Oregon judge allows grazing to continue

Jun 19, 2009

Oregon judge allows grazing to continue

Grazing will continue on Oregon’s Malheur National Forest, albeit under increased scrutiny, as the result of an order filed by Oregon Federal District Court Judge Ancer Haggerty. In his order, issued late last Monday, Haggerty determined that environmental groups had failed to prove that grazing on the forest would cause irreparable harm to local steelhead populations. "The evidence submitted indicates that the grazing proposals are likely to adequately protect riparian health, if fully implemented," wrote Haggerty.

The Oregon Natural Desert Association (ONDA), Western Watersheds Project, and the Center for Biological Diversity originally filed for an injunction to halt grazing on six federal allotments in April of this year. Had that injunction been granted, roughly 200,000 acres would have been closed to grazing, displacing nearly 3,400 cows and negatively impacting 17 ranch families and the economy of the surrounding region. Haggerty’s decision following a June 12 hearing not only allows grazing to continue on the six allotments in dispute, but will also permit grazing to resume on the Murderer’s Creek and Lower Middle Fork units, reversing a 2008 decision to halt grazing in these areas.

In their request for injunction, the environmental groups claimed that the U.S. Forest Service (USFS) should have removed grazing to protect steelhead habitat. The groups based this accusation on information that they had themselves collected using a stream bank alteration standard created by the National Marine Fisheries Service (NMFS) in a biological opinion published in 2007. However, experts testifying on behalf of USFS contended that the bank alteration standard was never meant to be used as a method to assess grazing impacts on steelhead. Ranchers feel that the standard is being improperly used as a tool to remove grazing from public lands. Although Haggerty did not order a change in the NMFS standard, he did call into question the data provided by ONDA, in particular, he referred to the declarations of ONDA consultant Christopher Christie as "Less than fully trustworthy."

In response to the original motion for injunction last April, ranchers formed a coalition to help fight the legal battle they knew was coming. Known as the Five Rivers Grazing Permittees, the group established a legal defense fund, and even assessed themselves hefty fees, in order to raise the money necessary to maintain their defense. According to Elizabeth Howard, the lawyer representing the group, this effort played a large role in helping the judge reach his final decision.

"If we hadn’t been involved in this case, I don’t think the government would have filed the motion to vacate last year’s injunction," said Howard, "This is one of those cases where it really paid off to have the ranchers involved."

Ken Brooks, rancher and co-chairman of the Five Rivers group, also points out that USFS’ own defense proved to be more than up to the challenge.

"We were expecting the worst, and we were surprised by the government defense," said Brooks. "I will afford the government every credit that they deserve; they did an excellent job defending this case."

He also stated that the judge’s decision to allow USFS to put expert witnesses on the stand, despite protests from ONDA, was a turning point at the hearing.

Although the first cattle were scheduled to return to the forest on June 19, the continued grazing does not come without some major strings attached. To ensure that USFS’ proposal is fully implemented, the judge’s order calls for an increase in herd management (riding), a much greater monitoring responsibility, and construction of more fences in sensitive areas. The fences, in particular, present an extra problem because their construction must fall within the requirements of the National Environmental Protection Act, meaning a series of paperwork and due process steps that must be carried out before they can be erected. Grazing will not be allowed in pastures containing these sensitive areas until the fences are in place. In addition, USFS must submit a report demonstrating their compliance with the judge’s wishes by July 20.

Although hopeful, officials are nervous about their ability to shoulder the extra workload brought on by the decision, according to Brooks Smith, district ranger for the Blue Mountain Ranger District in John Day.

"We’ve got a lot of work to do, and we have to guarantee to the court that we’ll do a good job," said Smith. "I think we’ll be successful, but it won’t be easy."

Haggerty reserves the right to discontinue grazing if the standards set forth in his decision are not met. USFS must also adhere to the standards set forth previously in the NMFS biological opinion, including the contested bank alteration rule.

Despite the increased challenges, ranchers are optimistic about the court’s decision. As Brooks said, "We’re pretty happy with the results, we’re not ecstatic, but it could have been a lot worse."

According to Howard, the battle is far from over. The recent filing and decision is part of a larger case, originally filed by ONDA, to address alleged deficiencies with NMFS’ biological opinion, a case that is still ongoing. For Howard and the Five Rivers Grazing Permittees, the next step is to file a brief with the court requesting that the disputed bank alteration standard be removed from the biological opinion. The same bank standards have been used in biological opinions pertaining to other public lands, and ranchers hope that removal of the standard in this case will prevent it from being used in the same way elsewhere.

"There’s still a lot to do," says Howard, "and we still need a lot of help."

Contributions to this effort can be made to the Oregon Cattlemen’s Stewardship Fund at 3413 Commercial Street SE, Ste. E, Salem, Oregon 97302-4668. Contributors may also contact Ken Brooks at 541/421-3032. — Jason Campbell, WLJ Correspondent