by Christopher Smith
SALT LAKE CITY, Utah - A federal judge has kicked cattle out of the canyons of southeastern Utah's Comb Wash. Both environmentalists and ranchers say the decision could lead to sweeping changes in grazing on public lands.
Department of Interior Administrative Law Judge John Rampton's Dec. 20 decision in the three-year-long Comb Wash case found that the Bureau of Land Management violated, and at times openly defied, federal law in administering the grazing permit for the 72,000-acre allotment southwest of Blanding.
Rampton has barred the BLM from allowing grazing in the five scenic canyons branching off Comb Wash until the agency conducts an environmental impact study and makes a "reasoned and informed" decision that grazing cattle in the canyons serves the public good.
It is the first time a judge has considered the environmental impacts of grazing or whether grazing is in the best interest of the public.
"This is definitely a slam-dunk," said Tom Lustig, senior staff attorney with the National Wildlife Federation in Denver, which joined the Southern Utah Wilderness Alliance and Arizona State University law professor Joe Feller in appealing the BLM grazing permit for Comb Wash in 1990.
"We got everything we wanted," added Feller. He spearheaded the grazing fight after seeing how cattle damaged the Comb Wash canyons, which are popular with recreationists because of their thousands of ancient Anasazi Indian sites, wildlife and natural beauty.
Feller said that in their Comb Wash case, environmentalists bent "over backwards to avoid harming the permittee." They asked only that the 350 cows run by the White Mesa Cattle Co. be fenced out of the five canyons, which hold only 10 percent of the allotment's forage. Feller and Lustig argued that the five canyons, Arch, Mule, Fish Creek, Owl Creek and Road, could be omitted from the grazing rotation without significantly affecting the livestock operation.
Livestock industry attorneys said the case involved a lot more than 200 animal unit months (AUMs). What the platoon of intervenors, including the American Farm Bureau Federation, Public Lands Council, National Cattlemen's Association and American Sheep Industry Association, most feared was that suspension of grazing might set a precedent.
"We can lose a battle (eventual reform of grazing in Comb Wash) and still win the war (continued grazing during preparation of an EIS)," Glen Davies, a Salt Lake attorney who represented the Utah Farm Bureau in the case, said during a break in the hearings before Rampton in May 1992.
During the 18 days of hearings during 1992 and 1993 in Salt Lake City, Grand Junction, Colo., and Monticello, Utah, where the allotment is administered through the San Juan Resource Area office of the BLM's Moab District, Davies and attorneys for the Department of Interior maintained the agency did a good job managing grazing in Comb Wash.
Grazing intensity on the permit, which is issued to the Ute Mountain Indian Tribe but operated by Eddie Dutchie, an Anglo with close ties to the tribe, was determined from standard grazing data and complied with all federal regulations, the defendants argued.
BLM range conservationist Paul Curtis at first testified he only considered the amount and condition of the forage when he set livestock numbers for the canyons. He said he did not consider water quality, wildlife habitat, soil erosion, scenery and recreation. He later tried to retract the testimony.
To refute the call for a separate EIS on the Comb Wash allotment, BLM attorneys argued that the grazing impacts were adequately addressed in the so-called RMP EIS, an overall environmental impact study completed three years ago as part of the Resource Management Plan for the entire San Juan Resource Area.
The appellants countered with witnesses who said the BLM ignored the extensive damage to other resources by the cattle.
Robert Ohmart of New Mexico State University, a biologist whose studies on streambank habitats have been published in the BLM's manuals, called the San Juan RMP EIS a "joke" and "typical boiler plate" that "must be on a word processor in every BLM office."
"A freshman in college could write a better impact statement than that," he testified. "I mean, there's only three kinds of wildlife in the document. If you aren't a sheep, if you aren't a deer, if you aren't an antelope or a peregrine falcon, you're not even wildlife."
Recreation in the canyons has been restricted by the cattle, others testified.
"We have a cave excavation underway in one canyon and to camp you are going to have to shovel away the cowshit to pitch a tent," said Janet Ross, director of the Four Corners School of Outdoor Education in Monticello.
People are "not thrilled about drinking water that has cowpies in it," but they must because water sources are scarce in the canyons, said Jim Hook, a Bluff outfitter. His hiking clients have come upon a dead cow in Road Canyon and a cow placenta floating in a water source. He said that if not for the degradation, he would run additional trips into the area that would earn his business an additional $15,000 to $18,000 annually.
Feller and Lustig used nearby Grand Gulch Primitive Area to show the benefits of non-grazing. They introduced hundreds of photographs of Grand Gulch's abundant wildlife. Its lush vegetation hadn't been grazed for the last 20 years. Feller and Lustig claimed the barren canyon bottoms of Comb Wash would look the same if not for overgrazing.
