Monday, June 29, 2009

High court losses stun environmentalists

Environmentalists are 0-for-5 at the high court this term.

Marcia Coyle

June 29, 2009

Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars.

The defeats left the environmental community, and even its traditional antagonist in these cases — the business community — wondering where the Court is heading in this increasingly important area of the law.

Is the Roberts Court pro-business, anti-environment, pro-government — or something else? Their answers are as varied as the issues raised in the five cases that the justices decided.

What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout.

"This has never, I believe, happened before, and this includes some big wins," said Richard Lazarus, co-director of the Georgetown University Law Center Supreme Court Institute, who argued and lost one of the five decisions this term.

For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.

Based on the five decisions, the trend this term is "business always wins, even when the government's interest is to the contrary," said John Hanson, a partner at Washington's Beveridge & Diamond who represents businesses in environmental litigation.

Business' remarkable record may be due in part, Lazarus suggested, to the entry this term of the private sector Supreme Court bar on behalf of business interests in environmental cases, including such well-known, repeat players as former Solicitor General Theodore Olson of Gibson, Dunn & Crutcher and Maureen Mahoney of Latham & Watkins. "In each of these cases, business turned not to the usual retinue of environmental legal experts, but to expert Supreme Court advocates," said Lazarus, who has studied the influence and effectiveness of those appellate practitioners.

Statisticians would say five cases are too small a sample on which to predict an enduring pro-business trend, said Virginia's Cannon, but he added, "It certainly sends a signal."

Although none of the five decisions is a landmark ruling, all raised bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation's major environmental laws.

The justices ruled:

• 6-3 for electric utilities that argued that the Clean Water Act authorizes the use of cost-benefit analysis in regulating water cooling intake structures (Entergy Corp. v. Riverkeeper).

• 6-3 for a gold mine operator that argued that the Army Corps of Engineers had the authority to issue permits for dumping dredge or fill dirt into an Alaskan lake without satisfying more stringent pollution limits for permits issued by the Environmental Protection Agency (Coeur Alaska v. Southeast Alaska Conservation).

• 8-1 that the federal Superfund law does not mandate joint and several liability in every cost-recovery case but permits apportionment, and narrowing so-called "arranger liability" of companies that sold the product that ultimately polluted the site (Burlington Northern Railway/Shell Oil Co. v. U.S.).

• 6-3 to lift an injunction requiring the Navy to conduct an environmental impact statement and limiting its use of sonar when marine mammal activity is present (Winter v. NRDC).

• 5-4 that environmental organizations lacked standing to challenge U.S. Forest Service regulations exempting the service from notice, comment and appeal processes for fire-rehabilitation and salvage-timber sales (Summers v. Earth Island Institute).

"None of the cases individually is a blockbuster, but collectively the Court is chipping away at the very foundations of environmental law in this country," said Douglas Kendall, president of the Constitutional Accountability Center. John Echeverria of Vermont Law School said the Court's concern that industry is overburdened by environmental regulations is driving its decisions.

"The analysis in Coeur Alaska is expressly based on concerns about burdens on industry and the Court's reluctance to imagine Congress would have imposed those burdens," he said. "I think that's the overriding theme of the Court this term in these cases. The Court is almost on a mission. While on the one hand, it has a great deal of concern about burdens on industry, it has expressed very little concern about impacts on the environment."

Beveridge & Diamond's Hanson, as well as other industry lawyers and some environmental scholars, said the decisions, while undoubtedly pro-business, also could be seen as pro-government. With the exception of the Superfund case, in which the executive branch opposed the industry's liability argument, they noted that the Court upheld the government's view in these cases.

But pro-government is also pro-business because the government's positions in the cases were formed by the Bush administration, countered Amy Sinden of Temple University James E. Beasley School of Law. "You have Bush administration positions trying to protect corporate interests by weakening environmental protections put in place by Congress," she said. "The Court's conservative majority is becoming known for supporting an expansive view of executive power and you see it playing out here.

