465 F.3d 977 (9th Cir. 2006), 05-35637, Oregon Natural Desert Ass'n v. United States Forest Service

Docket Nº:05-35637.
Citation:465 F.3d 977
Party Name:OREGON NATURAL DESERT ASSOCIATION; Center for Biological Diversity, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, Robertson Ranch; Oregon Cattlemen's Association, Defendants-Intervenors-Appellees, and Roger W. Williams, Malheur National Forest Supervisor, Defendant, Lauri Joyce; Patrick Joyce; Carol Robertson; J.W. Rob
Case Date:September 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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465 F.3d 977 (9th Cir. 2006)

OREGON NATURAL DESERT ASSOCIATION; Center for Biological Diversity, Plaintiffs-Appellants,

v.

UNITED STATES FOREST SERVICE, Defendant-Appellee,

Robertson Ranch; Oregon Cattlemen's Association, Defendants-Intervenors-Appellees,

and

Roger W. Williams, Malheur National Forest Supervisor, Defendant,

Lauri Joyce; Patrick Joyce; Carol Robertson; J.W. Robertson, Defendants-Intervenors.

No. 05-35637.

United States Court of Appeals, Ninth Circuit.

September 21, 2006

Argued and Submitted March 7, 2006—Portland, Oregon

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[Copyrighted Material Omitted]

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Peter M. Lacy, Oregon Natural Desert Association, Portland, Oregon; Stephanie M. Parent, Pacific Environmental Advocacy Center, Portland, Oregon, for the plaintiffs-appellants.

Kelly A. Johnson, Acting Assistant Attorney General; Karen J. Immergut, United States Attorney; Stephen J. Odell, Assistant United States Attorney; Robert H. Oakley and Jennifer J. Scheller, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Karen Budd-Falen and Hertha L. Lund, Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, for the intervenors-defendants-appellees.

Appeal from the United States District Court for the District of Oregon D.C. No. CV-03-00213-REJ, Robert E. Jones, District Judge, Presiding. D.C. No. CV-03-00213-REJ.

Before FERDINAND F. FERNANDEZ, A. WALLACE TASHIMA, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

This appeal presents the narrow question whether the United States Forest Service's issuance of annual operating instructions ("AOIs") to permittees who graze livestock on national forest land constitutes final agency action for purposes of judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702-706. The district court held that the AOIs were not final within the meaning of Section 10(c) of the APA, 5 U.S.C. § 704, and dismissed plaintiffs' lawsuit for lack of subject matter jurisdiction. We conclude that the Forest Service's action in issuing the AOIs is "final agency action" under § 704 and therefore that plaintiffs' claims are ripe for judicial review. Accordingly, we reverse the district court's dismissal order and remand for a determination of the merits of plaintiffs' claims.1

I.

The Federal Land Policy and Management Act of 1976 ("FLPMA"), 90 Stat. 2744 (codified at 43 U.S.C. §§ 1701-1784), authorizes the Forest Service to allow livestock grazing on specified allotments2 within a national forest. The Forest Service authorizes and manages grazing on specified allotments by issuing (1) a grazing permit pursuant to 43 U.S.C. § 1752(a) and 36 C.F.R. § 222; (2) an Allotment Management Plan ("AMP") pursuant to 43 U.S.C. § 1752(d) and 36 C.F.R. § 222.1(b); and (3) AOIs.3

A grazing permit is a "document authorizing livestock to use National Forest System or other lands under Forest Service

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control for the purpose of livestock production." 36 C.F.R. § 222.1(b)(5); 43 U.S.C. § 1702(p). A permit grants a license to graze and establishes: (1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use. See 36 C.F.R. §§ 222.1-222.4; 43 U.S.C. § 1752. The Forest Service sets these parameters based on its assessment of the land's ability to sustain average levels of livestock use according to the applicable land and resource management plan.4 See, e.g., 36 C.F.R. § 222.3(c)(1); Forest Service Handbook ("FSH") 2209.13, § 94.2. The Forest Service generally issues permits for ten-year periods. See 36 C.F.R. § 222.3(c)(1).

The Forest Service is also required to prepare an AMP for each allotment. An AMP is "a document that specifies the program of action . . . to meet [, inter alia,] the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands involved" and includes provisions relating to grazing objectives "as may be prescribed by the [Forest Service], consistent with applicable law," 36 C.F.R. § 222.1(b); 43 U.S.C. §§ 1702(k)(1), 1752(d), including the applicable forest plan. While a forest plan is an overarching land management directive for an entire forest-wide unit within the National Forest System, the AMP is a land management directive for a specific allotment within a national forest that the Forest Service has designated for livestock grazing. See Wilderness Soc'y. v. Thomas, 188 F.3d 1130, 1133 (9th Cir. 1999) (describing AMPs as "site-specific"). The AMP must be consistent with the applicable forest plan. See 16 U.S.C. § 1604(I); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1062 (9th Cir. 2002).

