Through our Sagesteppe Defense Program, ONDA implements rigorous, strategic and thoughtful enforcement of environmental laws to safeguard Oregon’s deserts. Employing the full range of legal tools, we work to hold federal land management agencies accountable, ensuring that Oregon’s desert lands and waterways receive the protection they deserve. Following the long tradition of success our legal efforts have achieved in protecting Oregon’s high desert, we once again won major victories in 2009. 

John Day River Basin

For a third successive year, a federal judge’s order protected native steelhead trout in the John Day River basin. The June 2009 court order temporarily halted cattle grazing within important native trout streams in the Malheur National Forest. This latest round of the decade-long litigation targets, as the court put it, “repeated failures” by the Forest Service to address grazing impacts to fish habitat. The steelhead, an iconic Pacific Northwest native trout, is listed under the Endangered Species Act as a “threatened” species in danger of extinction.

Grazing has damaged stream and riparian habitats along more than 230 miles of streams, according to evidence gathered by ONDA and the Forest Service. The survey data show the agency has been unable to meet ecological standards to conserve steelhead. The standards, established by the Forest Service and the National Marine Fisheries Service (NMFS), are meant to protect the key elements of healthy fish habitat. They include protection of stable stream banks and overhanging vegetation that keep streams clear and cold. According to field surveys conducted by a team of experts for ONDA, the Forest Service’s grazing program has resulted in damaged stream banks far exceeding federal standards.

In 2007, a federal judge in Portland ruled that the agencies’ grazing plan violated the Endangered Species Act. In response to that ruling, the agencies issued a new plan. Because the plan actually increased grazing levels and weakened the Forest Service’s ability to enforce its own ecological standards, ONDA challenged the plan in December 2007. In May 2008, Judge Ancer Haggerty agreed that ONDA was likely to win its case and preliminarily banned grazing on parts of the forest. That order protected more than 120,000 acres of public land and more than 90 miles of important steelhead streams from another year of cattle damage.
In the 2009 order, the court banned grazing until the Forest Service complied with a series of mitigation and monitoring measures intended to guarantee no further damage to fish habitat. The protective measures covered 330,000 acres and 235 miles of streams. The court warned the federal agencies that “[t]he time has come for the Forest Service to adaptively manage these allotments in response to conditions on the ground rather than in reaction to this court’s rulings.”

Owyhee Canyonlands and Malheur River Basin

In 2008, ONDA achieved one of its most enduring legal victories in its 20-year history when the Ninth Circuit Court of Appeals agreed with ONDA that BLM wrongly refused to study impacts to wilderness values when it wrote a plan to manage 4.6 million acres of public land in southeast Oregon. This past year, ONDA has worked toward a final settlement in the case. Among other things, BLM will re-inventory these lands for wilderness characteristics. The agency’s work will include finally evaluating ONDA’s citizen wilderness report. Presented to BLM in 2004, the ONDA Report documents some of our nation’s most important roadless areas, including 1.3 million acres (beyond existing WSAs) found to possess wilderness character as defined by Congress in the Wilderness Act of 1964. 

This decision continues to benefit all of our legal actions aimed at protecting Oregon’s desert wilderness. We expect to successfully settle our nearly identical challenge to the Lakeview land use plan, which also is pending before the Ninth Circuit. And we have filed briefing seeking to apply the Ninth Circuit’s holding and legal analysis to our challenge of the land use plan for Steens Mountain. There, BLM took ONDA’s citizen-generated wilderness report and rejected it in an internal, closed-door review that BLM never released to the public during the planning process. 

In another victory for wilderness and wildlife, BLM in 2009 finally withdrew or replaced the last of several ill-conceived grazing decisions in the Owyhee and North Fork Malheur watersheds. BLM’s decisions follow several years of litigation in which ONDA has taken BLM to task for broad-scale grazing plans that failed to protect wilderness, relied on significant new fencing and water development projects to maintain unsustainably high grazing levels, and would have increased grazing pressure in key sage grouse and pygmy rabbit strongholds.

Beginning in 2006, ONDA and our partner Western Watersheds Project filed two major lawsuits challenging BLM grazing plans for the 530,000-acre Louse Canyon Geographic Management Area (“GMA”) and the 237,000-acre North Fork Malheur GMA. BLM prepared the plans after it discovered significant violations of ecological standards in these watersheds.  Under its grazing regulations, BLM was required to make immediate changes to ensure “significant progress” toward achieving the failed standards.

Both plans relied on extensive networks of barbed-wire fences and water developments intended to lure cattle out of riparian areas, springs and remaining wet meadows. Neither reduced the overall amount of grazing. In its environmental analyses, BLM failed to properly study impacts to wilderness values and sagebrush habitat. This included refusing even to acknowledge ONDA’s 2004 citizen wilderness inventory report.

After filing our lawsuits, a couple important things happened. First, based on the strength of our legal claims, we achieved a series of stipulations with BLM under which the agency agreed not to build most of the planned rangeland projects. We renewed these stipulations each year through 2009. Through these agreements, we were able to stave off dozens of miles of fences and pipelines that would have sliced through what was otherwise roadless, largely unfragmented, wilderness-quality sagebrush habitat.

