T16S R18E S8 Resolution NEPA register number DOI‐BLM‐ORWA‐P000‐2017‐0046‐EA
U.S. Department of the Interior Bureau of Land Management, Prineville District 3050 NE Third Street, Prineville OR 97754 https://eplanning.blm.gov/epl‐front‐office/eplanning/nepa/nepa_register.do
May 2018
The BLM is requesting written comments on this environmental assessment (EA), due in writing at the Prineville District office by June 25, 2018. Address your letter to Jeff Kitchens, with T16S R18E S8 Resolution on the envelope or in the subject line, and send or deliver to the street address above, email [email protected] or FAX 541‐416‐6798. Please make your comments as specific as possible:
Identify a different way to meet the purpose of the project. Provide new information about the alternatives or the analysis. Point out a specific flaw in the analysis. Suggest alternate methodologies and the reason(s) why they should be used. Make factual corrections. Identify a different source of credible research, which, if used in the analysis, could result in different effects.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you have questions, contact the Prineville District Office at the above email address or phone 541‐416‐6700.
Table of Contents
Chapter 1 Introduction ...... 4 Location and background ...... 4 Purpose and need ...... 4 Decision to be made ...... 5 Scoping and issues ...... 6
Chapter 2 Alternatives ...... 9 Introduction ...... 9 Alternatives considered in detail ...... 9 Alternative 1 – No Action ...... 9 Alternative 2 – Disposal of one acre of public land ...... 10 Alternative 3 – Proposed Action, Disposal of 17 acres of public land ...... 12 Alternative 4 – Retain public land in public ownership and issue a non‐renewable non‐transferrable 30‐year occupancy lease ...... 13 Alternative 5 – Retain public land in public ownership and require removal of structures and some underground improvements ...... 14 Alternatives considered but not analyzed in detail ...... 15 Other ongoing and future actions ...... 15 Conformance of alternatives with policy ...... 16
Chapter 3 Affected Environment and Environmental Effects ...... 21 Issue: How would the access road, house, and other structures affect visual resources? ...... 21 Affected environment ...... 21 Assumptions and methodology ...... 21 Effects...... 23 Cumulative effects ...... 24 Issue: What effect would the alternatives have on mule deer and elk? ...... 25 Affected environment ...... 25 Assumptions and methodology ...... 26 Effects...... 28 Cumulative effects ...... 30 Issue: What effect would this project have on nesting Golden Eagles? ...... 32 Affected environment ...... 32 Assumptions and methodology ...... 32 Effects...... 34 Cumulative effects ...... 37 Chapter 4 Public and other involvement ...... 37
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Tribes, agencies, organizations, and individuals contacted ...... 37 List of preparers ...... 37
Appendix A – Wildlife in the project area ...... 39
Appendix B – Design features ...... 42
Appendix C – References cited in EA or used in analysis ...... 44
Appendix D – Timeline ...... 46
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Chapter 1 Introduction
Location and background In 2008, a private citizen contacted the Prineville District BLM regarding a house and associated structures that appeared to be inadvertently located on public land next to private land he and another individual were purchasing about 20 miles southeast of Prineville within the southeast ¼ of the northwest ¼ of Section 8, Township 16 South, Range 18 East (SW¼ NW¼ sec. 8, T. 16 S., R. 18 E.). The private citizen (hereafter called Landowner A) said his purchase of the private land included the referenced house and associated structures as part of the sale. In July 2008 the BLM completed a cadastral survey of the property and verified the house was indeed on public land. The BLM began working to resolve the trespass and complete several administrative processes later that year. Appendix D summarizes the history of the case, including all relevant and key facts from 1988 to today.
In addition to the house, the BLM discovered that associated unauthorized structures on public land also included an irrigated lawn, graveled parking, septic tank and drain field, windmill, solar panels, barn and corrals, fencing, several small sheds/greenhouses, dryland pasture, buried utility lines (telephone, power, water), and a 500‐foot long motor‐vehicle route between the house and a route to the north. The trespass also included use of an existing BLM route for access from the highway to the house, of which about one mile crosses public land. Details on the extent of each unauthorized structure, and the use of the existing access route, are provided in the Alternatives section of this EA (Chapter 2).
Purpose and need The project is needed to resolve the non‐willful trespass and minimize impacts to public resources. The purpose comes from the 1989 Brothers La Pine Resource Management Plan (RMP) which states one of the purposes of the Prineville District’s Lands Program is trespass abatement (RMP page 29).
The Code of Federal Regulations at 43 CFR § 2808.10 provide, “(a) Trespass is using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization. Trespass is a prohibited act. (b) Trespass includes acts or omissions causing unnecessary or undue degradation to the public lands or their resources...”
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Decision to be made Following this EA, the BLM will make a decision to either dispose of (sell)1 the public land associated with the structures; require removal of the structures and reclamation of disturbed areas on public land; or take no action to resolve the trespass. Taking no action to resolve the non‐willful trespass would be inconsistent with federal regulations including 43 CFR § 2808.10(a) cited above.
Units (e.g., miles, acres) for the unauthorized structures/uses are presented in Chapter 2.
Disposal: If the BLM decides to dispose of public land, it would make additional decisions in the same Decision Record regarding:
The amount of public land that would be sold (a minimal amount around the house, the yard and landscaped areas directly adjacent to the house, the graveled parking area around the house, the septic tank and drain field, and the solar panels and associated electrical lines; or a larger area encompassing some of the other unauthorized structures and uses). Whether to issue renewable 30‐year right‐of‐way grants2 (ROW) for use and maintenance of structures that aren’t on the land transferred to private ownership. These structures might include (depending on the alternative) the barn, corrals, fences, access road from the highway to the house, and utilities (windmill, septic drain field, and buried lines for power, water, and phone). Whether to require removal of structures not covered by the ROW grants, and reclamation of disturbed areas on the public land that isn’t transferred to private ownership (e.g., dryland pastures and the motor‐vehicle route from the house to the route to the north). How to mitigate for the loss of wildlife habitat, such as by improving habitat in other nearby areas.
Removal: If the BLM decides to require removal of all structures and reclamation of disturbed areas, the BLM would make additional decisions in the same Decision Record regarding:
The period of time in which removal would occur (e.g., six months versus 30 years).
1 The Federal Land Policy and Management Act (43 U.S.C. 1713(f)) provides that disposal of public lands shall be conducted under procedures established by the Secretary of the Interior. Disposal can be accomplished via sale; transfer to other public entities for recreation and public purposes; or as part of an exchange. Three methods of sale are provided for in 43 CFR § 2711.3: competitive; modified competitive; and direct (non‐competitive). 2 The BLM would issue ROWs or leases to the person(s) that purchases the public land the house is on, and to the phone company for the buried phone line.
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Whether to grant a non‐renewable, non‐transferrable 30‐year lease for the occupancy, use, repair, and maintenance of the house, the yard and landscaped areas directly adjacent to the house, the graveled parking area around the house, the septic tank and drain field, and solar panels and associated electrical lines. Whether to issue one or more non‐renewable non‐transferrable ROW grants to allow temporary use and maintenance of some or all of the other structures and uses.
If BLM were to issue a lease and/or ROW grant, the BLM would include legally enforceable terms and conditions (stipulations) which describe the specific rights and accompanying responsibilities granted to the holder, and those retained by the United States. Details on all of the proposed decisions, including the lease or ROW grant stipulations, are in Chapter 2.
Scoping and issues The BLM received two letters from the public during the 30‐day scoping period that started June 30, 2017. Both letters suggested the EA include an alternative where the BLM would exchange the public land involved for private land, and an alternative where the BLM would sell the public land to the person who is occupying the unauthorized house. The BLM also received input from Crook County, the Oregon Department of Fish & Wildlife (ODFW), and the US Fish & Wildlife Service (USFWS). The BLM has and will continue to consult with American Indian tribes regarding potential impacts to cultural resources and tribal rights.
The BLM Deschutes Field Office Manager convened an interdisciplinary team of specialists to consider all input received and other available information (e.g., botanical evaluations of the site) and determine which issues and alternatives warrant detailed consideration in this EA. The BLM considered all of the suggestions and associated issues in the Alternatives section in Chapter 2 of this EA.
Issues considered in detail in Chapter 3: 1. How would the access road, house, and other structures affect visual resources? 2. What effect would the alternatives have on mule deer and elk? 3. What effect would this project have on nesting Golden Eagles?
The BLM considered several other issues during development of the EA, but did not analyze them in detail for a number of reasons, as summarized below. Additional details are in the project record and available from the BLM upon request.
Issues not considered in detail in Chapter 3: 1. The BLM considered whether cultural resources could be impacted by the project. They could be impacted in several ways:
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a. By private actions after the land is disposed of and no longer in federal ownership. i. The BLM surveyed the area and consulted with tribes, and designed the alternatives such that there are no cultural resources on public land proposed for disposal in any of the alternatives. Therefore, there would be no impact, and this issue is not considered in detail in this EA. b. During removal of the house and other structures. i. The BLM requires the presence of cultural monitors during removal of trespass structures to ensure identification of any cultural resources that might be present. If they are identified, the BLM would consult with the State Historic Preservation Office (SHPO) to ensure there would be no adverse effect. If there is potential for impacts, additional analysis and approval would be required. c. During maintenance or repair of improvements authorized under ROWs. i. Prior to authorizing these ROWs/lease, the BLM would survey for cultural resources, consult with the SHPO, and if necessary modify the ROW/lease route so no cultural resources/historic properties would be impacted by future maintenance or repair. Additionally, the BLM would include a stipulation on any ROW/lease stating, “Prior to any maintenance, the holder would contact the BLM to conduct a cultural resource overview, survey, and consultation with the State Historic Preservation Office to ensure that historic properties would not be adversely effected.” 2. The BLM considered whether botanical resources could be impacted by project actions. a. The BLM conducted surveys for botanical resources, such as Special Status plants, including those on BLM lists as well as those designated as threatened or endangered in Oregon. No Special Status plant species were observed. Therefore, the BLM does not expect the actions would have an effect on botanical resources, and the issue is not considered in detail in this EA. 3. The BLM considered whether recreation could be impacted by the project. a. There is currently little public use on the parcel. The road from the highway to the parcel crosses private land; the public does not have access across this private land without permission from the landowner. Walk in access would continue to be available. None of the actions proposed in any of the alternatives would affect public access or recreational opportunities, including hunting access. Therefore, the issue is not considered in detail in this EA. 4. The BLM considered whether wildlife could be impacted by the project. a. The BLM completed wildlife surveys, habitat inventory and assessment, literature searches, and other research to determine which wildlife have habitat
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and are likely to be present in the project area, and how they could be impacted by each alternative. A summary of this is presented in Appendix A. Mule deer, elk, and Golden Eagle habitat would be affected and are addressed in detail in Chapter 3. Neotropical migratory birds, Greater Sage‐grouse, and gray wolf would not be affected, as described below. b. The project area provides habitat for and is occupied by neotropical migratory birds. The actions proposed in the alternatives could affect neotropical migratory birds by disrupting them during nesting and brood rearing season, by removing trees that contain their nests. The same seasonal timing restriction that would protect Golden Eagles would also protect neotropical migrants. Additionally, birds would be protected by the design feature that prohibits tree felling during nesting and brood rearing season if new nests are found. The potential for birds to be injured or killed by collision with guy wires on the windmill would be reduced by installation of flight diverters on the guy wires. A list of all stipulations and seasonal restrictions that would be applied to limit effects is in Appendix B, Design Features. Because effects on neotropical migratory birds are avoided, the issue is not considered in detail in this EA. c. The project area is located in the northwestern‐most contiguous portion of the Greater Sage‐grouse (Centrocercus urophasianus) habitat. The BLM reviewed the data used in that mapping to determine if it was accurate at the site/project level. The BLM considered the ecological site potential of the project area, assessed habitat suitability indicators, and consulted with the local ODFW and USFWS staff. It determined the project area lacks essential habitat requirements for vertical and horizontal cover, and would have lacked these requirements before the unauthorized structures and uses occurred. Actions proposed in this EA would therefore not have an effect on sage‐grouse or their habitat. Consequently, the issue is not considered in detail in this EA. d. There are no known areas of gray wolf (Canis lupus, an endangered species protected under the Endangered Species Act) activity or territories in the project area. If any wolves were to enter the project area, they would most likely be transitory. Additionally, the structure of concern (the house and activity associated with the house) has been in place for over 20 years. For these reasons, none of the alternatives would have an effect on gray wolves. Therefore, the BLM does not address this issue detail in this EA.
