The Beaverhead Deerlodge National Forest must level the playing field for bighorn sheep when evaluating grazing allotments in the Gravelly Mountains, according to a federal court judge.

Last week, Butte federal District Judge Brian Morris ruled that the Beaverhead Deerlodge National Forest didn't follow laws related to public process and preservation of wildlife habitat when it allowed sheep grazing to continue near bighorn sheep in the Gravelly Mountains of southwestern Montana.

As a result, he ordered the U.S. Forest Service to conduct a new environmental study of how sheep allotments affect the survival of bighorn sheep in the Gravelly Mountains. He required the agency to tell him by mid-July when the study would be completed.

However, Morris said the ranchers could keep their sheep on the allotments until the study was completed.

“The court hesitates to fashion a remedy for these failures that falls entirely on the permittees who appear to have acted in compliance with the conditions of their grazing permits,” Morris wrote.

Last summer, the Gallatin Wildlife Association sued the USFS for continuing to lease grazing allotments near a struggling bighorn sheep herd without conducting an environmental review.

In 2004, Montana Fish, Wildlife & Parks transplanted 69 bighorns in the adjacent Greenhorn Mountains after deciding in 2001 to reintroduce bighorns in the area. Since then, the herd has suffered and now numbers only around 30 wild sheep.

Just before the transplant, in 2002, the USFS authorized Helle Livestock and Rebish/Konen Livestock to graze domestic sheep on allotments in the Gravelly Range and signed an agreement agreements – called a Memorandum of Understanding - that said, among other things, that the reintroduction of bighorn sheep would not restrict their permits.

That’s one way the Forest Service went too far for the Gallatin Wildlife Association, said GWA president Glenn Hockett. That, and the fact that the Forest Service didn’t make the MOU’s public.

“What the agency has done by circumventing the public process, they’ve basically privatized these public lands,” Hockett said.

In his ruling, Judge Morris agreed that, in an environmental study completed in 2009, the Forest Service withheld information about the existence of the MOU’s that favor domestic sheep. Such an omission is a violation of the National Environmental Policy Act, which requires federal agencies to publish all pertinent information and solicit public input on policies and projects.

The Forest Service attorney tried to argue that the agreements weren’t binding so the USFS didn’t consider them to be important to public. But the judge noted that the MOU’s allowed the grazing-permit holders to request permits to kill bighorns and set out strategies for keeping bighorns away from domestic sheep. Thus they appeared to be very important, the judge wrote.

“The USFS failure to describe the MOUs as part of the NEPA process raises concerns that the USFS may have made a unilateral decision to omit other pertinent information from the NEPA process,” Morris wrote.

The Gallatin Wildlife Association also insisted that the USFS has failed to consider new information that has emerged since the 2009 study, namely that domestic sheep carry bacteria that can kill the majority of a bighorn herd by causing pneumonia. So bighorns cannot coexist with domestic sheep. Also, in 2011, the USFS listed bighorn sheep as a sensitive species, meaning that there is some concern about its survival.

Each national forest is supposed to review such information as part of its annual allotment management plans. But under a 1995 Congressional law passed to relieve a backlog of environmental analyses, the national forest could delay any environmental review on grazing allotments as long as it set a date to do the analysis. But the USFS has repeatedly slipped the date for the Gravelly allotments, even though 80 percent of the backlog has been taken care of, Hockett said.

“The most recent NEPA on one of those allotments is from the year 2000. All the others are older. Since 2003, we’ve asked the Forest Service when they’d do these allotments. They said 2005, then 2007, 2009, and 2013. Now it’s 2016, and then they pushed it back to 2019,” Hockett said.

Judge Morris agreed that the Forest Service is overdue on its responsibility to conduct an environmental assessment of the allotments.

If the Beaverhead Deerlodge National Forest ultimately determines that the allotments are causing bighorn sheep irreparable harm and closes them, it would open the Gravelly Mountains up for FWP to transplant a new bighorn herd.

So far, FWP has struggled to find new locations for five new herds by 2020 as recommended by its bighorn sheep management plan. The hitch is that, because of the threat of pneumonia, the management plan requires that there be no domestic sheep within 14 miles of the transplant site. That has proven to be a high hurdle because it’s not just large producers who keep sheep – often small farms with just a few sheep can gum up the works. So far, FWP biologists have transplanted only one group from the southern Madison Range to a site farther north in the same range.

But the situation used to be even more challenging a few decades ago when sheep producers leased more federal allotments. Slowly, groups such as the National Wildlife Federation have bought the leases and retired them for good. Some conservationists prefer such buy-outs to lawsuits, but Hockett said no tool should be thrown away. In this case, the legal tool worked.

“The perception is that we’re just anti-agriculture and we’re just trying to get ranchers off the land. But we’re just want the agencies to follow the law, we want them to involve the public and to apply the best available science,” Hockett said.