"The good news for the Obama administration is that, in most of these cases, the Court is essentially saying the executive branch had discretion to use this narrow reading of Congress' laws," she said. "That leaves an opening for the Obama administration to read those statutes differently."


Russell Frye of Washington's FryeLaw, who filed an industry-supporting amicus brief in the Entergy case, noted that four of the five cases came from the U.S. Court of Appeals for the 9th Circuit, which is "more solicitous" of environmental groups' views. "I think that's inconsistent with the majority of the Supreme Court these days," Frye said. "I would say the Supreme Court record isn't so much a reflection of pro-industry bias as it is an environmental-neutral approach to the legal issues presented."

While disagreeing on the Court's motivation in the five cases this term, the business and environmentalists generally agree on which decisions will have the most impact.

Hanson, Frye and other industry lawyers point to the Superfund ruling that limited so-called "arranger" liability and opened up the use of apportionment of cleanup costs among responsible parties in lieu of joint and several liability.

The decision has already "triggered an explosion" of apportionment arguments, said Hanson, who handles Superfund cases across the country. "This is another opportunity, particularly in difficult economic times, to try to cut your costs."

Georgetown's Lazarus and Vermont's Echeverria said the decision undermined a "cardinal part" of the Superfund law — routine joint and several liability. "The message of that decision is liability can be and should be routinely contested," said Echeverria. "The only saving grace is the Superfund program is very mature and has accomplished a lot of its work in the last couple of decades."

Both sides also pointed to the Summers decision, in which the court narrowed the standing of environmental groups to challenge the failure of agencies to follow procedures or rules.

"That may be a substantial reduction in the scope of standing from what many of us thought it was," said industry counsel Frye. "There will be some precedent interpreting it soon. I know I'm using it now in one or two of my cases."

Environmentalists called Summers "bad" on standing. "It illustrates a profound disagreement between the ideological wings of the court about access to courts," said Kendall, adding that Chief Justice John Roberts Jr. "views cutting back on standing as a central pillar of his idea of judicial restraint."

Going forward, the Supreme Court is not a place where environmentalists want to be, said Echeverria. But if they do go there, a number of their lawyers said, it is time to follow the successful playbook of industry this term and get their own Supreme Court practitioners. Latham's Mahoney argued two of industry's cases; Gibson Dunn's Olson and Kathleen Sullivan of Quinn Emanuel Urquhart Oliver & Hedges each argued one.

Carla Herron, associate general counsel for Shell Oil Co., which hired Sullivan for its Superfund case, said, "given the significance of this case, we wanted to retain someone who is an accomplished U.S. Supreme Court advocate and an experienced 9th Circuit practitioner."

The lesson, said one environmentalist who asked for anonymity, is: "We can't be letting the line litigators litigate cases before the Supreme Court. This has become a practice where you need repeat players before the Court."

Marcia Coyle can be contacted at

Barker: Let's turn ranchers into rangers

The fight this year in the Idaho Legislature over bighorn sheep demonstrated to me that Idaho and the West need a new vision for the future of public lands ranching in the state.

This session returned ranchers and lawmakers to "ghost dancing," a term I first heard from Luther Probst of the Sonoran Institute in the early 1990s. It's a play on the ghost dancing society among Indians in the late 1800s, which said that ghost dancing would make Indians invincible and drive the white men away.

Modern rancher ghost dancers think they can pass state laws and drive the environmentalists away. No need to change is necessary.

I have now covered the issue for a generation. I knew the old bulls who had the power to ignore the rising concerns over water quality and fish and wildlife habitat. I watched their sons and daughters take over amid growing uncertainty over environmental regulation and the consolidation of beef and lamb markets that reduced their economic options.

Some ranchers have adjusted successfully, working collaboratively with environmentalists and others to meet the water and wildlife concerns. Still others have found ways to add value to their products by exploiting the growing "buy local" movement or green marketing their shifting practices like selling "predator friendly wool."

