ONDA wins grazing injunction
Ruling boots the cows off two forest allotments
A U.S. District Court judge is barring cows from two grazing allotments in the Malheur National Forest (MNF) this summer.
The May 16 injunction ordered by Judge Ancer L. Haggerty is intended to protect fish habitat, but observers say it comes as part of a larger movement to challenge grazing rights on public lands across the West.
"This was a real blow," said Loren Stout, a Dayville rancher who won't be able to turn his cows onto the forest as he had planned on July 15. "They are putting an industry in jeopardy."
Haggerty granted a temporary restraining order and injunction on two MNF allotments, one in the Murderers Creek area and the other on the Lower Middle Fork John Day River. The injunction affects six permittees who had been given permission to run cattle between June and October.
The injunction was sought by the Oregon Natural Desert Association (ONDA), the Center for Biological Diversity and the Western Watersheds Project, which contend that the grazing practices threaten habitat for steelhead and bull trout, two species of fish that are federally listed for protection. They also contend that the U.S. Forest Service isn't adequately monitoring the conditions of the allotments and any damages caused by grazing.
Their lawsuit names as defendants the U.S. Forest Service, the National Marine Fisheries Service and the U.S. Fish & Wildlife Service and several officials of those agencies.
The local ranchers were not named as defendants, although a group of them have status as intervenors in the case. Stout says they are caught in the middle.
"We're the puppets in this deal," said Stout. "They have used us as an easy target."
David Becker, an ONDA attorney, said the organization's litigation over grazing on the MNF dates back at least five years. The organization has challenged both the grazing practices and the Endangered Species Act assessments used by the Forest Service to support the grazing permits for the period from 2007-2011.
Becker said ONDA is concerned about 21 or 22 allotments overall. However, ONDA singled out the Murderers Creek and Lower Middle Fork allotments in this action because the organization felt there was more damage in those areas, he said.
He said a major goal is to force the Forest Service to "do a better job of managing the grazing so as to limit the harmful effects on the fish," Becker said.
ONDA charges that the Forest Service is not adequately tracking factors such as stubble height, streambank degradation, water temperature fluctuations, turbidity in streams and other factors that affect fish habitat.
Jennifer Harris, MNF public information officer, declined to comment on the specifics of the ongoing litigation. However, she said Forest officials "were disappointed" that the judge saw fit to order the injunction.
She said MNF staff are in contact with the permittees to discuss their needs and see if there are other ways to accommodate them.
"Grazing is an important program on the Forest, and it's important in the local economy," she said. "We have very good permittees."
In its lawsuit, ONDA presented photographs to the court to support claims of damage on the two allotments. Becker said the organization has been photographing streams and riparian areas in the allotments since 2004.
Ron Burnette, a Ritter-area rancher and permittee on the Lower Middle Fork unit, challenged some of that evidence in a sworn declaration presented at the hearing. Some of the photos taken on his permit area were of cattle crossings, he said.
"These are areas where the cattle are required to cross the creek," he said. "The crossings are limited but are necessary to allow for proper distribution of the cattle through the allotments."
Burnette and his wife Jolene run about 290 pairs of cows and calves on two units of the Lower Middle Fork allotment each summer. He said the Forest Service found that they met permit standards in the units last year.
Burnette and Stout both contend that factors other than cattle - such as elk and deer trails, flooding, and forest fires - affect the conditions of the habitat.
Stout said the Murderers Creek area is impacted by overpopulation of both elk and wild horses - a situation he blames on poor management by the state and federal agencies.
The ranchers also noted that last year's drought produced unusual conditions.
However, Becker said drought is no excuse for ignoring impacts of grazing.
"If we have a drought year, the conditions are going to be awfully tough on the fish, anyway," he said. ONDA believes the Forest Service should plan ahead to mitigate the ill effects in periods of drought, he said.
Stout also was critical of the Forest Service, which he said could have averted the grazing crisis. He said the agency should have been doing more active monitoring so they would have better evidence at trial.
Fearing this kind of situation, Stout and other ranchers hired their own consultants to collect data on their allotments in recent years.
"I thought we covered ourselves by hiring a range consultant," he said. "Then the court wouldn't accept her data - but it accepted ONDA's."
Stout said that while last week's ruling will affect just a handful ranchers this summer, continuing legal challenges could force some cattlemen out of business.
"We just sold off our first-calvers today," Stout said. Those are young cows that would usually be moved onto the forest allotment in July. While he is selling off some of his stock, he hopes to be able to move some others onto leased private land.
However, ranchers say that private grazing lands are in short supply.
"There's just nothing out there," Stout said.
Burnette told the court that an injunction could force him to sell his cattle.
"If we have to sell, we will lose our breeding stock," he testified. "We will not be able to generate sufficient income to pay our fixed expenses or to buy new cattle if the injunction is lifted. An injunction will effectively cause us to lose our business."
Stout said the public needs to know about what's going on in this case, as it could have far-reaching consequences. He said the way the Endangered Species Act is interpreted, it won't be just cattle ranchers taking the blame for potentially negative impacts on fish.
"People camping on the bank, fishing, or hunters - That's a 'take,'" he said.
Bill Moore, president of the Oregon Cattlemen's Association, said he was discouraged by the ruling and especially by the role the monitoring seemed to play in it.
He said inadequate monitoring gives groups like ONDA an opening to challenge grazing on public lands, without needing to prove actual damage.
"On the Malheur, ONDA and other groups are being relentless because they know that the data is incomplete," he said.
The OCA has offered to help find ways to bring about some change on the forest level, he said.
Meanwhile, he said the ruling suggests more rough times ahead for area ranchers.
"It's a bad situation," he said. "ONDA is not concerned about the schools in Grant County, the businesses in Grant County, they're concerned about their agenda."