Second, BLM in 2007 undertook a field inventory in the LCGMA to assess ONDA’s wilderness report. In 2008, BLM released a report documenting that it agreed with 112,000 of the 138,000 acres of wilderness-quality land ONDA identified. The agency has indicated it will revisit this issue in the NFMGMA as well.

In 2009 and early 2010, BLM finally bowed to the ONDA legal pressure, withdrawing or replacing each of the several grazing and range project decisions that collectively made up the GMA plans. Although it is our litigation that has caused the agency to rethink its plans, BLM’s recent actions also reveal a calculated legal strategy. By pulling the challenged, legally vulnerable decisions, BLM moves the target, attempting to evade having a judge actually rule on the legality of the plans. 

While we have been highly successful in so far protecting against plans that were bad for sage grouse and bad for wilderness, we also recognize that the battle is far from over. ONDA and WWP will be watching closely in 2010 as BLM unveils new plans for these important landscapes.

Steens Mountain

BLM agrees to close illegal roads on Steens Mountain

BLM agreed in late-August to temporarily close five miles of illegally constructed roads while it studies rehabilitation and possible permanent closure to protect fragile, largely unfragmented sagebrush habitat in a protected area on Steens Mountain.

The agreement, an interim measure designed to protect against further damage while the parties attempt to settle the case, was filed in response to a lawsuit brought by ONDA in July. ONDA filed the suit after discovering that BLM had widened and built roads, ripped ancient juniper trees out by the roots and bulldozed native plants and sagebrush habitat in this congressionally protected area in southeast Oregon. The federal judge assigned to the case adopted the parties’ interim agreement.

ONDA field surveys showed that this was one of the most serious instances of purposeful damage to wilderness and ecological values on public lands ONDA has ever seen in Oregon’s high desert. BLM’s actions threaten to establish illegal driving on the iconic desert mountain, destroy proposed and existing wilderness areas, fragment critical wildlife habitat and open the mountain to weed infestations. In fact, the damage was so severe, and violations of law so astounding, that BLM itself called in an outside team to investigate what went wrong on the Burns District.

The BLM project, undertaken without any environmental study or public involvement, widened and built roads on 28 miles of primitive or previously non-existent routes on Steens Mountain. The routes travel through the Blitzen River Wilderness Study Area (WSA) and a citizen-proposed wilderness area. BLM even extended some roads into the protected Steens Mountain Wilderness Area and the Donner und Blitzen Wild and Scenic River corridor.

BLM pushed over live juniper trees with bulldozers, pulling them out of the ground by their roots where the trees were in the way of the new route. BLM bulldozed large amounts of rocks and soil to the sides of the new route, including into the WSA. Most of the routes were doubled in width and converted from primitive two-track paths to bladed, contoured roads.

In BLM’s own fact-finding report, the agency documented that in addition to not providing any public notice of the project, it failed to prepare any road design plans or specific protective stipulations for the project. Neither did BLM evaluate whether each of the 35 “Best Management Practices” established in the land use plan for travel management were implemented. And BLM did not evaluate whether the road work was consistent with the maintenance level assigned by the land use plan and Travel Management Plan (TMP) to the routes at issue. Earlier this year, ONDA filed a separate lawsuit challenging BLM’s unlawful TMP.

The construction violates a federal law passed by Congress in 2000 prohibiting building new vehicle routes within a 428,000 acre protected area on Steens Mountain, as well as provisions under at least seven other federal laws intended to protect Wilderness areas, Wilderness Study Areas and wild and scenic rivers, and requiring environmental study and public involvement prior to any ground-disturbing project.
Under the interim agreement, BLM also agreed to cancel plans to develop a natural spring near the Wilderness area, and to delay still other plans for more extensive spring developments and fencing within the Wilderness Study Area. Those projects would require extensive road upgrades similar to the construction at issue here.

ONDA challenges Steens Mountain travel plan

One of the problems that lead to BLM’s illegal road building is BLM’s flawed travel plan for Steens Mountain. Finalized last year, the new travel plan threatens the unique solitude and unfragmented sagebrush habitat of the mountain. In a lawsuit filed in April, ONDA argues the plan will permanently establish illegal off-road driving routes that threaten proposed wilderness areas, fragment core wildlife habitat and open the Steens to weed infestations.

The plan permanently establishes motorized travel on 519 miles of routes on Steens Mountain. But ONDA surveys show hundreds of miles of the routes have virtually disappeared into sagebrush and grassland through nonuse over the years. Still others are causing resource damage or are obsolete or redundant on the landscape. BLM’s decision to allow motorized exploration of these areas violates a federal law prohibiting off-road travel and creation or re-establishment of new vehicle routes on Steens Mountain. Of nearly 10,000 public comments BLM received during its planning process, more than 99.5% favored closing most of these routes.

ONDA’s legal challenge ensures BLM cannot cement into place a network of motorized routes that would leave almost no area on Steens Mountain more than a couple miles from a road. BLM admits it cannot even locate some of the mapped routes on the ground. An administrative board within the Department of the Interior already has invalidated 36 miles of so-called “Obscure Routes,” agreeing with ONDA that opening these areas to motorized use violates several laws.

