A federal judge on Friday revoked the grazing permit for Hammond Ranches Inc., finding that former Interior Secretary Ryan Zinke’s order renewing it early this year was an “abuse of discretion.”
Dwight Hammond Jr. and his youngest son, Steven Hammond, can reapply for a new permit and go through the proper process to obtain one, U.S. District Judge Michael H. Simon said.
Neither Zinke or the U.S. Bureau of Land Management made a finding that the Hammonds were in “substantial compliance’’ with federal grazing regulations or had a “satisfactory history of performance’’ as required, the judge found.
“Secretary Zinke simply avoided the issue altogether. Under federal law and agency regulations, he may not do this,’’ Simon wrote in a 41-page ruling issued after he heard oral arguments on Thursday.
“The Secretary’s failure to comply with the governing statutes and regulations, acknowledge his departure from agency policy and practices, and provide a reasoned explanation for that departure are all serious errors,’’ the judge found.
Three environmental advocacy groups — Western Watersheds Project, the Center for Biological Diversity and WildEarth Guardians — had sued the interior secretary and the U.S. Bureau of Land Management, arguing that Zinke acted as if he was “above the law’’ by failing to consider the Hammonds’ unsatisfactory record or do proper environmental reviews before ordering the renewal of the grazing permit in February.
“Secretary Zinke’s errors were egregious. He simply ignored the law. He ignored the regulations and invented a rationale out of thin air,’’ the groups’ lawyer David Becker argued in court this week. “He renewed a permit for a grantee who has a demonstrable record of not being a good steward of public lands.’’
Simon agreed. Federal law directs that a reviewing court “shall set aside agency action’’ that’s found to be arbitrary or an abuse of discretion, the judge noted in court.
His ruling suspends future grazing on the federal land that the Hammonds used for cattle grazing until the BLM conducts a comprehensive environmental analysis and accepts public input on whether to grant a new permit.
Earlier this year, Zinke, on his last day in office, authorized the U.S. Bureau of Land Management to reissue a permit within 30 days to Hammond Ranches Inc., allowing grazing to resume on lands administered by the federal government from Feb. 1, 2019, through Feb. 28, 2024. Zinke’s decision on Jan. 2 of this year came during a government shutdown that ended on Jan. 25, providing limited time for the BLM to do a necessary review before renewing the Hammond grazing permit.
The renewal followed President Donald Trump’s pardon of the Hammonds in July 2018. Dwight and Steven Hammond had been convicted of arson and were serving out five-year mandatory minimum sentences for setting fire to public land where they had grazing rights. Both were convicted of setting a fire in 2001, and the son was convicted of setting a second fire in 2006.
Simon made a preliminary finding this past summer that the environmental groups were likely to succeed in proving that Zinke’s action was “arbitrary and capricious’’ and placed limits on the Hammond Ranch grazing.
U.S. Department of Justice lawyer Luther Langdon Hajek argued that Zinke had the authority to order the renewal and that vacating the permit now wouldn’t be practical.
Zinke, according to Hajek, considered a significant change in circumstances in approving the permit: the presidential pardons, the years the Hammonds already had served in prison, the substantial civil penalty they had paid and a lack of violations since 2014 while their cattle grazed on their private land that’s intermingled with or adjacent to public land.
When they walked out of prison in July 2018, Dwight Hammond had served two years and nine months in prison and his son had served three years and four months. In 2015, the Hammonds also paid $400,000 to settle a civil suit brought by the government to recoup damages caused by the fires.
Vacating the grazing permit now would have destructive consequences, including an increased risk of fire due to untouched vegetation and grass, Hajek said. The limited grazing on the Hammond allotments hasn’t had a negative effect on sage grouse or trout based on a BLM analysis from October, he argued.
But the judge found the circumstances hadn’t changed since the BLM last decided not to renew the Hammonds grazing permit in 2014.
“BLM’s 2014 permit nonrenewal for the same conduct was not done instead of civil and criminal penalties, but in addition to them,’’ Simon wrote.
Zinke should not have relied on the presidential pardons of the Hammonds to renew their grazing permit, the judge said.
“Secretary Zinke was required to evaluate HRI’s record of performance and failed to do so. Secretary Zinke also provided no explanation for relying on the post-permit fact of the pardons, which is a departure from agency norms,’’ Simon wrote.
Hajek had argued that it wouldn’t be practical to vacate the grazing permit now, as the next grazing season is set to begin in April.
But Simon said the consequence wouldn’t be financially disastrous for the Hammonds.
Hammond Ranches Inc. was able to maintain its ranching operation and obtain private grazing for the previous five years when it had no federal permit and, presumably, during this past year when it was allowed only reduced grazing, the judge noted.
“When ranchers break the law and abuse public lands, they should lose their grazing permit every time,” said Erik Molvar, executive director of Western Watersheds Project, in a statement Friday. “Restoring grazing leases to ranchers who violate the terms and conditions of their leases encourages the livestock industry to continue abusing public lands and degrading habitat for native fish and wildlife, and fans the flames of extremism, the likes of which resulted in the Malheur National Wildlife Refuge debacle.”
Susie and Dwight Hammond bought their ranch in 1964. Hammond Ranches Inc. has operated on a combination of private and public land — 12,872 acres of deeded territory and another 26,421 acres on grazing allotments — before the federal government curtailed its permits.
Steven Hammond, now president of Hammond Ranches, has called the suit a “personal attack” on his family rather than a legitimate argument for environmental protections.
The family’s acres of private land east of the Malheur refuge is largely unfenced and intermingled with the acres of public land that it has permission to use for grazing, he said in court papers.
Since Hammond Ranches believed it could graze on the public lands, it didn’t renew private leases it had been using for the past five years and would have to make other arrangements, Steven Hammond said.
Harney County’s attorney, a commissioner, the sheriff and some residents came to the defense of the Hammonds in the case, arguing that much is at stake for southeastern Oregon’s high desert expanse, still reeling from the armed takeover of the Malheur wildlife refuge in 2016. The court orders for Dwight and Steven Hammond to return to prison in January 2016 to serve out five-year sentences incited a 41-day armed occupation of the wildlife sanctuary, which abuts the Hammond family ranch.
Susie Hammond, reached Friday, said she was disappointed to learn of the judge’s ruling just before Christmas. “It just seems like the politics of the day to me to shut down agriculture and to have no positive alternative means to use of the public lands,” she said.
— Maxine Bernstein