957 F.3d 1024
9th Cir.2020Background
- The Malheur National Forest (MNF) contains reaches of the Malheur and North Fork Malheur Rivers where bull trout, a threatened species, require cold, complex, connected riparian habitat. Livestock grazing can degrade that habitat.
- The Forest Service manages MNF under a 1990 Forest Plan, amended by INFISH (1995), which sets Riparian Management Objectives (RMOs) and standards including INFISH Standard GM-1 and Forest Plan Standard 5 (protecting management-indicator species including bull trout).
- Grazing on MNF is governed by 10-year permits and annual Annual Operating Instructions (AOIs); ONDA I established AOIs as reviewable final agency actions under the APA.
- Oregon Natural Desert Association (ONDA) challenged 117 Forest Service grazing authorizations (2006–2015) on seven allotments, arguing the Service failed to "analyze and show" consistency with GM-1 and Standard 5 in violation of NFMA and the APA.
- The district court granted summary judgment for the Forest Service; on appeal the Ninth Circuit held the suit justiciable (ripeness and mootness rejected) and affirmed—finding no procedural or substantive NFMA/APA violation after reviewing the administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability (ripeness & mootness) | Challenge to many authorizations is unripe or moot because it asks for programmatic relief and many authorizations expired | Plaintiffs sued discrete, final authorizations; carryover ecological effects allow effective relief | Suit is justiciable: claims are tied to site-specific final actions and are not moot because remedies could address cumulative effects |
| Procedural duty to "analyze and show" consistency with Forest Plan | NFMA (and precedent) requires contemporaneous, written "analyze and show" statements demonstrating each authorization’s consistency with the Forest Plan | NFMA requires consistency but contains no independent contemporaneous written-analysis mandate; agency procedures govern form/timing | No freestanding NFMA/APA duty to memorialize a contemporaneous written consistency analysis; absence of such a document is not per se arbitrary/capricious |
| Substantive consistency with INFISH Standard GM‑1 | Grazing authorizations retard attainment of RMOs and the Service failed to ensure modification/suspension as required | Forest Service conducted monitoring, used move triggers, prepared biological assessments, participated in PIBO monitoring, and consulted FWS; suspended grazing when needed | Record shows monitoring, enforcement, site‑specific limits, and consultations—no arbitrary or capricious action as to GM‑1 |
| Substantive consistency with Forest Plan Standard 5 (Mgt‑Indicator Species) | Authorizations fail to provide necessary habitat to maintain/increase bull trout and other MIS | Standard 5 is broad; the Service’s ongoing monitoring and site-specific measures reasonably implement the standard amid complex causal factors | Service’s monitoring, limits, and enforcement were reasonable; no arbitrary or capricious violation of Standard 5 |
Key Cases Cited
- Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (U.S. 1990) (ripeness limits APA challenges to discrete agency actions)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (U.S. 2004) (limits on judicial review of agency inaction)
- Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002) (site-specific challenges to monitoring/management reviewable when tied to final actions)
- Or. Nat. Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) (AOIs are final agency actions)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (deference to agency and limits on imposing extra procedural requirements)
- All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105 (9th Cir. 2018) (NEPA‑documented projects may substantively violate NFMA consistency)
- Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) (upholding phased monitoring/enforcement approach to grazing)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review)