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Chapter 2 Alternatives
Introduction All acreage and mileage figures in this EA are best estimates based on available information and data, even when this is not noted in the text. For example, the number of acres to be disposed of in Alternative 3 is listed as 17, not as “approximately” 17. The actual number of acres would be determined during implementation, if that alternative is selected. The BLM used approximate numbers to enable analysis of effects based on currently available information. Actual acreage will be determined by survey as needed, depending on the alternative selected. If the actual amounts are found to vary from the estimates, the BLM will review the analysis to ensure effects were accurately captured. If they were not, the BLM will prepare supplemental analysis and public involvement as required by the National Environmental Policy Act (NEPA).
The actions BLM is considering in this EA are summarized in Table 1.
Alternatives considered in detail
Alternative 1 – No Action In this alternative, the BLM would take no action. The land would remain in public ownership, the unauthorized structures would remain on public land, and unauthorized use of the structures would continue. The BLM would not issue leases or ROW grants to authorize the uses. The No Action alternative is the only alternative that does not respond to the purpose and need for the action. It provides a baseline for comparison of environmental effects (including cumulative effects) and demonstrates the consequences of not meeting the need for the action. While BLM is required to display the effects of no action, taking no action to resolve the trespass would be inconsistent with BLM policy described in Chapter 1.
Table 1. Summary of alternatives. Alt 1 – No Alt 2 – Alt 3 – Alt 4 – Retain Alt 5 – Retain action Dispose of 1 Dispose of land but land, require acre 17 acres authorize uses removal and temporarily reclamation House, yard, Do not Dispose of Dispose of Authorize via Remove, graveled parking, dispose of land under land under lease for 30 reclaim septic tank, drain land, these these years, then field, greenhouse, authorize remove, shed(s), and solar uses, or reclaim panels, + require associated electric removal of line structures.
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Windmill and Remove Dispose of Remove, Remove, associated buried aboveground land under reclaim reclaim “ electric line components, these reclaim Waterline from Authorize via Authorize Authorize use Remove tank/spring on ROW via ROW for 30 years, aboveground private land the then remove components “ portions aboveground not components included in disposal Waterline from Remove Authorize Remove Remove pond on private aboveground via ROW aboveground aboveground land components, the components components “ reclaim portions not included in disposal Phone line spur to Authorize via Authorize Authorize use Remove house from ROW via ROW for 30 years, aboveground existing ROW the then remove components “ portions aboveground not components included in disposal Access on road Authorize use Authorize Authorize use Do not issue from highway to via ROW use via for 30 years, ROW. Road house ROW then do not would remain. “ issue ROW. Road would remain. Barn and corrals Remove, Dispose of Remove, Remove, “ reclaim land under reclaim reclaim these Dryland pastures Reclaim Reclaim Reclaim on Reclaim and unauthorized portions on portions on areas outside 1 vehicle route “ public land public land acre lease for 30 years, then reclaim all. Compensation for No Yes, treat Yes, thin No Not applicable loss of wildlife weeds on 2 juniper on habitat acres 34 acres
Alternative 2 – Disposal of one acre of public land In this alternative, the BLM would dispose of (sell) a minimal amount of public land, by selling just those areas where the house, yard, graveled parking, septic tank and drain field, and solar panels and associated electrical lines occur, and issuing ROWs for access and essential utilities.
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The land sale would include any line‐setbacks required by Crook County. The total would be approximately one acre. See Map 1. The BLM would require the purchaser to clearly mark the boundary of public and private land, to prevent future encroachment onto public land.
The BLM would issue a 30‐year renewable ROW to the purchaser to allow use and maintenance of the existing access road from the highway to the house (about one mile crosses public land), the existing buried waterline from the cistern on private land to the house area (about ¼ mile on public land) (used for potable water in the house)3, and the windmill and buried powerline from the windmill to the house (only 30 feet or so). To minimize effects to scenic quality, the access road ROW would be for the present alignment (more or less, but potentially with slight modifications to avoid effects on cultural resources as noted in Appendix B), and with a native or gravel surface, not paved.
The BLM would not issue a ROW for the existing buried water line from the pond on private land, which supplies water for the lawn, decorative ponds in the lawn, and livestock water troughs near the barn and corrals.4 Buried waterline not included in the ROW would be left in place. The BLM would require removal, within six months, of aboveground features of this waterline that are on public land.
The BLM would require the purchaser to remove all other unauthorized above‐ground structures (including but not limited to the barn and other outbuildings, fences not associated with a grazing permit, equipment, and debris) and reclaim areas disturbed by unauthorized activity to a natural state. Disturbed areas that would be reclaimed include 16 acres affected by structures and dryland pasture, and a 500‐foot long vehicle route going from the house to a route to the north. Reclamation would include recontouring soil, seeding or planting with native vegetation, and controlling invasive plants, as further detailed in Appendix B.
The BLM would also amend the phone company’s existing ROW for buried phone line (which covers a section that passes near the unauthorized house) to cover the approximately 940 feet from the existing ROW to the house. This 940‐foot section was not previously authorized.
The BLM would require the purchaser to treat invasive and noxious plant species (primarily Medusahead rye) on two acres in the NE¼ SE¼ sec. 6, T. 16 S., R. 18 E to compensate for the loss of one acre of mule deer and elk winter range habitat. This treatment would be required as often as necessary to control the invasive plants, for the life of the ROW. See the mule deer and elk section in Chapter 3 (page 25) for an explanation of why this area was selected and why two acres were selected. See Appendix B for details on how the treatment would be applied.
3 If the purchaser owns the cistern on private land, or has permission from the cistern owner for its use. 4 The purchaser would need to use another water source for these features, if they are retained.
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The BLM would apply all timing restrictions and other appropriate design features listed in Appendix B to all actions in the ROWs to the purchaser and the phone company. One of these stipulations is that surface‐disturbing or disruptive activities (e.g., road maintenance, structure removal, juniper thinning) would not be allowed December 1 to April 30 to protect wintering deer and elk. Other stipulations would be that the utility and access route locations would be modifies as needed to avoid impacts to cultural resources.
See Appendix B for a full list of stipulations/design features.
Alternative 3 – Proposed Action, Disposal of 17 acres of public land In this alternative, the BLM would dispose of (sell) the public land under most of the unauthorized structures and dryland fields, totaling 17 acres. This would include the land under the house, lawn, landscaping, graveled parking, septic tank and drain field, barn, corrals, sheds, greenhouses, and solar panels and windmill as well as associated electrical lines. Most of the buried phone line and waterlines would also be on the land sold; the BLM would issue ROWs for those portions not included in the sale (described below).
As in Alternative 2, the land sale would include any line‐setbacks required by Crook County. The total would be about 17 acres as shown on Map 1. The BLM would require the purchaser to clearly mark the boundary of public and private land, to prevent future encroachment onto public land.
The BLM would issue one or more ROWs to the purchaser to allow use and maintenance of the existing access road from the highway to the house (about one mile crosses public land), and the portions of the two buried waterlines that are on public land (about ½ mile for the two lines). To minimize effects to scenic quality, the access road ROW would follow the present alignment more or less, and with a native or gravel surface, not paved. It would potentially have slight modifications to avoid effects on cultural resources if they are found (as noted in Appendix B). The BLM would also amend the phone company’s existing ROW for unauthorized buried phone line to the unauthorized structure (about 940 feet).
The BLM would require the purchaser to thin juniper on 34 acres (within the SE¼, sec. 6, T. 16 S., R. 18 E.) to compensate for loss of mule deer and elk habitat. The BLM chose this location for several reasons:
It is near the project area where effects would occur. It is primarily in a south facing drainage that would promote the growth of antelope bitterbrush (Purshia tridentata), an important species for mule deer and elk habitat. Cutting juniper would release water back into the mesic area between treatment areas.
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It would complement previous juniper treatments in the area (on both BLM and neighboring private sections). The area does not have wilderness characteristics, and the area has been previously surveyed for cultural significance.
All juniper in the identified treatment areas that don’t exhibit “old growth” characteristics (see definition in Appendix B) would be cut manually with chainsaw or handsaw and left in the direction they fall. See Appendix B for details on how the treatment would be applied. This treatment would be repeated as often as necessary to ensure juniper do not reinvade, for the life of the ROW. See the mule deer and elk section in Chapter 3 (page 26) for an explanation of why this area was selected and why 34 acres were selected.
The BLM would apply all timing restrictions and other appropriate design features listed in Appendix B to all actions in the ROWs to the purchaser and the phone company (including reclamation, juniper thinning, et cetera). These include modification of utility and access route locations as needed to avoid impacts to cultural resources. See Appendix B for a full list of stipulations/design features.
Alternative 4 – Retain public land in public ownership and issue a non‐renewable non‐ transferrable 30‐year occupancy lease In this alternative, the BLM would retain all the public land impacted by the trespass in public ownership and issue a lease to Landowner A for the unauthorized structures. The lease would be for the land beneath the house in order to allow for legal occupancy, use, repair, and maintenance of the house; the land that comprises the yard and landscaped areas directly adjacent to the house; and the land where the driveway, the septic tank and drain field, and the solar panels and associated electrical lines are located. The leased areas of public land would all total approximately one acre. The lease would be issued for a 30‐year term and would be non‐ renewable and non‐transferable.
In addition to the lease, BLM would issue one or more non‐renewable ROWs for the use and maintenance of the access road from the highway to the house, and use but not maintenance of the buried waterlines to the house and yard. If the buried lines fail, the lessee could apply to BLM to install above ground waterlines and an above ground cistern with a small shed around it.
The BLM would issue a non‐renewable 30‐year ROW to the phone company for the unauthorized buried phone line, approximately 940 feet. The BLM would include a stipulation in the ROW requiring the holder to remove any above ground component of the phone line when the ROW expires. If the unauthorized structures on public land are destroyed or removed sooner than 30 years, the ROW would expire at that time.
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Prior to authorizing the lease and ROWs, the BLM would survey for cultural resources, consult with the SHPO, and if necessary modify the routes so no cultural resources/historic properties would be impacted by future maintenance or repair. The lease and ROWs would contain a stipulation stating, “Prior to any maintenance, the lessee or grant holder would contact the BLM to conduct a cultural resource overview, survey, and consultation with the State Historic Preservation Office to ensure that historic properties would not be adversely affected.” To minimize effects to scenic quality, the access road ROW would be for the present alignment and with a native or gravel surface, not paved. Also, the BLM would require the lessee to re‐stain the exterior of the house (log and wood plank siding) be a darker color that more closely matches the background vegetation, and paint the roof a darker color to reduce reflectivity and color contrast with the background vegetation. All timing restrictions and other appropriate design features listed in Appendix B would be applied to all actions (removal, reclamation, lease and ROW stipulations).
On the area outside this one acre around the house, the BLM would require the lease holder to immediately (within six months) remove all other above‐ground structures (including but not limited to outbuildings, fences not associated with a grazing permit, equipment, debris, et cetera) and reclaim disturbed areas to a natural state. Disturbed areas include about 16 acres of vehicle routes and dryland pasture. Upon expiration of the lease, the lessee would be required to remove the house and all other associated above ground structures, and reclaim the disturbed areas. Reclamation would be as described in other alternatives, and would include all timing restrictions and other appropriate design features listed in Appendix B.
