Bighorn Legal Decisions Mixed
March 4, 2016

Two recent legal decisions pertaining to bighorn and domestic sheep management have gone separate ways - one a win for the domestic sheep industry and one a loss.

As reported last week, Chief Judge B. Lynn Winmill of the United States District Court for the District of Idaho held the Secretary of Agriculture and Chief of the United States Forest Service in contempt of court for relying on two illegal reports on disease transmission from livestock to bighorn sheep. The reports were used in the Shoshone National Forest's recent Land Management Plan revision to ban domestic sheep and goats from the Shoshone. The motion for contempt was filed by the Idaho Wool Growers Association and the North American Packgoat Association.

Winmill ruled that the forest service disregarded his 2009 court orders stating that the Payette National Forest reports on risk analysis of disease transmission between bighorn sheep and domestic sheep "are not to be used in any future agency decisions" and held unlawful. He found that a 2012 Shoshone report on bighorn and domestic sheep and goats copied parts of the Payette report, which had been found unlawful because of a lack of public involvement.

This week, the 9th U.S. Circuit Court of Appeals rejected arguments by the Idaho Wool Growers Association and other plaintiffs, ruling that a prohibition against grazing sheep in 70 percent of Idaho's Payette National Forest does not violate the law. The court ruled that any error by the forest service was harmless and did not justify overturning the decision to block grazing.

Livestock groups claimed the forest service ignored key science and used skewed data to ban domestic sheep from most of the national forest's grazing allotments, which was intended to prevent disease transmission to bighorn sheep.

Plaintiffs argued the forest service did not follow its legal obligation to formally consult with USDA's Agricultural Research Service, which has studied disease transmission between domestic and bighorn sheep. Had advice been sought, the agency may have reached a different conclusion.

The court found that the forest service may have had a duty to formally consult with ARS, but failing to do so was "immaterial" because the agency considered comments that were substantially the same from other agricultural researchers. Although some livestock producers were driven out of business by the severe reduction in grazing, the plaintiffs weren't prejudiced by the decision because the integrity of the process wasn't compromised, the 9th Circuit held.

Arguments that the forest service acted "arbitrarily and capriciously" in violation of the National Environmental Policy Act were also thrown out by the court.

One analyst reviewing the opinion suggested, "The court found that the forest service did not consult with ARS and this 'may' have been a NEPA violation, but the court didn't need to decide this because any violation of NEPA was harmless because the forest service knew ARS's views anyway."

Other plaintiffs in this case included the American Sheep Industry Association, Public Lands Council, Wyoming Wool Growers Association, Colorado Wool Growers Association, Carlson Company, Inc. and Shirts Brothers Sheep.