Pacific Southwest Region

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1 United States Department of Agriculture Forest Service Pacific Southwest Region Regional Office, R Club Drive Vallejo, CA (707) Voice (707) Text (TDD) File Code: Appeal No.: A215-1 Date: August 24, 2007 Ms. Monique Sonoquie P.O. Box 928 Santa Barbara, CA CERTIFIED - RETURN RECEIPT REQUESTED Dear Ms. Sonoquie: On July 5, 2007, you filed a Notice of Appeal (NOA) on behalf of the Coalition to Save Husahkiw-Chumash Wind Caves, pursuant to 36 CFR 215 of the Los Padres National Forest Decision Notice (DN) approving Alternative 3 of the Winchester Canyon Gun Club Environmental Assessment (EA) that was signed on May 23, 2007 by Act Forest Supervisor Ken Heffner. I have reviewed the entire appeal record, including your written Notice of Appeal (NOA), the DN, final EA, and supporting documentation. I have weighed the recommendation from the Appeal Reviewing Officer and incorporated it into this decision. A copy of the Appeal Reviewing Officer's recommendation is enclosed. This letter constitutes my decision on the appeal and on the specific relief requested. FOREST ACTION BEING APPEALED The selection of Alternative 3 would grant the Winchester Canyon Gun Club (WCGC) a 20-year term special use permit, but would require modification of the current facility. The WCGC has operated under a special use permit as a target range since The previous term Special Use Permit expired on December 31, The WCGC is currently authorized by a one-year temporary permit. The WCGC currently has approximately 700 members and is open three days a week to the public. Approximately 2,160 non-members use the target and shotgun ranges each year during the public access days. The WCGC has requested a new term Special Use Permit for operation of the existing range. APPEAL REVIEWING OFFICER'S FINDINGS The Appeal Reviewing Officer, Jody Noiron, found that the Forest Supervisor s decision was appropriate, but did not comply with all existing laws, policies, and regulations. The Forest Supervisor provided information supporting the logic and rationale in selecting Alternative 3 and described the included management activities. Documentation provided by the Forest Supervisor demonstrated compliance with the Los Padres National Forest Land and Resource Management Plan. Caring for the Land and Serving People Printed on Recycled Paper

2 The ARO found the purpose and need for the project was clear. The Forest Supervisor was responsive to public concerns. She recommended reversing the Forest Supervisor s decision based on the lack of documentation in the record to support the Finding of No Significant Impact. DECISION I agree with the ARO s analysis as presented in the recommendation letter. All appeal issues raised have been considered. I reverse the Forest Supervisor s decision to implement Alternative 3 as described in the Decision Notice. My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR (c)]. Sincerely, /s/ James M. Peña JAMES M. PEÑA Appeal Deciding Officer Deputy Regional Forester Enclosure cc: Ken Heffner Robert C Griffith 2

3 United States Department of Agriculture Forest Service Pacific Southwest Region Regional Office, R Club Drive Vallejo, CA (707) Voice (707) Text (TDD) File Code: Date: August 22, 2007 Subject: To: Winchester Canyon Gun Club Appeal Nos A215, A215, A215 Los Padres National Forest Appeal Deciding Officer I am the designated Appeal Reviewing Officer for these appeals. This is my recommendation on disposition of the appeals filed by Monique Sonoquie, on behalf of the Coalition to Save Husahkiw-Chumash Wind Caves; Frank Arrendondo, an individual; and Alan Sanders, on behalf of the Sierra Club, Los Padres Chapter; appealing the Los Padres National Forest Decision Notice (DN) for the Winchester Canyon Gun Club Environmental Assessment (EA) signed by Acting Forest Supervisor Ken Heffner on May 23, BACKGROUND The project area has operated under a special use permit as a target range since The previous term Special Use Permit expired on December 31, The Winchester Canyon Gun Club (WCGC) is currently authorized by a one-year temporary permit. The WCGC currently has approximately 700 members and is open three days a week to the public. Approximately 2,160 non-members use the target and shotgun ranges each year during the public access days. The WCGC has requested a new term Special Use Permit for operation of the existing range. Scoping Native American consultation was initiated on July 10, The scoping letter was mailed to local tribal organizations, other agencies, individuals, and groups potentially interested in or affected by the Proposed Action on July 12, There were 109 comment letters from individuals, organizations, tribes, and government agencies. The Winchester Canyon Gun Club Project was first listed in the Schedule of Proposed Actions in July APPEAL SUMMARY The legal notice of decision was published May 30, 2007; the deadline for filing appeals was July 16, Appeal # A215 was filed on July 5, 2007; Appeal # A215 was filed on July 16, 2007; Appeal # A215 was filed on July 13, All three appeals were timely. Informal disposition meetings were held with Monique Sonoquie on July 20, 2007; with Frank Arrendondo on July 26, 2007; and Alan Sanders on August 1, No appeal points were resolved. ISSUES AND RESPONSES Caring for the Land and Serving People Printed on Recycled Paper

