HomeMy WebLinkAbout20070328.tiff United States Forest Arapaho and Roosevelt 2150 Centre Avenue,Building E
USDA Department of Service National Forests and Fort Collins,CO 80526-8119
-- Agriculture Pawnee National Grassland Voice: (970)295.6600 TDD: (970)295-6794
Web: www.fs.fed.us/r2/arnf
Fax: (970)295-6696
File Code: 1570
Date: January 18, 2007
Board of County Commissioners
Of the County of Weld
P.O. Box 758
915 10th Street
Greeley, CO 80632
Dear Chairman Geile:
Pursuant to 36 CFR Part 215, I have reviewed the appeal record with regard to your appeal of the
October 13, 2006 decision of District Ranger Steven R. Currey on the Environmental
Assessment of the Black Tailed Prairie Dog Management on the Pawnee National Grassland. I
have also considered the written recommendation of the Appeal Reviewing Officer respecting
the disposition of your appeal. The Reviewing Officer's review focused on the decision
documentation developed by the District Ranger and the issues raised in your appeal.
Decision
The Reviewing Officer, based on review of the record, found no evidence of the decision
violating law, regulation or policy, and recommended the decision be affirmed in whole with
respect to your appeal. After my review of the appeal record, I concur with the Appeal
Reviewing Officer's recommendation and I adopt and incorporate it into my decision. It is
enclosed and your request for relief is denied.
My decision constitutes the final administrative determination of the Department of Agriculture.
Sincerely,
/s/Glenn P. Casamassa
GLENN P. CASAMASSA
Forest Supervisor
Appeal Deciding Officer
Enclosure
cc: Steven Currey
00 ', 04, G1-
Caring for the Land and Serving People 2007-0328
nti sc71 t 679-
Q 0 07
United States Forest Rocky P.O.Box 25127
•_' Department of Service Mountain Lakewood,CO 80225-0127
Agriculture Region Delivery: 740 Simms St.
Golden,CO 80401
Voice: 303-275-5350
TDD: 303-275-5367
File Code: 1570(200-02-) Date: January 16, 2007
Route To:
Subject: Recommendation Memorandum for Appeal of Black-tailed Prairie Dog
Management Decision
To: Appeal Deciding Officer
I have reviewed the appeal record regarding the November 26, 2006 appeal of the decision of
District Ranger Steven Currey concerning the Black-tailed Prairie Dog Management Decision on
the Pawnee National Grasslands by the Weld County Commissioners. My review of the appeal
as submitted by eligible appellant focused on the decision documentation developed by the
District Ranger in reaching his decision in relation to issues raised in the appeal. Pursuant to 36
CFR §215.13(0(2), this will constitute my written recommendation concerning the disposition of
the appeal, and I am forwarding the appeal record to you.
BACKGROUND
On March 10, 2006, the District Ranger on the Pawnee National Grassland sent out a scoping
letter to begin the analysis of livestock grazing and associated activities in several grazing
allotments on both districts.
RELIEF REQUESTED
The Appellant seeks to have the Responsible Officials decision overturned, and have Alternative
2 be chosen as the preferred alternative.
ISSUES AND DISCUSSION
Appeal Issue 1: The decision does not adequately address the effective use of buffers on the
allotments where the prairie dogs would be allowed under Alternative 3 (allowed allotments).
No buffers are proposed except on the allotments near the towns of Keota and New Raymer, and
the Crow Valley recreation center.
Discussion: The appellant points out that, in most of the allowed allotments, prairie dogs will be
able to colonize up to private land boundaries before any control action might be triggered. The
appellant questions why buffers were not imposed on other allotments, even buffers of -mile or
less in width.
The appellant does not allege any violation of law, regulation or policy. Concerning the
rationale for their use, buffer zones were considered but dismissed as an issue early in the
process (Binder#2, pg. 909), but were included around the areas stated by appellant in
Caring for the Land and Serving People Printed on Recycled Paper°
Alternatives 2, 3, 4 and 5, primarily to address safety and health issues (Binder#3, pg., 1666—
Appendix G, pg. 15). Both the issue analysis (dismissal) and the response to comments cite
analysis showing that 1/4-mile wide buffer zones imposed in a highly fragmented land ownership
situation would eliminate 60% of the current prairie dog colonies on the Pawnee National
Grassland(PNG). Wider zones would eliminate over 90% of current colonies. This would not
meet the purpose and need for the project.
