Fossil Creek Lawsuit: Troubled Waters

Lawsuit seeks to keep cattle out of Fossil Creek watershed

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A simmering dispute about whether to let cattle graze on 42,000 acres in the upper Fossil Creek watershed spilled over into to court once again last week.

The Center for Biological Diversity filed a complaint claiming that the U.S. Forest Service and the U.S. Fish and Wildlife Service both violated the law when they decided to allow 294 cattle and six horses to graze on largely degraded expanses of juniper grasslands on a century-old cattle allotment bounded by Highway 260 on the north and Fossil Creek on the south and east.

Fossil Creek has become perhaps the premier refuge for native fish in the Southwest, rivaled only by a stretch of the Little Colorado River in the Grand Canyon.

Besides half a dozen endangered native fish, the creek and its tributaries provide potential critical habitat for such endangered species as the Chiricahua leopard frog, the bald eagle, the willow flycatcher, bell’s vireo, Yuma clapper rail, Mexican spotted owl and others.

The creek also gets more than 90,000 visitors annually and the Forest Service is considering a master plan that could significantly curtail usage.

The Forest Service’s own analysis of the grazing allotment concludes the soil condition is “impaired” on two-thirds of the allotment and only about half of the streams and springs in “proper functioning condition.”

The lawsuit focuses on a 40-foot-wide, fenced gap that gives cattle direct access to Fossil Creek and on the alleged failure by the federal government to consider whether the cattle will harm the endangered Chiricahua leopard frog by preventing the spotted amphibian from moving between the handful of stock ponds it now occupies on the allotment.

Ironically enough, ranchers created the stock tanks with earthen berms and sometimes water pumps attached to windmills that the frogs now occupy.

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The battle about letting cattle continue to graze on the allotment has sloshed back and forth since 2000, when the U.S. Fish and Wildlife Service proposed listing the Chiricahua leopard frog as endangered, since the frog lived in 13 sites on the allotment. The drought prompted the Forest Service to remove all the cattle for portions of 2002 and 2003 and then again from 2004 through 2006. The condition of the grass improved, so cattle were returned in reduced numbers from 2006 to 2009.

The Center in court successfully challenged the 2009 environmental assessment, prompt­ing the Forest Service to prepare a new analysis that came to the same conclusion in 2013.

The Center is now challenging that study, along with the May 13 decision to continue grazing.

Red Rock Ranger District Ranger Heather Provencio in that determination concluded that allowing the cattle to continue grazing won’t have any significant impact on the leopard frog or the other endangered species found in and along Fossil Creek.

She concluded that rotating about 300 cattle through 28 pastures and giving them access to water in Fossil Creek along one, fenced stretch will not harm any endangered species, including the leopard frogs living in the stock tanks. She noted that the Forest Service will monitor the condition of the grassland and will require the removal of cattle if necessary. The 300 cattle represent a 38 percent decline from the previous cap of about 462 cattle. She noted the grazing plan includes an effort to cut down and burn off encroaching juniper on about 1,200 acres, which will improve the condition of the grasslands.

The permit holder, a cardiologist, has agreed to use adaptive management, which involves monitoring of the condition of the grass and shifting cattle frequently from one pasture to another in hopes that grazing will actually make the grass grow thicker and faster. Letting the cows keep munching away in the same pasture can effectively exhaust the grass — leading to die off and erosion.

Properly managed, Provencio concluded, grazing on the allotment could improve the condition of the grassland and help the frogs by maintaining the stock tanks, chemically treating some stock tanks infested with crayfish and other measures. Invading, non-native crayfish are a scourge in many Southwestern streams, stirring up silt, competing for resources and even eating frog eggs and their young as well as many other native species. Fossil Creek remains largely free of the pests since the decommissioning of a historic hydroelectric plant returned spring water to the creek bed.

Studies show that cattle given uncontrolled access to riparian areas can cause dramatic increases in erosion, silt in the stream and loss of streamside vegetation.

Lawyers for the Centers for Biological Diversity want a federal district court judge to overrule the Forest Service, bar cows from the range and order the federal agencies to undertake additional environmental studies.

The Centers filed memos and other documents obtained through Freedom of Information requests that include references to political pressure from the office of then-Congressman Rick Renzi and others to lift a temporary ban on cattle on the allotment.

