Restrictions may be eased for Oregon forest grazers

Apr 20, 2012

Ranchers grazing Oregon’s Malheur National Forest (MNF) may see a reduction in grazing restrictions and early removals this season resulting from a long awaited biological bi-op (biop) issued earlier this month by the National Marine Fisheries Service (NMFS). Under the new document, which replaces one written in 2007, rules governing the protection of fish in forest waterways have undergone significant changes, changes that ranchers hope will bring an end to a five-year period of contention, uncertainty, and grazing reductions stemming from a 2007 lawsuit, filed by the Oregon Natural Desert Association (ONDA), and the resulting court decisions.

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 the MNF in order to protect streams possibly utilized by the mid-Columbia River steelhead, a species protected under the Endangered Species Act (ESA). At the center of the debate was ON- DA’s claim that MNF officials were failing to uphold the standards set forth in the NMFS bi-op, 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, a metric used 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 Federal District Court Judge Ancer Haggerty to remove grazing on two MNF allotments in 2008. 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 portions of 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. 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 December of 2010, however, Haggerty once again enjoined grazing on seven MNF allotments, citing violations of the contested bank standard during the 2010 grazing season. Grazing, he said, would not continue until a new bi-op was in place, a document he ordered completed by March of last year.

When it became apparent that his deadline would not be met for an additional year, Haggerty relented and allowed grazing on five of the seven allotments for the 2011 season, pending the bi-op’s release in 2012.

While the disputed bank standard remains in the new bi-op, the allowable alteration has been changed from 10 to 20 percent in most areas. While this may not seem like much, MNF District Ranger John Gubel indicates that the change is significant. “Any change in the standard is going to have an effect, it’s going to allow some more flexibility on both our part and the permittees’ part regarding how we manage the rangelands,” he says. According to Gubel, monitoring results from previous seasons indicate that the 20 percent alteration standard will adequately protect fish habitat. The biop also allows for the use of other metrics to measure the impacts of cattle, a change that Gubel hopes will take some of the focus off of the bank standard. “I don’t think any of us agree that bank alteration is the ideal answer, it’s one tool to use, but it really needs to be used in conjunction with multiple indicators, such as stubble height, and browse on woody shrubs,” he says. “It’s just one factor. Unfortunately, it seems like we’ve been driven to use that al most as a sole indicator, even though it’s part of a suite of indicators.”

John Day rancher Ken Holliday agrees that the new bi-op looks like an improvement, but is withholding judgment until it is put into practice. “It appears that it could be better, but until we go through a grazing season and actually apply it to the ground, I don’t think we’ll know,” he says. Holliday, however, is still critical of the bank standard, pointing out that it is highly subjective, and prone to human error. “It’s not repeatable,” he says, “you can’t go out and achieve the same results that someone else did.” Additionally, the standard, which is a literal measure of hoof prints in a span of stream bank, is not sensitive to species. This means that elk and feral horses in the region can and do violate the standard, often before cattle are ever turned out. When this occurs, grazing cattle are removed or turnout is prevented, making it difficult for ranchers to plan ahead or manage the situation in any way.

Despite the continued inclusion of the bank standard, Holliday does indicate that the latest bi-op is an improvement. “It’s not perfect,” he says, “but it’s a lot better than it was.” According to Holliday, NMFS personnel have indicated that further changes could be made if more monitoring data were available, something that he feels would be easily achievable with increased collaboration between interested parties.

“Our real problem is, we could get a better bi-op if we could get a better data set, if all the monitoring being conducted on the Malheur was integrated so that we could draw some conclusions and direct our efforts where they need to be directed.” Holliday points out that data is readily available, but that datasets compiled by different groups are not comparable. “We’ve got six different entities taking measurements, but no one’s looking at what they are doing in the same way. There needs to be a standardized system for taking measurements such as water temperature, stubble height, the bank standard, etc.”

While ranchers and agency personnel are optimistic that the new bi-op will be an improvement, its implementation is not a foregone conclusion. According to Gubel, it must first face the scrutiny of Haggerty. “We’re still under the court’s injunction, we’re going to have to wait for that to be lifted before we can graze,” he points out. “We’re hoping that the judge looks on it pretty favorably. We’ve got a good document; it should be pretty solid given all the lessons we’ve learned managing under the earlier bi-op. We’ve got a plan now that was formed through some hard lessons.”

Also looming is the possibility that, whatever Haggerty decides, ONDA will again file for an injunction to prevent livestock grazing. “Right now, we’re waiting to hear from ONDA on how they’ll respond to the new bi-op,” says Elizabeth Howard, attorney for the affected ranchers. “We thought we were going to hear from them this week, but that hasn’t happened yet.” At press time, ONDA officials had not responded to requests for comment, but Holliday indicates that further legal efforts on their part would not come as a surprise. “We all figure ON- DA will file another injunction,” he says of the ranch ers, “but we’ll see.”

Once implemented, the new bi-op will govern grazing on the MNF through 2016. Gubel credits the efforts of the ranchers, and close collaboration between MNF and NMFS personnel as the driving force behind the improvements in the new version. “A lot of this is the result of the monitoring efforts and the good work that the permittees have done,” he says. “It’s still going to be difficult to manage within the constraints of the bi-op, but I think that everybody is seeing a slight improvement. We’re cautiously optimistic that this will be a more workable solution than we’ve been working under.” — Jason Campbell, WLJ Correspondent