Oregon Natural Desert Association v. United States Forest Service

1752(a) § to 43 U.S.C. permit pursuant F. Before FERDINAND (2) 222; § Allotment and 36 C.F.R. FERNANDEZ, A. WALLACE (“AMP”) pursuant Management Plan PAEZ, TASHIMA, A. and RICHARD 1752(d) § and 36 C.F.R. 43 U.S.C. Judges. Circuit (3) 222.1(b); § and AOIs.3 PAEZ, Judge. Circuit autho- A is a “document Forest rizing livestock to use National narrow appeal presents the

This under Forest Ser- System or other lands whether the United States question "designated area of land is a deter 2. An allotment de novo the district court's 1.We review grazing.” 36 C.F.R. available for livestock subject juris lacked matter mination that it 222.1(b)(1). re- record § The administrative v. Bal Hambleton Bros. Lumber Co. diction. an allot- the Forest Service divides flects that 1217, Enters., Inc., (9th F.3d kin "units,” pas- ment into several smaller Cir.2005). to the We therefore do not defer tures. position action is agency’s on whether EPA, v. 832 F.2d final. See Abramowitz called the Forest Service 3. Prior to Cir.1987), (9th superseded statute on operating plans.” We refer "annual AOIs EPA, recognized grounds as in Hall other regardless wheth- AOIs these documents as Cir.2001). 263 F.3d the document Service issued er the Forest change prior to the in name. purpose vice for the control livestock allotment within a national forest that the 222.1(b)(5); § production.” 36 C.F.R. designated Forest Service has for livestock § 1702(p). permit grants A li- grazing. See Soc’y. Wilderness v. Thom (1) as, graze (9th Cir.1999) (de cense to and establishes: (2) (3) number, kind, livestock, class of scribing AMPs “site-specific”). (4) (5) grazed, the allotment to be the AMP must be applica consistent with the period §§ of use. See C.F.R. 222.1- plan. 1604(i); § ble forest See 16 U.S.C. 222.4; Neighbors 43 U.S.C. 1752. The Cuddy Forest Ser- Mountain v. Alexan der, (9th Cir.2002). parameters vice sets these on based ability assessment of the land’s to sustain Finally, as reflected in the administra- average levels of livestock use according to record, tive prior to the beginning of a applicable land and resource manage- season, the Forest Service issues See, plan.4 e.g., ment 36 C.F.R. grazing permit AOI to holders. 222.3(c)(1); § Forest Service Handbook Whereas the AMP relates the directives of (“FSH”) 2209.13, § 94.2. The Forest Ser- applicable plan forest to the individual generally vice permits ten-year issues for allotment, grazing and grazing permit 222.3(c)(1). periods. § See 36 C.F.R. sets grazing parameters through a ten- year period, annually the AOI conveys The Forest Service is also re these long-term more directives into in- quired prepare to an AMP for each allot structions to permittee for op- annual ment. An AMP is “a speci document that See, erations. e.g., Forest Service Manual program [, fies the of action ... to meet § 2212.3 (stating that “imple- the AOI 'alia,] inter the multiple-use, sustained ments management decisions of yield, economic, and other needs and ob [AMP]”) (chapter currently reserve,” “in jectives as determined for the in lands in but effect at time of district court’s volved” and provisions relating includes to claims). order dismissing ONDA’s objectives grazing may prescribed “as be AOI consists of a signed agreement be- by Service], the [Forest consistent with tween the permit Forest Service and hold- law,” applicable 222.1(b); § 36 C.F.R. 43 er. According explicit terms, to its 1702(k)(l), 1752(d), §§ U.S.C. including the AOI part is made of the grazing permit applicable plan. forest plan While forest governs and permit holder’s grazing is an overarching management land di operations for the year.5 next rective for an entire forest-wide unit within System, National Forest the AMP is a Because an AOI is annually, issued it is land management specific directive for a responsive to conditions that the Forest 4. "The manage- and, [Forest] Service makes forest §§ U.S.C. particular, 528-531] in include ment developing recreation, decisions a Land and coordination of range, outdoor ("forest timber, Management watershed, plan”) fish, Resource Plan wildlife and and wil- for Sys- 1604(e)(1).” each unit of the § National Forest derness [].' 16 U.S.C. USFS, tem. ... Management The [National Forest Guardians v. 1092-93 ("NFMA”), (9th Cir.2003). Act of 1976 90 Stat. 16 §§ U.S.C. regula- and 1600-1614] [S]ervice require § tions [see C.F.R. 219.10] 5. The administrative record contains a num- proposed actions be pre-2004 consistent with the For- ber of AOIs provision that include a 1604(1). § est developing Plan. 16 U.S.C. In stating: Operating "[t]his Annual Instruction plan, required forest the Service is part your [inter is made Grazing Part 3 of Term 'provide multiple alia] to for use and signed sus- Permit” your and agree- "[t]his AOI is yield products tained and comply services ob- following ment to provisions, tained therefrom in accordance [the with given you, well as other instructions Multiple-Use your employees, Sustained-Yield Act of and contractors the dis- antici on six of those allotments from may not or not have could In complaint, for in the AMP 2000 to 2004.6 ONDA planned and pated drought condi alleges such as that the Forest Service acted arbi- grazing permit, tions, of rainfall over timing trarily and duration of 5 capriciously violation season, 706(2)(A) or failure success by annually issuing § U.S.C. quality, water projects, habitat restoration pas- holders for AOIs to or endan of risk