Home » Case Summaries » 1997 » Forest Guardians v. United States Forest Service


Forest Guardians v. United States Forest Service



Forest Guardians and the White Mountain Conservation League (collectively environmental groups) challenged the adoption of grazing-related allotment plans within a national forest by the United States Forest Service (USFS). Finding that USFS did not act in an arbitrary or capricious manner in adopting the grazing-related allotment plans, the district court granted summary judgment in favor of USFS. The Ninth Circuit dismissed in part based on mootness and affirmed in part.

The land at issue in this case is located in the Apache-Sitgreaves National Forest in central eastern Arizona. USFS is required to follow the Forest and Rangeland Renewable Resources Planning Act, [1] as amended by the National Forest Management Act (NFMA),[2] the Multiple-Use Sustained-Yield Act (MUSYA),[3] the National Environmental Policy Act (NEPA),[4] and the Endangered Species Act (ESA).[5] Furthermore, USFS is required to develop a land and resource management plan (LRMP) for each unit in the National Forest System in accordance with USFS regulations.

The LRMP for the Apache-Sitgreaves National Forest included provisions allowing grazing of livestock on certain allotments of land in the forest. To decide whether grazing should be permitted in particular allotments and how that grazing should be managed, in 1996 USFS created allotment management plans for six of the grazing allotments. The allotments were analyzed in two groups, one made up of two allotments, Red Hill and Grandfather (collectively Red Hill), and the other consisting of four allotments, Cow Flat, Foote Creek, PS and Stone Creek (collectively Cow Flat). Based on these analyses, USFS decided that the existing grazing permits for these areas did not comply with the LRMP and existing environmental laws and needed revision. USFS subsequently cancelled the permits for the Red Hill and Cow Flat allotment groups and issued new ten-year permits for the allotments, which included a reduction over a three-year period in how many cattle were allowed to graze in those areas (“phased-in reduction”).[6] These permits allocated all of the available forage to the cattle. Additionally, in order to try out different management options, USFS reserved the right to increase the number of grazing cattle on the allotments via temporary permits.

The LRMP is used to aid USFS in deciding whether to approve site-specific actions. Under NFMA, proposed actions must be consistent with LRMPs, and USFS must consider the economic and environmental aspects of different sorts of management. NEPA requires USFS to prepare an environmental impact statement (EIS) for every “‘major Federal action . . . significantly affecting the quality of the human environment.'”[7] The ESA requires that USFS consult with the United States Fish and Wildlife Service (FWS) to ensure that agency action will not jeopardize listed species or destroy or modify critical habitat for listed species.[8]

On appeal, The environmental groups challenged the actions of USFS on three grounds. First, The environmental groups alleged that in creating the phased-in reduction, in allocating all available forage to the cattle, and in reserving temporary permitting power, USFS violated NFMA by failing to act in a manner consistent with the Forest Plan. Second, the environmental groups alleged that USFS violated a 1999 biological opinion (BiOp) which said unreduced cattle grazing would result in an ESA “take.” Third, the environmental groups challenged the district court’s summary judgment in favor of USFS and also the exclusion by the district court of post-June 1, 1999 monitoring data including evidence of overgrazing in the allotments at issue. USFS filed a mootness motion relating to some of the environmental groups’ claims between the filing of the briefs and the oral argument. After the oral argument, the environmental groups responded, denying that any of its claims were moot.

USFS argued that the environmental groups’ NFMA claims were moot because the three-year period of the phased-in reduction scheme for Red Hill and Cow Flat had expired by the time the plaintiffs brought this action (this case was argued and submitted February 14, 2002, and the three-year periods all expired before March 1, 2002). In addition USFS issued a Decision Notice stating that the agency would follow its manual in using the temporary permitting power making the validity of the permit moot. USFS also asserted that the environmental groups’s BiOp claim was moot because the 1999 BiOp had been superseded. Alternatively, USFS argued it had already conducted the consultation required by the 1999 BiOp, and the environmental groups failed to give proper notice of the ESA claims in its intent to sue letter.

The Ninth Circuit first addressed the mootness claims. The Ninth Circuit granted all of the environmental groups’ motions except for the motion regarding the phased-in reduction in grazing. The environmental groups challenged the USFS’s use of temporary permits for range management and argued that the temporary permits issue fell under the voluntary cessation exception to the mootness doctrine because, although USFS issued a Clarification to Decision Notice which only allowed the issuance of temporary permits if those permits are “consistent with the policy and purpose of temporary grazing permits set forth in the Service Manual,” USFS never deleted the original Decision Notice that granted it the power to issue temporary permits.[9] The Ninth Circuit held that the temporary permit claim was moot because the Clarification to Decision Notice sufficiently narrowed the latitude that USFS had in issuing the temporary permits. The court also held that the temporary permit claim did not fall under the voluntary cessation exception to the mootness doctrine, stating that USFS was unlikely to grant permits that go against the letter and policy of the clarified Decision Notice.

