Free Declaration - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB
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.1..

. Jose M. Maez, Forest Supervsor
Foraelrange gudelines

49

The cOOent rage conditions are explaied under the environmenta baseline section above.
Thus they are not repeated here. Field observations in 1999 indicated range conditions were

poor to fair and were decling (Forest Service 1999). We agree with the Forei;t Service's
conclusion that a downward trend in range condition can be expected from the curent grazg
pressue (Forest Service 2002). We believe their data

indicate tht cuient rage conditions are

declinng, and it is likely that someMSO P ACs containing meadows that are withn ~ mile of nest/roost areas may be in poor condition.
The effects of heavy grazng ha reduced herbaceous cover and grass/forb herbaceous ground

cover height, likely resultig in a significant decrease in the number of voles withn some PACs voles . increased with abundace of herbaceous (grass/forb) height and cover. The inormation in the collected from 1991 though August 2003, consistently indicate that the
(Wa2-O1; Ward pers. comm., 2004). Ward (2001) found that density and biomass of DEIS, the BA,and data.

foragetrage guidelines have not been maintained on the Sacramento Allotment. The Forest

Service concluded in the DBIS and BA that the present range management is inconsistent with
the Förest Plan stadards and guidelines (Forest Service 2003a). We agree With this conclusion.
Our curent policy for conducting

section 7 consultation on the MSO states that incidental tae is

that does

likely if a habitat alterig action compromises the integrity of the PAC (Le., an action is proposed not fall under the specific recommendations of the Recovery Plan) (Service 1996a).

A multitude offactors (e.g., weather patterns, fluctuating prey populations, etc.) infuence the the MSO and these factors change.yearly, suggesting that the amount of
nesting success of

foraging and protective cover an MSO may need on a given year may also chage. IUs possible
that MSO pairs that lose a small amount of

habitat withn a 600-acre PAC are able to survive and
foraging

successflly reproduce in good years or make up for this loss of habitat by foraging beyond the
designated boundar of the PAC. However, the additional energy expenditue of

beyond PAC boundaes may reduce the likelihood of reproductive success. As a result, we are concerned about the condition of meadows within the Sacraento Allotment, and the possible

effects on MSO prey habitat.

. The BA states that when forage utilzation of35 percent is met on the sumer range, it will provide adequate herbaceous habitat for prey species. The BA also indicates that in meadow
areas within PACs (Le., 5 to 16 percent ofPACs), grng levels may not provide habitat for prey

or support prescribed fire. These statements appear to contrdict one another. The DEIS the 35 percent utilzation is a guideline thát could
provides some clarity to the statements, in that,

be exceeded durng dry periods (Forest Servce 2002; p. 63). The BA also indicates that the
forage utilzation is not an upper limt, but only a guide and that preCise attainment of allowable
use does not have to occur for rage conditions to be improved Forest Service acknowledges in their BA that rodent prey habitat may not be

(Forest Servce 2003a). The

attined if: 1)

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Jose M. MareZ, .Forest Supervisor
forage utilization is; too high; 2) forae growing conditions are below

wht waS expected in a . ..given year; or 3) drought conditions persist. In fact, the Forest Servce acknowledges in their BA and DEIS, tht their proposed action allows adverse effects to MSO prey cover because the 35
perceøt gudeline could be exceeded durg

dr periods (Forest Servce 2002, p. 63).

The Forest Service states in the BA tht with the meadow habitat of the Sacramento Allotment, is expected to be retained with all P ACs to provide agree with this conclusion
sufcient herbaceous and woody vegetation for MSO prey and to support prescribed natu and ignted fires. We

for the followig reasons. First, the Recovery Plan proVides diection for grazg mangement
thtwiU expedite improved range conditions and assist in the recovery of

the MSO. We believe

the curent proposal to establish forage/rage gudelines is consistent with the Recovery Plan and . Forest Plan Anendments, when the stadards and guidelines are implemented and enforced in all
protected and restcted MSO habitat. The Recovery Plan and Forest Plan Amendments reiterate

tht forage/range stadads and guidelines wil expedite attining and maintaining good to of the proposed forage/range conditions. We acknowledge tht attainment excellent rage guidelines may not be possible every year of the permit (e.g.~ see discussion below); however,

over the span of 10 years, we anticipate that the forage/rage guidelines will improve the overall
rage conditions and a,dverse afects to MSO will be reduced.

As noted above, we understad that during some years, the forage/range guidelines may not be will administer the Sacramento
attined. Neverteless, we expect tht the Forest Service

Allotment permt consistent with the Lincoln National Forest Plan, which includes maintanig

the proposed herbaceous ground cover height and forage utilzation, even durng drought conditions. We reached this conclusion based upon the following analyses in the DEIS: 1) allowable uSe guidelines (Le., forage/range guidelines) would require that cattle be moved when the
forage is not sufcient to protect riparan and aquatic system&; i) durg dr periods

allowabie use guidelines (Le., forage/range guidelines) must be followed or the effects from the proposed action would be identical to curent conditions (e.g., overutilization offorage) and not

adhere to the Lincoln National Forest Plan; 3) the variable stocking nite in the permit reflects that
durng dr periods livestock numbers can be reduced when required to meet forage/range

guidelines (Forest Service 2002); and 4) the Forest Service intends to manage and protect longterm range conditions consistent with their range management regulations (e.g., see 36 CFR 222)
We agree with the Forest Service's conclusions in the DEIS that the proposed action will re~ult in a gradual improvement of rage conditions; We expect that MSO prey habitat wil be
maintaed and improved over the life of strve to

the 10-year permit, and that the Forest Service will meet their forage(range guidelines. As provided in 40 CFR 402.16, reinitiation of

formal consultation may be required if rage conditions do not show lmprovement or if the Forest Servce does hot attempt to meet these forage/range guidelines as they are described in
.

ths consultation.

. We identified 6 P ACs withn. the Sacraento Allotment that contain greater tha 50 ac of
meadow habitat (~dio Tower, Wilmeth, Bluff

Springs, Dark, Lightning, Hubble). Although we

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Jose M. Marinez, Forest Supervisor
.do not have inormtion on the rage/forage conditions with four of . Wilmeth Dark.. or Lightng), we believe tht grazg in meadows can adversely

51

these P ACs (Radio Tower, afect breeding

MSOs when rage/forage guidelines

are not iiaitaed because prey habitat.is expected to be

negatively afected. It is unown whether these four P ACs are cuIently being adversely

afected by forage/rage conditions.. Neverteless, it is our expectation tht rage/forage conditions will improve under the curent proposed action, because.they will be applied across

the landscape and should result in management activities that will minimiz adverse impacts to .