to threatened degree protected riparian within the tures See, by grazing. affected gered species North Fork Malheur and stretches Agric., e.g., Anchustegui alleges that Malheur Rivers. ONDA (9th Cir.2001) (describing F.3d AOIs contain terms that violate the Forest imposed of an AOI that reduced contents non-discretionary mandatory changed response utilization levels WSRA, the National For- duties under conditions). this contextual pasture With (“NFMA”), Management Act of 1976 est mind, briefly the we review background (codified at 16 U.S.C. Stat. claims and the statutory basis ONDA’s 1600-1614), §§ the National Environmen- jurisdictional ruling. court’s district (“NEPA”), Policy tal Act of 1969 83 Stat. (codified seq.), 4321 et II. regulations. as well as its own 1988, Congress designated stretches action,7 In response to ONDA’s the For- Fork Malheur and Malheur of the North est Service and the intervenors moved Blue Mountains of eastern Rivers jurisdiction dismiss for lack of because the corridors Oregon as wild and scenic river agen- AOIs at issue did not constitute final Act of and Scenic Rivers under the Wild cy reviewable under 5 actions U.S.C. (codified (‘WSRA”), at 16 1968 82 Stat. 907 706(2)(A). USFS, § v. See ONDA 312 (89)). 1274(a)(83), § See Omnibus (D.Or.2004). 1337, 1341-43 The F.Supp.2d Act of Oregon Wild and Scenic Rivers initially rejected argu- district court their 1988, The 1990 Malheur 102 Stat. 2782. ment and ruled that under Bennett v. Forest Land and Resource Man- National 154, 1154, Spear, 520 U.S. 117 S.Ct. 137 (“Malheur Plan Forest Plan” agement (1997), the AOIs were the L.Ed.2d 281 Plan”) 10,- than designates “Forest more process culmination of a resulted of national forest land on and 000 acres meaning of action within the adjacent Fork Malheur and to the North § at 1343. F.Supp.2d 704. See ONDA graz- Malheur River corridors concluded that The court therefore action, Oregon In ing allotments. this ripe judicial for re- ONDA’s claims were Natural Desert Association and Center 706(2)(A). § Id. view under “ONDA”) Diversity (collectively, Biological motion for a Following denial of ONDA’s challenge the Forest Service’s decisions injunction, see ONDA management preliminary to its of livestock related roughly over ranger.” appears The allotments are distributed trict It from the record protected forty corridors. these state- miles of river the Forest Service eliminated the 2004 AOIs. ments from complaint, Robertson 7. After ONDA filed Oregon Cattlemen's Associa- respect at issue in Ranch and 6. With to the allotments (“OCA”) case, granted leave to intervene portions tion were of the Bluebucket and Dol- this as- Because the intervenors fall within the as defendants. lar Glade allotments Basin/Star arguments jurisdictional as the the same Wild and Scenic River corridor. sert Malheur Service, Prairie, Fork, Ott, reference to the Forest Flag Forest our of the North Portions encompasses the intervenor-defen- Spring within the Creek allotments fall dants, noted. unless otherwise Malheur Scenic River corridor. North Fork ” USFS, (D.Or., 10, 2004 WL June affect the parties.’ Indus. Customers of Utils, 2004), parties Admin., filed cross-motions for NW v. Bonneville Power (9th Cir.2005) 638, summary judgment and the case was 408 F.3d (quoting Massachusetts, to a different district Franklin v. judge. transferred The district court denied ONDA’s motion L.Ed.2d 636 (1992)). granted part and denied in part the cross-motion for summary determining agen whether an judgment. Although the district court de- cy’s final, action is we look to whether the termined that the Forest Service’s issu- “ action ‘amounts to a definitive statement ance of an AOI constituted an ac- ” “ agency’s position’ or ‘has direct tion, it agency’s concluded that the and immediate effect on day-to-day subject was not final and therefore not operations’” subject party, if 706(2)(A). judicial § “ review under compliance ‘immediate [with the terms] ” jurisdic- court also concluded that it lacked expected.’ Indus. Customers NWof tion to review ONDA’s alternative WSRA Utils, 408 F.3d at 646 (quoting Cal. 706(1) § claims under of the APA. Accord- FERC, Water Res. v. ingly, the district court dismissed ONDA’s (9th Cir.2003)) (alteration in original); see prejudice. appeals claims without ONDA Ctr., also Valley Ukiah Med. 911 F.2d at jurisdictional ruling related to its Co., 264 (quoting FTC v. Standard Oil 706(2). claims under 66 L.Ed.2d (1980)). We focus on the practical and III. legal effects of action: “[T]he Because the substantive statutes ‘finality element must interpreted be in a ” under' which ONDA seeks relief do not pragmatic and flexible manner.’ Or. action, provide private right for a Harrell, Natural Res. Council v. challenges ju ONDA the AOIs under the (9th Cir.1995) 1499, 1504 (quoting Dietary provisions dicial review of the APA. See 5 Coal., Supplemental Sullivan, Inc. v. 702-706; § Lujan U.S.C. v. Nat’l (9th Cir.1992)); F.2d 560 Cal. Wildlife Fed’n, 871, 882, 3177, 497 U.S. 110 S.Ct. Bennett, (9th 827, Educ. v. (1990). Cir.1987) (“The L.Ed.2d 695 To judicial obtain requirement of finality is APA, review under the ONDA interpreted must chal pragmatically.”). lenge a final agency action. See 5 U.S.C. The Forest argues Service that an AOI 704; § 882, Lujan, 497 at U.S. 110 S.Ct. is not a final agency action because the 3177; FTC, Valley Ukiah Med. Ctr. v. merely implements document the Forest 261, (9th Cir.1990) F.2d 264 n. 1 (“finality Service’s other decisions as found jurisdictional

