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Ninth Circuit urges mediation in fight over livestock grazing in Tonto National Forest

Neighbors of the Mogollon Rim say the U.S. Forest Service's expansion of grazing in the Tonto will irreparably harm the environment.

PHOENIX (CN) — A Ninth Circuit panel on Wednesday encouraged a community advocate group for Arizona’s Mogollon Rim to seek mediation with the U.S. Forest Service over expanded grazing allotment into a specific portion of the Tonto National Forest known as Bar X.

For 40 years, grazing wasn’t permitted in what’s known as the Colcord/Turkey pasture in the Bar X, until the Forest Service updated its management plan. Now it, along with four other pastures associated with the Bar X, is open to grazing if the Forest Service decides it’s safe. The plan doubles the number of livestock that’s allowed to graze on a specific pasture at a time.

The plan doesn’t open grazing indefinitely — the Forest Service retains the right to decide regularly whether the pastures should be opened or closed, depending on environmental conditions.

Neighbors of the Mogollon Rim, a community organization made up of homeowners in the area, claims the grazing will adversely affect the environment in multiple ways, like the permanent destruction of vegetation and damage to both the habitats and food sources of the Mexican spotted owl and the narrow-headed garter snake.

It also accused the Forest Service of violating the National Environmental Policy Act because the Forest Service didn’t consider their proposed alternative – that grazing be allowed in all the desired areas except for the Colcord/Turkey pasture. Instead, they claimed that the Forest Service only weighed two options – allowing grazing everywhere or allowing grazing nowhere.

Neighbors of the Mogollon Rim sued the Forest Service in 2020, claiming violations of the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act.

U.s. District Judge Douglas Rayes issued summary judgment in favor of the government this past January and Neighbors of the Mogollon Rim appealed.

On Wednesday, Neighbors of the Mogollon Rim attorney Andrew Missel asked the Ninth Circuit panel to remand with instructions to order the Forest Service to prepare a new environmental impact statement and reassess its plan with his clients’ third option in mind.

Missel said that when weighing alternatives, one of the service’s options must be to keep the status quo.

“The agencies should have compared the preferred alternative to something similar to what they’re doing,” he said. Now allowing grazing on the Colcord/Turkey pasture would be closer to that status quo, he argued.

But Andrew Smith, attorney for the Forest Service, disagreed.

“The environmental effects of grazing or not grazing are already captured by these two different alternatives,” he said. “The two options encompass the plaintiff’s proposed action.”

Because anything in between allowing no grazing and allowing grazing everywhere falls into a range of environmental impact already studied, Smith said, there’s no need to consider a middle ground when conducting an environmental assessment.

U.S. Circuit Judge Michael Hawkins asked Smith how homeowners will fare with the new regulations.

“There might be cows in their backyard,” the Bill Clinton appointee said. “There might be sheep in their front yard.”

Smith said homeowners who don’t want livestock near their house can build fences.

Missel said that remedy is unrealistic, as some community members can’t afford fencing, and others don’t want it for aesthetic reasons.

Under the new plan, grazing was first allowed in the area in 2021. Smith said the Forest Service didn't receive any complaints from homeowners about livestock on their land.

Hawkins asked each attorney if they’d attempted mediation.

“Why not sit down and talk about it?” he asked Smith.

Both Smith and Missel said their clients are open to mediation.

It’s unclear when the panel will make its decision, but Hawkins made it clear Neighbors of the Mogollon Rim won’t be able to eradicate grazing entirely.

“(Your clients) understand that cattle and sheep have grazed in this area for 150 years?” he told Missel. “So, the idea for closing grazing entirely is probably not possible.”

U.S. Circuit Judges Morgan Christen, a Barack Obama appointee, and Clinton appointee Susan Graber joined Hawkins on the panel.

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