. theMSO by maitanig and restoring good rage conditions:
Information is available for the Hubble ard Bluf Springs P ACs that indicate forage/range
conditions are below the establishedguideIines (Table 4). Ward and Block (1995) indicate that decreases in populations of voles and increases in populations of deer mice are expected in

the southwest from moderate to heavy grazng. They believe that such decreases in 1he number of voles could negatively infuence MSO in several recovery unts, are used as alternative food sources when other prey aredimInshed. Increases in deer mice abundance in meadows probably would not be offset by decreases in vole numbers, because voles provide greater biomass (Ward and Block 1995).
upland meadow habitats of including the Basin and Rage EaSt, where voles are common prey or

that about 2.4 in of

It is important to note that Ward (2001) found that grass-forb stubble height had a strong positive Mexican voles and long-tailed voles, two species commonly consumed by MSO in the Sacramento Mountains. .He indicated that voles require herbaceous vegetation for food and cover (e.g., see also Birney et al. 1976; Johnson 1981), and maxmum grass-forb stubble height was a threshold, above which Mexican vole abundance increased with increasing height of both grasses and forbs durng
association. with sumer abundace of mean

sumer months. There also appear to be a maximum grass-forb stubble height between 4.6 and
6.4 in. Beyond this upper threshold rage, increased stubble height of grasses and forbs would .

benefit vole populations, but provid~ little direct benefit to MSOs (Le., MSO access to captung

voles is expected to be diminished as stubble height increases above this rang.e) (Ward et al. In . . prep.). Ward (2001) also found that increasing grass-forb height was positively associated with population abuidance of deer mice. All three species (i.e., Mexican voles, long-tailed voles, and
deer

mice) depend on sufficient grass-forb height to provide for food and/or cover (Johnson

1981; Davis and Schmidly 1994, Ward 2001). On average, no Mexican or long-tailed voles would be expected to occur in key grazing areas when grass-forb height is below 1.6 in, but 4.5 both voles species (Ward 2001). In fact, one method frequently recommended by Cooperative Extension wildlife specialists to
to 6.2 in of herbaceous ground cover maximizes availabilty of

control darage from a varety of vole species including the Mexican and long-tailed voles, is

mow or eliminate ground cover of grasses or forbs (Andelt and Ahed 2003). They indicate that
summer removal of grses and forbs will diminish the amount of available vole habitat and

. threshold (Table 4), we believe the amount of

reduce their numbers because voles avoid exposed areas (Andelt ard Ahmed 2003). Because the Hubble and Bluff Springs P ACs had maxmum grass-forb stubble heights below this lower reduced.
suitable MSO prey habitat is curently

This conclusion is substatiated by abundance estimates from July and August 2003 that
.'

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Jose M. MarneZ, Forest Supervisor
. . . estiàted:1Qw numbers of voles (Hubble

52.

Mexican voles (Hubble = 0 and Bluff Springs 47) ard long-taled
= 2 and Bluff Sprigs 0) with key areas of these .p ACs (Ward pers. comm.,

2004). .

Although we believe that the curent proposal will gradualy improve the rage/forage conditions withn the Hubble and Bluff Springs P ACs, the curent degraded conditions with these P ACs,

indicate that the rage/forage gudelines may not be attned with the next few years. Par of
our rationale is that the DEIS discusses that "once (forage) guidelines are achieved" riparan habitat would move toward good conditions, prey habitat requirements for the MSO would be
provided, and natu and prescribed fire would be supported within and outside of P ACs (Forest

and the BA indicate that without adequate herbaceous ground cover height, overall density ard biomass of voles will continue to be. . minial, resulting in lower numbers ofMSO prey. These effects are considered adverse,
Service 2002). Inormation from Ward (2001)

espeialy since these acons are not consistent with the Recovery Plan (Service 1995a) and the

Forest Plan Amendments. We believe that these actions could result in a significant portion of the habitat being lost or modified, disrupting normal behavior patterns such as breeding,
shelterig, or feeding. As discussed above, desired range conditions for some PACs (Table 4)
will not be met

instantaeously, when the permt for the Sacramento Allotmentis issued in 2004.

We believe that failing to att the forage/rage guidelines will result in reduced MSO prey, and

likely temporarly compromise the MSOs in these P ACs durng the next few breeding seasons. to cause avoidance/abandonment or lead to future Springs PACs. Until the monitoring data indicate that the .forage/range guidelines are met thoughout the year, we conclude that harassment will occur for - the Hubble and Bluff Sprigs P ACs.
Neverteless, these impacts are not expected unoccupancy of the Hubble or Bluff

The Forest Service has proposed that they will consider the effect of deer and elk on the

allotment. There are a significant number of elk on the Sacramento Allotment. In Forest
. Guadians v. United States Forest Service, and Sacraento Grazing Association v. United States
Deparent of Agrculture Civ. Nos. 00-490 JPIRS and 00..1240 JPIRS (Consolidated), the
. United States Distrct Cour for the District of

New Mexico found that the Forest Plan Amendments mandates the Forest Service to maintain forage use that assures the recovery and continued existence of listed species, and requires that they ensure consumption of forage by livestock and wild ungulates (e.g., elk) does not exceed set utilzation levels. The present level forage being. used by wildlife is about 25 to 40 percent (Forest Service 2002). In 2001, thé of New Mexico Deparent of Game and Fish changed the management objective for game. management unit 34. A 5-year plan was adopted to reduce the number of elk from about 4,000 to 1,000 across the .entire game management unt (Forest Service 2002). The Forest Service has
not described how they would consider the effect of deer in the fortcoming AM and wil

and elk; however, we assume that this

likely include monitoring herbaceous ground cover height and forage utilzation in relation to use (see also New Mexico Game and Fish 2001). Similar livestock-elk issues have been successfully Deparent of
information will be detaled

resolved though.AMs (e.g~, see Robert and Becker i 981). .

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Jose M.Marez, Forest Supervor
Monitori~

53

The proposed action includes the following monitoring, in addition to establishing thesholds of when mangem~nt chages are neëed (Attchment A). Proposed monitoring includes viits on: 1) May 1st or prior to the entr of cattle to the winter and summer pastues; 2) May 31 st or withn the
15 da~s after livestock leave winter pastues; 3) August 1st at approxiately the mid-point of

grg season or 10 days after rai sta in the summer unt (monitorig in all key areas will
determne if

the 4-in herbaceous ground cover height is being achieved); 3) both the sumer and

unt in October. The Forest Service indicated that management action wil be taen if

the permitted grazg season; and 4) the winter the forage/range guidelines, as described above (Le., h~rbaceous ground cover height and forage ths process, they will also include the effect of elk and deer on forage/range guidelines;
witer pastues Within 15 days afer the end of utilzation), are not met. As par of The Forest Service will also: 1) conduct regularly scheduled

and unscheduled allotment

inspections to determne the condition and effciency of range improvements, forage utilization,
.

livestock distrbution pattern, and locations of salt and mineral supplements; and 2) measure long-term range condition and trend in established Parker monitorig locations durng the life of
the 10-year gring permit; and 3) assess adherence to the prescribed forage/range guidelines
using, for example, leaf

length or other measurements the Forest Service determines are appropriate on key forage species.

