Split decision in Malheur grazing case yields some progress for Permittees

Jul 9, 2010

Sometimes a win isn’t as simple a thing as carrying home a trophy. In some cases, notably war and litigation, it’s often necessary for the smoke to clear before determining who, if anyone, came out on top. Such was the case in the June 4 final ruling by Judge Ancer Haggerty of the Oregon Federal District Court on the Malheur Grazing lawsuit, a long-running dispute between plaintiffs the Oregon Natural Desert Association (ONDA), defendants National Marine Fisheries Service (NMFS) and U.S. Forest Service (USFS), and intervenors/plaintiffs the Five Rivers Grazing Permittees (Permittees).

As if in continuation of the long-standing court battle, parties to the suit also disagree over who prevailed in the case, with councils both for ONDA and for the Five Rivers Permittees claiming substantial, if not total, victories. No one, to be sure, carried the day entirely. However, public lands grazing Permittees will feel vindicated by the fact that ONDA’s most overtly anti-grazing claims were roundly denied by the court. ONDA, for its part, is pleased that the court is requiring USFS to fulfill its obligation to monitor grazing on allotments in order to conserve critical habitat of the steelhead trout, which is listed as threatened under the Endangered Species Act.

The suit was originally filed against NMFS and USFS in 2007 by ONDA, Western Watersheds Project and the Center for Biological Diversity, which claimed that grazing activity on Oregon’s Malheur National Forest (MNF) was damaging steelhead habitat. They argued that an NMFS biological opinion, which defines a stream bank alteration standard for13 grazing allotments on MNF, was not sufficiently conservative to protect the threatened steelhead from the impacts of grazing, and further, that grazing constituted a "take" of the steelhead.

In a countersuit, the Permittees argued that the bank alteration standard was never intended to be used as a measure of grazing impact on steelhead, and that there was little to no correlation between bank alteration caused by grazing and the health of local steelhead populations. Therefore, the biological opinion should be completely reconsidered.

In a ruling that apparently split the difference between the two parties, Haggerty decided against both ONDA and the Permittees on these central claims, finding that the biological opinion was adequate as it stood.

However, Elizabeth Howard, council for the Five River Permittees, pointed out that Haggerty’s opinion that the biological opinion was valid confirmed the opinion’s finding that there was no jeopardy to the steelhead caused by present grazing schedules and practices.

Further, she indicated that the Permittees’ criticism of the bank alteration standard’s relevance to steelhead conservation in the case has generated increased scrutiny within the agencies, which are now sensitive to potential shortcomings of the standard. "During the course of the case, I think largely because of the Permittees involved in bringing their lawsuit about the bank alteration standard, there has been a lot of work done on the ... standard," Howard explained. "While we were not successful in ultimately challenging the bank alteration as a whole, I think we made a lot of progress during the course of this case that is going to have an effect on the bank alteration standard, and what it’s going to be the next time around."

In the Permittees favor, Haggerty did find that the Permittees were not included in consultation about the biological opinion, which their possession of grazing permits entitles them to as "applicants." Said Howard, "The judge clearly ruled that we had been improperly excluded from the last consultation process, and that we have to be included this time around."

In ONDA’s favor, Haggerty found that USFS had failed in its obligation to monitor the allotments for impact to riparian steelhead habitats, and to adequately assess whether areas that had sustained damage were recovering at an appropriate rate. He strongly criticized USFS for exceeding their own standards, calling the failure "deplorable."

David Becker, council for ONDA, called the ruling "a victory for the species that we are trying to protect. I guess in that respect it’s a victory for ONDA ... It vindicates the major concern that the organizations have had about the impacts that the Forest Service’s grazing management has allowed livestock in the John Day basin to have on the steelhead-bearing streams there."

Yet Howard indicated that the judge’s opinion that USFS had failed to adequately monitor grazing allotments was also favorable to Permittees.

She explained, "The Permitees have actually been advocating for monitoring for many years, and in fact ... we had actually written a letter to the Oregon Congressional Delegation asking for their assistance in getting the agency to spend more money on monitoring. The Permittees are just fine with more monitoring because we think that it’s going to show that they are doing a good job."

Haggerty ruled against ONDA’s claim that because of instances where Permittees had failed to comply with conservation measures in the past, it was arbitrary and capricious of NMFS to assume that they would in the future.

What remains to be seen is whether, and how, the biological opinion will be revised. Howard is cautiously optimistic that the opinion will come under review, but many questions remain. The standard is difficult for producers to operate under, allowing only for 10 percent to 20 percent alteration of banks, which are also subject to other pressures aside from cattle. Ken Brooks, a Fox Valley rancher and Five Rivers Permittee, is frustrated that the standard is still in place. Speaking about the judge’s ruling, he remarked, "I’m not pleased with it. Not at all. I don’t think the judge paid any attention to the evidence. The judge upheld this bank alteration standard that has no basis in science."

Now, in an unexpected turn of events, it appears that when the opinion is next revised, ONDA and other environmentalist groups will also be involved in the process.

Explained Becker, "They’ve actually invited ONDA and other conservation groups to be involved in the development of the next biological opinion, which makes a whole lot of sense in terms of hopefully using that process to be a place where different sides can start to ... come up with a biological opinion ... that at least everybody feels they’ve had an opportunity to have input [heard]."

Howard doubts that ONDA’s inclusion in this process is appropriate.

"There is no role for a third party like that in the consultation process. I find that very problematic. ... The consultation regs are very clear. It’s a consultation between NMFS, the Forest Service, and the applicants who are the Permittees. [ONDA’s presence] calls into question the integrity of the process."

Currently, although the judge has issued his ruling, he has not settled what remedies will be taken to redress parties in the case. It remains to be seen whether these remedies will be satisfactory to the parties, or whether they will appeal.

For the most part, Howard is pleased with the outcome. Regarding ONDA’s measure of success, she commented, "Ultimately, they weren’t successful in achieving what they wanted in this case, which was to stop grazing. ... Obviously, we would have liked to have won some of our other claims relating to the bank alteration standard, but ... if our goal was to get 100 percent there, we got 75 percent of the way."—Andy Rieber, WLJ Correspondent