A federal judge in Oregon has ruled that the state can decide how, and even whether, cows that pollute waterways can graze on federal lands.
U.S. District Court Judge
Ancer Haggerty said Sept. 27 that the Clean Water Act requires all
applications for grazing permits on national forests to first
undergo a state review to determine if grazing will pollute state
Thirty-two of the more than 400 grazing
leases the Forest Service administers in Oregon are up for renewal
this year, and the judge told the agency to issue no grazing
permits until state water-quality officials give them a green
light. With this new authority, the state could deny a permit or
require modifications such as fencing along
The ruling overjoyed many
environmentalists, who have long felt that federal agencies care
more about ranching than water quality.
principal source of all pollution in the West is from non-point
sources arising on public lands," says Mike Axline of the Western
Environmental Law Center, which represented seven environmental
groups in the lawsuit against the Forest Service. "Now the state
agencies that are concerned about water quality have the
opportunity to be involved."
"There is no
grazing decision that comes close to this one," says Bill Marlett,
whose Oregon Natural Desert Association initiated the suit. "This
gives us one big sledgehammer that we've never had before, and
that's what it's going to take to get these guys (ranchers) to
realize that the water of the state belongs to the public."
For Oregon ranchers, the decision adds insult to
injury. They are fighting a November ballot initiative led by
Marlett's group that would force all ranchers, including those
using private lands, to remove their cattle from streams designated
by the state as polluted (see story page 10).
see this as yet another attack on grazing," says Dan Van Shoiack, a
third-generation rancher from Heppner, Ore., whose family grazes
cattle on the Umatilla National Forest. "It's another paperwork
barrier that leaves us open to more appeals and challenges from
Many legal experts predict
the ruling, if it survives expected appeals, could ultimately have
much broader application.
"It doesn't take much
of a leap to realize that this could be applied to BLM lands, and
to activities such as timber harvesting and even permits for
irrigation water from federal water projects," says Joe Hobson,
chief counsel for the Oregon Farm Bureau, which intervened in the
case on the side of the Forest Service. "This could be a
devastating blow to agriculture."
The ruling springs from a case brought
in 1994 by the Oregon Natural Desert Association, the Confederated
Tribes of the Warm Springs Reservation, and six other environmental
groups over a grazing allotment on eastern Oregon's Malheur
National Forest. They charged the Forest Service with violating
section 401 of the Clean Water Act, which requires state
certification for any federally permitted activity that might
result in a "discharge" into navigable waters.
Traditionally, section 401 has been used by
states to evaluate the effects of hydroelectric dams and dredge and
fill operations. Discharge has been defined as water pouring from a
"point" source such as a pipe. Diffuse pollution from "non-point"
sources such as livestock and logging operations has always been
viewed as outside the law's scope.
But 401 does
not explicitly exclude non-point sources, and environmentalists
have searched for key cases to test the issue. In Haggerty, they
found a judge who read the law as they did. Citing the Clean Water
Act's legislative history and what he called "the plain meaning of
discharge," Haggerty said Congress never intended to limit section
401 to point sources.
The Farm Bureau's Hobson
disagrees. "You would have gotten a judicial guffaw five or six
years ago for suggesting that the Clean Water Act should be applied
to grazing this way," he says. As recently as this past August,
Hobson notes, a federal magistrate in Idaho concluded that runoff
from a road-building project on a national forest was not a
discharge under the law.
"The Forest Service has
one judge telling it to go south and the other north," says Hobson.
"This thing will go to the Supreme Court."
The ruling validates the belief of many
conservationists that cattle are a major polluter of Western
waters. Judge Haggerty found that the plaintiffs offered
"undisputed evidence that cattle grazing on the Camp Creek
allotment ... has resulted in the pollution of both Camp Creek and
the Middle Fork of the John Day River."
that evidence was gathered by grazing activist Denzel Ferguson,
most famous for co-authoring Sacred Cows at the Public Trough.
Ferguson lives just downstream from the allotment, and, in his
court declaration, displayed photos showing cattle wallowing in and
around Camp Creek. He also offered evidence of physical
degradation, including trampled and denuded stream banks, a
silted-in swimming hole, and fish kills from high water
temperatures that consistently exceeded state
Hobson claims that, compared to other
sources, water pollution from cattle grazing "doesn't even show up
on the screen. If you were to remove all of the cows from the
public lands, you wouldn't even see a noticeable change in water
Ed Sales of the Oregon Department of
Environmental Quality says a 1988 state report showed that 9,300
miles of stream, rivers and lakes were affected by grazing. But he
cautions that the actual contribution of grazing to statewide
pollution, which comes mostly from non-point sources, has not been
Tom Lustig, an attorney with the
National Wildlife Federation, says the uncertainties make proving
that cattle damage waterways a difficult task. "Everyone can see
that the cows poop and pee in the streams," he says, "but how much
do they really affect water quality? They also cause erosion on the
banks, but the ranchers can claim it's just the drought."
Lustig says it's
too early to tell if the Oregon ruling will clean up polluted
waters. The ruling could motivate Congress to try to water down the
law. Retiring Rep. Wes Cooley, R-Ore., attempted to do that earlier
in the year, but his amendment exempting cattle grazing from the
Clean Water Act ultimately died when the Republican Congress'
rewrite of the act stumbled into broad public opposition.
Though section 401 gives the states the chance
to evaluate federally permitted actions, there is no obligation to
do so. If state water quality officials fail to make a decision on
a given permit within a year, that activity automatically receives
state certification and can proceed.
aren't there yet as far as commitment to enforcing water quality
standards," says Lustig. "They could easily say, "grazing has no
effect, everything is OK." "
Though some states
may not welcome the chance to review thousands of grazing permits,
ranchers say they dread another layer of public
Dan Van Shoiack says his family is
already working with the Forest Service and the state to employ
what are known as "best management practices' on the public lands
they graze. That includes periodically chasing cattle out of
riparian areas, rotating pastures and stringing electric fences
along streams at certain times.
"I don't think
anyone wants clean water more than the ranchers," says the Farm
Bureau's Hobson, "but it's a question of how we get there.
Environmentalists want clean water come hell or high water."
Ranchers who make sure their cattle do not
pollute have nothing to worry about, says Mike Axline, of the
Western Environmental Law Center. "Those that are polluting need to
sit down with the state and figure out a way to deal with their
For more information contact the
Western Environmental Law Center at 503/485-2471; the Oregon Farm
Bureau at 503/399-1701 and the Oregon Department of Environmental
Quality at 503/229-5696.
Paul Larmer is an
associate editor for HCN.