BLM withdraws Steens Mountain grazing decisions

In response to 16 separate appeals filed by ONDA between January 2008 and May 2009, BLM agreed in September to withdraw decisions to renew grazing permits for 31 allotments covering about 839,000 acres of public land on and around Steens Mountain. BLM had issued the decisions under a Bush Administration policy allowing the agency to renew grazing permits without first studying the impacts to the environment of the proposed grazing. The policy “categorically excluded” the decisions from analysis under the National Environmental Policy Act (NEPA). Now, BLM must go back and study those impacts before renewing these 10-year permits to graze cattle on the public lands.

ONDA was concerned with these decisions because the grazing was proposed to occur on vast swaths of wilderness-quality public lands, from designated Wilderness on Steens Mountain to tens of thousands of acres of citizen-proposed wilderness areas. Livestock grazing, and the infrastructure that will be needed to sustain the proposed grazing for the next decade, necessarily will impact wilderness values in these areas. These areas also contain significant native fish and wildlife populations and habitat, including important sage grouse habitat, streams with water quality problems related to grazing, and known weed and juniper encroachment issues.

The Northern Great Basin

Judge blocks livestock project in ONDA-proposed wilderness area

In May, an administrative judge in the Department of the Interior barred BLM from building a 4.5-mile barbed wire fence in an ONDA proposed wilderness area. The judge agreed with ONDA that BLM’s evaluation of our citizen wilderness inventory report was inconsistent with long-standing principles of wilderness law.

The agency had proposed the fence in order to split an existing grazing area in half. ONDA asked BLM to study the impacts of the project to wilderness values within our Lonesome Lakes proposed wilderness area. BLM’s fence would dissect a portion of that area, which is at the eastern edge of Christmas Lake Valley about 10 miles south of the Glass Buttes. BLM refused to do so based on its view that the area was not roadless. For wilderness inventory purposes, the distinction between a “road” and a “way” is crucial. A road is a route that has been mechanically improved and maintained to ensure relatively regular and continuous use. By contrast, a route maintained solely by the passage of vehicles is a way.

The judge agreed with ONDA that BLM’s “road” determination on a key route in the project area was “not well-informed” and therefore contrary to law. ONDA’s inventory showed that much of the route is completely unmaintained; one section has a user-created detour around an impassible reach of the route. By definition, this is a way. This in turn means the Lonesome Lakes proposed wilderness area is indeed the large, roadless area ONDA identified in its report. BLM could provide no proof to the contrary. Moreover, the judge agreed with ONDA’s concern that by dividing the pasture in half, BLM's proposal would have increased grazing pressure on the west half of the pasture, where two sage grouse leks are located. BLM would have built the fence within 2.5 miles of the leks.

At 189,000 acres, ONDA’s Lonesome Lakes proposed wilderness area is one of the largest roadless areas in eastern Oregon not currently protected as a Wilderness Study Area or Wilderness.

Energy Projects

Industrial wind project threatens Steens Mountain

ONDA continues to track a Vancouver, Washington-based developer’s efforts to build an industrial-scale wind farm on north Steens Mountain

. The turbines—each over 400 feet from base to rotor tip—would be strung along ridgelines immediately north of the Steens Loop Road and Kiger Gorge. Most of the turbines would sit on inholdings within the protected Steens Mountain Cooperative Management and Protection Area. The project would be tied to the grid by a 60-foot high transmission line stretching 29 miles across BLM lands, private lands, and the Malheur National Wildlife Refuge.

 

Despite ONDA’s support for renewable energy development, we are increasingly concerned that ill-conceived, inadequately reviewed industrial energy development projects can cause unacceptable harm to ecosystems, species and wild areas in eastern Oregon

. Several recent surveys and reports show that wind energy projects can do serious harm to sage grouse by breaking up their habitat. On Steens Mountain, new access roads, transmission lines, and towering turbines with their noise and flickering shadows could drive grouse out of a wide area of core habitat. The developer’s own visual analysis shows many turbines rising above the skyline at Fish Lake Campground. At night over 200 flashing red lights will be visible all over the Mountain.

 

ONDA and other conservation partners are insisting that the developer go through the Oregon Energy Facility Siting Council (“EFSC”) process to evaluate the proposal. Along with the Audubon Society of Portland and Defenders of Wildlife, ONDA petitioned Governor Kulongoski and EFSC to close a loophole in state law and force developers who artificially divide large projects onto smaller applications into the state review process. The Steens developer’s three “separate” projects each would generate 104 megawatts of electricity—just below the 105 megawatt threshold requiring EFSC review.

 

In addition to working through the EFSC state process, ONDA will be watching carefully in 2010 to make sure that BLM fully evaluates the project’s effects on sage grouse, raptors, other wildlife, and the scenic beauty and ecological integrity of Steens Mountain, as the agency studies the transmission line

that would be necessary to implement the project.

 

* * *

 

Through these and other cases, our Legal Defense Program will build on our recent success and we will continue to expand our litigation efforts in 2010. If successful, our work will continue to improve management on millions of acres of public land and along hundreds of miles of desert streams.