Ranchers win round in grazing battle

Mary MacArthur rides ahead to let the front riders know where they will stop to allow the cows to "mother-up" and rest. The Eagle/Marissa Allen

Citing a "profound threat to the affected ranchers' livelihood," a federal district court judge in Portland last week refused to grant an injunction against the U.S. Forest Service that would have prevented the agency from allowing cattle to graze on two allotments in the Malheur National Forest this summer.

A lawsuit filed in March 2003 by the Oregon Natural Desert Association and the New Mexico-based Center for Biological Diversity claims that for years the Forest Service has failed to properly monitor steelhead recovery efforts or implement appropriate watershed and riparian habitat protection strategies on the Murderers Creek and Blue Mountain allotments, located near Dayville and Prairie City respectively. Both allotments contain endangered steelhead spawning and rearing habitat.

Although certainly a momentary victory for members of the Dayville Grazing Association and other ranchers who run their cattle on the pastures and are intervenors on the side of the Forest Service in the case, it's clear in District Judge Ancer L. Haggerty's July 15 written opinion that he's unsatisfied with the government's regulatory oversight of the disputed areas.

In the 22-page order denying the injunction, Haggerty says the Forest Service is obviously failing to meet legal obligations governing environmental and species protection on the allotments.

"Although the defendants offer optimistic assessments (about the current and future ecological health of the allotments) ... such optimism fails to refute plaintiffs' evidence that defendants have not been, and are not, in compliance with (federal mandates)," wrote the judge.

While calculating that the "balance of harms tips slightly against issuing an injunction at this time," Judge Haggerty added that he recognizes a "dire need for better management of grazing on these public lands."

If improved monitoring and agreeable environmental protection efforts aren't implemented over the coming months, ranchers may again be faced with the prospect of having their grazing permits invalidated down the road. "Though by no means a preferred remedy, the entry of an injunction before the next grazing season remains a viable consideration for this court in the quest for achieving that balance," wrote Haggerty.

Bill Marlett, director of the plaintiff group ONDA, which has offices in Bend and Portland, said the judge's decision wasn't particularly surprising, given that the injunction hearing occurred only days prior to when the ranchers were schedule to move their cattle onto the the allotments - which they indeed did late last week.

Marlett said he feels "all in all, pretty good" about the judge's comments, despite the denial of his organization's motion. "We're fine with it," he said.

Given that the court seems to recognize the strength of the environmental groups' case in broad terms, Marlett said he believes the chances cattle will be allowed to graze on the allotments in any substantial numbers next summer are "slim to none." If the Forest Service has any evidence "up their sleeve" to suggest otherwise, then they likely would have presented it already, he said.

"Quite frankly, their defense in this case has been anything but stellar," said Marlett. "I don't really see how they're going to turn this around. The evidence that we've presented is overwhelming, and it will ultimately leave Judge Haggerty with no options but to agree with us on the merits."

The ranchers aren't inclined to disagree with that assessment at this point. While certainly pleased they were allowed to move their cattle onto the allotments in keeping with their grazing permits, they're wary and worried about what the future holds.

"I was pretty disappointed with the opinion, really," said Chet Hettinga, president of the Dayville Grazing Association. He also questioned whether the government has invested the research and resources necessary to ultimately prevail, saying he's "unhappy in the way the Forest Service has handled this case."

"Basically, the bottom line now is that the Forest Service is going to have to get on the ball and do their environmental reporting," said Hettinga.

Marlett and Hettinga each said in telephone interviews this week that they're open to the possibility of trying to reach a settlement agreement, but both question whether that's realistic at this point.

In Marlett's view, the ranchers probably won't voluntarily change their approach to grazing on the allotments in any meaningful way until they're essentially forced to.

To Hettinga, the environmental groups tend to exhibit a love of bureaucratic nit-picking and legal confrontation that blinds them not just to the ongoing ecological improvements on the allotments, but also to the social benefit that results from "converting grass into pounds of beef, which people live on."

"We have a hard time understanding their logic and the way they think," said Hettinga.

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