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Concerned Friends of Winema v. U.S. Forest Service

United States District Court, D. Oregon, Medford Division

June 11, 2014

CONCERNED FRIENDS OF THE WINEMA; KLAMATH-SISKIYOU WILDLANDS CENTER; WESTERN WATERSHEDS PROJECT; OREGON WILD; and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs,
v.
U.S. FOREST SERVICE, Defendant, IVERSON MANAGEMENT LIMITED PARTNERSHIP, Defendant-Intervenor.

ORDER

OWEN M. PANNER, District Judge.

Plaintiffs claim that the Forest Service's decision to authorize cattle grazing on Chemult Pasture in the Fremont-Winema National Forest violates the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). The grazing permittee, Iverson Management Limited Partnership (Iverson LP), intervenes as a defendant.

Plaintiffs now seek a preliminary injunction prohibiting the Forest Service from allowing Iverson LP's cattle to graze the Chemult Pasture during the current grazing season. I deny the motion.

BACKGROUND

Chemult Pasture is part of the Antelope Cattle & Horse Allotment (Antelope Allotment), which comprises 68, 000 acres including about 3, 000 acres of privately owned land. Chemult Pasture offers the best available forage for livestock, providing most of Iverson LP's summer grazing.

Cattle have grazed these rangelands since the 1870s, and there has been grazing under permit on Chemult Pasture since 1908. The Iverson family, which formed Iverson LP, has ranched there for more than 100 years. Keith Little, livestock and ranch manager for Iverson LP, is the grandson of Marjorie Iverson, who is the sole remaining partner in Iverson LP.

Congress requires the Forest Service "to consider the use of National Forest lands for grazing of livestock.n Forest Guardians v. U.S. Forest Serv. , 329 F.3d 1089, 1097 (9th Cir. 2003) (citing 16 U.S.C. § 1604(e)(1) (NFMA)). "The Forest Service manages livestock grazing on an allotment by issuing a grazing permit; an allotment management plan (AMP); and an annual operating plan (AOP) [1] or instruction (AOI)." Oregon Natural Desert Ass'n v. Sabo , 854 F.Supp.2d 889, 902 (D. Or. 2012) (Sabo). Grazing permits normally expire after ten years, while AOIs, as their name implies, are issued annually as agreements between the Forest Service and the permittee. Id . The Forest Service uses AOIs to respond to changing grazing conditions such as drought, water quality, habitat restoration, or risks to threatened plants or animals. See Oregon Natural Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 980-81 (9th Cir. 2006).

Here, plaintiffs challenge the 2014 AOI, which would allow Iverson LP to graze its cattle on Chemult Pasture this summer. Plaintiffs claim grazing will harm the population of Oregon spotted frogs that live on the pasture in and near Jack Creek. Since 2008, the Forest Service has tried to protect frog habitat by building a "Frog Fence" along Jack Creek to exclude cattle.

Plaintiffs also claim that grazing will harm the marshy bogs known as fens, which are home to sensitive species of mosses, sedges, and mollusks. Scientists do not fully understand how fens are created or how they survive. The record is unclear on the number of fens on the Antelope Allotment, with different surveys listing anywhere from 33 to 60 fens. See Litts Decl. at 8 & n.3 (between 50-60 fens); Simpson Decl., Ex. 10, at 9 (33 fens). There are apparently about 400 total acres of fens in the allotment. Litts Decl. at 8 n.3.

In 2008, sevaral plaintiffs, including two of the plaintiffs bringing this action, brought an action in this court claiming grazing in Chemult Pasture was harming the Oregon spotted frog. Center for Biological Diversity v. Wagner, No. 1:08-cv-302-CL, 2009 WL 2176049 (D. Or. June 29, 2009) (Wagner) (Report and Recommendation by Magistrate Judge Mark D. Clarke), adopted, 2009 WL 2208023 (D. Or. July 22, 2009). After Wagner was filed, the Forest Service decided to build the Frog Fence. This court dismissed the NFMA claims as moot because of the Forest Service's efforts to protect the frogs' habitat. Id. at *13-14.

In 2010, two plaintiffs, including one of the plaintiffs in this action, filed another action challenging grazing on Chemult Pasture. Saba, 854 F.Supp.2d 889. The plaintiffs based their claims on the Forest Service's issuance of a new list of sensitive species found in the Forest. Id. at 905. Before taking an action that could affect a sensitive species, the Forest Service must analyze the action's effects in a biological evaluation. Id.

In Saba, I agreed with Judge Clarke that the Forest Service had violated NFMA "by failing to review grazing activities occurring annually on the Allotment for the possible effects on sensitive species of animals and plants as mandated in the Forest Plan... before authorizing grazing." Id. at 920. Similarly, the Forest Service violated NEPA by failing "to undertake supplemental environmental analysis in light of the sensitive species found on the Allotment before authorizing grazing on the Allotment." Id. at 923-24.

Although the Forest Service had violated NEPA and NFMA, I agreed with Judge Clarke that the plaintiffs were not entitled to injunctive relief. As Judge Clarke noted, the plaintiffs' proposed remedy was "not practical, would take a long time to accomplish, and would be very expensive, " in addition to harming Iverson LP's business. An injunction might have resulted in a net loss of Oregon spotted frog habitat because Iverson LP would have been forced to graze more intensively on its own private land, which contains excellent frog habitat. Id. at 900.

The Forest Service issued AOIs to Iverson LP for 2012 and 2013, allowing grazing on Chemult Pasture. The Forest Service found no violations of the 2012 AOI. But in 2013, the Forest Service found Iverson LP had repeatedly allowed cattle to trespass into prohibited areas. In November 2013, the Forest Service sent Iverson LP a Notice of Non-Compliance (NONC) of Term Grazing Permit. Dhaemers Decl., Ex. E. The NONC notified Iverson LP that, from July to October 2013,

your livestock were observed either grazing outside of your allotment, on the adjoining Jack Creek Sheep allotment... or within areas of your Antelope allotment (Jack Creek Riparian area) that are not currently authorized for livestock grazing. Each time livestock were observed grazing in an unauthorized area your representative, Keith Little, was notified (approximately 15 times) and instructed to remove them from the area. However, this issue persisted throughout the grazing season.

Id., Ex. Eat 1.

In the 2014 AOI, the Forest Service requires Iverson LP "to maintain the Jack Creek Riparian fence in a manner that keeps cattle from accessing the riparian pasture and to monitor the area regularly to minimize/eliminate livestock impacts in this area." Howard Decl., Ex. 3, at 4. Because Iverson LP violated the 2013 AOI multiple times, a single violation of the 2014 AOI could result in sanctions. Lawrence Decl. ¶ 15.

The 2014 grazing season for the Antelope Allotment, excluding Chemult Pasture, began May 15, 2014. The Forest Service plans to allow grazing on Chemult Pasture from July 1 through September 30, 2014. The Forest Service will halt grazing before the scheduled end of the season "if rangeland ...


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