PORTLAND, Ore. (CN) - The U.S. Forest Service properly shut down 70 percent of grazing allotments in Idaho's Payette National Forest to prevent the spread of disease between domestic and wild bighorn sheep, the Ninth Circuit ruled Wednesday.
The Idaho Wool Growers Association and others appealed a decision by a federal judge in Boise that affirmed the U.S. Forest Service's actions based on studies that confirm the spread of pathogens to "immunologically vulnerable bighorn sheep."
Conservation groups Western Watersheds Project, The Wilderness Society and Hells Canyon Preservation Council intervened in support of the Forest Service and praised the Ninth Circuit's decision.
"Certainly we think this is a good ruling and that it will help the bighorn sheep," Western Watersheds Project director Ken Cole told Courthouse News. "They have developed a GIS (geographic information system) to calculate the risk of contact between bighorn and domestic sheep allotments, and that is what they used to determined closure on the Payette National Forest. We think they should use this analysis wherever there is a risk of potential domestic and wild sheep conflict."
There are two populations of bighorn sheep found in the Payette National Forest, one in Hells Canyon and the other in the Salmon River Mountains. A major die-off occurred in the Salmon River Mountains in the 1870s, and is thought to have coincided with the onset of widespread grazing of domestic sheep.
The overall number of bighorn sheep in Idaho - numbered between 1.5 to 2 million in the late 1800s and early 1900s - dropped by about 90 percent because of "overharvesting, habitat loss, competition for food and disease transmission from domestic sheep," according to the Forest Service.
The bighorn's numbers have experienced a number of die-offs over the years, according to the Forest Service, which says that since 1981 the total population of bighorn sheep in the Payette National Forest has decreased by 47 percent. They were extirpated in Hells Canyon by the mid-1940s, but were reintroduced beginning in the 1970s.
To date there are roughly 850 bighorn sheep in Hells Canyon and about 700 in the Salmon River Mountains.
The Forest Service began taking a look at domestic sheep grazing in 2003, in response to the decreasing numbers. In 2010, the agency issued a record of decision that closed about 70 percent of the previous allotments to domestic sheep grazing. The agency based its decision on a draft supplemental environmental impact statement and a final supplemental environmental impact statement.
Wool Growers, along with other trade associations and two sheep ranchers, sued the Forest Service in 2012, claiming its assessment of the situation and subsequent decision was "misguided" and that the agency failed to go further in its analysis.
"This decision was based on the theory that contact between domestic sheep and bighorns under range conditions results in the transmission of fatal pathogens from domestic sheep to bighorn 100 percent of the time," according to the groups' 28-page complaint. "The Payette's 2010 decision was flawed with procedural defects and an inadequate record basis."
Specifically, they claimed the Forest Service was obligated under the National Environmental Policy Act to consult with the Agricultural Research Service before preparing its findings and issuing its record of decision. The groups also questioned the particular methods and models to evaluate the risks of disease transmission between the two species.
The Ninth Circuit, however, rejected those concerns, stating that the "precise mechanisms" of disease transmission are not needed to justify separation of the two species and that not consulting with the Agricultural Research Service did not prejudice the plaintiffs.
"The conclusion was that the scientific consensus is that disease transmission from domestic sheep - by whatever mechanism and involving whatever confounding factors - poses a sufficient risk to bighorn sheep viability to merit separation of the bighorns from the domestic animals," wrote Circuit Judge Marsha Berzon in a 29-page opinion.
She added: "Because the lack of consultation did not prevent the Forest Service or the public from considering information about the uncertainties in transmission of disease from domestic to bighorn sheep such as Agricultural Research Service would have offered and because information about the precise mechanisms of such transmission was not a basis of the Forest Service's decision, no prejudice resulted from the lack of consultation. We conclude that any error arising from the Forest Service's failure to consult was harmless."
The three-judge panel also affirmed the agency's methods and procedures.
"Ultimately, the Forest Service used top-rate model designers; relied on peer-reviewed methodologies applied by other bighorn researchers addressing similar issues; and incorporated on-the-ground data of bighorn sheep movements with the Payette," Berzon said. "Given the foregoing, and in light of the deference owed to the agency when undertaking technical analysis within its purview, the Forest Service's reliance on the risk of contact model was not arbitrary, capricious or an abuse of discretion."
Speaking for Western Watersheds, Cole said in a statement that "today's ruling shows that taking precautionary measures to protect native wildlife is a reasonable approach to managing our public lands.
"It also affirms that the methods used by the Payette National Forest were proper, and we hope this means more public land managers will start applying the same models when evaluating risk of contact."
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