Although the BA did not identify the methods that will be used during these inspections, we will provide this inforration to the Service
assume that, as discussed above, the Forest Service

durng the development of an AM. In our conversations with the Lincoln National Forest, they

indicated that adaptive management could be used for the puroses of resource protection when monitorig indicates that forage/range guidelines are not being met (L. Sansom, Forest Servce, peTS. comm., 2003). Although Attchment A provides some information related to monitoring, additional detals relat~d to monitoring and subsequent management actions are vague in the BA
and DEIS. For example, the Lincoln National Forest did not indicate how the monitoring data
were going to be

used to evaluate or adjust livestock numbers, actively manage livestock (e.g.,

strategic placement of salt or mineras, herding, or fencing), or enforce permit compliance. We

assume these specific momtoringmethods wil use the established thesholds (Attachment A),
with fuher details in the AM. As an example, we believe that when monitoring occurs within

a specific pastue within the allotment, this information could be used to manage appropríate
livestock numbers or determine whether anual operating instructions or the term permit should

be modified. Ths type of adaptive management process would ensure forage/range guidelines
wil be attned by describing the monitoring and potential management actions that would be

utilzed such as: 1) moving livestock to òther areas of the pastue or to a new pasture; 2) livestock; or 3) other appropriate measures.
removingor reducing the number of

The .proposed monitoring entails evaluating range conditions prior to the entr of livestock into a range
pastue (range readiness). The F,orest Service established a I-in leaf length standard of

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Jose M. Marez, Forest Supervisor
. readiness. As noted above, the intent of the Recovery Plan is tht

54
the grg standards and

guidelines are applied yea-round (Service 1999), whereas the Forest Plan Amendments across the landscape in all vegetation.
indicated that grag/forage guideliies will be applied

tyes (Forest Service 1995). We believe that the Forest SerVice intends to provide for yea-round
the Mexican vole would be provided.

applicationofthe forage/range gudelines, because, the DEIS indicated tht adequate habitat for durng late fall, winter, and sprig (Forest Service 2002).
durng late fall, winter, and sprig, which will

Thus, we anticipate that the Forest Service will attempt to meet the forage/range gudelines

limt adverse effects to the MSO and its habitat.

The curent proposal establishes a monitoring-management theshold based on a 4-in herbaceous ground cover height not being met or maintained in key areas (Le., when monitorig demonstrates that the 4-in herbaceous ground cover height has not been maintained in key areas in the pastue, management adjustments will be made so that forage/range guidelines wil be
attined). Based on ths scenario, adjustments wil be made when non-compliance occurs in key
areas withn a pastue. Excessive forage utilzation has been a continual concern on the

Sacramento Allotment since 1991 (Forest Service 2002). Present management is not consistent the Lincoln National Forest Plan (Forest Service 2002). Currently, riparan conditions on the allotment do not meet Regional Plan criteria, the ecological conditionofthe range is nofsatisfactory, and many key areas have not met or maintained leaf . lengt herbaceous ground cover height or utilzation guidelines (Forest Service 2000d, 2001, 2002, 2002b, 2002c, 2003a, 2003b, 2003c, 2003d).Curent rage conditions do not meet the
with the stadards and guidelines of

the Recovery Plan, the MSO grazing criteria, the Lincoln National Forest Plan or the Forest Plan Amendments; however we believe the curent proposed action is consi~tent with these guidance documents. Consequently, the propósed monitoring and related management
intent of thresholds will

limit adverse affects to the MSO and its habitat, and should achieve compliance with the Recovery Plan, the MSO grazng criteria, the Lincoln National Forest Plan, or the Forest
Plan Amendments.
The Forest Service provided maps of

key areas, which were established following the criteria

cited in the Forest Plan Amendments. The 2003 anual operating instructións indicated that key

areas were within upper Kerr Canyon, Benson Canyon, Lucas Canyon, Dark Canyon, Hay
operating instrctions
Canyon, Wils Canyon, Rice Canyon, and McAfee Canyon. The anual

also indicated that these key areas wil be monitored in May, August, and October to determine
compliance with forage/range guidelines (the 2003 anual operating instrctions are not par of
the curent consultation). Stil, we expect the Forest Serviceto use similar descriptions for the

current proposed term permit. The Forest Plan Amendments detailed that these key areas will normally be 1/4 to 1 mile from water, located on productive soils on level to intermediate slopes, fully described in the
and be readily accessible for grazing. We assume these key areas will be

forthcoming AMP. These key areas and related monitoring must be established to limit potential
adverse effects to MSO prey.
. In sumar, the Forest Service has proposed monitoring to determine whether grazing levels

comply with the i O-year term permit for the Sacrameiito Allotment. It is our understanding that .

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. Jose M. Marinez, Forest Supervisor
these data

55

herbaeous ground cover

will assess whether the followig proposed forage/range guidelines are met: 1) the4~in height for MSO prey habitat; 2) the 35 percent forage utiliztion for the 4) the 70 percent forae

sumer unt; 3) the 40 perent forage utiliztion for the witer unit; and

utiliztion guidelin for livestock trps. We aSsume tht methods and procedures to mange and monitor the Sacramento Allotment will be detailed. in the fortcomig AM. For exaple, we ..
anticipate that when the Forest. Servce determnes one of the forage/range guidelines will not be met, they would followa similar process to manage and protect long-term rage conditions with the Lincoln National Forest Plan and rage management reguations (e.g., see 36 CFR 222). Ths administrative process will generally provide adequate protective measures to . limit adverse impacts to the MSO and its habitat.
consistent

. Interdependent and Interrelated Actions

We also must consider indirect effects and the effects of interdependent and interrelated actions this proposed project to the MSO. Indirect effects arethose.that are caused by, or result from, the proposed action, and are later in time, but are reasonably certn to occur. Interrelated actions larger action, and are dependent on the larger action for their justification. Interdependent actions are actions that have no independent utilty apar from the
of are actions that are par of a

action under consideration. The livestock projects, including exclosures, livestock trps, and the
use of salt blocks and other livestock management activities (e.g,. vehicle use) are interrelated and interdependent with the implementation of the proposed p'roject. Many of

considered these

activities relate to grazing criteria number 1, which applies to limiting disturbances to MSO

P ACs durg the breeding season. . .
.. The proposed 70 percent forage utilzation stadard for the livestock traps is double what is being. proposed across the allotment. The significance of forage utilzation (e.g., currently
measured using leaflength) guidelines, monitoring, and their relationship to range health and

production are described in the 2003 annual operating instrctions; leaf length has been used as the metrc to describe the lower threshold to avoid damage and possible mortlity to individual the
forage plants The Forest Service documented in 2001 and 2002 that over 50 percent of

monitored key areas had leaf lengths at the end of the grazng season that exceeded establÎshed
guidelines, indicating over-use and the potential for resource daage. They concluded that the

combination of extreme forage use and drought conditions resulted in significant reductions in
forage production across the allotment. Neverteless, the proposed action is for livestock use to occur within traps durng pasture moves in early spring, mid;.sumer, and late fall. The Forest
that this action would adversely affect these P ACs. We agree with

