10/15/2009

By JOHN MILLER  / Associated Press

A federal judge Wednesday ordered a western Idaho rancher to keep his sheep off his family's traditional grazing ground on public land, at least temporarily, to protect wild bighorns.

In his 17-page ruling, U.S. District Judge Lynn Winmill wrote that a pact between a Salmon River rancher and the state to keep his domestic herd away from wild bighorns on the Bureau of Land Management allotment fell short of the 2009 Legislature's new law aimed at protecting Idaho's ranching industry and helping bighorns.

Winmill ruled in favor of The Wilderness Society, Western Watersheds Project and Hells Canyon Preservation Council, which contended a native bighorn sheep herd near Riggins was at risk of catching deadly diseases if the allotment near Partridge Creek opened on schedule Thursday.

Idaho bighorn numbers have dwindled by half since 1990 to about 3,500 animals after several mass die-offs; wildlife managers believe bighorns can catch diseases like pneumonia when they come into contact with domestic sheep on the range. Winmill said he was trying to prevent more outbreaks.

"Irreversible damage is possible here," Winmill wrote. "Bighorns could become infected and roam far up-river in the Salmon River drainage, infecting the other native bighorns along the way causing large-scale losses."

His order is in place until at least Nov. 2, when Winmill plans another hearing.

This year, Idaho lawmakers passed a plan requiring the state Department of Fish and Game director to certify the risk of disease transmission between bighorn and domestic sheep was "acceptable for the viability of the bighorn sheep" once ranchers and the state had crafted Best Management Practices, or BMPs, to keep the two species apart on the range.

The state and rancher Mick Carlson, whose family has grazed the Partridge Creek allotment since 1937, negotiated such an agreement in August. Among other things, he agreed to have two herders, three guard dogs and three herding dogs with each band of sheep. He was also allowed to kill bighorns that wandered into his herd.

In his ruling, however, Winmill said the agreement relied on voluntary compliance and couldn't be enforced by the BLM.

"The director here certified that the risk has been reduced to an acceptable level," the judge wrote. "Acceptable to who? Acceptable under what standard?

"These questions are not answered," Winmill added. "There is no certification in this case that upon implementation of the BMPs, the risk of disease transmission will be acceptable for the viability of the bighorn sheep."

State Fish and Game officials didn't immediately respond to a request for comment.

One of the groups that sued to close the allotment said Winmill's order shows the weakness of Idaho's new law, absent actual documentation such management practices will really help bighorns survive.

"There is no science on which it is based," said Jon Marvel, director of Western Watersheds in Hailey. "These Best Management Practices are, first of all, voluntary, and second, there is no testimony in the record from any scientist that concludes that they will be effective in protecting bighorn sheep."

Carlson, who has already been barred from grazing U.S. Forest Service allotments nearby, argued in court he can't run his operation in a profitable manner if more than 800 of his sheep are kept off the BLM's Partridge Creek area, too.

A phone call to Carlson wasn't immediately returned, but in court he contended it will cost him about $9,000 more if he's forced to restrict his sheep to his private ground along the Salmon River and to the south in Emmett.

Winmill did order plaintiffs to post a $9,000 bond to cover Carlson's possible costs and damages, should the court later determine the temporary restraining order was inappropriate.

Stan Boyd, the Idaho Wool Growers Association director, said Wednesday he wanted to read the ruling before commenting.