PORTLAND – A federal judge has ruled that the Forest Service violated federal environmental laws by failing to adequately protect endangered fish on grazing allotments on the Malheur National Forest.

U.S. District Judge Ancer Haggerty issued his long-awaited order last Friday, June 4.

Haggerty said the Forest Service’s grazing plans could have prevented harm to steelhead habitat, but the agency did not properly carry them out.

“While the grazing program and enforcement process are reasonable, the fact that their implementation relies upon Forest Service and permittee action is more problematic,” he said.

Haggerty was ruling in consolidated cases from litigation that dates back seven years. The plaintiffs are three environmental groups – Oregon Natural Desert Association, Western Watersheds Project and Center for Biological Diversity – who sued the federal government, contending that the Forest Service and other agencies violated the federal Endangered Species Act and the National Forest Management Act. They alleged that the biological opinion used to identify and address impacts on listed species is inadequate and that forest grazing harms endangered fish.

A group of ranchers holding grazing permits on the MNF intervened in the case, also contending that the biological opinion was inadequate and that monitoring standards failed to use the best available science.

In his ruling, Haggerty ordered the parties to confer regarding remedies for violations of the federal laws, and report back by July 1.

Ranchers were encouraged by Haggerty’s finding that the grazing program can work and also that the federal agencies should have allowed them to participate in the development of the biological opinion.

Haggerty found that the National Marine Fisheries Service did not violate the law with its biological opinion of “no jeopardy.” The NMFS was simply relying on information provided by the Forest Service, which claimed to be implementing conservation measures that weren’t actually taking place, Haggerty said.

“The Forest Service may not make empty promises … and then go forward with the proposed action – absent the monitoring and enforcement promised – simply because a no jeopardy BiOp has issued,” he said. “The buck must stop somewhere.”

Haggerty also noted that Forest Service range staff, in internal documents, questioned the required monitoring measures as unrealistic due to funding and staffing constraints.

“Although MNF promised an exhaustive monitoring and conservation strategy, members of the staff charged with implementing it were either entirely unaware of its existence, or doubted their ability to complete it,” he wrote.

He was particularly critical of the agency’s efforts to manage and monitor grazing in 2007 and 2008, citing “inordinate exceedances” of bank alteration standards on the Murderers Creek, Hamilton/King and Fox Creek allotments.

“Only in 2009, under this court’s injunction, was the MNF able to conduct all monitoring and enforcement actions contemplated” by the biological opinion, he said.

Haggerty noted that the consolidated cases were not the first to challenge the MNF grazing program. “This court has repeatedly found the grazing program to be insufficiently protective of listed fish species,” he wrote.

But the judge also ruled that ranchers’ ability to comply with the overall grazing plan isn’t undermined by previous violations of conservation measures.

“Past failures, in and of themselves, do not render the management strategy unreasonable,” Haggerty said.

The permittees charged that a bank alteration standard used in monitoring is arbitrary and not based on the latest science.

Elizabeth Howard, attorney for the permittees, said that while the judge declined to change the standard outright, “he recognizes that the inaccuracy of the measurement protocol … is ‘problematic.'”

She said it’s positive that NMFS must address that issue and also must allow ranchers to submit information during development of a new biological opinion, set to be completed by the 2011 grazing season.

However, Haggerty also ruled that while bank alteration hasn’t been directly linked to a “take” or kill, it plays a role in stability and health of the habitat. Studies say that greater than 20 percent alteration should not occur along high-value fish habitat, and that conservation is improved with a limit of 10 percent, he wrote.

ONDA hailed the ruling as a victory, saying it backed their position that grazing has degraded native steelhead streams on the forest.

Brent Fenty, ONDA executive director, said the ruling will bring long-term improvements in Forest Service management of sensitive streams.

“We want to see steelhead recover in the John Day so they can once again be a central social, cultural and economic asset to people in the basin and to all Oregonians,” he said.

Ken Holliday, a John Day rancher, disagreed that the ruling was a victory for ONDA. He said the ranchers found cause for optimism in the ruling and were particularly pleased at the prospect that NMFS would “commit itself to developing a BiOp that works for ranchers and steelhead, based on the best available science.”

He also saw support for the grazing program, if managed correctly.

“We showed last year that we could do this the right way,” he said. “It all comes back to the fact that the Forest Service has got to do their job, and do it better.”

“We will be working with Congress to get the USFS the support they need to do all of the monitoring and other field work needed for successful grazing,” he said.

The day before issuing his ruling, Haggerty approved a joint plan among ranchers, environmentalists and the federal government that will allow grazing to go forward this summer.

The plan will allow grazing on certain allotments that were previously off-limits to cattle and change grazing levels on other allotments while reducing authorized grazing by 10 percent compared to 2009.

Scotta Callister of the Blue Mountain Eagle and Mateusz Perkowski of the Capital Press contributed to this article.