is ... a requirement”). For in the Forest Plan or permit. final, an agency action to be the action Moreover, the Forest argues that (1) must “mark the consummation of the an only AOI not finality, lacks but also (2) agency’s decisionmaking process” and does not “agency constitute action” under by “be one rights obligations which or have the APA interpreted by Norton v. determined, been or legal from which con Southern Utah Wilderness Alliance Bennett, sequences will flow.” (“SUWA U.S. at ”), 542 (internal 178, 117 S.Ct. 1154 quotation (2004), 159 L.Ed.2d 137 because it is not a “ omitted). marks question core rule, ‘[T]he is order, license, sanction, or relief. On agency whether the completed has bases, its deci- both the Forest Service asserts that sionmaking process, and whether re subject district court ju- lacks matter sult of process that is one that will directly risdiction over ONDA’s claims. areWe ... ‘agency meanin[g] ar- ter action’ by ha[s] the Forest Service’s persuaded title.”). properly given is ... section 551 of this Because an AOI guments. 551(13) meaning § of 5 “begins” a license within the The Court noted that viewed as 551(13), the dis- agree agency § we with its definition of action with a list represents agency an “categories trict court that AOI of decisions made or outcomes however, rule, disagree, action. We implemented agency- -‘agency an — ” that issuance order, license, relief,’ court’s determination district sanction which [or] agency represent does not of an AOI “circumscribed, the Court described as dis- below, explain issuance action. As we SUWA, agency crete actions.” 542 U.S. at the Bennett test for finali- an AOI satisfies (quoting 124 S.Ct. 2373 5 U.S.C. process of a ty. It is the consummation 551(13)) (alteration § original). parameters upcoming that sets the that, 551(13), § Court then noted under legal it conse- imposes season and agency equivalent action also includes “the Thus, we on the holder. quences [i.e., rule, agency or denial thereof of an ripe are conclude that ONDA’s claims order, license, sanction, relief], or fail- jurisdiction un- subject that matter exists to act.” Id. that ure The Court concluded the APA. der although equivalent “the thereof’ is not “ APA, ‘equivalent defined in the an ... Agency A. Action thereof must also be discrete.” Id. The points The Forest Service argument Forest Service’s here fails be- argument that an support SUWA to 551(13)’s cause, § categorical even undér an action under the AOI is not action, definition of an AOI is an because, APA as the noted Court A a li- grazing permit action. is case, spe is limited to the “agency action cense, Anchustegui, 257 F.3d at by the APA.” categories cific defined grazing permit the issuance of a SUWA the APA. agency action under See U.S.C. rejected several environmental The Court 551(13); Project § Idaho Watersheds the Bureau of Land groups’ claims Cir.2002). Hahn, (“BLM”) Management protect failed to APA, a license “includes the Under the roadless Wilderness certain Utah’s ... part agency permit of an whole or use in Study from off-road vehicle Areas permission.” other form of 5 U.S.C. agency’s duties under violation added). 551(8) (emphasis As discussed 59-60, 542 U.S. at FLPMA and NEPA. above, has re- the Forest Service itself to “abuse 2373. In contrast the S.Ct. in the AOIs peatedly provision included a pursues claims under of discretion” ONDA of Part 3 of part that the AOI “is made 706(2), groups in § the environmental An AOI is Grazing Term Permit.” [the] their claims under pursued SUWA had li- to be a properly therefore understood 706(1), jurisdiction to provides § which determining purposes for whether cense unlawfully withheld “compel agency action APA. agency it an action under the 61, 124 delayed.” Id. at unreasonably Thus, agree the district court that we with S.Ct. 2373. agency action issuance of an AOI is an analysis of whether the In the Court’s 551(13) § of the APA. under prop- in had groups environmental SUWA act,” the BLM’s “failure to the erly alleged Agency B. Final Action explained meaning the APA’s Court 1. Consummation §in 551. Id. at agency action as defined issu 2373; next turn to whether We see also 5 U.S.C. S.Ct. 701(b)(2) (“For Bennett test ance of an AOI satisfies the purpose chap- § the of this action under the APA. To and in

for final standards conditions set out the test, of the Bennett prong the first applicable meet Malheur Forest Plan as well as challenged agency repre- action must See, the federal e.g., environmental law. agency’s de- consummation sent the 4332(2)(C); § U.S.C. process.8 520 U.S. at cisionmaking 1536(a)(2). Although the Forest Service 1154. The action “must not be of generally implements Forest Plan stan- interlocutory na- merely tentative designated grazing dards on allotments Rather, look to ture.” Id. we see whether AMP, with an none of the in- allotments “ ‘has rendered its last word on in litigation volved this has a current ” an ac- the matter’ to determine whether AMP.9 ripe judicial final and is review. tion is an AMP does Where not exist for an Ass’n, Trucking v. Am. Whitman allotment, integrat- the Forest Service has 457, 478, 149 L.Ed.2d 1 S.Ct. directly ed the Forest Plan’s terms into (2001) Indus., Harrison v. (quoting PPG grazing permits year through each Inc., example, AOI. For in the Forest (1980)). L.Ed.2d 525 The administrative Service issued three permits for that an record establishes AOI is the For- pastures different within the Bluebucket est “last an authorizing Service’s word” permits identify gen- Allotment. The permit graze individual holder to each sea- statutory eral regulatory and framework son. governs actions the individual An sets forth AOI permit holders so that annual regarding determinations how will be consistent with the Malheur Forest grazing particular much (pastures) units Plan. Part III grazing permit pro- of each given within a allotment can sustain “prior completion vides: implemen- upcoming As season. demonstrated AMP’s, tation of the scheduled individual record, in establishing the terms of an working you we will be with through the AOI, the Forest Service considers such Operating [i.e., Annual Plans AOIs] conditions, changes pasture matters as bring management of the Al- Bluebucket information, new scientific new rules that lotment into consistency with the terms of adopted during previous have been Thus, here, the Malheur [Forest Plan].” season, or the extent of the holder’s directly “put[s] Forest Service the [al- compliance previous year’s with the AOI. management] lotment into ef- decisions] a critical The AOI is instrument fect” through AOI. Idaho Watersheds regulation Forest Service’s on Project, 307 F.3d at 828. national forest lands. In Idaho Project, Watersheds we held

