Stevens Co. WA et al
vs. Little Pend Oreille NWR
Update – 8-30-07
From: Friends
of LPO member, Don Tryon,
To: Supporters
of fish, wildlife and the National Wildlife Refuge System
Department
of Interior in process of violating National Wildlife Refuge Comprehensive
Conservation Plan.
Deputy Interior Secretary Todd Willens promoting grazing on Little
Background
The 40,000 plus acre Little Pend Oreille National
Wildlife Refuge lies about an hour and a half north of Spokane, Washington;
North of Chewelah and East of Colville in the Selkirk Mountains, adjacent to
other federal, state and private lands.
The Refuge is largely comprised of homestead claims
classified as “submarginal” by the Resettlement
Administration. In 1935, Refuge area
homesteads were acquired through the Soil Conservation Service as public lands
for rehabilitation. The National
Wildlife Refuge was created May 2, 1939 by Executive Order 8104.
The Fish and Wildlife Service managed the Refuge
until 1965, when the Washington Department of Fish and Wildlife assumed
management responsibility under a cooperative agreement. Known as “the
Subsequent to an internal audit by the Inspector
General, the Fish and Wildlife Service resumed management of several refuges,
including the Little
The Fish and Wildlife Service staff began a plan
shortly after reassuming management. The
Comprehensive Conservation Planning method was adopted post Refuge System
Improvement Act of 1997. A Draft CCP/EIS
was available in May 1999. A final
CCP/EIS followed in April 2000. The
majority of public comments to the plan supported management as proposed by
Refuge staff (Alternative E).
The Washington Department of Fish and Wildlife’s
reply to the Draft CCP:
The WDFW
strongly supports the Habitat Restoration Program identified in the Preferred
Alternative. The selection of
Alternative E as the preferred alternative is an appropriate decision based on
using best available science, public input and a consideration of compatible
activities.
The plan adopted three broad goals:
Some significant management changes included:
The Fish and Wildlife Service elected to allow
grazing through 2005, until completion of a Habitat Management Plan. That decision, likely bowing to political
pressure, was justified as permitting Refuge permitees
time to find alternative pasturage and to adjust their ranching programs.
The LPO Refuge CCP/EIS describes and lists common
adverse impacts to soils, fish and wildlife, ecological processes, and
long-term biological integrity of habitats related to grazing on the Refuge. It also cites substantial evidence concerning
adverse grazing impacts in the several studies, workshops, site reviews,
inventories and evaluations completed on the Refuge during the planning and
The Refuge System Improvement Act relies on
determinations of compatibility. A
regular, annual grazing program was determined not compatible because the
Refuge Manager found that it materially interfered or detracted from the
ability of the Refuge to achieve the purpose(s) of the Refuge.
Management Direction for Grazing in the CCP:
No grazing
objectives are adopted under the CCP.
The annual livestock grazing will continue at its present intensity
through the 2004 grazing season, after which it will be discontinued. Subsequent grazing will be used only as a
wildlife management tool to achieve a specific habitat objective.
The
Some disenchanted ranchers, horseback riders and
others - accustomed to what they viewed as multiple-use management by the state
and hostile to the restrictive “wildlife first” management proposed by the
Refuge - complained to politicians at all levels. In
Legal Action
On May 15, 2006, the
Commissioners voted to lead a lawsuit. The 39 pg. suit was filed 5/31/06, Case
Number: 06-CV-0156-
The suit alleges violations of NEPA, Administrative
Procedures Act, National Wildlife Refuge System Administration Act and the
Fifth Amendment to the
The document touches on several themes; these seem
most important:
1. The County
argues FWS actions were capricious and arbitrary. In 1978, the State Department of Wildlife
partnered with the Natural Resource Conservation Service and ranchers to
develop and implement a LPO grazing plan.
In 1997 the Natural Resources Conservation Service, Stevens County
Conservation District and affected ranchers submitted a grazing strategy to the
FWS.
Citing 28 published studies (some are popular
magazine articles), that grazing strategy states, “There is solid evidence that
proper grazing is beneficial to the environment.” The County argues the FWS failed to give due
consideration to the grazing plan developed by NRCS and the Conservation
District.