Service concludes that habitat for MSO prey would not be provided withn livestock traps, and the conclusion, because the

action is inconsistent with the Recovery Plan and the Forest Plan Amendments.
. The Forest Service has previously indicated that musk thistle, teasel, and other noxious weeds reduce gras and native forb production (Forest Service 1995a). As noted above, voles and other species that depend significantly upon meadows for foraging or reproducing may be negatively
afected by the spread of

these noxious weeds (Forest Service 1995a). The use of livestock trps

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Jose M. Marez, Forest Supervsor
. will

56

noxious weeds an may adversely afect MSO prey

likely result in contiual growt of noxious weed. with ard imediately adjacent trps (e.g., .with 100 yards). Therefore, we conclude tht livestock trps can faciltate the spread of . habitat.

There are 25 ac of the Marcia PAC, 0.8 ac of the. Rice PAC, and) ac of the Bluf PAC tht are
withn the Peñasco.livestock trap. Ths livestock trp is proposed to receive 70 percent forage
utiliztion. We consider these impacts adverse, but believe they are unikely to result in

MSO, because the area with the Peñasco livestock trap is a mior .proporton of each of the overal.P ACs (Le., only 4 percent of the Marcia PAC and less than 1. percent of the Rice and Bluff P ACs). Other livestock traps with mior proportions of PAC
lisment or har of

acreages on the Sacraento Allotment include the Benson and Wills livestock trps. The

Benson and Wils livestock traps .contain approximately 3 and 17 PAC ac,respectively. Although 70 percent forage utilzation withn P ACs contained in livestock traps will adversely afect MSOs, we do not expect the effects to disrupt normal behavior patterns such as breeding,

shelterig, or feeding. .

proposed livestock projects on the winter unt are not expected to affect the MSO because they are outside of protected and restricted habitat. Alternatively, the livestock projects on the
The

. sumer unt are proposed to occur within four PACs (Thousand Mile, Masterson, Telephone,

and Moore). The Thousand Mile livestock trap curently exist and will have use limited to

livestock gathering periods as described earlier. Reconstrction will occur outside thè breeding
season and the PAC.is curently being monitored for the Sacramento River Road consultation

(Service 2000). We conclude that habitat for MSO prey would not be provided within ths livestock trap, and that the action would adversely affect the Thousand Mile PAC. However, we
do not expect the effects from the Thousand Mile livestock trap to disrupt normal behavior in take. patterns such as breeding; shelterig, or feeding or result

A :new 10-acre livestock trap is proposed to be constructed adjacent to .the Masterson PAC. The. the livestock trap wil increase both use and human activity within the 45-acre meadow, but this activity will not be with the Masterson PAC. .We believe that constrction activities wil increase use and human activity, but these considered adverse since they are located outside öf the PAC. Neverteless, the . Forest Service is proposing 70 percent forage utilzation withn the new livestock trap. As noted
Forest Service concludes tlat the constrction of activities are not above, this high forage utilization is considered inconsistent with

the recommendations in the .

Recovery Plan and Forest Plan Amendments to maintan good.to excellent grazng conditions.
For this reason, we conclude that the adjacent P ACs (Le., Masterson and Telephone) will be adversely afected, but we do not expect the effects to disrupt nOfial behavior pattern such as breeding, sheltering, or feeding.
A 10-acre livestock exclosure is

proposed within the Telephone PAC to limit impacts on the
this exclosure would

Forest Service s~nsitive plant, Lilumphiladelphicum. Constrction of

be

completed outside of the MSO breeding season, and is not expected to adversely impact the Telephone PAC. Similarly, the sunpot pipeline is proposed for reconstrction within the

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Jose M.Marez, Foreat Supervisor
Moore PAC. Ths project would be completed outside of other water improvements, is expected to distrbute grg

57
the breeg season and, along with

use. . For these reasons, we do not

anticipate adverse.afec wil occur to the Moore PAC.

waters, salt, and . nutrent supplements) are proposed to be conducted inside of some P ACs and durg the MSO hreeding season. For example, saltig is proposed to occur with the lower Wils and other P ACs. Althoug the Forest Servce determned that these impacts will be incidental, we believe they have the potential to concentìte livestock with P ACs and/or riparan areas, both of which appear to be inconsistent with the Recovery Plan and Forest Plan Amendments. We believe that
. .Additiona activities that concentrte cattle (triling, gathering, and placement of

salt blocks placed with P ACs or riparan areas is not conducive for attinng good to excellent

rage conditions withn the key grng areas or to restore good conditions to degraded riparan
counties as soon as possible. For ths reason, we expect these P ACs will be adversely

afected by these activities.
The use of

interdependent with the implementation of the curent

vehicles by permittees or Forest Service personnel are considered interrelated and proposed project. Afects related to these

or other activities are considered incidentalapd should not be any greater th those described

above, because the Forest Service will ensure tht road use from vehicles will be kept to the
existig roadbeds and pullouts. . Consequently, the potential for effects from vehicle use,

including ATV's, are expected to be limited and not likely to result in adverse affects.

Sacramento Mountains prickly poppy
With the witer unt, there are four mai pastues, Alamo, Mule, Pastue Ridge and Grapevine.
Mule, Pase Ridge, and Grapevine Pastures are proposed to

the witer season (November 1 to May 14). Alamo Pastue is proposed to be graz from November the
be grazed anualy durg 1 to Janua 31 durng the first two years of the permit In the eight subsequent years of permit, livestock

use in Alamo Pastue will be monitored each December or Januar to determe

whether an adjustment to the number of livestock, commensurate with the potential for livestock
impacts on the poppy from herbivory and trampling is necessar. Adjustments could entail Alamo Pastue), or livestock removal, herd management (moving livestock withn livestock

reductions. Each pastue would receive paral growing season rest from early Febru (Alamo)
or mid-May (Mule~ Pastue Ridge, and Grapevine) to the end of proposal, no more than 335 cattle and 5 horses would be divided and distrbuted in all

October each yea. Under ths
4 pastures.

The Alamo witer pastue contans a total of 11,113 ac, 3,027 of

which are suitable for grazng.

Ths acreage represents 19 percent of the usable winter unt. The Alamo pastue consists of two
east-west rug canyons, Alamo and Caballero Canyons, which rise very steeply on both sides.

