Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB

Document 35-5

Filed 04/29/2008

Page 1 of 16

Defendant's Exhibit D

Case 1:04-cv-00786-SGB
, ':if.-fl.n';\\, ,. \-dt; =¡

Document 35-5

Filed 04/29/2008 i
(505) 682~255 I

Page 2 of 16

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,

Lnited States Department of Agriculture

Forest Service

Sacramento Ranger District

Ii )2 & Curlew, PO B(¡.~ 288

CloudCroft, Xi\ 8831.:....,,~...

File Code: 2230

ì '/:'

Date: January 17, 200's
CERTIFIED ;VIAlL
7003 0500 0000 4623 7294

Jimmy Goss, President Sacramento Grazing Association PO Box 596 Weed, NM 88354
Dear Jimmy,

Decision that would implement management actions on the Sacramento and Dry Canyon Allotments to make livestock management on these allotments consistent with the Lincoln National Forest Land and Resource Management Plan. You
On July 28,2004, I signed a Record of

appealed my decision to both the Forest Supervisor and the Regional Forester under 36 CFR 251 the project record and concluded Subpart C. Both levels of appeal included a detailed review of
my decision was based on a reasonable assessment of

the resource conditions on the Sacramento

Allotment.

your term gring permit must be consistent with the Record of

In a letter dated June 10,2005, Deputy Regional Forester Abel Camarena explained to you why Decision. Deputy Regional

Forester Camarena concluded his letter stating "As you were advised on Februar 2,2005, the

second level appeal decision by my offce constituted the final administrative determination of the Deparent of Agrculture (36 CFR 251.87(e)(3)J. Therefore, the next step is to either reissue a new term grazing permit or modií) the existing permit, including an updated allotment
management plan.. .." On December 16,2005, I mailed you the new IO-year term grazing

permit and the allotment management plan for the Sacraento and Dry Canyon Allotments. I
received your Januar 9,2006 letter letting me know that you were not signing the new permit.

Since you have elected not to sign the new 1 O-year permit, by this letter, I am modifyng your existing term ,grazing permit, #081250, in order to make your permit consistent with the July
~JV4, KeCOra O. UeC!sion. ru!!úwtrlg are spei.1lC mOii1 i

-/ì"".. T" 'f~.. r 11 .¡CatiOns to.i"J,_. pemnt "L YOUï term grazmg ..

#081250 issued on 11/23/99.
Par 1, Section 2 is modified as follows:

i Z. The number, kid, and class of livestock, period of use, and grazing allotment on which the livestock are
! permitted to graze are as foUows, unless modified by the Forest Servce in the Bil for Collection:

. LIVESTOCK . PERIOD OF USE I GRAZIi'iG
:5 ¡ Horses : horse . 03/0 I '02/28 Sacraento Allotment #'11 Î
Up to 75 : Catile ; c.'c: 11:01 : 02:28 Dry Canyon Allotment #214

: :"ÑIBER! KI'iD : CLASS FROM TO i ALLOT:vENT
.~00-H2 ¡Cattle :c/c ,05il:5 liOí31 SumerRangeSacraentoAllotment#~17
; "'00-335 ¡Cattle . ctc ! 11i0 i ; 0~!28 Winter Range Sacramento Allorment #2 17 . 200~335 . Came ¡ cic . 03:01 . 05;14 Winter Range Sacramento Allotment #:?17

. Up to 75 : Cattle . etc . 03,0 I 05114 Drv Canyon Allotment #214

~

Caring for the Land and Serving People

Printed on Recyea Paper

o

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Part 2 of your existing term grazing permit #08 1205 remains unchanged.

The aJlotment management plan for the Sacramento and Dry Canyon Allotments v.as provided to you for did not comment on the draft or request a meeting with me to discuss it. As indicated previously, the new term grazing pennt that I mailed to you on December 16,2005, included the new allotment management plan. Because you did not sign the new your existing term grazing permit #081250, is modified as follows: term grazing permit, Part 3 of
comment in draft form on November 17,2005. You In Par 3 of

your existing term grazing permit, #081250 are numbered pages 5 through 9. Pages 5. 6, and Decision and

7 remain unchanged. Pages 8 and 9 have been modified to be consistent with the Record of

are attached to this letter. Please insert the modified pages in Part 3 of your current term grzing permit and remove those pages that have been superseded.
The allotment management plan has been prepared subsequent to and in conjunction with the Record of Decision that selected Alternative B in the Final Environmental Impact Statement for the Sacramento, Dry Canyon and Davis Allotments. It outlines and documents the management strategy planned for the
allotments over the remaining life of your term grazing permit, #081205. Ths plan includes:

management objectives, livestock management practices, proposed structural improvements and monitoring strategies used to measure achievement of goals and objectives.

