May 28, 2003

Mr. Kay Lynn Bennett

Bureau of Land Management

Idaho State Director

1387 South Vinnell Way

Boise, ID 83709

Mr. Ken Sebby

Office of the Field Solicitor

U.S. Department of the Interior

550 W. Fort St., MSC 020

Boise, ID 83724-0020

Renee Snyder

Bureau of Land Management

Challis Field Office

801 Blue Mountain Road

Challis, ID 83226

United States Department of the Interior

Office of Secretary, Board of Land Appeals

801 N. Quincy St., Suite 300

Arlington, VA 22203

Appellants: Committee for the High Desert, Western Watersheds Project

RE: Response to BLM's May 20th Response to Committee for the High Desert
and Western Watersheds Project's Appeal and Request for Stay of Challis
BLM Field Manager Snyder's Decision Dated April 8, 2003 related to the
Donkey Hills Pipeline, and Implementing EA ID-084-02-232, and Submission
of Additional Information in Support of Appeal and Petition for Stay

**APPELLANTS RESPONSE TO BLM AND SUBMISSION OF ADDITIONAL INFORMATION IN
SUPPORT OF APPEAL AND PETITION FOR STAY**

Appellants Committee for the High Desert (CHD) and Western Watersheds
Project (WWP) file this response to BLM's May 20, 2003 Response to our
notice of Appeal and Statement of Reasons concerning Challis Field
Office Manager Renee Snyder's Final Decision dated April 8, 2003 for the
Donkey Creek exclosure, Donkey Creek pipeline, and Donkey Spring
Pipeline and any other associated agency actions. We also are submitting
additional information in support of our Appeal and Petition for Stay.

Appellants CHD and WWP believe BLM's response clearly shows the Challis
BLM's disregard for current science, and an extraordinary bias towards
the livestock industry. BLM displays a blatant disregard for the wealth
of wildlife and recreational values on the affected lands. BLM
sacrifices these lands to large-scale disturbance merely to keep a
permittee who has violated stubble height requirements on Donkey Creek
from having to work to herd cattle away from the creek. BLM fails to
examine any other reasonable measures, such as changes in seasons of
use, to improve stream conditions.

Appellants CHD and WWP are Interested Publics in Challis Field Office
allotments.

Appellants members use the public lands of the Challis Field Office and
the Donkey Hills Area of Critical Environmental Concern and surrounding
lands for scientific, educational, recreational, (including hunting,
fishing, wildlife viewing, botanizing), aesthetic and spiritual
purposes. In addition, Appellants have a special interest in
conservation of biodiversity in scenic wild high desert sagebrush lands.

Appellants are adversely affected by BLM's failure to prepare adequate
environmental analysis pursuant to NEPA to assess all the direct,
indirect and cumulative impacts of large-scale construction of livestock
facilities, as well as the resoundingly harmful impacts of shifts in
intense concentration of livestock use to big sagebrush upland
vegetation communities and wildlife habitats that will result from these
projects. Extensive ground-disturbing activities and new intensive
livestock degradation associated with pipeline construction and new
livestock facility development in these wild lands will ensue. BLM has
failed to conduct a current Fundamentals of Rangeland Health and
Standards and Guides Assessment prior to take an integrated look at
livestock grazing practices. Instead, BLM has authorized bulldozing and
digging into the heart of springs merely to fulfill the desires of the
permittee, who has failed to herd cattle and take other reasonable and
prudent measures to maintain a modest grass stubble height on Donkey
Creek. The affected lands lie within the Donkey Hills Area of Critical
Environmental Concern (ACEC), which provides critical habitat for over
800 elk, as well as provides regionally significant hunting
opportunities.