Indeed, when the Forest Service takes a that the BLM’s issuance of a grazing per- site-specific action within the For- Malheur est, mit was a final issuing such as action because grazing permit for an “the forest, initial agency allotment within the the Forest decisionmaker arrived at a comply Service’s actions must position put definitive the decision into AMP; however, explicit The district court did not make an uled” an the record does not holding requirement. on Bennett’s first reflect complied that the Forest Service has case, with these schedules. In one the Dollar Allotment, 9. Other than the Bluebucket for Allotment, Glade the Forest Ser- Basin/Star prepared which the Forest Service an AMP completed vice has not analy- an allotment twenty years ago, over none of the allotments step preceding development sis—a of an appeal at issue in this has an AMP. Each AMP—since 1965. permit states that the Forest Plan has "sched- the Forest actions that consummated Ser- ... Id. permits.” the by issuing effect they decisionmaking process because Project, the vice’s Here, in Idaho Watersheds as steps leading to an posi- “only were at a definitive arrived Forest Service decision, than final action it- rather the in Malheur Na- grazing the to allow tion self’). into put that decision Forest and tional In issu- issuing grazing permits. by effect Forest does not contest Service re- the Forest Service permits, the

ing “last that an AOI is the Forest Service’s impose additional right the served graz- permit begins a holder word” before in its annual light of terms and conditions Rather, the Forest Ser- ing his livestock. conditions, pasture changed assessment merely imple- asserts that an AOI vice information, rules, and new new scientific decisions that the Forest ments other As permit the holder. compliance by past (i.e., Forest already has made the these addi- noted, puts Forest Service Plan, AMPs, grazing permits), into or restrictions ef- tional modifications itself, not, a final is therefore the record issuing an AOI. As by fect however, argument, mis- action. This context, reflects, proper in its when viewed in the characterizes the role of an AOI consummation of represents the the AOI management pub- Forest Service’s annual decisionmak- the Forest Service’s of the action range. lic “It is the effect management ing process regarding consid- and not its label that must be allotments.10 grazing Abramowitz, at 1075. 832 F.2d ered.” end, “finality interpreted is to be Moreover, is- To this the Forest Service after ” Ashcroft, way.’ Oregon ‘in v. AOI, pragmatic grazing permit holder sues an (9th Cir.2004) (quot- grazing the new sea- begin authorized to Gardner, v. ing Abbott Labs. conditions.11 Be- under its terms and son 149-50, 18 L.Ed.2d 681 only doc- the AOI is the substantive cause (1967)). correct, the Forest Ser- It is it application process, in the annual ument that, obtaining grazing argues, minor vice than make functions to do more comply agrees to permit, applicant permit as the adjustments grazing in the applicable Forest Plan and other asserts; it with the pragmatically, Forest Service requirements. environmental In federal grazing season. functions to start However, record as the administrative short, “last is the Forest Service’s the AOI demonstrates, only instru- an AOI is permit begin holders word” before the permit holder how Whitman, instructs the ment that grazing their livestock. op- grazing affect his standards will 903; Ecology those U.S. at cf. Al- season. USES, during upcoming Ctr., erations Inc. already holder has Cir.1999) though permit and re- (holding monitoring federal envi- by applicable to abide agreed NFMA were not porting under regarding permit holder merely part of consultation suggest that the AOIs are 10. To forthcoming of the AOI for the "day-to-day operation,” the issuance Service's the Forest 11857, relegates end of this consultation Dissenting Opinion season. At the see the terms and process, Forest Service sets insignificant role in the the Forest them to an any particular allot- management of the lands conditions AOI, light holder of the substantive Without the under its control. ment. AOIs, we are allotment imposed within the legal constraints not know where would when, argument. many graze persuaded graze, the dissent's head to how that the measures any specific conservation up- warranted for Service deemed rec- 11. As documented in administrative ord, coming season. every spring, initiates the Forest Service is, however, In supported by Bennett. term signing the ronmental law Bennett, an agency the held that Court acknowledgment does not di- that permit, agency’s de- action that consummated the as consummat- force of an AOI minish the (Bennett’s first re- cisionmaking process annual decision- ing the Forest final if the action is quirement) would be sum, In the issuance of making process. have “by rights obligations one which the consummation of represents an AOI determined, legal or from which con- been determination re- Forest Service’s flow.” 520 sequences will U.S. limitation, extent, and other garding (internal quotation marks omit- right to a holder’s restrictions on ted) added). held, It then on (emphasis under the terms of the graze his case, the facts of that that this second permit.12 requirement met the chal- was because legal regime to Legal lenged action altered the Effect Secretary of Interior was sub- which interpreted Bennett to court The district not, however, ject. hold Id. The Court did action is not a final agency hold that an agency’s legal that alteration of the federal legal unless it agency “alter[s] an regime only way agen- was the which agency the action is sub- to which regime finality cy satisfy action could the second ject.” understanding, this the dis- With requirement. a that an AOI is not trict court concluded action because it does not final consistently Courts have inter regime to which the Forest legal alter the to preted provide Bennett several avenues court’s subject. meeting finality require district for the second Service is prong general ment. understanding “[t]he of Bennett’s second We have held Cir.1997), plaintiffs challenged cites Montana