Wednesday, March 2, 2016

Ninth Circuit upholds NEPA analysis for forest plan reducing sheep grazing by 70%, potentially paving the way for dramatic reductions in sheep grazing on federal lands

The Ninth Circuit just issued its decision in Idaho Wool Growers v. Vilsack.  Decision here.  The decision upholds NEPA analysis for Payette National Forest forest plan that will reduce sheep grazing in the forest by 70%, from 100,000 acres to 30,000 acres.  With this win, it is likely that the Forest Service, and other federal agencies in the West, will seek to reduce sheep grazing because of fear of disease transmission between domesticated sheep and bighorn sheep.  Here is an excerpt of my editorial about the case for the LA/SF Daily Journals (Nov. 17, 2015 editions, behind pay wall):

In Idaho Wool Growers, sheep grazers challenged the adequacy of the U.S. Forest Service’s environmental review of the Payette National Forest Land and Resource Management Plan, a document required under the National Forest Management Act that has been a source of acrimony since its first draft appeared in 1988.  At the center of the plan, which was last amended in 2010, was to reduce grazing of domestic sheep in the forest by 70 percent—from 100,000 acres to 30,000 acres—in order to protect wild bighorn sheep from disease potentially transmitted from the domesticated sheep. 

That proposal cut straight to the heart of locals, as sheep grazing is an industry deeply entrenched in the State’s political and cultural heritage.  For instance, the State’s lieutenant governor, a former president of the Idaho Wool Growers, operated a third-generation sheep farm started by his grandfather, known as “The Sheep King.”  Idahoans continue to celebrate a deep cultural connection to their nineteenth century Basque immigrant forefathers, many of whom were sheep grazers.  Those days meant months at a time spent living in spare karro kampos wagons, a heritage now proudly celebrated and remembered at Basque festivals, called Jaialdi, held every five years in Boise.

It is no wonder, then, that the sheep grazers would seek to prevent the Forest Service from dramatically reducing sheep grazing in the forest.  Moreover, there is concern among many sheep grazers that this forest plan is just the first salvo:  other federal agencies that govern public lands in this State, such as the Bureau of Land Management, are watching this case to decide how to proceed with protecting bighorn sheep from disease on their own lands.  A win for the Forest Service here could mean more big reductions in sheep grazing from those other agencies.  The federal agencies’ hands are also being forced, to some degree, by environmental groups that are challenging sheep grazing allotments out of concern for bighorn sheep.

Despite the high stakes for sheep grazers, the NEPA case itself presents a relatively common “experts” question.  At its core, the plaintiffs’ case is that NEPA regulations require the Forest Service to consider relevant expert agency comments into decisionmaking and that the agency violated this requirement by failing to consider input from the Agricultural Research Service (ARS), the in-house research agency of the U.S. Department of Agriculture, which is often more favorable to agricultural interests than some other agencies.  In particular, plaintiffs allege that the Forest Service improperly ignored a paper by a specific ARS scientist that cast doubt on the link between domestic sheep grazing and bighorn health issues. 

The Forest Service argued that ARS and the scientist were not relevant “experts” because they had no expertise in wildlife management.  In any case, the Forest Service further argued, it took into consideration opposing viewpoints, voiced largely by representatives of agricultural interests, and weighed those viewpoints against “a large body of peer reviewed and published literature spanning several decades,” the majority of which “supports the potential for disease transmission between the species, documents bighorn die-offs near domestic sheep, and supports the management option of keeping these species separate to prevent disease transmission.”  The agency noted that “there is no peer reviewed literature that suggests [that] bighorn sheep can be grazed with domestic sheep without concern for disease transmission between the species” and that “[s]cientists from both sides of the issue also recommend that the species be kept separate until the disease transmission science is better understood.”

This decision may well be a threshold decision on the future of sheep grazing on federal lands.

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