A federal judge is allowing litigation to proceed against the government for permitting Hammond Ranches to graze cattle on 26,000 acres in Eastern Oregon during the Trump administration.

Though the U.S. Bureau of Land Management blocked Hammond Ranches from using the four allotments about three years ago, when the Biden administration came to power, the judge said that didn’t entirely moot the case.

In 2018, Steven Hammond and his father, Dwight Hammond, were pardoned and released from prison while serving mandatory 5-year prison terms for arson, after they’d been convicted of setting fire to public rangelands.

Protests against the severity of their punishment had escalated into a standoff with federal agents at the Malheur National Wildlife Refuge two years earlier, resulting in the death of a protester and the arrests of others.

Once the Hammonds were freed, BLM allowed them to resume releasing cattle onto four allotments but environmental groups filed a lawsuit over the decision and in 2019 a federal judge agreed the grazing permits had been restored unlawfully.

The federal government again authorized grazing by Hammond Ranches in the final days of the Trump Administration, spurring the current lawsuit, but that decision was rescinded in early 2021 by the Biden Administration.

BLM failed to disavow action

The government’s previous decision allowing grazing to resume “has not been disavowed in a manner demonstrating that it is not reasonably likely to recur,” which means the lawsuit can remain active, according to U.S. District Judge Michael Simon.

The BLM asked the lawsuit to be thrown out because it’s unlikely to allow cattle onto the allotments while preparing an environmental study on their impacts, which is due to be finished in mid-2024.

Environmental advocates argued it actually is possible the BLM will repeat its conduct, urging the judge to keep the case alive and to rule the government had unlawfully restored the Hammonds’ grazing permit under Trump.

The plaintiffs have also signaled they’ll oppose the BLM if it “plans to repeat at least some of the challenged conduct” by fully restoring the Hammond family’s access to the 26,000 acres near Diamond, Ore.

The Western Watersheds Project and other environmental nonprofits claim Hammond Ranches is “unqualified” for such grazing privileges, but the BLM’s actions indicate it will likely “recycle” the problematic earlier authorization “while still failing to impose protections.”

BLM working on impact statement

Simon has agreed to drop a couple of the claims against BLM but in allowing litigation to remain active he has adopted recommendations issued by a federal magistrate judge roughly a year ago.

The BLM had asked Simon to come to a different conclusion from the magistrate judge, arguing it’s made significant progress in the past year on a draft “environmental impact statement” about the effects of grazing, which is likely to be complete in June 2024.

The report will incorporate “new information and analyses,” including assessments of sage grouse habitat, rangeland health, and the allotments’ carrying capacity, the BLM said. Since it’s unlikely the agency will suddenly restore the permits now, it’s not worth proceeding with a lawsuit “based on a stale administrative record,” the agency said.

“Rather, BLM should be allowed to devote its limited resources to completing its new decision-making process instead of litigating defunct claims,” the agency said.

Given the years that have passed since BLM began the review, there’s “a reasonable chance” it could again restore the Hammonds’ permits without an adequate environmental analysis — especially since a new Trump administration could be elected in 2024, the environmental plaintiffs said.

Even if the new EIS is finished, it appears “the Bureau plans to repeat at least some of the challenged conduct,” since the agency is studying alternatives “identical or virtually identical” to its previous assessment, according to the Western Watersheds Project and several other nonprofits.

The agency is studying the “identical seasons of use and forage allocation levels,” and its “preferred alternative” involves issuing another 10-year grazing permit with the same stocking levels, the plaintiffs said.

Meanwhile, the plaintiffs said their expert has determined some of the rangeland is “irreparably and likely permanently damaged by fire,” so continuing to exclude cattle “would be the most reasonable prescription in an attempt to restore ecosystem health.”

By quickly ruling that the previous permit restoration was unlawful, the judge can “prevent the Bureau from repeating its errors” and “returning to its old ways,” the plaintiffs said.

If the agency does issue a new decision, the plaintiffs would seek to “amend or supplement its complaint to challenge those new actions.”

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