BLM has allowed its lands to be sacrificed for extensive livestock
developments and extreme concentration of grazing impacts in fragile and
weed-susceptible sagebrush upland habitats. BLM takes no measures - such
as commitments to close monitoring of impacts, more protective upland
utilization standards, or any other actions to limit harm to the new
areas of extreme livestock concentration and disturbance that will
result. BLM has failed to analyze a suitable range of alternatives, such
as simply requiring the permittee to herd cattle away from the stream to
achieve management goals, or changing season of use. BLM has failed to
conduct critical baseline studies for important special status species
like the pygmy rabbit. Intense livestock use in large areas surrounding
sites where facilities are placed will occur during critical growing
periods for native grasses, and nesting, birthing, fawning and brood
rearing periods for native animals. Plus, BLM presents no scientific
data that demonstrates that it has studied the elk and big game use of
the area to the degree that is necessary to understand impacts of water
developments and fences. BLM sacrifices sagebrush uplands, instead of
taking decisive measures to alter or change livestock grazing. BLM fails
to take other simple, basic and non-destructive measures -- such as
changing season of use, or requiring the permittee to diligently herd
livestock from the stream.

Large areas of the earth will be ripped and torn up by the extensive
digging activity associated with spring-gutting and pipeline
construction under Challis BLM's flawed decision. Appellants attached
photos to the Appeal that showed recent livestock pipeline construction
and maintenance activities on Idaho BLM lands in the Jarbidge Field
Office. These are the same activities that are slated for the Donkey
Hills under this flawed decision.

Plus, BLM plans to build a visibly intrusive fence with large wooden
stays to maximize visibility, in violation of the required VRM II
management. It is a great mystery just what type of fence BLM will
build, however. BLM describes ONLY two alternatives in its EA at pages 3
and 4 "Alternative 1, Barbed Wire Fencing", and Alt. 2, "No Action". Yet
elsewhere in the EA, BLM describes construction of electric fencing. BLM
has failed to even identify the construction of an electric fence as an
alternative. BLM, in its zeal to do the bidding of the livestock
permittee here, appears to have merely spliced the EA together from
several other documents, with no clear course of action laid out. This
haphazard and murky environmental analysis clearly violates NEPA.

Electric fencing requires clearing of broad corridors of sagebrush and
other vegetation throughout the entire course of the 4 miles of fence.
Otherwise, if any vegetation touches the fence, it will short out, and
have no electric current running through it. Electric fences are
maintenance nightmares. BLM fails to discuss maintenance problems --
especially with a permitttee who has been unwilling to work to herd
cattle from Donkey Creek. It will have a significantly greater visual
impact, and will cause even more immediate habitat destruction than
barbed wire fencing, as it requires a broad de-vegetated swath to
prevent shorting out, and complete ineffectiveness.

If this flawed proposal is allowed to unfold, the flow patterns of
natural mountain springs will be permanently and irrevocably altered and
destroyed. While BLM tries to make these projects sound benign, they are
not, Digging into the heart of springs can have serious and irreversible
consequences. The project involves digging into the heart of a spring,
and puncturing and ripping apart clay layers that determine surface
flows. As these layers are destroyed, the surface expression of the
spring may be permanently altered. Conservationists call these projects
"spring-gutting projects", to better reflect their irreversible and
damaging impacts.

Appellants site visits over the years to the Donkey Hills have revealed
significant ongoing degradation by livestock to soils, water, native
vegetation, watersheds, habitat for special status species, and habitat
for other significant native wildlife. BLM has failed to conduct a
current Standards and Guides assessment process that would take an
integrated look at livestock grazing impacts here. Such an integrated
look is necessary to develop science-based management to protect these
lands from further degradation and environmental harm. BLM's decision
merely shifts harmful uses from the stream to fragile uplands, with no
adequate analysis of upland impacts.

BLM has completely ignored the habitat needs of important special status
species like pygmy rabbit and sage grouse. BLM has ignored the mandates
of FLPMA that necessitate protection of the Area of Critical
Environmental Concern. Indeed, BLM's response reveals one of the reasons
the current Donkey Hills projects are proposed is that livestock use has
been shifted from the Pahsimeroi River to Donkey Creek, due to recently
built fences on the River. BLM has clearly segmented environmental
analysis into a series of piecemeal projects, instead of conducting an
integrated and comprehensive analysis, as required by NEPA.

In order to hide the flaws and shortcomings of the project, and the
environmental destruction that will ensue if the project is allowed to
go forward, BLM's Response contains a smokescreen of verbosity, further
obfuscation, and blindness to current science.

