leaving not only Douglas-fir, but also Ponderosa pine, Incense-cedar, and White fir, which are not susceptible to infection, all without compromising the canopy cover and the availability of nesting structures necessary for NSO habitat. See id. at 3-47, 3-68, 3-76, A-8, A-22, A-26. Appellants offer no expert opinion or supporting evidence regarding the likely impacts of the Sale on the NSO, owing to a decrease in mistletoe in the Sale area, or remotely establishing that such impacts are likely to be significant.

Fifth, appellants argue that BLM failed to disclose recent demographic analysis disclosing a general downward trend in NSO occupancy and nesting success in the Study Area, which includes the current Sale Area. See NA/Request at 41. Referring to an undated analysis undertaken by Dr. R.G. Anthony and others in 2009, they state that "BLM has [instead] elected to paint a much rosier (if inaccurate) picture of NSO population dynamics in the Southern Oregon Cascades." Id.

BLM fully considered the likely effects of timber harvesting and related activity on the NSO. See EA at 3-39 to 3-42, 3-46 to 3-50. It concluded that the Sale would not downgrade or remove any NRF or dispersal habitat in the Project Area for the

18 Appellants indicate that it is necessary to preserve the "remaining suitable [owl] habitat" in order to ensure that sufficient habitat exists to permit the barred owl, which is known to exclude NSOs, and the NSO to coexist. NA/Request at 43; see id. at 42-44. BLM is not aware of any barred owls in the Project area, since they have not been identified during NSO and great gray owl surveys. See EA at A-23; Response at 62. Appellants have not, however, demonstrated that logging the 725 acres in the Sale area will eliminate any owl habitat, promote competition and exclusion of NSOs from any habitat, or otherwise undermine the survival of the NSO, especially given the fact that BLM set aside acreage in the Project area, in order to promote recovery of the NSO. See, e.g., EA at 2-35, A-5.

18 JBLA 2012-155 NSO, thus portending little or no adverse impact to the NSO or its habitat. See EA at 3-47. BLM also concluded that, by thinning the forest stands, the Sale would promote the health and vigor of the remaining stands, thus resulting in the development: of a more complex, structurally diverse forest in the long term (greater than 10 years), which will ultimately benefit the NSO. See id. Appellants dispute this conclusion, but offer no convincing argument or supporting evidence to the contrary. See NA/Request at 41-42, 48 ("More open stands will promote regeneration").

In its EA, BLM referenced an earlier demographic analysis by Anthony and others in 2004 (updated 2006), which reported that the NSO population in the Study Area was "statistically stable[.]" EA at 3-41. It notes that the 2009 and even a more recent 2011 analysis do not substantially differ from the earlier 2004 (updated 2006) analysis, reporting a statistically stable NSO population in southern Oregon. See EA at 3-42 ("Forsman, et al[.], 2011 fin Population Demography of Northern Spotted Owls] detected a decline but lacked statistical precision to determine if it was real or an artifact of sampling"), A-22 to A-23; Decision (KS Wild) at 14-15. Appellants fail to demonstrate how the 2009 analysis of the Study Area directly contradicts BLM's consideration of the likely effects of the present Sale on the NSO, either within the Sale area or throughout its range in the Study Area, or otherwise establishes any error in the EA.

Sixth, appellants argue that BLM failed to disclose the likely effects of timber harvesting and related activity on the CHU designated by FWS in 1992. See NA/Request at 16, 39-42. They also argue that BLM failed to disclose the likely effects of timber harvesting and related activity on the CHU redesignated by FWS in 2008. See id. at 38-39. They note that, by doing so, BLM failed, in both instances, to assess the impacts of the Sale on habitat "critical to the survival and recovery [of the NSO][.j" Id. at 39.

FWS published notice of final rulemaking in the Federal Register on August 13, 2008 (73 Fed. Reg. 47326), revising its longstanding designation of critical habitat for the NSO, effective September 12, 2008. It reduced total designated critical habitat on Federal lands in California, Oregon, and Washington, from 6,887,000 to 5,312,300 acres, which included part of the Project area. See 73 Fed. Reg. at 47475 (Map of Critical Habitat for NSO (Southern Cascades Unit, Oregon and California)). More recently, FWS asked a Federal district court to vacate the revised 2008 critical habitat designation and remand for potential further rulemaking, but, while the request for remand was to be granted once a schedule for rulemaking was decided upon, the request for vacation was denied by the court in Carpenters Industrial Council v. Salazar, 734 F. Supp. 2d 126 (D.D.C. 2010). The 2008 critical habitat designation was to remain in effect, pending further rulemaking, which, so far as we are aware, has yet to occur. See id. at 138.