The Western Watersheds Project and some other environmental groups' vision for the future of public lands ranching is that it will end. They see few redeeming characteristics and believe that, eventually, economics will solve their problem.

But ranchers have working on their side the continuing cultural ties that Americans have to cowboys. When public lands ranching opponents seek to kill the cowboy, so to speak, they find a lot of push back among people who may never have even been on a ranch.

The Idaho Conservation League's Linn Kincannon told me one of her supporters proposed a new idea to keep ranchers riding the range - with a new mission. Today, ranchers lease public lands, called allotments, across the West for a small monthly fee and graze their sheep and cows, she said.

Instead, livestock would be removed and ranchers paid to restore lost values. Experts at the Forest Service and Bureau of Land Management would help, and the rancher would retain the allotment, shes explained.

The agencies would save money since they would no longer be planning and doing the environmental analysis for livestock grazing on the allotment. That money could be paid to the ranchers instead, to free them from uncertain weather and cattle markets.

That idea is novel, but I know that most ranchers would reject it outright. I doubt many would be willing to give up their herds, though I'm sure they might be willing to dramatically reduce their grazing on public land if the incentives were good enough.

Another option: Public land managers and policymakers could devise a new model for grazing allotments that would pay ranchers for essentially becoming rangers who patrol these lands and who create ecological services like land restoration and water quality improvement. I first heard this idea from Karl Hess Jr., a New Mexican who sought market solutions to environmental problems.

This approach wouldn't have to mean removing cattle or even sheep.

In some areas grazing itself can provide ecological services by controlling invasive species and reducing fuels in heavily degraded areas that carry wildfires into important sagebrush steppe habitat.

What I like about the idea Kincannon brought me is that it doesn't seek to eliminate or denigrate the ranching lifestyle, only to modify it for a new age. This is a good time for ranchers and others to begin having this discussion built on the collaborative efforts that are growing up across the West.

© 2009 Idaho Statesman

Monday, June 22, 2009

Conservation wave builds in the West

Craning his neck to see over the small airplane's instrument panel, Ron Gardiner points out the path Spanish explorers had to take around the deep crevasse that cuts through the center of northern New Mexico.

To the west of the famous Rio Grande gorge and its towering basalt cliffs is a broad plateau of sagebrush, native grass and remnants of the ancient volcanoes that helped form this rugged landscape. Herds of elk, pronghorn antelope, bighorn sheep and golden eagles call it home.

"This is one of the last undeveloped tracts in the Southwest," said Gardiner, a water policy consultant who is among those who have been spearheading the decades-old effort to protect the area.

The push to set aside nearly 370 square miles as the El Rio Grande del Norte National Conservation Area is part of a new wave of congressional proposals aimed at protecting more than 34 million acres of public land across the West.

However, as conservationists continue with their crusade, some people who make a living off the land are digging in to oppose the effort.

Critics are concerned that domestic energy production and traditions like ranching and firewood and pinon nut gathering will be limited as more tracts of public land are designated as conservation areas or wilderness.

Conservationists say they are trying to keep momentum going following the enactment last spring of a massive public lands bill that added more than 2 million acres to the nation's inventory of wilderness and other protected lands.

Other legislation has been introduced to designate areas in Alaska, Idaho, Montana, Oregon, Washington, Wyoming and Utah as wilderness and wild and scenic rivers.

"I'm aware of campaigns in just about every western state to designate new wilderness areas," said Paul Spitler, associate director of The Wilderness Society's national wilderness campaigns.

The El Rio Grande del Norte legislation — which has the backing of the Obama administration — would permit grazing, hunting and fishing and the gathering of firewood and pinon nuts. But no new roads would be allowed, and the land management agencies that oversee the area would not be able to lease or sell any parcels.

The legislation also would set aside two parcels within the conservation area as wilderness — one encompassing the 10,093-foot Ute Mountain and the other along the Rio San Antonio.

