Oregon ranchers fight litigation, foul play

Sep 4, 2009

Oregon ranchers fight litigation, foul play

Oregon cattlemen with summer permits on the Malheur National Forest (MNF) recently won a victory in the Oregon Federal District Court after Judge Ancer Haggerty ruled to overturn a preliminary injunction on grazing on the Murderer’s Creek and Lower Middle Fork allotments requested by the Oregon Natural Deserts Association (ONDA), as well as denying ONDA’s further request for a preliminary injunction on an additional nine allotments on MNF.

At the core of the issue is the 2007 National Marine Fisheries Service (NMFS) biological opinion which lays down streambank alteration standards for MNF. In December 2007, ONDA filed suit against MNF and NMFS claiming that the biological opinion was not sufficiently restrictive to protect native steelhead trout from grazing impact and that grazing constituted a "take" of the steelhead. In order to protect the steelhead, ONDA argued that "all grazing must cease" on certain allotments of MNF.

In an effort to safeguard their grazing permits, ranchers banded together to form the Five Rivers Grazing Permittees which filed suit against NMFS and MNF in February 2008 claiming that the bank alteration standard was never intended to be used as a measure of grazing impact on steelhead in any case, and that there was little to no correlation between bank alteration caused by grazing and the health of local steelhead populations.

Litigation in the case is ongoing. Although ranchers have currently regained the right to turn out cattle on their allotments, in his June 15 statement, Haggerty issued a number of requirements to ranchers and the MNF with a view to protecting riparian areas deemed to be critical steelhead habitat. In Haggerty’s order, ranchers were required to erect fencing prior to turn-out to screen off sensitive riparian areas, as well as increase oversight and movement of cattle. Ranchers’ compliance is being closely monitored. If the new requirements are insufficient to maintain the controversial streambank alteration standard, Haggerty reserves the right to reverse his decision, and once again ban grazing on the allotments.

Ranchers have been eager to comply with Haggerty’s demands in order to safeguard their access to summer grazing. This has proven to require a major commitment on the ranchers’ part in terms of man hours. Loren Stout, who runs cattle on the Murderer’s Creek allotment, spent six days erecting 7,000 feet of electric fence prior to turn out.

"It’s a three-hour round trip horseback to where the fence is. We had to pack in all the materials on horses. You can’t get a vehicle in there. We checked it every day," Stout explained.

He reports that although the forest service was supposed to helicopter hard fence materials in this spring, this has not yet occurred.

Despite the fact that the Five Rivers permittees are contesting the bank alteration standards in court, they are actively cooperating with Haggerty’s court order, which is intended to uphold those standards.

"We’ve tried to do everything to comply with (Judge Haggerty’s) order. Everything that they’ve (required), we’ve tried to comply with. We don’t agree with it, that’s why we're going to court in the fall, but we are doing everything we can to comply," he said.

The ranchers’ efforts to meet the new standards goes beyond fencing and monitoring. Some permittees, Stout among them, are coming off their allotments early because wild horses and elk have already impacted stream banks beyond the specified limits.

"We only spent 23 days on national forest because of the horses," says Stout. "We were scheduled to go onto the other pastures, but we couldn’t meet standards in them. We voluntarily (didn’t turn out there) because if you can’t meet standards going in, you’ve got a problem. The hills are just loaded with grass. There’s plenty of grass, it’s just those riparian areas. One cow steps on the riparian, and we get all the blame for it."

Currently, MNF is managing for significantly more horses on its wild horse territory, which covers six grazing allotments, than is deemed sustainable. Jeff Shinn, rangeland management specialist for MNF, explains, "The appropriate management level is 50 to 140 horses. We’re hoping to do a census right now and pin down (the current) number. We estimated in January that we had between 200-250." Because the last estimate was conducted before this spring’s foaling season, current numbers are most likely to be much higher than the January estimate.

On a positive note, MNF is currently in the process of reducing wild horse numbers to achieve a sustainable population. Shinn reports that 77 horses were removed from the wild horse territory in a gather last week. Due to ongoing litigation, Shinn was unable to comment on whether the horses were causing significant impact to the stream banks. He did, however, make clear the potential effect of horse impacts on grazing: "Basically, if horse impacts are too high, then that will affect the ability of the permittee to stay on the allotment."

Ongoing litigation, increased fencing and management projects, and competition with an over-population of wild horses have tested the mettle of the Five Rivers permittees. There has arisen, however, another, more serious threat to their efforts to cooperate with the court. A number of the ranchers have discovered tampering with the electric fences they have been required to build to keep the cattle off of the riparian areas.

Pete McGillicut, who runs cattle on the Slide allotment, was one victim of vandalism.

"The first or second week (the fence) was up, we had a man checking it daily. Somebody was shutting it off at night, four nights in a row," he said.

On Murderer’s Creek, Stout has also had his share of fence tampering. In one case, wires were intertwined and cleverly reattached, causing the fence to short out. In a separate incident, a sapling was wrapped around the fence and used to ground the current.

"These people knew what they were doing," comments Stout. "They obviously had a lot of experience."

In a third case, according to Stout, approximately 70 yards of fence protecting a riparian area was simply laid down. When asked whether the damage could have been caused by wildlife, Stout explained: "All the wires were tight. If a fence is hit by horses or elk, there’s going to be some damage. There was no damage to the fence itself. No damage to the posts or wires. No hair in it."

When Stout discovered the damage, he also found the perpetrators’ calling card: "I could see where they had sat on the bank to have lunch and admire their handiwork. There was an orange peel and a bunch of pistachio nut shells."

Stout filed a report with the sheriff’s office, and MNF has recorded the incidents in its monitoring report.

On the Slide allotment, the incidences of vandalism have meant more work for McGillicut. "We’re checking everything twice a day. If we were to check one or two times a week, we’d probably be in trouble," he said.

Because no one has been apprehended, it is impossible to make concrete accusations regarding the vandals’ identity. It is clear, however, that a failure of permittees to comply with the court order would be very much in ONDA’s interest, and speculation is heavy among ranchers. Says McGillicut of the vandal who repeatedly turned off his fence, "I’m not going to blame anybody, but that was a case in which somebody really wanted cattle to cross the fence."

Interestingly, this is not the first time that sabotage has been suspected on MNF. In 2007, salt blocks placed in a restricted stream area to draw in livestock and other animals to the sensitive zone were reportedly discovered by national forest personnel.

It is disturbing that a potential new trend of "ecosabatoge" is threatening to thwart rancher’s efforts to graze their cattle in accordance with the law. To ranchers running cattle on public lands and fighting litigation, Stout offers this piece of advice: "One thing that ranchers have got to know. You’ve got to start carrying a camera. You’ve got to document everything." — Andy Rieber, WLJ Correspondent