Cows are evicted from Utah
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
"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
"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
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
"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
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
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
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
"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
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
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
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
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
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.
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
"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
"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
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
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."
officials in the field are unsure where they stand as a result of
the Comb Wash decision.
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
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
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.
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."
Christopher Smith is the regional reporter for the Salt Lake