Water is provided at five locations in the canyon bottoms, at the top, middle and lower ends of the canyons. Short stretches. of open water surace in the upper reaches of each canyon when
drought conditions ar not too severe. A

bench or mesa between the upper ar of the two

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Jose M. Marez, Forest Supervsor
. the

58

. canyons is accessible to livestock and water is provided there in two locations. The majority of

pastue is not accessible for use by livestock: The witer unt of ths alotment ha thee .
which 12;497 are considered suitale for grng (Forest

other pases contag 46,181 ac of

Service 2002).

. Herbivorv
Monitoring of adult poppies

has shown numerous times that livestock herbivory is occurng on

adult plants (see section ~'Factors Affecting the Species in the Action Area); Neverteless, in the rosette stae, with a minority of leaves afected, the poppies recover and go on to boltand
flower. Continuing growth has been shown to make herbivory much less obvious withn one
week, Poppies have been

obserVed grazd to the ground by cattle under high stockig rates

(Servce 1994). Seedlings and young plants may be more palatable (Service 1989); however, the

Forest Service has no evidence regardiIlg herbivory on young plants. Light to moderate herbivory is not expected to have long term negative impacts to adult poppies. Excess herbivory,
or overue of forage species afects riparian area species composition as well as its soil and

moiste retention-abilty which in tu afect poppy habitat and fuctionig of the riparan
.

corrdor (L. Barker, pers. comm., 2094).
Trampling

Trapling of individual poppies is unavoidable when livestock graz in occupied habitat. The BA states that light traipling of adult plants is not likely to kill them, as they have a substatial
underground root mass. Neverteless, damage to poppies periods of

from trpling could occur during

low forage availabilty, and could have significant impacts on futue poppy

recruitment. For example, seedling poppies are most vulnerable to mortity while they are in

the process of establishing a taproot Trapling. of fragile seedlings could easily cause the loss .ofindividuas. In addition, grazing may affectriparan vegetation and indirectly result in daage to poppies from lack of soil moistue retention abilty.
It is believed that poppies germinate as early as Februar at lower elevations (Forest Service
1989).. In the first 2 year of

the permt, the absence oflivestock durng late spring and sumer

wil allow vulnerable seedlings and young plants that may be present to put on growt and root
storage, paricularly durng sumer rains, without damage. Removal of livestock prior to the . poppy seedlings as they develop their taproot. emergence of seedlings will avoid impacts to

After the first two winter grazng seasons, seedlings may be utilzed by livestock and mortlity
may result. The Forest Service proposes to monitor livestock use on poppies and adjust livestock
numbers accordingly, to reduce or avoid adverse effects to

the poppy.

Livestock grazg in the Alamo Pasture from October though Janua may provide distubance
.that will faciltate the germinatian of PQPPy seedlings. These poppies, and other members of the
genus Argemone in g~meral, are known to tae advantage of newly distubed soil (Forest Service
2003a). Argemone has also been described as an early-successional

genus. The poppy has been

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JoseM. Marez, Forest Supervsor
and abandoned fields. However, the amount and tig öfdistbance. is importt, as is the
amount of moistue avaiable

59

observed numerous ties to occupy distbed road ban, newly dug pipeline routes and berm,

at these sites. Sufcient moistue is required for both germtion

and establishment of plants. As mentioned in the BA, germation and establishment will more. higher
likely be successfu in distbe sites tht collect ext moistue, or durg year of

. rainfalL.
At a tie of low population levels, low seed production, and. drought conditions, the

estblishment of new plants is criticà. Heightened concern exist for diect and indirect effects of livestock grg on germation habitat and seedlings. Seedlings are especially vunerable to
daage by trpling. Seedlings are most likely to germnate and succeed in moister sites in

swales on low benches that also support grses and forbs that green up early in the spring and
attct livestock, rasing the possibilty for hoof damage to young. poppy plants~ Livestock use

in riparan areas, and of riparan shade, creates physical distubances and alteration of habitat
needed to support the vuhierable seedling life stage

of the species. Rest from liye~tock use

durng the fist two years of the permt may allow the poppy some abilty to respond with

recrutment of adults into the population. In futue years, the success of seedling estblishment will depend on good management of livestock withn the pastues and adequate the permit, livestock use in Alamo Pastue will be
increased rainfalL. In the eight subsequent years of

monitored each December or Janua to determine whether an adjustment to the number of
livestock is necessar to protect the poppy from herbivory and trpling.

Indirect effects-plant community chanl!es
Because of the preponderace of heavy forest, dense woodland, steep slopes, and rock and cliff,
only about 29,000 ac of

the allotment are usable for grazng. Livestock grng would afect the

vegetation on the approximate 29,000 ac usable by livestock. Out of

the approximately 11,000 ac on the Alamo winter pase, only about 3,000 ac are usable. Improper stocking rates wil result in negative impacts to the existing upland and riparian plant communties. Livestock
grazng can afect vegetation species composition, plant density, and plant vigor (Forest Service

2003a). Recruitment of seedlings into the adult population is also afected by any actions that
lower the moistue-holding capacity of the soil, or increase the likelihood of destrctive flash.

. an increase in flood-water velocity, and 3) loss of

floods. The BA discusses the indirect impacts of a changing or degraded riparan plant communty on the poppy; .1) Loss of riparan vegetation affects the moistue-holding capacity of decreases in sod-forming root masses áid wÖodyvegetation lead to the moistue-holding capabilty of the soiL. All of these factors indirectly afect habitat and potentially affect poppy plants, paricularly younger plants at the vunerable germination and establishment phases. We anticipate that implementation of the forage/range guidelines outlned in the proposed action will
the soils in riparan areas, 2) top soil, and of

improve the range condition in the Alamo pastue.

Indirect effects- flash floods

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.. Jose M. Marez,

Forest

Supervsor

Concern ha been expressed in the varous sources cited above for the loss of plants due to flash
floods in the canyons; parcularly in Alamo Canyon (Servce 1987). . However, rebounds in the

number of poppy plants have ben observed in year subsequent to daagig floods. Poppy ha been lightly nicked (Sivinki are believed to receive ths mechancal scacation though tubling
see show. the highest germtion rates when the see coat 1992). In the wild, seeds

along a stream bed with water flows.- Flash floods ffayprovide the distbances that f~ciltate

prepartion of a seedbed ard seed scarfication in natual systems. The damaging effects from
flash floods can be exacerbated, however, by chages in vegetative composition and cover in

riparan zones, parcularly in those canyons whete livestock grg has reduced many of the
grses and elimnated many forbs. Significant changes in flood frquency or intensity may not allow poppy populations to recover and re-establish between flood events.