Please staple this letter to the face of your existing term grazing permt because it modifies Part 1, Section
2 and Par 3 of your term grazing permt, #081205.

Additionally, on April 14.2003, United States District Judge Parker issued a ruling in the matter afForest Guadians v. United States Forest Service, et al. (CIV 00~490 JPIRP) Consolidated. The Cour found the Forest Service violated the National Forest Management Act by failing to ensure that livestock grazing under the 1999 term grazing permit for the Sacramento Allotment is consistent with the Lincoln
Forest Plan. The Court ordered the Forest Service to modify the 1999 term grazing permt for the

Sacramento Allotment in order to make the permt consistent with the Lincoln Forest Plan. Subsequently, I prepared an Environmental Impact Statement that analyzed various grazing alternatives for management Decision
of the Sacramento Grazing Allotment. That process was completed when I issued the Record of

on July 28,2004.
If you have any questions concerning this letter please contact Mark Cadwallader or myself at (505) 6822551.

Sincerely,

-~ ~ ~
'-;U1/!. i? )1l~ilv~:J
FRANK R. MARTINEZ Sacramento District Ranger
Cc: Otero County Commission

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USDA - FOREST SERVICE

Paae 8 Of 12 I

FS-2200-10b (12/99)

Permittee Number I

GRAZING PERMIT - PART 3 (Reference FSM 2230)
Management Practces. Continued...) Special Terms and Conditions

Permit Number I
08-1250

02281

Aproed Special Rules of Loal Assocations. (List applicable special rules pertaining to this permit and to management and development of the resources, which have been approved by the Forest Supervisor.)
Rules of Manaaement
Section 1: Eligibilty.
Eligibility for membership in the associalion wil be

limited to those persons stated in Article III Section 1 of the

Sacramento Grazing Association By-Laws.
Section 2: Distributon of non-use fiJI-in.

Any member who waives his privilege to graze will notify the Association as stated in the Association By-Laws. Other members of the Association may choose to graze these numbers, but must first have the approval of the Association Board of Directors.

Section 3: Livestock Management Responsibilties.
The Allolment Management Plan dated January 17. 2006 is a part of this Term Grazing Permit for the Sacramento and Dry Canyon Allotments. The plan specifies livestock management requirements and proposed range

improvement development over the remainder of the 1 O-year term of the permit. The annual operating instructions prepared from discussions in the annual application meeting wil deal with specific annual details. The Board of
Directors wil be responsible to ensure that livestock are maintained in the agreed upon pastures. In emergency situations the schedule may be temporarily changed after prior to notification and approval by the District Ranger.

Section 4: Improvement Maintenance.

Improvement maintenance needs wil be specified in the Allotment Annual Operating Instructions. The responsibilty
for maintenance on all structural and non-structural range improvements are assigned to the Association under the tenns and conditons of the Term Grazing Permit (Part 2, Section 8, Subparagraph I.)

Section 5: Bulls, owned by the individual members,'of the Association, wil be put on at the ratio of 1 to 20. These bulls are of mixed breed and are allowed to service cows other than the owners. This is agreed to by the Board of Directors and can be changed only with their approval.

Section 6: A. Assessments for range management. improvements and salt fees based on the number of catte
entitled to be grazed will be levied by the Board of Directors on an annual basis.
B. Other assessments for unforeseen expenses wil be made based on the number of cattle

entitled to

be grazed.

Section 7: Fees
The Association will furnish the District Ranger with a list of permittees and their pennitted numbers prior to the grazing season each year and wil be responsible for payment of grazing fees.

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FS-2200-10b (12/99)

¡ USDA - FOREST SERVICE

Pace 9 of 12
Permittee Number 02281

GRAZING PERMIT - PART 3 (Reference FSM 2230)
I

Permit Number 08.1250

Management Practices.