WildernessAsso the De- 12. The dissent ciation, Chemi destroy Inc. v. U.S. Forest Service and Department’s plan fense chemical support pragmatic Weapons of its as cal weapons by incinerating them. The Tenth merely implement that the AOIs sessment plaintiffs’ pro- Circuit held that the maximum Dissenting Opinion at decision. earlier final ripe judicial tection claim was not review Wilderness, we held that 11856. In Montana under the APA the two trial because burns did not constitute final trail maintenance that were at did issue not constitute final judicial purposes of review action for light Department’s action. In of the (9th under the APA. prior final decision to incinerate the chemical Cir.2003), grounds by on other SUWA. vacated weapons, the court concluded that the later plaintiffs’ rejecting claims under the Mon merely implemented trial burns the earlier Act, 95-150, Study Pub. No. tana Wilderness Notably, plaintiffs final decision. were (1977), we noted that the Forest 91 Stat. 1243 provide any unable to information demon- "imple activities Service's trail maintenance strating Department had revisited its management trail and forest ment[ed] plan weapons. to incinerate the study Id. We plans adopted for the area.” The discrete circumstances in Chemical maintenance trails des concluded that "the Weapons considerably differ from the annual plans[was] merely ignated by those an interim process through which the Forest Service is- planning process, aspect not the con AOIs, sues as does the substantive nature of Here, of it.” Id. the AOIs are not summation compared Instead, the AOIs to the destruction of process. part planning an interim weapons at issue in that case. The issuance acknowledge, seems to the dissent even designed of an AOI is not a discrete event pro represent the consummation of a AOIs cess, imposition feasibility period- test the of action in the of en of course which results rights obligations per- ically adopted by governmental agency, on the but forceable mittee. rather is a decision that sets annual parameters grazing program Working and which Weapons Group, Inc. In Chemical Army, imposes legal consequences permittees. 111 F.3d 1485 on Bennett’s agency a final action under sec- are not orders administrative rule that is they until finality requirement. ‘unless and ond final reviewable and or fix deny right, a obligation, impose an challenged Anchustegui plaintiff a relationship as consummation legal some attempt impose to government’s sanc- ” Ukiah process.’ administrative comply failure to with re- tions for his Ctr., (quoting at Valley Med. in on cattle delineated strictions Lines, Inc. v. Waterman S.S. Air Chi & S. noted, an 257 F.3d at 1126. We AOI. Corp., 333 above, that the Forest described added). (1948)) (emphasis L.Ed. 568 grazing speci- annual uses the AOI set legal not alter the relationship need legal Notably, holder. permit fications for the agen the involved federal regime to which that an AOI contains “di- recognized we See, Dep’t subject. e.g., Alaska cy of that, followed, trigger if not can rectives” 540 U.S. Envtl. Conservation EPA agency to institute the Forest Service 482-83, 157 L.Ed.2d 124 S.Ct. subject grazing against proceedings (2004) EPA’s order under (holding that Id. at 1126-28. While An- permittee. De the Alaskan prohibiting Air Act Clean principally does not concern the chustegui issuing from of Environment partment AOI, it aids our a function of under- company was mining a zinc permits legal order ef standing action because the an AOI carries conse- agency final the mine construction of fectively halted in The administrative record quences. criminal of civil and the threat through supports this conclusion. appeal this also of lack of alteration despite penalties, Educ., Cal. legal regime);

EPA’s Non-Compliance a. of Notices of (holding Depart that the F.2d at 833 Against Permit Action Threatened informing state Education’s letter ment of Ranches and Butler Howard a final accrue was interest would comply not permittee If a does of lack of alteration despite action agency AOI, Forest Service in the directives legal regime); Idaho Department’s Non-Compliance can issue a Notice (hold F.3d at 828 Project, 307 Watersheds (NONC) holder. See An to the per issuance of ing that BLM’s (explaining at 1129 chustegui, 257 F.3d despite action mits constituted process under 5 notice administrative regime). legal of BLM’s lack of alteration 558(b),(c), with which Ser that Bennett’s cases demonstrate These taking “permit comply before vice must through requirement can be met second demonstrates, action”). As the record actions, only kinds different a NONC to the issued Forest Service agency’s regime. legal alters an one that July on Howard Howard Ranch Indeed, that an we have said grazing permit pas “ Ranch obtained may final if it has ‘direct be the Bluebucket Allotment tures within day-to-day ... on the effect immediate recommended that 1996. The 2004 AOI subject party.” Ukiah business’ triggers” certain “move the Ranch monitor Ctr., (quoting 911 F.2d at Valley Med. moving its the likelihood of to increase Oil, Standard reaching utilization limits. before 488). [action] consider “whether the We a reduction Howard It also stated legal comparable has status of law “Allowable Use Standards” Ranch’s 2004 force, compliance and whether immediate classification on allotment’s based light Id. In expected.” terms is with its Forest Plan and consultation the Malheur rules, turn to an AOI these whether we Endangered Spe under the requirements it as that would any legal qualify effect has Thus, (“ESA”), management plan. permit spec- 87 Stat. 884 the Act of cies 1531-43). (codified §§ The ified that the Forest Service would enforce standards, adjusted Ranch of its fail NONC informed Howard the Forest Plan as conditions, in both its annually range ure to meet conditions with via the AOI, including exceeding permit and its AOI. The Howard and Butler Ranches’ failing utilization standards and to follow legal NONCs demonstrate the AOI’s ef- pasture the 2004 AOI schedule comply fect: failure to sub- AOI’s moves.13 stantive terms can result in administrative against permit sanctions the holder. January

