A coalition of environmental groups contends that the federal government did not consider the effects of drought due to climate change in Oregon’s Fremont-Winema National Forest, exacerbating impacts from grazing on the viability of Oregon spotted frogs.
Oral arguments were heard by Judge Michael McShane of the U.S. District Court for the District of Oregon Medford Division on May 24.
The groups argue the biological opinion (BiOp) completed by the U.S. Forest Service (USFS) and U.S. Fish and Wildlife Service (USFWS) was arbitrary and capricious, as it failed to address the increasing frequency and severity of drought due to climate change for the frogs when livestock grazing impacts are added to the situation.
The Oregon spotted frog is 2-3 inches long and has a brown to reddish-brown head and back, which become increasingly red with age. The Oregon spotted frog’s habitat ranges from southwestern British Columbia to the Cascades Range in south-central Washington to the Klamath Basin in southern Oregon. The species was listed as threatened under the Endangered Species Act (ESA) in September 2014.
The Antelope grazing allotment located in the Fremont-Winema National Forest encompasses approximately 169,599 acres, of which 137,189 acres are on USFS lands and 32,410 acres are non-National Forest System lands. The Jack Creek runs through two pastures—the Chemult pasture and the North Sheep pasture—and becomes intermittent during the summer and autumn months, breaking up into pools as it flows downstream.
Lauren Rule, an attorney representing the Concerned Friends of the Winema and four other environmental nonprofits, is asking McShane to stop grazing in the two pastures, which make up roughly half of the allotment.
Citing previous rulings, the groups assert “merely mentioning climate change and its effects is not enough,” and a BiOp must analyze the implications of climate change on a species since previous decisions by the courts have ruled they failed to do so.
They state the Antelope BiOp failed to account for climate change and its impacts on Jack Creek when more of the creek becomes intermittent and cattle congregate at the same remnant pools that frogs are using. The groups said that drought has become more common in the creek, and as the creek becomes more regularly intermittent, it could decimate the population of the frogs in the area.
The groups argue that cattle drink from the same pools, polluting the pools with their waste, trampling the banks, adding sediment to the pools and trampling frogs or displacing them from the pools onto dry land where they are vulnerable to desiccation and predation.
“Yet the BiOp did not take those additive impacts into account when assessing the effects of a new grazing scheme that will give cattle more access to Jack Creek,” the groups wrote in court documents.
In the 2018 BiOp, USFWS cites measures USFS would take to protect the spotted frog, including spring protection with fencing, control of invasive species, habitat restoration, alternate water sources and modifying grazing practices.
Current permitted grazing within the allotment allows 419 cow-calf pairs per month for four and a half months. However, in 2017, USFS proposed changing the final environmental impact statement to a maximum of 275 cow-calf pairs under a term grazing permit and 219 cow-calf pairs under a private land grazing permit using an adaptive management strategy for a shorter grazing season. Grazing on the Chemult pasture allows 35 percent utilization.
The environmental groups further argue that the strategies listed in the BiOp will be insufficient. They state the BiOp fails to account for a sudden drop in water levels and that monitoring levels are inadequate. Additionally, they argue the fencing will not keep cattle out of the creek when it has previously not done so, and the permittee has a history of compliance problems.
The federal government’s attorney, Sean Martin, responded during the hearing that the BiOp relied on the best available science and included measures to prevent further decline during drought conditions.
Martin further stated the full effects of climate change were not considered in the BiOp as it would be speculative, but they were considered when the frog was listed as threatened under the ESA.
This is the second time the same environmental groups have challenged grazing on the Antelope allotment. In 2019, the groups argued grazing would cause irreparable harm to Oregon spotted frogs and sought a preliminary injunction. McShane denied the motion, citing that USFS and the permittee agreed to reduce the amount of cattle grazing substantially, and the plaintiffs did not make a clear showing of irreparable harm. — Charles Wallace, WLJ editor