Alternative 5 – Retain public land in public ownership and require removal of structures and some underground improvements In this alternative, the BLM would retain all of the public land impacted by the trespass in public ownership, and require Landowner A to, within six months:
Remove all above ground unauthorized structures on public land (leave buried lines, but remove and properly terminate aboveground connections). Above‐ground structures include but are not limited to: the house, solar panels, windmill, barn, corrals, sheds/greenhouses, fences not associated with a grazing permit, equipment, debris, and any above ground component of the existing unauthorized utilities. Remove the buried septic tank and decommission the drain field. Reclaim all disturbed areas (about 17 acres) on public land to a natural state. Disturbed areas include the area formerly occupied by the above ground structures, plus the yard, graveled parking areas, septic leach field, unauthorized dryland pastures, and a 500‐foot long unauthorized vehicle route going from the house to a route to the north. Reclamation procedures are described in Appendix B.
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All timing restrictions and other appropriate design features listed in Appendix B would apply as these actions are taken (e.g., don’t allow construction and other surface disturbing and disruptive activities from December 1 to April 30 each year, to protect wildlife).
Alternatives considered but not analyzed in detail During scoping, two members of the public proposed that the BLM exchange public land involved for other land held by Landowner A. As mentioned in Appendix D (Timeline) this alternative was considered a couple of times since 2013. However, the BLM and Landowner A have been unable to reach a mutual agreement on an exchange. Since an agreement is required for a land exchange to be a feasible, this alternative was not analyzed in further detail (see 43 CFR 2200.0‐6 (a), “Land exchanges are discretionary, voluntary real estate transactions between the Federal and non‐Federal parties.”).
Other ongoing and future actions Future actions the BLM plans to consider and/or take in the project area that are not part of the -- Alternatives include thinning juniper on about 13,000 acres, permitting livestock grazing in the McClelland Allotment, and issuing an access ROW to an existing house on private land northeast of the unauthorized house. Future actions likely to occur on private land in the project area include residential and ranching development. When present and reasonably foreseeable future actions can potentially have a cumulatively significant impact together with the actions proposed in the alternatives, they “should be discussed” in the same NEPA document (40 CFR 1508.25(a)(2)). All of these actions would occur regardless of alternative. Each are described briefly, below.
1. Juniper thinning. The BLM analyzed the proposed juniper thinning in the High Desert Shrub Steppe Restoration EA (DOI‐BLM‐ORWA‐P000‐2008‐0157‐EA) and issued a Decision in 2011 to approve about 13,000 acres per year in a 616,600 acre project area. The current EA is within that project area. The effects of this action would combine with those of the current project to produce a cumulative effect on mule deer and elk (see that section in Chapter 2). 2. Livestock grazing. The unauthorized structures are within the East McClellan Pasture in the McClellan Allotment. The pasture contains about 180 acres of public land and 40 acres of private land. The BLM permits livestock grazing in the allotment from April 1 to November 30 each year, rotated between the five pastures in the allotment. The effects of livestock grazing would not affect resources impacted by actions proposed in the current EA; therefore there would be no cumulative impact. 3. Access ROW. There is a need for a ROW for access on an existing road from Highway 380 to a house on private land about ½ mile NE of the unauthorized house. While BLM does not currently have an application for this, it expects one soon. This action is likely
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to be considered regardless of the alternative the BLM selects in the current project. The road is already in existence, the vehicle use is already occurring, and if it issues a ROW the BLM would apply a number of restrictions to avoid impacts on wildlife, cultural resources, and other resources. 4. Residential and ranching development. Given trends over the past 20 years, some additional development is likely to occur at some point in the future. However, the amount and location of development are unknown and speculative, such that specific future development is not reasonably foreseeable.
Ongoing actions on public and private land (e.g., recreation, motorized use on the highway) are discussed as part of the affected environment sections of relevant issues in Chapter 3.
Conformance of alternatives with policy The actions proposed in the alternatives would be in conformance with the land use plan that directs management of public land in this area, the 1989 Brothers La Pine RMP Record of Decision (USDI 1989), and subsequent amendments to this plan, including the Oregon Greater Sage‐grouse Approved RMP Amendment (USDI 2015). The alternatives (except Alternative 1, No Action) conform to RMP direction for lands/realty, wildlife, and visual resources, as described below and illustrated with citations from the RMP. Text in italics is exact quotes.
Lands/realty Issuance of leases and right‐of‐way grants, and resolution of trespass would be in conformance with the RMP:
Various types of administrative actions will require special attention beyond the scope of this plan. Administrative actions are the day‐to‐day transactions required to serve the public and to provide optimal use of the resources. These actions are in conformance with the plan. They include…lands actions, including issuance of grants, leases, permits and resolution of trespass… Page 7.
Issuance of non‐assignable term leases is not specifically mentioned in the RMP, but would be in conformance with 43 CFR Part 2920 which allows BLM to issue such leases if one or more of the following conditions is met (items 2 and 4 are met).
1. The dwelling is the sole residence of the occupant and relocation would create an economic hardship. 2. The occupant acknowledges (in writing) the non‐assignable nature of the authorization. 3. The dwelling is in, or can be brought into, compliance with State and local requirements for residential occupancy.
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4. The occupancy resulted from misinformation available to the occupant (e.g., survey error), was unintentional, and/or was not known to be on public land.
Disposal of the parcel identified in the alternatives (1 acre or 17 acre) would be in conformance with the RMP, because it does not possess the criteria listed in the RMP that would drive BLM to retain the parcel. The RMP states, “the following criteria will be used to evaluate opportunities tor retention or disposal and for identifying acquisition priorities.” The RMP also includes a map showing application of the criteria in a general sense at the time the RMP was prepared (1989), with the caveat that, “The land ownership adjustment criteria identified above will be considered in land reports and environmental assessments prepared for specific adjustment proposals.” Meaning, while the map provides general guidance, the criteria must be site‐specifically evaluated when the BLM identifies a specific parcel for a change in land tenure. In this case, the specific parcel is within an area identified in 1989 as “Zone 1, retention” (RMP Map 4, page 18). The criteria from the RMP (page 16) are listed below, followed by an explanation of why current conditions make it more appropriate to place the parcel in “Zone 3, disposal.”
1. Threatened or endangered or sensitive plant and animal species habitat (none present). 2. Riparian areas (none present). 3. Fish habitat (none present). 4. Nesting/breeding habitat for game and non‐game animals (present, but design features in the alternatives that include disposal would eliminate effects). 5. Key big game seasonal habitat (mule deer and elk winter range is present, and would be minimally impacted by the disposal, but design features would compensate for effects, see Chapter 3). 6. Developed recreation sites and recreation use areas (none present). 7. High quality scenery (none present. The area is in Visual Resource Management Class II; highest quality scenery is VRM Class I. See additional details in Chapter 3). 8. Energy and mineral potential (low potential). 9. Land in or adjacent to rivers designated or eligible for designation under the National Wild and Scenic Rivers Act (not present). 10. Significant cultural resources and sites eligible for inclusion on the National Register of Historic Places (none are present on the parcels identified for disposal). 11. Designated wilderness areas and areas being studied for possible wilderness designation (none present). 12. Accessibility of the land for public recreation and other uses (limited access: there is no legal public road access; walk‐in access is several miles).
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13. Amount of public investments in facilities or improvements and the potential for recovering those investments (there are no federal facilities or improvements on the parcel identified for disposal). 14. Difficulty or cost of administration (manageability)(the presence of the road from the highway to the unauthorized structure increases the difficulty in managing this land, since BLM does not presently have legal access on the portions of the road that cross private land). 15. Suitability of the land for management by another federal agency (the proposal is for disposal to private party, not another federal agency. It is not considered suitable for management by another agency because it is not adjacent to land managed by another agency). 16. Significance of the decision in stabilizing business, social and economic conditions, and/or lifestyles (the disposal would not affect these, except in a localized manner for the person obtaining the parcel). 17. Whether private sites exist for the proposed use (this is an existing development and other sites are not being considered). 18. Encumbrances, including but not limited to, withdrawals or existing leases or permits (there are no encumbrances on the parcel identified for disposal, other than the unauthorized structures). 19. Consistency with cooperative agreements and plans or policies of other agencies (the BLM consulted with federal and state agencies and the local government, and no inconsistencies were noted). 20. Suitability (need for change in land ownership or use) for purposes including but not limited to community expansion or economic development, such as industrial, residential, or agricultural (other than grazing) development (not applicable).
Disposal of the specific parcel identified in the alternatives would be in conformance with the 2015 amendment to the RMP (the Oregon Greater Sage‐grouse RMP amendment, quotes below from pages 2‐7, 2‐28, and 2‐29):
That amendment identified the 17‐acre parcel as within sage‐grouse habitat, and directed BLM to retain such habitat in public ownership. The amendment further directed BLM to “verify the accuracy of Greater Sage‐grouse habitat data layers at the site/project scale. Consider ecological site potential when assessing habitat suitability for Greater Sage‐grouse. Periodically update …[habitat maps]… in cooperation with ODFW using the best available information.” Management Decision Special Status Species #7. Therefore, the BLM cooperated with ODFW, considered ecological site potential, and determined the parcel was in fact not in general or priority Greater sage‐grouse habitat.
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Therefore, disposal of the parcel would be in conformance with the RMP, including the 2015 amendment.
Wildlife The actions would be in conformance with specific direction to include seasonal restrictions and other standard operating procedures to protect wildlife:
Page 90, In crucial wildlife habitat … work will be scheduled during the appropriate season to avoid or minimize disturbances, and, Surface disturbance at all project sites will be held to a minimum. Page 97, Seasonal restrictions will be applied to mitigate the impacts of human activities on important seasonal habitat.
Visual resources The area was designated VRM Class II in the Brothers Grazing Management Program Record of Decision (1983) and subsequently adopted by reference in the Brothers La Pine RMP. Visual Resource Management Classes are assigned to public lands based on scenic quality, sensitivity of viewers, and distance zones at which lands are typically viewed. Each class has an objective which prescribes the amount of change allowed in the characteristic landscape. The objective of this VRM Class II designation is (BLM Manual 8431):
To retain the existing character of the landscape. The level of change to the characteristic landscape should be low. Management activities may be seen, but should not attract the attention of the casual observer. Any changes must repeat the basic elements of form, line, color, and texture found in the predominant natural features of the characteristic landscape.
With required stipulations, Alternatives 4 and 5 would reduce visual effects so that the remaining visual contrast is consistent with VRM Class II direction. Alternatives 2 and 3 would transfer the land out of public ownership, therefore stipulations would not be required, and the visual contrast would not be mitigated. However, since the land would not be in public ownership, VRM Class standards are not relevant.
43 CFR Part 2711.3‐3 Disposal by direct sale would be in conformance with 43 CFR Part 2711.3‐3 (a) (5), “Direct Sales may be utilized, when in the opinion of the authorized officer, a competitive sale is not appropriate and the public interest would best be served by a direct sale…A need to resolve inadvertent unauthorized use or occupancy of the lands.”
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43 CFR 2808.11 and 43 CFR 2920.1‐2 Anyone determined to be in trespass is liable for the administrative costs incurred by the United States as a consequence of such trespass, the fair market value rental of the lands for the current year and past years of trespass, and rehabilitating and stabilizing the lands that were the subject of such trespass. If the person determined to be in trespass does not rehabilitate and stabilize the lands, he/she shall be liable for the costs incurred by the United States in rehabilitating and stabilizing such lands. In addition, penalties may be assessed for a trespass not timely resolved.
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Chapter 3 Affected Environment and Environmental Effects
Issue: How would the access road, house, and other structures affect visual resources?
