For the week of June 12 - 18, 2002

District ranger’s decision upended

Grazing in high Pioneers at stake

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"My decision to (close the Pot Creek allotment) follows five years of monitoring and subsequent discussions with the Muldoon Grazing Association permitees."

KURT NELSON,
Ketchum District ranger

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By GREG STAHL
Express Staff Writer

Ranchers won a bout with the U.S. Forest Service this spring when an acting forest supervisor second guessed a long-time district ranger, reversing a decision to permanently close a grazing allotment in the southern Pioneer Mountains. Environmentalists, however, are preparing to appeal the ranchers’ successful appeal.

Laurie Tippin, who managed the Sawtooth National Forest while the agency searched to permanently fill the forest supervisor position, decided April 24 to overturn a decision by six-year Ketchum District Ranger Kurt Nelson to permanently close the Pot Creek grazing allotment, which includes the headwaters of the Little Wood River, north of Carey.

However, an environmental group said Friday it will litigate the matter if newly appointed Forest Supervisor Ruth Monahan does not reverse then-Acting Forest Supervisor Tippin’s decision.

"In the event that you fail to reverse the Notice of Decision, and affirm the reasonable and prudent determination of District Ranger Kurt Nelson, you are hereby on notice that my client intends to bring federal court litigation," wrote Western Watersheds Project Attorney Todd Tucci.

Further complicating things, the Pot Creek Allotment changed hands about the time its permit was canceled. Appeal letters were filed with the Forest Service by former Pot Creek permitee Jim Peterson and Idaho Secretary of State Pete Cenarrusa, who were both shareholders in the Muldoon Grazing Association.

But from 2000 to 2001, both Peterson and Cenarrusa sold their shares in the association to California Investment Banker Brian Bean. Reportedly, Bean has amassed an impressive empire of southern Idaho sheep grazing allotments—roughly 750,000 acres. It’s also been said he plans to raise organic sheep. The interest in the Pot Creek Allotment is now his.

The Pot Creek Allotment is partly above timberline country near some of the highest peaks in Idaho.

"It’s high cirque basins, box canyons, several small creeks," said Ketchum District Range Conservation Officer Mike O’Farrell. "It’s very steep canyons that flatten out toward the Little Wood, but, for the most part, it’s over-steep."

Very little of the land is suitable for grazing, O’Farrell said.

But in a list of her findings, Tippin stressed a U.S. Court of Appeals case she deemed relevant in which the court reversed a district court decision upholding the Forest Service’s cancellation of a term grazing permit. In that case, Anchustegui vs. Department of Agriculture (2001), the appeals court concluded that the Forest Service’s cancellation of a permit was invalid because the agency’s show-cause letter "instituted agency proceedings against (the rancher) without prior written notice and an opportunity to demonstrate compliance."

By associating Pot Creek with the Anchustegui case, Tippin contended that Nelson’s decision was based on permit violations rather than on the suitability of range in the allotment.

However, the Pot Creek Allotment’s alleged range deficiencies appear to be nothing new to the Forest Service, which completed a Little Wood Ecosystem Analysis in 1995. The document, which predated Nelson’s tenure with the Ketchum district, recommended that conditions on the allotment be monitored through 1996, and if not shown to be satisfactory, the allotment canceled.

Nelson pointed out in documents obtained through a Freedom of Information Act request that Ketchum District range and resource staff members conducted annual monitoring inspections from 1994 through 2000, with the exceptions of 1995, a year when there was no grazing on the allotment, and 1997.

"These inspections were made to determine the effects of sheep grazing on the allotment, its condition and the ability of the permitee to graze sheep within standards," Nelson wrote.

Further, inspections dating to the 1940s expressed resource concerns with the area including erosion; excessive browsing on riparian vegetation, grass species and sedges; soil movement and stream bank sloughing.

"These conditions raised questions as to overall capability of this allotment for sustained grazing," Nelson wrote.

In 1992, an interdisciplinary team conducted field reviews, finding that the resource concerns identified in the 1940s were still valid. The team’s report kicked off the Little Wood Ecosystem Analysis.

"My decision to (close the Pot Creek allotment) follows five years of monitoring and subsequent discussions with the Muldoon Grazing Association permitees," Nelson wrote.

O’Farrell reiterated that communication between the Forest Service and permitees was regular and clear. The Forest Service conducted annual meetings and allotment surveys in order for the permitees to "show us it could work," he said.

But Tippin’s main point, which stemmed from the Anchustegui case, was that the association members "were not provided the opportunity to demonstrate compliance prior to the permit action being taken."

"Therefore," she wrote, "I reverse the district ranger’s decision to close the Pot Creek allotment portion of the association’s term grazing permit in whole."

Western Watersheds Project and the group’s attorneys said the permit cancellation was overturned on a loosely connected technicality.

"Legally, I think Pot Creek probably is an important one for us to get involved in," said Land and Water Fund of the Rockies Attorney Laird Lucas.

Lucas contended the Anchustegui decision does not relate to Pot Creek, and, if Tippin’s decision stands, it could set a poor precedent for similar scenarios down the road.

"It really is apples and oranges," he said.

Anchustegui was a case where the Forest Service revoked a permit because the permitee had willfully violated conditions of the governing permit. Pot Creek is different, Lucas said. The permit was revoked because of the unsuitability of the land.

"The land is not suitable," he said. "This whole notion of giving them warning does not apply here.

"For somebody to waltz in from out of town as an acting supervisor and overturn this, and coincidentally it happens right after the Bush Administration has taken office, it just smacks of the overbearing political clout of the livestock industry using its influence. Cowboys get their politician prince to come in and fix things for them."

Lucas alluded to the possibility that politics somehow played a role in Tippin’s decision, and such speculation is inconclusive, but Rep. Mike Simpson, R-Idaho, responded in writing when Peterson, in June of 2001, told him that the Forest Service was being "arbitrary and unreasonable."

On June 29, Simpson wrote then Regional Forester Jack Blackwood requesting an investigation into the closures and possible methods of helping the permitees.

"I again respectfully point out that we have a new administration and that now is the perfect time for the Forest Service and other public lands agencies to renew their commitment to find innovative, cooperative approaches to permit oversights and enforcement," Simpson wrote.

Sawtooth Supervisor Monahan, who has been on the job roughly one week, received the environmentalists’ letter, but has not yet had the chance to review the matter, Sawtooth Spokesman Ed Waldaphel said.

 

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