The “Restoration Grazing” Argument Fell Flat in Court

Last summer, in a remote corner of the Bighorn Mountains of Wyoming, in the one spot with just a little cell reception, I sat in my car listening by phone to attorneys argue before the U.S. District Court of Oregon more than a thousand miles away. The attorneys for conservation groups (Western Watersheds Project, Center for Biological Diversity, and WildEarth Guardians) faced off against the Bureau of Land Management, and both sides presented their strongest science-based cases (transcripts: Day 1 and Day 2) over whether or not a preliminary injunction was warranted to block Dwight and Steven Hammonds’ livestock from grazing on federal public lands. The preliminary injunction (PI) hearing turned on whether allowing the Hammonds’ cattle back onto public lands that had been rested for five years would result in “irreparable harm” while the case was wending its way towards a ruling on the merits. To make that determination, the judge would weigh the longstanding scientific controversy over whether livestock grazing is more likely to benefit or damage public lands.

Only now that the Department of Justice has abandoned its appeal of the court’s revocation of the Hammond grazing allotments can this story be told.

Hammonds livestock, 2019.

The Hammonds had previously been convicted of felony arson, setting fires on their Bureau of Land Management grazing leases to get rid of native shrubs and trees they didn’t like, and to create more grass to fatten their cattle. After President Trump issued a pardon that let them out of prison early, then-Interior Secretary Ryan Zinke interceded in an ongoing legal dispute, personally deciding it in the Hammonds’ favor and reinstating their federal-land grazing privileges that had been revoked for violations of the terms of their grazing lease. Later, we won the case on the merits and the leases were permanently revoked.

The real fireworks in the PI hearing emerged in the cross-examination of expert witnesses, in which the key assumptions of the BLM’s “restoration grazing” hypothesis were put to the test: The fallacy that livestock might reduce fire risk or combat invasive weeds, and is somehow compatible with sage grouse and rare trout conservation.

Though “restoration grazing” was not mentioned by name in this case, the Trump Administration’s BLM and its head William Perry Pendley are going all in on the magical thinking that the solution to any land-health problem is to add more cattle and sheep under this banner. They’ve never seen a problem livestock couldn’t fix. But many of their theories about the wonders of this miracle cure don’t hold up under the scrutiny of long-established science, and this case highlighted some key discrepancies between what BLM wants to believe, and what the scientists actually know to be true.

While the Hammonds were in prison, the public lands where they formerly held federal grazing leases sat vacant. Without cattle to impact the vegetation and streams, the land had five years to naturally recover. The BLM and Harney County claimed that putting cows out on the allotments again would reduce fire risk, and indeed would even restore lands damaged by the previous decades of livestock abuse. We argued that, in fact, the return of cattle to these recovering public lands would cause irreparable harm to vegetation, native fishes, and sage grouse habitats.

Cabin Pasture before grazing, September 2019.

Cabin Pasture after grazing, October 2019.

Dr. Clait Braun, who formerly led Colorado’s sage grouse research program, testified that grazing and fire had eliminated sagebrush and destroyed the habitat for the local sage-grouse population, which had collapsed. Braun added that “a major impediment to sage-grouse recovery across the West, the major reason why sage-grouse are in dire straits, livestock do a number of different things to rangeland. Some of them are not positive for sage-grouse.” Braun also noted that livestock grazing that removes 50 percent of the grass, as BLM had authorized on the Hammond grazing leases, was “very negative” for sage-grouse. As to the role of livestock in the cheatgrass-fire cycle, Braun stated, “Grazing will increase cheatgrass, which will increase the likelihood of fire.”

Dr. Boone Kauffman, a scientist from Oregon State University, next testified for the conservation groups, stating that, even if grazing were substantially reduced (BLM proposed a 30 percent forage use for grazing in 2019 as a compromise), the grazing pressure on streamside habitats still could be as great as 75 to 90 percent forage use, due to the preference of cattle for cool, moist areas. This is far heavier grazing than willows and cottonwood saplings can survive, according to Kauffman’s testimony. These streamside (or “riparian”) areas, according to Kauffman, covered only 1 to 2 percent of the landscape but were essential to 83 to 84 percent of the wildlife species that inhabited these landscapes. Kauffman testified that willows on the Hammond leases showed signs of past damage from livestock, but willows and the streambanks they sheltered were recovering after 5 years of rest from cattle. Redband trout were particularly vulnerable to impacts from cattle, because they require clean gravels for spawning that suffer from siltation. Sacrificing this area’s intermittent streams at the headwaters to livestock grazing, as BLM was doing according to Kauffman, was causing reverberating effects to the larger, trout-bearing streams and rivers downstream.

Kauffman also testified that while ranchers universally claim their grazing levels are sustainable, these same levels of grazing cause degradation of habitat for trout, salmon, sage grouse, and 320 other species native to sagebrush ecosystems.

Big Bridge Creek, ungrazed 2019.

Little Fir Creek after grazing 2019

Little Fir Creek after grazing, 2019.

