Grazing

Ranchers intimidate science they don’t like

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Data source: “Cattle Death Loss,” a report by the USDA National Agricultural Statistics Service

A wolf researcher at Washington State University has resigned as part of a settlement of a case alleging that the university infringed on his academic freedom.

“Wielgus angered ranchers with his research of wolf behavior. He concluded the state’s policy of killing wolves that preyed on cattle was likely to increase cattle predation because it destabilized the structure of wolf packs.

Ranchers complained to the Washington State Legislature, which cut Wielgus’ funding and demanded he be removed as principal investigator on his ongoing work.”

And they got what they wanted.  So, if you’ve got enough money and political power, not only can you buy your own researchers, but you can silence publicly funded independent research.  Do you suppose they might be able to influence the research conclusions, too?  (Somehow it’s a little hard to see “powerful” environmental groups making this trick work for them.)

 

 

 

Forest Service “takes” ranchers’ water rights

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The Court of Federal Claims (which reviews monetary claims against the U. S. government) decided a case in November that got a lot of attention in legal circles, but apparently not from the Forest Service.  It held, in Sacramento Grazing Association v. U.S., that the Forest Service violated the Fifth Amendment to the U. S. Constitution by “taking” (without compensation) water rights owned by ranchers using the Sacramento Allotment on the Lincoln National Forest in New Mexico. They did this by constructing exclosures to keep cattle from trampling two federally listed plant species in wet areas, and amending the allotment management plan to prohibit cattle from entering the exclosures.

After determining that historic grazing had established water rights for the ranchers under state law, the court held that the Forest Service physically took the water rights because it denied the ranchers all access to their property interest. The court seemed to base its decision on prior cases that involved entirely fencing off a lake or totally denying access to minerals. The court did not directly address arguments raised by the Forest Service that water rights do not entitle a user to a particular source of the water, and that the permitted number of cows had been able to find sufficient water without using the sources having exclosures.

The court ordered further discussion between the parties of locating alternative water sources, which had been unsuccessfully attempted earlier. If that is not possible, the Forest Service would be faced with continuing to pay the ranchers, or removing the exclosures, potentially leading to violations of the ESA. Or maybe they could not renew the permit or terminate the allotment. In earlier stages of the case, the court had held that the grazing permits are not a property right, and in this case, the number of cattle permitted to be grazed had also been reduced. However, the court’s reasoning in this recent decision would appear to also produce a “taking” if the historic number of cows were not allowed to graze the allotment because fewer cows could not use the historic volume of water ranchers are entitled to.

The case seems to be viewed as an aberration among “takings” scholars, this blog post noting that this outcome should be barred by a precedent set by the Federal Circuit in another recent case.  It is therefore a good candidate for appeal, but who knows what the current Administration might think about that, and it should have happened by now.  Here is a take from the ranchers’ perspective (which takes off from the court’s invoking of the Malheur National Wildlife Refuge occupation as a similar situation with different results).

Bears lose to cows

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Here is George Wuerthner’s take on livestock allotment planning on the Bridger-Teton National Forest.

The Upper Green Allotment is the largest Forest Service grazing allotment in the West. It is a mixture of aspen, rolling sagebrush/grassland, willow-lined creeks, intermixed with ponds, and springs.

It contains the best wildlife habitat outside of a national park. Home to grizzlies and wolves, endangered Colorado cutthroat trout, sage grouse, elk, moose, pronghorn, and various rare amphibians, among other outstanding wildlife values.

That is one reason why the BTNF Forest Plan has categorized 93% of the area as DFC 10 and 12 status where protecting wildlife values is the primary goal. Yet the FS manages it as more or less a feedlot for a few local ranchers.

Since 1995, 34 grizzly bears have been “removed” from the Upper Green River allotment. When I questioned why the public’s wildlife was being removed instead of private livestock using our public lands, I was shut down and told I wasn’t allowed to debate these issues.

According to the Forest Service,

The purpose of the project is to continue to authorize livestock grazing in a manner that will maintain
or improve resource conditions. The Bridger-Teton Land and Resource Management Plan … provides direction to support community prosperity in part through livestock grazing (Goal 1.1 and Objective 1.1(h),… in a manner that avoids unacceptable effects from livestock use on range, soils, water, wildlife, and recreation values or experiences …

The majority of the project area is in DFC 10 (approximately 66 percent). The area theme is an area managed “to allow for some resource development and roads while having no adverse, and some beneficial effects on wildlife.”  The management emphasis is to “[p]rovide long-term and short-term habitat to meet the needs of wildlife managed in balance with timber harvest, grazing, and minerals development.”

Grizzly bear management objective is to minimize the livestock related grizzly bear mortality.

All of the alternatives would permit more cattle to graze than has historically occurred (Table ES-2).  All of the alternatives would be likely to adversely affect grizzly bears, which also sounds like a conflict with the forest plan requiring management for no adverse effects.  Arguably, a “no grazing” alternative would not meet the purpose and need, but it looks to me like they haven’t considered a reasonable range of alternatives to reduce impacts on grizzly bears.

He’s got some interesting comments about the bias of range “cons” who “deferred to the ranchers:”  “I can also assure you that most range cons are “want to be” ranchers…”  My experience was that they were more likely to be “want to be” wildlife biologists.  In contrast my experience with foresters (other than myself) is that they like to manage forests, and “no-action” has never appealed to them much, maybe because “it would result in no reason for your position.”

Sue and settle … for a study

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This lawsuit involves two predator-killing poisons.  It doesn’t directly involve the Forest Service, although the chemicals are used on national forests.  But it is a recent example of what a lot of settlements look like – more analysis.