Continued...)

Special Terms and Conditions
The renewal of this permit and its Allotment Management Plan is subject to compliance with the standards and guidelines outlned in the Lincoln National Forest's Land Management Plan approved
October 31, 1986.

As the Plan is updated, revised, or rewritten, those standards and guidelines will also become a part of this Grazing Permit and, if appropriate, the Allotment Management Plan. To insure compliance with the 'standards and guidelines, monitoring is a part of the newly developed Allotment Management Plan dated January 17, 2006. The Sacramento Allotment lies within portions of Management Areas 28 Alamo Canyon, 2C Grapevine Canyon, 20 Sacramento River, 2E Upper Penasco, 2F Mountain Park, and 2F RNA Haynes Canyon

RNA. The specific standards and guidelines which apply to each Management Areas are outlned in
the Forest Plan.

The Dry Allotment lies within portions of Management Area 2B, Alamo Canyon. The specific standards and guidelines which apply to each Management Areas are outlined in the Forest Plan.

Other
The January 17, 2006 modification of this Term Grazing Permit and the incorporation of the January 17,2006 Allotment Management Plan is a part of the provisions outlined in the July 28,2004, Record
of Decision (ROD) for the Final Environmental Impact Statement addressing the Sacramento, Dry

and

Davis Allotments.

Base property owned and used by the permittee must continue to meet the minimum base property requirements approved by the Forest Officer in charge.

It wil be my responsibility as a permittee to insure that my livestock are properly branded while on
National Forest lands.

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ALLOTMlNT ~AGEMlNT PLAN
SACRAMENTO AND DRY CANYON ALLOTMENTS

Sacramento Ranger District
Lincoln National Forest

Prepared by: . li g' ///)

~// Cadwallader Date i 6:~ 6~£? gç Mark
District Rangeland Management Specialist
Sacramento Grazing Association PerDUttee

Date

Approved by: -1 1'( 12 fl~ Ffãk R. Martez
District Ranger

)-/7- OG
Date

Upon approval, the provisions and guidelines outlied in this Allotment Management Plan (AMP) are hereby considered a part of Part 3 of the Term Grazing Permit issued to the Sacramento Grazing Association.

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Introduction
This allotment Management Plan has been prepared subsequent to and in conjunction with the Record of Decision (ROD) that selected Alternative 8 in the Impact Statement (FEIS) for the Sacramento, Dry Canyon Final Environmental

and Davis Allotments. It's purpose is to outline and document the management strategy planned for the allotments over the life of the Term Grazing Permit. This
plan includes: management objectives, livestock management practices, proposed structural improvements and monitoring strategies used to measure achievement of goals and objectives.

Prior to the grazing season, the District Ranger and his staff wil prepare a letter of Annual Operating Instructions with the grazing permittee. The plan will include statements of how the livestock wil be grazed on the range that season, developments planned, improvements to be maintained, salting, herding, and other management needs for each individual grazing year.

Type of Operation
The Sacramento Allotment is a yearlong allotment that is divided into a summer unit and a winter unit. There are two major pastures in the summer unit and four major pastures in the winter unit. A deferred grazing system has been followed in the past and wil continue with regard to the two summer pastures. The four winter range pastures wil be grazed season long with cattle distributed in all four pastures as forage production and water availabilty allow. The Dry Canyon Allotment wil also be used as a,'winter pasture in conjunction with the four winter pastures on the Sacramento All9tment.

The Sacramento and Dry Canyon Allotments wil be grazed as a cow/calf operation. The summer grazing season wil be from on or about 5/15 to 10/31 and the winter season wil be from on or about 11/1 to 5/14.

Permited numbers for the Sacramento Allotment summer season wil range from 200-412 cattle and 5 horses. Permitted numbers for the Sacramento allotment winter season wil range from 200-335 cattle and 5 horses. Permitted numbers grazed on the Dry Canyon Allotment during the winter season wil be up to 75

cattle. Stocking wil be varied within the permitted ranges of livestock numbers
based on forage production and utilization monitoring. Annual stocking rates will be specified in the Annual Operating Instructions.

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The two pasture deferred grazing system employed on the summer range wil
require livestock to be moved mid way through the summer season to the alternate pasture. Cattle grazing the various winter pastures wil do so for the full winter season. Adjustments in livestock numbers or length of season may be necessary due to climatic or other unforeseen circumstances. These changes wil be made through amendments to the Annual Operating Instructions.

