2-Bar Ranch Ltd. v. U.S. Forest Serv.
| Citation | 377 F.Supp.3d 1172 |
| Decision Date | 26 March 2019 |
| Docket Number | No. CV 18-33-BU-SEH,CV 18-33-BU-SEH |
| Parties | 2-BAR RANCH LIMITED PARTNERSHIP, a Montana limited partnership; Broken Circle Ranch Company, Inc., a Montana profit corporation; R Bar N Ranch, LLC, a Montana limited liability corporation, Plaintiffs, v. UNITED STATES FOREST SERVICE, an Agency of the United States Department of Agriculture; Sonny Perdue, in his official capacity as Secretary of the United States Department of Agriculture; Victoria Christiansen, in her official capacity as Interim Chief of the Forest Service; Leanne Marten, in her official capacity as Regional Forester for the Northern Region; Melany Glossa, in her official capacity as Forest Supervisor for the Beaverhead-Deerlodge National Forest, State of Montana; Cameron Rasor, in his official capacity as District Ranger for the Pintler Ranger District in the Beaverhead-Deerlodge National Forest, Defendants. |
| Court | U.S. District Court — District of Montana |
Calli June Michaels, John E. Bloomquist, Bloomquist Law Firm, P.C., Dillon, MT, for Plaintiffs.
Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.
This matter is before the Court on the parties'1 cross-motions for summary judgment. 2
Plaintiffs 2-Bar Ranch Limited Partnership ("Two Bar Ranch"), Broken Circle Ranch Company, Inc. ("Broken Circle Ranch"), and R Bar N Ranch, LLC ("R Bar N Ranch") (collectively "Plaintiffs") seek judicial review under the Administrative Procedures Act ("APA") of a series of United States Forest Service ("Forest Service") decisions concerning Plaintiffs' livestock grazing operations on a grazing allotment in the Beaverhead-Deerlodge National Forest.3 Both motions are ripe for merit disposition.
The Forest Service administers the National Forest System's ("Forest System") range resources under the Federal Land Policy and Management Act of 1976 ("FLPMA")4 and the National Forest Management Act ("NFMA")5 through the development of land and resource management plans ("forest plans") for each national forest unit.6 FLPMA authorizes livestock grazing on specified allotments7 within the Forest System.8
Individual livestock grazing operations are managed by site-specific: (1) grazing permits; (2) allotment management plans ("AMPs"); and (3) annual operating instructions ("AOIs").9 A grazing permit (a) authorizes a permittee to graze cattle within a national forest,10 (b) identifies the allotment, and (c) specifies the number, kind, and class of livestock permitted and identifies the period of use.11 An AMP prescribes the manner in which grazing operations may be conducted on a specific allotment through long-term goals and objectives.12 An AOI issued at the beginning of each grazing season seeks to implement long-term grazing directives through annual instructions for the permittee.13 The grazing permit incorporates an allotment's AMP and the AOI for each grazing season.14
All site-specific actions—grazing permits, AMPs, and AOIs—must be consistent with the applicable forest plan.15 If a new forest plan is created or an existing plan is revised, pre-existing site-specific actions must be revised to comply with the new or revised plan.16
The Dry Cottonwood Allotment is located in the Beaverhead-Deerlodge National Forest west of the Continental Divide in Southwest Montana.17 It was administered as a part of the Deerlodge National Forest before being included in the Beaverhead-Deerlodge National Forest in 1996.18
The Forest Service promulgated a new forest plan for the Deerlodge National Forest in 1987 ("1987 Plan") to guide the management of resources and activities within the forest.19 It established, inter alia , new management directives for livestock grazing in riparian areas to protect riparian resources,20 including limitations on the grazing of riparian vegetation, commonly referred to as "allowable use levels" ("AULs").21
The 1987 Plan was amended in 1995 to provide greater protections for native fish populations and habitat, including new objectives and standards for riparian areas.22 The Interim Riparian Mitigation Measures, Deerlodge National Forest, September 14, 1995 implemented revised AULs for grazing in riparian areas ("1995 AULs") that focused on four measurements of grazing utilization: stream bank disturbance, stubble height, woody utilization, and forage utilization.23 The 1995 AULs were amended in 1997 to provide permittees flexibility in complying with the AUL limitations ("1997 AULs").24
An Environmental Assessment ("EA") of livestock grazing on the Dry Cottonwood Allotment was conducted in November 1995.25 A Decision Notice and Finding of No Significant Impact was issued, which permitted continued livestock grazing on the allotment on the condition that permittees comply with the 1995 AULs.26
The Deerlodge and Beaverhead forests were combined in 1996 to create the Beaverhead-Deerlodge National Forest.27 Management of each forest was continued under its respective forest plan—the 1986 Beaverhead Forest Plan and the 1987 Deerlodge Forest Plan28 —until 2009 when a new forest plan for the consolidated forest was issued ("2009 Forest Plan").29