19 IBLA 2012-155 Coast DPS of the fisher as warranted for, but precluded from, listing under the ESA. See 76 Fed. Reg. 38504, 38505 (June 30, 2011); EA at 3-43.

BLM considered the likely effects of timber harvesting and related activity on the Pacific fisher. See EA at 3-39 to 3-41, 3-42 to 3-43, 3-50 to 3-51, A-4 to A-5, A-24. BLM had admittedly undertaken limited surveys with the aim of assessing the presence of the fisher in the Sale area, and thus focused on denning and resting habitat for the fisher, which was generally deemed to be synonymous with NSO NRF habitat in the Sale area. See EA at 3-43, A-4, A-5, A-24; Decision (CBD) at 4, 5 ("While every habitat component may not be available on every acre, it does not mean that a stand could not function as habitat [for the fisher] based on the habitat components present"), 6; Response at 13 ("Descriptions of the habitat components are based on a review of the available science regarding the biology of the species"), 14 ("[]FWS provided a similar description of fisher denning and resting habitat"), 15. BLM notes that using NSO NRF habitat "as a surrogate" for fisher denning and resting habitat "has been accepted by the courts as a reasonable practice[.]" Response at 14 (citing KS Wild v. BLM, 2007 WL 2688125 (D. Or. Sept. 10, 2007), at *6 ("It is within the BLM's discretion to use northern spotted owl habitat as a surrogate for fisher habitat"))- Since the Sale area contained suitable habitat and was near areas known to be used by fishers, fishers were reasonably assumed to use the Sale area. See EA at 3-43, A-4; Decision (CBD) at 3.

BLM determined that, as with the NSO, there were likely to be no adverse impacts to the fisher, given the retention of most of the denning and resting habitat, which originally totaled 2,734 acres of BLM-administered lands in the Analysis area and 456 acres in the Project area. See EA at 3-43, 3-50 to 3-51, A-4, A-5, A-24. It also determined that the Sale would not contribute to the need to list the fisher, since no fishers would be killed, no known denning sites or habitat features suitable as denning sites would be affected, affected habitat in the Sale area would still provide habitat components, adverse effects to habitat components would be short-lived, a substantial amount of unaffected habitat would remain in the Sale and surrounding areas, and fishers would, if necessary, simply disperse across their large home ranges. See EA at 3-50 to 3-51, A-4, A-5, A-24; FONSI at 7; Decision (KS Wild) at 4-5; Decision (CBD) at 6 ("Based on the design of the Cottonwood Timber Sale, structural components that make up fisher habitat would be retained throughout the project area Therefore, the current condition of fisher habitat and its availability in the analysis area would not be substantially changed by the decision for the Cottonwood Timber Sale." (emphasis added)), 7-8; Response at 11-12, 13, 16 ("[Ijf [fisher] habitat is maintained then effects to the fisher would not be significant"), 65.

It is undoubted that timber harvesting, as a general matter, threatens the fisher and its habitat. See 69 Fed. Reg. at 18778-79. However, BLM ultimately

21 IBLA 2012-155 concluded that the Sale presently at issue is not likely to bring about the further decline in the Pacific fisher DPS in the Sale area, or elsewhere throughout its range. See EA at 3-51, A-4. Appellants offer no expert opinion or supporting evidence regarding the likely impacts of the Sale on the fisher, or remotely establishing that such impacts are likely to be significant.

Eighth, appellants argue that BLM failed to adequately consider the likely effects of timber harvesting and related activity on migratory and resident birds: "[T]he land bird 'analysis' section [of the EA] contains no actual quantitative or qualitative information about population dynamics, reproductive success, nesting locations, or project impacts on land birds [.]" NA/Request at 44; see id. 17-18.