2. The suit
states, “The FWS also failed to consider the property rights of ranchers
protected by the due process clause of the Constitution.” “These ranching families are experiencing
severe financial hardship, as well as the loss of the custom, cultural and
aesthetic values of raising livestock on the LPO which they have enjoyed for
many decades.” The County argues that
termination of annual grazing by these ranches constitutes a taking of a property
interest.
3. The County
argues grazing decisions should be made in the Habitat Management Plan (
4. The suit
claims, “Stevens County Conservation District is authorized by State law to
prepare and promote comprehensive long-range programs recommending the
conservation and use of all renewable natural resources within the District’s
jurisdiction.” (Note – The Stevens
County Commissioners apparently misinterpret state conservation law and believe
it implies the county has authority over all conservation issues. On February 26, 2007, they wrote a letter to
the Director of the National Park Service demanding she replace the current
Superintendent of
Ms. Lori Caramanian,
Significant comment:
Defendants further aver that none
of the deeds for lands acquired for the Refuge reserve a right to graze on
Refuge lands or refer to grazing in any way. Also, Defendants also aver that Executive Order 8104....does not include
grazing as a purpose of the Refuge.
GENERAL DENIAL
Defendants deny any allegations of the
Complaint, whether express or implied, that are not expressly admitted, denied,
or qualified herein.
AFFIRMATIVE DEFENSES
Rick Eichstaedt, Center for
Justice, Spokane and Brian Segee, Defenders of
Wildlife, Washington D.C., filed a Motion to Intervene, and a Memorandum of
Support and Reply to Plaintiffs’ Opposition and Federal Governments Response.
The Friends of the Little
Intervenor status was granted for Defendors and Friends.
Parties to the case filed further documents with the
court emphasizing their positions.
Politics
On January 10, 2007 a meeting concerning grazing on
the Little Pend Oreille National Wildlife Refuge was held at the Fish and
Wildlife Service Regional Office in Portland.
A letter dated February 6 (obtained by FOIA request) from Jeff Eisenberg
(Executive Director, Public Lands Council; representative, National Cattlemen’s
Beef Association) addressed to Ren Lohoefener, Regional Director, U.S. Fish and Wildlife
Service documents the meeting.
We feel the
meeting was productive by suggesting a roadmap for determining whether the
refuge can support meaningful livestock grazing while meeting the fish and
wildlife statutory objectives for the refuge.
We will
engage the federal Riparian Service Team to evaluate the livestock grazing
potential and if the refuge can meet its objective and support a livestock
grazing program.
If the
Refuge is judged capable of meeting its purpose while sustaining a livestock
program, the FWS will determine whether amending the habitat Management Plan
for the LPO is needed, and if additional NEPA would have to be done to reflect
the proposed changes to the management plan....
Ideally, the plan, should one be produced, would be completed in time
for producers to make decisions about stocking plans for the 2008 grazing season,
around January 2008.
Ren Lohoefener
(FWS) replied to Mr. Eisenberg in a letter dated Feb 14.
As you know,
the Fish and Wildlife (Service) has already contacted the Federal Riparian
Service Team and they have indicated an interest in performing the review.
According to Fish and Wildlife Service personnel,
retired personnel and other government employees, the recommendation (maybe
suggestion or order) to review the LPO grazing issue was made by new Deputy
Interior Secretary Todd Willens (a political appointee
- the same Todd Willens who did natural resource work
for Representative Richard Pombo).
Supporters of the LPO Refuge see this as an example
of political meddling of the worst kind.
The strategy apparently agreed to by the Fish and Wildlife Service
Regional Director and the National Cattlemen’s Association is directly contrary
to the existing Comprehensive Conservation Plan, which is supposed to guide
management into 2014.
National Riparian Service Team
The Fish and Wildlife Service made a formal REQUEST
FOR SERVICES for the
- local cattle interests do not agree with the
findings of a Comprehensive Conservation Plan and step-down Habitat Management
Plan for LPO which find the historic Refuge annual grazing program
incompatible, and limit grazing to a prescriptive management tool.
- Provide
review of relevant science used to assess management actions which can best
achieve fish, wildlife, plants and habitat goals and objectives for LPO.
- Review
Fish and Wildlife Service work from a scientific perspective, and from your
knowledge and experience outline any other management options or variations you
see as appropriate (see list of documents at the end of this form).