Matthew Obradovich, a BLM biologist, testified, “I wouldn’t expect grazing there to affect sage-grouse habitat in any way, shape, or form.” He stated that the 50 percent forage utilization standard should not negatively affect the grasses, leaving enough behind for them to grow the following year. Obradovich argued that rest from grazing would cause cheatgrass to expand. Livestock grazing, on the other hand, “would have the impact of reducing the fine fuels in a fire,” according to his testimony, while rest from grazing would result in more dead material for native grasses, causing fires to burn hotter. On cross-examination, Obradovich did admit that grazing can serve as a vector for the spread of invasive grasses, and that livestock do not eat cheatgrass once it is dead and dry. He also was forced to concede that improper grazing can reduce vegetation cover, making habitat less suitable for sage grouse.

BLM tapped Lindsay Davies, a BLM planning coordinator, to make the case that cattle grazing on the allotments would maintain healthy riparian (or streamside) vegetation and habitat, a key question since the rare redband trout is present in streams on the lands within the Hammond grazing leases. She argued that the streams in the grazing allotments at issue showed no signs of livestock-related damage and that these streams had a history of meeting federal “Properly Functioning Condition” standards for riparian areas. Allowing renewed livestock grazing would cause no irreparable harms to redband trout, according to Davies.

The defense also brought in Dr. Tamzen Stringham, a University of Nevada Reno professor of agriculture, to argue that overgrazing by cattle was something that happened decades ago, but “abusive grazing” is something “that we no longer do.” In her testimony, Stringham claimed that livestock grazing could be used to reduce cheatgrass infestations and increase native bunchgrasses. Stringham also provided written testimony that grazing restrictions on public lands could result in private ranch lands being tilled for row crops, destroying their value as sage grouse habitat. Stringham characterized the odds of irreparable damage, or even severe degradation, from reinstating livestock on Hammond’s allotments as “zero” on a scale of 1 to 100.

For decades, conservationists have cited science showing that livestock have major negative impacts on western lands and wildlife. Over the same period, the livestock industry has claimed that livestock do no damage, and not only that, they are beneficial or even necessary for the health of the land and wildlife. But the reality across the West is that the levels of livestock grazing commonly authorized by the BLM cause overgrazing that damages the land, degrades trout streams, and destroys wildlife habitats by accelerating cheatgrass invasions.

The beauty of litigation is that each side has an opportunity to bring their strongest arguments and best evidence to bear, and a judge with no ties to either side decides the merits of the arguments and the strength of the testimony. In contrast to controversies in the scientific literature, which can drag on for decades with no resolution, a court case ends with a final ruling. One side is declared the winner, the other declared the loser.

In his ruling, the judge granted a partial injunction, carefully parsing the remedy to exclude grazing from fragile areas, allowing fewer livestock in other areas, and setting the utilization threshold below 30 percent which “mitigates the irreparable harm found by the Court arising from the grazing authorized by the Permit.”

Addressing the argument that cattle could be used to reduce fire risk, the judge concurred with the Plaintiffs’ experts and stated, “Grazing to reduce fire intensity requires a reduction in exotic and invasive grasses, but that would require that first the native bunchgrasses and forbs be overgrazed, which is harmful,” and “sagebrush steppe in the absence of grazing is more fire resistant.”

The judge also declared in his “findings of fact” that the permitted grazing on these allotments was likely to harm sage grouse and their habitats by:

(1) reducing tall grasses and forbs during breeding and nesting season in the allotments;

(2) reducing cover for nesting hens and chicks to avoid predation;

(3) increasing the spread of cheatgrass;

(4) reducing the chances of sagebrush recovery and increasing the chances of juniper expansion;

(5) reducing the forage available to nesting hens and chicks;

(6) creating habitat fragmentation, including with the SFA south of Steens Mountain; and

(7) degrading the riparian areas and wet meadows of the Hardie Summer allotment.

For redband trout, the judge found that,

The permitted grazing is likely to cause harm to redband trout habitat and status by:

(1) increasing water temperature;

(2) decreasing willows and other shade-providing cover;

(3) trampling of redds;

(4) causing streambank damage;

(5) removing riparian vegetation; and

(6) causing loss of large woody debris. Because the permitted grazing in the Hardie Summer allotment is late in the season and cattle will be drawn to riparian areas, this harm will be immediate.

The judge weighed the fantasy narrative that cattle are harmless or even beneficial to ecological health of western public lands, then ruled that even one year of livestock grazing at the standard level of livestock grazing was likely to cause irreparable harm to sensitive lands on the Hammond allotments. As it happened, after two months of grazing at even the reduced levels set by the judge in the injunction, the Plaintiffs’ experts documented extensive damage to riparian areas on the allotments, with forage use ranging from 43 to 87 percent.

Conservationists need to keep reminding the Bureau of Land Management, the U.S. Forest Service, and the public, that the fabled benefits of “restoration grazing” have been vetted by an impartial court system that examined the evidence presented by both sides, and came to the conclusion that cattle would most likely harm — not heal — native ecosystems. This decisive victory for the science is a rejection of all the major components of the livestock industry’s attempt to sell cattle and sheep on public lands as “restoration grazing.”

From my perch in the Bighorn Mountains, public lands stretched away for miles in every direction that could benefit from the cessation or reduction of livestock grazing. I hope that BLM takes the lessons in Hammonds court order to heart and applies some scientific knowledge to their management of public lands in eastern Oregon, and on the rest of the 150 million acres managed by the agency.

More articles by:

Erik Molvar is a wildlife biologist and is the Laramie, Wyoming-based Executive Director of Western Watersheds Project, a nonprofit group dedicated to protecting and restoring watersheds and wildlife on western public lands.

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