On the Forest Service Howard Ranch that it decided to notified argues The Forest Service that because “permit by suspending take action” 25% of the against sanction for AOI violation is livestock, permitted Ranch’s head of the permit, legal the the AOI has no effect. warned in the NONC. The notification However, as the district court noted im- identified violations of the AOI and ruling denying the Forest Service’s motion underlying a modification of the posed dismiss, to “[s]imply because an AO[I]’s grazing permit appropriate as the sanction authority is drawn from permit the does also 36 for the violation. See C.F.R. agency’s not make the decision reflected in 222.4(a)(4) (authorizing Forest Service any less of a final AO[I] ac- suspend grazing permit to cancel or if ONDA, tion.” F.Supp.2d at 1343. provisions permittee comply does not with Rather, that an AOI violation can prompt requirements permit governing the Forest Service to take enforcement regulations). against non-complying permit- “legal tee is a show of the AOI’s force” and Similarly, separate in a to Butler NONC expectation the Forest Service’s of “imme- Ranch for of the 2004 North Fork violation compliance diate with its terms.” Ukiah AOI, Allotment the Forest Service stated: Ctr., Valley Med. 911 F.2d at 264. to forth in “Failure follow the direction set my the Annual Operating Instructions and Impose b. AOI Used to Bull Trout letter, August exceeding allowable ESA Standards use standards is a violation of ... legal The effect of an your terms and conditions set forth in AOI is also demon- Permit,” strated Grazing Term and threatened Forest Service’s use of the AOI to permit impose promulgated similar standards against action to that taken the wake of listing Howard Ranch. the 1998 The Butler Ranch NONC the bull trout, a permit species, cited native salmonid sections that authorize the as a species to threatened under the suspend per- cancel or ESA. As doc- with, alia, record, umented in mit for failure comply to inter Forest Service management plan. grazing permit the allotment with issued a As Coombs Ranch grazing permit each involved in this for the Dollar ap- Glade Allotments Basin/Star peal, permit this covered an allotment in 1996. permit stated that no AMP which operative allotments, did not have an allotment existed for the but 13. The NONC stated: pasture dards and failure to follow move dates in AOI approval without advance Grazing signed Your Term Permit # Forest). from the Based by you, on the violations you and dated states that will follow Permit, your Grazing Term I annual instructions of the Forest am consid- Officer. ering comply your permit suspending your permitted You have failed to with 25% (excess your suspending your ... and 2004 AOI use in viola- numbers season for and/or tion years. of Malheur Forest Plan utilization stan- two develop vice’s annual authorization of into was scheduled Forest Service meantime, that, in compliance requirements, with It also stated ESA one. “to would use the AOI Forest Service AOI is the Forest Service’s definitive into bring management [allotments] legal statement that fixes the relationship the terms of the Malheur consistency with between Forest Service and the In the Fish Wild- Plan].” [Forest holder. The utilization of an AOI in this (“FWS”) the bull trout listed life Service supports manner further our conclusion ESA, the species as a threatened under that an a AOI is action. See (June 31,647 10, 1998),which Reg. Federal Project, Idaho Watersheds 307 F.3d at 828 duty the Forest Service’s under triggered (“definitive position”); Valley Ukiah Med. consult with FWS to insure the ESA to (“fix Ctr., legal 911 F.2d at 264 some rela- action, such as authoriza- any agency that tionship”). land grazing, tion of on Forest Service Finally, argues the Forest Service that likely jeopardize not the threatened would AOIs, the permittees “[w]ithout the would or its habitat. See 16 U.S.C. species graze still be authorized to in accordance 1536(a)(2). per- with the terms and conditions of the relevant listing, the 1998 the AOIs Since position mit.” The Forest Service’s is con- incorporated bull trout standards have by per- tradicted the terms the objectives. example, For the 1998 AOI practice. mit itself and Forest Service stated, Dollar Glade allotments Basin/Star permit permit not authorize The does the year, standards and habi- “[b]eginning this graze continuously per- holder to for the objectives tat for bull trout are detailed for Rather, ten-year per- mit’s duration. the fur- each unit.” The administrative record permit graze mit the holder to authorizes that AOIs for the other allot- ther reflects only livestock after the Forest has Service subject ments to bull trout standards and approved permittee’s applica- the annual objectives state- also contained similar practice, ap- tion. the Forest Service 1998-2003. Because the ments between conjunction in with proves application Forest Service issued most Although of the AOI. the annual issuance underlying challenged the AOIs permits information, application calls for basic it is listing litigation prior this to the bull trout that indicates the detailed terms AOI no current AMPs for the and there are by and conditions which the Forest Service allotments, the AOI was the Forest Ser- graze holder to his expects permit imposing means of the new principal vice’s upcoming season. The permit trout standards on the holders bull argument sup- is not Forest Service’s By restricting the from 1998 forward. by by permit the terms of the ported conferring graz- duties on a rights of and bring the Forest the record.14 ing permit holder Ser- AOI, clear that the Forest similarly argues sim- canee of the make "[a]n 14. OCA AOI expects compliance with way immediate ply a to com- Service [Forest Service] allows Utils., permittees yearly Indus. Customers NW on a ba- the AOI. See municate (ruling finality at 646 is indicat- regarding implementation of the terms 408 F.3d sis " compliance grazing permit.” [with ed the term when ‘immediate and conditions in ”) However, (quoting expected' Cal. terms] Service stated to is as the Forest itself FERC, permittee May Water Res. v. "[t]he Coombs on (alteration Cir.2003) original)). Forest part your permit your ... AOI is It is the claim comply “own behavior belies responsibility [] to be familiar with and Service's statement, operating plan.” instruction] that its your operating [annual This with Whitman, U.S. at along examples final.” with the other in the adminis- highlight legal signifi- trative record that AOIs, the proper IY. use of the land. The themselves, subject change during are supports the