Some cattle ranchers are concerned the proposal would limit access to public land where they have grazed cattle for years. In wilderness, vehicles are not allowed.

"Taking care of improvements, developing water, having access to be able to maintain fences and other things sometimes become very difficult," said Gerald Chacon, a Rio Arriba County rancher and member of the New Mexico Cattle Growers' Association board of directors.

"What it essentially does is it's just sort of a way of squeezing you out of business," he said.

But Gardiner, sportsmen and other supporters argue that Sen. Jeff Bingaman, D-N.M., worked hard to address the concerns of ranchers and local residents.

Greg McReynolds, a public lands coordinator for the nonprofit sportsmen group Trout Unlimited, doesn't consider the bill controversial.

"We're not trying to take anything away, we're not trying to change anything," he said. "We're just trying to protect it like it is."

The area is relatively untouched because of its rugged character, Gardiner said. The gorge and the lack of water on the plateau kept Spanish explorers and later pioneers from moving across the area.

"This has always been a land to circumvent," he said.

The area is an important winter range for elk, deer and antelope. It's also part of a migratory flyway and home to several pairs of eagles. One nest along the gorge north of the Taos bridge stands several feet tall and is about 20 years old.

The argument for protecting El Rio Grande del Norte is similar to the cases being made for the Wild Rogue River in southern Oregon and millions of acres in Utah's red rock country. Conservation groups are also pursuing protection proposals for both.

Bob Gallagher, president of the New Mexico Oil and Gas Association, said some areas deserve to be protected. Still, he believes conservationists are making an effort to "grab more land and keep it out of bounds."

"If you're in a western state and you're not concerned about that, then you haven't been following what's going on," he said.

El Rio Grande del Norte is east of the San Juan Basin, one of the largest natural gas fields in the nation, and south of several exploratory wells in Colorado.

However, supporters of the proposed legislation said the threat is more about development along the gorge than drilling.

"People love the canyon and there are opportunities to build right up to the rim," Gardiner said.

Supporters also say the designation could be a tourist boon for the nearby communities of Questa, Taos and Red River. In 2007, more than 300,000 people visited the Rio Grande gorge and 33,000 paid New Mexico rafting outfitters for guided trips along the river.

"There is an intrinsic value to renewable recreation resources and this is a prime example of how a landscape provides for a community and an economy and brings something really valuable to the state," McReynolds said.

Sunday, June 21, 2009

NM ranchers worry that sick cows could cross to US

Longtime New Mexico cattle rancher Judy Keeler is keenly aware of how tough it is to raise livestock in the dusty desert near the U.S.-Mexico border.

Drought, intense heat, security and illegal immigrants who cut down ranchers fences and drink water meant for livestock are constant concerns.

But Keeler and fellow ranchers now have another worry.

The border fence, installed by the Department of Homeland Security to keep cars and people from crossing into the United States illegally, isn't so good at blocking cattle in some places. The new fence replaced previous livestock fences at some points, and some stretches are so low that cows can step right over it.

And because regulations in Mexico are less strict, Mexican herds are more likely to have bovine tuberculosis and other communicable diseases.

"It's kind of a hodgepodge of fencing," said Keeler, president of the Hidalgo County Cattle Grower's Association in Hachita in southwest New Mexico. "The inconsistencies along the border is what I'm trying to get them to correct."

Some of the Mexican border states don't have the bovine TB-free disease status enjoyed by most of the U.S. border states, said Caren Cowan, executive director of the New Mexico Cattle Growers' Association in Albuquerque, N.M.

That could lead to disease spreading to U.S. cattle, threatening the nation's beef industry, although no infections blamed on Mexican cattle have been reported recently.

"It's a more lower level threat, but it only takes one cow to bring down the economy of the whole nation," said Jeff Witte, director of agriculture biosecurity at the New Mexico Department of Agriculture.

Agriculture officials in the border states of California and Arizona say they haven't heard complaints from ranchers on the issue of border fencing and livestock protection.