4 Issue 1: All appellants claim that an EIS was needed for various reasons. Response: I was unable to determine if the FONSI for this decision was adequate to support the EA as opposed to an EIS for the following reasons: Impacts to Traditional Cultural Properties (TCPs): The record does not indicate that the Forest attempted to identify, evaluate, and assess the effects of the proposal on historic properties eligible for the National Register of Historic Places as Traditional Cultural Properties. Effects to historic properties, whether they are archaeological sites or traditional cultural properties, are determined through the NHPA Section 106 process (36 CFR 800). The record does not show that traditional practitioners, tribal communities, and Native American groups were asked about the presence of such properties; the effects of the alternatives on any properties if present; and the viability of any mitigation measures to be used to treat adverse effects. The Forest did include in its analysis effects to NRHP eligible CA-SBa-509 (Wind Cave), an archaeological site with associated cultural landscape. The attributes of the associated cultural landscape are not clearly identified, nor are impacts assessed (EA pg. 57). The record also suggests the presence of a sacred site covered by the Sacred Site Executive Order 13007, but does not indicate whether such a site is affected, whether the terms of the Executive Order are complied with or the viability of mitigation measures. The relationship of the archaeological property, the cultural landscape and the sacred site is not discussed in the record. NHPA Section 106 consultation process: The record does not indicate that the NHPA Section 106 consultation process has been completed. Effects to historic properties, whether they are archaeological sites or traditional cultural properties, are determined through the NHPA Section 106 process (36 CFR 800). The forest determined that the proposed action would have an adverse effect on historic properties. In consultation with the SHPO, Santa Ynez Band of Chumash Indians, and the Advisory Council on Historic Preservation (ACHP), the forest developed a Memorandum of Agreement (MOA) to mitigate adverse effects, as described in Alternative 3. Based on the record, it is unknown whether the Advisory Council agreed that mitigation measures in the MOA would address all adverse effects that may exist because there is no documentation that the executed MOA was ever transmitted to the Advisory Council for their review. As part of the MOA, the Forest Service committed to doing a Historic Properties Management Plan within one year of signing the MOA. The MOA was signed by Gloria Brown on June 19, There is no evidence in the record that the required Historic Properties Management Plan has been completed. In a letter dated August 8, 2003, ACHP requested a copy of the final EA (Project Record Vol. 1, Section F). There was nothing in the record indicating that the EA has been sent to ACHP as requested. Cumulative impacts including effects of shooting range closure: Because of the lack of specificity in the EA regarding the potential affects of closing the long bore range on water quality, scenic quality, wildlife and plants, and because there is no analysis of potential effects to Traditional Cultural Properties, I cannot determine if the FONSI is adequate or whether an EIS is warranted. 2

5 Issue 2: Appellants contend that the decision was inconsistent with the following Acts: a) American Indian Religious Freedom Act (AIRFA) Response: The decision affirms the MOA and implements the Environmental Stewardship Plan developed for this project. These documents appear to limit access to the area for those Native Americans who are not represented by the Santa Ynez Band of the Chumash Indians because requests for use and closure days by other Native American groups or individuals will be directed through the Santa Ynez Band of Elders Council (Environmental Stewardship Plan, Cooperative Land Use Protocols, Item #4). Therefore, I find that this decision is inconsistent with AIRFA because it appears that access to the area for other Native American groups and individuals is controlled by a third party, the Santa Ynez Band of Elders Council. b) Sacred Sites Executive Order Response: There is an inadequate analysis of effects to physical features and access to the potential sacred site that might result from clean-up, shooting noise, and restricted access. Therefore, I am unable to determine whether adverse effects to the potential sacred site have been adequately mitigated to support the FONSI. c) National Historic Preservation Act (NHPA) Response: There is no record that the NHPA Section 106 process has been completed, therefore, I am unable to determine whether adverse effects to all historic properties have been disclosed and adequately mitigated to support the FONSI. Issue 3: All appellants claimed that the Gun Club has failed to comply with Best Management Practices. Response: The Environmental Protection Agency (EPA) developed guidelines for Best Management Practices (BMPs) for Lead at Shooting Ranges in Range owners or operators, in coordination with land owners, identify and select the most appropriate BMPs for their facility based on their assessment of the site. EPA BMPs for lead at shooting ranges are discussed in the Environmental Stewardship Plan (pp ). The major focus of the BMPs is for lead reclamation and recycling with interim management to minimize the mobility of spent lead. Lead reclamation and recycling is presented as one of the components of the Winchester Canyon Gun Club s Action Plan (Environmental Stewardship Plan, pp ). I find that the decision does comply with Best Management Practices for shooting ranges. Issue 4: Several appellants contended that there was not an adequate range of alternatives considered, especially one that relocated the shooting range to another area. 3