BLM considered the likely impacts of timber harvesting and related activity on migratory and resident birds. See EA at 3-45, 3-55 to 3-57, A-24 ("[Sjeasonal restrictions listed as Project Design Features for other resources would protect nesting birds for the majority of the nesting period"); Decision (KS Wild) at 18. It concluded that, while it might adversely impact individual migratory and resident birds and their habitat, the Sale, as a whole, was not likely to adversely affect the overall population in the Sale and surrounding areas, since a substantial amount of unaffected habitat would remain after the Sale. See EA at 3-56; Response at 33.

Appellants demand a level of specificity in the environmental analysis that would require BLM to quantify how and to what extent migratory and resident birds will be impacted. See NA/Request at 44. We are not convinced that BLM can accurately quantify such impacts or, further, that BLM's qualitative analysis is not sufficient to assess the likely impacts of the Sale, and thereby conclude that no impact is likely to be significant. Appellants offer no expert opinion or supporting evidence regarding the likely impacts of the Sale on migratory and resident birds, or remotely establishing that such impacts are likely to be significant.

Ninth, appellants argue that BLM failed to prepare an EIS in order to address the potential cumulative significant impacts on terrestrial and aquatic resource values of engaging in past, present, and reasonably foreseeable future logging, yarding, and road construction/use/maintenance in the Sale and surrounding areas. See NA/Request at 15, 17, 28-33, 41. They specifically point to the "Wildgal Dixie, Plateau Thin, Cold Onion, Howard Prairie and Sampson Cove timber sales," as well as livestock grazing on Federal lands and "adjacent private lands logging[.]" Id at 31.

BLM is plainly required by section 102(2) (C) of NEPA and its implementing regulations to consider the potential cumulative impacts of a proposed action. 40 C.F.R. § 1508.25; see, e.g., Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d

22 IBLA 2012-155

800, 809-10 (9th Cir. 1999); Howard B. Keck, Jr., 124 IBLA 44, 53 (1992), affdy Keck v. Hastey, No. S92-1670-WBS-PAN (E.D. Cal. Oct. 4, 1993). Such impacts are those that result from the incremental impact of the proposed action "when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7.

None of the 5 timber sales referenced by appellants appears to be a reasonably foreseeable future timber sale in the Cottonwood Cumulative Effects Analysis Area. See Response at 62 ("No projects have been proposed in the Cottonwood Analysis Area beyond those already discussed in the Cottonwood Forest Management Project EA"); EA at 3-25 ("Other Federal forest management projects are planned within the larger Jenny Creek Watershed, but not within the analysis area"). In addition, all seem to have been approved before BLM prepared the EA at issue in July/August 2011, and issued the DR and FONSI in August 2011. It is also unclear whether any of these approved sales are ongoing. Nonetheless, BLM is certainly required to address whether, when combined with the potential effects of the currently proposed activity, the lingering effects of any past activities are likely to significantly affect the human environment. However, appellants offer no convincing argument or supporting evidence that the effects of any of these sales have lingered, or that such effects are likely, when combined with the potential effects of the Timber Sale at issue, to significantly affect the human environment. Nor have appellants demonstrated that any such effects are likely to be detectable at the level of the 134,348-acre Jenny Creek 5th field watershed, or even lesser watersheds.

In particular, when the Cottonwood Timber Sale was formally proposed on October 29, 2010, BLM had already considered the environmental ramifications of and approved the nearby Sampson Cove timber sale, with issuance of an EA on July 9, 2010, and a DR/FONSI on August 12, 2010. Thus, when BLM prepared the EA at issue, it briefly considered the effects of the Sampson Cove sale in conjunction with the Cottonwood sale. See EA at 3-2, 3-25, 3-57, 3-97, A-16, A-23. BLM notes that it did not err in failing to fully consider the potential cumulative effects to soils, vegetation, water, and fish and aquatic habitat from the Cottonwood and Sampson Cove timber sales, since there were not likely to be any such effects, because the sales would take place in different 5th field watersheds (Jenny Creek (Cottonwood); and Bear Creek (Sampson Cove)). See EA at 3-2, 3-25; Response at 17. BLM also notes that there are not likely to be any cumulative effects to terrestrial wildlife from the Cottonwood and Sampson Cove sales, or even the Wildgal Dixie, Plateau Thin, Cold Onion, and Howard Prairie sales, since all of these sales are outside the area where cumulative effects are likely to be attributable to the Cottonwood sale. See EA at A-16; Response at 48. It explains that, even though the home ranges of NSOs, Pacific fishers, and other old-growth/late-successional dependent wildlife overlap the

23 1BLA 2012-155 Cottonwood, Sampson, and other sale areas, there is not likely to be a cumulative impact to such species attributable to the Cottonwood sale, since it provides for retaining suitable habitat for these species. See EA at 3-57, A-16, A-27 ("[Fjorest stands within the Cottonwood Forest Management Project and analysis area would continue to function at their current capacity for providing for landscape-scale habitat- connectivity1'); Decision (CBD) at 8-9.