One 2006 memo from Action District Ranger Lawrence Lesko to Ron Sieg with the Arizona Game and Fish Department appealed for help in finding a biologist who could do a survey to determine whether leopard frogs continued to occupy ponds and streams on the allotment. He wrote, “folks, I’m getting clobbered by this livestock permittee (then Walt Richberg), Congressman Renzi’s office, Doc Lane (AZ cattle growers) and they are not taking no for an answer. They claim that the 9th Circuit Court ruled we cannot assume occupancy if a survey was not done. I’m not sure what to believe at this point, but I don’t have the time to be talking to these folks every single day. I need some help here.”

Former Rep. Renzi was recently sentenced to prison offering his support for a land swap to allow a massive copper mine near Superior only if the federal government bought as part of the land trade land owned by Renzi’s former business partner. The former business partner then paid Renzi nearly $800,000.

The Centers for Biological Diversity lawsuit concluded that the Fish and Wildlife Service biological opinion “is arbitrary, capricious, an abuse of discretion, and not in accordance with the Endangered Species Act in that it fails to adequately consider the impacts of the Forest Service’s grazing plan.”

The lawsuit also asks the judge to rule that the Forest Service “violated the National Environmental Policy Act and its implementing regulations.”

One key point in the lawsuit revolves around a shifting Forest Service interpretation of a section of the Forest Plan for the Coconino National Forest. That plan calls for grazing only in areas where the cattle leave at least 20 percent of the woody vegetation — like the shoots of cottonwoods, willows and sycamores. One early version of the grazing plan for the allotment suggested the cattle would likely eat virtually all of the woody vegetation on the 40-foot section of Fossil Creek in the so-called Boulder Gap. Forest Service officials then reinterpreted that provision, concluding the 20 percent limit applies to the whole forest, not to any one patch of ground like Boulder Gap.

However, Provencio did decide to keep the cattle out of a second gap that would also allow direct access to Fossil Creek. In that case, she concluded the cattle might get around the fencing and that the fence itself would affect recreational use of the stream.

Comments

Pat Randall 6 months, 3 weeks ago

I don't know where to start on this one. It is really hard trying to tell stupid people something they will understand. First off do any of these people know where their prime rib, T-bone steaks and hamburger comes from or did come from before it was all being imported? Not from some damn frog. Do they want to give up their leather goods, like shoes, purses, coats, wallets, fancy leather seats in their vehicles and all the other things made from leather or do they even know where leather comes from. NOT FROGS. Arizona was a beautiful state and was known for the five Cs. Copper, Cattle, Climate, Cotton and Citrus. It also had beautiful forest with open grasslands in them. Then came the F.S. and environmentalist and decided to improve it. What a job they have done. Now it is becoming the place for endangered frogs, bugs, birds, fish, wild horses and donkeys, horrible looking landscape because of forest fires and people tramping around strewing their garbage every where. The landscape is also being ruined by all the trails being built. Ranchers with their cattle moved them around so they wouldn't ruin the grasslands. They built fences, made dirt tanks to hold rain water for their cattle and which the wild animals also drank from. Now there are metal tanks for water being paid for with our tax money. The cattlemen paid to have their cattle on the forest, It was NOT a free ride like a lot of you think. I was brought up on ranches and my husband and I owned one west of the Doll Baby for thirteen years. So I do know what I am talking about. Cont.

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Pat Randall 6 months, 3 weeks ago

We paid to have 150 head of livestock on 56 sections of land. Figure out how much damage that amount of livestock could do to that much land. If you can figure the acres that are in a section of land. The cattle were being moved from one place to another all the time. There were other ranches that had more land and cattle and the landscapes were very pretty and believe it or not there were birds there, along with fish and frogs in the streams. There would not be all the burned ugly land with no trees we have now if the cattle had been left alone. There is very little citrus or cotton in the lower areas of the state, as it was more profitable to raise houses. Not much copper mining as it might ruin the landscape, as if forest fires don't. If all these people don't like what is happening to Arizona then stay where you are and let a cow have your spot. Believe me if Fossil creek is fenced off from the cattle and only the frogs and people be allowed, the beauty will all be gone real soon.

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