PORTLAND, Ore. (CN) — A U.S. Forest Service plan to expand cattle grazing in southern Oregon at the risk of extirpating imperiled Oregon spotted frogs landed at the Ninth Circuit on Thursday as challengers called into question whether the service and U.S. Fish and Wildlife adequately considered how climate change and grazing would affect the protected species when approving the project.
“This case challenges federal decision that sacrificed treasured public lands all to benefit a rancher with a long history of non-compliance,” Advocates for the West attorney Elizabeth Potter told the judges during oral arguments.
Potter said her clients are challenging decisions that “substantially expanded grazing into long protected riparian areas that contain rare and extraordinary biodiversity.”
Five conservation groups filed the lawsuit in 2019 after the service authorized an expansion of cattle grazing on the 160,000-plus acre Antelope Allotment within the Fremont-Winema National Forest.
Led by nonprofits Concerned Friends of the Winema and Western Watersheds Project, the groups claimed the expansion threatened fragile wetlands called fens along Jack Creek, a perennial stream known to dry during the region’s ever-increasing drought years.
Expanded grazing will also lead to the trampling and displacement of Oregon spotted frog, the groups argued, further imperiling a species that the service itself listed as endangered under the Endangered Species Act in 2014.
The groups also say the service’s environmental impact statement and Fish and Wildlife’s biological opinion did not sufficiently analyze environmental impacts, particularly those in conjunction with climate change. Instead, the agencies relied on shaky mitigation measures like erecting fences and water troughs, which have proven to be unsuccessful in preventing cattle from trampling into the creek and harming frogs.
In July 2022 U.S. District Judge Michael McShane sided with service, unconvinced that the project violated the National Environmental Policy Act or had inconsistencies with the Winema Forest Plan. He also disagreed that the service’s approval failed to take a hard look at impacts or that Fish and Wildlife’s biological opinion violated the Endangered Species Act.
Judges on Thursday were more skeptical of the grazing project. They asked repeatedly why the agencies had barely addressed how grazing and climate change would affect the allotment’s biodiversity and why no standards have been set to ensure the service will actually prevent cattle grazing on critical habitat during low-water conditions.
U.S. Circuit Judge Jennifer Sung, a Biden appointee, dug into Justice Department attorney Sean Martin on the latter point, noting caselaw specifies there must be standards to ensure mitigation measures occur in a timely fashion.
The current strategy, Sung said, suggests there are circumstances when the “opportunity and possibility” of field visits don’t arise.
“We know what the triggers are to remove the cattle or to put the fence up,” Martin said. “But in terms of the specific timing, you know, that’s left to the presumed good faith of the Forest Service biologist.”
Potter highlighted a long history of cattle trespassing onto the allotment and said it's been impossible to keep thirsty cattle out of Jack Creek in the summer during low flows. It has taken over a month for cattle to be removed following past orders, she said, adding that there is no remote monitoring of the rough allotment’s water conditions and relies on the permittee’s observations.
The time it takes for low flows to rise and to kick out cattle is a big deal, Potter said, and “Fish and Wildlife just needed to be upfront about this in its biological opinion.”
U.S. Circuit Judge Lucy H. Koh, another Biden appointee, asked both attorneys if vacating the biological opinion would cause more environmental harm. Potter explained that it's the opinion that provides the authorization to allow cattle in the stream — a move that Fish and Wildlife estimated would cause hundreds of frogs to be harmed or killed each year.
Martin disagreed, and said vacating the opinion would leave private lands with prime frog breeding areas under the discretion of landowners and take protection from the service or Fish and Wildlife.
Senior Judge for the Sixth Circuit, Ronald L. Gillman, a Clinton appointee, asked why it wasn't a problem the biological opinion didn't focus more on climate change, an issue the other two issues also spent considerable time probing. They wanted to know why the agencies omitted analyses on climate change effects on the frogs when there were existing climate change studies and a thorough analysis of threats to the frog in Fish and Wildlife’s Endangered Species Act listing.
“Because it does focus on drought, and because it takes specific, substantive measures to minimize drought causing undue harm to the Oregon spotted frog,” Martin offered in response to Gillman.
The lack of analysis, Martin said, was due to the lack of studies applicable to the Klamath basin and relevant effects on the frog. The Justice Department attorney said Fish and Wildlife was clear that it couldn't predict how climate change would affect species populations.
“Do we really need a study specific to the frog about climate change?” Sung asked earlier in the hearing, noting studies had predicted climate change would cause stream flows to decrease in the Klamath Basin.
On rebuttal, Potter argued that the Endangered Species Act does not require a specific study. Sung then asked Potter how the court could vacate the service’s record of decision if there’s no Endangered Species Act claim against the Forest Service.
To this, Potter explained that the project relies on "take" protection under the Endangered Species Act, and without it, “there’s no way that the Forest Service could move forward lawfully with authorizing grazing in Jack Creek.”
With the last point in mind, the judges adjourned the hearing. They did not indicate how they may rule.
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