The amount and duration of livestock use plays a significan role in vegetation composition in
th riparan bottoms. As stated in the BA, repeated use of new photosynthetic tissue produced

durg the sprig drought period puts a strn on roots and reduces energy storage abilty for
forage plants that

can eventully afect plant communty composition, riparan health, soil

stbilty and water-holding capacity. Overutilzation of forage has been occurng on the

Sacramento Allotment since 1991, and curent livestock use has resulted in adverse afects to the
poppy (Forest Service 2003a). Any impacts to the plant community that result in decreased
abilty for poppies to withtad and recover from flooding will have significant and long-term

effects on poppy sustaabilty and recovery.
The poppy has shown relatively wide fluctutions in the number of adult plants though the
year. It ha shown the abilty, at leas in years of normal or above normal rainfall, to maintain
. stable populations or recover. A certn level of distubance is therefore believed to be needed

for the species. Biological concerns relate more to indirect effects in the canyons at a time when the number of adults is fewer, and when the seed ban in the soil could be reduced. Curently,
adult plants appear tobe at their lowest numbers~

Indirect effects-population viabilty
Poppy populations in Alamo and Caballero Canyons decreased by approximately 43 percent the poppy decreased from 10 canyons to 5
between 1987 and 2003. Additionally, distrbution of

(Forest Service 2003a). Durg periods of low plant numbers of plants, the combination of several theats occurg concurently becomes more significant. Small population sizes are of concern because of decreaed opportities for out-crossing, resulting in in-breeding that may
lead to higher possibilties for

the fixation and expression of adverse genetic mutations. Lower levels of out-crossing also result in lower frt set and seed production (Tepedino 1992). Periods
of

prolonged drought may result in geraination without establishment, depleting the seed ban

in the soiL. Adult plants may die without sùccessfully replacing themselves if drought periods
extend longer than their approximately 7 to 9-year lifespan. Monitoring observations in 2001

indicate that seedling establishment may bea critical, or bottleneck stage in the life cycle of ths
species (Guaderrama and Barker 2001).

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lose M. Marinez, Fore&t Supervsor
. . City of Alamogordo water developments impact poppy habitat by reducing water availabilty

61

durg g~rmation of seedings and thoughout the year. Livestock herbivory and trpling
impacts to oveial poppy

numbers, either thoug reduced seedling recruitment or adult

mortity, may contrbute to reduced population viabilty though reduced

genetic diversity and

ai inilty for individuas to out-cross durng pollination. Reduced genetic diversity will
. ultimely limit the poppy's abilty to withtad signficant changes in population levels, both

those that are.natuly causd (drought, flash floods, disease etc.) and those tht are human

caused (livestock grg, habitat destrction, increaed flash flooding).

Interrelated and interdependent actions
Placement of livestock supplements, such as water and minerals, are an impact to the poppy.
minerals in riparan bottoms in occupied habitat several times (Forest Service 2003a). Concentration of livestock in occupied poppy
TheForest Service has documented placement of

habitat as the result of minera placement and water development will impact poppies though increased trampling and herbivory.
Other potential actions include fenc.e and water development maintenance. These actions may
result in short term impacts to poppies if constrction activities occur in occupied habitat while

poppies are present.

The Mule Pasture has not been grazd for the last several seasons because there are curently no
fuctionig water sources (Forest Service 2003a). The Service believes that maintenance and
restoration of water sources on the Mule Pastue would reduce some of

the use on the Alamo

Pastue by allowing use of the Mule Pastue containing 2,826 ac of livestock-useable land,
. curently not usable because of between the Alamo and Grapevine Pastures. lighter stocking in Alamo Pastue lack of

water. Additionally the Mule Pastue is sitUated in Restoring waters here would allow shorter and/or which curently receives increased forage utilzation and

impacts to the poppy.
The recovery rate for a species is considered to be the time needed for populations to retur to

equilibrium after distubance. For individual poppy plants, recovery may be considered to be

the time needed to produce a matue, seed-producing adult from seed. This period is believed to

be two years at minimum, given sufcient rainfall, but could be three years in times of moistue
stress. Impacts to seedlings from the proposed action may occur thoughout the 1 O-year period
of

the permt. This yearly impact could hamper the poppy's abilty to recover from year to year, paricularly at a time of low population levels. In the short term, direct effects on seedlings and recrutment in the spring are of immediate concern. Indirect effects on the riparan plant communty, vegetative cover, soil moistue-retention abilty, and soil stabilty as it relates to
destction from flash floods, are of concern in

the long term.

Sacramento Mountains thistle

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. Jose M. Marez, Forest Supervsor

the Lincoln Nationa . . Forest as of2001. These 74 sites contaed 333,800 of 347,090 tota thle plants found on the .
The Sacraento Allotme.nt conta 74 of 86 occupied thstle sites found on Lincoln Nationa Forest in 2001. Ths represents a tota of96 percent of 2001. All of the 74 sites are with the Nort and South sumer pastues of

. .
the acreage of

62 .

all the plants counted in

the allotment, with

38 öfthese 74 sites either fence to exclude livestock or considered to be inccessible.

The DEIS for the Allotment states that the Nort and South Pastues of the sumer unt conta
42,614 ac. Of

ths acreage, 11,540 ac are considered usable grazng acres, based on the absence

of steep topogrphy, dense canopy cover, insufcient forage production or inaccessibilty.
Approximately 73 percent of

the 2 pastues is not usable for livestock grazng falls withi acreage considered usable under these criteria, except for extemely steep occurences.
(Forest Service 2002). Habitat for the thstle largely

Direct effects;.herbivory and trampling
As stated in the BA, a reduction of photosynthetic tissue and plant size plant growt vigor, reproductive potential, and the abilty of

adversely impact. the plants to compete with invasive
can

weeds. The thstle has also been observed to only make one attempt per rosette at producing a that stalk is lost to herbivory, reproductive potential for that plant is lost. flowering stak. If

Herbivory and trampling are also of concern with relation to seedling establishment and surival. Huenneke and Thomson (1995) report fairly high numbers of seedlings, but also substantial those seedlings over the course ofa year. Herbivory and trampling at a vulIierable point in the thistle life cycle when seedlings are young and not well established can cause
mortity of

signficant losses of plants. Grazng early in the spring is more likely to produce adverse impacts

to seedlings. Trampling can affect recruitment of new plants in soft-substrate outflow streams to the extent that distubance and mechancal damage reduce seedling establishment.

Thistles located in livestock traps are likely to face the most severe impacts. Traps wil concentrate livestock for short periods of time. Durng that time utilzation levels wil be severe
and impacts to thstles though herbivory and trampling are likely to increase correspondingly. .

Indirect effects-habitat destrction and hvdrology .
Springs and creeks provide a majority of the watering sites for both livestock and wildlife . species, especially elk. These wet sites are subject to trampling and hoof damage, and receive are not readily
especially heavy use durng dfought periods when both water and green forage

. available elsewhere.

Intact travertine provides a unque substrate that the thistle is very well adapted to occupying.

Damage to the traverte, causing a loss of normal substrate strctue, may inhbit seed
germination and seedling establishment when water flows retu to these sites. In addition,
water-flow chanels with the trvertine strctues may be damaged by heavy trampling. Soft-

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Jose M. Mare~ Forest Supervisor
substrate outfow creks are habitat for the thstle tht is especially vulnerable to hoof daage
from livestock use and trplig.

