'Forest Service may not make empty promises,' judge says

By MATEUSZ PERKOWSKI

Capital Press

The U.S. Forest Service violated environmental laws by permitting cattle to graze in Oregon's Malheur National Forest, according to a federal judge.

On June 4, U.S. District Judge Ancer Haggerty ruled that the agency's grazing program allowed cattle to degrade threatened steelhead habitat, breaching the Endangered Species Act and the National Forest Management Act.

Haggerty said the Forest Service's grazing plans could have prevented harm to steelhead habitat, but the agency did not properly carry them out.

"While the grazing program and enforcement process are reasonable, the fact that their implementation relies upon Forest Service and permittee action is more problematic," he said.

The judge rejected some arguments from ranchers, who claimed the agency arbitrarily adopted an inaccurate method for measuring the health of steelhead habitat and ignored information that indicated grazing doesn't harm fish.

Ranchers claimed that any negative effect from grazing would be minimal compared to other factors, such as hydroelectric dams. Haggerty said that argument was irrelevant from the legal perspective of the Forest Service.

"The mere fact that conditions other than freshwater habitat also affect steelhead viability does not absolve federal defendants from ensuring that grazing activities do not further erode steelhead populations," he said.

However, the ruling did include some positive news for ranchers.

For example, Haggerty ruled that their views should not have been excluded from the formal process used to determine whether grazing jeopardizes steelhead.

The judge also ruled that ranchers' ability to comply with the overall grazing plan isn't undermined by previous violations of conservation measures.

"Past failures, in and of themselves, do not render the management strategy unreasonable," Haggerty said.

The current litigation over grazing in the Malheur National Forest began as two lawsuits that were consolidated into one.

In 2007, the Oregon Natural Desert Association and other environmental groups challenged a federal biological opinion, or BiOp, that found that grazing did not jeopardize the existence of steelhead.

The following year, ranchers who rely on the Malheur National Forest for grazing also sued the federal government, alleging that grazing restrictions weren't based on the best available science, as required by law.

Haggerty found that the National Marine Fisheries Service -- an agency that reviews potential impacts from federal projects on endangered or threatened fish -- did not violate the law with its biological opinion of "no jeopardy."

The NMFS was simply relying on information provided by the Forest Service, which claimed to be implementing conservation measures that weren't actually taking place, Haggerty said.

"The Forest Service may not make empty promises, secure a no-jeopardy BiOp, and then go forward with the proposed action -- absent the monitoring and enforcement promised -- simply because a no-jeopardy BiOp was issued," he said. "The buck must stop somewhere."

As part of the judge's order, the "parties are ordered to confer regarding appropriate remedies for the violations" of the environmental laws in question.

The day before issuing his ruling, Haggerty approved a joint plan among ranchers, environmentalists and the federal government that will allow grazing to go forward this summer.

The plan will allow grazing on certain allotments that were previously off-limits to cattle and change grazing levels on other allotments while reducing authorized grazing by 10 percent compared to 2009.