# Appellants Legitimately Participated in the Decisionmaking Process

Appellants legitimately participated in the public planning process.
Appellants Protested the Proposed Decision in a timely decision. The
whole purpose of allowing for a Protest period is for the Interested
Public and other parties to provide input and information, and provide
the BLM an opportunity to alter possibly harmful or controversial
aspects of a decision.

BLM was required to mail the Interested Public any Draft documents, not
merely list them on a log. Appellants properly responded with a Protest
of this destructive project. BLM failed to alter its decision in
response to Appellants many Protest points.

BLM's Failure to Conduct a Current Standards and Guides Assessment under
the FRH Means that BLM Can Not Predict or Assess Impacts to Uplands,
Special Status Species and Important ACEC Values

BLM has never conducted a Standards and Guides current assessment under
the FRH in this allotment, so BLM's claims that the actions will fulfill
the FRH are not valid. BLM has failed to assess the harmful impacts of
shifting livestock use to new areas where tanks will be placed in upland
native vegetation. BLM has failed to scientifically assess the current
environmental conditions in the allotment under the FRH, i.e condition
of (watersheds, water quality, soils and microbiotic crusts, wetlands,
ecological processes, upland native plant communities, special status
species habitats, etc.). Thus, BLM can no make no science-based
conclusions about the impacts of the projects.

BLM is required to consider ALL impacts of an action, including harmful
ones. In this instance, BLM did not do so, as it has no current
information on the health of the uplands in large areas surrounding the
3 troughs that will be the focus of intense livestock activity, and that
will suffer new extreme grazing and trampling use.

# BLM's Piecemealing of Projects Violates NEPA

BLM's claim (Response at 12) that fencing the Pahsimeroi River has
helped necessitate this project starkly reveals that BLM has violated
NEPA. If this project is a result of fencing of the Pahsimeroi River,
then BLM was required to consider and assess the effects of the Donkey
Hills fences and pipeline as part of its analysis of fencing of the
Pahsimeroi River. BLM's response shows that the Donkey Hills pipeline
and fences are part of a connected series of actions.

This is a clear and stark violation of NEPA, and for this reason alone,
a Stay must be granted. BLM has violated NEPA in pursuing a set of
connected actions without ever analyzing all of these actions in a
single NEPA document. BLM has failed to adequately assess the impacts of
this series of connected actions at one time.

BLM has not fulfilled its requirement under NEPA.

**BLM Has Failed to Prepare an Activity Plan for the ACEC, as Required
by the Challis RMP, Prior to Piecemealing a Series of Harmful Projects,
and Has Failed to Provide Current Suitability and Capability Analysis**.

The Challis RMP states an activity plan will be prepared for the Donkey
Hills ACEC. BLM has not done so. An activity plan must be prepared
before a major disturbance activity like this pipeline and fencing can
occur. BLM again reiterates what it said in the EA, yet provides not a
shred of data or other information to substantiate its claims. If these
lands are not critical to elk, they would not have been included in the
ACEC.

BLM has also failed to conduct a current capability and suitability
analysis for the lands of this allotment, and the ACEC.

**BLM Ignores a Broad Body of Current Biological Science about Sage
Grouse, Pygmy Rabbit and Other Special Status Species Needs**

First and foremost, sage grouse require healthy and diverse upland
sagebrush communities. See Connelly et al. 2000, submitted with Appeal.
These are precisely the upland communities that will be most severely
impacted by the decision. Pipeline digging and bulldozing will destroy
sagebrush habitats. Clearing of large areas for what appears to be an
electric fence (even though BLM's initial EA description of alternatives
clearly states a BARBED WIRE fence as the only alternative) will cut
large swaths through sagebrush. BLM will destroy sagebrush habitats of
critical importance to sage grouse and pygmy rabbit. Plus, by creating
two "use areas" (whatever this means), BLM apparently opens the door for
concentrating large herds of cattle in smaller fenced areas -- thus
flooding these new use areas with large herds during critical periods of
the year. All of these activities will result in new destruction and
fragmentation of sagebrush habitats.