The 10-page agreement filed Wednesday in U.S. District Court in Montana requires the U.S. Fish and Wildlife Service to complete consultations with the Environmental Protection Agency by the end of 2021 on the two poisons used by federal workers on rural Western lands to protect livestock.

The Center for Biological Diversity and the other groups in the lawsuit filed last year in Montana say Fish and Wildlife is violating the Endangered Species Act by not analyzing with the EPA how sodium cyanide and Compound 1080 could harm federally protected species including grizzly bears and Canada lynx.

“The federal government needs to ban these deadly pesticides, but until then we’re hopeful the analysis spurred by our lawsuit will lead to common-sense measures to prevent unintended deaths,” Collette Adkins with the Center for Biological Diversity said in a statement.

Evidently, in this case, the agencies can continue to use the chemicals while the study proceeds.

 

Western Watersheds v. USFS (D. Idaho)

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This case involves the decision by the Targhee National Forest to issue new Annual Operating Instructions to the Agricultural Research Service in 2017 to allow the U. S. Sheep Experiment station to continue grazing sheep on two allotments. This case was summarized in today’s Litigation Weekly, but since it found two violations of the forest plan these are worth some further discussion. Note that the case was decided on a motion for a preliminary injunction, and the perceived risk to bighorn sheep viability was key factor in granting the PI to prevent irreparable harm. (There is also a NEPA claim that the court did not decide as part of the PI opinion.)

In order to “provide an opportunity to minimize conflicts between domestic and bighorn sheep,” the Targhee Forest Plan required these allotments to be “phased out on an opportunity basis.”   “Opportunity” was defined to include “resource protection.” The court found that new telemetry data showing proximity of the bighorn sheep to the domestic sheep and other new information “reasonably could have been identified as an opportunity” to close the allotments based on the objective of resource protection instead of issuing a new AOI.

The forest plan required the Forest to maintain “at least viable populations of all native and desired nonnative wildlife . . . in habitats distributed throughout their geographic range on National Forest System lands.” The court summarized the Forest Service argument as follows: “the Forest Service asks the court to the measure the Forest Plan’s maintenance requirement not herd-by-herd, but by considering the sum of all of the individual bighorn populations Forest-wide.” The court used a dictionary definition of “maintain” to find that allowing this small herd of bighorn sheep to be extirpated “potentially will diminish the overall population of bighorn sheep throughout the Forest.” “Thus, in no way do the common definitions and understandings support neglect or deterioration of a population of animals (taken as a whole, or in part) that the Forest Service is mandated to maintain.” The court also cited agency requirements for ensuring that sensitive species do not become threatened or endangered (bighorns are classified as sensitive species on the Targhee).

Who gets to be “in the room”

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Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  “We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

Court buys FS interpretation of viability for bighorn sheep

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On July 31, the federal district court for Wyoming found that the revised Medicine Bow National Forest Plan met the requirement of the 1982 planning regulations to manage habitat “to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.”  At issue was the meaning of additional language in the regulation that “habitat must be well distributed so that those individuals can interact with others in the planning area.”  The court determined that, “there is no requirement that the Forest Service manage habitat so as to maintain bighorn herds, at maximum potential, across the entire Forest, at all potential habitat locations…”

There are three reintroduced herds of bighorn sheep on the national forest.  The plan would only protect two of those from exposure to disease risks from domestic sheep, which is the major risk factor for bighorns, by eliminating domestic sheep grazing.  The small unprotected herd was stable but had never thrived, and was considered a low priority by the state of Wyoming.  The court found that the viability regulation was ambiguous and the agency’s interpretation in this case had changed during the administrative review.  Nevertheless it held that the record adequately explained the agency’s interpretation that protecting the two herds from domestic sheep and providing other plan direction that would benefit all three herds would meet the viability requirement:

“The Regional Forester made the determination, given all information available to him, that emphasizing domestic sheep grazing over the Encampment River herd in the Sierra Madre range, the Medicine Bow National Forest would still be able to manage the habitat of the Laramie Peak and Douglas Creek herds in order to achieve viability of bighorn sheep.”

The court found that this was determination was not arbitrary or capricious.  (Biodiversity Conservation Alliance v. Jiron)

Grazing Lawsuit on the Stanislaus National Forest

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Photo of Bluff Meadow courtesy of CSERC

Julie Stevens of CSERC sent me this link and said that they would be willing to answer any questions about this lawsuit.
Here’s the link:

I’m working on trying to get the FS side of the story.

Relevant to our discussion of the concept of multiple use, I thought this quote was interesting:

The goal of this litigation is to protect water quality, public health, and at-risk resources — not to halt livestock grazing on national forest land,” Buckley noted. “But federal agencies such as the Forest Service need to comply with the Clean Water Act and appropriately protect water quality the same as anyone else. Laboratory results frequently detect fecal coliform pollution at levels above safe thresholds for recreational contact in streams affected by livestock. One laboratory test of a stream sample in 2016 showed stream pollution more than 100 times the threshold level. In contrast, tested streams without any permitted livestock presence routinely show acceptable water quality results. When it comes to water quality in mountain streams, pollution by livestock matters.”

The conservation groups are open to discussion with USFS officials about steps that could settle this lawsuit. Key to any settlement would be agreement from the Forest Service to abide by its own resource regulations, to comply with environmental policies, to reduce livestock contamination of water, and to protect critical wildlife habitat when evidence of resource damage is documented.

“We support balanced public land management,” emphasized Dr. Britting of SFL. “That means that one commercial use (such as livestock grazing) should only be permitted to the degree that it does not cause significant harm to water quality, public health, threatened plants and wildlife, recreation, and scenic values on public land.”

I like how they laid out what they are looking for in a settlement (although probably not as specific enough as blog readers might prefer). However, it’s interesting that recreation seems to be seen more as a value than a use.

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.