Oregon Natural Desert Ass'n v. U.S. Forest Service

Citation312 F.Supp.2d 1337
Decision Date11 February 2004
Docket NumberNo. CIV. 03-213-KI.,CIV. 03-213-KI.
PartiesOREGON NATURAL DESERT ASS'N, et al., Plaintiffs, v. UNITED STATES FOREST SERV., et al., Defendants. and Oregon Cattlemen's Ass'n, et al, Intervenor-Defendants.
CourtU.S. District Court — District of Oregon

Peter Macnamara Lacy, Oregon Natural Desert Association, Stephanie M. Parent, Portland, OR, for Plaintiffs.

Stephen J. Odell, U.S. Attorney's Office, Val J. McLam Black, Office of General Counsel, USDA, Portland, OR, for Defendants.

Paul A. Turcke, Moore Smith Buxton & Turcke, Chartered, Boise, ID, Elizabeth E. Howard, Churchill Leonard Lodine & Hendrie, LLP, Salem, OR, Karen J. Budd-Falen, Richard M. AuBuchon, Budd-Falen Law Offices, P.C., Cheyenne, WY, for Intervenor-Defendants.

OPINION

KING, District Judge.

Two environmental organizations, the Oregon Natural Desert Association ("ONDA") and the Center for Biological Diversity ("CBD"), bring an action against the United States Forest Service and a forest supervisor. Plaintiffs allege defendants are violating the National Wild and Scenic Rivers Act ("WSRA"), the National Forest Management Act ("NFMA"), the National Environmental Policy Act ("NEPA"), and the Rescissions Act, by failing to implement the Malheur and North Fork Malheur comprehensive river management plans, by failing to "protect and enhance" the river corridors'"outstandingly remarkable values," by failing to ensure that the annually-authorized livestock grazing practices are consistent with several environmental plans, and by failing to undertake the required environmental analysis for the protection of wildlife, fish and other river corridor values. Before the court are defendants' motions for judgment on the pleadings and motion to dismiss. For the following reasons, I deny the motions.

FACTUAL BACKGROUND

The Forest Service manages livestock grazing on the national forests by using three separate decisionmaking processes: federally issued grazing permits, allotment management plans ("AMPs"), and annual operating plans ("AOPs").1

A grazing permit is a "document authorizing livestock to use National Forest System or other lands under Forest Service control for the purpose of livestock production." 36 C.F.R. § 222.1(b)(5). Permits are generally issued for periods of ten years. Id. § 222.3(c)(1). Permits are issued according to a priority system tied to ownership of private "base property" and set limits on allowable numbers of livestock and seasons of use, based on an allotment's estimated ability to sustain certain average levels of use. See, e.g., id. § 222.3(c)(i), (ii); 43 U.S.C. § 1752 (explaining scope and requirements of grazing permit terms and conditions).

An AMP is an allotment-specific planning document that (1) prescribes the manner in, and extent to which, grazing operations will be conducted in order to meet multiple use and other goals and objectives; (2) describes any range improvements in place or to be installed and maintained to meet allotment objectives; and (3) contains any other grazing management provisions and objectives prescribed by the Forest Service. 36 C.F.R. § 222.1(b)(2); Complaint at ¶ 63.

An AOP is a signed agreement issued annually by the Forest Service to a permittee, which sets final authorized dates of grazing ("season of use"), pasture and grazing system rotations, numbers of livestock permitted for the upcoming season, monitoring and reporting requirements, and maximum limits of forage use by livestock. Complaint at ¶ 67.

