Ninth Circuit Court decision could benefit many Oregon ranchers

by DANIELLE JESTER, Herald and News June 24, 2020

Last month, the Ninth Circuit Court of Appeals ruled against the Oregon Natural Desert Association and the Center for Biological Diversity when it upheld 117 livestock grazing decisions on seven allotments along the Malheur and North Fork Malheur Rivers in eastern Oregon.

According to Western Resources Legal Center, which represented the livestock permittees throughout the appeal process, the court’s ruling further establishes the important precedent that riparian management objectives for inland fish and pacific anadromous fish “are not inflexible standards but, rather, aspirational objectives.” Given the applicability of those objectives across many western states, “This is a victory that will benefit ranchers all across the West,” the legal center noted.

Litigation between ONDA and the U.S. Forest Service began in 2003, when ONDA sued the Forest Service to challenge its grazing practices in the Malheur National Forest. According to court documents, in 2016, after years of parallel litigation and failed settlement discussions, ONDA filed its fifth amended complaint, alleging that 117 Forest Service grazing authorizations, issued from 2006 through 2015, violated the National Forest Management Act, and, by extension, the Administrative Procedure Act. ONDA requested that livestock grazing in bull trout critical habitat and certain other areas not be allowed until the Forest Service could demonstrate compliance with the Forest Plan.

On April 16, 2018, the district court granted summary judgment for the Forest Service and Intervenors on all claims. The recent appeal by the Oregon Natural Desert Association and the Center for Biological Diversity challenged that decision and argued that the grazing authorizations were unlawful because the Forest Service failed to analyze and show their consistency with two Forest Plan standards: INFISH Standard GM-1 and Forest Plan Management Area 3A Standard 5.

The first standard calls for modifying grazing practices that slow or prevent the attainment of riparian management objectives or are likely to adversely affect inland native fish. The second standard calls for the Forest Service to provide the necessary habitat to maintain or increase populations of management indicator species: bull trout, cutthroat trout, and rainbow/redband trout.

The Ninth Circuit ruled, however, “the record amply demonstrates that the Forest Service is actively engaged in protecting bull trout habitats from the effects of livestock grazing by monitoring the effects of livestock grazing on various habitat indicators and implementing site-specific grazing limitations.” It also noted, “And the Forest Service has on many occasions suspended or stopped grazing activity in response to potential effects on bull trout, indicating that it is not only monitoring, but also enforcing plan standards related to the protection of bull trout habitats.”

“We defer to the [Forest Service’s] reasonable exercise of its scientific expertise in choosing how best to meet the requirements of its Forest Plan while accommodating the competing interests of environmental, recreational, extractive, and other uses in the Malheur National Forest,” the Ninth Circuit Court concluded.

The allotments that were in question span thousands of acres and are critical to many ranchers

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