U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

To Save Bighorn Sheep, Gov't Can Halt Domestic Grazing

Wild bighorn sheep used to number in the millions, grazing along the steep cliffs of rocky mountains. But today, there are less than 70,000 left, their numbers having dwindled as a result of habitat loss, hunting, and disease spread from domestic sheep.

In order to prevent further decline to bighorn sheep populations in Idaho, the U.S. Forest Service closed about 70 percent domestic sheep grazing allotments in the Payette National Forest in Idaho. That closure was perfectly legal, the Ninth Circuit ruled on Wednesday, in response to a suit from Idaho wool growers.

It's Sheep vs. Sheep in the Payette

The Payette is home to two bighorn sheep populations -- populations which regularly see "large-scale, rapid, all-age die-offs" which have greatly reduced their numbers. Those die-offs first appeared when foreign domestic sheep were introduced to the area. Where there were once thousands of bighorn sheep, there are only 850 in one population, 700 in the other.

The process that eventually lead to the closing of grazing allotments began in 2003, when the Forest Service revised its Land and Resources Management Plan for the Payette area. Under the National Environmental Policy Act, that LRMP was coupled with an Environmental Impact Statement, detailing the expected ecological effects of the plan. That EIS was appealed on the grounds that it failed to protect the bighorn sheep by allowing continued grazing of domestic sheep, risking disease transmission between the two.

The Chief of the Forest Service agreed and rejected the original EIS. Over the next few years, the Forest Service created a new EIS, this time incorporating findings from a previously unpublished study demonstrating the high risk of disease transmission between bighorn and domestic sheep. That document called for the closing of much of the area's domestic sheep grazing allotments.

No Consultation? Who Cares If There's No Prejudice

Idaho's wool growing industry sued, arguing that, among other things, the Forest Service had violated NEPA by failing to consult with the Agricultural Research Service. ARS is the in-house research agency of the Department of Agriculture.

Under NEPA, federal agencies must consult with "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved" in a proposed action. The wool growers argued that ARS had just such "special expertise," requiring the Forest Service to obtain their input before issuing a decision. ARS is tasked with researching domestic animal production, for example, and developing "solutions to agricultural problems of high national priority."

But, as the Forest Service points out, ARS has no expertise in wildlife management and it was wildlife, not domestic sheep, that the Service was investigating. (The court was not quite convinced.)

But, according to the Ninth Circuit, whether the Forest Service must consult ARS was not a question that needed to be answered, since even any violation of the consultation duty was harmless. That failure to consult did not materially impede NEPA's goals or "preclude informed decision making," the court found, for scientific and public input amply supplied relevant information.

"Because the lack of consultation did not prevent the Forest Service or the public from considering information" about domestic sheep and disease transmission, the Ninth held, "no prejudice resulted."

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