Plaintiffs explain that each of the three documents represents a unique decisionmaking process and the agency makes different types of decisions in each document. For example, according to plaintiffs, the initial decision to graze or not to graze livestock on a particular parcel of land is usually made by either issuance of a grazing permit or in the context of an amendment to a Forest Plan. In contrast, the Forest Service uses an AMP to set more long-term goals, planning for range improvements, and determining how grazing within the particular AMP area will be consistent with the Forest Service's multiple use requirements. Finally, plaintiffs contend that the Forest Service makes each year's on-the-ground grazing decisions by the issuance of AOPs. This is where the Forest Service makes determinations of animal numbers, specific on and off dates, pasture rotations, and forage use limits. Plaintiffs allege that AOPs also generally specify any species of concern and habitat objectives for the allotment at issue and incorporate specific grazing standards. For example, plaintiffs point out that the AOPs at issue in this case incorporate various grazing standards set by the U.S. Fish and Wildlife Department's biological opinions for bull trout. It appears that AOPs are a means for the agency to incorporate factors that it could not possibly anticipate and plan for in a ten-year permit or a long-term AMP-such as drought conditions, timing of rainfall over the course of a given grazing season, the success or failure of habitat restoration projects on an allotment, current water quality, or the current degree of risk to imperiled species affected by grazing (e.g., bull trout).

LEGAL STANDARDS

Any party may move for judgment on the pleadings after the pleadings are closed. Fed.R.Civ.P. 12(c). The allegations of the nonmoving party are accepted as true; the allegations of the moving party which have been denied are assumed to be false. Judgment on the pleadings is appropriate when there is no material issue of fact and the moving party is entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). All inferences reasonably drawn from the alleged facts must be construed in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990).

DISCUSSION

None of the statutes at issue in this case gives plaintiffs a private right of action. Thus, plaintiffs' challenges here are brought under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiffs' action is based on a review of allegedly "final" agency actions as well as agency "failures to act."

The Forest Service moves under Rule 12(c) for judgment on the pleadings. It contends that plaintiffs' Complaint fails to meet the requirements for judicial review under the APA because plaintiffs do not challenge final agency actions and they have not identified failures to perform mandatory statutory duties. Defendant-intervenors Robertson Ranch and Oregon Cattlemen's Association have filed separate motions, primarily joining in the federal defendants' motion.

I. Final Agency Action

The APA authorizes a court to "hold unlawful or set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). To obtain judicial review under this section, a plaintiff must establish that the activities at issue are "final agency actions." Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). For an agency action to be considered final under the APA, two conditions must be satisfied. First, the action "must mark the consummation of the agency's decisionmaking process," and second, it "must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotations omitted).

The Forest Service contends that it cannot glean from plaintiffs' Complaint any agency action challenged by plaintiffs which are final and reviewable under the APA. The Forest Service argues that plaintiffs do not challenge a particular, discrete agency action, but rather they challenge the manner and degree to which the Forest Service is carrying out its conservation responsibilities in connection with the administration of several grazing allotments in the Malheur National Forest. The Forest Service contends that plaintiffs are impermissibly asking the court to conduct a comprehensive review of how the agency manages grazing within these wild and scenic river corridors.

Plaintiffs argue that they are properly challenging final agency actions. Of the three grazing decisions described above, plaintiffs clarify that they are challenging the Forest Service's AOPs.2 Plaintiffs argue that the AOPs are reviewable because they are site-specific plans which are clearly the consummation of the agency's decisionmaking process. Plaintiffs point out that the AOPs specifically establish or adjust livestock grazing standards applicable to the allotment at issue and incorporate other standards, such as standards derived from the Forest Plan or relevant decisions regarding threatened or endangered species. AOPs are signed agreements between the Forest Service and the permittees, and they control that season's grazing use on public lands. As such, plaintiffs argue, they are discrete final agency actions.

Under the APA, plaintiffs cannot bring broad-sweeping challenges to ongoing agency activities. See. e.g., Ecology Center v. U.S. Forest Service, 192 F.3d 922, 925-26 (9th Cir.1999) (holding that the Forest Service's inadequate monitoring of a variety of Forest Plan-specified resource parameters was not a final agency action because it was several steps removed from any final agency action and did not have legal consequences flowing from its completion or rights arising from it). See also Montana Wilderness Ass'n v. U.S. Forest Service, 314 F.3d 1146, 1149-50 (9th Cir.2003) (holding that Forest Service's "routine maintenance work" on trails was not a final agency action subject to review). The Forest...

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