In Texas, a high fence along the border is needed to control the flow of wildlife and cattle from Mexico, said Susan Durham with the South Texans' Property Rights Association in Falfurrias, Texas. Disease concerns there include Cattle Fever Tick, a parasite eradicated from the United States 65 years ago that can transmit disease to cattle.

In New Mexico, complaints focus on differing heights and styles of fence.

While most people envision a 20-foot-tall fence all along New Mexico's border, Keeler said the fence at some points - where the barrier is meant to stop vehicles, not people on foot or cows - is only 3 feet high.

Some types of fence have high, closely placed steel beams, while others are a design of thick post and rail fencing.

Then there's what's called a Normandy barrier, where X-shaped steel beams have a middle rail to link the structures to stop vehicle traffic.

The type of fence for a given area was chosen based on topography, needs and cost, said Doug Mosier, spokesman for the Border Patrol's El Paso, Texas, sector, which includes 128 miles of fence in New Mexico and portions of two West Texas counties under its jurisdiction.

"Farmers and ranchers are happy to see the infrastructure in place," Mosier said. "This is the first major step that the U.S. government has taken to assess needs along the U.S. border, and there will be more to come."

Mosier said there was no fencing in some areas when they started the project last year, and some areas and fences that did exist were showing wear.

Barbed wire fences were replaced with better fences when the new barrier was installed, said Terry Kranz, assistant patrol agent in charge at the Border Patrol's Lordsburg station.

Witte said agencies and ranchers need to communicate to prevent disease.

First detector training courses, which bring together ranchers and law enforcement agencies, are important for ranchers dealing with livestock diseases, he said. The courses teach officers to look for signs of cattle illness, such as coughing and excessive mucus, and immediately contact area veterinarians.

"It was a way to get a number of eyes and ears out across the state and recognizing when there might be a disease issue," Witte said.

Ranchers, he said, "have a tremendous burden on their shoulders because they are in the region. They are on the forefront of our agricultural security."

U.S. Sen. Jeff Bingaman, D-N.M., has formed a Border Security Task Force to identify border issues, and has held meetings about the border fence with ranchers and land agencies for years. At a recent meeting, ranchers decided team up with the New Mexico Department of Agriculture to present their priorities to government agencies.

Joe Johnson, whose New Mexico ranch - near Columbus in Luna County - shares its southern border with Mexico, said he was consulted on his fence needs before a Normandy barrier was installed on portions of his ranch.

The barrier is "still under the test" to see if will prevent Mexican cattle from crossing, he said.

"In most ways we got what we asked for," Johnson said. "Now we just have to wait and see how well it will be effective."

Thursday, June 18, 2009

America's Wildlife Heritage Act introduced in House of Representatives

Bill seeks to ensure healthy wildlife populations on Forest Service, BLM lands

WASHINGTON - Representatives Ron Kind (D-Wisc.) and Walter Jones (R-NC) introduced legislation today aimed at sustaining healthy populations of fish, wildlife and plants on federal public lands - setting off a round of applause from sportsmen's organizations, conservation groups and outdoor enthusiasts across the country.

"The America's Wildlife Heritage Act is a commonsense bill that will bring the management of our federal public lands into the 21st century," said Michael Francis, the national forest program director at The Wilderness Society. "For too long, our national forests and public lands have been managed without adequately considering the health of the fish, wildlife and plants found on those lands or the people whose livelihoods and traditions depend on them."

The America's Wildlife Heritage Act, supported by the Your Lands, Your Wildlife campaign, provides the U.S. Forest Service and the Bureau of Land Management (BLM), with clear objectives and science-based tools to sustain and monitor healthy populations of fish and wildlife and their habitat on national forests, grasslands and BLM lands.

"It's encouraging to see Congressmen Kind and Jones take a balanced approach to sustaining wildlife on our public lands," said Dr. Bruce Stein, associate director of Wildlife Conservation and Global Warming at the National Wildlife Federation. "Their proposal is a good reminder that these lands can be used for multiple purposes without jeopardizing fish and wildlife habitat."