The Ninth Circuit then held that the environmental groups’ ESA claims were moot because both the section 7 claim and the section 9 claim were based on the 1999 BiOp, and the court determined the 1999 BiOp was superceded by a 1998 Biological Assessment and Evaluation (BAE).[10] The court stated “when one [BiOp] supersedes another, a challenge to the superseded [BiOp] is moot,”[11] and therefore any claims based on challenges to the superseded BiOp were moot as well. Thus, the environmental groups’ challenge to the exclusion of the evidence of overgrazing in the post-June 1, 1999 monitoring data was moot. As it was able to dismiss the ESA claims on the basis of mootness, the Ninth Circuit did not reach USFS’s jurisdiction or reconsultation arguments. The Ninth Circuit held that the phased-in reduction claim was still live because the claim could be redressed by ordering USFS to fix the problem and allow the land to recover, even though the time the case was before the court, the three-year period had ended.

Having addressed the mootness issues, the Ninth Circuit then evaluated the environmental groups’ substantive claims. The Ninth Circuit reviewed the environmental groups’s allegations of violations of NFMA and the ESA under an arbitrary and capricious standard, with deference to USFS’s interpretation of its regulations. The environmental groups challenged the phased-in reduction scheme as not consistent with the LRMP under NFMA. The Ninth Circuit agreed with the decision of the district court and upheld the phased-in reduction scheme as not arbitrary or capricious but disagreed with the district court’s reasoning. The district court upheld the phased-in reduction scheme because the regulations allowed USFS to “‘modify‘ the number of livestock allowed” in a permitted area.[12] The Ninth Circuit said that permission to modify does not equate to permission to cancel, and therefore upheld the phased-in reduction scheme under 36 C.F.R. section 222.3, which allows USFS to issue permits that limit the number of livestock a person can hold under that permit.[13] The Ninth Circuit held that “the phased-in reduction scheme is a reasonable response to the [LRMP’s] requirement that capacity and permitted use be balanced, and [USFS’s] burden to consider the permittees when making management decisions.”[14]

The Ninth Circuit also upheld USFS’s actions in allocating all of the available forage to livestock. The environmental groups challenged this action as a violation of NFMA’s requirement that the agency consider wildlife needs. The court determined that even though there were wild ungulate populations in the area, the allocation of all available forage to livestock was not plainly erroneous or against USFS regulations because USFS considered the wild ungulates in setting livestock range timing and closely monitored foraging. The environmental groups argued that this monitoring cannot hide the fact that the ten-year permit gave all of the grazing capacity to livestock and none to wildlife. However, the Ninth Circuit held that USFS’s monitoring program was not arbitrary or capricious because USFS made a rational connection between the facts and its implementation of the monitoring program in light of the difficulty in estimating the number and range of wild ungulates.

The Ninth Circuit dismissed as moot the environmental groups’ claims regarding the ESA, the temporary permits, and the district court’s exclusion of monitoring data from after June 1, 1999. The Ninth Circuit affirmed the district court’s summary judgment for USFS on the claims regarding allocation of all the forage to cattle, the monitoring program, and the phased-in reduction scheme.

Judge Paez concurred in all of the opinion except for the portion supporting USFS’s allocation of all of the available grazing land to cattle and method of assessing grazing capacity of the land. Judge Paez stated that “[b]y allotting 100 percent of the available forage to livestock, USFS failed to comply with [provisions] of the LRMP . . . and thus violated . . . NFMA.”[15] According to Judge Paez, the forest plan clearly required USFS to consider wildlife grazing before permits; the allocation and the monitoring program were inconsistent with the LRMP and should have been held arbitrary and capricious.


[1] Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476.

[2] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[3] Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (2000).

[4] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[5] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[6] Forest Guardians v. United States Forest Serv., 329 F.3d 1089, 1094 (9th Cir. 2003).

[7] Id. at 1093 (quoting 42 U.S.C. § 4332(c) (2000)).

[8] 16 U.S.C. § 1536(a)(2) (2000).

[9] Forest Guardians, 329 F.3d at 1094-95.

[10] The court acknowledged that this sounded “implausible” but held USFS intended the 1998 study to cover the relevant time period. Id. at 1095.

[11] Id. at 1096 (citation omitted).

[12] Id. at 1097 (quoting 36 C.F.R. § 222.4(a)(8) (2000)) (emphasis in original).

[13] 36 C.F.R. § 222.3 (2003).

[14] Forest Guardians, 329 F.3d at 1098.

[15] Id. at 1100 (citations omitted).

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