Protecting Arizona’s Wild: How Environmental Groups are Holding the Forest Service Accountable Under the Endangered Species Act

By Abigail Knox.

On October 13, a Ninth Circuit judge approved a settlement agreement that holds the Forest Service accountable for protecting Arizona’s watersheds and the endangered species that live there from the damage of domestic livestock grazing. For environmentalists, it’s like Groundhog Day: decades ago, the federal government promised to prevent grazing on Arizona’s sensitive riparian areas. However, the Center for Biological Diversity (CBD) and Maricopa Audubon Society (MAS) have found significant damage as a result of years of unauthorized cattle grazing. Based on these findings, CBD and MAS initiated multiple lawsuits last year, alleging that the US Forest Service and the US Fish and Wildlife Service are in violation of the Endangered Species Act due to their nonenforcement of these grazing restrictions. This time around, will the Forest Service do their part to protect some of Arizona’s most precious land and animals?

What’s at Stake

Two of the waterways found to have been negatively affected by the grazing, the Verde River & Fossil Creek, are the only two designatedWild & Scenic” rivers in Arizona. These have also been designated as Arizona Heritage Waters based on their cultural, biological, and geohydrological significance. The Verde River stretches over 192 miles, and federal lands comprise 62% of its watershed.

The Verde River harbors one of the largest remaining native fish assemblages in the state, including many threatened and endangered species. The Verde is home to the largest number of bald eagle breeding areas of any river in the state, and even supports a population of river otters, a rare find in Arizona. Other affected waterways, including the Gila River, are also habitat for endangered species, including the Mexican spotted owl, Chiricahua leopard frog, Southwestern willow flycatcher, and many types of native fish.

Endangered and threatened species are federally protected under the Endangered Species Act. If a person or entity’s actions harm a protected species, even indirectly through significant habitat modification or destruction, they can be liable under the Endangered Species Act. The government is not above this law: Section 7 of the Endangered Species Act requires that federal agencies ensure that their actions won’t jeopardize protected species. When a lawsuit is brought against a federal agency under Section 7, the Fish and Wildlife Service submits a biological opinion to determine if an endangered species may be harmed by the agency’s action and recommends alternative courses of action.

A 20+ Year Battle

Much of the most beautiful and threatened areas of Arizona’s unique landscape, such as the Verde River, are within federally managed land. The government allows domestic livestock to graze on permitted allotments on some of that land, including the Apache-Sitgreaves and Gila National Forests. In 1997, CBD found that cattle grazing resulted in trampling and destruction of the riparian areas within some of those allotments, causing habitat loss for many endangered and threatened species. In a 1998 settlement, the Forest Service agreed to remove and prohibit cattle from 99% of riparian habitats within the grazing allotments until the Fish and Wildlife Service studied the effects and issued an opinion.

The Fish and Wildlife Service’s subsequent opinion determined that livestock exclusion in certain riparian and upland areas is necessary for protection of endangered species. The opinion stated that nearby cattle grazing allotments would not adversely affect the endangered species as long as the cattle were excluded from the sensitive areas immediately surrounding the waterways. However, this exclusion has been poorly enforced by the Forest Service.

In the past few years, CBD and MAS conducted extensive assessments of the excluded riparian areas across the state, documenting the detrimental effects of unauthorized cattle grazing and the extent of the Forest Service’s nonenforcement. For example, in 2019, CBD and MAS found that 62.6 stream miles, or 44% of the Verde River watershed had moderate to significant impacts from cattle grazing, while only 30% had no impact from grazing. They also found that many of the fences erected to exclude the cattle were in disrepair, and some excluded areas had no fencing at all.

Who Owns the Cattle?

The cattle ranchers are aware of the excluded riparian areas. According to the Center, the ranchers have ignored the restrictions and recklessly allowed their cattle to graze. On the other hand, the ranchers say that much of the cattle in these excluded areas are unowned and unbranded, leaving it to the Forest Service to remedy. At this point, environmental groups like CBD have not officially involved the ranchers in any legal action for the damage to the endangered species. Therefore, the ranchers have not been involved in the conversation about where their cattle can and can’t graze, and why.

Including the ranchers in these conversations could add nuance to the CBD’s and Forest Service’s adversarial positions. The Arizona Farm and Ranch Group advocates for conscientious federal land management policy while balancing agricultural needs with environmental concerns. Members of this Group recognize the Forest Service’s failure to maintain the fences, but argue that the grazing cattle are the least harmful aspect of the land management regime within these sensitive areas. Wildfires, the ranchers say, are a much more harmful and imminent threat. The ranchers believe that the litigious efforts of CBD and MAS have, in fact, hamstrung the Forest Service from using its resources on effective land management practices that would better protect the endangered habitats from threats like wildfires. In the ranchers’ view, the Forest Service is stretched too thin to effectively monitor these excluded riparian areas and their resources are better used elsewhere.

The Dust Settles, for Now

In their lawsuits, the Center asked the court to order the Forest Service to remove the livestock, remediate the riparian areas, construct new fences and repair existing fences, and monitor and inspect the areas monthly.

The recently approved settlement agreement provides that the Forest Service will conduct only two annual inspections of allotments. If they find unauthorized livestock in excluded riparian areas, they will determine how they got there and what corrective action is needed (such as fence repairs or additional fencing) and will remove the livestock through proper administrative processes. The Forest Service will accept and act on reports of unauthorized livestock from the Center or the public and will publicly report inspections and actions quarterly.

The settlement agreement is only for a three-year term. While environmental activists are pleased by the promises the federal agency has made, many are left wondering: once those three years are up, can we trust the Forest Service to protect our cherished waterways and endangered species after over 20 years of complacency?

"Cattle grazing" by Oregon State University is licensed under CC BY-SA 2.0

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By Abigail Knox

J.D. Candidate 2023

Abigail Knox is an ASLJ Staff Writer and a 2L from Phoenix, Arizona. She is the Vice President of Communications for the Student Bar Association. Abigail hopes to pursue a career in the intersection of real estate, land use, and environmental law. Outside of law school, she enjoys playing piano, baking, reading science fiction, and spending time in nature.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.