Malheur Wild and Scenic Rivers
Malheur Wild and Scenic Rivers Bull Trout Habitat (ONDA v. U.S. Forest Service)
This case involves United States Forest Service decisions approving livestock grazing in protected corridors along the Malheur and North Fork Malheur Wild and Scenic Rivers in eastern Oregon. The rivers and their tributaries provide critical spawning, rearing, and migratory areas for bull trout, a native fish protected as a “threatened” species under the Endangered Species Act. With fewer than 50 adult bull trout left in each of these two river systems, the fish is alarmingly close to local extirpation.
Bull trout require the cleanest, coldest water of any inland native fish in western North America. After a century of livestock grazing and other human activities that have caused widespread damage to and loss of these habitats, bull trout today occur in less than half of their historic range.
Under the National Forest Management Act, the Forest Service must ensure that any grazing it authorizes is consistent with the Forest Plan that guides the use of the Malheur National Forest. The Forest Plan includes a strategy (known as “INFISH”) “to arrest habitat degradation and initiate recovery” of inland fish habitat; but to do so, the Forest Service must modify or suspend grazing practices that “retard or prevent attainment of” measurable riparian objectives such as bank stability, stream width-to-depth ratio, and the presence of pools — all essential characteristics of good fish habitat.
Under the National Wild and Scenic Rivers Act, the Forest Service must “protect and enhance” the “outstandingly remarkable” values of the Wild and Scenic River corridors.
For years, grazing authorized by the Forest Service on the Malheur National Forest has degraded stream and riparian (streamside) habitat essential to the bull trout’s survival. The cattle trample stream banks and consume vegetation that would otherwise stabilize the banks. That results in shallow, wide streams that are too warm for the fish to survive, and soil erosion that buries the rocky layers the fish need to build their nests, called “redds.” The Forest Service has failed to collect sufficient data to understand whether it is meeting the quantifiable, habitat-based riparian standards protective of these habitat attributes, and has failed to evaluate the information is has collected to ascertain whether it must modify or suspend grazing that is retarding or preventing attainment of those ecological standards.
The Forest Service’s chronic failure to meet INFISH habitat standards has resulted in, at best, maintaining a degraded environmental baseline and, more commonly, a worsening downward trend—in violation of the agency’s duty to “protect and enhance” the bull trout and its habitat in the Malheur and North Fork Malheur Wild and Scenic River corridors.
ONDA filed this case in 2003. In their June 2004 opinion, the Court noted that “the way in which grazing has been managed on these lands is clearly at odds with the statutory mandates related to the protection of the river corridors and the species that depend on them.” ONDA successfully appealed to the Ninth Circuit an early dismissal of the case on jurisdictional grounds, setting important legal precedent along the way.
As of 2017, the case is back before the district court on the merits. It follows on other recent successes protecting nearby habitat for steelhead trout.