Courtesy U.S. Fish and Wildlife Service
Matuesz Perkowski/Capital Press File
PORTLAND — A long-standing dispute over cattle impacts on bull trout has been roused from dormancy, with environmentalists seeking an order prohibiting grazing along two Eastern Oregon rivers.
The Oregon Natural Desert Association and the Center for Biological Diversity initially filed a complaint challenging federal grazing authorizations along the Malheur and North Fork Malheur rivers in 2003.
That lawsuit was combined with two later grazing cases that were eventually closed, but the environmental groups were unable to settle the original litigation with the U.S. Forest Service and the affected ranchers.
During oral arguments on May 5, the plaintiffs asked U.S. Magistrate Judge Paul Papak to declare that grazing authorizations in seven allotments of the Malheur National Forest violated the National Forest Management Act and the National Wild and Scenic Rivers Act.
“The bull trout is in serious trouble in these two watersheds,” said Mac Lacy, attorney for ONDA. “We are at an important point here. Immediate action is needed to stave off that damage.”
Trampling by cattle erodes soil along streams, harming bull trout egg nests, as well as widening river channels and reducing vegetation, which raises water temperatures to the detriment of fish, the plaintiffs claim.
Bull trout were listed as a threatened species nearly two decades ago, resulting in protections for their in-stream habitats across the Northwest.
“On-the-ground conditions are relevant to the Forest Service’s decision-making, or they should be,” Lacy said.
However, only about 50 bull trout inhabit each of the two rivers in question, which shows the Forest Service’s approach isn’t working, he said.
“The populations themselves are dropping precipitously,” Lacy said.
The bull trout’s fortunes have continued to decline even though the agency reports that conditions are improving, he said.
The Forest Service bases this conclusion on proxy measurements, such as stubble height and stream bank alteration, Lacy said.
Meanwhile, the areas continue to fall short of the actual “riparian management objectives” that are integral for fish recovery, he said.
“The proxy doesn’t mirror reality,” Lacy said.
For example, cattle generally haven’t altered stream banks along a portion of the North Fork Malheur River beyond allowable annual standards, Lacy said.
Nonetheless, stream banks in the area went from 95 percent stable in 2005 to 51 percent stable in 2010, he said.
“These failures, to the extent they’re showing up in the record, are getting worse over time,” Lacy said.
Steve Odell, attorney for the Forest Service, said the plaintiffs have zeroed in on problem “hot spots” and then assuming that grazing is to blame.
“Cherry picking is easy to do in these situations,” he said.
The plaintiffs chose problem sites to prove a point, but those “hot spots” don’t reflect overall conditions, he said.
Attributing the challenges facing bull trout entirely to grazing also isn’t tenable, Odell said.
A forest fire, debris from a storm and low stream flows were likely culprits in one area, he said.
“These are natural events,” Odell said.
The Forest Service’s scientists have determined that monitoring stubble height in pastures and the alteration of stream banks by cattle hoofs are permissible indicators of progress, he said.
These measurements indicate that grazing plans are in compliance with the agency’s strategy for inland fish recovery, he said.
“The record does not show ongoing negative effects from grazing,” Odell said.
The environmental groups are impermissibly attacking the agency’s entire system for regulating grazing, rather than distinct actions, he said.
It’s up to the executive branch or Congress to overhaul the grazing program, but the role of federal courts is limited to specific agency decisions, according to the Forest Service.
“Judges have to take a very narrow view because we have a separation of powers issue here,” Odell said.
Grazing isn’t allowed to deter the areas from achieving “riparian management objectives,” or RMOs, at the watershed scale, he said.
It’s not practical, or required, to show that RMOs are being met every year in every pasture or reach of a stream, according to the agency.
“The Forest Service would have to have an army of 300 people to be able to do that,” Odell said.