Interagency Memorandum of Understanding Concerning Animal Damage Control and National Environmental Policy Act (NEPA) Compliance

DEPARTMENT OF THE INTERIOR

Interagency Memorandum of Understanding Concerning Animal Damage

Control and National Environmental Policy Act (NEPA) Compliance

AGENCY: Bureau of Land Management; Interior.

ACTION: Notice of final memorandum of understanding.

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SUMMARY: The Department of the Interior, Bureau of Land Management

(BLM) and the Department of Agriculture, Animal and Plant Health

Inspection Service--Animal Damage Control (APHIS-ADC) have signed a

Master Memorandum of Understanding (MOU) that recognizes APHIS-ADC as

the lead federal agency for the conduct of animal damage management on

lands administered by the BLM. Specifically, the MOU assigns

responsibility to APHIS-ADC for carrying out animal damage management,

primarily for protection of livestock, including compliance with the

National Environmental Policy Act (NEPA) and the issuance of records of

decision. The MOU also recognizes the State's responsibilities for

management of resident wildlife populations and the need for

communication among the parties, the States, and other affected

agencies such as the USDA Forest Service.

EFFECTIVE DATE: This MOU becomes effective May 16, 1995.

FOR FURTHER INFORMATION CONTACT: Cal McCluskey, Bureau of Land

Management, Wildlife, Fisheries, Rangeland and Forestland Group, 1849 C

St., N.W., Washington, D.C. 20240; telephone (202) 452-7765.

Background Information

On August 5, 1994 the BLM published for a 60-day public comment

period, a draft MOU between BLM and APHIS-ADC outlining the proposed

shift of responsibility for compliance with NEPA, ESA, and

authorization of animal damage management actions on BLM administered

lands to APHIS-ADC. The BLM received a total of 66 written comments

from various sources. Approximately half (36) of the comments came from

individuals, 20 from non-profit, nongovernment organizations and 10

were received from either State or Federal agencies.

A summary of the comments received, responses to the comments and a

copy of the final MOU is provided in the following section.

Denise Meridith,

Acting Director.

Comment: APHIS-ADC does not have any administrative appeals process

thereby forcing individual citizens or organizations to resort to

litigation in order to challenge a decision issued by APHIS-ADC on

their control program.

Response: The transfer of NEPA compliance and decision-making

responsibility to APHIS-ADC does not eliminate the responsibility to

obtain adequate public input into the decision-making process. APHIS-

ADC must consider issues presented to them during the NEPA process and

comment period. APHIS recently published its new NEPA implementation

procedures (60CFR 6000-05, February 1, 1995) which contain specific

commitments to public involvement and notification during the NEPA

process.

Comment: The BLM should complete NEPA analysis using either an

Environmental Assessment or Environmental Impact Statement before it

makes a decision to transfer NEPA responsibilities and decision-making

authority for animal damage control to APHIS-ADC as proposed by the

MOU.

Response: The development of policies, directives, regulations and

guidelines of an administrative, financial, legal, technical or

procedural nature, or environmental effects which are too broad,

speculative or conjectural to lend themselves to meaningful analysis

and that will be subject to the NEPA process, either collectively or

case by case are categorically excluded from the NEPA process under

[[Page 26046]] Department of the Interior Manual Section 516, Chapter

2. The transfer of responsibilities to complete NEPA for animal damage

management activities from the BLM to APHIS-ADC via the MOU is a

decision that meets several of the above-listed criteria. The

implementation of the MOU will result in the action-agency, in this

case APHIS-ADC, being responsible for completing NEPA analysis on its

program. In addition, site-specific NEPA analysis on individual ADC

Plans will occur at the local level with involvement from the BLM,

other appropriate agencies or organizations and individual citizens.

Comment: The missions of APHIS-ADC and the BLM conflict. APHIS-ADC

is responsible for carrying out animal damage management under the

authority of the Animal Damage Control Act, as amended, while the BLM

is responsible for multiple use management.

Response: While it is true that the BLM and APHIS-ADC have

different missions, the MOU provides a framework for coordinating

activities and communicating information that needs to be considered in

the NEPA process. The MOU states that APHIS-ADC will coordinate their

activities annually with the BLM and other appropriate State and

federal agencies and cooperate with the BLM in identification of human

safety zones and other areas where mitigation or restriction may be

required to comply with BLM Resource or Management Framework Plans

(ie., land use plans).

Comment: The MOU fails to state how often coordination between the

two agencies will occur.

