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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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9th Circuit Reconsiders Grazing in the Desert

PORTLAND, Ore. (CN) - The 9th Circuit heard arguments about whether to intervene in the Bureau of Land Management's plan to extend existing cattle grazing leases in the high desert of southeastern Oregon for the next 10 years.

In a 2006 federal complaint, the Oregon Natural Desert Association and Western Watersheds Project said the bureau had violated the National Environmental Policy Act by allowing cattle to graze within the half-million-acre Louse Canyon Geographic Management Area. Oregon Natural accused the bureau of allowing livestock to trample and overgraze the area while using underground water pumps that compromised half of the area's streams, 90 percent of area wetlands and 30 springs.

All that allegedly threatens the near-extinct greater sage grouse. Though the Interior Department has warned about the bird's declining numbers, other more threatened plants and animals have precluded it from making the list of endangered species.

U.S. District Judge Michael Mosman found for the government, and the association appealed.

On Wednesday, attorney Peter "Mac" Lacey asked a three-judge appellate panel to review the case anew and issue a ruling on the merits.

Judge Marsha Berzon cast doubt on that possiblity.

"We probably could do that, but we usually don't," she said.

U.S. Attorney Katherine Barton argued that the trial court correctly found for the government because the bureau's current grazing strategy allows "less grazing than there has historically been on the [Louse Canyon Geographic Management Area] for a century or more. She added that "the greater sage grouse has a stable or increasing population in that area."

Lacey said livestock grazing represents an "absurd" situation in which the bureau OKs practices that cause ongoing harm to the sage grouse, while continually asking for more chances to "go back and take yet another look."

But the government downplayed the problem and noted that Congress has authorized grazing on public land.

"BLM doesn't consider it has the authority to stop grazing, to make a decision to halt grazing on a multiple-use area," Barton said. "And, of course, that wouldn't maintain the status quo. Stopping grazing would be a huge change to an area that's been grazed even historically by bison and antelope, which co-evolved with the sage grouse."

But the judges seemed skeptical. "This all sounds sort of like a tempest in a teapot," Berzon said when Lacey stepped up for rebuttal. "Can you tell us why it isn't?"

Lacey called the document outlining the bureau's current grazing strategy a "meaningless piece of paper today," saying that it referred to pastures that either no longer exist or are still hypothetical since BLM hadn't yet built the fences.

Judges David Ebel and Randy Smith also sat on the panel.

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