Affected environment
Landform The landform is predominantly rolling to gently sloping terrain, with a variety of small drainages nearby (Eagle Creek, Wickiup Creek) that flow into the Crooked River upstream of Prineville Reservoir. The presence of various minor drainages leads to a fairly complex terrain of small valleys and gentle to moderate slopes and rounded to conical landform visible from adjacent roads. The most prominent landform is a 5,500‐elevation butte (Pilot Butte) that is a backdrop for views from State Highway 380 and Prineville Reservoir looking northeast.
Vegetation Vegetation in the area is dominated by young to moderate age juniper woodlands, mixed in with many openings of brush and grasslands. This forms a patchy, mosaic look throughout much of the area. The mixture of woodlands and openings is strengthened by the many fields and pastures on private lands in the area. Most of these pasture lands occur in the bottom of drainages. The BLM conducted several juniper thinning projects in the area in the 1980s and 1990s, and there is a patchwork of openings with grassland and sagebrush mixed in with juniper woodlands currently.
Structures For visitors to the area, the predominant structures seen are livestock grazing fences, irrigation pumps, and wheel line irrigation systems in the fields along the roadway. Single pole power lines are also visible, as is a small substation located adjacent to the highway near the turnoff to the subject property.
The subject property has a wood‐sided house with a metal roof, a metal‐sided barn and several metal‐sided sheds on it, as well as a windmill structure approximately 60‐feet high, and an access route from Highway 380 to the house.
Assumptions and methodology The impact on visual resources depends on the landform, vegetation, and size and color of the unauthorized structures and other structures in the area (described above), and where the subject structures are visible from (key observation points (KOP), described below). The analysis area for visual resources includes the area from which the unauthorized structures can and are
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likely to be viewed. People are most likely to view the structures from a few spots on State Highway 380, and from the popular recreation areas around Prineville Reservoir, up to seven miles away, making for a rather large analysis area.
Visibility and Key Observation Points State Highway 380 and Prineville Reservoir were identified as KOPs in the analysis of project alternatives. Four locations on the highway and three locations on Prineville Reservoir were visited and used to assess project alternatives using BLM’s Contrast Rating process. Additionally, viewsheds (seen areas) were generated in ArcGIS and seen area analysis was done in Google Earth to determine visibility prior to field visits. A summary of project visibility is presented below.
State Highway 380 ‐ From the highway, none of the existing structures on the subject parcel are visible. The existing road leading to the subject parcel is also not readily visible due to screening by landform. Within the project vicinity, buildings, irrigation systems and fences are commonplace on private lands along the roadside.
Prineville Reservoir ‐ Views of the subject parcel are available from four areas on Prineville Reservoir, at specific locations where unobstructed views to the northeast occur down the length of the reservoir (See Table 2). This encompasses approximately 14 percent of the reservoir, although views of the actual buildings on the subject property are not visible from some of these locations.
At longer distances, these areas include a portion of the upper reservoir near the Bear Creek arm and adjacent to the Roberts Bay recreation site. Although visible under certain lighting and sky conditions at these background distances (five miles or greater), the structures on the BLM parcel are not noticeable and do not dominate the view. Views from these lower portions of the reservoir (e.g., Roberts Bay) also include resort development and occasional houses on surrounding ridges nearby.
Views of the development on the subject parcel from the upper part of the reservoir (at about four miles distant) do not include large numbers of other structures; although the existing development can be seen, it is not readily noticeable and does not dominate the view. The development is not seen as a skyline element of the view, due to a background butte that rises to the northeast of the parcel.
Views from the upper portion of the reservoir (Wildlife Management Area) include some views of the house for a small area of the river and reservoir access road at about 1.1 miles south of State Highway 380. Viewing distance for this location is about 2.75 miles. The house and windmill are visible, but at this distance are not highly noticeable and do not dominate the
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view. As recreationist travel closer toward State Highway 380, the structures on the subject property are screened by intervening landform.
From a distance, the most apparent feature is the light colored metal roof of the house. When visible from key observation points, these structures are seen against a darker green backdrop of juniper woodland on the hills to the northeast. Generally, the viewing distance from the majority of Prineville Reservoir limits the effect of the buildings on the site for viewers. However, from the closest portions of the reservoir, the form and color of the house create some contrast. From closer viewpoints, the windmill also creates some contrast.
Table 2. Viewing locations from Prineville Reservoir. Viewing Size of reservoir Percentage of total reservoir Area distance area with views acreage (3,030 acres) Wildlife Area 2.75 miles 21 acres 0.7 percent Upper Reservoir 4.35 miles 240 acres 8.0 percent Roberts Bay 6.20 miles 102 acres 3.4 percent Bear Creek Arm 7.20 miles 75 acres 2.5 percent Total 438 acres 14.6 percent
Effects
Alternative 1 This is the No Action Alternative, where the land would remain in public ownership, the unauthorized structures would remain in place, and associated unauthorized uses would continue. The light color of the house, particularly the roof, would remain visible from portions of Prineville Reservoir. As described in the affected environment section above, the house would be most visible from the upper portion of the reservoir, but still at a distance of about 2.75 miles. The windmill would also continue to present an unnatural visual contrast, affecting scenic quality from closer viewing points.
Alternative 2 Under Alternative 2, the house, windmill, and other structures in the immediate vicinity would remain, authorized via land disposal and ROWs. In comparison with Alternative 3, the size of the land transfer (about one acre) would minimize potential long‐term increases in built structures visible from Prineville Reservoir, since it would limit additional development due to the small size of the parcel transferred from BLM jurisdiction.
Alternative 3 Under Alternative 3, the house, windmill, and other nearby structures would remain, but the land under these, about 17 acres as opposed to about 1 acre in Alternative 2, would no longer be in public ownership. The size of the land transfer (about 17 acres vs about 1 acre in
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Alternative 2) would increase the potential for long‐term increases in built structures visible from Prineville Reservoir, since it might allow additional development on the parcel transferred from BLM jurisdiction.
Alternative 4 Under this alternative, the house, windmill, and other nearby structures would remain in place for 30 years, but the land under these would be retained in public ownership. As such, any BLM management standards for visual resources would be retained.
In the long term (after the 30‐year lease and ROWs expire and all structures would be removed), effects to visual resources would be the same as Alternative 5, in which all structures would be removed.
In the short term (now through expiration of 30‐year lease and ROW), effects on scenic resources would be less than in Alternatives 2 and 3 because the BLM would require re‐staining the house a darker color and repainting the roof a darker color. The windmill would continue to present an unnatural visual contrast, affecting scenic quality, but the actions that would reduce the visibility of the house as seen from Prineville Reservoir would ensure the alternative is consistent with the VRM Class II standard, which calls for management actions to not attract attention and to “…repeat the basic elements of form, line, color, and texture found in the predominant natural features of the characteristic landscape.”
Alternative 5 In this alternative, the BLM would require removal of all above ground structures within six months. The existing structural contrast created by the geometric form of the house and the color contrast created by the light color of the house siding and the light color of the roof would be eliminated. The removal of the windmill structure would also decrease structural contrast and improve scenic quality. The subject parcel would be fully consistent with the VRM Class II designation, which requires that management activities not attract the attention of casual observers.
Cumulative effects The only reasonably foreseeable project in the general area that could affect visual resources is 13,000 acres of conifer thinning on BLM managed public lands along the Post‐Paulina Highway from Comb’s Flat to Post. That action was approved with a 2011 Decision following the High Desert Shrub Steppe Restoration EA (DOI‐BLM‐ORWA‐P000‐2008‐0157‐EA). That Decision included project design features to ensure there would be no long‐term effects on visual resources (e.g., “Design treatments to mimic patterns found in the characteristic landscape as well as to improve long distance scenic view opportunities”). Therefore, effects from that project would not combine with effects from the current project to produce a greater
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cumulative effect than the direct and indirect effects already described above. There are no other actions expected in the area that would affect visual resources.
Issue: What effect would the alternatives have on mule deer and elk?
Affected environment
Mule deer Mule deer (Odocoileus hemionus) occur throughout North America in a wide variety of habitats from deserts, riparian areas, broken grasslands, shrublands, foothills, forests to tundra (Clark and Stromberg 1987). Mule deer are common and relatively abundant on the District. In Oregon, mule deer provide recreational, aesthetic, and economic values to hunters, wildlife enthusiasts, and local businesses throughout the state.
Summer habitat provides deer with enough forage to build up fat reserves that will be lost during the winter months. This habitat is common throughout eastern Oregon and can be found in varying areas from lower agricultural lands to higher elevation areas. Winter habitat is mostly found in lower elevations. These areas tend to have lower snow levels and vegetation that provides cover and forage. Mule deer winter range vegetation is typically comprised of pinyon‐juniper woodlands, sagebrush, and bitterbrush (Cox et al. 2009). Due to the lower nutritional value in the vegetation during winter months, mule deer tend to rely on their summer reserves (ODFW 2003a). Sagebrush and old growth juniper woodlands are present throughout the project area, with some juvenile juniper encroachment occurring in the sagebrush habitat. The project area is located in winter range for mule deer as identified by ODFW.
Elk Elk (Cervus elaphus nelson) once ranged from northern Canada southward along the California coastline, and throughout much of the United States (Clark and Stromberg 1987). Today, the range has been reduced; however, due to reintroduction efforts, elk are being restored in many parts of the historical range. In Oregon, they occur from deserts to forested areas, and occupy habitats dominated by shrubs and grasses to high mountain meadows of grasses and forbs. Like deer, summer habitat provides enough forage to build up fat reserves that will be utilized in the winter months. Elk winter range provides hiding cover and protection from severe weather. During winter months, elk can lose up to 20‐25 percent of their body weight due to energy demands from the winter months and a decrease in nutritional value from vegetation (ODFW 2003b). The project is located in winter range for elk as identified by ODFW.
Disturbances Past human disturbance in the analysis area include about 2,000 acres of juniper cuts and 215 acres of mechanical brush beat treatments on BLM land between 1970 and 1999. Juniper cuts
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have also occurred increasingly in the past five years on private lands. These activities have altered the vegetation by opening up the canopy to allow fine vegetation to grow in the understory. Recreation in the form of hunting, hiking, and fly‐fishing have occurred in the area for the last 50 years. Livestock management and grazing has also occurred in the area for the past 75+ years. These activities are sporadic and caused low amounts of disturbance. Actions that currently affect elk and mule deer in the project area (and would be unchanged by the alternatives) include traffic on Highway 380, seasonal livestock operations (about five trips per month to fill water troughs or move livestock from pasture to pasture); and recreation, including fly‐fishing along the Crooked River and Prineville Reservoir and hunting on public and private lands in the analysis area (about five trips per week). The current activities affect elk and mule deer by temporary displacement due to noise and presence of vehicles.
Assumptions and methodology The area of analysis for effects of the alternatives is a five mile buffer around the unauthorized house. This area was selected to ensure all effects from the alternatives would be captured. The area of analysis is approximately 50,264.9 acres (11,058.7 acres BLM, 79.2 acres State, 1,522.9 acres Bureau of Reclamation, 37,604.1 acres private). The Post‐Paulina Highway (Highway 380) runs north/south then east/west (after the Prineville Reservoir) through the middle of the area of analysis. There are approximately 221.2 miles of identified roads/two‐tracks/trails in the area of analysis. Assuming the ROW for Highway 380 is 50 feet wide and the average two‐track/trail has a width of 12 feet, the amount of disturbance from roads/two‐tracks/trails is 340.2 acres. There are an additional 116.1 acres of other disturbances (i.e. buildings, structures, etc.) unavailable to mule deer and elk in their winter range. This amounts to a current estimated disturbance level of 456.3 acres (1.0 percent) in the analysis area. Therefore, the current habitat available in the analysis area is 49,808.6 acres.