Otherwise, BLM fully considered the potential cumulative impacts of the Timber Sale, concluding that they were unlikely to be significant, since the effects of past harvesting, which affected the entirety of the Sale area, have ameliorated, and the effects of present and reasonably foreseeable future harvesting would leave large areas of land in the Sale and surrounding areas undisturbed, thus avoiding or minimizing any adverse consequences. See EA at 3-1 to 3-2, 3-12, 3-19, 3-21 to 3-22, 3-25 to 3-26, 3-31, 3-34, 3-56 to 3-57, 3-86, 3-96 to 3-97, A-15 to A-16; FONSI at 6-7.

Appellants have not identified any likely cumulative impact that was overlooked by BLM, or the nature and significance of which was not adequately addressed by BLM, in the EA and the RMP Final EIS and NFP Final Supplemental ETS, which together afforded the appropriate site-specific level of analysis. They mostly generally state that the WA identifies the "many severe cumulative impacts" likely to arise as a consequence of the current Sale. NA/Request at 32. However, they do not specifically identify such impacts, or offer any evidence that the proposed construction of 1.75 miles of temporary and permanent road, harvesting of 19,181 trees from 725 acres, and related activity, in conjunction with the Timber Sale, is likely, together with past, present, and reasonably foreseeable future logging and associated road construction, to have any cumulative or synergistic effect on the environment that BLM was required to consider. See, e.g., Umpqua Watersheds, Inc., 158 IBLA 62, 73 (2002); compare Klamath Siskvyou Wildlands Center, 157 IBLA 332, 339-41 (2002) with Klamath-Siskiyou Wildlands Center v. BLM, 387 F.3d 989, 996 (9th Cir. 2004) ("[Tjhe potential for ... serious cumulative impacts is apparent here, such that the subject requires more discussion than these EAs provide"), 997. Nor have they offered any evidence that any cumulative impact is likely to be significant.

Appellants completely fail to offer any argument or supporting evidence demonstrating that, owing to geographic proximity or any other factor, there is likely to be an interaction between the Timber Sale and any of the past, present, and/or reasonably foreseeable future projects or activities that might result in a specific cumulative impact, which BLM failed to address. Wyoming Outdoor Council, 147 IBLA 105, 109 (1998). We have long held that, in order to demonstrate a deficiency in BLM's cumulative impacts analysis, "it is not sufficient merely to note the existence of other . . . projects . . . without concretely identifying the adverse

24 IBLA 2012-155 impacts caused by such other . . . projects to which the action being scrutinized will add." National Wildlife Federation, 150 IBLA 385, 399 (1999).

Tenth, appellants generally assert that BLM's failure to acknowledge and address the contrary scientific opinion and supporting evidence, identified by members of the public during the preliminary scoping period and the 30-day public comment period on the EA, concerning likely environmental impacts of the Sale, violated the bask procedural dictates of section 102(2)(C) of NEPA. See, e.g., NA/Request at 7-9, 10, 11-12, 17, 22-23, 49-52. They state that "BLM has elected to simply ignore the existence of science th[at] conflicts with its logging agenda," despite the citations, offered by the public, to the scientific literature. Id. at 9.

BLM clearly considered the public comments, including the cited scientific literature, and, while not explicitly addressed in the DR/FONSI, they have been sufficiently addressed by BLM, in its response to comments, protest denial decisions, and response to the appeal. See, e.g., DR at 8, 9-10; Response at 9-10, 11, 16, 29-30, 36, 69. Further, it is not enough to cite to general scientific literature without making any effort to translate such scientific information to the particular proposed action and the circumstances under which it will occur, or otherwise demonstrate its relevance to the environmental consequences of that action. Such citation does not demonstrate that BLM failed to properly comprehend the expected consequences of the Sale, or to fully appreciate their significance, and thus does not establish a violation of NEPA. Biodiversity Conservation Alliance, 171 IBLA 218, 228-29 (2007); Biodiversity Conservation Alliance, 169 IBLA 321, 343 (2006). Appellants have yet to explain how the cited contrary scientific opinion and supporting evidence establishes any error or deficiency in any aspect of BLM's environmental analysis.