Concerning use of buffers less than 1/4-mile in width, the response to comment 39-2 points out
that prairie dogs commonly disperse up to 3.0 miles, and dispersals of up to 6.0 miles have been
documented, thus even a 1.0 mile buffer zone would not ensure that prairie dogs would not
disperse from federal lands onto private lands (Binder#3, pg. 1667 —Appendix G, pg. 16). The
responsible official did not believe buffers less than '/4-mile in width would be effective.
Recommendation: Recommend the District Ranger's decision be affirmed on this issue.
Appeal Issue 2: The decision does not adequately address the management of soil wind erosion
from established prairie dog colonies on the allowed allotments. All landowners in Colorado
are required by Section 35-72-103 of the Colorado Revised Statutes to prevent soil from
blowing.
Discussion:
Weld County asserts that the Decision fails to consider how adoption of Alternative 3 "will
threaten violations of Colorado law" as required by 40 CFR 1508.27(b)(10). Review of the state
statutes cited by Weld County does not indicate that Alternative 3 will lead to any violation of
Colorado law. First, Weld County indicates that there may be a violation of Colorado law which
prohibits creating a "nuisance." However, the County fails to give a complete citation to the
state law. We note that from the purpose and need statement right through the decision making
process, the decision is expressly aimed at preventing prairie dog movement from federal to
private or state land. Thus, we see no likelihood of prairie dog movement under Alternative 3
violating state nuisance laws. Second, the County asserts that Alternative 3 may lead to violation
of state statutes that allow the County to issue citations to landowners that create "emergency
conditions" by allowing blowing soil from their land to damage adjacent land. However, the
County has made no determination that any such "emergency conditions" exist on the PNG.
Both the state nuisance law and the "blowing soil" law appear to contemplate specific instances
where violations are occurring. The state law does not appear to apply to a decision adopting a
plan to manage prairie dogs. Should the County feel that specific instances that occur after
Alternative 3 is being implemented may violate state law, the District will work with the County
to address site-specific concerns. This does not mean that the PNG concedes that it would be
bound by state law and any claim that specific situations violate state law would have to be
evaluated to determine whether state law applies or is pre-empted under the Supremacy Clause
of the Constitution. Finally, we note that the County cites C.R.S. Section 35-72-106 as creating
a cause of action for property owners "who have been damaged from the accumulation of soil
blown from adjacent properties." However, the cited statute merely provides a cause of action to
a property owner to challenge an assessment against his land by the County, it does not provide
any recourse against the owner of the land from which the soil originated.
Recommendation: Recommend the District Ranger's decision be affirmed on this issue.
Appeal Issue 3: The Decision lacks details as to where the funds will come from to pay for the
additional costs incurred by the PNG in the course of inventory, monitoring and control actions
described in the Decision associated with Alternative 3.
Discussion: This appeal issue fails to identify where or how the decision does not comply with
law, regulation, or policy. The EA and DN do not identify additional or new costs associated
with inventory or monitoring under Alternative 3—beyond those incurred in their current
inventory and monitoring program. Control actions and normal Grassland operations will be
contingent on annual federal budget allocations.
Recommendation: Recommend the District Ranger's decision be affirmed on this issue.
Appeal Issue 4: The Decision lacks complete information regarding the current numbers of
prairie dogs on allowed allotments.
Discussion: The appellant alleges that population numbers of prairie dogs on allowed allotments
are lacking. With regard to sensitive species management policy (FSM 2672.42), population data
is not required in order to estimate effects to sensitive species. Prairie dog population is closely
tied to the size (acres) and number of individual colonies (towns). A history of active and
inactive black-tailed prairie dog towns on the Pawnee National Grassland, by allotment, is
provided in Table A-3 in the EA (pps 166-172). Population trend changes, by allotment, from
1981-2005 are illustrated in Table A-4 of the EA (pps 173-174). Data from 2006 was not used
for the project. Current (2006), specific numbers of prairie dogs were not illustrated in the
Decision; however, a table in the project record (Binder#2, pps 001131-001135) does contain
information on estimated number of prairie dogs per allotment. This information would have
been available to the appellant prior to the appeal by contacting the district office. Since prairie
dogs are quite mobile, the possibility exists that occupied areas could have changed between
2005 and 2006, which could explain Mr. Long's assertions in the Affidavit dated 22 Nov 2006.
Recommendation: Recommend the District Ranger's decision be affirmed on this issue.
RECOMMENDATION
I recommend the decision of the District Ranger be affirmed and the Appellant's request for
relief be denied.
/s/J.R.Hickenbottom
J.R.Hickenbottom
Appeal Reviewing Officer
Hello