BLM has failed to evaluate all of the harmful impacts of fences,
pipeline digging, spring-gutting, and flooding new "use areas" with
cattle, claiming only great and wonderful things will occur as the
result of more construction in what is supposed to be a wild, wildlife
and recreation-friendly landscape in an important ACEC.

Appellants have provided scientific documentation about the impacts to
special status species with our Appeal. We have submitted photos that
show typical livestock water pipeline construction and maintenance on
Idaho BLM Lands. We have described how the configuration of the new
fence and existing pasture fence will create a bottleneck that will trap
elk between fences. BLM has not provided any scientific data or
documents with its EA, and instead draws self-serving conclusions out of
thin air. In fact, BLM's claims about nearly all aspects of the project
and environmental setting are wildly off-base --and are at odds with the
scientific opinion of other agencies -- such as USFWS in relation to the
pygmy rabbit (see March 5, 2003 Listing Rule, other pygmy rabbit
literature Attached to Appellants Response).

BLM ignores the use of the Donkey Creek area and slopes by elk in
winters with minimal snow -- and instead claims that elk only use
steeper slopes. BLM provides no information about migration patterns and
movement patterns of elk in and through the ACEC, such as movement from
winter areas to calving areas. Such data is essential to understanding
the impacts of placing significant new fence barriers in the ACEC.

BLM claims that there is no evidence that grazing impacts pygmy rabbits.
There is peer-reviewed literature describing the harmful structural
alteration and damage to sagebrush caused by cattle grazing in uplands.
See USFWS March 5, 2003 Rule for ESA listing of the Columbia Basin DPS
and other scientific literature Attached to Appellants Response.

Or example, recent BLM-funded research in Idaho shows the harmful
impacts of livestock to pygmy rabbit burrows. See Austin 2003, in
Attached literature. BLM demonstrates egregious failures in
misrepresenting facts about livestock damage to pygmy rabbit habitats,
and deceiving the public about the current scientific evidence and a
broad body of literature, including peer-reviewed references, that
demonstrate the harmful impacts of livestock grazing on pygmy rabbit
habitats and populations.

BLM claims there is no scientific evidence that livestock grazing harms
pygmy rabbits. We refer the IBLA to the USFWS Final Rule (March 5,
2003)"Final Rule to List the Columbia Basin Distinct Population Segment
of the Pygmy Rabbit (*Brachylagus* *idahoensis)* as Endangered". The
Final Rule details livestock-caused habitat degradation and
fragmentation, and also details "take" by livestock. See FR at 19-20.

BLM claims that pygmy rabbits occur in good numbers here. BLM's own
Technical Bulletins and reports do not show that pygmy rabbits exist in
good numbers in this area. Instead, populations in the Pahsimeroi are
described as sparse, and "widely scattered" -- see Roberts 2001,
submitted with Appeal. This is NO indication of a healthy, connected
population, but instead indicates a highly fragmented landscape and
probable division into separate and declining populations.

BLM's Response Attempts To Obfuscate the Significant Environmental Harms
Caused by Bulldozing into the Heart of Mountain Springs, and Ripping
Crosscountry in the ACEC

BLM's response rambles on about what a spring is -- apparently to mask
the EA's fundamental failure to provide a shred of scientific or
site-specific evidence on the hydrology of the spring systems that are
to be bulldozed. BLM has failed to study the water flows and hydrology
of the spring to be gutted, and associated wetlands, and has also not
studied the hydrology of the Donkey Creek area where the headbox will be
located. In fact, BLM's response reveals for the first time that this
action will also involve digging into, and de-watering Donkey Creek.

BLM provides no evidence to support its claim (Response at 11) that
crosscountry D-6 Catwork is "nearly undetectable" within a couple of
growing seasons. In wide open sagebrush country, pipeline paths are
visible for decades. They become weed corridors and are often repeatedly
driven. These open areas also are travel corridors for predators of sage
grouse and pygmy rabbit. Plus, re-digging is common, as pipes frequently
freeze, break and other wise malfunction, and so the whole system again
gets ripped up.