America's Wildlife Heritage Act will give the Forest Service and BLM new directives to protect the fish and wildlife found on these lands, which are threatened by increasing pressure for resource development, energy production and global warming. The act also enhances coordination between federal and state agencies to achieve their objectives, effectively manage natural resources, and account for fish and wildlife populations that cross agency boundaries.

"As stewards of the people's lands, one of the most important responsibilities of the Forest Service and the Bureau of Land Management is to ensure that America's fish and wildlife continue to thrive," said Peter Nelson, Defenders of Wildlife's federal lands program director. "America's Wildlife Heritage Act gives land managers the tools they need to accomplish this fundamental stewardship mission."

Forest Service and BLM lands hold some of the last remaining intact wildlife corridors for big game species, provide habitat for countless other species, both imperiled and common, and protect some 3,400 public water supplies. But they are also under increasing pressure from rapid, poorly planned development and the dramatic environmental changes associated with global warming.

"It's time to restore science and public trust to the management of our Forest Service and BLM lands," said Athan Manuel, the Sierra Club's director of lands protection. "Currently, federal law mandates that the land be managed for multiple uses. It is time that we recognized that we can only achieve this if the land is healthy and managed to produce sustainable populations of fish, wildlife and plants."

"As federal land managers are faced with the unprecedented challenge of rapidly changing habitats brought on by global warming, America's Wildlife Heritage Act will provide them with vital information on the health and distribution of fish and wildlife populations treasured by all Americans," said Marty Hayden, vice president for policy and legislation at Earthjustice.

America's Wildlife Heritage Act

Bill Summary of the America's Wildlife Heritage Act

Forest Service names new chief

Regional Forester Tom Tidwell was named chief of the U.S. Forest Service on Wednesday, making him the third consecutive agency leader to come from the Missoula regional headquarters.

A 32-year veteran of the Forest Service, Tidwell earned local praise for his ability to get people from opposing sides to work together.

“Of all the folks I've worked with in my career, he's one of those rare individuals who has in his bones the understanding of how important it is to collaborate with affected publics,” said Dale Harris, director of the Great Burn Study Group and co-chairman of the Montana Forest Restoration Committee. “It might be the nation's gain, but I think it's our loss. He made a mark in the short time he was here.”

Tidwell replaces Gail Kimbell, who was the Northern Region supervisor in Missoula before taking over the Forest Service in 2007. She in turn replaced Dale Bosworth, who held the top job for six years. Bosworth was regional supervisor from 1997 to 2001.

The Forest Service's Northern Region commands 25 million acres in Montana, Idaho and North Dakota. That includes 12 national forests and four national grasslands.

Before coming to Missoula, Tidwell worked in eight other national forests in three regions. His positions included district ranger, forest supervisor and legislative affairs specialist in Washington, D.C. He was forest supervisor in the Wasatch-Cache National Forest during the 2002 Winter Olympics in Utah. And he has 19 years of firefighting experience, from ground crew to agency administrator.

“You have to have your act together to have success as a regional forester,” said Bosworth, who returned to Missoula after retirement. “This is the last of the wildlands in the lower 48 states. It's an excellent place to get a wide variety of experiences.”

In particular, Bosworth said it's a training ground for bringing together the independent and conflicting interests of the Northern Rockies. This area has led the nation in getting those groups to work together.

“I think the public was growing weary of the fighting, and Tom's been there to support that collaboration and help lead it,” Bosworth said. This administration is interested in people who can collaborate, and that makes Tom a natural.”

One of those opponents has been Mike Garrity of the Alliance for the Wild Rockies.

“He's always been professional and polite to deal with, but in end we've ended up suing him regularly - at least 20 times since he's been regional forester,” Garrity said of Tidwell. “Still, he's had the most open office, and he doesn't take disagreements personally. I've appreciated that.”

