The 9th Circuit favors ranchers in sage grouse ruling

Apr 8, 2013

Located in Oregon’s extreme southeast corner, Louse Canyon and the surrounding environs are revered by backpackers, wildlife enthusiasts, and photographers for their remote and scenic splendor. Soaring, pinnacled canyon walls, an enviable population of sage grouse in the uplands, and the Wild and Scenic status of the West Little Owyhee River all contribute to make the area a cause célèbre of environmental organizations.

But the region is far more than an environmental poster child. Overseen by the Bureau of Land Management (BLM), the almost 529,000-acre Louse Canyon Greater Management Area (LC- GMA) provides grazing land for a handful of southern Oregon ranches, some of which have been turning cattle out on this farflung corner of the High Desert for multiple generations.

Given the competing interests for this prized piece of Oregon real estate, it’s not at all surprising that the area has been subject to an ongoing legal tug-o-war since 2006, when environmental litigators Oregon Natural Desert Association (ONDA) and Western Watersheds Project sued BLM over its plan to renew grazing permits for the area and install new fences, pipelines, and water troughs.

But on March 15, the case yielded an important win for the ranchers who depend on LCGMA for access to summer grass. The 9th Circuit Court of Appeals, known for its long track record of siding with environmental litigants, disappointed ONDA by refusing to freeze grazing on LCGMA, citing a lack of conclusive evidence that grazing was irreparably harming the greater sage grouse, a species that the U.S. Fish and Wildlife Service has deemed “warranted” for an endangered listing but has not listed due to lack of financial resources.

Chris Bengoa, manager of Harry Ranch LLC, which runs cattle on the LCGMA Campbell allot ment, expressed relief at the ruling. An injunction, Bengoa said, would have left ranchers with nowhere to put their cattle.

“It would be devastating,” said Bengoa. “Enjoining grazing on Louse Canyon GMA would basically put us out of business. There would be no place to go. We’d just have to sell our cows.”

The three-justice panel stated in its ruling that although evidence presented to the court “indicated that grazing poses some danger to sage-grouse, the record also showed that the danger is site-specific and depends on a number of factors. On at least one rangeland, exclusion of livestock had no effect on the sage-grouse population, and some evidence demonstrated potential positive effects from grazing,” the ruling continued.

The decision is likely to elate ranchers, who have long argued that grazing poses little threat to the dwindling sage grouse in comparison with fire, urban encroachment, and industrial installations. Many ranchers maintain that grazing may even benefit the bird by reducing accumulation of dead grasses that can choke off new growth and fuel wild fires.

The court was similarly unimpressed with ONDA’s argument that water installations, like troughs, and even cattle hoof tracks would provide a breeding ground for mosquitoes, which ONDA contended would subject the grouse to increased infection from West Nile virus.

“The threat of West Nile virus was also too remote,” the judges ruled. “An outbreak requires the presence of a complex set of conditions, but the record did not indicate that those conditions were likely to be present.”

The decision is of particular interest because it shows that arguments linking grazing with widespread, irreparable harm to sage grouse can fail to be persuasive even in the 9th Circuit, widely held to be a friendly venue for environmentalist litigants. Given that litigation over grazing sage grouse habitat is only expected to increase, the ruling suggests that the burden is on environmental groups to provide conclusive proof that grazing is a serious threat to sage grouse survival.

The 9th Circuit also rejected ONDA’s contention that BLM needed to prepare an environmental impact statement to fulfill its obligations under the National Environmental Policy Act (NEPA), maintaining that a much shorter environmental assessment was sufficient.

NEPA requires government agencies to complete an analysis of actions that may have an impact to the environment.

The decision caps off more than six years of legal sparring over the LCGMA grazing plan. The case came before the 9th Circuit once before in 2011 when the appellate court agreed with ONDA that its complaint was not rendered moot by the BLM’s move to revise its 2010 grazing plan. With the case remanded back to the federal court, ONDA succeeded in convincing the federal district judge to throw out the revised plan, arguing that BLM had not complied with NEPA.

The federal court allowed BLM to revert to its 2006 grazing plan while redoing its NEPA study instead of halting grazing as ONDA had demanded, prompting the group again to appeal the decision in the 9th Circuit.

Under the 9th Circuit’s most recent ruling, BLM is now allowed to manage LC- GMA under its 2006 grazing plan while revising its NE- PA study on the new plan.

It is not known whether ONDA will attempt to appeal this latest decision. To do so would require petitioning for the case to be reheard, petitioning for a hearing before a full panel of the 9th Circuit justices, or before the Supreme Court. ONDA did not immediately respond to a request for comment.

Bengoa, for one, is happy with the decision as it stands. At least his cows will have a place to go this spring. Without LCGMA available for grazing, Bengoa suggests, ranchers in this remote corner of Oregon simply wouldn’t be able to survive.

“It would just eliminate these ranches in this community.” — Andy Rieber, WLJ Correspondent,