BLM's Response Obfuscates Harms to Upland Soils, Vegetation, and
Critical Wildlife Habitats

BLM's repeated claims that somehow magically the impacts will be
lessened because the troughs will be placed in "Areas previously grazed
by livestock" are absurd. This is EVERYWHERE in the allotment, as all of
the allotment has been grazed by livestock for over 100 years! BLM
ignores impacts to soils, upland vegetation and critical wildlife
habitats.

**BLM Kowtows to the Whims of the Permittee, at the Expense of These
Significant Public Lands**

BLM argues that not undertaking the action would harm the permittee. The
permittee holds a grazing permit, which is a privilege. It is not the
public's responsibility to provide a permittee every possible amenity
and convenience on public lands. These lands have been grazed for 150
years without bulldozing a pipeline and de-watering springs, and a delay
of a very short period of time while the merits of this action in an
important Area of Critical Environmental Concern is decided is entirely
reasonable and appropriate. BLM fails to explain how the permittee or
any predecessors have managed to graze livestock for 150 years without
these harmful and destructive construction projects.

Appellants have already sent a copy of the Appeal to Hatch, and are
mailing another, in case the permittee has somehow misplaced it.

**BLM Makes Outrageous Claims About the Permittee's Interests Here**

The permittee is not constructing the project. This action is not part
of the permittee's grazing permit. These are public lands, and BLM is
sacrificing a broad array of public lands values to a permittee who is
unwilling to work to herd cattle.

If the permittee was willing to exert a little effort to herd livestock
away from the creek, which is a very reasonable thing to ask of a cattle
person on BLM lands, then this whole devastating construction project in
the heart of a significant wildlife habitat and an Area of Critical
Environmental would not be necessary.

BLM Mars and Scars Regionally Significant Hunting Lands and Intrudes on
Wild Land Hunting Opportunities

BLM fails to consider the impacts on the recreational public, seeking to
hunt a healthy elk herd in a scenic wild land setting. These projects
will result in highly intrusive visual scars, and impediments to free
movement of elk and hunters across the landscape. How is a hunter on
foot going to cross a three-strand electrified fence? Only with great
difficulty. BLM violates VRM and other management requirements for the
ACEC.

**Confusion, Contradictions and Loose Ends Abound in the EA and BLM's
Response**

Appellants are alarmed that BLM's EA and response are full of confusion,
contradictions and loose ends. BLM's response at 13 claims: "the
exclosure fence also divides the Donkey Creek Pasture of the Donkey
Hills allotment into two use areas, which will provide for more
management flexibility". This partitioning of the allotment into
multiple use areas was never adequately assessed in the EA, and since
this is now admitted as a consequence, it further reveals the stark and
glaring inadequacy of the EA and Proposed Decision. The fence is to be
constructed on only three sides. There is no fence shown crossing the
entire southern area in EA Map "Donkey Creek Exclosure Fence". BLM has
not shown that cattle will not simply walk around from one use area to
another.

The EA claims to analyze only two Alternatives: Construction of a Barbed
Wire Fence, and No Action, yet elsewhere the EA refers to construction
of an electric fence. Such significant long-term grazing actions as
division of use areas (implausible and unrealistic as this appears). As
the permittee has failed to herd cattle off of Donkey Creek in the past,
there is no assurance that a long unfenced southern area will not serve
as sieve across which livestock will drift.

All of these components need to be clarified and the confusion and loose
ends ironed out in a comprehensive NEPA document, at the level of an
EIS. Assessment of environmental effects must occur as part of a
comprehensive and integrated grazing decision.

BLM claims it has "broad discretion in determining how to adjudicate and
manage grazing privileges". This action has nothing to do with
adjudication. BLM has basic and important requirements under FLPMA, NEPA
and other regulations to protect the public interest. BLM has shunned
these here, in its single-minded effort to coddle the permittee.

Appellants have shown that the decision is improper, as it conflicts
with providing regionally significant hunting and recreation
opportunities, fails to base the action on sound science, data, or
assessment of impacts to special status species.