Management Goals and Objectives
Implement an allotment management plan that wil achieve the following within

the life of the Term Grazing Permit: .
. Primary forage species are currently Kentucky bluegrass, brome, orchard

grass, and intermediate wheatgrass. Currently many of the primary meadow bottoms are dominated by sod bound low producing, Kentucky bluegrass. The initial objective is to increase the vigor and production of Kentucky bluegrass.
. An additional objective, possibly requiring more than the life of the Term

Grazing Permit, (ten years) is a gradual transition in forage composition resulting in increases in brome, orchard grass, and intermediate wheatgrass with a decreased dominance of Kentucky bluegrass. The gradual transition in plant composition in meadow bottoms into a more desirable bunch grass and forb community wil provide soil protection and produce improved qualiy and quantity
of

forage.
. Improve livestock distribution in upland openings where available forage

exists that can alleviate grazing pressure in areas where livestock naturally congregate. Distribution wil be improved with planned range improvements, herding, and salting.

. Improve herbaceous plant compbsition, quantity and quality of forage, in
winter range areas.
. Improve ground cover throughout the allotment with the implementation of

conservative forage use levels across the allotment.
. Increase weaning weights and calf production through improved quantity

and quality of forage.

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Cooperative Management Actions
1) Implement a conservative forage utilization level on the Sacramento and Dry Canyon Allotments. This wil allow for root expansion on forage species and improve plant vigor. This use level wil also allow desirable forage species such as brome, orchard grass and wheat grasses to increase in meadow areas.
2) Implement a coordinated schedule for improvement maintenance, reconstruction, and new construction with permittees and Forest Service as

cooperators.
3) Implement effective use of other management practices such as herding and saltng to aid in proper distribution of livestock. 4) Continue cooperative monitoring with permittees, New Mexico Game & Fish and the Range Improvement Task Force (RITF) in order to monitor progress and effectiveness of management actions.

Allowable Forage Utilzation Levels
With the exception of existing and proposed livestock holding traps, a forage
utilzation guideline allowing for

conservative grazing (30-40 percent utilzation)

wil be implemented throughout the Sacramento and Dry Canyon Allotments. A 70 percent forage utilization guideline wil be implemented in existing and proposed livestock holding traps.

Monitoring
Perform monitoring visits prior to the entry of cattle to the winter and summer pastures, at approximately the mid-point of the grazing season on the summer pastures, and within 15 days after the end of the permitted grazing season on both the winter and summer pastures. As part of this process, consider the effect of elk and deer on the allotments. Monitoring wil be accomplished in a collaborative effort involving the New Mexico State University (NMSU) Range Improvement Task Force and the New Mexico Department of Game and Fish.

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Summer Range
There are 10 key forage utilzation areas

established on the Sacramento summer range, with 5 being located in each of the two main pastures. These wil be monitored during the grazing season in coordination with the Range Improvement Task Force (RITF) using modified RAM methodology.
. Prior to cattle moving on the allotment, spring growth wil be a minimum of

1 inch during the first week of May. Key forage species measured wil be Kentucky bluegrass, orchard grass, intermediate wheat and smooth

brome.
. Mid-season monitoring wil generally occur between July 15 and August

15.
. End of season forage utilization monitoring on the summer range wil

generally occur between October 15 and November 15.
Winter Range (Sacramento and Dry Canyon)

Monitoring wil occur on two key areas in each of the four pastures on the winter range of the Sacramento Allotment and at 3 key areas on the Dry Canyon allotment. These wil be monitored during the grazing season in coordination with the Range Improvement Task Force (RITF) using modified RAM methodology.
. Prior to entry on the winter pastures, a monitoring visit wil occur in

October to assess forage production and availability
. End of season forage utilzation monitoring on the winter range wil

generally occur between May 1 and May 31.

the amount needed

If climatic conditions or other factors indicate that forage growth may be below to completE: the summer grazing season, these key areas wil be used to project potential foráge production through the end of the grazing

season.
If end of season monitoring on either the summer or winter pastures indicates
that allowable forage utilzation is exceeded, potentially

affecting long-term

management objectives, then management changes wil be implemented. Management changes may include, but are not limited to, adjusting livestock numbers. The end of season monitoring data will strongly influence the next summers stocking rate with due consideration given to climate and precipitation received and timing of grazing. The determination and rational of the District