Garrity said filling the Forest Service chief job before naming someone as undersecretary of agriculture indicated the Obama administration is not moving far from the Bush administration's policies for forest management. And those policies emphasize timber cutting over wildlife habitat recovery and restoration, Garrity said.

The chief of the Forest Service reports to the agriculture undersecretary. In the Bush administration, Mark Rey held that job. Mississippian Homer Lee Wilkes was nominated for the post, but withdrew June 10.

Montana Wood Products Association board President Chuck Roady also found it curious that an undersecretary wasn't in place before the Forest Service chief was named. But he was pleased Tidwell got the tap.

“He's going to be real familiar with the forests in Region 1,” said Roady, who is also general manager of F.W. Stoltz Lumber Co. in Columbia Falls. “We're dealing with forest biomass, trying to reduce the fuel loading and bug infestation, and we need to use that biomass before it's no good. He's well aware of that. His appointment keeps things on a fairly steady course. He reported to Gail (Kimbell), and they worked together really well. He's somebody we'd look forward to working with.”

Tidwell was instrumental in supporting the Montana Forest Restoration Working Group, a collaboration of mill owners, conservation groups, outfitters and recreation clubs to break down barriers to progress on forest projects. Bob Ekey, communications director for the Wilderness Society in Bozeman and co-chair of the working group, called Tidwell's financial and personnel support essential.

“Tidwell understands the American public's vision for a national forest has been changing,” Ekey said. “People expect supplies of clean water, world-class wildlife habitat and recreation opportunities in their forests.”

Fellow working group co-chair Gordy Sanders of Pyramid Mountain Lumber in Seeley Lake added it was reassuring to see the Montana connections preserved in Washington, D.C.

“Maybe it's the talented staff they've got in the regional office and across the region that helps prepare them,” Sanders said. “Tom going to Washington brings more of Region 1 to the national forest lands across the country.”

Reporter Rob Chaney can be reached at 523-5382 or at

Wednesday, June 17, 2009

Judge: Cattle can return to Malheur forest grazing sites

Ranchers will be able to turn out cattle on seven allotments in Oregon's Malheur National Forest as part of a ruling issued Monday, June 15, by a federal judge in Portland.

U.S. District Court Judge Ancer Haggerty ruled that grazing will be allowed in the allotments as long as the U.S. Forest Service follows a strict regimen of monitoring, fencing and cattle management.

The ruling lifts a ban on grazing in two allotments, Murderers Creek and Lower Middle Fork, issued by Haggerty in May 2008.

Ranchers who rely on the national forest for grazing were expected to turn out their cattle on Friday, June 19.

Environmentalist groups involved in the lawsuit against the U.S. Forest Service had requested that Haggerty completely prohibit cattle grazing in eight allotments in the national forest.

The U.S. Forest Service requested limited grazing on all but the Long Creek allotment, which the agency agreed to totally rest this year.

In his ruling, Haggerty said the agency had demonstrated that its grazing management plans for 2009 would not jeopardize threatened steelhead in the area.

Haggerty said he wasn't confident that the U.S. Forest Service would be able to fully enforce the plan.

"Due to the Forest Service's repeated failures to carry out planned mitigation and monitoring measures on the (Malheur National Forest), this court finds it prudent to enter an order ensuring the implementation of the Forest Service's proposals," according to the ruling.

If an allotment is found to be out of compliance with plans aimed at protecting threatened steelhead - for example, if cattle alter stream banks beyond the allowable level - then grazing in the affected area must stop for the rest of the year.

"If adequate mitigation and monitoring do not occur, the court may end the grazing season early with a full injunction," Haggerty said the ruling.

The U.S. Forest Service will need to show its compliance with grazing management plans in a report by July 20, and in another report at the end of the season.

Haggerty noted that the plaintiffs - Oregon Natural Desert Association, Center for Biological Diversity and Western Watersheds Project - had provided some evidence that grazing would harm steelhead.