BLM's response at 14 reveals that is has extraordinarily biased itself
towards selecting the proposed action in the EA, as it has already
entered into a cooperative agreement with the permittee to maintain a
fence prior to the range project being installed. Entering into such an
agreement prior to arriving at a Final Decision has biased the outcome
of what is to be an impartial NEPA process. This signing a cooperative
agreement prior to finalizing the EA demonstrates that BLM had
predisposed itself to selecting the action alternative, and was only
going through the motions of analyzing other alternatives.

BLM in no way "planned and designed the range improvement projects to
ensure the continued viability of the elk populations". BLM creates a
deathtrap for elk in its fence design, that will trap elk in a narrow
area between the southern allotment boundary fence and the new fence.

BLM simply reiterates that BAs were prepared, but fails to address
Appellants claims about the adequacy of the BAs.

BLM claims Appellants have "simply disagreed with the path of an
action". Nothing can be further from the truth. We have provided solid
scientific evidence on weeds, rare species like sage grouse and pygmy
rabbit, and the harmful effects of the projects on upland vegetation and
regionally significant hunting opportunities. It is BLM who has failed
to provide any peer-reviewed or other information to support its
contentions. It is BLM doesn't even know if it is building a barbed wire
or electric fence.

# Appellants Have Clearly Shown That Immediate and Irreparable Harm Will Result 

As BLM itself repeats in its Response at 19 and 20, Appellants have
shown a wide range of irreparable harm.

The public interest demands a Stay. The construction of this project has
only come about because of the permittee's failures to properly herd
livestock away from the stream, and the permittee's unwillingness to
take necessary measures to control livestock.

The public can not be expected to sacrifice ACEC values, and critical
habitats for native wildlife because of the herding failures of the
livestock permittee in these nationally significant wild lands.

BLM's EA is rife with confusion and failure to assess impacts. The EA
description of Alternatives describes a barbed wire fence, yet elsewhere
the EA describes an electric fence. The EA and BLM's response discuss
the creation of two livestock use areas, yet the impacts of this action,
and the impacts of concentrating livestock in these use areas are not
discussed. Plus, BLM fails to describe how cattle will be kept in the
two use areas, as one side of the "use area" will be unfenced. A shoddy,
unclear and imprecise EA can not be the basis for bulldozing and other
activities in an Area of Critical Environmental Concern.

BLM claims that the crosscountry bulldozing and ripping, digging into
and gutting the heart of a spring, strewing lands with wire hazards to
wildlife and other actions here are somehow benign. This is not the
case, and immediate and irreparable digging and spring-gutting,
brush-clearing, and placement of wire hazards to wildlife will
immediately result. Once the spring is dug into, there is no restoring
spring source soil layers to their original stratification, nor is there
any way to restore the original flow. There is no replacing a pregnant
elk that becomes tangled in the wire fences.

The public interest supports maintaining the health of public domain
lands and waters and compliance with NEPA, FLPMA, the Fundamentals of
Rangeland Health, the Challis RMP and BLM's own grazing regulations.
Challis BLM has failed to take strong and necessary action to protect
the health of native ecosystems, native biota and human recreational and
other uses of the affected lands.

The public interest supports granting of a Stay in this matter.

Sincerely,

Katie Fite

Committee for the High Desert

PO Box 2863

Boise, ID 83701

208-429-1679

Jon Marvel

Western Watersheds Project

PO Box 1770

Hailey, ID 83333

208-788-2290

CERTIFICATE OF SERVICE

I, Katie Fite, hereby certify that on the \_\_ day of May 2003, the
foregoing document will be served, via certified mail return receipt
requested, to:

Mr. Kay Lynn Bennett

Bureau of Land Management

Idaho State Director

1387 South Vinnell Way

Boise, ID 83709 (no cert. mail)

Mr. Ken Sebby

Office of the Field Solicitor

U.S. Department of Interior

550 West Fort St., MSC 020

Boise, ID 83724

Renee Snyder

Bureau of Land Management

Challis Field Office

801 Blue Mountain Road

Challis, ID 83226

United States Department of the Interior

Office of Secretary, Board of Land Appeals

801 N. Quincy St., Suite 300

Arlington, VA 22203

Katie Fite

\_\_\_\_\_\_\_\_\_