Do we have another Bundy 2.0 case on our hands? Environmental groups seem to think so if a recent lawsuit is any indication.
Western Watersheds Project (WWP) filed litigation against the U.S. Forest Service (USFS) in the U.S. District Court District of Utah on Nov. 20. The complaint claims USFS has been influenced by “threats made by a handful of scofflaw grazing permittees on Monroe Mountain” to allow “excessive stocking rates, repeated trespass and non-compliance with federal regulations,” according to a released statement.
Monroe Mountain is located in Sevier and Piute counties in southcentral Utah. The area contains greater sage-grouse habitat and other wildlife species and is also leased by USFS for livestock grazing. WWP claims in a 57-page complaint the national forest land has been “overstocked” with livestock, and wildlife populations are suffering as a result.
The lawsuit asserts USFS “continues to authorize grazing at levels that repeatedly lead to over-utilization of forage vegetation and degradation of other forest resources” and alleges the agency uses prescribed burns in an effort to stimulate regrowth as opposed to removing cattle.
“When the Forest Service tried to do the right thing and suspend these livestock grazing permits for multiple willful violations of the terms and conditions, the ranchers responded with threats of violence,” said John Persell, staff attorney with WWP.
The lawsuit further asserts livestock grazing permittees have been “stoked by the anti-government rhetoric of Cliven Bundy and other fringe extremists.”
WWP claims, “USFS has bent and broken its own laws and regulations, and continues to authorize livestock grazing without any reasonable expectation of permit compliance.”
Chain of events
The lawsuit against USFS comes as the result of a WWP member visiting the Kingston, Forshea, and Manning Creek grazing allotments in October 2019. The employee said she witnessed trespassing cattle more than a week after the permitted off-dates, permit and annual operating instructions (AOI) violations, and environmental damage. The damage included over-utilization of forage, unmaintained fences, and degraded natural water features.
WWP said several ranchers were issued notices of non-compliance in 2013 for forage over-utilization, further livestock use after the permitted off date, and pasture rotation schedules not followed.
According to the complaint document, after USFS cited “safety concerns and verbal threats” from the parties following the drafting of 50 percent suspension letters, USFS did not send finalized suspension letters. The document further reads that in 2014, the ranching parties requested the allotments be managed through deferred-rotation instead of rest-rotation, and USFS accepted the requests even though the process was not authorized under the National Environmental Policy Act (NEPA). The suit also said the parties did not follow the rotation schedule outlined in the AOIs, and range improvements were not maintained to standard.
The lawsuit claims USFS did not issue letters of non-compliance after these violations, “[d]ue to safety concerns and tensions being high.” Further non-compliance from the permittees followed through 2015 and 2016, and the grazing permits ended Dec. 31, 2016. USFS did not approve new permits but issued temporary grazing permits in June 2017. Additional temporary permits were given to another ranching party as well as the prior parties in May 2018, read the lawsuit.
Non-compliance continued, according to WWP, including livestock without ear tags, livestock on allotments without a permit, incorrect pasture utilization and over-utilization of forage.
Despite continued non-compliance on the three grazing allotments, USFS invited the permittees to a meeting in April 2019 to discuss 2019 permits and AOIs, which the permittees did not attend, according to the complaint.
During a phone call in April, one of the permittees told the forest supervisor that “he would put his cattle out on the Kingston and Manning Creek allotments regardless of permit status” and that he had a gun and a sheriff to back him up, according to USFS records. It was noted that certain permittees participated in the infamous Cliven Bundy conflict in 2014, and a local county commissioner as well as a representative of the state Public Lands Policy Coordinating Office expressed concern that a similar event may follow if grazing was not authorized.
The forest supervisor met with permittees in May 2019, where USFS records show permittees became angry and issued additional threats. Later that month, parties sent back their signed temporary permits with significant handwritten alterations.
In June 2019, permittees told USFS they would be releasing cattle out on allotments regardless of permit status, and would not be putting USFS ear tags on the cows, according to the complaint document.
USFS later sent out temporary grazing permits for the 2019 season to the permittees, the lawsuit claims.
USFS alleged violations
WWP challenges USFS’ decision to issue temporary grazing permits and AOIs for the Kingston, Forshea, and Manning Creek grazing allotments on Monroe Mountain. The lawsuit claims there was no lawful justification for issuing permits and AOIs on the allotments, and claims USFS is in violation of the Federal Land Policy and Management Act (FLPMA) and the Administrative Procedure Act (APA).
In addition, the lawsuit challenges USFS’ decision to issue permits that allow different management strategies and livestock numbers for the Kingston and Forshea allotments than USFS analyzed under the NEPA review in 2007. WWP also said USFS failed to incorporate protections for the greater sage-grouse into the permits at Kingston and Forshea.
WWP similarly claims such behaviors violate FLPMA and APA.
The lawsuit challenges the further issuance of permits, stating the decision “completely failed to adhere to agency regulations specifying the manner in which appeals may be resolved and… lacked any rational connection… and in fact, appears to be fear-based capitulation to the intimidation tactics of the permittees.” Thus, WWP claims USFS is also in violation of the Organic Act of 1897, the Forest Transfer Act of 1905, as well as FLPMA and APA.
WWP seeks injunctive relief directing USFS to rescind the permits and AOIs for the involved ranching parties; require USFS to conduct NEPA, FLPMA, and National Forest Management Act of 1976 analyses prior to issuing permits or AOIs for the allotments moving forward; prohibit USFS from issuing temporary permits where no genuine, identified drought or other emergency exists; and rescind the 2013 permit revoking appeal and properly dismiss appeals according to regulations. — Anna Miller WLJ editor