The suer pastues and thstle oCcurnces in the upper Rio Peñaco, including those in

exclosures, are subject to entr by livestock drfting from the witer unt well before the tu-on May 15. It ha been diffcult to keep exclosure fences intat for varous reasons. The
date of thstle is curently found with two of

the trps used to gather livestock. Newexclosures in

Wils and PeñascolWater Canyon will exclude more of the thstle plants, but. some plants will still be subject to livestock impaCts in the Peñasco trp.

Monitorig of the thstle has shown a simple and direct relationship between water availabilty in
suitable habitat and numbers and extent of plants in occurences (Forest Service 2003a). As
water flow.has been observed to decline at sprigs, decreases in plant numbers and the size of

the

sites have occured. The sitution reverses when increased water is available.

With the sumer pastues, the majority of sites providing water for livestock are the natual streams dry up, livestock are forced to sprigs and streams. Durng drought conditions when seek springs for water which puts them more frequently in occupied thistle habitat. Concern
exist at these sites for both trverte and soft-substrate habitats because of impacts created by

livestock use. As stated in the BA, compaction and down-cutting of soft-substrate streambeds
and bans cause water tables to lower resulting in drer sites that may not be suitable for thistles.

Damage to travertine in hard-substraÜ6 sites causes pulverization of the calcium carbonate and

alteration of seedbed chaacteristics for the thistle, thus affecting suitabilty of habitat. Durg supply, impacts at springs can be parcularly heavy. Early drft of livestock onto sumer pastues contributes to impacts. Penods of drought in the fall when the thistle appears to be especially palatable also increase the . likelihood of impacts to individual plants and their habitat.
spring drought periods when water and green forage are in short

Indirect effects-population viabilty

To the extent that herbivory, trpling, or hapitat degradation may reduce the density of plants,

seedlings are more exposed to adverse temperatues. . Reduced thstle density also puts the thistle. at a disadvantage in competition with invading weeds such as teasel (Huenneke and Thomson 1995). Thstles in traps will also experience higher levels of competition with weeds and seedling recruitment may be reduced as a result of this competition.
As described in the 1994 Fore.st Service Monitoring Report, small thistle sites may be more
vunerable and at higher risk from the impacts of grazg. To the extent

that growth, vigor,

reproductive output and recrutment are afected by impacts to plants and th~ir habitats, small

sites are of special concern. Expanion at these sites can be affected.by the impacts to habitat
described above, as well as by the loss of seedlings. The abilty to attact pollnators relates
directly to the size of

the she. Small or declinng sites are put at afurter disadvantage for

successful reproduction~

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. Jose M. Maez, Forest Supervsor
. Interrelated and inter~ndent actions
Placement of live$tock supplements, such as water and mieras, ar an impact to the thstle.

64

Concentrtion of livestock in occupied thstle habitat as the .result of miera placement and
. water devel~pment wi impact thstles though increased trpling and herbivory.

. Other potential actions include fence and water development maintenance. These actions may .. result.in short term impacts to thstle if consction activities occur in occupied habitat while
thstles are present.

Depn4ing on the tiing of the impacts, thstles will respond in varing ways to grazg.
. Impacts to flowerig adults may result in long term effects to population recrutment. Adults
bolt

and produce flowers only once in their lifetimes. Any removal or mortity to adults at ths

tie will effectively remove that adult and its reproductive potential from the population. If

impacts are large scale and effect an entire site, population numbers in tht area may decline significantly in subsequent years.
. Simlar impacts would result if livestock impacts to seedlings were large scal~. If impacts are result in mortality to seedlings, then effectively, both the adult which produced as its reproductive potential have been removed. At significant level$, ths may have
severe enough to. it as well.

large impacts on occurences of thistles.

Impacts to thstle habitat will be most severe and have the most sjgnificat long-term impacts on the species. Travertine habitats are fragile in their hydrology.and impacts though trpling will
negatively impact their suitabilty for thstles. Similarly, impacts to soft substrates provided by

springs and their outfow streams may reduce the suitabilty of habitat for the thistle and result in reduction or removal of occurences.

CUMULATIV EFFECTS
Cumulative effects include the effects of futue State, trbal, local, or private actions on

endangered or theatened species or critical habitat that are reasonably certn to occur in the foreseeable future in the action area.considered in this biological opinion. Futue Federa actions
tht are unelated tö the action are not considered in this section because they require separate

to section 7 of

consultation pursuat to section 7 of the Act. Cumulative effects analysis as stated here applies this term in the NEPA
the Act and should not be confed with the broader use of or other environmenta

laws.

Mexican spotted owl
In past biological opinions, it has been stated that, "Because of MSOs on Federalland~, and because of admisterig the habitat of the role of the predomiant occurence of

the

the respective Federa agencies in

the MSO, actions to be implemented in the futue by non-Federal.

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'.

Jose M.Marz, F.orest Supervisor
entities on non-Federa . increase of haest activities on non-Federal

65

lands are considered of mior impact II However, there has been a recent. lands (e.g., tiber haest on p.eighbonng Mescalero.
lands adjacent to the Forest SerVice lands that

Apache Tnbe, private land tiber sales on IIoldings in and around the Lincoln National
Forest). In.additioIl, futue actions on non-Federal .

are reasonably expected to ocCur include urban development, road consction, land clearg,

logging, fuelwood gatherig, and other associated actions.
The Sacraento Allotment is generaly located between the Vilage of Cloudcroft and lands

Timberon, New Mexico. The area is interspersed by National Forest and non-Federa

ip.cluding highways, forest roads, existing infasctue (e.g., powerlines), developed private
campgrunds, and surounding residential areas, where activities occur either seasonally or yearround. We are aware that

impacts to the MSO from recreation (e.g~, ATVs), timber harest; and

subdivisions are reasnably certin to occur. These activities reduce the quality and quantity of

MSO nestig, roosting and foraging habitat, and cause disturbance to breeding MSOs and
contrbute as cumulative effects of the action.

Bacramento Mountains prickly poppy
Cumulative effects on the poppy may result though actions on pnvate lands. These impacts
may

include grazng, noxious weed treatment, clearng of land, as well as maintenace on

Highwåy 82 and local dirt roads where plants occur in the rights-of-way.

Sacramento Mountains thistle
effects may accrue to the thstle though actions tag place on private lands and along hi~hway rights-of-ways. Water rights granted by the State Engineer, and the subsequent development of wells and water systems affect water availabilty in springs and seeps to varing degrees,. depending upon their locations. Development, clearing, grazng, noxious weeds and their treatment on private lands may affect the thistle and its habitat.Stat~ highway crew
Cumulative maintenance of

the Federal Highway 82 right-of-way impacts plants and habitat on non-National the weevil, introduced Forest System land between Cloudcroft and High Rolls. The presence of by the Mescalero Apache Nation may also affect the thistle.

