Appellate court upholds grazing on federal lands

Issue Date: April 13, 2022

By Kevin Hecteman

Ranchers with grazing permits in the Stanislaus National Forest and elsewhere are no longer in danger of being run off their allotments after a federal appeals court rejected an appeal from environmental groups seeking to hamstring cattle grazing on federal lands.

The Central Sierra Environmental Resource Center and Sierra Forest Legacy groups sued in federal court in March 2017, alleging violations of the Clean Water Act, Environmental Policy Act and Forest Management Act. Specifically, the suit challenged cattle-grazing allotments on Bell Meadow, Eagle Meadow and Herring Creek allotments authorized by the U.S. Forest Service.

California Farm Bureau Senior Counsel Kari Fisher said the Forest Service and state water boards have had a deal in place for more than 40 years that no additional water quality permits are needed under state law. The agreement recognizes that the Forest Service practices for protection of water quality on federal land comply with state water quality laws. The environmental groups' lawsuit argued the deal was void.

"It's a heavily managed grazing system," said Sherri Brennan, a rancher whose family has been running cattle on forest-land allotments for decades. "Those best-management practices are in place to meet the agreements that the agency has with the water boards."

Dick Gaiser, chairman of the Stanislaus National Forest Grazing Association, said all of the allotments are used by family operations, some of which have been running cattle on them for five or six generations. "We as a group deal very well and work very well with the U.S. Forest Service on our allotments," Gaiser said. "We try to keep the lines of communication open, and we work with them, and I think that's been very beneficial for us."

California Farm Bureau, along with several other organizations, intervened in the case on behalf of the Forest Service.

Fisher said Central Sierra Environmental Resource Center "conducted monitoring to try to show why grazing should no longer happen in the forest areas." She explained that "this was their attempt to prevent grazing or severely restrict grazing by alleging that the Forest Service doesn't have permits under state law."

After the plaintiffs' claims regarding the National Environmental Policy Act were dropped, a district court ruled in favor of the Forest Service and the ranchers in August 2019. The environmental groups appealed the Clean Water Act portion of the ruling, and on April 8, the U.S. Court of Appeals for the Ninth Circuit upheld the lower court's decision. Developing a program of implementation of water-quality objectives, the court ruled, is outside its jurisdiction.

The regional board sets water quality objectives by considering conditions that can "reasonably be achieved through the coordinated control of all factors which affect water quality in the area," the court ruled. Nothing in the Porter-Cologne Water Quality Control Act of 1969, under which regional boards regulate water quality and discharges, "would make a discharger directly liable for violating a water quality objective contained in a basin plan that is not contained in the applicable (permits)," the court ruled.

Fisher said the ruling means that one cannot be found liable for something that is not in the permit. She said ranchers receive instructions from the Forest Service before they are allowed to release cattle to graze, based on the Forest Service's evaluation of the land and conditions.

"They have to manage cattle on the allotments in a way that is protective of the environment," Fisher said of the ranchers. "It's not like they just have free range of the whole grazing area. They constantly have to move the cows throughout the allotment so that no cow is in that area too long to destroy the area, including riparian growth, streambanks, meadows and water quality."

Having to secure state permits on top of federal permits would have resulted in ranchers spending more time wrangling paperwork than cattle, dealing with "duplicative regulations, duplicative management practices, duplicative reporting," Fisher said. "In our mind—which was affirmed by the district court and the 9th Circuit—the Forest Service was in compliance with both state and federal water-quality regulations and therefore didn't need additional permits," she said.

Brennan said the grazing allotments all "have a private-property component associated with them." She added, "That means if you step away from the public-lands piece, and you don't have the capacity, you could be stepping away from ranching entirely. It certainly would have been a make or break for our operation."

This is the second time this year a court has ruled that regulating water is not its job. In February, a state appeals court turned aside claims in Monterey Coastkeeper v. Central Coast Water Quality Control Board that state water regulators were not doing their jobs and that the court needed to take over.

"We've had a lot of partners in this litigation, and those partnerships are so important," Brennan said, naming Farm Bureau, the California Cattlemen's Association and local grazing associations and permittees. "I just personally would like to say thank you."

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at khecteman@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.