Finally, appellants contend that BLM impermissibly narrowed the purpose of the proposed action, and thus failed to consider reasonable alternatives to the proposed Timber Sale in the EA. See NA/Request at 14, 25-28. They assert that, rather than considering only a single action alternative, BLM should have considered alternatives that reduced the proposed area of logging, by precluding logging "in the Greensprings Mountain wild area," "in units proposed for addition to the Cascade-Siskiyou National Monument," in "designated 1992 (or 2008) NSO critical habitat," and "within occupied nest 'core' areas [for the NSO]," and that would remove any mistletoe-infected trees, occur during the nesting period for migratory and resident birds, and involve road construction in the Jenny Creek Watershed. Id. at 14; see id. at 24, 44, 47.

BLM is required by section 102(2) (E) of NEPA, 42 U.S.C. § 4332(2) (E) (2006), in the case of an EA, to consider "appropriate alternatives" to the proposed action, which will accomplish its intended purpose, are technically and economically

25 IBLA 2012-155 feasible, and have a lesser impact. Headwaters, Inc. v. BLM, 914 F.2d 1174, 1180-81 (9th Cir. 1990); Bales Ranch, Inc., 151 IBLA at 363. An EA must generally include a "brief discussionf] , . . of alternatives!.]" 40 C.F.R. § 1508.9(b). Appellants specifically argue that BLM violated the requirement to rigorously explore and objectively evaluate all reasonable alternatives. See NA/Request at 26. That requirement is applicable in the case of EISs, but not EAs, being found in 40 C.F.R. § 1502.14, which generally governs the consideration of "[alternatives including the proposed action" that is said to be "the heart of the environmental impact statement." See Klamath-Siskiyou Wildlands Center, 153 IBLA 110, 118 n.7 (2000) ("[40 C.F.R. § 1502.14] applies to agency consideration of alternatives in an EIS, and is not applicable to an EA").

BLM admittedly considered, in the EA, only the proposed timber harvesting and related activity in the Sale area, and not undertaking such activity.21 However, as the court stated in Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1246 (9th Cir. 2005), approving consideration, in an EA, only of the proposed action and a no action alternative: "[NEPA and its implementing regulations] do[] not impose a numerical floor on alternatives to be considered." Rather, the concern is with "the substance of the alternatives [.]" Id. In this regard, we think that BLM satisfied section 102(2) (E) of NEPA, because it considered the likely effects of either logging or not logging the entire Sale area, or the effects '"at either end of the spectrum.'" Biodiversity Conservation Alliance, 171 IBLA at 238 (quoting In Re Blackeye Again Timber Sale, 98 IBLA 108, 111 (1987)). In the middle lay all of the alternatives for logging only portions of the Sale area, or that restricted the timing or means of logging the Sale area, whose likely environmental effects were already forecast and which BLM was free to choose, in order to advance an appropriate' conservation or other objective. See 98 IBLA at 111 («[l]t was not necessary for BLM to discuss the myriad of alternatives which could be devised, each resulting in an incremental change in the overall impact of the sale").

21 BLM specifically declined to consider the proposed alternatives of avoiding timber harvesting in areas proposed by citizens' groups for expansion of the Cascade Siskiyou National Monument and for inclusion in the Greensprings portion of the proposed South Cascades Wilderness Area, and undertaking no new road construction, since the lands at issue are principally designated for timber harvesting under the RMP and NFP and have been adjudged to lack wilderness characteristics, and the new roads are necessary in order to render harvesting economically feasible. See EA at 1-9 to 1-10, 2-35 to 2-36, 2-37, A-3 to A-4; FONSI at 4, 6; DR at 8; Decision (SMWC) at 9-11.

26 JBLA 2012-155 We are, therefore, not persuaded that appellants have established that BLM's decision to approve the Timber Sale violated the environmental review requirements of section 102(2) (C) of NEPA.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the appeal is dismissed to the extent it was brought on behalf of SMWC, CWP, OW, and CBD; the decision appealed from is affirmed; and the petition for a stay is denied as moot.

I concur: