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Payette’s sheep grazing closures upheld in court

Wool growers’ recent shot at reversing a Payette National Forest decision to close domestic sheep grazing allotments missed the mark, a federal judge ruled last month. That shot may also have been the wool growers’ last shot at a reversal, as Idaho Wool Growers Association President Harry Soulen told the Associated Press that in weighing an appeal “we’ve got to study this before we make that decision one way or another.”

The ruling upholds an action the forest took in 2010 in the name of reducing disease risks for bighorn sheep.

The wool growers had argued that under the National Environmental Policy Act (NEPA) the closure plan should be reversed for failure to support the assumption that domestic sheep transmit deadly bacteria to bighorn sheep – as well as failure to consider other possible causes of bighorn mortality, and for using “inadequate data and models.”

In his 22-page ruling, Ninth Circuit Court of Appeals Judge A. Wallace Tashima wrote favorably only of the wool growers’ first argument – but then only before rejecting it as well. The Forest Service and other defendants “did not retain experts with specialized expertise in disease transmission,” but rather “relied on an extensive scientific literature to support their assumption that domestic sheep transmit a deadly pathogen to bighorn sheep,” Tashima wrote. “That literature was authored in large part by veterinarians, infectious animal disease experts, and pathologists. And defendants’ experts in disease modeling, wildlife biology, wildlife ecology, and epidemiology were qualified to interpret the literature and to determine that the weight of the evidence supported the plausibility of disease transmission between domestic and bighorn sheep.”

According to Tashima, the wool growers also argued “in effect, that the disease transmission science is uncertain.” Of that argument, Tashima wrote: “[The defendants] have identified a risk to bighorn sheep viability, and they have reasonably concluded that the risk is sufficient to warrant action...The scientific literature on which defendants relied permitted a ‘reasoned choice among alternatives,’ despite attendant uncertainties.”

The wool growers also argued the risk to bighorn herds posed by their contact with domestic sheep was not unique, as bighorn herds could transmit disease to one another, could contract disease from wolves and – despite the Payette National Forest grazing allotment closures – could still contact domestic sheep elsewhere.

Tashima dismissed each point in turn: “One risk, endemic disease cycling, does not take away from other risks. … NEPA does not require that agencies eliminate all risks contributing to a problem before they can address one of those risks.” … “Defendants concluded that wolves did not significantly affect the risk of disease transmission to bighorn sheep based on the facts that bighorn sheep and wolves had cohabited the Payette for many years and that bighorn sheep had ‘survived in large quantities;’ bighorn sheep are generally located in ‘terrain too severe for wolves;’ and no research has shown that wolves affect bighorn susceptibility to disease.” … “Defendants recognized the increased risk of contact from off-Payette grazing but they cannot control that risk factor. Rather, they can control grazing only on the Payette, and their chosen alternative will reduce the risk of disease transmission, even if it does not eliminate the risk entirely. … NEPA does not dictate substantive results.”

The ruling upholds a 70 percent reduction in Payette National Forest domestic sheep grazing, which the forest has pursued since 2003 and finalized in 2010.

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