Judge halts grazing on Oregon forest

Jan 7, 2011

As the result of a federal judge’s order, roughly 18 ranchers in central Oregon’s Grant County may find themselves with no place to turn out this summer. In a decision issued on Dec. 30, 2010, District Judge Ancer Haggerty of Portland, OR, enjoined grazing on seven allotments in Oregon’s Malheur National Forest (MNF). Under the ruling, all grazing by livestock on the allotments is suspended pending the release of an updated biological opinion from the National Marine Fisheries Service (NMFS).

The ruling represents Haggerty’s final decision in an ongoing battle that originated with a 2007 lawsuit filed by the Oregon Natural Desert Association (ONDA) in partnership with the Western Watersheds Project and the Center for Biological Diversity. The three groups are hailing Haggerty’s decision as a major victory for the anti-grazing movement. "Today’s decision puts the responsibility for protecting steelhead squarely on the agencies," said ONDA Executive Director Brent Fenty. "The court makes clear that the agencies have to make steelhead protection their highest priority, and that they cannot let riparian grazing continue until the agencies create a plan that complies with the law."

ONDA’s original suit, which was filed against the Forest Service and NMFS in April of 2007, called for a permanent injunction on all grazing in MNF in order to protect streams possibly utilized by steelhead, a species protected under the Endangered Species Act (ESA). At the center of the debate was ONDA’s claim that MNF officials were failing to uphold the standards set forth in the NMFS Biological Opinion, a document that functions as a regulatory guideline for agencies regarding ESA compliance.

The complaint centered on a measurement known as the Stream Bank Alteration Standard. Like most NMFS measurement standards, the stream bank standard is an attempt to determine whether an incidental take of a species is occurring due to habitat loss. ONDA’s allegations that such a take was occurring led Haggerty to remove grazing on two allotments in 2008. Throughout the following year, ranchers and the Forest Service fought back. In a 2009 hearing, Forest Service experts contended that the stream bank standard was never meant to be used as a means to measure grazing impacts on steelhead, and that the standard was being improperly used as a tool to remove grazing from public lands. Haggerty responded by allowing grazing to recommence on the MNF. He did not, however, order any changes to the stream bank standard. Instead, he ordered that extra measures be taken to keep cattle out of sensitive areas and off of the streams. At the same time, he called into question the validity of ONDA’s claims, going so far as to call their testimony "less than fully trustworthy." A similar hearing in June of 2010 ended in much the same way, with Haggerty ruling that as long as the Forest Service and grazers adhered to the earlier restrictions, ONDA had failed to prove that grazing and steelhead could not coexist.

In light of this, Haggerty’s December ruling effectively ending grazing on much of the MNF came as a shock to permittees, who felt they had held up their end of the bargain. Throughout the course of the 2009 and 2010 grazing seasons, ranchers had paid to install new fencing, and put extra labor into riding and moving cattle in order to ensure key streams were avoided. Nevertheless, according to Elizabeth Howard, attorney for the permittees, violations of the bank alteration standard was cited by the judge as one reason for the injunction. "Part of the reason that (Judge Haggerty) issued the injunction is because he believed that there were violations of bank alteration standards during the 2010 grazing season," said Howard.%u3000"What we know is that where there were%u3000violations, they were in pastures without livestock, and in one instance, in a pasture where a cattle guard was vandalized.%u3000There were no violations of the standards as a result of a failure by the permittees to manage their livestock." According to rancher and permittee Ken Brooks, the standard was exceeded just eight times in 2010, and most cases were attributed to wildlife and feral horses.

Under the standard, the Forest Service cannot allow bank alteration to exceed 10 percent. In order to measure this, 400 samples are taken, 200 on each side of a section of stream. If a sample area contains an alteration, such as a track, it is counted. If 40 such alterations are counted out of 400 samples, the 10 percent limit is reached. Under the NMFS rule, alterations are counted regardless of the species that made them. This means that, under the rule, even cattle fenced off of a creek may be required to move if elk or other species alter the bank enough to exceed the standard. As Brooks points out, such a rule leaves ranchers with little chance of affecting the outcome in any way. "They need to understand that permitted cows have nothing to do with this," he says.

Haggerty also criticized the Forest Service, contending that they complied with NMFS standards only after he intervened in 2008. In his decision, he wrote: "The court reasonably assumes that, absent further injunctive relief, important mitigation measures intended to protect steelhead will not be performed, and irreparable harm will result." The judge also claimed to have properly weighed the economic consequences to the region, but found that the economic harm suffered by the permittees did not provide a "significant counterweight" to the harm he felt was caused to the environment.

Brooks and the other permittees emphatically disagree with this assessment. "The impact this is going to have is going to be devastating to this little community," said Brooks. According to the Forest Service, under the original permits, nearly 3,900 cows grazed the 285,000 acres in dispute. (Due to the litigation, that number has been reduced in recent years.) According to Brooks, the absence of these cattle is certain to have a severe effect on Grant County’s already fragile economy. "If you figure 3,900 six-weight calves at $1.25 per pound, that’s a $2.7 million hit that our little economy is going to take. Worse, it’s all for nothing," he adds, pointing out that the Northwest is in its second year of record-setting steelhead runs. "This doesn’t have anything to do with common sense.

Under the decision, the injunction is due to be lifted when NMFS releases its 2011 biological opinion, and the Forest Service issues a plan reflecting the new opinion. However, after three years of fighting, Forest Service officials and permittees hold little confidence that cattle will be turned out this year, or that the injunction will disappear when the paperwork is completed. Brooks is also concerned that the results of this case will be used as a tool to litigate against grazing in other areas throughout the West. "If they pull this off, and it looks like they’re going to, it’s going to snowball," he says. "Anyplace they can use it, it’s going to be used to add money to the environmentalists’ pockets." Money that, via the Equal Access to Justice Act, is likely to come from government coffers. "What we’re going to lose in calf production won’t even come close to covering what the taxpayers will pay in environmentalist attorney fees," he says. — Jason Campbell, WLJ Correspondent