WWP suit halts improvements

Sep 23, 2011

In recent years, fencing riparian areas has become a standard practice to prevent their overuse by cattle who enjoy loafing in and around cool streams. Indeed, many lawsuits brought by environmental groups against federal agencies overseeing grazing lands, such as the Bureau of Land Management (BLM) and the U.S. Forest Service, have turned on the issue of riparian management, with resolution frequently requiring miles of fencing.

But in an unusual turn of events last month, the Western Watersheds Project (WWP), together with several co-litigants, successfully blocked the Lander, WY, BLM field office from going ahead with plans to build some 40 miles of fencing on the sprawling Green Mountain Commons Allotment (GMCA) in southwestern Wyoming intended to keep cattle clear of sensitive riparian sites, which, according to BLM, have not been meeting rangeland health standards. WWP has further blocked BLM’s plans for installing water improvements, such as stock tanks and wells, which are intended to help distribute cattle and benefit wildlife.

BLM had proposed the improvements in May as part of its finalized grazing plan for the renewal of 19 separate permits on the vast allotment. WWP petitioned for a partial stay on range improvements as well as for major reductions in animal unit months (AUMs) on the allotment to prevent “irreparable harm” while the case is decided. Though range improvements were suspended, AUMs were not reduced.
Comprising over half a million acres of federal, private and state land, GMCA is one of the largest grazing allotments in the lower 48 states, and remains largely free of fences. In addition to containing one of the highest sage-grouse lek densities in the state, it is also home to approximately 250 wild horses, and contains well-preserved portions of several historic trails. Sixteen individual permittees graze on the allotment.
In a revised environmental assessment (EA) released this year, BLM found that soil, riparian wetland and vegetation, upland vegetation, and wildlife and plants were all failing to meet standards of rangeland health in some areas of the allotment. To restore the health of riparians and other features, the EA recommended dividing GMCA into four smaller allotments, a move which would require installing approximately 40.5 miles of fencing and 14 new water developments.
According to WWP’s complaint, the fencing proposed by BLM could be damaging to wildlife, in particular the greater sage grouse. According to Natalie Havlina, legal council for WWP, “The area is … a very important area for sage grouse, and sage grouse have a tendency to fly into fences. That causes mortality.  …That’s another reason that fencing in this area isn’t appropriate.”
In a statement on WWP’s website, Western Watersheds Wyoming Director Jonathan Ratner further indicated that the fencing would have a negative impact on elk and other species.
"The Green Mountain Common is one of the last world-class resource open ranges that is still available for healthy, free-ranging elk, deer, pronghorn and other wildlife. It deserves to remain without cross fences so animals on long-distance migration routes can continue to move across the landscape unimpeded,” Ratner stated.
In his Aug. 5 decision, Administrative Law Judge Harvey C. Sweitzer sided with WWP’s request for a stay of action, ruling that BLM must suspend its plans for range improvements until the case can be heard in full. The decision has had permittees scrambling to keep their cattle where they should be, a substantial challenge on the enormous and largely unfenced allotment.
Attorney Karen Budd-Falen, who is representing several GMCA permittees in the case, explained that the fences are key to implementing improved livestock management practices. “They’re supposed to manage [with] rest and rotation of pastures, which is really hard to do when you don’t have any fences,” Budd-Falen remarked.
Yet as far as WWP sees it, “riding the range” is exactly what ranchers ought to be doing, not clamoring for expensive fences that cost taxpayers dollars and allegedly interfere with wildlife.  Said Ratner to the Casper Star-Tribune, “[W]ith the simple solution of cowboys being cowboys and actually herding their livestock, we don’t need fences.”
Budd-Falen strongly disagreed. “That statement is made by somebody who has absolutely no understanding of the reality of ranch management,” said Budd-Falen. “We are talking about a huge area.  …The ranchers actually don’t want the livestock in the riparian areas, but Western Watersheds opposes building any new tanks and other water improvements, so you’ve got no place to herd your cattle to.  …It’s an impossible situation.”
In a move welcomed by ranchers, the state of Wyoming has intervened in the case, citing the importance of ongoing grazing on the state school trust lands that are intermingled with federal land on the allotment.  
“The state of Wyoming, which is the manager of the wildlife resources, does not agree that fences and water improvements damage wildlife,” said Budd-Falen.
In addition to contesting BLM’s grazing plan before an administrative judge, last year, WWP filed suit in Wyoming federal district court in an attempt to halt all grazing on the allotment, claiming BLM had not taken sufficient action to bring GMCA back to acceptable levels of rangeland health, and that “irreparable harm” was imminent. That petition was denied by Federal District Judge Nancy Freudenthal, who stated in her opinion that WWP’s case was unlikely to succeed, and that the harm to ranchers caused by eliminating grazing for the 2011 season outweighed any potential harm to the allotment.
But the see-saw battle continues. With range improvements on hold and rangeland health getting failing grades, permittees on GMCA have been riding hard this summer in an attempt to keep cattle off riparians. The question is, will management solutions be enough to satisfy WWP? According to Havlina, WWP attorney, the answer is clearly “no.”
“This allotment is a poster child for how not to manage public rangeland,” Havlina said. “In the case of this allotment, reducing AUMs is … the only way that we’re going to be able to promote recovery out there in the long term.”
Drastically reducing, or eliminating cattle on public rangelands has been WWP’s stated purpose all along, of course, and the organization has made no secret of it. Given this objective, it is not surprising that ranchers suspect that, far from trying to protect sage-grouse and elk by objecting to fences, WWP is simply trying to make compliance with rangeland health standards impossible for ranchers, thereby make grazing untenable. This, at any rate, is how Budd-Falen reads the situation.
“[WWP’s] goal is not to benefit the rangeland in my opinion,” said Budd-Falen. “The goal is to eliminate livestock grazing. Fencing … is a benefit to the grazers because they can keep better management of their cows; they can protect riparian areas. Without that stuff, it’s almost impossible to keep your cattle where they’re supposed to be.”
For ranchers, the good news is that, so far, grazing has not been enjoined on the allotment, although BLM’s new grazing plan calls for a 45 percent cut to grazing preference numbers. But it remains to be seen whether Sweitzer will rule that, far from being a benefit to the range, fencing the GMCA actually does more harm than good. The irony of the situation is that historically, it was the introduction of fencing that allowed graziers to implement progressive grazing practices like rest and rotation. By contrast, the old days of the open range a hundred years ago saw some of the worst grazing in history. By Budd-Falen’s lights, that is exactly the situation WWP is trying to recreate, in a bid to get cattle removed entirely.
Speculation, of course, only goes so far. But this much is absolutely certain, WWP is singing a new tune:  “Don’t Fence Me In.”—