Court protects frog from Freemont-Winema National Forest grazing

In a case with a long history, the Oregon district court enjoined grazing in a pasture on the Fremont-Winema National Forest to protect threatened Oregon spotted frogs and sensitive plant species. The frogs congregate in pools in late summer, and so do cattle.  The court found violations of both NFMA and ESA.

The court held that annual operating plans for grazing were arbitrary and capricious because they were based on a viability analysis that assumed planned levels of grazing instead of the actual trespass and unauthorized use that was occurring and causing damage. Thus the Forest Service couldn’t show that the AOIs met the requirement in the plan to manage for viable populations of these species.

It also remanded the biological opinion that the Fish and Wildlife Service had prepared on the allotment for the newly listed frog. The court found the no-jeopardy conclusion was not supported by the record because there was no scientific basis for a 35% forage utilization rate protecting the frog, it did not provide a rationale for using studies from other areas, and did not explain why it failed to consider non-lethal incidental take in the final BiOp when it had done so in the draft. The magistrate judge suggested the latter was “a strategic application of a measurement convention that results in less apparent OSF loss…”

A NEPA claim was dismissed because Congress has overridden the usual NEPA timing requirements for grazing allotment planning.

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