Finally, as reflected in the administrative record, prior to the beginning of a grazing season, the Forest Service issues an AOI to grazing permit holders. Whereas the AMP relates the directives of the applicable forest plan to the individual grazing allotment, and the grazing permit sets grazing parameters through a ten-year period, the AOI annually conveys these more long-term directives into instructions to the permittee for annual operations. See, e.g., Forest Service Manual § 2212.3 (stating that the AOI "implements management decisions of the [AMP]") (chapter currently "in reserve," but in effect at time of district court's order dismissing ONDA's claims). The AOI consists of a signed agreement between the Forest Service and permit holder. According to its explicit terms, the AOI is made part of the grazing permit and governs the permit holder's grazing operations for the next year.5

Because an AOI is issued annually, it is responsive to conditions that the Forest

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Service could not or may not have anticipated and planned for in the AMP or grazing permit, such as drought conditions, timing and duration of rainfall over the grazing season, success or failure of habitat restoration projects, water quality, or degree of risk to threatened or endangered species affected by grazing. See, e.g., Anchustegui v. Dep't of Agric., 257 F.3d 1124, 1126 (9th Cir. 2001) (describing contents of an AOI that imposed reduced utilization levels in response to changed pasture conditions). With this contextual background in mind, we review briefly the statutory basis for ONDA's claims and the district court's jurisdictional ruling.

II.

In 1988, Congress designated stretches of the North Fork Malheur and Malheur Rivers in the Blue Mountains of eastern Oregon as wild and scenic river corridors under the Wild and Scenic Rivers Act of 1968 ("WSRA"), 82 Stat. 907 (codified at 16 U.S.C. § 1274(a)(83), (89)). See omnibus Oregon Wild and Scenic Rivers Act of 1988, 102 Stat. 2782. The 1990 Malheur National Forest Land and Resource Management Plan ("Malheur Forest Plan" or "Forest Plan") designates more than 10,000 acres of national forest land on and adjacent to the North Fork Malheur and Malheur River corridors as livestock grazing allotments. In this action, Oregon Natural Desert Association and Center for Biological Diversity (collectively, "ONDA") challenge the Forest Service's decisions related to its management of livestock grazing on six of those allotments from 2000 to 2004.6 in its complaint, ONDA alleges that the Forest Service acted arbitrarily and capriciously in violation of 5 U.S.C. § 706(2)(A) by annually issuing AOIs to grazing permit holders for pastures within the protected riparian stretches of the North Fork Malheur and Malheur Rivers. ONDA alleges that the AOIs contain terms that violate the Forest Service's mandatory and non-discretionary duties under the WSRA, the National Forest Management Act of 1976 ("NFMA"), 90 Stat. 2949 (codified at 16 U.S.C. §§ 1600-1614), the National Environmental Policy Act of 1969 ("NEPA"), 83 Stat. 852 (codified at 42 U.S.C. § 4321 et seq.), as well as its own regulations.

In response to ONDA's action, 7 the Forest Service and the intervenors moved to dismiss for lack of jurisdiction because the AOIs at issue did not constitute final agency actions reviewable under 5 U.S.C. § 706(2)(A). See ONDA v. USFS, 312 F.Supp.2d 1337, 1341-43 (D. Or. 2004). The district court initially rejected their argument and ruled that under Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), the AOIs were the culmination of a process that resulted in final agency action within the meaning of § 704. See ONDA, 312 F.Supp.2d at 1343. The court therefore concluded that ONDA's claims were ripe for judicial review under § 706(2)(A). Id.

Following denial of ONDA's motion for a preliminary injunction, see ONDA v. USFS, 2004 WL 1293909 (D. Or., June 10, 2004),

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the parties filed cross-motions for summary judgment and the case was transferred to a different district judge. The district court denied ONDA's motion and granted in part and denied in part the Forest Service's cross-motion for summary judgment. Although the district court determined that the Forest Service's issuance of an AOI constituted an agency action, it concluded that the agency's action was not final and therefore not subject to judicial review under § 706(2)(A). The court also concluded that it lacked jurisdiction to review ONDA's alternative WSRA claims under § 706(1) of the APA. Accordingly, the district court dismissed ONDA's claims without prejudice. ONDA appeals the jurisdictional ruling related to its claims under § 706(2).

III.

Because the substantive statutes under which ONDA seeks relief do not provide for a private right of action, ONDA challenges the AOIs under the judicial review provisions of the APA. See 5 U.S.C. § 702-706; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). To obtain judicial review under the APA, ONDA must challenge a final agency action. See 5 U.S.C. § 704; Lujan, 497 U.S. at 882, 110 S.Ct. 3177; Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 n.1 (9th...

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