Mule deer and elk could be affected by actions proposed in the alternatives in several ways:
Temporary disturbance from removal of the house and surrounding structures (estimated to be about three vehicle trips per day for a month). Temporary disturbance from project activities such as weed treatment and juniper cutting. Changes in available habitat due to reclamation of disturbed areas. Long term disturbance from actions that could occur on any land transferred out of BLM’s jurisdiction. Currently, the BLM prohibits surface disturbing or disruptive activities during crucial nesting periods for Golden Eagles and wintering periods for elk and mule deer. Transferring the land out of public ownership could open opportunities for surface disturbing and disruptive activities during these crucial times.
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Harassed elk move more often than elk left alone and use of habitat decreases as road density increases (Witmer 1985). Therefore, there is a chance of short‐term temporary displacement for elk and mule deer under those conditions. Displacement would mainly occur during surface disturbing and disruptive activities. Animals would be able to return to the area immediately after construction and reclamation occurs. These impacts would be reduced by implementing a timing limitation to restrict construction or other surface disturbing and disruptive activities from December 1 to April 30 each year.
Researchers have reported decreased use of areas adjacent to roads for distances ranging from 0.4 to 0.8 kilometers (0.25 to 0.5 mi) (Perry and Overly 1977, Ward 1976). For this analysis, we assumed deer and elk could be disturbed by traffic in a 0.5 mile buffer on the access road to the property. This area would still available to elk and mule deer, but it would be a lower quality due to the increased disturbance from vehicles.
Control of noxious weeds in deer and elk winter range is beneficial when the weed control program maintains the native forage species (ODFW 2003a). Control of noxious weeds promotes a healthy understory of native vegetation and reduces the risk of fire and an increased fire return interval. Treating noxious weeds allows native vegetation to reestablish. For the purposes of this analysis, the BLM assumes these treatment areas would go from non‐ habitat to habitat.
Juniper woodlands provide two forms of cover for deer and elk: thermal and hiding cover (Olsen 1992). Thermal cover allows mule deer and elk opportunities to not use as much energy to keep warm during colder months. Hiding cover offers protection from predators and other disturbance. Encroaching juniper eliminates the healthy understory that elk and mule deer rely upon throughout the year (Wasley 2004). Removing encroaching conifer through the form of small pockets of juniper cuts allows for restoration of understory vegetation while not reducing hiding or thermal cover. For the purposes of this analysis, the BLM assumes this treatment would change areas from non‐habitat to habitat.
With the noise from Highway 380 and neighboring ranches, the BLM estimates the current ambient noise levels are approximately 30‐35 dBA. During the structure removal phase (in Alternatives 2, 4, and 5), the BLM estimates construction noise at peak levels would be 91.6 dBA at 50 ft. Using a standard noise model of deceasing 6 dBA for every doubling of distance, the noise levels associated with construction would return to ambient levels around 5.0 miles. This is dependent upon the direction of the sound, presence of vegetation, and topography.
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Effects
Alternative 1 This is the No Action Alternative. Under this alternative, the land would remain in public ownership, the unauthorized structures would remain in place, and associated unauthorized uses would continue. The BLM would essentially not be able to regulate surface disturbing or disruptive activities on the 17 acres under and around the unauthorized structures. The BLM would not require seasonal limits on maintenance activities to protect mule deer and elk, and it would not require conifer removal or noxious weed treatments. The available habitat would remain at 49,808.6 acres.
Alternative 2 In this alternative the BLM would dispose of the one acre of public land, issue ROW grants for access and utilities, and require removal of aboveground structures rehabilitation of disturbed areas outside of the one acre (besides the windmill).
Disturbance from human presence and activities within the project area would increase slightly in the short term while structures not directly associated with the house are removed, and as disturbed areas are reclaimed. Traffic associated with this work is estimated to be only about one additional vehicle trip per day for one month or less. The effects of noise related to removal of structures would be similar to Alternative 5. BLM expects the activities to occur within six months, but last two weeks or less. Disturbance would still be short term.
There would be a timing limited stipulation for any surface disturbing or disruptive activities associated with road or waterline maintenance; therefore future maintenance on these would not affect wintering mule deer and elk.
A potential effect of disposal of one acre of BLM land includes a permanent loss of regulating surface disturbing and disruptive activities (though a gain in 16 acres compared to Alternative 1 No Action). For example, if any major maintenance work is needed on the house in the future that would cause surface disturbing or disruptive activities during winter months, it could cause wintering elk and mule deer to avoid the area until work ceases.
To mitigate for the effect of the permanent loss of one acre of habitat, this alternative includes a requirement for the ROW holder to treat noxious weeds on two acres in the NE¼ SE¼ sec. 6, T. 16 S., R. 18 E. This site was selected because it is near the area of impact, on public land, and native forage plants are currently being impacted by the presence of an invasive non‐native plant, Medusahead rye. Weed treatments in the identified area would benefit mule deer and elk winter range, increase the chance for native vegetation to reestablish in the treatment area, reduce fine fuels that could increase fire risk, and increase the overall functional health of the site.
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This would be a 2:1 ratio of improved habitat (weed control) to compromised habitat (due to disposal of public land). The rationale for treating more acres than are lost is there would be a time lag in effectiveness of the mitigation activities. The benefits of the activities would not be experienced for at least 1‐5 years. In addition to the time lag, mitigation activities are a one‐ time requirement. This has a reduction in durability.
Once the structures are removed, the disturbed area would be revegetated and restored to a state similar to the surrounding vegetation. The reclaimed area, about 16 acres, would be returned to a state where elk and mule deer would be able to use the habitat again. Mule deer and elk would also benefit from the two acres of weed treatments (See Table 3 for disturbance levels and habitat availability). Habitat available in the analysis area would increase 18 acres from the No Action Alternative, to a total of 49,826.6 acres.
Alternative 3 Alternative 3 would take 17 acres out of public ownership. The BLM would not require removal of any of the structures. The BLM would issue a ROW for a phone line, water line, and road access to the house. Disturbance levels would remain about the same as current levels.
In this alternative, BLM would grant a ROW for the access and utilities, allowing the holder to maintain the ROW. However, as with Alternative 2, since this alternative would include a timing limited stipulation for any surface disturbing or disruptive activities associated with maintenance, the BLM would not expect maintenance to affect wintering mule deer and elk.
A potential effect of disposal of about 17 acres of BLM land includes a loss of regulating surface disturbing and disruptive activities. See disturbance example from Alternative 2. In order to mitigate this effect and the loss of habitat from the structures, the BLM would require the purchaser to thin juniper on 34 acres of juniper about a mile away, as described in Chapter 2 Alternatives and in Appendix B design features. This is a 2:1 ratio for the loss of public land, maintained in perpetuity.
The net effect of land disposal and juniper thinning would be 17 more acres of available habitat in this alternative compared to Alternative 1, for a total of 49,825.6 acres.
Alternative 4 Disturbance associated with Alternative 4 includes the potential for surface disturbing and disruptive activities for 30 years, due to maintenance of the house, yard, septic tank, drain field, solar panels, associated electrical lines, access road, and phone line. In the short term, disturbance would remain the same as Alternative 2, except in order to protect wintering mule deer and elk during the 30‐year lease and 30‐year ROW period, surface‐disturbing or disruptive activities (e.g., road maintenance) would not be allowed December 1 to April 30.
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At the end of the 30‐year lease, there would be similar effects as Alternative 5, since all of the disturbances and aboveground structures would be reclaimed and about 17 more acres would be available for mule deer and elk winter range than under the no action, Alternative 1.
Alternative 5 Disturbance from human presence and activities within the project area would increase in the short term during the structure removal process and reclamation. Vehicle trips would increase by three trips per day for one month due to construction equipment accessing the site. This increase in traffic would affect deer and elk within a half‐mile buffer along the access road, which equates to 738 acres (of which 343 acres are BLM administered public land). This area would still be available to elk and mule deer, but it would be a lower quality due to the increased disturbance from vehicles. After the removal activities cease, traffic would revert to the baseline levels described in the existing environment.
As mentioned above in the Assumptions/Methodologies section, the noise from construction activities would most likely dissipate to ambient noise levels before 5.0 miles. The temporary disturbances to wintering mule deer and elk would be avoided by restricting the activities from December 1 to April 30. These dates were chosen by the BLM in coordination with ODFW as directed by the Brothers La Pine RMP.
Once the structures are removed, the disturbed area would be revegetated and restored to a state similar to the surrounding vegetation. The reclaimed area, approximately 17 acres, would be returned to a state where elk and mule deer would be able to use the habitat again within about three years, bringing available habitat in the analysis area up to 49,825.6 acres.
Table 3. Disturbance levels/habitat availability for mule deer and elk winter range. Alternative 1, Alternative Alternative Alternative Alternative No Action 2 3 45 5 Habitat available 49,808.6 49,826.6 49,825.6 49,825.6 49,825.6 (acres)
Cumulative effects Past and present disturbances have been described above.
The only reasonably foreseeable future action that would have the potential to affect mule deer and elk is juniper thinning associated with the 2011 approved Decision on the High Desert Shrub Steppe Restoration EA (DOI‐BLM‐ORWA‐P000‐2008‐0157‐EA). That decision authorized up to 13,000 acres on BLM managed public lands along the Post‐Paulina Highway from Comb’s Flat to Post to improve habitat for BLM special status species. This area is within mule deer and
5 Under Alternative 4, the 17 acres would not be reclaimed immediately; these acres would be reclaimed at the end of the 30‐year lease.
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elk winter range considered in the current EA. Juniper treatment in this area would increase the kind and amount of forage mule deer and elk need to survive off of during winter months. Effects associated with this project would be additive to the effects already expected from the alternatives. The cumulative effects are described below.
Alternative 1 The direct and indirect effects from continued presence of the unauthorized structures and use of them would remain, producing no change in available habitat. The only increase in habitat would be from the cumulative action of conifer removal on 13,000 acres.
Alternative 2 The cumulative effects for Alternative 2 would be the permanent loss of regulating surface disturbing and disruptive activities on 1 acre (which is already lost in Alternative 1 No Action), the increase of 16 acres through reclamation, and the increase in habitat quality of 2 acres through weed treatments, combined with the 13,000 acres of improvement from the High Desert Shrub Steppe juniper cuts. The total cumulative effect would be 13,018 acres of improved elk and mule deer winter range habitat.
Alternative 3 The direct and indirect effects would be the loss of regulating surface disturbing (and potential for disruptive activities) on 17 acres, and improvement on 34 acres through conifer removal. This would combine with the 13,000 acres of improvement from the High Desert Shrub Steppe juniper cuts for a cumulative effect of 13,017 acres of elk and mule deer winter range habitat.
Alternative 4 Under Alternative 4, there would be no direct or indirect increase in suitable winter habitat for 30 years, but the impact from surface disturbing and disruptive activities would be regulated during the winter and early spring months during the 30‐year lease of the property through the application of a timing limited stipulation. There would be a direct/indirect increase of 17 acres of suitable winter range once the 30‐year lease ends and the land is reclaimed. This would combine with the 13,000 acres of juniper cuts from the High Desert Shrub Steppe project for a total cumulative effect of 13,017 acres of improved mule deer winter range habitat.
Alternative 5 The cumulative effects for Alternative 1 would be the 17 acres of winter range restored to suitable habitat, combined with the 13,000 acres of winter range habitat restored from the High Desert Shrub Steppe juniper cuts, for a total of 13,017 acres of improved elk and mule deer winter range habitat.
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Issue: What effect would this project have on nesting Golden Eagles?
Affected environment Golden eagles (Aquila chrysaetos) are protected under the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and the Lacey Act (USFWS 2011). They are considered a species of interest in the Prineville District BLM and a protected non‐game species by ODFW. Range wide, Golden Eagles are currently experiencing a stable population (USFWS 2011).