Judge Rampton's 36-page written decision agrees almost completely with the environmental appellants.
"BLM has ignored most multiple-use values other than grazing," he wrote, adding that attorneys for the environmental groups had "presented overwhelming evidence that grazing had significantly degraded and may continue to significantly degrade the quality of the human environment in the canyons."
He also determined "there simply is no significant factor other than grazing that can explain the difference in vegetation between Grand Gulch and Comb Wash." Rampton agreed that grazing is detrimental to tourism and is destroying archaeological treasures.
"The indirect effects of cattle grazing include greater erosion, and hence, an increased likelihood of artifacts being excavated and carried away by the elements," he wrote.
Rampton also was critical of the BLM's refusal to involve "affected interests," people who are not ranchers, in the process of determining stock limits for each permit season. Recreationists and environmentalists want the same status as ranchers in BLM grazing decisions, which have been closed to all but the permittee.
Rampton ordered the BLM in August 1990 to follow federal regulations by notifying and considering comments from affected interests when setting the stock limits in Comb Wash.
But the BLM refused. In a September 1991 response to Feller's request to comment on Comb Wash grazing schedules, Edward Scherick, then the San Juan Resource Area manager, wrote: "We appreciate your interest in the Comb Wash Allotment, but disagree that you have a comment or protest opportunity in developing the 1992-93 grazing schedule."
Rampton's decision said that "BLM's exclusion of affected interests was not an accident or an oversight. In each case, BLM responded with open defiance."
Environmentalists say the legal spanking Judge Rampton gave the BLM in Comb Wash could set a precedent. Although Rampton's decision only applies to the Comb Wash allotment, Lustig says Rampton's analysis will likely be used to require the BLM to conduct full-blown environmental impact studies on grazing allotments around the West.
"I'm mailing copies of this opinion to every BLM area office in the country with a note that says, "Coming soon to a grazing allotment near you," " the National Wildlife Federation attorney said.
Still, because he is an administrative law judge, Rampton's Comb Wash opinion does not carry the weight of a similar decision in federal district court, whose decisions other judges are obligated to consider. It's also a low-level opinion, almost certain to be appealed by the livestock industry to the Interior Board of Land Appeals and then, perhaps, to federal district court.
"We're evaluating how far it goes and the degree to which it may be a unique situation before we determine whether or not to appeal," said Davies, the attorney for the Utah Farm Bureau. "We do have concern that the legal holdings of the decision appear to be wrong and are not supported by current case law."
Davies said he was startled by the one-sided nature of Rampton's decision.
"The judge clearly ignored the countervailing testimony we offered," he said. "There are two sides to this case, but you'd never know it by reading his decision."
If Comb Wash does lead to a requirement for an EIS on every grazing allotment, that "would create an administrative burden so impossible to comply with it would simply shut down grazing in the West," Davies said.
Lustig believes that fear may be overblown. This opinion says that "you only have to do (an EIS) where there are significant impacts on the environment," he said. "For Davies to be right, there would have to be significant impacts on the human environment everywhere."
BLM officials in the field are unsure where they stand as a result of the Comb Wash decision.
"This might turn us into a giant paper-shuffling machine instead of resource managers," said Kate Kitchell, the San Juan Resource Area manager who replaced Scherick after his transfer to Montana last year. Requiring an EIS for every allotment "could be overkill," she says, "especially when you've got 100 allotments in a resource area."
Feller agrees in part. "There is a balance to be struck and I'm sympathetic with Kate's concern."
Kitchell is also disheartened by the impact of Judge Rampton's decision on BLM employees. Rampton's support of the environmentalists' arguments with phrases such as "overwhelming weight of evidence" and "facts ... which irresistibly require that appellants be granted relief" belittles the trustworthiness of BLM staffers' opinions.
"It does seem our witnesses and staff were not given much credibility as professionals," Kitchell said. "That's damaging to morale."
One senior BLM Moab District employee who asked for anonymity said Rampton's decision "makes you ashamed and embarrassed to work here. You wonder why there wasn't a little common sense by management to just fence the cows out of the canyons instead of having it come to this."
That is the direction Kitchell was moving. She had recently decided the 1994 Comb Wash grazing permit would prohibit cattle in four of the five canyons, allowing cows only in Mule Canyon. But now the BLM may have to revise the permit. Whatever she does, other BLM offices will be watching.
"All eyes are on this, because of the fear it may come to their front doorstep some day," Kitchell said. "For the sake of the resource and our relationships with land-users, it would be nice if we dropped all the history of Comb Wash of the last five years, let go of the animosity, and sat down to find a way to resolve it." n
Christopher Smith is the regional reporter for the Salt Lake Tribune.