Ruling in favor of cattle producers, a lawsuit that has lingered for almost 15 years involving grazing permits in Oregon’s Malheur National Forest was settled earlier this month in the U.S. District Court for the District of Oregon in Portland.
Chief U.S. District Judge Michael W. Mosman ruled on the earlier findings and recommendations of U.S. Magistrate Judge Paul Papak in a case filed in 2003 by the Oregon Natural Desert Association (ONDA) and the Center for Biological Diversity against the U.S. Forest Service (USFS), Jeff Hussey and other ranchers over grazing permits in the Malheur National Forest.
The plaintiffs claim that the habitat of the bull trout was in danger, putting the blame on livestock grazing within seven allotments along the Malheur and North Fork Rivers. The bull trout is currently listed under the U.S. Endangered Species Act as threatened and as an experimental population, non-essential species.
The findings and recommendations of Papak were filed in October 2017. Among other things, the court found that grazing was unlikely to have caused the decline in bull trout populations.
Elizabeth Howard, an attorney with Schwabe, Williamson & Wyatt in Portland, represented the eight ranches named in the suit. She noted that there were a few more ranchers when the legal battle began, but over time some of them decided the fight wasn’t worth the effort and gave up their grazing permits, dropping out of the lawsuit.
The defendants also challenged the USFS’ methods of gathering and releasing information regarding streambank conditions, and the use of its authority in issuing grazing permits.
Papak wrote, “The crucial fact here is that although the 2012 BA [biological assessment] indicated that the bull trout and bull trout habitats on the seven allotments were in jeopardy, the BAs did not find that livestock grazing is causing the decline in bull trout population or habitat. Instead, the BAs generally found that grazing as currently managed by the Forest Service had little or no harmful effect on the bull trout habitat and population and [Fish and Wildlife Service] concurred in that determination.” He then noted his agreement with the assessment.
The ruling notes the defendant’s argument that many factors, including human-induced activities, have contributed to increased stream temperatures, increased sediment and the loss of large pools. Among those activities are the creation and management of dams, forest management practices, irrigation withdrawals, past bull trout harvest and the introduction of non-native species, specifically brook trout.
In concluding, Mosman acted on Papak’s recommendation and dismissed the case with prejudice. This means the defendant is barred from bringing an action on the same case.
Howard told WLJ that, although action can’t be brought on the same case, it is open to appeal to the 9th Circuit Court. Asked to speculate on an outcome if that were to happen, Howard said, “I think its’s a well-reasoned opinion and my sense is it’s the type of opinion that could withstand the 9th Circuit’s review on appeal.”
Asked if she was encouraged to see a judge side with cattlemen instead of environmentalist groups, Howard said, “Yes, and what I thought was really encouraging here is that the court explicitly found, again based upon the records, that grazing was not the cause of bull trout decline. And, of course that was the underlying theme on this case—that bull trout were declining, so grazing must be to blame.” She added, “And while that was shrouded in a lot of legal theories and claims, that was their underlying theme, and here, the judge explicitly found to the contrary.”
As the time nears for spring turnout on grazing allotments, ranchers still have concern over usability as some grazing permits have been further restricted by the USFS. Howard said in some cases permits are scaled back as a defensive mechanism by the issuing agencies.
Again, noting that the ruling was a good win, Howard told WLJ, “Another really important message is that you can win the battle but lose the war if the agency isn’t willing to recognize the value of the decisions.” She added, “For these guys on the ground it’s not going to be a meaningful decision if the Forest Service doesn’t adequately go forward with it.”
Mac Lacy, senior attorney for ONDA, told WLJ his organization is still reviewing the decision to determine its next step.
WLJ also reached out to the USFS for comment but had not received a response as of press time.
Ethan Lane, executive director of the Public Lands Council and National Cattlemen’s Beef Association Federal Lands, told WLJ there is no question that this is a big win for cattlemen. He said it speaks to the heart of many of the fights the groups he represents are engaged in on Capitol Hill in Washington, D.C. surrounding the National Environmental Policy Act process regarding permit renewals.
“This court ruling goes a long way towards affirming the fact that the U.S. Forest Service can make these kinds of annual decisions without having to go down this endless path of additional data collection on behalf of some of these [environmentalist] groups,” Lane said. “We were incredibly gratified to see this ruling and think it’s a real positive step in the right direction.” — Rae Price, WLJ editor
