Ninth Circuit halts Oregon cattle grazing project over incomplete analysis
PORTLAND, Ore. (CN) — Endangered Oregon spotted frogs took a win from the Ninth Circuit, which remanded a biological opinion Thursday that authorized expanded cattle grazing in southern Oregon.
“This is a huge win for Oregon spotted frogs,” said Erik Molvar, executive director of the Western Watersheds Project, whose organization co-led a 2019 lawsuit against the U.S. Fish and Wildlife and U.S. Forest Service over the approval of an expanded cattle grazing project they said would imperil Oregon spotted frogs and fragile wetlands.
In 2022, U.S. District Judge Michael McShane sided with the service, unconvinced that the project violated the National Environmental Policy Act or had inconsistencies with the Winema Forest Plan. He also disagreed that the service’s approval failed to take a hard look at the project's effects or that Fish and Wildlife’s biological opinion violated the Endangered Species Act.
On Thursday, however, a Ninth Circuit panel remanded McShane’s latter judgment, ruling that Fish and Wildlife’s biological opinion for the project is deficient because it does not account for climate change as a cumulative effect or how it would impact frogs in non-drought years.
“The BiOp needed to consider whether the small frog population could sustain grazing-related impacts on top of potential climate change effects, which, according to documents in the record, include stranding and higher egg mortality due to increased exposure to ultraviolet radiation and pathogens,” the judges wrote in the unpublished order.
The panel noted that the biological opinion’s reliance on mitigation strategies to prevent cattle from critical frog habitat during dry seasons “does not render this failure harmless,” as Fish and Wildlife did not explain how low-water mitigation strategies were developed with climate change in mind.
The judges also found that the biological opinion failed to standardize how often an agency biologist would visit the allotment to identify low-water conditions, writing that it was arbitrary and capricious for Fish and Wildlife “to rely on the effectiveness of the low-water mitigation strategies” like fence building and that it is unclear whether the agency considered the harm that could occur while waiting for those strategies to take place.
“We also note that even if FWS could have found that extirpation of the Jack Creek Oregon spotted frog population ‘would not jeopardize the survival or recovery of the species,’ FWS ‘did not make that finding,’” the judges wrote, explaining that the biological opinion states that the frog species’ survival and recovery depends on maintaining populations across their current range and ensuring connectivity.
On remand, the judges instructed McShane to vacate the biological opinion and remand to Fish and Wildlife for further proceedings consistent with the opinion. But Molvar noted the allotment hasn’t had any cattle on it for the last several years and that its fencing is in disrepair, making it unlikely that the service will bother producing another biological opinion for a project the livestock industry “doesn’t appear all that interested in.”
Justice Department attorney Sean Martin said that the government is evaluating the Ninth Circuit's ruling, which arrived just over a week after he defended the 2018 biological opinion at a hearing at Portland’s Pioneer Courthouse.
At that hearing, all three appellate judges prioritized Western Watershed’s Endangered Species Act claim against Fish and Wildlife, questioning why the agency didn’t expand on the grazing project’s potential impacts in conjunction with studies on climate change.
The lack of analysis, Martin had said, was due to the lack of studies applicable to the Klamath Basin and relevant effects on the frog, adding that Fish and Wildlife was clear that it couldn't predict how climate change would affect species populations.
U.S. Circuit Judge Jennifer Sung had been skeptical of this logic during the hearing, asking at one point, “Do we really need a study specific to the frog about climate change?” The Biden appointee had also noted that studies had predicted that climate change would cause stream flows to decrease in the region, which was relevant to one of Western Watershed’s primary concerns around thirsty cows trampling frogs in the allotment’s Jack Creek.
U.S. Circuit Judge Lucy H. Koh, another Biden appointee, and Senior U.S. Circuit Judge Ronald L. Gillman, a Bill Clinton appointee sitting by designation from the Sixth Circuit, rounded out the panel.
To the judges’ broader point, Molvar speculated that it might become a growing trend for courts to require federal agencies to consider the impacts of climate change across the board.
“It’s becoming increasingly obvious that the changing climate has real consequences,” Molvar said. “[And] not just for endangered species but for all kinds of public land and wildfire issues.”