Court's decision on grazing leaves questions

U.S. Forest Service must review plan to determine changes

By MATEUSZ PERKOWSKI
Capital Press

A grazing plan for nearly 50,000 acres of national forest land in Montana has been rejected by a federal appellate court, which sent the plan back to the U.S. Forest Service for further study.

It's currently unclear how the decision may end up affecting ranchers who rely on allotments in the Beaverhead-Deerlodge National Forest.

However, the ruling may change how the agency monitors environmental health on other national forest grazing allotments.

"We're still trying to have the Forest Service interpret the opinion for the allottees and see what that really means," said John Bloomquist, an attorney who represented several rancher groups in the case.

Leona Rodreick, a spokesperson for the Forest Service, said the agency doesn't plan to make any immediate changes to grazing permits in the area, at least until officials finish reviewing the appellate court's decision.

In a 2-1 decision, a panel of judges from the 9th U.S. Circuit Court of Appeals found the U.S. Forest Service violated environmental and forest management laws in developing the plan.

The ruling requires the agency to complete a new environmental assessment of the grazing plan, or supplement a previous review with new information, but it does not specify which plan should guide grazing until then.

The Forest Service initially approved the grazing plan in 2003, but several environmental groups challenged it in federal district court. Their arguments were dismissed by a federal judge in 2006, but that ruling has now been overturned on appeal.

During oral arguments in 2008, an attorney for plaintiff Native Ecosystems Council asked the appellate court to order an environmental impact statement of the plan, which would have required an even higher level of scrutiny.

The lawsuit was intended to call into question the Forest Service's "proxy-on-proxy" method of studying environmental health, said the attorney, Tom Woodbury.

The agency often monitors a "management indicator species" -- in this case, the sage grouse -- as a proxy for overall environmental health.

Because the sage grouse wasn't found in the 50,000-acre area, its habitat was used as a proxy for the species, hence the "proxy-on-proxy" method, according to court documents.

Woodbury argued that the "proxy-on-proxy" method was inaccurate because the "management indicator species" was no longer found in the area, indicating the agency's practices had degraded environmental health.

"We know there were sage grouse there before they started eradicating habitat and there aren't today," he said.

Robert Oakley, an attorney representing the Forest Service during oral arguments, defended the "proxy-on-proxy" approach.

The sage grouse was chosen as "management indicator species" for more than 3 million acres within the entire national forest, he said.

The agency can't expect the sage grouse to actually be present in every corner of the forest, which is why the "proxy-on-proxy" method is useful for certain areas, Oakley said.

Grazing guidelines in the plan were actually intended to improve grouse habitat, he said.

"There is no established connection between grazing and harm to sage grouse," Oakley said. "Grazing is what is being regulated here."

The appellate court ultimately agreed with the environmental groups' characterization of the "proxy-on-proxy" method, ruling that the technique basically allows the Forest Service to avoid monitoring the sage grouse.

In a dissenting opinion, Chief Judge Alex Kozinski said the other two appellate judges -- Betty Fletcher and Johnnie Rawlinson -- overstepped their authority.

The decision will "make it much harder for the Service to plan on a forest-wide scale, rely on forest-wide indicator species and administer general forest plans," wrote Kozinski.