billingsgazette.com - March 11, 2010

BY: Associated Press

Court favors sage grouse in Montana grazing lawsuit

HELENA - The U.S. Forest Service must re-examine how livestock grazing affects sage grouse habitat in southwestern Montana after a federal appeals court ruled the agency's original assessment was not reliable.

The 9th U.S. Circuit Court of Appeals on Tuesday ordered the Forest Service to prepare a new environmental assessment for its livestock allotments in the 48,000-acre Antelope Basin, part of the Beaverhead-Deerlodge National Forest. Tens of thousands of acres have been identified as sage grouse habitat, but few of the brown chicken-sized birds can currently be found there.

The current livestock allotment plan remains in place until a new assessment is prepared.

The federal government last week determined in an unrelated finding that the sage grouse warranted listing as threatened or endangered, but there were other species considered to be in greater danger that took priority.

The latest court ruling means the agency will have to ensure that livestock grazing will not harm the recovery of the sage grouse and other species native to the Antelope Basin, Michael Garrity, executive director of the Alliance for the Wild Rockies, said Wednesday.

"If we want to recover the sage grouse population and keep them from being listed, we need to restore habitat that has been previously degraded," he said.

Garrity's alliance and two other environmental groups - the Native Ecosystems Council and the Ecology Center - sued the Forest Service over its 2003 plan to update the allotments that determine when and how long livestock can graze in that section of the Beaverhead-Deerlodge National Forest.

The environmental groups said the plan was skewed toward livestock at the expense of sage grouse and other wildlife dependent on sagebrush habitats. Beaver and Madison counties and ranchers who graze cattle in the basin joined the lawsuit in defense of the Forest Service.

A U.S. district judge dismissed the case in 2006, saying the Beaverhead-Deerlodge plan to manage the area showed it offered the birds sufficient protection.

The appeals court agreed with the environmental groups in a 2-1 decision that the Forest Service had not conducted a reliable assessment of how its plan would affect sage grouse habitat - because the agency hadn't studied any actual sage grouse in the area, as it is required to do for any programs within the Beaverhead-Deerlodge forest. The disputed area makes up just 1.4 percent of the forest.

"There is simply no basis to evaluate the Forest Service's assertion that the sagebrush habitat is sufficient to sustain viable sage grouse populations when sage grouse cannot be found in the project area," Judge Johnnie B. Rawlinson said in his majority opinion.

About 40 percent of the 48,000 acres are potential sage grouse habitat, and 1,900 of those acres have potential for sage grouse nesting and early brood-rearing, according to the appeals court opinion. But there are no actual birds to be found.

The Forest Service drove the sage grouse from the area by spraying herbicides and by burning thousands of acres to produce more grass for cattle, Garrity said.

"We want them to restore sage grouse. and if they can do that and still have grazing, that's fine. But they have been giving the cattle priority over the sage grouse," Garrity said.

In a dissent, Chief Judge Alex Kozinski said wrote that the decision overstepped the court's authority. It's not clear that all the sage grouse are gone from the area, and even if they are, that may not undermine the Forest Service's analysis of the habitat, Kozinski said.

The decision also will set a precedent that could make it more difficult for the Forest Service to implement its management plans, Kozinski said.

The Forest Service in Missoula did not return a call for comment on Wednesday.

Kim Baker, head of the Montana Cattlemen's Association, referred questions to association member Wally Congdon, who did not immediately return a call for comment Thursday.