Golden Eagle habitat encompasses a wide variety of ecosystems, from grasslands to tundra to desert and to forested and woodland brush lands. They are primarily an aerial predator with prey ranging from small to medium sized mammals (primarily jackrabbits), reptiles, and birds. They are opportunistic and will scavenge and consume carrion (USFWS 2011). Golden Eagles build nests on cliffs and trees large enough to support a nest. Their nests are typically in undisturbed areas but have been known to nest in areas where housing density is low. They have been noted to be sensitive to some forms of human presence (USFWS 2011). They lay one to four eggs, with most successful nests fledging two eagles. Territories may have one or more nests and eagles might switch occupancy of nests within the territory from year to year. Disturbances near important roosting or foraging areas can stress eagles to a degree that leads to reproductive failure, nest abandonment, mortality elsewhere.
Although Golden Eagles migrate from northern ranges down to warmer climates during the winter (USFWS 2011), local unpublished data indicates most Golden Eagles that nest in Central Oregon are year round residents. Courtship and nest building/maintenance activities begin in December. Incubation typically begins last week of January or the first week of February (Isaacs 2017). Most eaglets fledge by the last week in July.
The project area is located between two Golden Eagle territories, the Eagle Rock Crooked River and Eagle Creek Crooked River territories. Local data indicate that the Eagle Rock Crooked River territory has two known nests. The house and portions of the proposed right of way are located within one mile of the eastern nest. Recent data indicate that this territory was occupied in 2016. The Eagle Creek Crooked River territory has three known nests. Portions of the proposed access route ROW from the highway to the house are located within one mile of the buffer of the middle Eagle Creek Crooked River nest. Both territories have indicated some form of occupancy over the past six years, with the Eagle Creek Crooked River territory successfully fledging two young in 2012. Past human disturbances are similar to those in the mule deer and elk cumulative effects section.
Assumptions and methodology The analysis area encompasses the two Golden Eagle territories mentioned above, Eagle Rock Crooked River and Eagle Creek Crooked River. The territories are made up of a one mile buffer
Page 32 of 50 for each nest. Parts of the territories clip the analysis area and proposed ROW. This area was selected to ensure all effects from the alternatives would be captured. The area of analysis is 7,776.3 acres (3,828.3 acres BLM, 711.8 acres Bureau of Reclamation (BOR), 3,236.2 acres private). Highway 380 runs north/south then east/west (after the Prineville Reservoir) through the middle of the area of analysis. Assuming Highway 380 is 50‐feet wide and the average two‐ track/trail has a width of 12 feet, the amount of disturbance from roads/two‐tracks/trails is 77 acres. There are an additional 17.0 acres unavailable to foraging Golden Eagles due to other disturbances (buildings, structures, etc.), including 4.5 acres on public land (trespass house and associated above ground structures) and 12.5 acres on private land. This amounts to a current estimated disturbance level of 94 acres (1.2 percent) in the analysis area.
Actions that currently affect Golden Eagles in the project area include structures and other disturbances along Highway 380, seasonal livestock operations (livestock herding/moving, allotment/pasture inspections, etc.) and recreation (fly‐fishing, hunting, hiking, et cetera). Depending upon the chosen alternative, Golden Eagles would be affected by the project in up to four ways: continued disturbance from traffic along the access road, disturbance from removal of the house and surrounding structures, temporary disturbance from mitigation (weed treatment or juniper cut), and the potential loss of regulated actions on public land.
In the analysis area, traffic to structures and similar features in the area would not change throughout the entire project. It is assumed that traffic to the structures and similar features includes four vehicle trips per day to access the property from the highway. Disturbance, including traffic along Highway 380 would continue at current levels. Recreation, including fly fishing along the Crooked River and Prineville Reservoir and hunting on public and private lands in the analysis area, would continue at current levels. The BLM assumes there are about five trips per week for fly‐fishing trips and hunting on public lands within the area of analysis average (based on observations by field staff). Ranching operations associated with livestock grazing include trips to fill livestock water troughs and moving livestock from pasture to pasture. It is assumed that there are five trips per month associated with ranching operations. The current activities affect Golden Eagles by temporary displacement due to noise and presence of vehicles.
Long‐term surveys in parts of the western U.S. have shown declines in nesting Golden Eagle populations associated with human activity and habitat degradation (Steenhof et al. 2014). Holmes et al. (1993) studied the responses of wintering grassland raptors to human disturbance. In their study, they looked at the difference between the distance at which Golden Eagles were flushed from their perches when they encountered humans on foot and in vehicles. Their results indicated that there was no difference between flushing responses or distances
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exhibited between Golden Eagle adults and juveniles; both flushed when encountering humans on foot and in vehicles.
The BLM assumes that current disturbance levels associated with the housing structure include all above ground and below the surface structures along with an estimated four vehicle trips per day up and down the access road.
Regardless of the alternative, taking into account the noise from a ROW, a 0.5 mile buffer will capture the disturbance associated with noise. Using a standard noise attenuation model of decreasing 6 dBA for every doubling of distance, uninterrupted, the noise from a pickup truck (75 dBA at 50 feet) will attenuate to ambient noise levels (assuming they are approximately 35 dBA due to nearby highway traffic and neighboring ranches) in about 0.6 miles. Due to topography and vegetation, it is assumed the noise would attenuate closer to 0.5 miles. A half‐ mile buffer along the access road affects 738 acres.
All alternatives involve some level of structure removal. Noise during the structure removal phase at peak levels is estimated to be at 91.6 dBA at 50 feet. With the noise from Highway 380 and neighboring ranches, it is estimated that the current ambient noise levels are approximately 30‐35 dBA. Using a standard noise model of deceasing six dBA for every doubling of distance, the noise levels associated with construction would return to ambient levels around 5.0 miles. This is dependent upon the direction of the sound, presence of vegetation, and topography. With these accounted for, there is a chance noise would not dissipate before reaching the closest nests. The temporary disturbances to nesting Golden Eagles would be mitigated by restricting the activities from February 1 (when incubation of eggs begins) to August 1 (when eaglets will have fledged). These dates were chosen by the BLM in coordination with ODFW as directed by the Brothers La Pine RMP.
Effects
Alternative 1 This is the No Action Alternative. Golden Eagles would continue to be disrupted by human activity around the unauthorized structures and on the access routes. Ground disturbed by unauthorized actions would not be reclaimed, and would continue to not provide eagle habitat. There would be 7,682.3 acres of habitat available to Golden Eagles. Table 4 summarizes the direct and indirect effects on Golden Eagle habitat.
Alternative 2 Alternative 2 would involve disposal of one acre, leaving the house and other required structures, but requiring the removal of barns and other structures unrelated to the operation of the house, and reclamation on 16 acres (7 of which are Golden Eagle habitat). Additionally, ROWs would be issued for a phone line, waterline, and access to the house.
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Disturbance from human presence and activities within the project area would increase in the short term (less than one month) during the structure removal process and reclamation. It is expected the activities would last about two weeks less. Disturbance associated with removal of the structures and reclamation at the project site would decrease once these activities cease.
Once the structures are removed, the disturbed area would be revegetated and restored to a state similar to the surrounding vegetation. The reclaimed area would be returned to a state where Golden Eagles and their prey would be able to use the habitat again. Once the reclamation activities are completed, there would be a long‐term increase of about seven acres available to nesting Golden Eagles.
Granting a ROW for the access road, telephone lines, and water line would result in disturbance levels similar to current or No Action. Because of the low number of trips, there is a minimal amount of disturbance associated with vehicles traveling along the ROW. However, in order to protect nesting Golden Eagles, a timing limited stipulation would be applied for any surface disturbing or disruptive activities associated with maintenance from February 1 to August 1.
A potential effect of disposal of one acre of BLM land includes a permanent loss of regulating surface disturbing and disruptive activities. For example, if any major maintenance work is needed on the house that would cause surface disturbing or disruptive activities during the late winter, spring, and early summer months, it could cause nesting Golden Eagles stress and to possibly avoid the area until work ceases. If the latter part is true, it would be likely the nest would fail due to a lack of incubation or rearing juveniles. The two acres of weed treatment required under this alternative in the NE¼ SE¼ sec. 6, T. 16 S., R. 18 E would improve foraging habitat. Compared to Alternative 1 No Action, habitat would be improved on nine acres, for a total available habitat of 7,691.3 acres (see Table 4).
Alternative 3 Alternative 3 would include disposal of about 17 acres. Eight acres of the proposed 17 acre (approximate) land disposal are within the Eagle Rock Crooked River nesting territory. The BLM would not require removal of any of the structures. The BLM would issue ROWs for a phone line, two waterlines, and access to the house.
Disturbance levels from the access road, telephone lines, and water line would stay the same. Because of the low number of trips, there is a minimal amount of disturbance associated with vehicles traveling along the ROW. To protect nesting Golden Eagles, surface disturbing or disruptive activities associated with maintenance would be prohibited from February 1 to August 1.
Golden Eagles would experience similar effects to mule deer and elk from the disposal of about 17 acres of BLM managed public land (effects of that would be the same as Alternative 1 No
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Action). Like mule deer and elk, they would benefit from the proposed 34 acres of juniper cuts within the Eagle Rock Crooked River territory. The mitigation would open up the canopy for more water and sunlight to access the understory. Thus, increasing the quality of habitat for Golden Eagle prey. Increasing the quality of forage habitat within the one‐mile buffer of the eagle nest would offset the impacts of not removing any of the structures.
The net direct and indirect effect on eagle habitat would be an increase of 34 acres from Alternative 1, for a total of 7,716.3 acres available eagle habitat in the project area.
Alternative 4 Alternative 4 would involve a 30‐year lease to allow the structures and uses to remain for that period and then be removed. Disturbance associated with Alternative 4 includes the potential for surface disturbing and disruptive activities associated with maintenance of the house, yard, septic tank and drain field, solar panels, associated electrical lines, access road, and phone line. In the short term, disturbance would remain the same as current levels. In order to protect nesting Golden Eagles during the 30‐year lease period, surface‐disturbances and other potentially disruptive activities (e.g., road maintenance) would be prohibited February 1 to August 1.
At the end of the 30‐year lease and ROW, all of the disturbances and aboveground structures would be reclaimed and eight more acres would be available for Golden Eagle habitat (8 of the 17 acres restored are eagle habitat).
Alternative 5 In this alternative BLM would retain the land in public ownership and require removal of all aboveground structures.
Eight acres of the project area are within the Eagle Rock Crooked River nesting territory. Disturbance from human presence and activities within the project area would increase in the short term during the structure removal process and reclamation. But, disturbance at the project site would decrease once these activities cease. Current disturbance levels associated with the housing structure include all of the above ground and below the surface structures along with an estimated four vehicle trips per day up and down the access road. This would increase to approximately seven trips per day for one month due to construction equipment accessing the site. After the removal activities cease trips to the project site would go to what they are currently.
Once the structures are removed, the disturbed area would be revegetated and restored to a state similar to the surrounding vegetation. The reclaimed area, about 17 acres, 8 of which are eagle habitat, would be returned to a state where Golden Eagles would be able to use the habitat again (See Table 4).
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Table 4. Disturbance levels/habitat availability for Golden Eagle breeding/nesting habitat. Alternative Alternative Alternative Alternative Alternative 1 2 3 46 5 Habitat available 7,682.3 7,691.3 7,716.3 7,690.3 7,690.3 (acres)
Cumulative effects Past and present disturbances have been described above. Reasonably foreseeable impacts from future disturbances/projects are also similar to those described in the mule deer and elk cumulative effects section. The juniper thinning that would occur from the High Desert Shrub Steppe Restoration is a future action that would combine with direct and indirect effects to produce a cumulative effect. Within the expected 13,000 acres thinned, about 1,997 acres would be within Golden Eagle habitat. This would be added to the above direct/indirect totals for each alternative.
