Coalitions appeal Upper Green grazing suit’s dismissal

Cali O'Hare file photo

SUBLETTE COUNTY –  Conservation coalitions do not want “no” for an answer to their quest against current permitted livestock grazing in the Upper Green River Rangeland Area, where many longtime local ranchers hold grazing permits.
Ranchers have moved their cattle along the Upper Green since before Sublette County was a county and the Forest Service was created, with homesteaders and then permittees using the Green River Drift to reach higher meadows in the Wind River Mountains.
These issues took shape 20 years ago and are still not resolved.
Earlier this year, Wyoming U.S. District Judge Nancy Freudenthal determined that the Forest Service, U.S. Fish and Wildlife Service (FWS) and Sublette County grazing permittees were on good footing and dismissed one large combined lawsuit.
The coalition in part faulted the FWS and Forest Service for relying on its “2019 BiOp” (biological opinion) that up to 72 grizzlies could be lethally removed in 10 years from the Upper Green without harming recovery status. The coalition also demanded a closer look at the record of decision’s (ROD) forage usage levels and sensitive species.
On Sept. 15, Western Watersheds Project, Center for Biological Diversity, Sierra Club and others filed its consolidated appeal in the 10th Circuit Court of Appeals against Secretary of the Interior Deb Haaland, the state of Wyoming and the Upper Green River Cattle Association.
WWP staff attorney John Persell said in an email, “We filed the attached brief in our 10th Circuit appeal regarding the Upper Green River Area Rangeland Project. We challenged the levels of grazing authorized by the Forest Service as leaving insufficient vegetation cover for sensitive amphibian species and migratory birds.
“We also challenged the Fish and Wildlife Service's authorization to kill 72 grizzly bears over 10 years in response to livestock conflicts. The brief explains the errors in the Wyoming District Court's reasoning, as well as the flaws in the agencies' decisions.”
They argue Judge Freudenthal “wrongly dismissed” WWP’s claims against the Forest Service and FWS and request an oral argument hearing.
“WWP respectfully requests that this Court reverse the Wyoming District Court’s recent decision affirming the Upper Green River Area Project (UGRA) record of decision and associated grazing authorizations issued by the Forest Service. WWP also respectfully requests that this Court reverse the district court’s decision affirming the 2019 BiOp and incidental take statement prepared by FWS regarding the UGRA Project’s effect on threatened grizzly bears, as well as the Forest Service’s reliance on that BiOp to satisfy its own Endangered Species Act obligations. WWP further requests that this Court hold unlawful and set aside the challenged ROD, grazing authorizations, BiOp and ITS.”
The brief finds fault with BTNF’s nonlethal recommendations to prevent livestock and grizzly conflicts. Livestock carcasses must be moved or removed when possible, which WWP calls a “loophole” because permittees are unlikely to remove carcasses far enough to prevent conflicts, it says.
The history of the modern-day Upper Green River Area Rangeland litigation goes back to 2000, when the Forest Service kicked off public scoping to reauthorize grazing permits on the Bridger-Teton National Forest. The environmental impact statement to address reauthorization of grazing permits was anticipated to come out in 2003; it was published in 2004 and signed in 2005.
Grazing permittees continued to work with the Forest Service and FWS to try and prevent – or at least reduce – conflicts with endangered wolves and grizzlies against livestock.
Wolves are now managed by Wyoming Game and Fish and dealt with by state laws. But grizzlies, although recovered well above recovery criteria, continue to be the hot button issue. The Upper Green is also home to a small endangered fish, the Kendall dace, and the conservation groups pressure the courts to dramatically reduce livestock grazing in favor of them both.
A draft supplemental EIS was released in 2010; in 2017, Pinedale District Ranger Rob Hoelscher signed the final EIS record of decision. It reduced permitted numbers for some allotments by 270 and touted rotational grazing, which can move livestock away from immediate grizzly habitats.
Objections grew to include two 2018 meetings in Jackson, where ranchers, conservationists and biologists tried to talk through their objections and find common ground. The BTNF made a lengthy review and signed a new ROD in 2019.
In 2020, the two coalitions filed lawsuits in Washington, D.C.’s U.S. District Court against BTNF and federal officials. There the judge merged the two lawsuits into one action.
The Department of the Interior successfully lobbied to have the case moved to Wyoming’s U.S. District Court. The Upper Green River Cattle Association stepped in with local ranchers testifying. There, Judge Freudenthal ruled federal policies were sound.
As the season cools and leaves change colors, hundreds of bulls, cows and calves will begin moving south down the Green River Drift, coming back home before the snow flies.