POCATELLO — Understanding the need for a quick decision on his part, Chief U.S. District Judge B. Lynn Winmill, after hearing arguments on a motion seeking to stop grazing of cattle in the Little Lost River Watershed because of its potential affects on the Bull Trout, an endangered species, said he would try to return a decision by next week.
The suit, filed earlier this year in U.S. District Court in Pocatello by the Western Watersheds Project against the U.S. Fish and Wildlife Service and the U.S. Forest Service, is seeking “declaratory and injunctive relief for ongoing violations of the Endangered Species Act relating to livestock grazing in the Little Lost River watershed...”
The suit claims that three livestock grazing allotments within the Salmon-Challis National Forest and the BLM’s Upper Snake Field Office jurisdiction, are violating the Endangered Species Act because of the destruction that livestock, primarily cattle, are doing to the Little Lost River.
Wednesday’s hearing, however, was focused on just one of those allotments, the one that includes Wet Creek, a tributary to the Little Lost River, across which area ranchers have permission to move some 3,000 head of cattle during this summer.
Removal of the larger Mill Creek allotment, included within the suit when originally filed, happened because the U.S. Forest Service through talks with the Western Watersheds Project has pulled permission for cattle to graze on the larger allotment, was revealed during Wednesday’s hearing.
But Kristin Ruether, an attorney for Advocates For The West, an advocacy group in Boise, told Winmill that the Wet Creek, no matter how few Bull Trout it is home to, is vital to restoring the fish to viable numbers. In addition, she said, the cattle are slated to cross Wet Creek in area historically known as a spawning and staging location for the fish and within a time frame during which they are expected to be spawning and staging.
She said the prospects of the Bull Trout’s long-term viability were poor if the grazing of cattle, which she said disturbs the creek and riparian areas, substantially affecting the fish, isn’t stopped.
Winmill pointed out at the start of the proceeding, that the cattle would be crossing Wet Creek in a quarter-mile length of the tributary that lies just north of a private area of the creek and is one-third of the three-quarter mile area considered to be the spawning and staging area for the fish.
Ruether, during her argument, pointed out that past U.S. Fish and Wildlife Service studies have shown that the area of Wet Creek in private land and to the north of that land, are used by the Bull Trout for spawning and staging.
But in his argument, Brett Grosko, an attorney with the U.S. Department of Justice’s Environmental Natural Resources Division who is representing the federal agencies in the suit, said a declaration released on Tuesday, updates just where the spawning and staging area is.
He said that report shows it is the portion of Wet Creek on the private land and to the south, or upstream, where the Bull Trout are now spawning and staging. In addition, he told Winmill, it has been proven that the Bull Trout, should they be in the area of Wet Creek where the cattle will cross, during the time they are crossing, will move away from the cattle and out of harm’s way.
Grosko said that less than 5 percent of the Bull Trout in the Little Lost Watershed are in Wet Creek and any incidental loss that does happen would be negligible. He also said the suit comes down to a matter of how much inconvenience to the Bull Trout is too much inconvenience.
In response, Ruether told Winmill that prior U.S. Fish and Wildlife Service reports say that every allotment where Bull Trout exist, regardless of how small the numbers, are important to the future viability of the species. In addition, she said, when the U.S. Fish and Wildlife began doing a new assessment of the Little Lost Watershed, it made the prior report moot and the Endangered Species Act dictates the federal agencies must prove any actions, including cattle grazing, will not be detrimental to the Bull Trout while the new report is pending.
After hearing more than 60 minutes of arguments from both attorneys, Winmill ended Wednesday’s proceeding, saying he realized a portion of the grazing cattle are scheduled to cross Wet Creek in mid-July and he would do his best, despite a full calendar, to return a decision by next week.