Response: The draft MOU stated in section III (A), that the BLM

shall cooperate with APHIS-ADC in the development and annual review of

animal damage management plans affecting BLM lands and resources on

those lands and ensure they are consistent with the Federal Land Policy

and Management Act. In addition, Section IV (B) of the draft MOU stated

the APHIS-ADC shall develop and update animal damage management annual

plans in cooperation with BLM, appropriate State and federal agencies,

permittees, and others. Section III (A) of the final MOU is essentially

unchanged. Section IV (B) has been modified to more clearly state that

APHIS-ADC shall annually review and update as needed, ADC plans in

cooperation with the BLM, appropriate State and federal agencies,

permittees and others.

Comment: APHIS-ADC will conduct animal damage control programs

without public input.

Response: As a federal agency, APHIS-ADC is subject to the same

public involvement requirements under the National Environmental Policy

Act as any other agency. We have no reason to believe that APHIS-ADC

will not provide adequate opportunities for public involvement and

comment. In addition, section IV (B) of the MOU clearly states the

APHIS-ADC agrees to ensure that coordination between all appropriate

State and federal agencies, permittees, and others will occur.

Comment: APHIS-ADC lacks sufficient staff to complete NEPA analysis

for its program at a site-specific level.

Response: The BLM is not in a position to evaluate the capabilities

of APHIS-ADC staff. We are generally aware that APHIS-ADC has

accelerated training on NEPA for their field personnel over the past

two years and that additional funds have been allocated to

implementation of NEPA. In addition, in accordance with the MOU, the

BLM has agreed to provide information and assistance to APHIS-ADC for

the NEPA process, when requested.

Comment: The transfer of NEPA compliance for animal damage

management on BLM lands from the BLM to APHIS-ADC is a violation of the

Federal Land Policy and Management Act.

Response: The Federal Land Policy and Management Act of 1976

(FLPMA), 43 U.S.C. section 1701 et seq., authorizes the Secretary of

the Interior to manage the public lands under principles of multiple

use and sustained yield. The Secretary, in managing the public lands,

is subject to other applicable law, such as the Animal Damage Control

Act as amended (7 U.S.C. 426-426(c)). FLPMA also allows the Secretary

to permit other Federal agencies to use public lands through

cooperative agreements. 43 U.S.C. 1732.

The Animal Damage Control Act, as amended, gives the Secretary of

Agriculture, among other things, the authority to conduct campaigns for

the destruction or control of predatory animals on public and private

lands. It also provides that the Secretary may cooperate with public

agencies, States and others.

Both APHIS-ADC and the BLM must comply with a variety of federal

environmental laws such as the Endangered Species Act, Clean Water Act,

and the National Environmental Policy Act or NEPA. NEPA directs all

Federal agencies to use systematic interdisciplinary approach in

planning and authorizing activities that affect the human environment.

The transfer of NEPA compliance for animal damage management activities

performed by APHIS-ADC will not diminish or eliminate compliance

requirements for these important environmental statutes. It will only

place responsibility for compliance with the action-agency, in this

case APHIS-ADC, with full cooperation and coordination with the land

management agency, in this case the BLM.

Comment: APHIS-ADC is not required to consider biological needs of

ecosystems on BLM lands.

Response: APHIS-ADC, like the BLM, is required to comply with the

National Environmental Policy Act of 1969, as amended. This statute

established a national policy for the protection and enhancement of the

environment. NEPA directs all Federal agencies to use a systematic

interdisciplinary approach, which ensures integration of natural and

social sciences and environmental design arts in planning and decisions

that affect the human environment. In addition, Executive Order 11514,

Protection and Enhancement of Environmental Quality, directed heads of

Federal agencies to monitor, evaluate, and control their activities to

protect and enhance the quality of the environment.

Comment: APHIS-ADC activities should conform to State laws.

Response: We are not aware of any APHIS-ADC activities that do not

conform to State laws. However, the BLM is not in a position to dictate

to another Federal agency what its statutory obligations or commitments

are under existing State law.

Comment: The BLM should retain the decision-making authority for

animal damage management activities carried out on public lands.

Response: APHIS-ADC is the Federal agency with the expertise and

authority under the Animal Damage Control Act of March 2, 1931, as

amended, for providing wildlife damage management services. This

includes maintaining technical expertise in the science of wildlife

damage management, control tools and techniques, conducting research,

management programs, and NEPA compliance for APHIS-ADC activities

related to predator control protection on public lands. Both the BLM

and APHIS-ADC recognize that without proper management, damage in the

form of livestock predation, big game predation, range, watershed and

forest resource destruction, and negative impacts to human health and

safety can occur. Both agencies have an interest in limiting this

damage caused by, and to wildlife, so as to protect other multiple-use

objectives. They also agree that in [[Page 26047]] evaluating the need

for, and in conducting wildlife damage management programs, multiple-

use objectives must be considered.