Haggerty said that statements made by one of their main witnesses, consultant Christopher Christie, "have been shown to be less than fully trustworthy."

Testimony from expert witnesses summoned by the U.S. Forest Service, on the other hand, "has established that the grazing proposals for 2009, if properly executed, will adequately protect riparian habitat."

During a hearing Friday, June 12, fish and stream experts countered allegations that grazing causes permanent damage to threatened steelhead habitat.

"The conditions being maintained within this space have stayed the same or are improving," said Brett Roper, national aquatic monitoring program leader for the U.S. Forest Service.

The portions of stream that have been adversely affected by cattle comprise a very small portion of the steelhead's total habitat, so it's difficult to see how these sites would cause irreparable harm to the species, Roper said.

"Not only am I not worried about these sites, I'm not worried about a larger subset of sites used by fish," he said. "If these areas don't cause a lot of concern, then other areas don't cause a lot of concern, either."

Tuesday, June 9, 2009

Idaho Court Grazing Decision Adds To Economic Woes, Fails To See Whole Picture

MORELAND, Idaho – In an ongoing effort to eliminate grazing and other uses of public lands, Western Watersheds Project (WWP) challenged 18 Environmental Impact Statements (EISs) prepared by 18 separate Bureau of Land Management (BLM) offices in six different Western states. The BLM and stakeholders immediately filed a motion to dismiss parts of the complaint and asked that the case be handled separately in U.S. Courts in each of the affected states, rather than as one large lawsuit. In early May, Judge B. Lynn Winmill, Chief U.S. District Judge, ordered that the motion be granted in part and denied in part in a decision that ultimately unfairly favors the original complaint.

“The judge looked at this as a decision simply about sage grouse and failed to see the whole picture, that this is a range resource and habitat issue,” said Dan Gralian, President of the Nevada Cattlemen’s Association. “As ranchers, we work with agencies like the BLM to manage our public lands responsibly. Sweeping attacks and generalizations like this case misuse stakeholders’ time, take our agency folks away from their real jobs of managing the land and wastes taxpayers’ money.”

“You simply can’t paint 25 million acres of the Western United States with the same broad brush as Judge Winmill has in this case,” said John O’Keeffe, Chair of the Oregon Cattlemen’s Association Public Lands Committee. Making the BLM waste federal resources on paperwork, legal fees and defending their efforts to protect threatened species ultimately does not protect the environment, sage grouse or rangelands.”

Rangeland resource management and associated environmental issues permeate nearly every aspect of life in the West. Various interconnected ecosystems make each area under the lawsuit intrinsically different. Rangelands provide critical wildlife habitat, water resources, oil, gas, mineral reserves, and recreational opportunities. Local economies are closely associated with the use of renewable and nonrenewable natural resources as well as rural and wildland resources for tourists. Individual local ecosystems and resources need to be considered as they were when the BLM developed the different Resource Management Plans that govern the different BLM districts.

“Instead of wasting resources on blanket lawsuits, the Western Legacy Alliance and its members advocate for science-based options for resolving environmental and natural resource management issues and incorporating an interdisciplinary approach to problem solving and conflict resolution,” said John McLain, a resource and rangeland specialist and member of WLA.

By filing complaints against 18 individual plans, WWP has demonstrated their ignorance of the uniqueness and regional diversity inherent to the states and areas in question, something an “environmentalist” organization should be ashamed of. Driven by the absence of balanced and objective information, WWP is furthering rangeland resource conflicts that will ultimately ruin the local economies and way of life inherent to the West.

Livestock production in many of these states relies on maintaining healthy native rangelands. The members of the Western Legacy Alliance believe that true conservation groups, industry and all other interests that use public lands can work together to find sustainable solutions that best meet the needs of people and the environment. Misrepresentation and extremist activity on anyone’s part hinder the progress that has been made and ultimately make it more difficult to preserve the natural, cultural and economic facets of the American West.