conclusion that The record season, if that desir- becomes discrete, site-specific AOI is permits able. Instructions under the also Forest last representing the permitees by on-the-spot reach the com- binding obligations flow. word from which “ personnel ments im obligations have ‘direct and These telephone. day-to-day ... on the busi mediate effect Valley ness’ of’ the holder. Ukiah ONDA claims that each AOI is a final Ctr., (quoting at Med. Stan agency action for purposes of APA 488). Oil, dard review. The Forest Service claims that And, demonstrates, as the record AOI management the instructions are mere legal and intricate imposes substantial ob tools and amount to documents which im- holder. For ligations on the these plement permits the themselves. Which reasons, an we hold that AOI is a final one is correct? The Forest Service. subject judicial agency action review conclusion, reaching that ignore I cannot 706(2)(A) § APA. under of the the fact that the Forest Service itself be- AND REMANDED. REVERSED doing lieves that all it is implementing is permit provisions. I recognize While FERNANDEZ, Judge, Circuit that by we are not bound the Forest Ser- Dissenting: opinions vice’s about what it doing is when it, agency I final As see took AOIs,2 it uses its “own characterization of place when the Forest Service issued the ... provides its action an indication of the grazing by num- permits to allow certain nature City of the action.” Diego San of periods bers of for certain on Whitman, (9th 1097, v. 242 F.3d 1101 n. 6 designated land allotments.1 per- Those Cir.2001); FAA, see also Blincoe v. provided possibili- mits themselves for the 462, Cir.1994) curiam) F.3d (per ty suspension. of cancellation or More (agency characterization not determina- that, than they provided periodic for relevant). tive, but needed, changes adjustments, and as Supreme Court has stated that protection example, adjust- resource —for when we make a decision about whether by ment of the season changing action, agency there is final we must con- entry the dates of and the dates remov- sider whether an action marks the “con- words, al. In other permits contem- summation of agency’s decisionmaking plated that give the Forest Service would process,” and it by whether is “one which from instructions time to time in order to rights obligations or have been deter- that grazing assure was conducted in ac- mined, legal or from which consequences cordance in way with law and a that did will Spear, flow.” Bennett v. unduly damage land itself. As 177-78, here, relevant that was 137 L.Ed.2d accomplished (1997) (internal through Typically quotation the use of AOIs. omit- those marks ted). negotiated sense, are per- documents wherein In that it can argued be agree AOI, mitees with the Forest Service about each no trivially matter how it affects permits 1. The issuance of the EPA, did constitute 2. See 832 F.2d v. U.S. Abramowitz 551(13); agency final action. See 5 U.S.C. (9th Cir.1987), by superseded statute on Hahn, 307 F.3d Project Idaho v. Watersheds grounds recognized other in Hall v. U.S. (9th Cir.2002); Anchustegui Dep’t EPA, (9th Cir.2001). (9th Cir.2001). Agric., process of the and ask if under the with the front end of animals actual its consideration of agency has finished Surely, in action. permit, is issuing grazing action—like proposed a temporary con- it at least a sense is some permits. implementation But is process Forest Service’s summation an process back end of the when (in conjunction permi- deciding decides what will be done to assure that tees) protect taken to steps should be what the action taken is carried out as contem- graze upon the animals the resources while plated example, how will the —for Moreover, a violation of because the land. permits gets be utilized so that livestock subject permitee duly AOI can a issued get protected? fed and resources sanctions, perhaps there charges and words, merely In other the AOIs are if the are legal consequences AOIs can be grazing program way' conducting not adhered to. already that was authorized decided is, believe, I a bit too But to there stop upon permits when the were issued. The because, sense, every step in a formalistic nothing sophisticated AOIs reflect more (and con- “continuing is the result final than the thus permitee stantly changing) operations”3 of the For- legal, and can have of a then final decision reviewing the conditions of est Service Thus, a consequences. physical, as well as resources, assuring and its the land pragmatic narrower and more somewhat grazing programs go the mandated Abbott Labs. v. required. See approach disruption of the forward without undue 149-50, Gardner, 136, 87 S.Ct. 387 U.S. resource itself. Whether the decisions are (1967), 1507, 1516, over- 18 L.Ed.2d 681 AOIs, calls, by by phone by or encoun- by v. grounds ruled on other Califano field, otherwise, they merely ters 980, Sanders, 99, 105, 97 S.Ct. 430 U.S. day-to-day management address resource (1977). 984, L.Ed.2d 192 51 of that feeding and of livestock. Review implementa- That leads to the approach by contemplated sort of decision is not fact, Supreme final an action APA. In Court has concept. tion However programmatic attacks upon frowned broad face, merely on if it is might look because, among other on truly final an earlier deter- implementing “to things, empower those would courts mination, not final action for APA it is compliance whether was determine purposes. review See Mont. Wilderness it achieved—which would mean that would Ass’n, Serv., Inc. v. U.S. Forest ultimately supervis- become the task of the 1146, Cir.2003), vacated on other 1150 court, agency, rather than the to work ing Ribbon Inc. v. grounds by Blue Coal. statutory broad compliance out Ass’n, Inc., 542 U.S. Mont. Wilderness mandate, judge day-to- into injecting -the 2870, 917, 124 159 L.Ed.2d S.Ct. management.” Norton v. S. day agency (2004); Group, Weapons Working Chem. Alliance, 55, 542 U.S. 66- Utah Wilderness Army, F.3d Inc. v. U.S. 67, 2373, 2381, 159 L.Ed.2d 137 (10th Cir.1997); 1485, Lujan see also (2004). That, a final necessity, leads to Fed’n, 871, 890, v. Nat’l 497 U.S. accept that we should not ONDA’s reason Wildlife 3194, position. (1990) (under APA, courts do L.Ed.2d 695 terms, every if AOI for pragmatic day-to-day operations mere review every year every every allotment That, course, good ONDA, makes a agency). by litigation open is to be others,4 a little difficult to see how the usually dealing it is deal of sense. Courts are may Fed’n, They do so seriatim. See Headwaters 497 U.S. at 3. Nat’l Wildlife Serv., v. U.S. Forest Inc. S.Ct. at 3189. (9th Cir.2005). continue,