In addition, both agencies recognize that the States are

responsible for managing the resident wildlife within their respective

borders on land owned by the United States under control and

jurisdiction of the BLM. The State responsibilities include regulation

of wildlife populations so the habitat on public lands will remain

productive for future wildlife populations. The BLM is responsible for

managing wildlife habitat, not wildlife populations. The MOU

establishes a framework for close coordination and cooperation between

APHIS-ADC, the BLM and the State agencies with legal authorities for

managing resident wildlife species.

Comment: The transfer of NEPA responsibility and authorization to

APHIS-ADC for animal damage management activities by it on BLM lands

will result in increased impacts to nontarget or threatened and

endangered species.

Response: APHIS-ADC is responsible for compliance with applicable

State and Federal environmental laws including the Endangered Species

Act for animal damage management activities it conducts. APHIS-ADC will

be responsible for evaluating and disclosing the impacts of their

program through the NEPA process. In addition, through annual

coordination with the BLM and other appropriate State and Federal

agencies, data on livestock losses, harvest of target and nontarget

animals and sensitive habitats will be reviewed and evaluated, and if

needed, adjustments to animal damage control activities will be

implemented by APHIS-ADC. In those areas where federally listed

threatened or endangered species occur, site-specific activities will

be evaluated and reviewed by the Fish and Wildlife Service in

compliance with the Section 7 process of the Endangered Species Act.

Through annual coordination, the BLM will provide any information on

sensitive species and habitats that should be considered in the

decision-making process, including any land use restrictions that are

needed to comply with applicable Resource or Management Framework

Plans.

The following is the final MOU which reflects several changes that

resulted from the comments received on the draft.

Master Memorandum of Understanding Between the Animal and Plant Health

Inspection Service, United States Department of Agriculture and the

Bureau of Land Management, United States Department of the Interior

This Master Memorandum of Understanding (MOU), is made and entered

into by and between the United States Department of the Interior,

Bureau of Land Management, hereinafter referred to as the BLM, and

United States Department of Agriculture, Animal and Plant Health

Inspection Service-Animal Damage Control, hereinafter referred to as

APHIS-ADC.

I. Purpose

The purpose of this MOU is: (1) To establish general guidelines to

assist field personnel in carrying out their wildlife damage management

responsibilities consistent with the policies of BLM and APHIS-ADC; (2)

to strengthen the cooperative approach to wildlife damage management on

BLM lands through exchange of information and mutual program support;

and (3) to reaffirm working relationships with State governments and

(4) to identify responsibilities in compliance with the National

Environmental Policy Act (NEPA) of the respective agencies and foster a

partnership in discharging the federal commitment under the Animal

Damage Control Act of March 2, 1931 (46 Stat. 1468, 7 U.S.C. 426-426b),

as amended, for the management of wild vertebrates causing damage on

Bureau of Land Management (BLM) lands in accordance with the Federal

Land Policy and Management Act (FLPMA) 43 U.S.C. Section 1201 et seq.

II. Statement of Mutual Interest and Responsibilities

The parties recognize the importance of effective animal damage

control on lands under the administrative jurisdiction of the BLM

including control of predation by individual animals and/or local

populations to achieve land and resource management objectives.

Further, it is mutually recognized that the tools and procedures

available to APHIS-ADC for managing populations must be used in a

professional manner according to a wildlife damage management plan

developed in compliance with the National Environmental Policy Act

(NEPA), Endangered Species Act, Federal Land Policy and Management Act,

and the Animal Damage Control Act.

Both agencies recognize that without proper management, damage in

the form of livestock predation, big game predation, range, watershed

and forest resource destruction, and negative impacts to human health

and safety can occur. Both agencies have an interest in limiting this

damage caused by, and to wildlife, so as to protect other multiple-use

objectives. They also agree that in evaluating the need for, and in

conducting wildlife damage management programs, multiple-use objectives

must be considered.

The parties also recognized that:

A. The BLM administers public lands located primarily in the

western States and Alaska amounting to about 270 million acres. These

lands and resources are managed under multiple-use principles providing

for a variety of uses, including timber harvesting, recreation,

livestock grazing, mining and mineral development and fish and wildlife

habitat management under the laws of Congress and regulations of the

Department of the Interior.

B. The States are responsible for managing the resident wildlife

within their respective borders on land owned by the United States

under control and including jurisdiction of the BLM. The BLM is

responsible for managing habitat. For purposes of this agreement, the

term ``wildlife'' shall not include wild horses or burros, as defined

in Public Law 92-195 dated December 15, 1971.