CONCLUSION
The conclusions of this biological opinion are based on full implementation of the project as this document, including any
described in the Description of the Proposed Action section of

Conservation Measures that were incorporated into the project design.

Mexican Spotted Owl
After reviewig the curent statu of the MSO, the environmental baseIine for the action area, the
effects of

the proposed SaCraento Allotment and the cumulative effects, it is our biological

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. Jose M. Marez, Forest Supervisor
opinon that the proj~ct, as proposed, is not likely to jeopardize the MSO with the Basin and Rage East RU or ragewide. Critical

66
continued eXistence of the
habitat for ths

species;

however, ths project does not occur with ths designtion. Therefore, ths action does not

afect any area of critical habitat and no destrction or adverse modification of critical habitat is anticipated. Neverteless, the designated critica haitat for the MSO may change in the near

futue because the United States Distrct Cour for the Distrct of Arzona in Center for Biolo~ical Diversity et al. v. Gae A. Norton. CIV 01-409 ordered us to redesignate critical habitat for the MSO. We make this finding for the followig reasons:
1. The

proposed forae/rage gudelines, monitorig and enforcement, development of an

AM, reduced stockig levels, and deferred-rotation strategy will allow overal range conditions to improve over the 10-year considered in this consultation.
2. We anticipate that when the Forest Service determines one of they will manage

the forage/rage

and protect long-term range conditions consistent with the Lincoln National Forest Plan and range management regulations
gudelines will not be met,

(e.g., see 36 CFR 222). The Service is available to assist the Forest Service and other

interested paries (e.g., the New Mexico Range Improvement Task Force) in explorig flexible options for long-term range condition improvement.
Sacramento Mountains prickly poppy

Afer reviewing the curent statu of the poppy, the environmenta baseline for the action area,
the effects of proposed livestock grang on the Sacramento Allotment and the cumulative

effects, it is our biological opinion that the project, as proposed, is not likely to jeopardize the . the poppy. Critical habitat for ths species has not been designated; thus continued existence of none will be affected. We make this finding for the following reasons:
1. The proposed forage/range guidelines, monitoring and enforcement, development of an

AMP, reduced stocking levels, and deferred-rotation strategy will allow overall range conditions to improve over the i O-years considered in ths consultation.
2. The removal of livestock from the Alamo Pastue, where the majority of known
poppies exist, by Februar i will allow for germination and growth of seedlings without

the theat of trampling or herbivory. Also, this management action will reduce
herbivory and trampling of poppies for much ofthe year. After the first two years,

monitoring of livestock effects to poppies is expected to guide management such that negative impacts. resulting from any documented trampling or herbivory of seedlings
will be elimnated or minimized through managem~nt changes.

3. We anticipate that when the Forest Service determines tht impacts are occuring to the poppy as the result of livestock grazng, they will manage and protect poppy
occurences consistent with the Lincoln National Forest PLan the EIS, and range management reguations (e.g., see 36 CFR 222).

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Jose M. Marez, Forest Supervsor
Sacramento Mountains thistle

67

The selected alternative for magement of the Sacramento Allotment allows interaction between
livestock and acssible thstle occurences, as well as with suitable.

and potential habitat. .

Impacts ar both direct and indirect. Afer reviewing the curent statu. of the thstle, the
environmental baseline for the action area, the effects of the proposed livestock grazg on the Sacramento Allotment and the cumulative effects, it is our biological opinion tht the project, as

proposed, is not likely to jeopardize the contmued existence of the thstle. Critical habitat for
ths species has not been designated; thus none will be affected. We make

ths fiding for the

followig reasons:
i. The proposed forage/range guidelines, monitorig and enforcement, development of an

AMP, r-euced stocking levels, and deferred-rotation strategy will allow overall range conditions to improve over the 10-years considered in ths consultation.

2. The continued constrction of exclosures will protect isolated occurences of the
thstle. Continued maintenance of existing exclosures will co.ntinue to protect some thistle occurences from livestock impacts.

3. We anticipate that when the Forest Service determines that impacts are occurrg to the thstle as the result of livestock grazng, they will manage and protect thistle
occurences consistent with the Lincoln National Forest Plan, the EIS, and range.

management regulations (e.g., see 36 CFR 222).

INCIDENTAL TAKE
Section 9 of

the Act prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined
the Act and Federal regulation pursuant to section 4(d) of

as harsing, haning, pursuing, hunting, shooting, wounding, killng, trpping, captug, or

. collecting, or attempting to engage in any such conduct. Harass is fuher defined by us as

intentional or negligent actions that creates the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior pattern which include, but are not limited to,
breeding, feeding, and sheltering. Har is .ñier defined by us to include signficant habitat

modification or degradation that results. in death or injur. to listed species by significantly . impaing behavioral pattern such as breeding, feeding, or sheltering. Incidental tae is defined that is incìdental to, and not the purose of, the caring out of an otherwse lawful
as take activity. Under the terms of

section 7(b)(4) and section 7(0)(2), taing that is incidental to, and

not intended as par.ofthe agency action is not considered a prohibited takng under the Act provided that such takg is in compliance with the terms and conditions of ths incidental take

statement. The measures described below for the MSO are non-discretiona and mustbe implemented by the Forest Service so that they become binding conditions. of any grant or permit
issued, as appropriate, in order for the exemption in section 7(0)(2) to apply.

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Jose M~.Marez, Forest Supervsor

and reduction to possession of

the Act generaly do not apply to listed plant species. However, limted protection of plants from tae is provided to the extent tht the Act prohibits the removal endangered plants or the maCious damage of such plats on areasuDder Federa jursdiction, or the destrction of endagered plants on non-Federa
SectionS 7(b)(4) and 7(0)(2) of Federally areas in violation of

State law or regulation or in the coure of any violation of a State cral .

trespass law. .
The Forest Service has discretion statement. Ifthe species is listed and the Forest to regulate the activity that

is covered by this incidenta tae Service: I) fails to requie tht any permttee or

contrctor adheres to the terms and conditions of the incidental tae statement though
enforceable term that are added to the permt, grant, or contract document, and/or 2) fails to
reta oversight to ensure compliance with these terms and conditions, the protective coverae of

section 7(0)(2) may lapse. In order to monitor the impact of incidenta tae, we recommend tht
th~ Forest Servce report the progress of

the action to the Service as specified in the incidenta

take statement.

Amount or extent of tae
For ths proposed project, tae of affected two PACs. We anticipate thtthe tae of fiding a dead or in.paired specimen is unikely. However,.the level of MSOs may be in the form of

harsment within each oftle
incidenta tae can be

MSOs will be diffcult to detect because

anticipated by the loss of essential elements in the habitat. The priar type of take expected to result from grazng on the Sacramento Allotment is through harassment by the