As a result
of this process, determine the potential for building community trust and
ability to work together in partnership for mutual attainment of goals.
From the perspective of advocates of fish, wildlife
and the Little
Members of the
The interviews revealed the expected results. Refuge critics object to “lifestyle”
restrictions (can’t ride their horses when and where they want, can’t camp
where they want, have to keep dogs on leash, etc.). Ranchers and their allies objected to the
termination of the annual grazing program.
The most interesting comment:
Individuals
who oppose the elimination of grazing are strongly supportive of bringing the
NRST to the Refuge and believe that a fair evaluation and process would
occur. On the other side, many people
told the interviewers that the planning process had been fair and open and that
the NRST should not be brought in now that a decision has been made and is
currently in litigation.
Despite the fact that “many people” object to the
Interestingly, the Friends of the Little Pend Oreille
National Wildlife Refuge, the Blue Goose
Lawsuit cont.
A hearing for
Plaintiffs’ attorney introduced a gallery of
influential livestock proponents individually for Judge Shea’s
benefit. The judge was well prepared and
asked several questions to clarify understanding or the record.
An order denying plaintiffs’ motion for summary
judgment and granting defendants’ motion for summary judgment was filed
8/20/2007 as Document 74, Case 2:06-cv-00156-
It only took the judge twelve days to make a decision
and write an opinion. He found the plan
legal, the compatibility determination proper, found no fault with the grazing
science used by refuge staff, denied ranchers had a property interest in Refuge
lands and said NEPA documentation was just fine.
The order is 17 pages and it is more appropriate for
readers to obtain a copy than for me to quote.
What Now?
I suppose it depends on how determined decision
makers are. If they feel there is enough
industry and political advantage, they will continue to fast track the
collaborative process and have cattle back on the Refuge by 2008.
In my opinion, this type of action by Fish and
Wildlife Regional Director Ren Lohoefener
will significantly chill any tendency of refuge managers to consider
terminating refuge uses they deem incompatible with refuge purposes if the use
is economic with a political constituency.
For the livestock industry, they hope to be able to
claim the federal government’s best wildlife and watershed experts support
livestock grazing, even on a national wildlife refuge. This could turn into a major propaganda tool
for them. The
In this day of lifestyle marketing, including
political marketing, Republicans apparently see substantial advantage in having
cattle back on the Refuge by 2008, an election year. The CCP was written during a Democratic
administration. Local ranchers have
complained Refuge management had an agenda to remove livestock and used biased
science to justify their decision. I
suppose Republicans hope to show they used the best science and reversed an
injustice to rugged, independent, hard working Americans victimized by
bureaucrats promoting illegitimate Democrat/extreme environmentalist
dogma.
This could be a long, tough battle for several more
months, and everyone who cares about fish, wildlife, native plants, national
wildlife refuges, or just truth, justice and the American way should pitch in
and help defend the current CCP/EIS, and decision by Judge Edward Shea. Most of all, the competent professional work
of the staff of the LPO Refuge; they knew their decisions would draw criticism
from entrenched interests with friends in high places. They did what the law asks them to do anyway.
Contacts
For further information, feel free to contact me (Don
Tryon, scr@plix.com, 509-685-9276) or the following folks:
Rick Moore - President, Friends of the Little Pend
Oreille National Wildlife Refuge - P.O. Box 215; Colville, WA 99114,
509-685-0478, rsktmoore@gmail.com
Noah Matson - Defenders of Wildlife -
Brian Segee – Defenders of
Wildlife staff attorney – 1130 Seventeenth St., NW; Washington, DC 20036,
BSegee@defenders.org
Lisa Langelier - LPO Refuge Manager -
Ren Lohoefener -
F&WS Regional Director -
Laura Van Riper – National Riparian Service Team –
Stevens County Commissioners - 509-684-3751, Stevens County Conservation District -
509-685-0937, Attorney for Plaintiffs -
Toni Pierson - 509-539-9588 (in Connell, WA) and Karen Budd-Falen
(also attorney for Plaintiffs) - 307-632-5105 (Cheyenne, WY)
Legal documents are available from the United States
District Court, Eastern District of Washington - Sheilah
Bliss, Deputy Clerk 509-458-3400