C. APHIS-ADC is the agency with the expertise and authority under

the Animal Damage Control Act of March 2, 1931, as amended, and the

Rural Development, Agriculture and Related Agencies Appropriations Act

of 1988 for providing wildlife damage management services. This

includes maintaining technical expertise in the science of wildlife

damage management, control tools and techniques, and conducting

research and management programs.

To implement the foregoing, the parties agree as follows where BLM

lands are involved:

III. The BLM Shall

A. Cooperate with APHIS-ADC in the development and annual review of

wildlife damage management plans affecting BLM lands and resources on

those lands and ensure they are consistent with FLPMA.

B. Cooperate with the APHIS-ADC to identify areas on BLM lands

where mitigation or restrictions may be needed to comply with BLM's

Resource or Management Framework Plans.

C. When requested, provide information and assistance to APHIS-ADC

during the NEPA processes.

D. Complete NEPA compliance for nonpredator wildlife damage

[[Page 26048]] management activities initiated by BLM to protect

natural resources and facilities.

IV. The APHIS-ADC Shall

A. Evaluate wildlife damage management needs in cooperation with

State agencies and permittees.

B. Annually review and update as needed, wildlife damage management

plans in cooperation with the BLM, appropriate State and federal

agencies, permittees, and others. Cooperate with the BLM to identify

areas where mitigation or restriction may be needed to comply with

BLM's Resource or Management Framework Plans.

C. Complete necessary NEPA documents and decision records on

activities related to predator control primarily for livestock

protection on BLM lands.

D. Conduct activities on BLM lands in accordance with APHIS-ADC

policies, wildlife damage management plans, applicable State and

Federal laws and regulations, and consistent with BLM Resource or

Management Framework Plans.

E. Provide the BLM with technical information on recommended

wildlife damage management tools and techniques, when requested.

V. It Is Mutually Agreed by the Parties That

A. The parties will participate, as needed, in State agreements

relating to wildlife damage management on BLM lands with the

appropriate State and federal agencies.

B. The parties will ensure interagency coordination and review of

the effects of wildlife damage management activities on BLM lands and

resources before APHIS-ADC makes decisions on management plans that it

develops.

C. The parties will meet on a State or regional basis annually or

more often if needed, to coordinate management operations.

Representation shall be by the BLM State Director and the APHIS-ADC

Regional or State Director. The BLM and APHIS-ADC may agree to have

other parties or agencies with shared or related responsibilities be

present at these annual meetings such as the State Wildlife Agency

Director, State Departments of Agriculture and the Forest Service

Regional Forester or their designated representatives.

D. The parties will elevate any problems regarding implementation

of this agreement that cannot be resolved to the next higher level for

resolution.

E. This MOU shall supersede all existing MOUs between APHIS-ADC and

BLM and supplements and amendments thereto, relating to the conduct of

wildlife damage management programs by the parties on BLM lands.

F. Nothing in this MOU is intended to modify in any manner the

present cooperative programs of either agency with States, other public

agencies, or educational institutions.

G. This MOU is neither a fiscal nor a funds obligation document.

Any endeavor involving reimbursement or contribution of funds between

the parties to this MOU will be handled in accordance with applicable

laws, regulations, and procedures including those for Government

procurement and printing. Such endeavors will be outlined in separate

agreements that shall be made in writing by representatives of the

parties and shall be independently authorized by appropriate statutory

authority. This MOU does not provide such authority.

H. Nothing in this memorandum shall obligate either the BLM or

APHIS-ADC to expend appropriations or to enter into any contract or

other obligations.

I. All wildlife damage management activities on BLM lands will be

coordinated with appropriate State and Federal agencies.

J. This MOU may be modified or amended upon written consent of both

parties or may be terminated by either party with 30-day written notice

to the other party.

K. The principal contacts for this agreement are:

Cal McCluskey, Senior Wildlife Biologist, Department of the Interior,

Bureau of Land Management, Wildlife, Fisheries, Rangeland, and Forestry

(WO 330), 1849 C N.W. (LSB Rm. 204), Washington, D.C. 20240, Phone #:

202-452-7765

Donald Hawthorne Associate Deputy Administrator, USDA Animal & Plant

Health, Inspection Service, P.O. Box 96464, Washington, D.C. 20090,

Phone #: 202-720-2054.

VI. Effective Date

In Witness Whereof, the parties hereto have executed this MOU as of

the last written date below.

Dated: March 21, 1994.

U.S. Department of Interior, Bureau of Land Management.

Denise P. Meridith,

Director.

Dated: March 21, 1995.

U.S. Department of Agriculture, Animal and Plant Health Inspection

Service.

Lonnie J. King,

Administrator.

[FR Doc. 95-12013 Filed 5-15-95; 8:45 am]

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