Oregon judge will allow grazing after all

Mar 31, 2011

Circumstances have changed yet again for roughly 15 ranchers who graze their cattle on Oregon’s Malheur National Forest (MNF), this time for the better. In an order issued on March 16, U.S. District Court Judge Ancer Haggerty modified the injunction he imposed at the end of 2010, a change that will allow most of the affected ranchers to turn out their cattle this spring. This decision represents another step in a dispute over public lands grazing and steelhead habitat that has been ongoing in the region since 2007.

The original injunction, which Haggerty issued on Dec. 30, effectively halted grazing by permittees on seven national forest allotments. In that ruling, the judge based the need to enjoin grazing on violations of the National Marine Fisheries Service (NMFS) bank alteration standard during the 2010 grazing season. According to NMFS officials, the bank alteration standard is a measurement tool designed to assess whether or not an incidental take of a protected species is occurring due to habitat loss. In the case of the MNF, the species of interest is the Mid Columbia River Steelhead, a fish protected under the Endangered Species Act (ESA). The bank alteration standard is part of the NMFS Biological Opinion (Bi-Op) for the region, a document that functions as a regulatory guideline for the Forest Service, and other agencies, regarding ESA compliance. Because measurements exceeding the bank standard were taken in 2010, Haggerty made the decision to halt grazing pending the drafting of a new Bi-Op for the region, which was due in March of this year.

Following the Dec. 30, ruling, the affected ranchers and attorney Elizabeth Howard filed a motion calling for the judge to reconsider his opinion. At issue, they contended, was the fact that none of the violations of the bank standard recorded were caused by permitted cattle, but rather were primarily the result of wildlife and vandalism. They also pointed out that the new Bi-Op, which must be completed for grazing to resume, would not be completed in time for the 2011 turnout. This meant that no cattle would be allowed to graze the allotments, resulting in a devastating effect on the rancher’s livelihoods, as well as the economies of the surrounding communities.

In the recent ruling, Haggerty found cause for reconsideration based on the economic effects of his decision. Originally, the decision had been made based upon the expectation that the new Bi-Op would be in place by March of this year, well before the usual June turnout dates. Although some mention of economic harm was made in the Dec. 30 decision, Haggerty found those concerns to be insufficient in light of the fact that the new Bi-Op would be in place before turnout. However, when it became apparent that this expectation would not be realized, Haggerty indicated that this cast the economic effects of the injunction in a new light.

"In light of the Forest Service’s inability to complete its Bi-Op before grazing turnout in June 2011, the balance of harms must be reevaluated regarding the likely irreparable harm to MCR steelhead and the permittees’ economic interests," Haggerty stated in his opinion. "This modified Order seeks an equitable balance between protecting the species, allowing some grazing privileges for permittees, and compelling the Forest Service to comply with its responsibilities."

The ruling allows grazing to continue on nearly all of the pastures in five of the seven allotments.

"What the court effectively did was narrow the injunction so that grazing can occur everywhere except in the locations where there were violations last year," said Howard. "He based that narrowing on the impact to the permittees."

Due to violations of the bank standard, grazing remains prohibited on the upper and lower Middle Fork allotments, as well as much of the Murderers’ Creek allotment. The judge maintained that stream banks in these areas must be allowed time to rest, regardless of whether wildlife or livestock were the cause of the violations.

"What I think is really interesting about this decision is that (Haggerty) is not allowing grazing in pastures where there were no livestock last year," said Howard. "In other words, he’s precluding grazing based upon impacts from wildlife and wild horses."

Wild horses, in particular, have been a source of contention throughout this legal action, and area ranchers have long maintained that stream degradation in the region is the result of an overabundance of horses, rather than overuse by cattle. A 2006 census estimated the horse population in the Murderers Creek area at over 400. The Forest Service’s 2007 horse management plan called for maintaining a population of between 50 and 140 animals. In 2009, Dayville rancher Loren Stout filed a legal complaint against the Forest Service, pointing out that livestock grazing was being curtailed while the horse population was being allowed to expand. In filing the complaint, Stout sought to force the Forest Service to recognize the horses’ effect on steelhead habitat. On March 10, Haggerty issued a ruling requiring MNF officials to consult with NMFS regarding the effects of its horse management plan on endangered species. This parallels the consultation that must be conducted regarding livestock on the forest, a decision that Howard and the ranchers hope will bring grazing restrictions more in line with actual usage of the land. "We asked for an expedited ruling on this claim because of the fact that the agency is currently consulting on livestock grazing on this allotment," said Howard. "We felt it would be appropriate to be consulting on the wild horse plan that affects this allotment at the same time."

Under the March 16 order, NMFS and the Forest Service have until March 2012 to draft a new Bi-Op that addresses the effects of grazing and wildlife on steelhead habitat in the MNF. Until that time, grazing will be allowed to continue as planned on the five allotments released by the decision. Although the ranchers still contend that the bank alteration standard is a poor measure on which to base grazing permits, and Haggerty still appears to disagree, Howard explains that the ruling is still a big win for permittees grazing the MNF.

"It’s not a win on the merits of the case," she says. "But what is important about this decision is that the judge, even within the context of the ESA, did take into account the effect of the agencies’ decision on the permit holders. To me, that is really significant." — Jason Campbell, WLJ Correspondent