9th Circuit orders feds to revisit OK of livestock grazing in Tonto Nat'l Forest
A Ninth Circuit panel on Friday sided with Arizona property owners who accused the U.S. Forest Service of violating the law in approving cattle grazing in the Tonto National Forest.
After 40 years of no grazing on the Colcord/Turkey pasture in a portion of the forest called the Bar X, the Forest Service updated its management plan to open that pasture to grazing, doubling the number of livestock allowed on any given pasture in the Bar X at a time. Neighbors of the Mogollon Rim, an organization of homeowners in the area, claims the grazing will cause 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 accuses the Forest Service of violating the National Environmental Policy Act because the Forest Service didn’t consider the proposed alternative that grazing be allowed in all the desired areas except for the Colcord/Turkey pasture. Instead, they claim 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, citing 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, deciding the Forest Service complied with the law when it prepared its environmental assessment and found no significant impact. Neighbors of the Mogollon Rim appealed.
A Ninth Circuit panel heard the case in February. Judges encouraged both parties to seek mediation, but by April it was clear that the parties wouldn’t make peace on their own. The case was resubmitted to the panel on Wednesday, and the panel reversed Rayes' order two days later, writing in an unpublished memorandum that the Forest Service should have considered more alternatives than just the proposed action and a “no-grazing” alternative.
“The Forest Service failed to give full and meaningful consideration to plaintiff’s proposed alternative, which maintains the status quo as to the closure of the Colcord/Turkey Pasture to grazing,” the panel wrote.
The Forest Service’s environmental assessment rejected the proposed alternative “the scope of current management places it within the range of alternatives between the no grazing and the proposed action,” according to court documents. But the panel argued that it was still critical to assess the alternative on its own.
“To be sure, there is no minimum number of alternatives that must be considered: the focus is on the substance of the alternatives, not their number,” the panel wrote.
It also wrote that the Forest Service failed to consider the effects of the agency’s actions on the surrounding communities, refuting the service’s claims that the burden to prevent stray cattle from coming onto private land is on the homeowners.
“For the purposes of NEPA, the Arizona law does not place a burden on landowners of constructing fences to avoid conflicts,” the panel wrote.
The panel declined to reach a decision on both the plaintiff’s National Forest Management Act claim and their argument that the Forest Service’s decision not to prepare an environmental impact statement as “arbitrary and capricious.”
Instead, the panel ordered the Judge Rayes to partially vacate the environmental assessment and accompanying decision to allow cattle grazing on the Colcord/Turkey pasture. Rayes must also direct the Forest Service to determine whether to prepare a new environmental assessment or to prepare an environmental impact statement for grazing in the area.
"That shoddy analysis undermined the agency's conclusions about the effects of cattle grazing on a lovely corner of the Tonto National Forest just below the Mogollon Rim," Andrew Missel, attorney on behalf of the Neighbors of the Mogollon Rim, said in a statement. "Part of the area had not been grazed for 40 years, and the return of cattle would have significant impacts on wildlife, recreationists, and residents of the area, but the agency ignored many of those impacts. Now that area will remain closed until the agency fixes its analysis, which we think will find that cattle grazing is inappropriate in the area."
The panel is made up of Bill Clinton appointees U.S. Circuit Judges Michael Hawkins and Susan Graber, U.S. Circuit Judge Morgan Christen, a Barack Obama appointee.
The Forest Service didn't reply to a request for comment.