In Oregon suit, greens take
new poke at public-lands grazing
By TIM FOUGHT / KGW.com 5/05/2007
Environmentalists are making a new attempt to
reduce the number of cattle on federal land in the
Columbia River Basin and perhaps elsewhere in the
West, arguing that federal anti-pollution laws
should be applied to grazing permits.
A federal suit filed last week makes a test case
out of a permit issued to Bill Colvin, 66, a
rancher along a tributary of the John Day River in
The aim is to get more streamside vegetation,
cooler rivers and more steelhead and other
threatened fish, a backer of the suit said.
Environmentalists have long argued that cattle and
sheep trample and eat the vegetation along Western
streams, which means streams get warmer as they
flow without shade and carry more sediment from
erosion — both conditions that hurt fish.
But their efforts to increase regulatory pressure
on grazing have often been rebuffed.
Ranchers argue that they're using land that can't
produce crops and grazing doesn't cause the damage
that environmentalists allege.
Public lands are an integral part of many Western
livestock operations, with ranchers combining
privately held land with tracts they lease from
Colvin estimates that he'd have to cut his Grant
County herd of 400 Hereford and Angus beef cattle
in half should the environmentalists win, but
neither side had an overall estimate of how the
suit could affect grazing in the John Day
watershed, the Columbia Basin or the West.
In the suit, seven environmental groups based in
Oregon and the West have resurrected an argument
thought to have been put to rest in the 1990s.
In 1996, a federal judge in Portland ruled that
state agencies such as Oregon's Department of
Environmental Quality had to certify that cattle
grazed on federal lands wouldn't cause streams to
be degraded. The department enforces the federal
Clean Water Act.
But two years later the 9th U.S. Circuit Court of
Appeals struck down the decision. It said what are
called "non-point" sources of runoff such as
livestock grazing are not subject to review under
the act. "Non-point" sources, which can also
include runoff from paved-over urban areas, are
distinguished from readily identifiable "point"
sources such as water treatment or factory drains.
The new suit cites a 2006 Supreme Court's decision
from a Maine case involving a hydroelectric dam.
The question was whether the water from a dam's
reservoir is "discharge" into the stream below the
dam. The court said it is, and the decision was
interpreted as meaning that states have broader
power than thought to regulate the quality of
At the time, Maine's attorney general, Steven
Rowe, predicted the case would have an impact
"well beyond the state of Maine."
The suit filed last week in Oregon said the
Supreme Court's definition of discharges is broad
and calls into question the appeals court ruling
The Forest Service, which issues grazing permits,
won't comment on pending litigation, said Tom
Knappenberger, spokesman for the U.S. Forest
Service's Pacific Northwest region.
"This is all deja vu for us," said Bill Marlett,
executive director of the Oregon Natural Desert
Association, which lost the 1990s suit and helped
to file the new suit. "We've been down this path
Marlett said that in the Columbia Basin, there are
about 10 million acres of public lands grazing
allotments — grazing areas subdivided into
pastures. In the John Day watershed, which drains
into the Columbia, there are about 3 million
But, Marlett said, many of the federal-lands
pastures don't have streams.
"We've highlighted the John Day because it's a
world-class resource," Marlett said. The stream is
the longest undammed river in the West after the
Yellowstone, he said, and like many in the basin
runs so warm that it couldn't pass muster if
subjected to the terms of the Clean Water Act.
In most cases, the key to lowering the temperature
of a stream is to get the cattle off the banks so
that vegetation can grow and provide shade,
Marlett said. He said it's usually not necessary
to plant anything — bankside shrubs and trees will
come back rapidly on their own after five to 10
"It's real obvious when you take the animals off,"
Rancher John O'Keeffe of Adel in Lake County,
chair of a public lands committee of the Oregon
Cattlemen's Association, said he believes "we
could run the cows we have now" and comply with
the permit process the environmentalists seek. He
argues that the environmentalists aim to clog the
bureaucracy to hamper grazers.
He also argues that the water standards were set
too high. "Some of the streams are warmer than the
standard," he said. "I think they were warmer
Jeff Eisenberg, director of public lands for the
National Cattlemen's Beef Association, said the
Supreme Court's holding in the Maine case
shouldn't apply in the Oregon case.
In the Maine case, the court dealt with a dam and
defined the water in the reservoir behind the dam
as a discharge flowing into the river below the
"Here you have a bunch of random strolling
cattle," he said. "As a commonsense thing, it
doesn't make sense to us."