Posted: Thursday, January 06, 2011 10:00 AM
Injunction affects parts of Malheur National Forest until a new opinion issued
By SCOTTA CALLISTER
East Oregonian Publishing Group
PORTLAND -- A federal judge has ruled that cattle won't be allowed to graze on seven Malheur National Forest allotments until a new biological opinion is issued.
U.S. District Judge Ancer Haggerty issued the injunction Dec. 30, raising concerns about whether ranchers will be able to turn out their cows in the spring.
The ruling was hailed by the Oregon Natural Desert Association and two other environmental groups -- the Center for Biological Diversity and Western Watersheds Project. In litigation dating back seven years, the groups sued the Forest Service and National Marine Fisheries Service, contending that cattle grazing allowed on the national forest harms fish habitat and results in the "take," or death, of endangered fish.
Attorney Dave Becker called it "an important victory" for his clients and for steelhead habitat protection. He said the ruling also was a wakeup call for the agencies, clearly emphasizing the accountability of the Forest Service and NMFS "to do the right thing."
"It puts the onus on the agencies to get their act together," he said.
"The court makes clear that the agencies have to make steelhead protection their highest priority, and that they cannot let riparian grazing continue until the agencies create a plan that complies with the law," said Brent Fenty, executive director of ONDA.
Elizabeth Howard, attorney for the ranchers who hold permits to graze on the allotments, said she was "very disappointed" with the order.
"It overlooked strong and factual arguments from both the federal agencies and permittees," she said. "Furthermore, it puts local livestock producers and the community as a whole at serious risk."
Haggerty's injunction will stand until NFMS has issued a new and legally adequate "bi-op" -- a report that sets standards for environmental impacts -- for the national forest's 2011-15 grazing plan. He said he expects that can be accomplished before the new grazing season.
The allotments covered by the injunction are: Lower Middle Fork, Murderers Creek, Hamilton/King, Fox Creek, Mt. Vernon/John Day/Beech, Slide Creek and Upper Middle Fork.
On other allotments, ranchers will still be able to turn out their cattle under the rules of the old biological opinion, as well as the additional monitoring, fencing and active herd management that was required by the court during the last two grazing seasons.
Haggerty's order indicates that the defendants' own legal strategy left him with no choice but to order the injunction. Last June, the judge concluded that the Forest Service had violated the Endangered Species Act and National Forest Management Act, and he ordered the parties to confer on remedies for violations.
He wrote that while ONDA proposed the injunction and other specific strategies, the federal defendants and intervening ranchers targeted points of law.
They contended that ONDA mischaracterized the endangered species law and used the wrong standards for seeking an injunction, and they challenged the court's jurisdiction, according to the order.
"The parties therefore have presented the court with a choice between the full injunctive relief proposed by ONDA and no alternative remedy," he wrote.
Ranchers intervening in the lawsuit have argued that bank alteration standards are unrealistic and that there is no proven impact on fish.
The federal defendants asserted that ONDA must show "that even a single cow-calf pair grazing for one day on a single pasture is likely to cause it irreparable injury," Haggerty noted.
However, he said that was not "the test." His order said "the record amply supports a finding of irreparable harm."
"In 2010, this court held that based on the bank alteration standards ... an unlawful take had occurred in 2007 and 2008 on at least three of the 13 allotments," he wrote.
The order also was critical of the Forest Service, saying that the agency complied with monitoring and enforcement standards only after the court issued a preliminary injunction two years ago.
"The court reasonably assumes that absent further injunctive relief, important mitigation measures intended to protect steelhead will not be performed, and irreparable harm will result," he wrote.
Ranchers also raised an economic argument, contending that an injunction would harm not only their livelihoods but the economic health of Grant County.
Haggerty said he weighed the economic interests of the permittees and the communities but found that the proposed injunction wouldn't deprive them of all grazing, and said the economic arguments fell short of the need to protect a threatened species.
Noting that the injunction will stand only until the Forest Service and NMFS complete the work required for a new biological opinion, he said, "If federal defendants uphold their representations to the court about completing consultation as planned, then the new bi-op should be issued before livestock turn out in 2011."
Howard said the permittees are hopeful that the agencies will take action in time for the ranchers to turn out on time.
"Now, more than ever, the viability of the Grant County ranching community, and the broader community as a whole, is in the Forest Service and NMFS' hands," Howard said.
Becker, the ONDA attorney, noted that Haggerty's ruling calls for more public input and transparency in the process. He hopes that the process will result in greater predictability for all the parties.
However, more restrictions may be inevitable, given what he described as an "overarching obligation" to endangered species.
"It's devilishly hard to manage livestock on these streams," Becker said.
Jennifer Harris, a Malheur National Forest staff officer, said this week that the agency doesn't comment on ongoing litigation. However, she said the forest staff continues to work on the grazing program.
"We're looking closely at the details of the order and trying to come up with the best strategy we can," she said.
Meanwhile, Ken Holliday, a John Day rancher, said the permittees are "boxed in." He estimates the chances of getting a new biological opinion by June, when most ranchers begin turning out their cows, at "damned near zero."