Chapter 4 Public and other involvement
Tribes, agencies, organizations, and individuals contacted The BLM initiated external scoping in June 2017 by posting a scoping letter on its public website, and sending letters to interested publics including neighboring landowners, Blue Mountain Biodiversity Project, Crook County Courthouse, Friends of Rudio Mountain, Native Forest Council, Nature Conservancy, ODFW, Oregon Hunters’ Association, Oregon Parks & Recreation Department, and the USFWS.
The BLM also sent letters and made phone calls to four American Indian tribes: The Burns Paiute, the Confederated Tribes of the Warm Springs of Oregon, the Klamath Tribes, and the Confederated Tribes of the Umatilla. Tribal consultation is ongoing.
The BLM met with ODFW and USFWS on site to discuss effects to wildlife and potential methods of mitigating for those effects.
List of preparers Larry Ashton – Wildlife Biologist Amy Bannon – Realty Specialist Sarah Canham – Botanist
6 Under Alternative 4, the eight acres within the territory would not be reclaimed immediately; these acres would be reclaimed at the end of the 30‐year lease.
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Lisa Clark – Public Affairs Specialist Greg Currie – Landscape Architect Cindy Foster – HazMat Coordinator Gavin Hoban and Gene Nawrot – Geographic Information Specialist Emily Lent – Rangeland Management Specialist Teal Purrington – Planning & Environmental Coordinator Erin Woodard – Archaeologist
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Appendix A – Wildlife in the project area
The BLM completed wildlife surveys, habitat inventory and assessment, literature searches, and other research to determine which wildlife have habitat and are likely to be present in the project area, and how they could be impacted by each alternative. The table below summarizes the results for species the USFWS lists as threatened, endangered, or proposed for listing, BLM Sensitive Species, species of local interest, and other species.
In accordance with Section 7 of the ESA, as amended, the lead agency in coordination with USFWS must ensure that any federal action to be authorized, funded, or implemented would not adversely affect a federally listed species, or its designated critical habitat. Four species of wildlife and critical habitat are classified as threatened, endangered or proposed may be found on or adjacent to the Prineville District Bureau of Land Management. Of these species, none would be affected by implementation of the alternatives because the project area is not located in designated critical habitat nor does the habitat contain the primary constituent elements required for these species to persist.
Special Status Species include those species federally listed under the Endangered Species Act (ESA) by the U.S. Fish and Wildlife Service (USFWS) and in the BLM/United States Forest Service (USFS) Interagency Special Status/Sensitive Species Program (ISSSSP).
Special Status Species Management Policy 6840 requires the BLM to not only manage species listed under the ESA, but to also manage special status/sensitive species to prevent the need for future listing under the ESA. There are twenty‐seven BLM sensitive species, five species of local interest, and two specific species of other interest that are also found on the District. Species of other interest includes those protected under various federal laws (Migratory Bird Treaty Act, Bald and Golden Eagle Act, etc.) The status of the species in the project area listed in Table 1, below. Species that are not present or do not have habitat within the project area are not discussed further in this EA.
Information on these species was reviewed from the ISSSSP as well as other research was used to determine how sensitive species use the project area and the impacts this project would have on the species. The analysis area is considered the project area and is further referred to as such.
Mammals potentially occurring in the project area include: badger, red fox, coyote, desert cottontails, white‐tailed jackrabbit, ground squirrels, chipmunks, mice, voles, shrews, pocket gophers and big game species. Additional wildlife species are present in the project area but their population sizes are stable on average and do not currently exhibit negative density or distribution trends. Additional information is provided above on big game species managed by
Page 39 of 50 the Oregon Department of Fish and Wildlife (ODFW) and migratory birds that may be present in the study area for brief periods.
The Migratory Bird Treaty Act (MBTA), as amended, was implemented for the protection of migratory birds. Unless permitted by regulations, the MBTA makes it unlawful to pursue, hunt, kill, capture, possess, buy, sell, purchase, or barter any migratory bird, including feathers or other body parts, nests, eggs, or migratory bird products. In addition, Executive Order 13186 sets forth the responsibilities of federal agencies to implement the provisions of the MBTA by integrating bird conservation principles and practices into agency activities and by ensuring that federal actions evaluate the effects of actions and agency plans on migratory birds. Oregon BLM non‐sensitive migratory birds that could nest in the project area include: vesper sparrow, horned lark, black‐billed magpie, and common raven. Oregon Breeding Bird Atlas was used to identify potential birds in the area. Habitat requirements were then considered, if the action alternatives would not impact the species or habitat components, no further analysis will be completed because no impacts would occur.
Table 1. The status of species threatened, endangered, or proposed for listing; BLM Sensitive Species; species of local interest; and other species in the project area. Category7 Species Habitat Presence impacted ESA Oregon spotted frog (Rana pretiosa) No ‐
ESA Oregon spotted frog (Rana pretiosa) critical habitat No ‐ ESA Canada lynx (Lynx canadensis) No ‐ ESA Yellow‐billed Cuckoo (Coccyzus americanus) No ‐ ESA gray wolf (Canis lupis) No ‐ BLM Washington ground squirrel (Spermopholis Washingtoni) No ‐ (State listed endangered) BLM North American wolverine (Gulo gulo) No ‐ BLM Bald Eagle (Haliatus leucocephalus) No ‐ BLM Peregrine Falcon (Falco peregrinus) No ‐ BLM Greater Sage‐Grouse (Centrocercus urophasianus) No ‐ BLM Bobolink (Dolichonyx oryzivorus) No ‐ BLM Bufflehead (Bucephala albeola) No ‐ BLM White‐headed Woodpecker (Picoides albolarvatus) No ‐ BLM Lewis’ Woodpecker (Melanerpes lewis) No ‐ BLM Grasshopper Sparrow (Ammodramus savannarum) No ‐
7 Categories are federally threatened, endangered or proposed (ESA), BLM sensitive species (BLM), species of local interest (L), and species of other interest (O).
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BLM Northern Waterthrush (Seiurus noveboracensis) No ‐ BLM Yellow Rail (Coturnicops noveboracensis) No ‐ BLM Trumpeter Swan (Cygnus buccinator) No ‐ BLM Black Swift (Cypseloides niger) No ‐ BLM Tricolored Blackbird (Agelaius tricolor) No ‐ BLM Upland Sandpiper (Bartramia longicauda) No ‐ BLM Columbia spotted frog (Rana luteiventris) No ‐ BLM Cope’s giant salamander (Dicomptodon copei) No ‐ BLM pallid bat (Antrozous pallidus) No ‐ BLM spotted bat (Euderma maculatum) No ‐ BLM Townsend’s big‐eared bat (Corynorhinus townsendii) No ‐ BLM fringed myotis (Myotis thysanodes) No ‐ BLM pygmy rabbit (Brachylagus idahoensis) No ‐ BLM Western bumblebee (Bombus occidentalis) No ‐ BLM silver‐bordered fritillary (Boloria selene) No ‐ BLM Intermountain sulphur (Colias occidentalis No ‐ pseudochristina) BLM Coronis fritillary (Speyeria coronis coronis) No ‐ L mule deer (Odocoileus hemionus) Yes Yes L elk (Cervus elaphus nelsoni) Yes Yes L pronghorn antelope (Antilocapra americana) No ‐ L bighorn sheep (Ovis canadensis) No ‐ L Northern Goshawk (Accipiter gentilis) No ‐ O Golden Eagle (Aquila chrysaetos) Yes Yes O Neotropical migratory birds Yes Yes
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Appendix B – Design features
The BLM would apply the following design features to all actions, regardless of alternative, per direction in the Brothers La Pine RMP (including amendments) and other existing direction. Prior to disposing of land and authorizing ROWs or leases, the BLM would survey for cultural resources, consult with the State Historic Preservation Office (SHPO), and if necessary modify the routes so no cultural resources/historic properties would be impacted by future use, maintenance, or repair. The ROWs would contain a stipulation stating, “Prior to any maintenance, the holder would contact the BLM to conduct a cultural resource overview, survey, and consultation with the State Historic Preservation Office to ensure that historic properties would not be adversely effected.” Require a cultural resource monitor be present during all ground disturbing activities (including removal of trespass structures) to ensure any cultural resources that might be present are identified. If they are identified, the BLM would consult with the SHPO to ensure there would be no adverse effect. All vehicles and equipment used for removal, juniper thinning, or weed treatment would be power washed to minimize the introduction and spread of invasive plant species. Do not allow surface disturbing or disruptive activities from: o December 1 to April 30 (for the protection of wintering elk and mule deer) or o February 1 to August 1 (for Golden Eagles). o The BLM can lift these restrictions if surveys from a BLM, USFWS, or ODFW wildlife biologist indicate an unoccupied Golden Eagle territory for that year or if elk and mule deer are not utilizing the winter range in the project area, or if the winter is mild and no elk and mule deer are documented onsite by a BLM or ODFW wildlife biologist and where it is less likely to disrupt big game or cause stress or harm). o This would not restrict snowplowing, since the need to remove snow would be rare and of such short term as to have no effect on wildlife. Mark guy wires (on the windmill) with flight diverters to make them more visible to birds. Apply additional relevant stipulations from USFWS. Reclamation would include recontouring soil, seeding or planting with native vegetation, and controlling invasive plants. STILL working on this one!!! Coordinate with BLM Botanist/Weed Coordinator regarding procedures for reclamation, seeding, and invasive plant control, and prior to all actions, to ensure application of all relevant stipulations/standard operating procedures listed in the Decision for the EA
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titled, Integrated Invasive Plant Management for the Prineville District, DOI‐BLM‐ORWA‐ P000‐2011‐0019‐EA. That Decision has detailed information on weed treatment. When cutting juniper, all live limbs would be cut off the stump. If any new neotropical migrant or raptor nests are found in the treatment area between the original survey and when the treatment occurs, the nest tree would be flagged and not cut down to ensure conformance with the Migratory Bird Treaty Act. No old growth trees would be cut, regardless of species. For the purposes of this decision, old growth juniper are defined by physical characteristics (rounded tops or spreading canopies, dead branches covered with fruiticose lichen, and bark with deep furrows), and old ponderosa pine are those greater than 18 inches in diameter at breast height. Any new discoveries of cultural or paleontological resources during implementation will temporarily stop project activities until a district cultural specialist has completed an assessment and coordinated with SHPO, if required. Trees with historical significance (survey trees, blaze trees, juniper structures, etc.) will be retained. The juniper treatment would be designed to mimic patterns found in the characteristic landscape as well as to improve long distance scenic view opportunities. Ensure that power cutting tools have approved spark arresters. Ensure that crews have proper fire‐suppression tools during the fire season.
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Appendix C – References cited in EA or used in analysis
Clark, T.W. and M.R. Stromberg. 1987. Mammals in Wyoming. University Press of Kansas, Lawrence, KS.
Cox, M., D. W. Lutz, T. Wasley, M. Fleming, B. B. Compton, T. Keegan, D. Stroud, S. Kilpatrick, K. Gray, J. Carlson, L. Carpenter, K. Urquhart, B. Johnson, and C. McLaughlin. 2009. Habitat Guidelines for Mule Deer: Intermountain West Ecoregion. Mule Deer Working Group, Western Association of Fish and Wildlife Agencies
Durtsche, B.M., C.J. Benson, S.V. Stegman. 2006. A GIS‐based habitat model for the greater sage‐grouse in the western United States. USDI Bureau of Land Management, National Operations Center, Denver, CO 80225
Isaacs, F. B. 2017. Golden Eagles (Aquila chrysaetos) nesting in Oregon, 2011–2016: Draft Annual Report, 4 March 2017. Oregon Eagle Foundation, Inc., Klamath Falls, Oregon, USA.
Holmes, T.L., R.L. Knight, L.Stegall, G.R. Craig. 1993. Responses of wintering grassland raptors to human disturbance. Wildlife Society Bulletin (1973‐2006) Vol. 21, No. 4 (Winter, 1993), pp. 461‐468.
