Ruling leaves grazing up in the air

The state Department of Fish and Wildlife has shelved its pilot grazing project in southeast Washington after a judge ruled it had acted arbitrarily in moving ahead with the program over the objections of its own biologists.

How the ruling affects a controversial cattle-grazing project in the Whisky Dick and Quilomene Wildlife areas of eastern Kittitas County in May and June, though, hasn’t been decided.

“If the state chooses to ignore the decision because it technically applies to the 2009 authorization for Pintler Creek on the Asotin Wildlife Area and nowhere else, they do so at their own legal risk,” said Jon Marvel, executive director of Western Watersheds Project, the Idaho-based conservation group that had sued the Wildlife Department over its pilot grazing project.

Western Watersheds has also sued the department over its part in the management process to graze portions of the Whisky Dick and Quilomene Wildlife areas and other nearby state and private lands on neighboring pastures in eastern Kittitas County. No hearing date has been set on that case. Both cases were filed in Thurston County Superior Court.

 Western Watersheds attorney Kristin Ruether said the ruling on Friday “addresses the heart of whether it’s appropriate to do commercial grazing on state wildlife areas. It may be a turning point. We’ll have to wait and see.”

Superior Court rulings are not binding on other courts, Ruether said. “But they can certainly be persuasive, especially when the facts might be so similar.”

Jack Field of the Washington Cattlemen’s Association said he was surprised by the ruling.

“I honestly don’t know how that will impact the (Whisky Dick and Quilomene plans),” he said.

Wildlife Department state lands manager Jennifer Quan said Monday that state officials haven’t decided yet “whether the decision has larger statewide implications.”

“We still have yet to make decisions about how we move forward with other permits,” Quan said.

Wildlife Department director Phil Anderson said he thought the issues related to the pilot grazing and Kittitas County projects were “apples and oranges.”

But he said Judge Paula Casey’s ruling had essentially set a new standard for grazing on state wildlife lands that the department would have to consider.

“I think we do need to be mindful of this standard the judge brought into determining whether grazing is appropriate or not — from (the previous standard of) doing no harm to the quality of habitat for wildlife to having to have a benefit for wildlife,” Anderson said. “I think that’s a much different standard than we had been looking at.”

Marvel said livestock grazing projects on state wildlife lands “are illegal as currently constituted,” a statement with which assistant attorney general Matthew Kernutt said he strongly disagreed.

“This ruling is not binding on other Superior Court judges,” Kernutt said, “and was not a ruling that all grazing on state wildlife lands is arbitrary and capricious.”

In her ruling, Casey dismissed claims that the Wildlife Department had violated state environmental law. But she lambasted the agency in what one observer called an “astounding 10-minute speech” for continuing the pilot process over criticisms and concerns by its own  biologists.

Ruether said her brief to the court referred to “an avalanche of documents” showing grazing was harmful to wildlife, not beneficial. In Casey’s ruling, the judge agreed, saying the department had failed to demonstrate any benefit to wildlife.

Rob Kavanaugh of Olympia, who collected some 3,000 supporting documents for Western Watersheds’ case through public-disclosure requests, said they included internal e-mails from the agency’s own biologists objecting to the pilot grazing.

“For almost three years I’ve been sending requests for public records showing any benefit to wildlife as a result of this managed grazing,” Kavanaugh said. “And every response coming from the department says there are no records showing benefit to wildlife. And this was brought up in court.”

The Whisky Dick grazing plan had been all but tabled due to a lack of funding to develop springs in the areas to be grazed. Late last month, though, the Kittitas County Conservation District approved about $37,000 for spring development and cultural resource surveys associated with the grazing.

“This is an important local issue to local ranchers,” said Anna Lael, conservation district manager. “They’ve looked at all the issues in terms of being able to balance wildlife and agricultural issues, and to have the chance to implement this plan they all put together is important.”

The $37,000 came from a 10-year, per-parcel, per-acre special assessment approved by Kittitas County commissioners four years ago, to be collected along with property taxes. The amounts assessed vary depending on the types of land use, but are never greater than $5 per parcel plus 10 cents per acre, Lael said.

The original five-year plan for grazing public lands in eastern Kittitas County called for the equivalent of 550 cows with one calf each grazing for one month on 51,104 acres in and surrounding the Whisky Dick and Quilomene Wildlife areas.

Under the new, truncated version of that plan, the grazing permit would allow the equivalent of 250 cows with one calf each on western portions of the wider area of what was originally planned, said Wildlife Department rangeland ecologist Mel Asher.

Only about 5,800 acres of state wildlife land will be grazed, none of them in the eastern end of the two areas.