PORTLAND — A federal judge has issued a temporary restraining order prohibiting two Oregon ranchers pardoned last year on arson charges from grazing cattle on four federal allotments.
U.S. District Judge Michael Simon ruled on June 4 that environmental groups are likely to prevail on their claim that the federal government violated its own regulations by restoring the grazing permit of Steven and Dwight Hammond of Diamond.
Simon also determined the 28-day restraining order is justified because the environmental plaintiffs — Western Watersheds Project, Center for Biological Diversity and Wildearth Guardians — have shown a substantial likelihood of irreparable harm if cattle are turned out on public land allotments on June 7 and July 1 as planned.
The plaintiffs and the U.S. Interior Department, which oversees the allotments, are expected to engage in further arguments on June 28 regarding a longer-term preliminary injunction against grazing while the lawsuit is pending.
Both men were convicted in 2012 of setting fire to federal land, but were sentenced to, and served, terms less than the five-year minimum sentence required by law.
In 2016, the Hammonds were returned to prison after 9th U.S. Circuit Court of Appeals found they must complete the minimum sentences. Last year, President Donald Trump issued the ranchers full pardons and released them from prison.
Shortly before leaving office in January, former Interior Secretary Ryan Zinke ordered the U.S. Bureau of Land Management to reinstate the Hammonds’ grazing permits for four allotments abutting their ranch. The environmental groups filed a lawsuit opposing Zinke’s order.
During oral arguments in Portland on June 4, the federal government claimed the environmentalists lacked justification for a temporary restraining order.
It’s unlikely the plaintiffs can prove that grazing will cause irreparable injury to the greater sage grouse and redband trout, which are sensitive species in the area, said Stephen Odell, the government’s attorney. Their allegations of irreparable harm are based on “generic” testimony of the plaintiffs’ expert, Clait Braun, who did not distinguish between proper and improper grazing or visit the allotments, Odell said.
“He’s never examined the habitat about which he’s purporting to make expert assertions,” Odell said.
The environmental groups also requested the temporary restraining order several months after the Hammonds’ grazing permit was renewed and several weeks after cattle were first turned out onto one of the allotments, he said. A temporary restraining order cannot be based on an emergency that the plaintiffs brought about themselves by waiting for so long to take legal action, according to the government.
Most rangeland health standards have been met for the Mud Creek Allotment, where the plaintiffs seek to prevent cattle from being released on June 7, the government said. While the allotment has fallen short of the rangeland health standard for protected and sensitive species, that wasn’t caused by grazing but rather due to sagebrush habitat suffering from the encroachment of juniper, invasive weeds and fire, the agency said.
Even before the Hammonds’ grazing permit was revoked in 2014 due to their earlier arson convictions, evaluations of the allotments found that grazing levels weren’t improper or excessive, according to the government.
The environmental groups argued the Hammonds’ grazing permit was restored even though they lacked a “satisfactory record of performance” due to an abrupt decision by Zinke on his last day in office in early 2019. Associated documents were not released to the plaintiffs until grazing had already begun on one of the allotments in April, said David Becker, attorney for the environmental groups.
Authorizing the Hammonds’ grazing permit violates federal regulations and will encourage the ranchers to again set fires and otherwise harm the four allotments, which have been recovering during the past five years without grazing, the plaintiffs said.
A temporary restraining order is justified because the plaintiffs are likely to prove the grazing permit was renewed due to the pardons rather than the Hammonds’ track record, which is contrary to federal environmental and land management laws, the environmental groups claim.
Zinke should also have performed an environmental analysis of renewing the grazing permit instead of “categorically excluding” it from such review, which didn’t account for the ecologically important area in which the allotments are located, the plaintiffs said.
Grazing in the allotments will damage sage grouse habitat and streams occupied by redband trout, while the Hammonds won’t suffer much financial damage since they can graze cattle elsewhere, as they did before the permit was renewed, according to the environmental groups.
The temporary restraining order against grazing is necessary because June is a critical month for the sage grouse, whose chicks forage near nests and depend on vegetative cover to protect them from predators, Becker said.
“It increases the likelihood they won’t survive,” he said.