In Oregon suit, greens take new poke at public-lands grazing

By TIM FOUGHT / KGW.com 5/05/2007

Environmentalists are making a new attempt to reduce the number of cattle on federal land in the Columbia River Basin and perhaps elsewhere in the West, arguing that federal anti-pollution laws should be applied to grazing permits.

A federal suit filed last week makes a test case out of a permit issued to Bill Colvin, 66, a rancher along a tributary of the John Day River in Eastern Oregon.

The aim is to get more streamside vegetation, cooler rivers and more steelhead and other threatened fish, a backer of the suit said.

Environmentalists have long argued that cattle and sheep trample and eat the vegetation along Western streams, which means streams get warmer as they flow without shade and carry more sediment from erosion — both conditions that hurt fish.

But their efforts to increase regulatory pressure on grazing have often been rebuffed.

Ranchers argue that they're using land that can't produce crops and grazing doesn't cause the damage that environmentalists allege.

Public lands are an integral part of many Western livestock operations, with ranchers combining privately held land with tracts they lease from the government.

Colvin estimates that he'd have to cut his Grant County herd of 400 Hereford and Angus beef cattle in half should the environmentalists win, but neither side had an overall estimate of how the suit could affect grazing in the John Day watershed, the Columbia Basin or the West.

In the suit, seven environmental groups based in Oregon and the West have resurrected an argument thought to have been put to rest in the 1990s.

In 1996, a federal judge in Portland ruled that state agencies such as Oregon's Department of Environmental Quality had to certify that cattle grazed on federal lands wouldn't cause streams to be degraded. The department enforces the federal Clean Water Act.

But two years later the 9th U.S. Circuit Court of Appeals struck down the decision. It said what are called "non-point" sources of runoff such as livestock grazing are not subject to review under the act. "Non-point" sources, which can also include runoff from paved-over urban areas, are distinguished from readily identifiable "point" sources such as water treatment or factory drains.

The new suit cites a 2006 Supreme Court's decision from a Maine case involving a hydroelectric dam. The question was whether the water from a dam's reservoir is "discharge" into the stream below the dam. The court said it is, and the decision was interpreted as meaning that states have broader power than thought to regulate the quality of rivers.

At the time, Maine's attorney general, Steven Rowe, predicted the case would have an impact "well beyond the state of Maine."

The suit filed last week in Oregon said the Supreme Court's definition of discharges is broad and calls into question the appeals court ruling from 1998.

The Forest Service, which issues grazing permits, won't comment on pending litigation, said Tom Knappenberger, spokesman for the U.S. Forest Service's Pacific Northwest region.

"This is all deja vu for us," said Bill Marlett, executive director of the Oregon Natural Desert Association, which lost the 1990s suit and helped to file the new suit. "We've been down this path before."

Marlett said that in the Columbia Basin, there are about 10 million acres of public lands grazing allotments — grazing areas subdivided into pastures. In the John Day watershed, which drains into the Columbia, there are about 3 million acres.

But, Marlett said, many of the federal-lands pastures don't have streams.

"We've highlighted the John Day because it's a world-class resource," Marlett said. The stream is the longest undammed river in the West after the Yellowstone, he said, and like many in the basin runs so warm that it couldn't pass muster if subjected to the terms of the Clean Water Act.

In most cases, the key to lowering the temperature of a stream is to get the cattle off the banks so that vegetation can grow and provide shade, Marlett said. He said it's usually not necessary to plant anything — bankside shrubs and trees will come back rapidly on their own after five to 10 years.

"It's real obvious when you take the animals off," he said.

Rancher John O'Keeffe of Adel in Lake County, chair of a public lands committee of the Oregon Cattlemen's Association, said he believes "we could run the cows we have now" and comply with the permit process the environmentalists seek. He argues that the environmentalists aim to clog the bureaucracy to hamper grazers.

He also argues that the water standards were set too high. "Some of the streams are warmer than the standard," he said. "I think they were warmer pre-settlement."

Jeff Eisenberg, director of public lands for the National Cattlemen's Beef Association, said the Supreme Court's holding in the Maine case shouldn't apply in the Oregon case.

In the Maine case, the court dealt with a dam and defined the water in the reservoir behind the dam as a discharge flowing into the river below the dam.

"Here you have a bunch of random strolling cattle," he said. "As a commonsense thing, it doesn't make sense to us."