The 2009 Forest Plan established new "desired conditions, goals, objectives and standards" for the Beaverhead-Deerlodge National Forest.30 New management directives for livestock grazing, including Interim Livestock Grazing Standards ("2009 Interim Standards")31 that prescribed new AULs for grazing in riparian areas, were implemented.32 The 2009 Interim Standards were limited to allotments "lacking riparian management objectives and guides designed specifically for that allotment."33
The first of Plaintiffs' ten-year term grazing permits for the Dry Cottonwood Allotment was issued to Two Bar Ranch in 1996.34 That permit incorporated and attached the 1995 AULs.35 R Bar N Ranch and Broken Circle Ranch first obtained grazing permits for the Dry Cottonwood Allotment in 2004 and 2006, respectively.36
Renewed permits were issued to Plaintiffs between 2006 and 2016.37 All permits issued after 1996 incorporated38 and attached39 the 1997 AULs, and included reference to, but did not attach, an "Allotment Management Plan for the Dry Cottonwood Allotment, approved January 23, 1996."40
The Dry Cottonwood Allotment was inspected for compliance with the terms and conditions of the grazing permits during the 2015, 2016, and 2017 grazing seasons.41 In November 2016, Plaintiffs received a Notice of Noncompliance from the Forest Service detailing violations of several management objectives and standards, including the 1997 AULs.42 A second Notice of Noncompliance was issued in November 2017, which described continued violations of the 1997 AULs.43 After the second Notice of Noncompliance was issued, the District Ranger suspended twenty percent of Plaintiffs' permitted grazing privileges for the 2018 and 2019 grazing seasons.44
Plaintiffs appealed the twenty-percent suspension to the Forest Supervisor on January 29, 2018, arguing in part that the 1997 AULs no longer applied to the Dry Cottonwood Allotment, and had been replaced by the 2009 Interim Standards upon issuance of the 2009 Forest Plan.45 A "Responsive Statement"46 in support of the suspension was filed with the Forest Supervisor by the District Ranger.47
The Forest Supervisor issued a "final administrative decision" ("Final Administrative Decision") on April 18, 2018, which reversed the twenty-percent suspension and reinstated Plaintiffs' full grazing privileges.48 The Forest Supervisor disagreed, however, with Plaintiffs' assertion that the 2009 Interim Standards applied to the Dry Cottonwood Allotment, and found instead that the 1995 AULs applied to the allotment. The Forest Supervisor reasoned that the Forest Service had selected the 1995 AULs as "site-specific" AULs for the Dry Cottonwood Allotment in the Decision Notice from 1996 and in an undated AMP (at times referred to in the administrative record as the "1996 AMP"), and therefore the 2009 Interim Standards did not apply.49
Notwithstanding that the Forest Service had incorporated the 1997 AULs into the terms and conditions of Plaintiffs' permits and had used them as a basis for the 2016 and 2017 Notices of Noncompliance, the Forest Supervisor determined that the 1997 AULs were an "unnecessary term" in the grazing permits.50 Accordingly, the April 18, 2018, Final Administrative Decision directed the Forest Service to: (1) modify Plaintiffs' grazing permits to add the 1995 AULs, remove the 1997 AULs, and add the undated AMP; and (2) replace the 2017 Notice of Noncompliance with a revised Notice of Noncompliance using the 1995 AULs.51
On May 14, 2018, the Forest Service issued a revised 2017 Notice of Noncompliance to Plaintiffs.52 Draft permit modifications that replaced the 1997 AULs with the 1995 AULs and added the undated AMP were proposed on May 24, 2018.53 An AOI for the 2018 grazing season that instructed Plaintiffs to comply with the 1995 AULs was issued in June 2018.54
On May 31, 2018, Plaintiffs filed suit in this Court, claiming that the Forest Service's management of grazing operations on the Dry Cottonwood Allotment violated the APA, NFMA, FLPMA, and the National Environmental Policy Act ("NEPA").55 An Amended Complaint for Declaratory and Injunctive Relief was filed on July 31, 2018, adding a claim that the Forest Service violated the APA and the Equal Access to Justice Act ("EAJA") in denying an award of attorney's fees incurred during the administrative appeal process.56
Plaintiffs moved for a preliminary injunction to enjoin the Forest Service from enforcing the 1995 AULs on the Dry Cottonwood Allotment.57 The motion was denied.58
Cross-motions for summary...
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...for the Pintler Ranger District in the Beaverhead-Deerlodge National Forest. (126) 2-Bar Ranch Ltd. P'ship v. U.S. Forest Serv., 377 F. Supp. 3d 1172 (D. Mont. (127) 16 U.S.C. [section][section] 1600-1614 (2018). (128) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 53......