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Ranger for the necessity of management changes because of utilzation and subsequent forage production from climatic influences such as precipitation, wil be documented in Term Grazing Permit file and validated through monitoring the following grazing season.
Within the first two years and prior to the end of the term of the permit, condition and trend studies wil be conducted on the Sacramento Allotment summer range utilizing appropriate methodology. The initial studies will be used as baseline data to monitor progress in achieving the resource management goals outlined in

this plan.
Range Limitations
Sacramento Allotment Summer Range
The summer range on the Sacramento Allotment is made up of narrow canyons containing long narrow meadows in the bottoms and steep tree covered slopes. These steep dense canopy slopes also contain a high density of Mexican Spotted Owl (MSO) Protected Activity Centers (PACs). Management requirements, contained in the biological opinion for the United States Fish and Wildlife Service (FWS), include the following terms and conditions:
1.1 Fences, corrals, trick tanks, livestock traps or other management construction activities that occur within PACs wil be conducted outside of the MSO breeding season (March 1 - September 30) or after non-nesting status has been determined.

1.2Within PACs, Forest Service employees and the livestock permittee shall strictly limit their activities, vehicles (including off-highway vehicles) equipment and construction. materials to the open roads and motorized trails or appropriate livestock management areas activities (e.g. livestock traps). Exceptions are allowed to monitor key areas.
1.3 PAC boundaries shall be discussed with permittee to insure that livestock concentrations and associated activities such as salt or mineral supplement sites shall not occur within PACs. Exceptions wil only include salting within those areas of some PAC's (Le., ridge tops and open canopied areas when used 'as a range management tool to decrease impacts in riparian and MSO high-use areas). The Annual Operating Instructions shall indicate areas that are appropriate for salting to minimize impacts to the PACs.

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2.5 During periods when forage production is low on summer pastures, the Forest Service wil monitor forage/range utilzation and manage the Sacramento Allotment consistent with the range management forage utilzation guidelines mentioned earlier in this plan.
2.6 The Forest Service shall establish two more key areas within the Hubble and Bluff Springs PACs. Monitoring of these and other key areas for prey base cover shall follow appropriate monitoring methods. Monitoring of prey base cover will be conducted during the required time frame (10 days after the onset of summer rains or by August 1).

The tenns and conditions from the biological opinion listed above and the uneven

broken terrain of the summer range wil make it necessary to maintain close
coordination to insure the terms and conditions' are met along with livestock management objectives. Deviation from the above terms and conditions must have the approval of the District Ranger.

Range Limitations - Sacramento Allotment Winter Range
The four pastures that make up the Sacramento Allotment winter range and the Dry Canyon Allotment contain some extremely rough topography. These two areas make up approximately twenty m,iles of Sacramento Ranger District

western boundary. !
Each unit is separated by deep and rough canyons that do not lend themselves to any effcient type of rotational grazing system. This season long grazing make the five pastures. it necessary to attain good livestock distribution in each of Grazing permittee and the District Ranger wil need to work cooperatively and agree to a distribution strategy. Improvements identified in the decision document for the Dry Canyon Allotment need to be installed prior to increasing winter stocking rate to 75 head. Staged stocking is possible depending on rate of improvement development.

Distribution Aids
A. Waters

Construction of proposed water developments wil enhance current livestock

distribution patterns. Primary water sources are supplied by ground water springs, distribution pipelines, and Wt:ter catchment type improvements.
Preventive and routine maintenance'wil be needed to maintain the maximum "r.' effectiveness of these improrements.

