996 F.3d 984
9th Cir.2021Background:
- Plaintiffs are cattle ranchers with grazing permits for the Dry Cottonwood Allotment in the Beaverhead‑Deerlodge National Forest.
- In 1995 the Forest Service developed the Riparian Mitigation Measures (INFISH) prescribing four riparian metrics (streambank disturbance, stubble height, woody browse use, riparian herbaceous utilization) as a matrix of allowable use levels; the Service applied those measures to specific allotments by site‑specific NEPA decisions.
- In 1996 the Service completed an EA and Record of Decision applying the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment and incorporated them into the allotment management plan and subsequent grazing permits; a 1997 version added application guidance but did not change allowable use levels.
- In 2009 the Service adopted a new Beaverhead‑Deerlodge Forest Plan that set default Grazing Standard 1 allowable use levels but expressly preserved site‑specific allowable use levels created through individual resource management plans or site‑specific NEPA decisions.
- The Service continued to enforce the 1995 measures at Dry Cottonwood, issued noncompliance notices in 2016–2017 and suspended some grazing; the Forest Supervisor later reversed the suspension, directed use of the 1995 measures (not the 1997 application language), and denied EAJA fees for the administrative appeal.
- The district court granted partial summary judgment to Plaintiffs, vacated the Service’s application of the 1995 measures, and remanded; the Service appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Forest Service lawfully applied the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment given the 2009 Forest Plan | The 2009 Forest Plan applies forestwide; chapter 4 for East Deerlodge lists no site‑specific objectives, and "designed specifically for" means uniquely created for a single allotment, so the 1995 measures do not qualify | The 1996 site‑specific NEPA decision designed allowable use levels for Dry Cottonwood; "designed specifically for" includes site‑specific NEPA‑derived allowable use levels even if using a template/matrix; the 2009 Plan expressly preserves such exceptions | Court: Service lawfully applied the 1995 measures; 1996 NEPA decision constituted "designed specifically for" this allotment and the 2009 Plan allows site‑specific deviations |
| Whether Plaintiffs may recover attorney’s fees under EAJA for the administrative appeal (i.e., whether the appeal was an "adversary adjudication" under 5 U.S.C. § 504/§ 554) | Plaintiffs contend due process afforded a right to be heard, so the appeal is governed by § 554 and is an EAJA‑eligible adversary adjudication | The administrative appeal is governed by Forest Service regulations (36 C.F.R. part 214), not § 554; Mathews balancing and Buckingham show due process does not require APA formal adjudication here, so EAJA does not apply | Court: The administrative appeal was not an "adversary adjudication" under § 554; EAJA fees properly denied |
Key Cases Cited
- Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) (describes NFMA two‑stage forest planning and plan/project consistency)
- Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) (distinguishes forest plan guidance from project‑level implementation)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process balancing test for administrative hearings)
- Ardestani v. INS, 502 U.S. 129 (U.S. 1991) (EAJA’s phrase "an adjudication under section 554" means proceedings actually governed by § 554)
- Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073 (9th Cir. 2010) (upheld Forest Service appeal procedures under Mathews; no § 554‑level formalities required)
- Collord v. U.S. Dep’t of Interior, 154 F.3d 933 (9th Cir. 1998) (discusses situations where § 554 governs agency adjudications)
- Aageson Grain & Cattle v. U.S. Dep’t of Agric., 500 F.3d 1038 (9th Cir. 2007) (§ 554 generally applies where administrative hearing is statutorily or constitutionally required)