June 10, 2010

Mixed decision in Oregon grazing case

By Mixed decision in Oregon grazing case

Author:  Damien M. Schiff283px-Strawberry_Lake_Wilderness[1]

Yesterday, the District of Oregon issued a decision in Oregon Natural Desert Association v. Tidwell, a case pitting enviromental groups intent on protecting steelhead species (a type of salmonid), against the federal government, as well as private individuals who rely upon grazing permits from the Forest Service for their livelihood.  The environmentalists challenged the biological opinion issued by the National Marine Fisheries Service under the Endangered Species Act.  The biological opinion detailed the effects of grazing on various steelhead habitat streams in the Malheur National Forest, in eastern Oregon.  The environmentalists challenged, among other things, the biological opinion's assessment of whether allowing continued grazing would seriously retard the steelhead's recovery.  The environmentalists also challenged the way in which the Forest Service, and the permittees, had been implementing the biological opinion's prescriptions.

In his decision on summary judgment, Judge Haggerty split the baby.  He ruled in favor of the permittees on their claim that they were illegally cut out of the process by which the Services produced the biological opinion.  And he ruled in favor of the National Marine Fisheries Service in the biological opinion's environmental effects analyses.  But he ruled in favor of the environmentalists on their claims that the Forest Service had failed adequately to implement the biological opinions and monitor the permittees.

The AP story on the decision seems to confirm the Solomonic nature of Judge Haggerty's ruling: both sides interpret the decision as a victory for each's interest.  Given that, an appeal of the decision may not be terribly likely.

As a side note, PLF represented many of the permittees in a previous lawsuit (Oregon Natural Desert Association v. Lohn) concerning the legality of another biological opinion concerning grazing on the Malheur.  The decision and appeal were eventually mooted out by the issuance of the biological opinion that was the subject of yesterday's ruling.

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