Industry continues legal fight of USFS Bighorn decision

The U.S. sheep industry is continuing its legal fight against the U.S. Forest Service (USFS) for its decision to eliminate 70 percent of sheep grazing on the Payette National Forest. 

Between 2010 and 2013, USFS permanently removed roughly10,000 head of sheep from their historic ranges on the Payette, allegedly based on concerns that disease transfer between domestic and Bighorn sheep is threatening the “viability” of Bighorn populations. 

The sheep industry challenged this decision in the courts, but an Idaho district court judge failed to overturn USFS’ decision in March of this year. Now, industry has decided to take its arguments to the Ninth Circuit Court of Appeals.

“Rolling back the Payette decision and model is hugely important because Forest Service is moving forward with similar models in forests across the region – and BLM has indicated they might follow suit,” said Amy Hendrickson, executive director of the Wyoming Wool Growers Association (WWGA). “If the Payette decision, which was based on inaccurate and inadequate data, gets duplicated across the Bighorn’s range on national forests that could destroy a quarter of the entire U.S. sheep industry.”

Wyo involvement

In 2012, WWGA joined several affected ranchers, Idaho Wool Growers, Colorado Wool Growers, American Sheep Industry Association and Public Lands Council in challenging USFS’ Payette decision. 

Industry fought the decision through the agency’s public comment and appeals process and sought relief from Congress before finally resorting to litigation. Despite Judge Tashima’s ruling against industry at the district court level, Hendrickson told the Roundup she feels they stand on solid ground with their arguments.

“We feel we have a strong case, but it wasn’t given the kind of consideration we expected from Judge Tashima,” she said. “We expected it to take time for him to learn the issues in the case, but the decision was handed down just a few weeks after he took on the case. We hope the appeals court will do a more thorough job.”

Challenge

In their challenge, industry made the case for a litany of procedural violations USFS made that ultimately led to an “arbitrary and capricious” decision that put several generations-old sheep ranches out of business. 

The crux of industry’s legal argument is that USFS used an inherently biased process to create a “risk assessment” model that was not founded in sound science. 

From there, industry claimed USFS continued to use an inadequate record basis that made assumptions that would hurt the sheep industry without exploring possibilities to mitigate that damage. Their legal challenge cites violations of the Federal Advisory Committee Act (FACA), the National Environmental Policy Act and the Administrative Procedures Act.

“The USFS came up with this model without input from any industry representatives, and more importantly, it excluded USDA’s own disease research scientists. There was no openness or transparency to their meetings or to their science, which is required under FACA,” Hendrickson told the Roundup. “The data they used to come up with this model, which assumes that any contact between Bighorns and domestics will result in pneumonia die-offs in Bighorns 100 percent of the time, has not been shared with industry, so we can’t evaluate it.”

She continued, “Their model puts an inexplicable nine-mile buffer zone around historic domestic sheep ranges, which absolutely cannot be justified scientifically or logically – yet it has served to destroy several family operations.”

Federal intervention

In 2009, a federal judge directed USFS not to use the model created by its committee, declaring that the agency had violated FACA with their proceedings. 

In 2012, when it was apparent that USFS was continuing to make decisions based on their model, Congress stepped in. 

Congressional appropriators put a yearlong hold on any domestic sheep removals from the Payette and directed USFS to work with USDA’s Agricultural Research Service disease experts to come up with a more solid scientific basis for their bighorn decisions. 

However, USFS appears not to have heeded Congress’ direction, either. 

Not only have the Payette sheep removals gone forward, the agency has also indicated that other national forests may be moving to adopt similar policies. 

Scientific efforts

Meanwhile, said WWGA’s Hendrickson, industry is leading research efforts to ascertain what’s really causing Bighorn herd die-offs to determine what the true risk of disease transfer is between domestics and Bighorns and to develop a vaccine to address the concern.

“What the science shows us now is that there are a lot of factors playing into Bighorn herd die-offs,” said Hendrickson. “Other wildlife – including Bighorns themselves – carry the pathogens that cause illness in Bighorn sheep, so disease could be transmitted by other species and not just domestic sheep. If we really want to ensure long-term bighorn ‘viability’ then we need to find ways to build Bighorn immunity.”

Additional concerns

Hendrickson told Roundup that USFS’ lack of sound science was just one problem with the Payette decision. 

“There’s a real problem when Forest Service starts making decisions based on single-species management, even if we were to assume that domestic sheep grazing is 100 percent at fault for these Bighorn die-offs,” said Hendrickson. “The multiple-use statutes governing the federal land management agencies require that the agencies promote the continued use of these lands in a way that benefits the American people. That includes productive uses like grazing. Plus, there are long-standing grazing rights that can’t just be brushed aside because of a vague agency regulation like ‘species viability.’”

Viability

Hendrickson added that, contrary to agency claims, the concept of USFS ensuring “species viability” is found nowhere in the National Forest Management Act but only in the agency’s self-imposed regulations.

“There isn’t even a real understanding of what ‘viability’ means,” Hendrickson said, “so there’s really nothing keeping anti-grazing groups from suing based on their interpretation of that term – which was the case in this Payette situation. This all started because of a lawsuit coming from an anti-grazing group claiming that domestic sheep were harming Bighorn viability.” 

Moving forward

By Hendrickson’s estimation, the appeal process could take six months or longer.

“Meanwhile, we’ll keep fighting Forest Service – and the BLM for that matter – if they keep trying to repeat this model in other areas,” Hendrickson told the Roundup, “and we’ll keep asking Congress to intervene. We can’t just stand by and watch a way of life for our ranchers be destroyed.”

Theodora Dowling is a correspondent for the Wyoming Livestock Roundup. She previously worked for Public Lands Council and the National Cattlemen’s Beef Association in Washington, D.C. and now writes from her family’s ranch in Northern California. She can be reached at theodora.dowling@gmail.com or roundup@wylr.net.