6 Response: The Forest Service policy for consideration of alternatives in an environmental analysis is found in the Forest Service Handbook (FSH , Part 14). The Handbook directs that a range of reasonable alternatives is to be considered that address significant issues and that meet the purpose and need for the proposed action. The phrase all reasonable alternatives does not require that an infinite or unreasonable number of alternatives be analyzed. In the EA for the Winchester Canyon Gun Club, the responsible official identified nine issues from public comments, and developed Alternative 3 to respond to them (EA, pp. 6-7). Three alternatives were described in detail in the EA: Alternative 1 (No Action), Alternative 2 (Proposed Action), and Alternative 3, that was developed from public comments. All three alternatives were analyzed in depth. Relocation of the gun club to a different site was considered as an alternative, but was not evaluated in detail because it did not meet the purpose and need for the project (EA, pg. 10). Under NEPA, alternatives considered but not evaluated in detail are within the range of alternatives. I find that the Forest Supervisor did consider a range of reasonable alternatives. FINDINGS Clarity of the Decision and Rationale The Forest Supervisor s decision and supporting rationale are clearly presented in the Decision Notice. His reasons for selecting Alternative 3 are logical and responsive to direction contained in the Los Padres National Forest Land and Resource Management Plan (LRMP). Comprehension of the Benefits and Purpose of the Proposal The purpose of the proposal is to respond to the application of the Winchester Canyon Gun Club (WCGC) for a new term Special Use Permit for the operation of the existing target range. Selecting Alternative 3 will allow the WCGC to continue operating safely as a target range, while requiring a reduction of size and facilities for the protection of sensitive resources in the area. The reduced size still provides adequate facilities for the club members, public and agencies in the area which utilize the WCGC. Benefits include providing a safe, managed, and controlled outdoor target facility for public use and local law enforcement agencies use; reducing the amount of illegal shooting and littering associated with target shooting on National Forest lands; and providing an occupied management presence in the vicinity of a major cultural site which adds protection of that site. This decision moves target shooting toward the desired condition as directed in the Los Padres National Forest LRMP. Consistency of the Decision with Policy, Direction, and Supporting Information The decision is consistent with the Los Padres National Forest LRMP. However I have found that the decision might not be in compliance with the American Indian Religious Freedom Act, the National Historic Preservation Act, and the Sacred Sites Executive Order Effectiveness of Public Participation Activities and Use of Comments 4

7 Public participation was adequate and well documented, except in regards to Traditional Cultural Properties and completing the NHPA section 106 consultation process. The project was added to the quarterly Schedule of Proposed Actions. The Forest mailed scoping letters, and distributed a draft EA to interested groups and individuals. While not required, responses to the comments received are detailed and included as part of the final EA. The decision of the Forest Supervisor indicates he considered and responded to public input. RECOMMENDATION My review was conducted pursuant to and in accordance with 36 CFR to ensure the analysis and decision is in compliance with applicable laws, regulations, policy, and orders. I reviewed the appeal record, including the comments received during the comment period and how the Forest Supervisor used this information, the Appellant's objections and recommended changes. Based on my review of the record, I recommend the Forest Supervisor's decision be reversed based on the lack of documentation in the record to support the Finding of No Significant Impact. Primarily, I find no evidence that the NHPA Section 106 consultation process has been completed. It was determined that the project originally had adverse affects, and although mitigation measures have been proposed, I could not find any documentation that the project mitigation measures are going to be effective. /s/ Jody Noiron JODY NOIRON Appeal Reviewing Officer Forest Supervisor, Angeles National Forest 5