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B. Salting

Salt wil be used to draw cattle into lightly used upland areas. Salting in soft canyon bottoms and other natural livestock concentration areas wil not be permitted in MSO PACs, as a general rule. In areas outside of MSO PACS, salting in canyon bottoms and areas of natural livestock concentration wil be avoided where ever possible. Deviation from this protective measure wil require approval from the District Ranger.
C. Herding

Distribution by herding will be expected when cattle are brought on to the

allotment. Periodic herding wil be especially important during the summer
season to insure that livestock concentrations do not develop in meadow areas. The topography in this allotment requires that herding be an important component of livestock management

SCHEDULE FOR RANGE IMPROVEMENT IMPLEMENTATION
Range improvement development is highly dependent on availabilty of funding

over the life of this management plan. Due to funding constraints, the planned range improvements wil be implemented over the life of the management plan.
Projects wil be classified as high, medium, and low priority for implementation. The priority classification will be use as a general guideline for implementation,

but could be modified as funding and need dictates.
HIGH - target date of implementation during the first 4 years of the plan

Sunspot Pipeline Reconstruction - 4 miles of above ground pipeline -

$15,000.00 materials.
Forest Seivice - furnish materials

Permittee - provide labor and equipment for installation

Dry Canyon Trick Tank reconstruction - replace 4 catchment sunaces $10,000.00
Forest Seivice - furnish materials

Permittee - provide labor and equipment for installation

Burleson Trick Tank reconstruction - replace 2 catchment sunaces $11,500.00
Forest Seivice - furnish materials Permittee - provide labor and equipment

j

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Clean Mule Pasture earthen tanks - clean 5 earthen tanks on Mule
Pasture $2,000.00

Permittee - provide labor and equipment

MEDIUM. target date of implementation during years 5.7 of the plan

Dry Canyon Pipeline extension - extend pipeline % mile to livestock drinker $1320.00
Forest Seivice ¡: furnish materials Permittee -' provide labor and equipment

Grapevine Pipeline extension - extend existing pipeline 1 mile to southwest $5500.00
Forest Seiviee - furnish materials

Permittee - provide labor and equipment
Atkinson Trick Timk construction - estimated $6500.00
Forest Seiviee - furnish materials

Permittee - provide labor and equipment

LOW. target date of implementation during years 8.10 of the plan
Thousand Mile Corral reconstruction - estimated $1000.00
Forest Seiviee - furnish materials

Permittee - provide labor and equipment
Wright Springs Trap reconstruction - estimated $750

Forest Seiviee -. furnish tnaterials Permittee - proVide labor and equipment
Wils Corral reconstruction - estimated $1500.00
Forest Seiviee - furnish materials

Permitee - provide labor and equipment

Rim Drift Fence - construct % mile of drift fence on rim between

summer and winter units $1000.00
Forest Seiviee - furnish..

materials

Permittee - provide labor and equipment

.,~

.' ,

.

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Alamo Canyon waterline - upgrade water delivery system to troughs $500.00
Forest Service .. furnish materials Permitee - provide labor and equipment
Construct Holding Trap at Masterson - estimated $6,000.00

Forest Service - furnish materials Permittee - provide labor and equipment

Construct Holding Trap at Russia Canyon - estimated $2500.00
Forest Service - furnish materials Permittee - provide labor and equipment

Expand Mule Holding Trap - estimated $1000.00
Forest Service - furnish materials Permittee - provide labor' and equipment

Existing Grazing Exclosure (Forest Service maintenance responsibilty)
Livestock grazing is not authorized within the grazing exclosures listed below. The exclosures are not a part of the permitted grazing area of the Sacramento Allotment. These will be maintained for listed species by the Forest Service habitat and sensitive riparian ar~as.
1. Sacramento Lake
2. Hubbell 3. Upper Mauldin 4. Lower Mauldin

5. Upper Penasco
6. Bluff Springs

7. Western Riparian

The above grazing exclosures are shown on the allotment map that is a part of the term grazing permit.

..,"..;

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New Grazing Exclosures Scheduled for Construction
1. Telephone Canyon -10 acres 2. Wils Canyon - 4 acres 3. Water Canyon - 3 acres

4. McAfee Canyon Wetland - 2 acres 5. Sacramento Lake Wetland Expansion - 1. acre
6. Upper Penasco Fence - ~ mile

The new exclosures wil be built and maintained by the Forest Service. There purpose and need is disclosed in the Final Environmental Impact Statement. Once constructed, the area within the new exclosures wil not be considered as part of the permitted grazing aiea for the Sacramento Allotment.
The provisions outlined in this Allotment Management Plan wil bring the Sacramento and Dry Canyon Allotments into compliance with the Lincoln
National Forest Resource Management Plan and the Final Environmental

Impact

Statement for the Sacramento, Dry Canyon and Davis Allotments.