Olsen, R. 1992. Mule Deer Habitat Requirements & Management in Wyoming. B‐965. Department of Renewable Resources.
Oregon Department of Fish and Wildlife. 2003a. Oregon’s Mule Deer Management Plan. Downloaded December 1, 2017 from http://www.dfw.state.or.us/wildlife/management_plans/
Oregon Department of Fish and Wildlife. 2003b. Oregon’s Elk Management Plan. Downloaded December 1, 2017 from http://www.dfw.state.or.us/wildlife/management_plans/
Oregon Department of Fish and Wildlife. 2016a. Mule deer population trend in Oregon by Wildlife Management Unit 2010‐2016. Downloaded September 26, 2016 from http://www.dfw.state.or.us/resources/hunting/big_game/controlled_hunts/docs/hunt_ statistics/16/Mule_Deer_2011‐16.pdf
Oregon Department of Fish and Wildlife. 2016b. Rocky Mountain elk population size, bull ratio, and calf ratio by WMU in Oregon 2010‐2015. Downloaded September 26, 2016 from http://www.dfw.state.or.us/resources/hunting/big_game/controlled_hunts/docs/hunt_ statistics/16/Rocky_Mtn_Elk_2011‐16.pdf
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Perry, C and R. Overly. 1977. Impact of roads on big game distribution in portions of the Blue Mountains of Washington, 1972‐1973. Washington Game Dep. Appl. Res. Sect., Bull. 11, 39 p. Olympia
Steenhof, K., J.L. Brown, M.N. Kochert, 2014. Temporal and spatial changes in Golden Eagle reproduction in relation to increased off highway vehicle activity. Wildlife Society Bulletin.
U.S. Department of the Interior, Bureau of Land Management. 2015. Oregon Greater Sage‐ grouse Approved Resource Management Plan Amendment.
U.S. Department of the Interior, U.S. Fish and Wildlife Service. 2011. Golden Eagles Status Fact Sheet. https://www.fws.gov/migratorybirds/pdf/management/golden‐eagle‐fact‐ sheet.pdf
Ward, A. Lorin. 1976. Elk behavior in relation to timber harvest operations and traffic on Medicine Bow Range in south‐central Wyoming. In Proceedings of the elk‐logging‐roads symposium, Moscow, Idaho, Dec. 16‐17, 1975, p. 32‐43. Susan R. Hieb, ed. Univ. Idaho, Moscow.
Wasley, T. 2004. Mule Deer Population Dynamics: Issues and Influences. Nevada Department of Wildlife Biological Bulletin No. 14.
Witmer, G.W. and D.S. DeCalesta. 1985. Effects of forest roads on habitat use by Roosevelt elk. Northwest Science (2): 122‐125.
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Appendix D – Timeline
The following timeline summarizes the case. This is not a complete timeline of all events and correspondence. It is meant to summarize key events, decisions, and milestones related to the case. All events are based upon records held by the BLM at the Prineville District Office related to the case.
Date Event and/or Action 1988, February BLM acquires an isolated 80 acre parcel from the State of Oregon with the case identified as a “Clean‐Up” Exchange to meet In‐Lieu (OR‐39641) in the SENW and NESW of sec 8, T. 16 S., R. 18 E. The State of Oregon’s objective was to clean‐up the unmanageable scattered parcels. The BLM’s objective was to block up and create more contiguous public lands. The lands were undeveloped at that time and the State of Oregon reserved the minerals. That same year the private property adjacent to this parcel is purchased (private lands are located within sec. 9, T. 16 S., R. 18 E). 1989, July Brothers La Pine Resource Management Plan is completed and a decision is issued. This plan incorporated the lands acquired from State of Oregon in sec. 8, T. 16 S., R. 18 E. 1995, April Private landowners within sec. 9, T. 16 S., R. 18 E apply for permit with Crook County to construct log house. Crook County planning department approved application for site plan within sec. 9, T. 16 S., R. 18 E. House is eventually constructed, but in Section 8 and on public lands. The exact details of how this mistake occurred are not clear. In addition to the house, irrigation piping, water lines, septic system, a barn, roads, and other improvements on public lands are constructed. A portion of public lands are also cleared for alfalfa. 2008, March Private property within 9, T. 16 S., R. 18 E and adjacent to public lands in sec 8 are sold. Buyers hereinafter is referred to as Landowner A. House on public land is included in sale. The statutory warranty deed is dated March 27, 2008. The deed is recorded in Crook County on March 31, 2008. 2008, April Landowner A contacts BLM regarding the house potentially being located on public lands. BLM meets with Landowner A and original private landowners regarding trespass. BLM explains trespass regulations to all parties involved including the need for cost recovery to accomplish resolution and NEPA requirements (e.g. completing an Environmental
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Assessment). Additionally, BLM explains that the resolution process would be public, as well as some options the BLM could consider including removal of structures and land disposal. Soon after the meeting, BLM employees go to the field to look at the trespass and take photos. 2008, April‐July Initial administrative processes completed by BLM including making estimates for costs related to resolution. During this time BLM Law Enforcement was made aware of the situation. An investigation to determine if there was criminal intent/the trespass had been willful was initiated. 2008, July Cadastral Surveyors along with Prineville BLM employees complete initial survey as well as receive needed permissions to cross private lands in area. House and other improvements are confirmed to be on public lands. During the surveyors’ investigation, Landowner A states that he became suspicious approximately three days prior to the sale closing that the house may have been physically located on public land. Final survey report is submitted in August. 2009, March Landowner A concurs with BLM findings that house is on public land. Landowner A commits to working with BLM to resolve trespass. Subsequent calls/meetings with Landowner A clarify the requirements of cost recovery, trespass regulations, NEPA requirements, etc. 2009, October Trespass Resolution for T 16 S., R 18 E., Section 8 is put into program of work for BLM Prineville District for Fiscal Year 2010. It is anticipated the project will begin after the New Year. This is dependent upon the status of the BLM Law Enforcement Investigation. 2009‐2012 While BLM Law Enforcement Investigation is on‐going updates are provided to Landowner A upon request. During this time, an email sent on January 18, 2011 from Landowner A to BLM indicates a willingness to consider a land exchange as one option for resolution. 2012, December BLM Law Enforcement Investigation Closed – Criminal intent not found. 2013, January BLM researches the possibility of considering land disposal as an option for the resolution. The issues raised are: The fact the land was acquired from the Oregon Department of State Lands (if there were any clauses that would prevent it); and Status of land in Resource Management Plan. The property is identified as Zone‐1 for retention in the Brothers La Pine Resource Management Plan (1989). To consider for disposal, the BLM deems a plan amendment necessary.
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2013, March‐ In March, Landowner A contacts BLM regarding interest in land November exchange. The proposed exchange would involve acreage from a private land parcel for the acreage containing improvements on public lands related to trespass case. In April, BLM staff conduct a field visit to Private Land Parcel being considered for exchange. Over the next few months the possible resolution alternative is further analyzed. In July the BLM decides not to further consider a land exchange. The BLM communicates its determination to Landowner A in July and again in November, with clarification that a disposal would be considered, but not an exchange.
2014, March BLM sends letter to Landowner A explaining disposal (e.g. direct sale) process and procedures related to NEPA and BLM regulations as possible alternative to resolving trespass. Additionally, BLM shares an estimate of the cost of the project with Landowner A for review and concurrence. 2014, June Land description review is sent to cadastral surveyors for purposes of completing initial survey work. 2014, July BLM sends letter to Landowner A with description of possible land disposal alternative based upon recent conversations, clarification that the alternative would be analyzed within an Environmental Assessment (EA), and that to complete this process cost recovery would be required. A cost reimbursement agreement is enclosed with the letter. Later that month the reimbursement/recovery agreement is signed by both the BLM and Landowner A. 2014, October Prineville BLM Office begins working with BLM State Office on process to amend Resource Management Plan for the purposes of converting up to 80 acres of public lands within the Brothers La Pine RMP from Z‐1 (retention) to Z‐3 (potentially suitable for transfer and/or disposal). 2015, January BLM initiates EA process with interdisciplinary team. BLM plans to work on EA concurrent with process to amend Resource Management Plan in hopes of creating efficiencies in resolving trespass. 2015, March Prineville District sends letter to OR/WA State Director requesting permission to initiate a Land Use Plan Amendment in order to change land tenure and resolve the trespass. 2015, May OR/WA State Director sends letter to Prineville District authorizing a Land Use Plan Amendment in order to change land tenure and resolve the trespass.
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Correspondence from the BLM Washington Office (WO BLM) regarding an initial review of the case clarifies that the BLM must consider the smallest sized parcel possible for disposal to resolve trespass. The WO BLM also clarifies the alternatives needed to create a reasonable range, and that 80 acres would exceed a minimal sized parcel required to resolve the trespass. Working with the cadastral surveyors, the BLM reduces size of the parcel for the proposed action from 80 acres to 17.5 acres. The BLM communicates the reduction in acreage to Landowner A with rationale that same month. The BLM also communicates to Landowner A that the BLM must consider a range of alternatives including a no action alternative and the removal of structures.
Landowner A requests that the option of a land exchange be considered again as well as a lot line adjustment. The BLM does not further consider a land exchange at the time. 2015, July The BLM Interdisciplinary Team completes the initial outline of the EA as well as a draft list of issues to resolve. Work related to these issues, including wildlife, botany, etc. is already underway and continues to progress through the summer and into the fall. 2015, July‐ Tasks related to the RMP Amendment, including draft Notice of Intent December and related federal register documents as well as associated briefings and updated project timelines, are completed for WO BLM review. Documents are submitted to WO BLM in December of 2015.
During this time, surveys for various disciplines are completed by BLM Prineville District Staff including cultural surveys, assessments of wildlife habitat, etc.
The Greater Sage‐grouse Plan Amendment of all Resource Management Plans within Oregon‐Washington is completed and a final decision issued (September 2015). 2016, January ‐ BLM WO completes initial review of documents submitted for Notice of February Intent to amend the RMP and conduct a federal register notice. Based upon their review, BLM WO recommends that the Prineville District ask for a review by the Solicitor’s Office. A request for legal services and a review of project is submitted to the Solicitor’s Office in February of 2016.
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2016, February – Following both the WO BLM and Solicitor’s Office reviews, the BLM June Prineville District Office works to answer follow‐up questions and provide clarifications regarding the case history including: What permits were issued for the building of the house; Additional details related to the purchase of the private land and house on public lands; and Information on any taxes paid on structures build on public lands; 2016, July A conformance review for Greater Sage‐grouse habitat as well as what effect the Great Sage‐grouse RMP Amendments had on the Brothers La Pine RMP are completed. Based upon this analysis the BLM determines that an RMP Amendment to change the classification of the area involved from Z1 to Z3 is no longer necessary. As long as mitigation measures are followed per the Sage‐grouse RMP Amendment, the BLM could consider disposal as an alternative for trespass resolution.
This same month the BLM interdisciplinary team visits the site of the trespass to confirm location of encroachments. 2016, July – 2017 An issue regarding the ownership of the house on public lands is raised March by the BLM and Solicitor’s office. Based upon the fact that the land purchased by Landowner A did include the value of the house on public lands, but not a legal description of its location, it is deemed uncertain if Landowner A had in fact legally acquired the house. Working with Landowner A the BLM is able to receive a Bill of Sale proving that the house on public lands was in fact purchased with the private lands. 2017, June‐ Scoping letter released to public asking for input regarding the August development of alternatives for the resolution of the trespass. Two letters are received both suggesting that either land exchange or disposal should be considered. 2018, February The BLM raises the option of a land exchange with Landowner A again and offers to reconsider this as an alternative. Landowner A tells BLM that they do not wish for the BLM to consider a land exchange because the BLM previously had rejected it as an alternative. The parties are unable to agree on a potential land exchange that would present a viable alternative. 2018, March‐ BLM completes EA. May 2018 it is released for public review. May
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