Court defends property rights, narrows the scope of ESA

Published May 1, 2002

It took a quarter of a million dollars and three years, but rancher Jeff Menges and the Arizona Cattle Growers’ Association (ACGA) have won a major ruling on how cattle grazing can occur on federal public lands in Arizona.

On December 17, the Ninth Circuit Court in San Francisco ruled three to zero that the Bureau of Land Management and U.S. Forest Service could not prohibit cattle grazing on public lands designated as “critical habitat” for endangered species, but where there is no sign any endangered species is currently living on the federal land.

“We’re really pleased with the outcome of the ruling,” Menges said in an interview with the Eastern Arizona Courier.

“I think the ruling narrows the scope of the ESA and when it can be applied. I think the Clinton administration had it way pulled to the left and this will help pull it back to the center,” he said.

“Incidental take” statements wrongly issued

“They were implementing the ESA illegally. They were issuing incidental take statements when the species weren’t even present,” Menges said.

When someone uses federal land under permit, the federal agency is required to review the possible environmental impact and endangered species impact of the proposed use of public land. Agencies like BLM and USFS sometimes allow grazing on parcels subject to a finding of an “incidental take” or killing of an endangered species, subject to a promise of behavior changes by the allotment user.

“The take statements just kill you,” Menges said. “The prescription can include cattle reduction or cattle removal. Even though the species weren’t present, they said you would be taking if the cattle were in the river even when no razorback suckers were present.”

Menges said the ACGA’s costs for pursuing two legal challenges, one against BLM and one against USFS, have been “between $200,000 and $250,000.”

The ACGA challenged the federal interpretation of the Endangered Species Act because, according to Menges, it shut off access to about 400,000 acres of federal public land from cattle grazing. The cattle growers hope to recover most of their legal costs in challenging what Menges called an illegal interpretation of the ESA.

“Hopefully we can recover part of it. It would be from the Forest Service, BLM, and U.S. Fish and Wildlife Service, the government agencies. We will go back to the courts and ask for our attorneys fees,” he said.

Menges said he attended the December 17 hearing in San Francisco where the unanimous decision was rendered.

“We think the ruling was right on with the law. We were really pleased with the reversal of the Cow Flat Allotment in Greenlee County, which belongs to Bill and Barbara Marks. There are loach minnows on part of that, but there wasn’t any proof livestock would injure them,” he said. “They (the judges) said there has to be a causal connection, something that causes death or injury, before there is death or injury” under the Endangered Species Act.

Menges said the federal agencies were claiming an “incidental take” of endangered species—meaning the death of protected animals—because even though no such animals were present in the allotments, they might become present in the future, some of the land was designated as critical habitat for various fish species, and even upland cattle grazing might cause lowland problems by increased runoff and siltation into the Blue River, Eagle Creek, and other waterways in southeastern Arizona.

That worry is what prompted the Southwest Center for Biological Diversity, based in Tucson, to file a lawsuit in 1997 against BLM and the Forest Service claiming the agencies were not properly enforcing the Endangered Species Act in incidental take episodes. When the agencies revised their grazing allotment rules to consider hypothetical losses of protected species, Menges said ACGA filed its own court challenge.

“We felt we had no choice but to challenge it,” he said.

Habitat loss called “most important harm”

Martin Taylor, coordinator of the grazing reform program for the Center for Biological Diversity, defended the agencies in their view that animals were harmed even when not present.

“The harm standard may make legal sense but it makes no biological or scientific sense because it demands pretty much to find a dead animal trampled by a cow to meet the standard,” he said. “The standard ignores the most important source of harm facing most endangered species, which is habitat degradation. Habitat loss need not kill animals directly. It usually prevents them from feeding or breeding at all.”

The very absence of a species from otherwise suitable habitat, to a biologist, is an indication of ongoing harm due to habitat degradation. Following the narrow legal standard, however, this is called “no effect,'” Taylor said.

“The Fish and Wildlife Service needs to focus its attention on critical habitat designation, for which the standard of harm is stronger and sounder biologically. The law requires agencies to avoid degradation of designated critical habitat. This should finally convince the service that endangered species need their critical habitat and they need it as soon as possible,” he said.

William Civish, field manager for the Safford BLM Field Office, said more than a year ago that his agency has worked to control cattle impact on endangered species.

“Over the last 20 years, we’ve worked with the grazing community to move cattle out of the bottom and into the uplands (around the Gila Box Riparian Area). Ten of the ranchers who graze the riparian corridor have voluntarily removed their cattle out of the river bottom,” Civish said.

Menges is the president of the ACGA. He raises about 500 head of cattle on giant ranches in Graham and Greenlee counties. Most of the grazing acreage he uses is leased from BLM.

He said grazing cattle on public land and saving endangered species are not mutually incompatible.

“If the law were implemented properly, 90 percent of the Endangered Species Act problems with cattlemen in the state would go away,” he said.

This article first appeared in the Eastern Arizona Courier in Safford, Arizona. Tom Jackson King is its managing editor.

For more information …

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