grazing program Ho; Hong-Duc Van; can pur- if the Thai Tai Dinh pose program Nguyen; Thuong Nguyen; is to feed animals. Van Van They to eat Nguyen; need now rather than at the Nguyen Ri; T. Cam Thi But, lengthy process. end of some court I Phung Nguyen; Pham; Thi Thach Thi really fear what is afoot is an attack Fernandez; Hong Gerardus T. Fer ONDA on the whole program. nandez; Duong; Xua Thi Dien T. That mystery is no asked that the Nguyen; Nguyen Dang, Vivian indi —ONDA land twenty thirty be set aside for vidually persons and on behalf of all years. mystery It is also no that broad similarly situated, Plaintiffs-Appel attacks of that sort are neither within the lants, purpose proper nor a of APA use review. Alliance,

See S. Utah Wilderness 2379-80; at 124 S.Ct. at Nat’l Wildlife BANK, CHASE MANHATTAN a New Fed’n, 110 S.Ct. at 3190. corporation; Citigroup Inc., York I do not think that we should let ourselves corporation Delaware First Na f/k/a be ensnared springe. ONDA’s little City Bank, Defendants-Appel tional lees,

Thus, I respectfully dissent. Corporation,

Bank Of America corporation, a Delaware Defendant. Huynh; Voong Sy Phung,

Lien a/k/a Sy Phung Wong; Huynh; Chun Dieu Nu; Cong Ton; Minh Hoang Phi Vu Nguyen; Quang Tri, Tran Chris a/k/a Tran, individually and on behalf of all persons similarly situated; Tuoi HUYNH; Voong Sy Phung, Lien a/k/a Foster, Pham Pham; Tuoi Thi a/k/a Phung Sy Wong; Huynh; Ngoc Chun Truong Phung; Ton-Nu, Dac Kim Thi Huynh; Nu; Cong Bich Dieu Minh Kien; Huy Ton Nu Thi Le Thi a/k/a Ton; Hoang Nguyen; Phi Vu Tran Tran, Tran; Nancy Julie Doan a/k/a Quang Tri, Tran, Chris individu a/k/a Nguyen, Nga Le; Le Thi Huan a/k/a ally and persons on behalf of all simi Dang; Tran Nguyen; Dinh Vu Toa- larly situated, Plaintiffs, Nguyen; Anh Thi Ho; Bich-Dao Thi Hong-Duc Van; Ngu Thai Tai Dinh

yen; Thuong Nguyen; Van Van Cam Nguyen; Foster, Nguyen Ri; Tuoi Pham T. Phung Thi Tuoi Thi a/k/a Pham; Nguyen; Truong Phung; Pham; Thi Dac Thach Thi Kim Thi Gerar Ton-Nu, Kien; Huy Fernandez; Hong Fernandez; Ton Nu Thi dus T. a/k/a Tran, Tran; Duong; Le Thi Nguyen; Julie Doan Xua Thi Dien T. Vi a/k/a Nancy Nguyen, Nga Le; Nguyen Le Dang, individually Thi vian a/k/a Dang; Huan Nguyen; Tran persons Dinh Vu on similarly behalf of all situ Nguyen; Toa-Anh Thi ated, Plaintiffs, Bich-Dao Thi

Case Details

Case Name: Oregon Natural Desert Association v. United States Forest Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 20, 2006

Citation: 465 F.3d 977

Docket Number: 05-35637

Court Abbreviation: 9th Cir.